This Technology Alliance Partner Agreement (this “Agreement”) is a binding contract between NinjaOne, LLC, a Delaware limited liability company (“NinjaOne”), and the company identified in the signature block below (“You” or “Your”), and is effective as of the date of Your signature below or the first date on which You access the NinjaOne Software or the API for purposes of developing the Integration, whichever is earlier (the “Effective Date”).
BY SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT SIGN THIS AGREEMENT.
1. Definitions. In addition to terms defined elsewhere in this Agreement, the following terms have the meanings provided below wherever used in this Agreement. Any capitalized terms which are not defined herein have the meanings ascribed to them in the End User License Agreement (“EULA”) and/or the API License Agreement.
1.1 “Alliance Partner Marks” means the trademarks and service marks belonging to You, including, but not limited to, its registered and common law design marks, word marks, and combinations thereof, that You approves for use by NinjaOne.
1.2 “Alliance Partner Software” means any APIs, scripts, software, services, or other applications, materials, products, and related intellectual property that You develop that are compatible with, integrate with, and/or communicate with the NinjaOne Software.
1.3 “Integration” means the integration(s) of the Alliance Partner Software and the NinjaOne Software developed by You hereunder. Where applicable, references in this Agreement to Integration may also include the Integration Documentation.
1.4 “Integration Documentation” means the documentation that You prepares and provides pertaining to the Integration, as updated from time to time.
1.5 “Personal Data” means data that is defined as “personal information” or “personal data” under applicable law.
1.6 “Territory” shall mean worldwide, subject to the restrictions set forth in Section 13.1 of the EULA and Section 17 of the API License Agreement.
2. License Grants.
2.1 Development and Demonstration License. Subject to Your compliance with this Agreement, NinjaOne hereby grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable, paid-up, royalty-free, not-for-resale license to access and use the NinjaOne Software and NinjaOne Documentation in a non-production environment in the Territory solely for the purposes of evaluating, testing, marketing, promoting, demonstrating, developing, administering[KP1] , and supporting the Integration.
For the avoidance of doubt, this license excludes any access to and/or use of any of NinjaOne’s source code, including, but not limited to, the NinjaOne Software source code, and You shall have no right to use the NinjaOne Software for Your regular business operations, except for Your development of the Integration, unless You separately execute the EULA. Further, except as expressly authorized herein, You shall not reprint, distribute, or embed the NinjaOne Documentation or any other NinjaOne content in any form whatsoever.
2.2 API License. Subject to Your compliance with this Agreement and the API License Agreement, NinjaOne hereby grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable, paid-up, royalty-free, not-for-resale license to use the NinjaOne API in a non-production environment in the Territory solely for the purposes of evaluating, testing, marketing, promoting, demonstrating, developing, administering, and supporting the Integration.
2.3 Mutual Trademark License. Subject to the other party’s compliance with this Agreement, each party grants to the other party a limited, revocable, non-exclusive, non-transferable, non-sublicensable, paid-up, royalty-free, not-for-resale license to use its Marks in the Territory solely for the purposes of evaluating, testing, marketing, promoting, demonstrating, developing, administering, and supporting the Integration.
As between the parties, the NinjaOne Marks are and will remain the exclusive property of NinjaOne, and the Alliance Partner Marks are and will remain the exclusive property of Alliance Partner. Neither party will acquire any rights, title, or interest in or to the other party’s Marks, except the limited use rights expressly granted in this Agreement. Each party will have the right to approve the format and presentation of its Marks as used by the other party. Each party’s use of the other party’s Marks, including all goodwill arising therefrom, will inure to the benefit of the other party.
2.4 NinjaOne’s Rights. Notwithstanding anything to the contrary herein, NinjaOne reserves the rights to, but is not obligated to, evaluate, test, market, promote, demonstrate, update, improve, administer, and support the Integration.
3. Alliance Partner Obligations.
3.1 Integration. You agree to integrate the Alliance Partner Software with the NinjaOne Software in accordance with this Agreement, the NinjaOne Documentation, any other terms and conditions applicable to the Integration, and any instructions from NinjaOne.
3.2 Documentation. You shall prepare and, when appropriate, update the Integration Documentation and provide it to, or make it accessible by, the end users of the Integration.
3.3 Support. You shall provide support to end users with respect to their use of the Integration and the Integration Documentation. You acknowledge and agree that NinjaOne has no obligation to provide such support.
3.4 Responsibility. You agree that You are solely responsible for the Integration and the Integration Documentation, including, but not limited to, their security, operation, and legality, as well as any costs or expenses associated therewith.
3.5 Security. You shall protect NinjaOne’s Confidential Information (defined below) and all data and information provided to or collected by You hereunder, including Personal Data, from unauthorized access, disclosure, loss, or use. You shall report to NinjaOne (or the end users, as applicable) promptly and without undue delay any unauthorized access, disclosure, loss, or use of Confidential Information or other data and information to the extent required by applicable law. You shall also establish, implement, and maintain security policies and a program of technical, administration, and organizational measures to prevent access to Confidential Information and meet applicable information security best practices, standards, and guidelines.
3.6 Prohibitions. You shall not access or use the NinjaOne Software or the API, nor any data or information provided to or collected by You hereunder, (a) to develop any product, service, or feature that is competitive with or substantially similar to the NinjaOne Software, or that replicates or attempts to replace the functionality and/or user experience of the NinjaOne Software; (b) to monitor their performance, functionality, or availability; (c) for any other competitive or benchmarking purposes; or (d) to develop an integration between (i) the Alliance Partner Software and a product competitive with the NinjaOne Software, or (ii) the NinjaOne Software and a third-party product.
4. Alliance Partner Restrictions.
4.1 EULA Incorporation. With respect to Your use of or access to the NinjaOne Software and the NinjaOne Documentation hereunder, You accept and agree to abide by the relevant restrictions and limitations set forth in the EULA, including, but not limited to Sections 2.2, 3.1, 4.6, 4.7, 5.3, 6, 9.2, 12, 13.1, and 13.4, and such restrictions and limitations are hereby incorporated herein.
4.2 API License Agreement Incorporation. With respect to Your use of or access to the NinjaOne API and the API Documentation hereunder, You accept and agree to abide by the relevant restrictions and limitations set forth in the API License Agreement, including, but not limited to Sections 3, 4, 5, 7, 8, 9, 11, 12, 13, 17, 18, and 19, and such restrictions and limitations are hereby incorporated herein.
4.3 Representations About NinjaOne. You shall not make any representations, warranties, or guarantees of any kind with respect to the specifications, functionality, features, or capabilities of the NinjaOne Software or the API that are inconsistent with their respective Documentation, the EULA, or the API License Agreement.
5. Mutual Obligations.
5.1 Compliance with Laws. Each party shall comply and shall continue to comply with all laws, rules, and regulations applicable to its business and the performance of its obligations hereunder.
5.2 Authority. Each party has the full right, power, and authority to enter into this Agreement and to discharge its obligations hereunder.
5.3 Other Agreements. Each party’s execution of and performance under this Agreement will not cause it to breach any other agreement or contract to which it is a party. Neither party has entered into any agreement or contract which is inconsistent with this Agreement.
5.4 Promotion. Each party shall make commercially reasonable efforts to market and promote use of the Integration (once suitable for such use).
5.5 Insurance. During the term of this Agreement, each party shall maintain at its own expense such comprehensive general liability, professional liability, and technology and cyber liability insurances which are reasonably necessary to cover its obligations and potential liabilities under this Agreement. Each party shall provide the other party with proof of such insurance coverage upon the other party’s reasonable request.
5.6 Data Protection. Without limiting Section 5.1, to the extent that either party processes any Personal Data in relation to this Agreement, that party shall comply with its obligations under any applicable data protection or data privacy laws, rules, regulations (including, but not limited to, the General Data Protection Regulation, the California Consumer Privacy Act, and the California Privacy Rights Act) and shall execute such documents, and take such further steps, as may be required to maintain such compliance.
5.7 Non-Disparagement. While this Agreement is in effect and thereafter, neither party shall make any statement or representation, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the other party or any of its affiliates or their respective officers, employees, contractors, businesses, or reputations. Notwithstanding the foregoing, nothing in this Agreement shall preclude either party from making truthful statements that are required by applicable law, regulation, or legal process.
5.8 Non-Solicitation. While this Agreement is in effect and for a period of 12 months thereafter, neither party shall solicit, hire, or employ any officer, employee, or contractor of the other party without the express written consent of the other party. It shall not be a violation of this provision if the solicitation, hiring, or employment results from an advertisement for employment directed to the general public.
5.9 Non-Exclusivity. Each party reserves the rights to develop integrations with its own Software and to grant licenses to third parties for the development of such integrations.
6. Intellectual Property Ownership.
6.1 NinjaOne’s Rights. You agree and acknowledge that, as between You and NinjaOne, NinjaOne owns all right, title, and interest, including all intellectual property rights, in and to the NinjaOne Software, the NinjaOne Documentation, the API, and the API Documentation, as well as all intellectual property rights in and to the data and information contained therein (except those rights owned exclusively by a third party).
6.2 Your Rights. NinjaOne agrees and acknowledges that, as between You and NinjaOne, You own all right, title, and interest, including all intellectual property rights, in and to the Alliance Partner Software and the Integration, excluding those expressly set forth in Section 6.1.
6.3 Other Rights. All rights and licenses that one party does not expressly grant to the other party hereunder are expressly reserved by that party.
7. Confidentiality.
7.1 Definition. “Confidential Information” means any confidential, proprietary, trade secret, and/or non-public information belonging to or in the possession of one party (“Discloser”) and disclosed to the other party (“Recipient”) in relation to this Agreement, either directly or indirectly, in writing, orally, or by inspection of tangible objects, which is either labeled or described as “confidential,” “proprietary” or a similar designation, or which, due to its nature and/or the circumstances surrounding its disclosure, should be reasonably understood as confidential.
7.2 Exceptions. Confidential Information does not include any information that the Recipient can prove (a) was publicly known and/or made publicly available prior to the time of disclosure to Recipient; (b) becomes publicly known and/or available after disclosure to Recipient through no action or inaction of the Recipient; (c) was already in Recipient’s possession at the time of disclosure to Recipient, as evidenced by its files and/or records; (d) was obtained by Recipient from a third party lawfully in possession of such information and without a breach of such third party’s obligations of confidentiality; (e) was independently developed by Recipient without use of or reference to the Confidential Information, in whole or in part, as evidenced by its files and/or records; or (f) was disclosed pursuant to the order of a court, administrative agency, or other governmental body; provided, however, that Recipient shall provide prompt notice thereof to Discloser to enable it to seek a protective order or otherwise prevent or restrict such disclosure.
7.3 Obligations. Neither party shall use or disclose the Confidential Information of the other party for any purpose other than performing its obligations under this Agreement. Each party shall protect the other party’s Confidential Information from unauthorized use or disclosure in the same manner that it protects its own Confidential Information but with no less than reasonable care. Each party may disclose the other party’s Confidential Information to its own officers, employees, and contractors only if (a) they need to know such Confidential Information, (b) they are bound by confidentiality obligations at least as restrictive as those set forth herein, and (c) the party is and remains liable for any unauthorized use or disclosure of Confidential Information by such officers, employees, or contractors. Each party shall notify the other party in writing of any actual or reasonably suspected unauthorized use or disclosure of the other party’s Confidential Information promptly and without undue delay.
8. Limitations of Liability.
8.1 No Special Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND SUCCESSORS) BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR (a) ANY SPECIAL, INDIRECT, NON-COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, STATUTORY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE RELATED TO LOSS OR PRIVACY OF DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, OR LOST PROFITS OR REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR OTHERWISE, EVEN IF NINJAONE IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2 Damages Cap. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL NINJAONE (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AFFILIATES, AND SUCCESSORS) BE LIABLE TO YOU FOR ANY DAMAGES IN RELATION TO THE NINJAONE SOFTWARE, THE NINJAONE DOCUMENTATION, THE API, THE API DOCUMENTATION, OR THIS AGREEMENT IN AN AGGREGATE AMOUNT GREATER THAN $2,500. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE ALLOCATIONS OF RISK AND FIND THEM REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. Indemnification.
9.1 By You. You shall indemnify, defend, and hold harmless NinjaOne (including its directors, officers, employees, contractors, agents, Affiliates, and successors) from and against any and all third-party claims, demands, losses, liabilities, and costs (including, but not limited to, reasonable attorney’s fees and costs) arising from or relating to: (a) the Integration and/or any end user’s use thereof; (b) Your breach of this Agreement or violation of applicable law; (c) Your use or misuse of, or Your failure to prevent unauthorized access to, the NinjaOne Software and/or the API; (d) Your infringement of third-party intellectual property or privacy rights; or (e) Your willful misconduct or fraud.
9.2 By NinjaOne. NinjaOne shall indemnify, defend, and hold You harmless from and against any and all third-party claims, demands, losses, liabilities, and costs (including, but not limited to, reasonable attorney’s fees and costs) arising from NinjaOne’s infringement of third-party intellectual property rights directly resulting from the use of the NinjaOne Software by You or the end users of the Integration. This Subsection 9.2 states NinjaOne’s entire liability (and shall be Your sole and exclusive remedy) with respect to infringement claims.
NinjaOne’s obligations under this Subsection 9.2 do not apply (a) with respect to the NinjaOne Software or components thereof which have been (i) supplied other than by NinjaOne, (ii) modified in whole or in part by NinjaOne in accordance with Your instructions, or by You or the end users of the Integration after delivery by NinjaOne, or (iii) combined with other products, processes, or materials where the alleged infringement relates to such combination; (b) where You continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (c) where the use of the NinjaOne Software or the API by You is not strictly in accordance with this Agreement or their respective Documentation.
10. Term and Termination. The term of this Agreement commences upon the Effective Date and continues in effect until the last date on which You access or use the NinjaOne Software or the API for purposes of evaluating, testing, marketing, promoting, demonstrating, developing, administering, and supporting the Integration, unless earlier terminated as permitted herein.
10.1 Termination for Cause. NinjaOne may immediately terminate or suspend this Agreement, any licenses or rights granted herein, and/or Your access to the NinjaOne Software or the API, if (a) You breach any provision of this Agreement and You fail to remedy such breach within 10 days of receiving written notice of such breach from NinjaOne; or (b) You breach any provision of this Agreement, and the breach is egregious, uncurable, and/or would damage the NinjaOne Software, the API, or NinjaOne’s reputation. NinjaOne’s decision to suspend Your access to or use of the NinjaOne Software or the API is without prejudice to its right to terminate this Agreement for the same cause(s) underlying the suspension. NinjaOne’s termination of this Agreement shall not limit any of NinjaOne’s rights or remedies at law or in equity.
10.2 Effect of Termination. Upon expiration or termination of this Agreement for any reason, all licenses and rights granted to either party hereunder will terminate immediately, and, if applicable, You shall immediately cease accessing and using the NinjaOne Software and the API for purposes of evaluating, testing, marketing, promoting, demonstrating, developing, administering, and supporting the Integration. Any provisions that by their nature are intended to survive beyond the expiration or termination of this Agreement will so survive.
11. Anti-Corruption and -Bribery. You represent and warrant as follows:
11.1 You and Your officers, directors, employees, agents, and anyone acting on Your behalf (collectively, the “Representatives”) are in compliance with all applicable anti-bribery and anti-corruption laws, including, but not limited to, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010 (collectively, the “Anti-Bribery Laws”).
11.2 Neither You nor any of Your Representatives have, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value (collectively, “Gift”) to any Government Official or other similarly-situated person (collectively, “Official”) while knowing or having reason to believe that the Gift, in whole or in part, will be offered, given, or promised, directly or indirectly, to an Official for the purpose of (a) influencing any act or decision of such Official in his/her official capacity, including, but not limited to, a decision to do or refrain from doing any act in violation of his/her lawful duties or proper performance of functions; or (b) inducing such Official to use his/her influence or position with any Government Entity or to otherwise influence any act or decision in order to obtain or retain business for, direct business to, or secure an improper advantage for NinjaOne or Yourself;
11.3 Neither You nor any of Your Representatives are a Government Official or has a personal, business, or other relationship or association with any Government Official or Close Family Member of any Government Official who may have responsibility for or oversight of any business activities of NinjaOne or Yourself, other than any relationships or associations that have been disclosed in writing to NinjaOne.
11.4 For purposes of this Section 11:
11.4.1 “Government Official” means (a) any director, officer, employee, agent, or representative (including anyone elected, nominated, or appointed to be a director, officer, employee, agent, or representative) of any Government Entity, or anyone otherwise acting in an official capacity on behalf of a Government Entity; (b) any political party, political party official, or political party employee; (c) any candidate for public or political office; (d) any royal or ruling family member; or (v) any agent or representative of any of those persons listed in subcategories (a) through (d);
11.4.2 “Government Entity” means (a) any national, state, regional, or local government (including, in each case, any agency, department, or subdivision of such government); (b) any political party; (c) any entity or business that is owned or controlled by any of those bodies listed in subcategory (a) or (b); or (d) any international organization, such as the United Nations or the World Bank;
11.4.3 “Close Family Member” means (a) the individual’s spouse; (b) the individual’s and his/her spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, and first cousins; (c) the spouse of any persons listed in subcategory (b); and (d) any other person who shares the same household with the individual.
11.5 You have adopted and maintain adequate policies, procedures, and controls to ensure that You have complied and are in compliance with all Anti-Bribery Laws, including, at a minimum, policies and procedures relating to prevention of bribery, accounting for financial transactions, due diligence on third parties, and training of personnel.
12. Anti-Slavery and -Human Trafficking.
12.1 In performing under this Agreement, You shall: (a) comply with all applicable anti-slavery and human trafficking laws, statutes, and regulations from time to time in force and applicable to Your activities, including, but not limited to, the Modern Slavery Act 2015 (United Kingdom) and the Modern Slavery Act 2018 (Australia) (collectively, the “Modern Slavery Acts”); (b) not engage in any activity, practice, or conduct that would constitute an offense under the Modern Slavery Acts if such activity, practice, or conduct were carried out in the United Kingdom or Australia, as applicable; (c) ensure to the best of Your ability that each of Your subcontractors and suppliers complies with all applicable Modern Slavery Acts.
12.2 You represent and warrant that, as of the Effective Date: (a) neither You nor any of Your officers or employees (i) has been convicted of any offense involving slavery and human trafficking, and (ii) to the best of Your knowledge, has been or is the subject of any investigation, inquiry, or enforcement proceedings by any governmental, administrative, or regulatory body regarding any offense involving slavery and human trafficking; and (b) You shall implement or have implemented due diligence procedures for Your subcontractors and suppliers to ensure that there is no slavery or human trafficking in Your supply chains.
12.3 You shall notify NinjaOne as soon as You become aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Agreement.
12.4 You shall give NinjaOne written notice of any actual or reasonably suspected violation of Subsections 11 and 12 immediately upon becoming aware thereof. You acknowledge and agree that any breach of Subsections 11 and 12 shall constitute a material, uncurable breach of this Agreement, and that, notwithstanding any other provision of this Agreement, upon any such breach, this Agreement shall automatically terminate for cause with immediate effect.
13. Amendments and Waivers. No amendment of or modification to this Agreement, nor any waiver of rights under this Agreement, shall be effective unless in writing signed by authorized representatives of both parties. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
14. Injunctive Relief. Each party agrees and acknowledges that certain breaches of this Agreement could cause irreparable harm for which there is no adequate remedy at law, and, in the event of such breach, that the non-breaching party, in its discretion, may seek injunctive relief to protect its rights without the need to post a bond or make a special showing. These rights are in addition to any other remedies provided by law or in equity.
15. Force Majeure. Neither party shall be liable to the other party for failure to perform its obligations hereunder to the extent that such failure is caused by an event beyond the reasonable control of the party, provided that the party gives prompt written notice to the other party of such event and makes best efforts to promptly eliminate the effect thereof.
16. Attorney’s Fees. In the event of litigation between the parties concerning this Agreement, the prevailing party in the litigation shall be entitled to recover its reasonable attorney’s fees and costs from the other party.
17. Governing Law and Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of the State of Texas, without regard to the choice or conflicts of law provisions of any jurisdiction. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments shall not apply to this Agreement. Any dispute, action, claim, or cause of action arising out of or in connection with this Agreement or the Integration shall be subject to the exclusive jurisdiction of the state and federal courts located in Travis County, Texas, and the parties irrevocably submit to the personal jurisdiction of such courts.
18. Notice. Any notice required to be given under this Agreement shall be given as follows and shall be deemed received on the date of delivery:
If to You, by email to the email address of the authorized representative who signs this Agreement.
If to NinjaOne, by email to [email protected].
19. Severability. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.
20. Assignment. Neither party may assign any rights under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Any purported assignment or delegation in violation of this Section 19 shall be null and void.
21. Relationship; Beneficiaries. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries of this Agreement.
22. Survival. Any provision of this Agreement that, by its nature, should survive any expiration or termination of this Agreement, shall so survive.
23. Electronic Transaction. The parties agree that this Agreement may be formed, executed, and/or delivered by electronic means, including the use of electronic signatures and/or electronic agents.
24. Entire Agreement. This Agreement embraces the full, complete understanding of the parties as to the Integration. All prior or contemporaneous representations, understandings, and agreements between the parties regarding the subject matter hereof, whether written or oral, expressed or implied, are superseded by this Agreement and shall be of no effect.
