Effective Date: June 1, 2022
Terms & Conditions
PARTNER AGREEMENT TERMS AND CONDITIONS
Welcome to Filo Software, Inc. (“Filo”) platform and the suite of services built around that platform (the “Filo System” or “Filo Product”). Please review the following Partner Agreement Terms and Conditions (“Agreement”). You must agree to its terms and conditions before you can use the Filo System. Once you have done so, you will not be shown this agreement again; so, we encourage you to print a copy of this while viewing. If you do not agree to this Partner Agreement, you may not use the Filo System.
THE TERMS “YOU” AND “YOUR” SHALL REFER TO THE COMPANY OR ORGANIZATION ON WHOSE BEHALF YOU ARE ENTERING IN TO THIS AGREEMENT, AS WELL AS TO ALL EMPLOYEES AND AGENTS OF THE COMPANY OR ORGANIZATION, INCLUDING THE INDIVIDUAL ACCESSING THE Filo System. THE TERMS “YOU” AND “YOUR” SHALL ALSO REFER TO YOU IN YOUR INDIVIDUAL CAPACITY IN THE EVENT YOU ARE A USER OF THE Filo System. COLLECTIVELY, THE FOREGOING PARTIES SHALL BE REFERRED TO AS “PARTNER” OR “CLIENT” HENCEFORTH.
IF YOU ARE ENTERING INTO THIS AGREEMENT FOR A COMPANY OR ORGANIZATION: BY ACCESSING THE Filo System, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE ACTING AND ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR CLIENT (THE “COMPANY” OR “CUSTOMER”), AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND THE COMPANY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE Filo System.
BY ACCESSING THE Filo System, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND INTEND TO BE BOUND BY ALL OF THE TERMS, CONDITIONS, AND NOTICES CONTAINED HEREIN, AS WELL AS THE TERMS, CONDITIONS, AND NOTICES POSTED IN VARIOUS LOCATIONS ON THE HTTP://FILO.CO AND HTTP://WWW.HIGHALPHASPACES.COM WEBSITES (THE “FILO POLICIES”), JUST AS IF YOU HAD SIGNED THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT OR THE FILO POLICIES, YOU MUST STOP ALL USE OF THE Filo System.
This “Agreement” is effective as of the date Partner access or uses the Filo System (“Effective Date”), by and between “FILO“ and “Partner”. From time to time in this Agreement, Partner and FILO shall be referred to collectively as, the “Parties” and each individually as, a “Party”.
Section 1. Definitions
Terms defined in this Section 1 and parenthetically defined elsewhere shall have the same meaning throughout the Agreement.
- “Benchmark Data” means statistical, system, usage, and configuration data regarding the Client’s compliance with this Agreement and Client’s usage of the Services.
- “Client Content” means any reports, information, files, documents, data or other content that Client or its end users shares with Vendor through the Services.
- “Effective Date” shall mean the earliest date this Agreement is executed by both Vendor and Client.
- “Services” means the object code form of Filo Software Inc, running on one or more computer servers maintained by Vendor or maintained by a third party on behalf of Vendor and made available to Client over the Internet.
- “Statement of Work” means a document executed by an authorized representative of each party that sets forth the Professional Services being provided thereunder subject to the terms and conditions of this Agreement.
- “Work Product” means all patentable subject matter, patent rights, copyrightable subject matter, copyrights, trademarks, trade secrets, know-how, ideas, suggestions, discoveries, designs, processes, computer products, software (both object code and source code), works of authorship, algorithms, formulas, methods, programming, techniques, flowcharts, reports, and all other inventions or developments created during the performance of this Agreement, including, without limitation, during the performance of Professional Services.
Section 2. License
- License Grant. Partner hereby grants to Filo a royalty-free, worldwide, non-exclusive, terminable, transferable right and license (with the right to sublicense) to access and use the Partner Data for analytics purposes. The foregoing includes the rights to use, host, store, reproduce, modify, and create derivative works from the Partner Data. Filo shall not use or otherwise access the Partner Data in a manner that exceeds FILO’s authorized use and permitted capacity as set forth in this Agreement.
- Subject to the terms of this Agreement, Filo hereby grants to Partner a non-exclusive, terminable, non-transferable right and license to access and use the Filo System for reviewing Benchmark Data pursuant to this Agreement, in and under FILO's intellectual property rights. Client shall not use or otherwise access the Filo System in a manner that exceeds Partner’s authorized use and permitted capacity as set forth in this Agreement.
Section 3. Partner’s Representations and Warranties
- Partner represents and warrants that is complies with all applicable local, state, federal, foreign laws, treaties, regulations, and any obligations it has to third parties, applicable to Partner’s collection, using, and sharing of the Partner Data, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
- Partner represents and warrants that the Partner Data does not infringe, or otherwise violate any intellectual property rights or other right or interest of any kind whatsoever of any third party.
- Partner represents and warrants that it owns all necessary rights, title, and interest in the Partner Data or has the full right, power and authority to grant the rights granted herein, free and clear of any claims, liens, encumbrances, or violations of any other agreement.
Section 4. Intellectual Property Rights
- FILO acknowledges and agrees that Partner retains sole and exclusive ownership of all right, title, and interest in and to the Partner Data.
- Notwithstanding anything to the contrary in this Agreement, Partner authorizes and agrees that FILO may collect Benchmark Data and such Benchmark Data shall be the property of FILO. FILO shall have the right to retain, use, distribute, sell, and otherwise exploit such Benchmark Data.
- Partner acknowledges and agrees that FILO retains sole and exclusive ownership of all right, title, and interest in and to the Filo System.
Section 5. Warranties
Filo represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement, (b) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or by which it is bound, (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of FILO, in accordance with its terms. PARTNER ACKNOWLEDGES THAT THE Filo System AND ANY INFORMATION OR OTHER DATA WITHIN THE Filo System ARE BEING PROVIDED “AS IS.” EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, FILO DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Section 6. Indemnification
Partner shall indemnify and defend FILO, at Partner’s own expense, against any suit or proceeding brought against FILO by a third party arising from or related to: (a) Partner’s violation of any law; (b) an allegation that the Partner Data or FILO’s use of the Partner Data in accordance with this Agreement violates any law or regulation or infringes third party rights; (c) a breach of Partner’s representations and warranties in Section 3; or (d) a breach of Partner’s confidentiality obligations under Section 8.
Section 7. Limitation of Liability
IN NO EVENT WILL FILO BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST REVENUE OR LOST PROFITS), EVEN IF FILO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. FILO’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE WILL BE LIMITED TO THE AGGREGATE AMOUNT OF $1,000.
Section 8. Confidentiality
- Definition. “Confidential Information” means any nonpublic information (written, oral or electronic) disclosed by one Party to the other Party and shall be deemed to include the following information of the respective Parties, without limitation: (a) the terms and conditions of this Agreement; (b) customer lists, the names of customer contacts, Partner Data, business plans, technical data, product ideas, personnel, contracts and financial information; (c) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (d) information about costs, profits, markets and sales; (e) plans for future development and new product concepts; (f) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; or (g) any data or information stored in the Filo System.
- Non-Disclosure. Each Party agrees not to use, disclose, sell, license, publish, reproduce or otherwise make available the Confidential Information of the other Party to any third party, and further agrees not to use the Confidential Information of the other Party except and only to the extent necessary to perform their respective obligations under this Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information in a manner consistent with the maintenance of such Party’s own confidential and proprietary rights in the information (and in any event reasonable measures) and to take appropriate action by instruction or agreement with its employees, consultants, affiliates or other agents who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.
- Exclusions. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving Party; (b) was rightfully in the receiving Party’s possession on a non-confidential basis independent of its relationship with the disclosing Party prior to the first disclosure by the disclosing Party to the receiving Party as evidenced by the receiving Party’s then-existing written records; (c) has been or is developed by or become known to the receiving Party without access to any of the disclosing Party’s Confidential Information and outside the scope of any agreement with disclosing Party with the receiving Party having the burden of proof to demonstrate independent creation; (d) has been obtained rightfully from third Parties not bound by an obligation of confidentiality.
Section 9. Term and Termination
- Term. This initial term of this Agreement shall be one (1) month commencing as of the Effective Date (the “Initial Term”). Thereafter, the term of this Agreement shall automatically renew for successive one (1) month terms (each, a “Renewal Term”) unless one Party provides written notice to the other Party at least ninety (15) days in advance of the end of the then-existing term that it does not wish to renew the Agreement.
- Rights upon Termination. Partner acknowledges that in the event of a termination for cause, Filo does not retain and shall not be responsible for any damage to or loss of Partner Data or other data. In the event this Agreement is terminated for any reason, Partner’s access to the Filo System and the licenses granted herein shall immediately terminate. FILO, at Partner’s written request, shall return all Partner Data, and cease all use of Partner Data. Notwithstanding the foregoing, FILO shall have no obligations with respect to the Benchmark Data.
Section 10. General
- Law, Jurisdiction, and Venue. This Agreement shall be governed and construed according to the laws of the State of Indiana. The Parties agree that the exclusive jurisdiction or any lawsuit related to or arising under this Agreement shall be in the Circuit Court for Marion County, Indiana or the United States District Court for the Southern District of Indiana, Indianapolis Division.
- Assignment. Except as otherwise provided in this Section 12(b), neither Party may assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld; any unauthorized assignment or delegation will be null and void. A Party may, without notice to or consent from the other Party, assign this Agreement in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction, provided that the assignee confirms in writing that it has assumed all obligations of the assignor under this Agreement. This Agreement will be binding upon and inure to the benefit of the Parties’ permitted successors and assigns.
- Independent Parties. This Agreement is by and between independent parties. Nothing in this Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
- Force Majeure. Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, wars, insurrections and/or any other cause beyond the control of the Party whose performance is affected, however, if the duration of the delay caused by such an event shall exceed fifteen (15) days, the Party who was to benefit from the performance of such act shall have the right to terminate this Agreement by giving written notice, according to this Agreement.
- General. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements with respect to such subject matter, whether express or implied, written or oral. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. This Agreement may not be modified except by written agreement signed duly authorized representatives of both Parties. This Agreement shall not be construed against any Party by reason of its preparation. If one or more of the provisions contained in this Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. In this event, the Parties may replace the unenforceable provision with a mutually agreeable enforceable provision that preserves the original intent and position of the Parties. Any other provisions that survive by their nature shall survive the expiration or termination of this Agreement for any reason. No term or provision of the Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. No consent by any Party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.
- Revisions. FILO may revise this Agreement from time to time. The changes will not be retroactive, and the most current version of the Agreement, which will always be at https://filo.co, will govern the relationship between the Parties. FILO will notify Partner 30 days in advance of making effective changes to this Agreement, for example via a service notification or an email to the email associated with Partner’s account. By continuing to access or use the Filo System after those revisions become effective, Partner agrees to be bound by the revised Agreement.