Partner Terms and Conditions

Aptivio and Co-Sell Partner are referred to as the “Parties.”

WHEREAS, the Parties hereto, having carefully assessed their mutual capabilities and interests, desire to enter into a teaming arrangement for the purpose of co-implementing Aptivio’s Intelligent Market Monitor for the client specified in each SOW (Exhibit A), (the “Customer”), in support of a specified scope of services in each SOW (Exhibit A) (the “Project”).
WHEREAS, the Parties have determined that they have the necessary expertise required for the Project, and that this Agreement will enable them to complement their unique capabilities, and thereby offer the Customer the best combination of capabilities to perform the Project in the most cost-effective manner.
WHEREAS, the purpose of this Agreement is to set forth the understandings under which the Parties will work together on this proposal effort;
NOW THEREFORE, in consideration of the mutual premises and covenants contained herein, sufficiency of which is hereby acknowledged, Aptivio and Co-Sell Partner (individually the “Party” or collectively the “Parties” depending on the context) agree as follows:

1. RELATIONSHIP OF PARTIES

1.1. This Agreement does not constitute a joint venture, partnership, consortium, or any other form of business arrangement or organization between the Parties.

1.2. The Parties are independent contractors in the performance of this Agreement. Neither Party shall act as agent for or be determined to be a partner of the other for any purpose whatsoever; and nothing in this Agreement shall be construed to grant either Party the right to make commitments of any kind for or on behalf of the other Party without prior written consent of the other Party. The employees of one Party shall not be deemed to be employees of the other Party. Nothing herein shall be deemed to form or constitute a joint venture or other business association or fiduciary relationship between Parties.

1.3 Notwithstanding the foregoing, the Parties’ efforts on each proposal described in Section 2 are exclusive to each other during the term specified at the end of this Section 1.3. The Parties will not participate, either independently or as a member of another team, in any effort which is directly competitive with the proposal during the term of this Agreement. For purposes of this Agreement, “directly competitive with the proposal” means providing the services or software described in the Proposal to the Client.

1.3 This Agreement is intended to limit Aptivio from providing its services or software to any other person under any circumstances. For the purposes of this Agreement, the list of exclusive accounts contains a current list of Customer’s that the Parties are currently pursuing, and the exclusivity contemplated hereby shall expire 180 days after the first joint Client meeting. The Parties shall amend the list of exclusive accounts from time to time to reflect any additional accounts.

1.4 Co-Sell Partner defined in the SOW as the prime contractor (“Prime”) shall be responsible for co-ordination, preparation, and submission of the proposals and/or SOWs with respect to the Aptivio Platform Subscription and Configuration Services, to be offered to a Customer, including overall management. Aptivio defined in a SOW as the subcontractor (“Sub”) shall assist in preparation of the proposals and/or SOW.

2. PROPOSAL PREPARATION

2.1 If the Parties agree to cooperate to prepare proposals as necessary for Services for presentation to Customers, the Parties shall agree on the format of any such proposals, the timeframe for submission and the content of the final proposals to be submitted to Customers.

2.2 For joint proposals, each Party will draw up at its own section(s) of the proposal with respect to its responsibilities as to the description of Services and costs. Each Party shall be solely responsible for their section of the proposal, including the accuracy and adequacy of designs, interfaces and technical data, appropriate performance parameters, the completion and delivery times for the Services and all other matters proposed by it. The Prime is relying on the Sub to timely submit to the Prime all Proposal necessary materials and data (including but not limited to financial and cost information) and technical information for use in preparation of a proposal relevant to the portion of the Services that may be allocated to Sub for inclusion in the Proposal, including any exceptions to and understandings or clarifications with respect to the terms and conditions of the Proposal that are requested by the Prime. Each Party will use reasonable commercial efforts in the preparation of a competitive proposal and further will engage in any other reasonable activity, which will result in the acceptance of the proposal by Customer and the award of the contract to Prime.

2.3 The Prime shall prepare the proposal, integrate the information provided by Sub and submit the final proposal to the Customer. The Prime shall have the final decision on the form and content of all documents submitted to the Customer, including the proposal, provided however that the Sub has approved the form and content of the proposal relating to its portion of the Services.

3. SCOPE OF AGREEMENT

3.1 This Agreement shall apply to any proposals and resulting SOWs submitted by the Parties for the Services and to any other activities that the Parties shall reasonably engage in to promote the acceptance of Services by its Customers.

4. STATEMENT OF WORK (“SOW”)

4.1 If Prime is awarded the Services, the Parties will enter into a SOW substantially in the form of Exhibit A attached hereunder for the Services and negotiate in good faith, either in advance of or simultaneously with the negotiation and execution of the Customer agreement, provided however that all provisions of the jointly submitted winning bid including division of tasks and pricing shall be incorporated as is into the SOW. If a SOW needs to be modified in accordance with the requirements of a Customer, the Parties shall work in good faith to include such modifications in the Customer agreement.

4.2. The SOW shall specify each Party’s rights and obligations regarding that part of the Services which is the Party’s area of participation.

4.3 The Sub shall:

(a) offer the Prime advice and assistance for the preparation of the SOW relevant to the area covered by Sub, including a price quote for its segment of the Services (with transparent pricing information); and

(b) make available suitably skilled, qualified and experienced representatives for the purposes of preparation of the SOW for the Services, who will perform all necessary functions including attendance of meetings with the Prime’s representatives.

4.4. Any modification of the software or services offered to a Customer described in the SOW shall require the prior written consent of the Parties.

4.5 Each SOW shall include the following language, unless otherwise agreed by the parties.

1.0 SCOPE OF SERVICES
Co-Sell Partner is seeking to provide Augmented Sales Intelligence to Client based on a strategic implementation of Aptivio’s Intelligent Market Monitor platform (“Platform”).
• Co-Sell Partner will interface with the Client and stakeholders to configure the Platform customized to the Client’s needs and directed to achieve the client’s goals as described in the Client SOW.
• Co-Sell Partner will provide business subject matter expertise, facilitation of client workshops, project management, configuration support, and data & feed analysis throughout the lifetime of the engagement.
• Aptivio will provide Platform expertise, perform data integration with Client data sources, and run/host the required infrastructure/software to run Aptivio’s Intelligent Market Monitor for Client.
• If Client terminates the engagement, Co-Sell Partner will not be liable to Aptivio for any fees associated with the project.
During the completion of the project, Aptivio acknowledges and agrees that provision of the Platform to the end user client shall be subject to and end user licensing agreement, which Aptivio will negotiate in good faith directly with Client.

2.0 INTELLECTUAL PROPERTY

  1. All IP related to the core Aptivio Platform and any changes (including any enhancements, improvements or modifications, and all related know-how, whether or not created or conceived of during the course of providing Services (“Modifications”) made to its core functionality will belong to Aptivio.
  2. All IP related to any proprietary customizations, configurations or changes made within the Aptivio environment (subject to paragraph 1 of this Section 2.0) for the Client’s use and/or leveraging Client’s data will belong to, or be deemed licensed to, the Client.
  3. Any development of systems outside the Aptivio environment e.g., screens/functionality developed within Salesforce using data obtained from the Aptivio platform will belong to the Client.

3.0 ASSUMPTIONS

  1. Co-Sell Partner & Aptivio will identify Subject Matter Experts to participate in key meetings and will make technical support available for workshop participation as necessary.
  2. Co-Sell Partner will facilitate workshops and meetings with Client and Aptivio to design business requirements.
  3. Key data/information/access will be shared between Aptivio and Co-Sell Partner to facilitate Platform configuration including but not limited to:
    i. All information/data shared by Client
    ii. Data sources pre-integrated into the Platform
    iii. Access to Platform for configuration for Client delivery
    iv. API references to enable integrate external data sources with the Platform
  4. Any direct financial impact to Co-Sell Partner (e.g., extended delivery timelines or additional resourcing) due explicitly to Platform malfunction or technical failure will be borne by Aptivio.

5. PAYMENT

Invoices & Payments shall be rendered to Prime by the Sub as agreed in the SOW (Exhibit A) for each specific Project and is based on payment terms set by Customers.

6. COSTS

Any and all costs and expenses, or liabilities of either Party arising out of this Agreement shall be the responsibility of each Party separately and individually. Neither Party shall have any right for reimbursement, payment, or other compensation of any kind from the other Party under this Agreement for any such costs, expenses, risks, or liabilities unless otherwise pre-agreed in writing.

7. RIGHTS IN DEVELOPMENTS

7.1 All intellectual and industrial property rights existing prior to the effective date of this Agreement shall belong to the Party or third parties that owned such rights immediately prior to the effective date. Neither Party shall gain by virtue of this Agreement any rights of ownership of any intellectual or industrial property rights owned by the other independently developed by each Party otherwise than under this Agreement. Each Party shall retain all rights and title to any materials and Services produced in the performance of the Services or using such Party’s Confidential Information (as defined below), except as otherwise agreed in an SOW. If the Parties decide to undertake any joint development, any such joint development shall be governed by a separate joint development agreement executed by the Parties.

8. TERMINATION OF AGREEMENT

8.1 This Agreement, which is effective as of the date stipulated on the first page, shall continue (unless terminated earlier as set forth herein) until both Parties have fulfilled their obligations under this Agreement or:

a. Upon fifteen (15) days’ notice of termination of the Agreement to the other Party in the event of termination of the underlying agreement with the Customer;

b. The insolvency, bankruptcy, reorganization under the bankruptcy laws, or assignment for the benefit of the creditors of either Party (voluntarily or otherwise);

c. Either Party may terminate this Agreement if the other Party is in material breach of any of its obligations under this Agreement and fails to remedy the breach within a period of thirty (30) days following written notice by the other Party, specifying the breach; or

d. Either Party may terminate this Agreement at any time upon 90 days’ notice if there are no proposals outstanding.

8.2 Termination of this Agreement will not affect rights or obligations of the Parties with respect to costs (Paragraph 5), rights in developments (Paragraph 6), limitation of liability (Paragraph 9), confidential information (Paragraph 10), Paragraphs 11, 12, 13 and 14.

9. LIMITATION OF LIABILITY

9.1 The Parties agree that each Party’s aggregate liability to the other Party under this Agreement and to any SOWs shall be limited to direct money damages in an amount not to the exceed the respective fees received under the applicable SOW. In no event shall either Party be liable for any loss of profits, lost revenue, lost opportunity, or for any indirect, incidental, special, consequential, exemplary, or punitive damages or losses (however arising) arising from any claim or action hereunder, even if advised of the possibility of such damages or losses were reasonably foreseeable.

10. CONFIDENTIAL INFORMATION

10.1 The Parties agree that disclosure and protection of Confidential Information under this Agreement shall be subject to the terms and conditions of the Nondisclosure Agreement between the parties dated at the time of agreement which is incorporated in this Agreement by reference. For the term of this Agreement and five years thereafter, Each Party shall keep in confidence and prevent unauthorized disclosure of all confidential information of the other Party provided for the purpose of, or gained in the course of performance of the obligations hereunder, including, but not limited to, proprietary information, data or confidential information regarding its technological techniques, processes, business methods, financial data, inventions and research development (collectively, “Confidential Information”). Use of such Confidential Information shall be strictly limited to the purpose for which it was provided, and disclosure limited to the individuals with a need to know. Notwithstanding the foregoing, neither Party will be liable for disclosure of any such information if it:

(a) was in the public domain at the time it was disclosed;

(b) is disclosed with the written approval of the other Party;

(c) was independently developed by the receiving Party;

(d) becomes known to the receiving Party from a source other than the disclosing Party without the breach of the confidentiality obligation under this Agreement by the receiving Party; or

(e) is required to be disclosed by law, court order or governmental authority.

10.2 Notwithstanding the above, each Party has the right to use the skill, experience, knowledge and the know-how (including any methodology or processes but in no event the Confidential Information of the other) it gains through the provision of Services under this Agreement.

11. MARKETING

11.1 Neither Party shall issue a news release, public announcement, advertisement, or any other form of publicity concerning its efforts in connection with this Agreement, a proposal or SOW, without obtaining prior written approval from the other.

12. INDEMNIFICATION

12.1 Each Party (the “Indemnifying Party”) agrees to indemnify, hold harmless, and defend the other Party, its agents, employees, officers, directors, and clients (the “Indemnified Parties”) from any and all costs and expenses, including attorney's fees, that the Indemnified Parties may pay or become obligated to pay, on account of any, all, and every demand or claim, or assertion of liability made by a third-party arising, or alleged to have arisen, out of:

(a) the Indemnifying Party's failure to comply with the Truth In Negotiations Act;

(b) any and all actions or proceedings charging infringement of any patent, trademark, copyright, or mask work by reason of sale or use of any items or services furnished hereunder; or

(c) bodily injury to or damage to property of any person, including the Indemnifying Party's subcontractors' employees, arising out of performance of any work hereunder, including the Indemnifying Party's use of the Indemnified Parties’ premises or equipment.

12.2. If the Indemnifying Party’s liability arises due to the negligence of the Indemnified Parties or by reason of specific compliance with detailed instructions of the Indemnified Parties, then the Indemnifying Party is not be liable under this Section 12 except to the extent of the Indemnifying Party's contributory negligence under the applicable laws of the State of New York. The Indemnified Parties will provide the Indemnifying Party with prompt notice of any potential claim covered by this clause and to provide reasonable assistance to the Indemnifying Party in defending or settling of that claim. The indemnifying party shall have the right to control the defense, with counsel of its choice, provided that the non-indemnifying party shall have the right to be represented by advisory counsel at its own expense. The indemnifying party shall not settle or dispose of the matter in any manner which could negatively and materially affect the rights or liability of the non-indemnifying party without the non-indemnifying party's prior written consent, which shall not be unreasonably withheld or delayed.

13. INSURANCE

13.1 The Sub shall during the term of this Agreement maintain (i) adequate commercial general liability insurance (written on an occurrence basis) covering bodily injury (including death) and property damage in a combined single limit of not less than one million dollars (USD 1,000,000) with no deductible and (ii) workers compensation insurance in a combined single limit of not less than one million dollars (USD 1,000,000) with a waiver of subrogation in favor of the Prime, where permitted by law. A certificate of the insurance evidencing such coverage shall be delivered to the Prime prior to the commencement of performance of the Services. The Sub will add the Prime, Prime’s affiliates and their officers, directors and employees as additional insured.

14. ASSIGNMENT

14.1 This Agreement may not be assigned or otherwise transferred by either Party, in whole or in part, without the prior written consent of the other Party which consent will not be unreasonably withheld, conditioned or delayed.

15. NONSOLICITATION AND NON-HIRE

Neither Party shall knowingly solicit, recruit, hire, or otherwise employ or retain as a consultant or advisor the employees of the other Party who have worked on the project that is the subject of this Agreement after the Effective Date of this Agreement and for twelve (12) months following termination or expiration of this Agreement without the prior written consent of the other Party. However, this Section shall not restrict the right of either Party to solicit or recruit generally in the media, and shall not prohibit either Party from hiring, without prior written consent, any current or former employee of the other party who answers any advertisement or who otherwise voluntarily applies for hire without having been personally solicited or recruited by the hiring party.

16. APPLICABLE LAW

16.1 This Agreement shall be governed interpreted and enforced pursuant to the law of the State of New York, without regard to its conflict of laws provisions, with non-exclusive jurisdiction and venue of courts located in New York City, NY.

17. GENERAL

17.1 This Agreement and its exhibits contains the entire agreement of the Parties and supersedes any previous understanding or agreement related to the subject matter hereof, whether written or oral. No changes or modifications to this Agreement shall be effective unless in writing executed by authorized representatives of the Parties.

17.2 All rights and remedies conferred under this Agreement or by any other instrument or law shall be cumulative and may be exercised singularly or concurrently. Failure by either Party to enforce any contract term shall not be deemed a waiver of future enforcement of that or any other term. The provisions of the contract are declared to be severable.

17.3 In the event of any conflict between the surviving provisions of this Agreement and the provisions of any subsequent agreement the provisions of the subsequent agreement shall control. In the event of a conflict between the terms of this Agreement and a SOW, the SOW shall prevail.

17.4 If any of the provisions of this Agreement are found illegal, invalid or unenforceable, they shall be deleted, and shall not affect the legality, validity or enforceability of the remaining provisions.

17.5 Unless otherwise specified in this Agreement, all notices, requests, or consents required under this Agreement shall be given in writing and shall be considered given upon personal delivery of a written notice, by electronic transmission including email (provided receipt shall have been acknowledged in writing by the recipient thereof) or within five (5) days of mailing, postage prepaid with return receipt requested and appropriately addressed to the person indicated below, unless either Party notifies the other Party, in writing, of a change in the designated addressee:

To Co-Sell Partner:

To Aptivio:
Aptivio, Inc.
575 Lexington Avenue, 14th Floor
New York, 10022
Attn: Guy Mounier

17.6 Neither Party shall be liable for performance delays or non-performance due to acts of God, epidemics, pandemics, forces of nature, strikes or labor disputes, civil unrest or other causes beyond its reasonable control.

    1. This Agreement (including any Statement of Works) may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The Parties accept digital signatures.

Exhibit A

STATEMENT OF WORK

THIS STATEMENT OF WORK is entered into as of the Commencement Date designated below (“SOW”), by and between Prime and Sub (collectively the “Parties”) and is subject to the terms and conditions of the Teaming Services Agreement dated __ (the “Agreement”), by and between __ (“Co-Sell Partner”) and Aptivio, Inc. (“Aptivio”). The Parties further acknowledge and agree that the provisions of the Agreement shall apply to this SOW as though such provisions were set forth herein in their entirety and are hereby incorporated by reference. All capitalized terms not otherwise defined herein shall have the meanings set forth in the Agreement.

Party: PRIME CONTRACT (“Prime”) SUBCONTRACT (“Sub”)
Name Aptivio Inc.
Address 575 Lexington Avenue, 14th Floor, New York, NY 10022
State of Incoporation Delaware