SPHERE Technology Solutions
Partner Portal Terms of Use
version 1.0
The SPHERE Technology Solutions Partner Portal (the “Portal”) provides partners with access to SPHERE’s partner resources, to submit opportunities, and to access a variety of other information and materials. These Partner Portal Terms of Use (“Agreement”) constitute a contract between SPHERE Technology Solutions, Inc. (“SPHERE”, “We”, or “Us”), and you, on behalf of the organization in which you represent (“Partner” or “You”). By accessing or using the Portal, you agree to be bound by this Agreement and SPHERE’s Privacy Policy located at https://sphereco.com/privacy-policy. If an individual is entering into this Agreement on behalf of an organization, or other entity, that individual represents that he or she has authority to bind such organization and is agreeing to this Agreement on behalf of such entity. If you do not have authority to enter into this Agreement, is not of legal age to form a binding contract, or does not agree with this Agreement, you may not use or access the Portal.
This Agreement may be updated by SPHERE at any time with or without notice, and Partner hereby agrees to such updated terms by logging into the Portal. We encourage you to periodically review this Agreement to stay informed about any updates we make to our terms. Your continued use of the Portal after we make changes to this Agreement is deemed to be acceptance of those changes.
PROPRIETARY RIGHTS
SPHERE owns and retains all right, title and interest (including without limitation all copyrights patents, moral rights, trademark rights, and other intellectual property and industrial property rights) in, to and associated with its products, services, the Portal, and any materials which can be found on the Portal and all software and technology used to provide the products and services and related documents and information and all derivative works based on the foregoing, including, but not limited to, modifications or derivative works created at the request of Partner, a customer, user, or other such third party.
CONTENT
All information, data, content, or materials that may be uploaded to, found on, or accessed in the Portal, including but not limited to, prospect or customer information, opportunity registration information, account information, business information, or user information (collectively “Content”) provided by SPHERE are protected by privacy, confidentiality, trademark, copyright and/or other intellectual property rights or licenses held by SPHERE.
Subject to full compliance with the terms of this Agreement, SPHERE grants Partner a non-exclusive, non-transferable, limited right to access and use the Portal for Partner’s business purposes. The license to use the Portal granted in this Agreement will terminate automatically in the event that Partner ceases to be a Partner of SPHERE, in SPHERE’s sole discretion. SPHERE may deactivate or remove Partner’s access to the Portal at any time in SPHERE’s sole discretion. The license to access and use the Portal granted in this Agreement may be terminated at any time by SPHERE, without notice to Partner.
Partner acknowledges that all Content is provided “AS IS.” SPHERE does not provide formal support via the Portal and makes no representations or warranties, express or implied, that the Content on the Portal is accurate, timely or complete. Use of any Content is at Partner’s own risk and SPHERE makes no promises, guarantees, representations or warranties regarding the Portal’s availability. SPHERE reserves the right to monitor, delete, move, or edit any Content on the Portal, but is not obligated to do so. Partner may display and print for its own use, and for the use of its customers, information received via the Portal that pertains to Partner or Partner’s customers and its business with SPHERE.
Except as expressly provided in this Agreement, Partner may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any Portal Content. Partner may only use SPHERE Content and materials on the Portal for marketing purposes that are expressly labeled as marketing materials for Partner’s use, provided Partner does not modify any such Content or materials, or remove or alter SPHERE’s logos, marks, or other such proprietary rights notices. Partner must reproduce the proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original. Partner may only use SPHERE’s logo in accordance with SPHERE’s logo guidelines for its marketing purposes. If expressly permitted, via the Portal or otherwise in writing by SPHERE, Partner may add its logo to marketing materials as designated by SPHERE for Partner’s use.
While it is possible for Partner to upload its own Content to the Portal, Partner agrees that it is solely responsible for any activity associated with Partner’s account and any Content Partner submits, posts, transmits, includes, links to or otherwise uploads to the Portal (“Upload(s)” and derivatives thereof). By Uploading any Content to the Portal, Partner hereby grants SPHERE an irrevocable, perpetual, non-exclusive, worldwide, fully-paid and royalty-free right and license to use, copy, modify, reproduce, translate and publish any such Content for SPHERE’s business purposes (including, but not limited to, providing the Portal).
Notwithstanding the licenses granted herein, to the extent that Partner’s Content includes any suggestions, ideas, enhancement requests, feedback, recommendations or other information related to SPHERE’s products or services (“Feedback”), Partner hereby assigns all intellectual property rights in such Content to SPHERE, without compensation to you or any third party. In addition, Partner agrees that SPHERE may use, copy, modify, reproduce, translate and publish such Feedback for any purpose and in any way, including implementation in its products or services. If you do not wish to grant SPHERE the rights set forth in this Agreement, do not post any Feedback or other such Content on the Portal or otherwise access the Portal.
Partner shall not, directly or indirectly: (i) alter or remove or permit a third party to alter or remove any Portal Content not Uploaded by Partner; (ii) use, remove or alter any SPHERE trademarks, service marks, logos, trade names, copyrights or other proprietary notices without SPHERE’s express written permission; (iii) distribute copies of Portal Content not Uploaded by Partner in any manner not explicitly permitted by this Agreement, (iv) Upload any infringing, offensive, fraudulent, harmful or illegal Content (including, but not limited to, viruses, disabling devices, trojan horses, or any code, files or programs that may modify, damage, interrupt, or compromise the functionality or security of SPHERE’s systems or the Portal itself); or (v) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any SPHERE software, service, product or documentation (including, but not limited to, this Portal), or create or attempt to create a substitute or similar service or product through the use of or access to the Portal or any information, data or materials related thereto.
OPPORTUNITY REGISTRATION
Processing of opportunities within the Portal is governed by the terms of your Partner Agreement, Reseller Agreement, or similar agreement authorizing your interactions with SPHERE and its customers (collectively referred to as a “Partner Agreement”). In order to register an opportunity, the opportunity must be a new Partner-originated opportunity for SPHERE that was obtained through the direct assistance of Partner. The opportunity registration is contingent upon registration of the opportunity through the Portal and written or electronic acceptance of the opportunity by SPHERE. SPHERE makes no promises, guarantees, representations or warranties that an opportunity registered by Partner will result in any services, payment or other benefits to Partner or Partner's prospective customers, except as expressly provided in your Partner Agreement.
USER CREDENTIALS
You are required to keep user credentials (e.g. usernames and passwords) confidential and not disclose any such credentials to any third party. In addition, You shall notify SPHERE immediately upon discovery of the disclosure of any such credentials and upon any termination of the engagement of any employees or agents of Partner with Portal credentials or knowledge of any such credentials, so that such credentials can be changed by SPHERE.
CONFIDENTIALITY
The term “Confidential Information” means any information disclosed on the Portal, or otherwise, from SPHERE to Partner in any form, either directly or indirectly, in writing, orally or by inspection of tangible objects, that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Partner and SPHERE both understand that SPHERE has or may disclose Confidential Information in connection with this Agreement, but that Partner shall receive no rights in, or licenses to such Confidential Information. Confidential Information includes, without limitation, algorithms, business plans, customer data, customer lists, customer names, design documents, drawings, engineering information, financial analysis and information, pricing, margins, forecasts, formulas, hardware configuration information, know how, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets.
Partner agrees to: (i) keep all Confidential Information, data or materials strictly confidential and not use or disclose any Confidential Information, data or materials to any third party, other than as explicitly permitted in this Agreement; (ii) ensure that any third party to whom Partner discloses Confidential Information in accordance with this Agreement keeps such information strictly confidential and does not disclose or use any Confidential Information except as permitted herein; (iii) keep Partner’s username(s) and password(s) that relate to the Portal strictly confidential; and (iv) not permit or allow any third party to use or access the Portal. All Confidential Information contained in the Portal shall be used for the sole purpose of conducting business with SPHERE.
Confidential Information shall not, however, include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by SPHERE; (ii) becomes publicly known and made generally available after disclosure by the SPHERE to the Partner through no action or inaction of the Partner and without breach of this Agreement; (iii) is already in the possession of the Partner at the time of disclosure by the SPHERE as shown by the Partner's files and records immediately prior to the time of disclosure; (iv) is obtained by the Partner from a third party lawfully in possession of such information and without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the Partner without use of or reference to the SPHERE's Confidential Information, as shown by documents and other competent evidence in the Partner's possession.
At any time upon SPHERE’s request, and promptly upon any termination of this Agreement, Partner will return to SPHERE, or provide written certification of the destruction of, all Confidential Information, including all Confidential Information contained in internal documents, without retaining any copy, extract or summary of any part thereof.
RESTRICTIONS
Access and use of the Portal or of SPHERE’s products, services, documentation and related materials are solely authorized for the internal business purposes of the organization in which you are a representative of and to enable your sale of SPHERE products and services. Use of the Portal or of SPHERE’s products, services, documentation and related materials for analytical or research purposes to be used or disclosed outside of your organization is strictly prohibited. Sharing screenshots, downloads, or other forms of copying, duplicating or replicating the products, services, documentation and other related materials publicly, or otherwise outside of your organization, is strictly prohibited, unless otherwise specified herein or as authorized in writing by SPHERE. You are not permitted to access or use the Portal or any of SPHERE’s products, services, documentation or other related materials if you are a competitor of SPHERE. Additionally, you are not authorized to provide, or otherwise send to or communicate, to a competitor of SPHERE any information gained by your access and use of the Portal or of SPHERE’s products, services, documentation and related materials.
Partner may not: (i) reverse engineer, disassemble, decompile or otherwise attempt to reveal the trade secrets or know how underlying SPHERE’s products and services; (ii) use SPHERE’s intellectual property and Confidential Information to develop a product that is similar to the Products; (iii) use any SPHERE Confidential Information to contest the validity of any SPHERE intellectual property; (iv) remove or destroy any copyright notices, other proprietary markings or confidentiality legends placed on or made available through the Products; or (v) use the Products in any manner or for any purpose inconsistent with the terms of this Agreement or the documentation or other guidelines contained on the Portal.
INDEMNIFICATION
To the extent permitted by law, Partner agrees to defend, indemnify and hold SPHERE harmless, at SPHERE’s direction and request, from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with any of the following: (i) Partner’s access to or use of the Portal, including any Content Uploaded by Partner via the Portal; (ii) Partner’s breach or alleged breach of this Agreement; (iii) Partner’s violation of any third party rights, including without limitation, any intellectual property rights, publicity, confidentiality, property or privacy rights; (iv) Partner’s violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentations made by Partner. Partner will cooperate as requested by SPHERE in the defense of any claim. SPHERE reserves the right to assume the exclusive defense and control of any matter subject to indemnification by Partner, and Partner will not under any circumstances settle any claim without the prior written consent of SPHERE.
NO WARRANTY
THE PORTAL AND SPHERE CONTENT, AND ANYTHING PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. SPHERE HEREBY DISCLAIMS FOR ITSELF AND ITS SUPPLIERS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND NON-INFRINGEMENT. IN ADDITION, SPHERE AND ITS SUPPLIERS DO NOT WARRANT THAT THE PORTAL OR SPHERE CONTENT WILL OPERATE WITHOUT ERRORS OR ARE FREE FROM VIRUSES, BUGS, WORMS OR ANY OTHER HARMFUL COMPONENTS, AND SPHERE SHALL HAVE NO LIABILITY DUE TO ANY DAMAGES CAUSED BY THE SAME.
PROHIBITED REPRESENTATIONS
Partner will not make any representations, warranties, conditions, promises or claims about SPHERE’s products or services to prospects, customers, users, or any other third party except as expressly authorized in a signed writing by an authorized representative of SPHERE. All warranties provided by SPHERE in this Agreement or by way of the Portal, as applicable, are for the exclusive benefit of Partner and are non-transferable.
RESERVATION
Notwithstanding any other provision of this Agreement, nothing in this Agreement in any way limits, impairs or restricts SPHERE’s right and ability, and SPHERE reserves the right and ability from time to time in its absolute discretion, to directly or indirectly market, distribute, demonstrate, sell, resell, license, maintain and support and otherwise commercially exploit its products or services, or any other software-based products or services, on a worldwide or territorial basis, and through other channels, resellers, referral sources and distributors. Nothing in this Agreement in any way limits, impairs or restricts SPHERE’s right and ability to contact or work with users, customers, prospects, registered opportunities or other such third parties whether directly or through third parties.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY (EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW), IN NO EVENT WILL SPHERE BE LIABLE TO PARTNER (OR ANY PERSON CLAIMING UNDER OR THROUGH PARTNER) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE OPERATION, USE OF OR ACCESS TO THE PORTAL, OR ANY CONTENT THEREON, THE DELAY OR INABILITY TO USE THE PORTAL OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION (I) LOSS OF REVENUE OR ANTICIPATED PROFITS (WHETHER DIRECT OR INDIRECT) OR (II) LOST BUSINESS OR (III) LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY) BREACH OF STATUTORY DUTY OR OTHERWISE, EVEN IF SPHERE HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF SPHERE TO PARTNER FOR ANY CLAIM(S), WHETHER BASED IN CONTRACT, TORT (INCLUDING ACTIVE AND PASSIVE NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, RELATING TO OR ARISING OUT OF THE OPERATION, USE OF OR ACCESS TO THE PORTAL, OR ANY CONTENT THEREON, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED, IN THE AGGREGATE, TO ONE HUNDRED DOLLARS (USD $100.00). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
SEVERABILITY AND ENTIRE AGREEMENT
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers, amendments and modifications must be in writing, signed by both parties and specifically reference the provision of this Agreement being waived, amended or modified, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Partner does not have any authority of any kind to bind SPHERE in any respect whatsoever.
GOVERNING LAW; JURISDICTION; VENUE
This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to choice of law principles. The parties consent and submit to the jurisdiction and venue of the state and federal courts located in Essex County, New Jersey for any dispute relating to the terms, interpretation, or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies). Notwithstanding the foregoing, SPHERE shall have the right to seek injunctive or prejudgment relief in any court of competent jurisdiction to prevent or enjoin the misappropriation, misuse, infringement or unauthorized disclosure of SPHERE’s Confidential Information or intellectual property rights. The parties hereto waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way related to this Agreement.
Please contact ken.koocher@sphereco.com with any questions you have about this Agreement.