Solution Partner Terms & Conditions

// Last Updated on May 18, 2014

1. WHEREAS, Evergreen Backup, referred to herein as "Evergreen Backup" or "Provider," has developed certain software solutions including but not limited to computer programs and related documentation, and referred to herein as the "Evergreen Backup Service." The Evergreen Backup Service consists of the Evergreen Backup Client Software and a set of services provided by Evergreen Backup. The primary function of the Evergreen Backup Service is to provide a service for backing up computer files.
2. Solution Partner, referred to herein as "Reseller," agrees that all underlying rights associated with the Evergreen Backup Service, Evergreen Backup Client Software or other Evergreen Backup intellectual property shall remain with and owned by Evergreen Backup. Reseller shall not attempt to trademark or otherwise claim any proprietary rights to any mark which contains or otherwise includes or refers to the intellectual property of Evergreen Backup. Reseller shall have no right to remove any patent, copyright or trademark markings. For the avoidance of doubt, Reseller shall not be permitted to create derivative works of the Evergreen Backup intellectual property.
3. No Implied Duties. Other than as expressly and specifically set forth herein, neither Evergreen Backup (as Provider or otherwise) nor Reseller shall have any additional duties or obligations arising under this Agreement.
4. No Exclusivity. Each Party shall, at all times, retain the absolute and unrestricted right to market, distribute, sell or otherwise transact in its own products and services through or with any third Party, customer or end user other than with or through the other Party. Without limiting the generality of the foregoing, each Party shall be free and unrestricted in its ability to market, develop, license, sell and promote its own products and services worldwide in any manner, form or format. For the avoidance of doubt, this Agreement imposes no restriction or limitation whatsoever on the ability and rights of either Party with respect to its products or services, or otherwise regarding the business or operations of either Party.
5. Staff and Facilities. While each Party affirmatively covenants herein to maintain adequate staff for the purposes set forth herein, nothing contained in this Agreement is intended, or shall be construed, to mean that a Party or its agents, employees or representatives are agents, employees or representatives of the other Party. Each Party is solely and exclusively responsible for paying any and all taxes, including, but not limited to, social security, unemployment, and withholding taxes for itself and for all of its agents, employees or representatives (as applicable), including (without limitation) any staff hired or maintained in connection with this Agreement. Neither Party shall, under any circumstances, be responsible for providing or paying any benefits (including, but not limited to, unemployment, disability, insurance or medical) to the other Party or to any of its Personnel. It is the intent of the Parties hereto, that neither party nor its Personnel receive benefits from the other Party either as an independent contractor or employee (or otherwise).
6. Marketing and Advertising. Each Party may conduct marketing and advertising at its own expense, in such manner so as to keep Customers aware of the Evergreen Backup Service subject to the provisions of this Agreement. Evergreen Backup will provide timely review and recommendations regarding any marketing or advertising materials or communications that Reseller provides to Evergreen Backup regarding the Evergreen Backup Service. Reseller shall not use, publish, display, disseminate or otherwise use any marketing materials related to Evergreen Backup or the Evergreen Backup Service not derived from and currently available on www.evergreenbackup.com without the prior written consent of Evergreen Backup in each instance (such consent not to be unreasonably withheld, conditioned, or delayed). Reseller is under no obligation to create any sales materials or Web-based content promoting the Evergreen Backup Service, or otherwise in connection with this Agreement. Each Party shall create its own marketing materials and/or content in connection with this Agreement at such Party's individual discretion and cost.
7. Compliance. Each Party agrees to comply, at its own expense, with applicable laws, ordinances, regulations and codes with respect to its obligations under this Agreement.
8. Limited Rights. Under no circumstances whatsoever shall Reseller promote, advertise, market, sell or distribute products, goods and/or services of Evergreen Backup in a manner, form or format other than as expressly permitted or contemplated herein.
9. Cooperation. Each Party agrees, during the Term of this Agreement (and as may be reasonably required thereafter in respect of continuing obligations and provisions), to cooperate with the other Party as is reasonably necessary and required to achieve and effectuate the purposes and intent of the Agreement and the provisions hereof.
10. No Third Party Representations or Agreements. Each Party is strictly prohibited from making any assertions, representations or warranties to any third party on behalf, in connection with or in association with the other Party, unless (and only to the extent that) the other Party has expressly approved such assertions, representations or warranties in writing.
11. Independent Contractors. The Parties' relationship to each other is that of independent contractors, and neither Party is an agent, partner, fiduciary, or joint venture of the other. Neither Party will have, nor will it represent to any third party that it has, any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other Party. Each Party will pay all the expenses of its office and activities and will be responsible for the acts and expenses of its employees, contractors, and agents.
12. Covenant Not to Compete; Non-Solicitation. Each Party agrees that during the Term of this Agreement it will not directly or indirectly solicit, encourage or induce any employees, contractors or customers of the other Party to terminate their relationship with the other Party. Further, Reseller shall not during the Term of this Agreement or anytime thereafter, disparage Evergreen Backup or the Evergreen Backup Service.
13. All Intellectual Property, of whatever nature, in the Evergreen Backup Service (including, without limitation, the specifications, the detailed design, software code, trademarks, logos, graphics, and all of the documentation relating to Evergreen Backup and the Evergreen Backup Service including but not limited to the APIs, libraries and applications built by Evergreen Backup for the Evergreen Backup Service will be entirely and exclusively owned by Evergreen Backup. Subject to Evergreen Backup's underlying rights in and to the Evergreen Backup Service and Evergreen Backup marks and insignias and all intellectual property related to each of the foregoing, Reseller shall maintain right, title, and interest in its trademarks, logos, documents and/or marketing collateral Reseller creates for the marketing and distribution of the Evergreen Backup Service. Nothing in this Agreement shall entitle Reseller or any party associated with Reseller to any Intellectual Property Rights associated with the Evergreen Backup Service, directly or indirectly or in any manner whatsoever.
14. Each and every part and component of and relating to the Evergreen Backup Service (including without limiting the generality thereof, the system, executables, documentation, and/or source code) relating to the Evergreen Backup Service shall be the sole and exclusive property of Evergreen Backup, free from all pretension of rights thereto on the part of Reseller.
15. Reseller acknowledges and agrees that the Evergreen Backup Service and all copies thereof are proprietary to Evergreen Backup and title thereto remains with Evergreen Backup at all times.
16. Reseller shall not dispute or assist another person or entity in disputing the validity or efficacy of any trade-name or trademarks of Evergreen Backup or the Evergreen Backup Service. Further, Reseller shall not dispute or assist another person or entity in disputing the validity or efficacy of any copyrights, trade secrets or other intellectual property rights of Evergreen Backup or the Evergreen Backup Service other than in Reseller's own defense of any assertion of such rights against Reseller. Reseller further agrees it shall not adopt, use or register any acronym, trademark, trade name or other marketing name of the Evergreen Backup Service, or any confusingly similar mark or symbol, as part of its own name or business.
17. No Reverse Engineering. Reseller warrants, agrees and undertakes the Reseller will not, directly or indirectly or in any way reverse engineer or attempt to reverse engineer or procure any party or assist any party to reverse engineer the Evergreen Backup Service or any part of the Evergreen Backup Service. Reseller further represents and warrants that it shall not, during the term of this Agreement or at any time thereafter, use, directly or indirectly, any information gained hereunder to decompile or reverse engineer the Evergreen Backup Service technology in any manner.
18. Definition. The term "Confidential Information" means any and all information disclosed by a party or its Representatives (the "Disclosing Party") to the other party (the "Receiving Party"), either directly or indirectly, regardless of form or format of disclosure (including, specifically, but without limitation, in writing, orally, electronically, digitally or by inspection of tangible objects), including (without limitation) documents, prototypes, samples, plant and equipment, research, product plans, products, services, customer lists, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration, marketing materials or finances. The obligations set forth will not apply to any information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party hereunder; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party's files and records immediately prior to the time of disclosure; (d) is obtained by the Receiving Party from a third party without a breach of such third party's obligations of confidentiality; (e) is independently developed by the Receiving Party without use of or reference to the Confidential Information, as evidenced by the written records and files of the Receiving Party; or (f) is required by applicable law to be disclosed by the Receiving Party, provided, that the Receiving Party must give the Disclosing Party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure; provided, further that in the event that any Confidential Information must nevertheless be disclosed pursuant to (f) preceding, only that minimum amount of information shall be disclosed so as to satisfy and comply with the applicable legal process and confidential treatment thereof shall be requested. For purposes of this Agreement, "Representatives" shall mean any or all of a party's officers, directors, professional advisors or independent contractors.
19. Non-use and Non-disclosure. The Receiving Party shall not use the Confidential Information for any purpose except as required for performance of this Agreement. The Receiving Party shall not disclose any Confidential Information to third parties other than to those Personnel, agents and representatives who have a need to know such information and who are bound by terms of confidentiality no less stringent than the terms herein; provided that Reseller may include information, other than Confidential Information, regarding the Evergreen Backup Service and documentation in its marketing materials for the Evergreen Backup Service and in related communications to Users. Furthermore, either party shall have the right to disclose the existence and general nature of this Agreement with a potential purchaser of all or substantially all of its business or assets or with any parent or Affiliate entity of such party. For purposes of this agreement, an "Affiliate" shall mean an entity that is controlled by, or under the common control of an entity with Provider. The Receiving Party shall not, directly or indirectly, reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody Confidential Information or products of the Disclosing Party. Except as permitted hereunder, the Receiving Party shall not, directly or indirectly, use any Products of the Disclosing Party or Confidential Information in any way or manner as a part of the Receiving Party's own products or services.
20. Maintenance of Confidentiality. The Receiving Party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, the Receiving Party shall take at least those measures that it takes to protect its own confidential information, and shall promptly notify the Disclosing Party of any misuse or misappropriation of Confidential Information of which it becomes aware. The Receiving Party shall only disclose Confidential Information only to those officers, directors, employees and contractors who are required to have the information in order to perform this Agreement, or as set forth above and the Receiving Party shall remain responsible for compliance with the terms of this Agreement by its officers, directors, employees and contractors.
21. Return of Materials; Discontinued Use. Except as provided herein to the contrary, all documents and other tangible objects containing or representing Confidential Information which have been disclosed by the Disclosing Party to the Receiving Party, and all copies thereof which are in the possession of the Receiving Party, shall be and remain the sole and exclusive property of the Disclosing Party and shall be promptly returned to the Disclosing Party upon its written request to the Receiving Party at any time. In the event this Agreement is terminated or expires, except as otherwise provided herein to the contrary, the Receiving Party agrees to immediately and permanently discontinue the use (in any manner, form or format, including, but not limited to, on the premises and properties of the Disclosing Party and in its invoices, letters, containers and/or elsewhere) of any trademark, trade name, device or logo registered, utilized or otherwise associated with the Disclosing Party.
22. No License. Except as expressly set forth herein, nothing in this Agreement is intended to grant any rights (including, without limitation, under or with respect to any patent, mask work right, copyright, trademark, title, interest in products or trade secret of the Disclosing Party) to the Receiving Party. Except as otherwise provided herein to the contrary, any and all such rights (including, without limitation, any and all rights associated or in connection with the products of the Disclosing Party) shall remain the sole and exclusive property of the Disclosing Party and the Receiving Party shall gain no interest, right or title therein by entering into or performing this Agreement. Each party expressly reserves all rights not expressly granted herein.
23. Interpretation. In the interpretation of the Agreement, the interpretation which gives maximum effect to the fundamental intention to protect the Parties' Confidential Information and Intellectual Property Rights will be given maximum weight.
24. Indemnification by Reseller. Reseller will defend, indemnify and hold harmless Evergreen Backup, its Affiliates, and its and their officers, directors, and employees from and against any and all loss, damage, liabilities, settlement, costs and expenses (including reasonable legal fees) as incurred, to the extent resulting from or arising out of (i) any third party claims based upon any allegations that any Reseller Products or software supplied by Reseller (other than the Evergreen Backup Service provided by Evergreen Backup, expressly excluding Reseller intellectual property) infringe any third party intellectual property rights; (ii) Reseller's gross negligence, willful misconduct, or breach of the terms of this Agreement or violation of applicable law, rule or regulation, (iii) any claim of VAT or other taxes against Evergreen Backup, (iv) the migration of any User data (other than to the extent as a result of the gross negligence or willful misconduct of Evergreen Backup); or (v) any misrepresentation made by Reseller regarding the Evergreen Backup Service (unless based on information received from Evergreen Backup). Evergreen Backup will provide Reseller with prompt written notice of any such claim and permit Reseller to control the defense, settlement, adjustment or compromise of any such claim. Evergreen Backup counsel may, at Evergreen Backup's expense, participate in the defense of any such claim. Counsel selected by Reseller to represent Evergreen Backup will not be adverse to Evergreen Backup in any dispute between Reseller and Evergreen Backup. Settlement of any claim will be subject to Evergreen Backup's prior consent, which will not be unreasonably withheld, conditioned or arbitrarily delayed.
25. Indemnification Notice. The failure of the indemnified party to deliver timely written notice to the indemnifying party as provided above shall not, unless materially prejudicial to the indemnifying party, operate to relieve the indemnifying party of any liability as prescribed above.
26. Brand Protection. Each Party agrees not to take any action inconsistent with the other Party's exclusive ownership of its trademarks, trade names, service marks, and logos and to cooperate, at the other Party's request and expense, in any action that the other Party deems necessary to preserve its exclusive rights in and to its trademarks, trade names, service marks, and logos. Neither Party will adopt, use, or attempt to register any trademarks, service marks, logos, or trade names that are confusingly similar to those of the other Party or that create combination marks with those of the other Party.
27. Relationship. The parties hereto are independent contractors under this Agreement. Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party.
28. Rights and Remedies. The rights and remedies of each party under this Agreement are cumulative and may be exercised singularly or concurrently. Each party acknowledges and agrees that an actual or threatened breach of any of the obligations of confidentiality contained in this Agreement may result in immediate, irreparable and continuing damage to the aggrieved party for which there may be no adequate remedy at law, and the aggrieved party may apply to any court of competent jurisdiction for equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond.
29. Waiver. Failure by a party to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision, unless (and only to the extent) that such waiver is in writing and signed by a duly authorized representative of the waiving party.
30. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (a) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (b) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect.
31. Governing Law. This Agreement shall be construed and interpreted according to the laws of the State of Michigan, excluding its provisions related to conflict of laws. The provisions of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement will be brought in a federal or state court in Oakland County, Michigan (provided, however, that nothing in this Agreement will prevent a Party from seeking injunctive relief to enforce the terms of this Agreement in any venue or jurisdiction, as determined in such Party's sole convenience), and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
32. Third Party Rights. The provisions of this Agreement are intended solely for the benefit of Evergreen Backup and Reseller, and shall create no rights or obligations enforceable by any other party.
33. Injunctive Relief. Each Party agrees that because a breach of this Agreement by a Party may cause significant harm to another Party, injunctive relief may be an appropriate form of relief and the Parties acknowledge that a Party may at its discretion seek injunctive relief against another Party in addition to any other form of relief sought, and in addition to any right to terminate this Agreement.