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Last Updated • June 2023
This Alliance Agreement (“Agreement”) is made as of the later of the dates beneath the parties’ signatures below or acceptance of a document where this Agreement is incorporated by reference (the “Effective Date”) by and between ____________________ a __________ corporation with principal offices at ___________________________________________________________________ (“Partner”), and Ridgeline, Inc., a Nevada corporation with principal offices at 936 Southwood, Blvd., Incline Village, NV 89451 (“Ridgeline”).
Now, therefore, in consideration of the rights, promises and obligations contained herein, the Parties agree as follows:
Each Party will designate a relationship manager (“Relationship Manager”) who will be responsible for coordinating activities with the other Party, including facilitating access to information and other personnel of such Party, as needed under this Agreement. Either Party may change its Relationship Manager upon reasonable written notice to the other Party.
This Agreement is non-exclusive and either Party may enter into similar relationships with other third parties and, subject to all Intellectual Property and Confidential Information restrictions set forth here in, a Party may develop, market and sell Products and Services that compete with the other Party.
In performing its obligations under this Agreement, each Party is acting as an independent contractor of the other. Partner shall have exclusive control of the manner and means of performing its obligations under this Agreement. Each Party shall be solely responsible for the supervision, daily direction and control of its own employees and for the payment of their salaries (including, without limitation, withholding of appropriate payroll taxes), worker’s compensation, disability, and other benefits. Nothing in this Agreement shall be construed as: (i) making either Party the agent of the other; (ii) as granting to the other Party the right to enter into any contract on behalf of the other Party; or (iii) as establishing a partnership or joint venture between the Parties. Under no circumstances shall the employees of one Party be deemed to be employees of the other for any purpose. Each Party will sign separate contracts with customers for that Party’s Products or Services.
During the Term, each Party grants to the other a fully revocable, non assignable, non-transferable and non-exclusive license to display, perform, reproduce and distribute its Names & Marks solely to the extent necessary to perform its obligations under this Agreement including, in the case of the rights granted to Ridgeline by Partner, to display Partner’s Names & Marks on its website, provided, further, that each Party shall only display, perform, reproduce the other Party’s Names & Marks in the form provided by the other Party, in compliance with that other Party’s branding policies, if any. Neither Party shall use or permit others to use the Names & Marks of the other Party in any manner that would tarnish or diminish the value of such Party’s Names & Marks or the rights therein. In addition to the requirements in Section 3.4 below, the Parties will mutually agree in writing to all marketing and promotional materials used in connection with this Agreement and shall have the right to
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object to and thereby prohibit the use of its Name & Marks on or in any materials at any time in its sole discretion.
2.2.1 Each Party is and shall continue to be the sole and exclusive Owner of its own Property.
2.2.2 To the extent that any Derivative Works to the Ridgeline Property are created under this Agreement by Partner through Partner’s provision of its Services, such Derivative Works of the Ridgeline Property shall be owned and belong to Ridgeline. If, for any reason, exclusive Ownership in any portion of the Ridgeline Property (including any Derivative Works thereof) does not vest in Ridgeline and/or to the extent such Ownership is required to be assigned under any law, the Ridgeline Property (and any Derivative Work thereof) shall be assigned, and hereby perpetually and irrevocably is assigned by Partner to Ridgeline and all Ownership in and to such Ridgeline Property (and any Derivative Works thereof), including, without limitation, all uses in all media now known or in the future developed in any jurisdiction and all lawful means and forms of exploitation now known or in the future developed shall vest in Ridgeline.
2.2.3 To the extent that any Derivative Works to Partner Property are created under this Agreement by Ridgeline through Ridgeline’s provision of its Services, such Derivative Works shall be owned and belong to Partner. If, for any reason, exclusive Ownership in any portion of the Partner Property (including any Derivative Works thereof) does not vest in Partner and/or to the extent such Ownership is required to be assigned under any law, the Partner Property (and any Derivative Works thereof) shall be assigned, and hereby perpetually and irrevocably is assigned by Ridgeline to Partner, and all Ownership in and to such Partner Property (or Derivative Works thereof), including, without limitation, all uses in all media now known or in the future developed in any jurisdiction and all lawful means and forms of exploitation now known or in the future developed shall vest in Partner.
2.2.4 To the extent such assignment is deemed ineffective, the original Property Owner shall be granted, and hereby is granted a perpetual, irrevocable, fully paid-up, royalty free, worldwide exclusive license to use, perform, display, reproduce, modify, enhance, create further Derivative Works from, sublicense, distribute, transfer, reverse engineer, compile, decompile, archive, backup and display the Derivative Works in any lawful manner in any jurisdiction. Each Party retains (and the other Party hereby waives and agrees not to assert) any moral rights pertaining to its own Property, including the right of attribution and authorship or limitation on subsequent modification. Upon a Party’s reasonable prior request and at that Party’s cost and expense, the other Party further agrees to execute all documents required to record, perfect or evidence Ridgeline or Partner’s Ownership respectively, in and to the Ridgeline Property or Partner Property, as the case may be (and any Derivative Works thereof). The obligations contained in this Section shall apply to a Party’s employees and agents to the same extent as each Party.
2.3 Prohibited Activities. Each Party shall use the other Party’s Services solely for the business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, offer in a service bureau, or otherwise commercially exploit or make such Party’s Services available to any third party, other than to its employees or as otherwise contemplated by this Agreement; (ii) use such Party’s Services to send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws; (iii) use such Party’s Services to send or store infringing, obscene, threatening, libelous, defamatory, or otherwise unlawful or tortuous material, including material that is harmful to children or violates third party data protection or privacy rights; (iv)
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use such Party’s Services to knowingly send or store Malicious Code; (v) knowingly interfere with or disrupt the integrity or performance of such Party’s Services or the data contained therein; or (vi) attempt to gain unauthorized access to such Party’s Services or its related systems or networks.
On a non-exclusive basis, the Parties will cooperate throughout the Term in identifying, scheduling, and carrying out mutually agreed upon joint marketing activities that promote each Party’s Services and/or Products to prospective customers for those Services and/or Products consistent with the scope of this Agreement. Each Party agrees to use commercially reasonable efforts to (i) cooperate in good faith to identify and attend appropriate seminars, trade shows and conventions at which they will engage in cooperative marketing and promotional activities; (ii) provide marketing collateral material as reasonably requested; and (iii) where appropriate, make joint presentations or set up joint booths (or equivalents) at such events. The Parties will jointly develop guidelines for marketing and promotional activities prior to each applicable activity.
Neither Party makes any guarantee to the other Party including, without limitation, any guarantee that any third party will enter into an agreement for the Products or Services of the other. Furthermore, nothing herein shall obligate either Party to proceed with any transaction between them or with a third party, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement concerning any business opportunity with a third party. Neither Party shall be entitled to any commission, royalty, brokering fee, referral fee or compensation of any type in connection with this Agreement.
Each Party will bear responsibility for the cost of their respective promotional and marketing activities unless otherwise mutually agreed in writing.
Neither Party will issue a press release or make any public announcement relating to this Agreement or the relationship established by this Agreement without the express prior written consent of the other Party. If any press release or public announcement is approved, both parties will be provided an opportunity to have their marketing and public relations departments review, revise and comment on the content until mutual agreement is reached. In addition, marketing materials referencing the other Party will be subject to mutual review and agreement. Neither Party shall promote or warrant their Products, Services, or other Property as “certified” by the other Party, without (a) formal certification through completion of a program designated in advance in writing by a Party or (b) the express prior written consent of the other Party. The Parties may enter into order forms or statements of work for training, certification or similar programs to attain the foregoing certifications.
Each party acknowledges on its own behalf, that during the term of this Agreement it (“Receiving Party”) may receive from or on behalf of the other party (“Disclosing Party”) nonpublic information, including business, financial, and technical information reasonably considered by the Disclosing Party to be valuable and proprietary (“Confidential Information”). Confidential Information also includes the terms and conditions of this Agreement and may include proprietary or confidential information of third parties that have disclosed such information to the Disclosing Party in the course of its business. Confidential Information will not include information that the Receiving Party can prove: (a) was previously rightfully in the Receiving Party’s possession (in written or other recorded form) with no obligation to maintain confidentiality; (b) was developed by or for
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Receiving Party independently of, and without use of or reference to, Disclosing Party’s Confidential Information; (c) was received from a third party who is not prohibited from disclosing the information to the Receiving Party by a contractual, legal or fiduciary obligation; or (d) is or became available to and widely known by the public as to be reasonably regarded as public information without breach of this Agreement by the Receiving Party.
During the term of this Agreement and after its termination, the Receiving Party will: (a) hold the Disclosing Party’s Confidential Information in confidence and use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses for its own Confidential Information of like importance, but in no event using less than a reasonable standard of care; (b) not divulge any such Confidential Information of the Disclosing Party or any information derived therefrom to any third person except to Receiving Party’s Representatives as authorized hereunder; (c) not make any use of the Disclosing Party’s Confidential Information except to carry out its rights and obligations under this Agreement; and (d) not copy the Disclosing Party’s Confidential Information (except as necessary to carry out its rights and obligations under this Agreement). Any Representative of Receiving Party given access to the Disclosing Party’s Confidential Information must have a legitimate “need to know” and must have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Disclosing Party’s Confidential Information, to be bound by terms and conditions no less protective of the Disclosing Party than this Section 4. The Receiving Party will be liable for any of its Representatives’ failure to comply with such obligation. If the Receiving Party suffers any unauthorized disclosure, loss of, or inability to account for Disclosing Party’s Confidential Information, the Receiving Party will promptly notify and cooperate with the Disclosing Party and take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the damage.
The Receiving Party may disclose the Disclosing Party’s Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body. To the extent not prohibited by law, the Receiving Party will give reasonable notice to the Disclosing Party to allow the Disclosing Party to contest such order or requirement or seek confidentiality treatment. Each party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.
Partner shall (a) maintain a formal security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Ridgeline Confidential Information, (ii) protect against threats or hazards to the security or integrity of Ridgeline Confidential Information and (iii) prevent unauthorized access to Ridgeline Confidential Information (“Security Program”) and (b) process any Ridgeline Confidential Information that is personal data, in each case in accordance with the Ridgeline Partner Security Addendum (the “Security Exhibit”). For so long as Partner possesses or processes Ridgeline Confidential Information, Partner’s Security Program will meet, at a minimum, the requirements set forth in the Security Exhibit. At least once annually or upon request by Ridgeline, Partner will certify its ongoing compliance with such Security Program, will not materially decrease the overall security of its Security Program during the term of the Agreement and will in the event of any deficiency or non-compliance, at its cost, take corrective actions satisfactory to Ridgeline.
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The term of this Agreement commences on the Effective Date and shall continue for a period of one (1) year from the Effective Date and shall automatically renew for additional one (1) year terms (“Term”) unless either Party notifies the other, in writing, of its decision not to renew at least thirty (30) days prior to the end of the initial term or renewal term.
Either party may terminate this Agreement for its convenience at any time upon ninety (90) days prior written notice to the other. Further, either Party may immediately terminate this Agreement by giving written notice of termination to the other, if the other Party breaches any of its material obligations under this Agreement and does not cure the breach within thirty (30) calendar days after the non-breaching Party gives written notice to the breaching Party describing the breach in reasonable detail. If either Party dissolves, winds-down, liquidates or otherwise discontinues all or a significant part of its business operations, or in the event of any filing of a petition in bankruptcy by or against the breaching Party, any appointment of a receiver for the breaching Party, or any assignment for the benefit of the breaching Party’s creditors, then this Agreement may immediately be terminated by the other Party upon the provision of written notice of termination. In the event that either Party experiences a change of control event, Ridgeline reserves the right to terminate this Agreement with thirty (30) days’ notice.
Upon expiration or termination of this Agreement for any reason, those provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, disclaimers, indemnities and limitations of liability. Upon termination or expiration of this Agreement, each Party shall return (or if return is not feasible, destroy and, upon written request by each Party, certify to such destruction in writing under penalty of perjury) all Confidential Information of the other and all copies and embodiments thereof in its possession or under its reasonable control.
7.1 Each Party expressly represents and warrants to the other that: (i) it has sufficient right and authority to enter into this Agreement; and (ii) neither this Agreement nor its performance of its obligations hereunder shall knowingly place it in breach of any other contract or obligation nor shall it knowingly make the other Party liable to any third party claim of interference with contract or business expectancies or intellectual property rights infringement or proprietary rights infringement or any related or similar claims.
7.2 Each Party shall comply in all respects with all applicable laws in its performance of its obligations and activities under this Agreement, including without limitation all laws, governmental regulations, ordinances, and judicial administrative orders (collectively, “Laws”), including where applicable, the United States, including, but not limited to, the United States Foreign Corrupt Practices Act and those Laws restricting or prohibiting trade with certain individuals and/or countries.
7.3 EXCEPT AS SET FORTH IN THIS SECTION, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR ANY MATERIALS, PRODUCTS OR SERVICES. EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY MAY MAKE ANY REPRESENTATIONS OR WARRANTIES ON BEHALF OF THE OTHER PARTY.
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8.1 Each Party (the “Indemnifying Party”) shall defend, indemnify and hold the other Party (the “Indemnified Party”) harmless against any loss, damage or costs (including reasonable attorneys' fees) in connection with claims, demands, suits, or proceedings ("Claims") made or brought against the Indemnified Party by a third party alleging that the Indemnifying Party’s Property infringes or misappropriate any Intellectual Property Rights of a third party; provided, however, that the Indemnified Party: (a) promptly gives written notice of the Claim to the Indemnifying Party; (b) gives the Indemnifying Party sole control of the defense and settlement of the Claim (provided that the Indemnifying Party may not settle any Claim unless it unconditionally releases the Indemnified Party of all liability); and (c) provides to the Indemnifying Party, at Indemnifying Party 's cost, all reasonable assistance.
8.2 The Indemnifying Party shall not be required to indemnify the Indemnified Party in the event of: (a) modification of the Indemnifying Party’s Property in conflict with, or contrary to, the Indemnified Party’s obligations under this Agreement or as a result of any prohibited activity as set forth herein; (b) use of the Indemnifying Party’s Property in a manner inconsistent with any Documentation provided by the Indemnifying Party; (c) use of the Indemnifying Party’s Property in combination with any other product or service not provided by the Indemnifying Party or contrary to the Indemnifying Party’s instructions; or (d) use of the Indemnifying Party’s Property in a manner not otherwise contemplated by this Agreement.
9.1 NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY TO THE OTHER PARTY FOR: (A) BREACH OF ITS OBLIGATIONS IN SECTION 8 ABOVE (INDEMNITY); (B) EITHER PARTY’S BREACH OF SECTION 4 (CONFIDENTIALITY) AND SECTION 5 (SECURITY & PRIVACY), OBLIGATIONS HEREUNDER WHICH ARE SEPARATELY LIMITED BY SECTION 9.3 BELOW, (C) CLAIMS ARISING OUT OF EITHER PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUDULENT MISREPRESENTATION; (D) DEATH, BODILY INJURY OR TANGIBLE PROPERTY DAMAGE CAUSED BY A PARTY’S NEGLIGENCE, OR (E) ANY OTHER LOSS OR DAMAGES FOR WHICH SUCH LIMITATION IS EXPRESSLY PROHIBITED BY APPLICABLE LAW.
9.2 EXCEPT AS PROVIDED IN THIS SECTION 9, IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED $100,000, HOWEVER ARISING, INCLUDING (WITHOUT LIMITATION), BREACH OF CONTRACT, TORT, MISREPRESENTATION (EXCEPT FOR FRAUDULENT MISREPRESENTATION) OR BREACH OF STATUTORY DUTY.
9.3 IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR CLAIMS FOR BREACHES OF SECTIONS 4 (CONFIDENTIALITY) AND 5 (SECURITY & PRIVACY), UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED $5,000,000.
9.4 EXCEPT AS PROVIDED IN THIS SECTION 9, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFIT, PRODUCTION, ANTICIPATED SAVINGS, GOODWILL OR BUSINESS OPPORTUNITIES OR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC OR CONSEQUENTIAL LOSS EVEN IF THAT LOSS OR DAMAGE WAS
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REASONABLY FORESEEABLE OR THAT PARTY WAS AWARE OF THE POSSIBILITY OF THAT LOSS OR DAMAGE ARISING.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent will not be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety without consent of the other party to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement pertains. Any attempt by a party to assign its rights or obligations under this Agreement other than as permitted by this Section will be void and of no effect. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section 10.2). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
Neither Party shall incur any liability to the other Party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement (other than payment of fees) if such delay or failure is caused, in whole or in part, by events, occurrences or causes beyond the reasonable control of, and without negligence of the non-performing Party. Such events, occurrences, or causes include, without limitation, acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, pandemics/epidemics, acts of public enemies, earthquake, fire and explosions, or internet service provider downtime.
If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments as will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.
This Agreement (including the Exhibits and any addenda hereto signed by both Parties) contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the Parties with respect to said subject matter. No modification or amendment of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification or amendment is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Party’s purchase order shall be incorporated into or form any part of this Agreement and all such terms or conditions shall be null and void. In the event of any conflict or inconsistency between this Agreement and the terms of any Addendum hereto, the terms of the Addendum shall prevail.
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No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right or any other right, and no waiver will be effective unless made in writing by the party against whom the waiver is sought to be asserted. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The parties hereby consent to the use of electronic signatures in connection with the execution of this agreement, and further agree that electronic signatures to this agreement shall be legally binding with the same force and effect as manually executed signatures.
This Agreement will be governed exclusively by the internal laws of the State of New York, without regard to its conflicts of laws rules. Any claim or action brought by a party in connection with this Agreement will be brought in the appropriate Federal or State court located in New York County, New York, and the parties irrevocably consent to the exclusive jurisdiction of such courts. In the event of a dispute or alleged breach of this Agreement, the Parties will work together in good faith first to resolve the matter internally by escalating it to higher levels of management and, then if necessary, to use a mutually agreed alternative dispute resolution technique prior to resorting to litigation. This provision shall not apply to disputes involving confidentiality or infringement of Intellectual Property Rights, in which case either Party shall be free to seek available remedies in any forum. Each Party shall bear its own costs and expenses in connection with the informal and alternative dispute resolutions procedures described in this Section and hereby acknowledges and agrees that the Parties are expressly barred from seeking recovery of such costs and expenses in any subsequent proceeding. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Each party acknowledges and agrees that a breach or threatened breach by such party of any of its confidentiality obligations may cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Solely for a period of one (1) year following the Effective Date, each party agrees not to, directly or indirectly, entice or solicit for employment without the express prior written consent of the other party (which may be arbitrarily withheld) any employee, consultant, sub contractor, or independent contractor of the other party with whom each party has come into contact with as a result of this Agreement, whether to the party’s benefit or the benefit of a third party.
“Affiliate” means any related entity, including but not limited to an entity which Controls, is Controlled by or is under common Control with the relevant party.
“Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
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“Derivative Works” shall mean those works which are based on, or include elements of, the Intellectual Property Rights of Ridgeline or Partner’s Property, as the case may be, but not any works which are specifically designed and/or developed by a Party merely to work alongside or be compatible with the other Party’s Property.
“Documentation” means any document made available from time to time by a Party, whether online or in physical copy, which sets out a description of that Party’s Property or Services, including any user instructions for such Property or Services.
“Intellectual Property Rights” means all patents, copyrights, design rights, domain names, registered designs, trade and service marks (registered and unregistered), know-how, rights in relation to databases, trade secrets, rights in Confidential Information and all other intellectual property rights throughout the world for the full term of the rights concerned, including any licenses or permissions in connection with the above from time to time belonging to any of the parties, including: (a) all registrations and pending registrations relating to any such rights and the benefit of any pending applications for any such registrations; and (b) all revisions, extensions and renewals of any such rights.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Names and Marks” means the proprietary trade names, trade dress, trademarks, service marks, logos, brands and other source identifiers of Ridgeline or Partner, respectively.
“Owns” (including, with correlative meanings, each of the related capitalized terms “Own”, “Owner” and “Ownership”) shall mean that the designated party lawfully holds all right, title and interest, including, without limitation, all intellectual property rights (including all copyrights, patents and trademarks) proprietary rights (including trade secrets) and moral rights (including the rights of authorship and attribution) throughout the world and all goodwill associated with all such rights.
“Partner Property” shall mean, collectively, the Partner’s methodologies and proprietary tools, software, services, Documentation, Training Materials, the Names & Marks of Partner and the Confidential Information of Partner, as well as any other proprietary materials, data or information of Partner.
“Product” means any product belonging to a Party that is used in the provision of that Party’s Services.
“Property” means each respective Party’s proprietary materials and all Intellectual Property Rights, all right, title and interest in and to all information, documentation, materials, deliverables and Products owned or developed by such Party in the course of performing its obligations under this Agreement.
“Representatives” means, with respect to a party, such party’s employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives.
“Ridgeline Property” shall mean, collectively, Ridgeline Software, Ridgeline Services, Documentation, Training Materials, the Names & Marks of Ridgeline and the Confidential Information of Ridgeline as well as any other proprietary materials, data or information of Ridgeline or its subsidiaries in any manner.
“Services” means the services provided to a customer by a Party. In the case of Ridgeline this shall mean the Ridgeline Service and Ridgeline’s implementation, configuration or consultancy service offerings,
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and in the case of Partner, this shall mean the Partner’s implementation, configuration or consultancy services in relation to the Ridgeline Services.
“Term” shall have the meaning set out in Section 6.
“Training Materials” means any training materials, including any Documentation, supplied by one Party to the other to facilitate or provide training for that Party’s Products or Services.
“Ridgeline Service or Ridgeline Services” means the Ridgeline products and services provided and made available via the Ridgeline platform, and all updates to or new versions or replacements there to, that are accessible through Ridgeline’s platform to End Users.
“Ridgeline Software” means Ridgeline’s proprietary software.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date set forth above.
[Partner] Ridgeline, Inc.
Signature Signature
Name Name
Title Title
Date Signed Date Signed
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This Ridgeline Partner Security Addendum (the “Security Exhibit”) is made part of the Alliance Partner Program Agreement and/or the Mutual Subcontractor Agreement, together with any Statements of Work issued under the Mutual Subcontractor Agreement (“Agreement”). In the event of any conflict or inconsistency between this Security Exhibit and the Agreement, the provisions of this Security Exhibit will prevail. Capitalized terms used but not defined in this Security Exhibit will have the meaning given to them in the Agreement.
Partner’s Security Program must include:
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changes to production systems, applications, and databases.
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changes to production systems, applications, and databases.
Partner’s privacy program, and any processing of Ridgeline Confidential Information that is Personal Data, shall comply with the following provisions.
“Controller” means the entity which determines the purposes and means of the Processing of Personal Data.
“Data Protection Laws” means all laws and regulations regarding the Processing of Personal Data, including laws and binding regulations applicable to the Processing of Personal Data under the Agreement.
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“Data Subject” means the identified or identifiable person to whom Personal Data relates.
“Instruction” means Controller’s documented data Processing instructions issued to Processor in compliance with this Security Exhibit.
“Partner” means the entity that entered into the Agreement.
“Personal Data” means any information that relates to a Data Subject, to the extent that such information is protected as personal data under applicable Data Protection Laws.
“Process” or “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Processor” means the entity which Processes Personal Data on behalf of the Controller.
“Supervisory Authority” means an independent public authority that is applicable to the Processing of Personal Data under the Agreement.
Partner maintains security incident management policies and procedures. Partner shall notify Ridgeline without undue delay of any breach relating to Confidential Information and Personal Data (within the meaning of applicable Data Protection Law) of which Partner becomes aware and which may require a notification to be made to a Supervisory Authority or Data Subject under applicable Data Protection Law or which Ridgeline is required to notify to Customer under applicable Data Protection Law (a “Personal Data Incident”).
Partner shall provide commercially reasonable cooperation and assistance in identifying the cause of such Personal Data Incident and take commercially reasonable steps to remediate the cause to the extent the remediation is within Partner’s control. Except as required by applicable Data Protection Law, the obligations herein shall not apply to incidents that are caused by Ridgeline, Authorized Users, and/or any products or services that are not provided by Partner.
Partner shall maintain appropriate technical and organizational measures for the protection of the security (including protection against unauthorized or unlawful Processing and against accidental or unlawful destruction, loss or alteration or damage, unauthorized disclosure of, or access to, Confidential Information and Personal Data), confidentiality and availability of Confidential Information and Personal Data. Partner regularly monitors compliance with these measures and will not materially decrease the overall security of the Agreement.
Partner shall Process Personal Data in accordance with Ridgeline’s documented instructions. Ridgeline instructs Partner to Process Personal Data to provide the Service in accordance with the Agreement. Ridgeline may provide additional instructions to Partner to Process Personal Data, however, Partner shall be obligated to perform such additional instructions only if they are consistent with the terms and scope of the Agreement.
Partner shall comply with all Data Protection Laws applicable to Partner in its role as a Processor Processing Personal Data.
Controller may receive requests from Data Subjects to exercise Data Subject rights afforded to the Data Subject under applicable Data
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Protection Law in relation to Personal Data, including, as applicable, the following: access, rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, objection to the Processing, or to not be subject to an automated individual decision making (each, a “Data Subject Request”).
Controller will be solely responsible for responding to any Data Subject Requests, provided that Processor shall reasonably cooperate with the Controller to respond to Data Subject Requests to the extent Controller is unable to fulfill such Data Subject Requests. Taking into account the nature of the Processing, Processor shall assist Controller by using appropriate technical and organizational measures, in accordance with the Agreement, for the fulfillment of the Controller’s obligation to respond to a Data Subject Request as required by applicable Data Protection Laws.
In addition, to the extent Controller does not have the ability to address a Data Subject Request, Processor shall, upon Controller’s request, provide commercially reasonable efforts to assist Controller in responding to such Data Subject Request, to the extent Processor is legally permitted to do so and the response to such Data Subject Request is required under applicable Data Protection Laws. Processor shall, to the extent legally permitted, instruct the Data Subject to contact the Controller if Processor receives a Data Subject Request.
In the case of a notice, audit, inquiry, or investigation by a government body, data protection authority, or law enforcement agency regarding the Processing of Personal Data, Processor shall promptly notify the Controller unless prohibited by applicable law. Controller shall keep records of the Personal Data Processed by Processor, and shall cooperate and provide all necessary information to Processor in the event Processor is required to produce such information to a data protection authority.
In accordance with Data Protection Laws, Controller and Processor shall cooperate, on request, with a supervisory authority in the performance of such supervisory authority’s task.
Partner shall take reasonable steps to require screening of its personnel who may have access to Ridgeline’s Confidential Information and Personal Data, and shall ensure such personnel (i) Processes Confidential Information and Personal Data in accordance with Ridgeline’s instructions; receives appropriate training on its responsibilities regarding the handling and safeguarding of Ridgeline Confidential Information and Personal Data; and, (iii) is subject to confidentiality obligations which shall survive the termination of employment. Partner may not engage or subcontract with any Affiliates, Representatives (as defined in Section 11 of the Agreement) or other third-party without Ridgeline’s prior written consent. If Partner intends to engage any Affiliates, Representatives or any other third party to perform the Agreement or any related agreement with Ridgeline, Partner shall disclose such parties, the location of their respective operations and performance, and a brief description of the proposed engagement to Ridgeline, in writing, in connection with Partner’s request for Ridgeline’s consent. Partner will be responsible for the performance and compliance of such Affiliates, Representatives or third-parties under the Agreement and this Security Exhibit.
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This Mutual Subcontractor Addendum (“Addendum”) supplements the Ridgeline Alliance Partner Program Agreement (“Alliance Agreement”) to further define the terms under which each Party may perform services for the other Party in the capacity of a subcontractor and is effective upon the date of effectiveness of any Schedule (as defined herein) or acceptance of any other document where this Agreement is incorporated by reference. Each Party (“Hiring Party”) may, from time to time, require the services of the other Party (“Subcontractor”) and the Subcontractor is willing to perform services for the Hiring Party and/or its clients, all upon the terms and conditions set forth herein. Capitalized terms not otherwise defined herein shall have the meaning set forth in the Alliance Agreement. Conflicts or inconsistencies between this Subcontractor Agreement and the Alliance Agreement relating to Subcontractor Services will be resolved in favor of this Subcontractor Agreement.
1.1 Each individual engagement under this Subcontractor Agreement will be defined on schedules substantially in the form of the Schedule A which is attached hereto (each a “Schedule”). Each Schedule is to be separately executed and when so executed is incorporated by reference and shall become a part of this Subcontractor Agreement. Terms and conditions in said schedule(s) shall supersede any conflicting terms and conditions in this Subcontractor Agreement for only the specific engagement defined in said schedule(s). Each Schedule, together with the terms and conditions of this Subcontractor Agreement, shall constitute and be construed as a separate agreement. Subcontractor agrees to provide Hiring Party those professional services described in each Schedule, as such Schedules may be updated or modified by mutual written agreement of the Parties (collectively described as “Subcontractor Services”). All such Subcontractor Services shall be provided by Subcontractor subject to the direction of the Hiring Party Project Manager, as identified on the applicable Schedule.
1.2 The Parties expressly acknowledge and agree that the Duration of Assignment dates contained in a Schedule are not firm performance dates and may be revised during the term of such Schedule, should a customer’s requirements or instructions change or should any assumptions or estimates based on customer information prove to be inaccurate or incomplete or the customer fails to perform its obligations under a contract with a Party. Nonetheless, the Subcontractor agrees to use its reasonable endeavors to meet such dates and supply the Subcontractor Services in accordance with any timetable referred to in the relevant Schedule. The Subcontractor agrees to notify the Hiring Party promptly in writing if it expects to encounter, or encounters, delays.
1.3 In providing the Subcontractor Services under a Schedule, new information may surface that may necessitate a change in business requirements resulting in a change in project scope and, therefore, changes in the estimated level of effort, project timeline, or Subcontractor Services. Upon a Party’s request, such changes, and the associated fees for any additional Subcontractor Services to be provided, will be described in an updated or supplemental Schedule document (a “Change Order”).
Hiring Party shall compensate Subcontractor for its Subcontractor Services hereunder by payment based on the rates and terms as shown in each applicable Schedule. Payments due to Subcontractor are due and payable by Hiring Party thirty (30) days after Hiring Party has received Subcontractor’s invoice for such Subcontractor Services. Hiring Party shall reimburse Subcontractor for all reasonable and necessary travel
and living expenses pre-approved by Hiring Party and incurred by Subcontractor in the performance of
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the Subcontractor Services. Upon Hiring Party's written request, the Subcontractor will submit supporting expense documentation and copies of receipts to Hiring Party for expenses over $25.
3.1 The term of this Subcontractor Agreement shall commence on the Effective Date hereof and shall continue in effect until terminated as provided herein.
3.2 This Subcontractor Agreement, or any Schedule hereunder, may be terminated by either Party giving written notice of termination in the event that the other Party defaults in any of its material obligations under this Subcontractor Agreement and fails to cure such default within ten (10) days of receipt of written notice specifying the nature of the default.
3.3 Either Party may terminate this Subcontractor Agreement or any Schedule (i) at any time for convenience upon thirty (30) days prior written notice, (ii) in connection with the termination of the Alliance Agreement, or (iii) should circumstances change such that Subcontractor’s performance of any part of the Subcontractor Services would be illegal or otherwise unlawful.
3.4 Upon termination, Subcontractor will be entitled to receive payment for all Subcontractor Services rendered through the date of termination (including for work in progress). Upon termination of any Schedule, Subcontractor shall immediately cease rendering Subcontractor Services to Hiring Party thereunder and shall immediately return to Hiring Party any of Hiring Party’s property in Subcontractor’s possession together with all data and other results of the Subcontractor Services relating to such Schedule upon payment.
3.5 Upon expiration or termination of this Subcontractor Agreement for any reason, those provisions of this Subcontractor Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, disclaimers, indemnities and limitations of liability. Upon termination or expiration of this Subcontractor Agreement for any reason, each Party shall return (or if return is not feasible, destroy and, upon written request by each Party, certify to such destruction in writing under penalty of perjury) all Confidential Information of the other and all copies and embodiments thereof in its possession or under its reasonable control. Those sections of the Alliance Agreement that are referenced herein shall continue to apply to this Subcontractor Agreement for so long as it remains in force and effect, notwithstanding the expiry or termination of the Alliance Agreement.
The Parties agree that the terms of the Alliance Agreement shall apply in all respects regarding: (a) the definition and treatment of Confidential Information with respect to the Parties’ treatment of Confidential Information hereunder and (b) Partner’s security and privacy programs, including without limitation the Ridgeline Partner Security Addendum, with respect to Partner’s protection and processing of any data accessed in connection with the Subcontractor Services. In addition, in the event of any breach of security leading to the unauthorized access, use alteration or disclosure of any Hiring Party Confidential Information (a “Security Breach”), Subcontractor shall notify Hiring Party without undue delay and in any event within forty-eight (48) hours of becoming aware of the Security Breach. Subcontractor will promptly take all actions relating to its security measures that it deems necessary and advisable to identify and remediate the cause of a Security Breach. In addition, Subcontractor will promptly provide Hiring Party with: (a) reasonable cooperation and assistance with regard to the Security Breach, (b) reasonable information in Subcontractor’s possession concerning the Security Breach insofar as it affects Hiring Party, including remediation efforts and any notification to government authorities and, (c) to the extent
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known: (i) the possible cause of the Security Breach and (ii) the categories of Confidential Information involved.
The Parties further agree to Process any Personal Data in connection with the Subcontractor Services in accordance with the Supplier Data Protection Agreement at https://www.ridgelineapps.com/ridgeline supplier-data-protection-agreement.pdf or otherwise posted on Ridgeline’s legal or similar hosted terms page as may be updated from time to time.
6.1 Subcontractor agrees that, subject to and without limiting Section 2 of the Alliance Agreement regarding each Property Owner’s Property, upon payment in full, all inventions, improvements, discoveries or developments including, but not limited to, computer software, source code, models, algorithms, specifications, designs, documentation, text, copy, artwork, and other materials developed or authored by Subcontractor which Subcontractor may make or conceive, either solely or jointly with others, whether arising from Subcontractor’s own efforts or suggestions received from any other source, which arise out of the Subcontractor Services provided hereunder, whether or not specifically defined as Contract Deliverables on any Schedule hereto, (collectively, “Work Product”) will be owned by Hiring Party with a worldwide, non-exclusive, perpetual, irrevocable, transferable, royalty-free license granted to the Subcontractor to use, reproduce, display, publish, maintain, modify, and distribute the same, stripped of any information specific to the other party or customers, as applicable. Notwithstanding anything to the contrary herein, any pre-existing intellectual property of either Party or its Affiliates incorporated in such Work Product shall remain the exclusive property of such Party and is licensed to the other Party for use only to the extent necessary for such party to utilize Work Product it owns (provided that any information specific to the owner thereof and the customer is removed). Notwithstanding the foregoing, the parties agree that any rights, title and interest to work, materials or Intellectual Property, including tools, processes, know-how and methodology, owned or developed prior to or independently of this Agreement or any applicable Schedule (“Pre-Existing Property”) shall remain the exclusive property of the party to whom it belonged prior to the execution of the applicable Schedule and that any Derivative Works of Pre Existing Property will be owned solely by the owner of the Pre-Existing Property even if created by Subcontractor performing Services under this Agreement. Subcontractors shall sign such documents and take such actions as may be reasonably necessary to carry out the above provision.
7.1. Subcontractor warrants to Hiring Party that:
(a) it will perform the Subcontractor Services with reasonable skill and care, and with respect to any deliverable that the Subcontractor is obligated to furnish hereunder (collectively, the “Deliverables”) or Subcontractor Services, for a period of thirty (30) days following delivery of the particular Deliverable or the performance of such other Subcontractor Services (the “Warranty Period”), all Deliverables and Subcontractor Services will conform with the applicable written specifications set forth on the applicable Schedule in all material respects. Subcontractor does not warrant that any Deliverable will operate uninterrupted or error-free. In the event that Hiring Party notifies Subcontractor during the Warranty Period that any Deliverable or Subcontractor Service fails to conform to the foregoing warranty in any material respect, the sole and exclusive remedy of the Hiring Party will be for Subcontractor, at its expense, to promptly use commercially reasonable efforts to cure or correct such failure. Upon failure of the foregoing, as the Hiring Party’s sole and exclusive remedy, and as Subcontractor’s entire liability for
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such failure, Subcontractor will refund to Hiring Party the amounts actually paid by Hiring Party for the nonconforming Deliverable or Subcontractor Service. The foregoing warranty is expressly conditioned upon (i) the Hiring Party providing Subcontractor with prompt written notice of any claim thereunder prior to the expiration thereof, which notice must identify with particularity the non-conformity; (ii) the Hiring Party’s full cooperation with Subcontractor in all reasonable respects relating thereto, including, in the case of modified software, assisting Subcontractor to locate and reproduce the non-conformity; and (iii) with respect to any deliverable, the absence of any alteration or other modification of such Deliverable by any person or entity other than Subcontractor.
(b) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, SUBCONTRACTOR DOES NOT MAKE OR GIVE ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND, WHETHER SUCH REPRESENTATION, WARRANTY, OR CONDITION BE EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF TITLE, NON INFRINGEMENT, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY REPRESENTATION, WARRANTY OR CONDITION FROM COURSE OF DEALING OR USAGE OF TRADE.
8.1 Subcontractor shall indemnify and hold harmless Hiring Party and its officers, directors, employees, agents and shareholders from and against all losses, claims, liabilities, damages, demands, costs and expenses (including reasonable attorneys' fees and expenses, collectively, the “Liabilities”); incurred by or asserted against Hiring Party by a third party to the extent such Liabilities arise from the infringement or alleged infringement (or misappropriation or attempted misappropriation) of the Deliverables upon any third party’s trade secret, trademark, service mark, or copyright. The Hiring Party shall indemnify and hold harmless Subcontractor and its officers, directors, employees, agents and shareholders from and against all Liabilities incurred by or asserted against any such Party by a third party to the extent such Liabilities arise from any claim that Subcontractor’s possession, use or modification of any software, documentation, data or other property provided by the Hiring Party infringe upon or misappropriate any third party’s trade secret, trademark, service mark, copyright or patent rights, or that any Work Product developed by the Subcontractor to the extent based on any instructions, information, direction, or specifications provided by the Hiring Party, infringes any third party’s patent rights.
8.2 Subcontractor shall have no obligation under this Section or other liability for any infringement or misappropriation claim resulting or alleged to result from: (1) the Deliverable having been modified or altered by any person or entity other than Subcontractor; (2) any claim arising from any instruction, information, design or other materials furnished by any third party including the Hiring Party to Subcontractor hereunder; or (3) the Hiring Party’s continuing the allegedly infringing activity after being notified or informed thereof and provided with modifications that would have avoided the alleged infringement. This Section 10 sets forth the exclusive remedy and entire liability and obligation of each Party with respect to intellectual property infringement or misappropriation claims, including patent or copyright infringement claims and trade secret misappropriation.
8.3 In the event of an infringement or misappropriation claim as described in this Section arises, or if Subcontractor reasonably believes that a claim is likely to be made, Subcontractor, at its option and in addition to its indemnification obligations, may: (i) modify the applicable Deliverables provided under the Subcontractor Services so that they become non-infringing but functionally equivalent; or (ii) replace the applicable Deliverables with material that is non-infringing but functionally equivalent; or (iii) obtain for the Hiring Party the right to use such Deliverables upon commercially reasonable terms; or (iv) remove
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the infringing Deliverables and refund to the Hiring Party the fees received for such Deliverables that are the subject of such a claim, reduced in accordance with three-year straight line depreciation.
THE PROVISIONS OF SECTION 9 OF THE ALLIANCE AGREEMENT APPLY TO CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS SUBCONTRACTOR AGREEMENT OR THE SUBCONTRACTOR SERVICES.
Subcontractor agrees that Subcontractor shall be considered an independent contractor and that neither Subcontractor nor its employees shall be deemed to be an employee of the Hiring Party. Subcontractor may not subcontract or delegate any duties or obligations under this Subcontractor Agreement or any Schedule without the prior written consent of the Hiring Party, whose consent shall not be unreasonably withheld but may be subject to the Customer’s sole discretion. If Subcontractor subcontracts or delegates any of its duties, obligations or performance hereunder or under any Schedule to any third party, Subcontractor shall remain fully responsible for complete performance of all of Subcontractor’s obligations set forth in the Schedule and this Subcontracting Agreement. In addition, Subcontractor will be responsible for the acts and omissions of its downstream subcontractors (including its Affiliates) performing any of the Services and any such downstream subcontractor (including its Affiliates) must be bound in writing to comply with the provisions of this Subcontracting Agreement, including but not limited to all security requirements and confidentiality obligations set forth in (or incorporated by reference in) as well as the Data Protection Agreement and effective between the Hiring Party and the Subcontractor.
The provisions of Section 10 of the Alliance Agreement are incorporated by reference to this Addendum and made a part hereof as if the same were included in this Subcontractor Agreement.
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Schedule A
Subcontractor Services Schedule
Consultant
<Company>
Project
<Project Name, Description>
Project Effective Date
<Date>
This Subcontractor Services Schedule (this “Schedule”) is entered into as of the Project Effective Date and is governed by and made a part of the Mutual Subcontractor Agreement to which it is attached, which are between Ridgeline, Inc. (“Ridgeline”) and <Partner> (“Consultant” or “<”Partner”>”) (the “Subcontractor Agreement”). In the event of a conflict between the terms of this Schedule and the terms of the Subcontractor Agreement, the terms of this Schedule shall prevail. All capitalized terms not otherwise defined herein shall have the same meaning as in the Subcontractor Agreement.
1. General.
A. The Parties agree that [Ridgeline/Consultant] (the “Hiring Party”) is subcontracting certain obligations to [Consultant/Ridgeline] (the “Subcontractor”) under this Schedule.
B. The Hiring Party and its customer, <Customer> (“Customer”), have various obligations and responsibilities in connection with the Project as further described in the statement of work (“SOW”), entered into between the Hiring Party and Customer attached hereto. This Schedule describes the Subcontractor Services that the Subcontractor will perform for, and on behalf of the Hiring Party in support of the professional services obligations described in the SOW.
C. <Insert any other specific relevant terms and descriptions>
2. Services Description:
A. <Insert description of services to be performed by Subcontractor and/or reference relevant parts of SOW>
3. Service Fees. [Note: Include only if the parties agree to additional fees over the SOW fees]
A. Subcontractor Services provided by the Subcontractor under this Schedule shall be submitted by Subcontractor [periodically -specify], by email, designated software portal, or file upload to Hiring Party. Submissions must be made within 7 days from completion of the period. Adjustments or disputes of submissions by the Hiring Party must be initiated within 21 days from completion of the weekly period. Fees shall be billed at $___ USD an hour.
B. All services will be billed on a time and materials basis as provided in the SOW.
C. All travel and entertainment expenses incurred by Subcontractor associated with this Schedule must be pre approved in advance by the Hiring Party’s project manager before being incurred and expensed by Subcontractor.
D. The parties acknowledge and agree that the total fees shall not exceed $___ for this Schedule without written approval from the Hiring Party.
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IN WITNESS WHEREOF, the parties have entered this Schedule and the Subcontractor Agreement as of the Project Effective Date.
By : ______________________________________________________ _____________________________
[ Printed Name ] _____________________________
[ Title ]
Date :
Signed :
By : ______________________________________________________ _____________________________
[ Printed Name ] _____________________________ ______________________________
[ Title ]
Date :
Signed :
[Attach Assigned/Subcontracted SOW if desired]
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