These Phocas Partner Program general terms and conditions (the “General Partner Terms”), together with any applicable document used to describe a partnership between Phocas and Partner (the “Partner Agreement”) (the Partner Agreement with the General Partner Terms are the “Agreement”) constitute a binding agreement between Phocas and Partner (each, a “Party”). Partner agrees to be bound by these General Partner Terms by executing, including by confirming agreement by clicking on a website, any document that incorporates these General Partner Terms by reference.
The following definitions and rules of interpretation apply in this agreement unless otherwise defined in the Agreement.
in relation to a party, any other party who Controls, is Controlled by or is under common Control with such party including, without limitation, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party.
a day (other than a Saturday, Sunday or public holiday in the United States of America) when banks are required to be open for business.
documentation made available to Partner that outlines the requirements to successfully complete Certification. Certification Documentation may be updated from time to time by Phocas in its sole discretion, and Partner may be required to fulfil additional requirements in order to retain such Certification.
the visual representation provided by Phocas to Program applicants that successfully pass the Certification, as required under certain Phocas Programs. A Certification Logo will be licensed for Partner’s use upon completion of the requirements.
References to clauses and Schedules are to the clauses and Schedules of this agreement; references to paragraphs are to paragraphs of the relevant Schedule.
means the amount Partner is entitled to receive from the fees Phocas receives from a Referred Client associated with a Referred Client’s purchase of Phocas’ Services.
any information disclosed by a Party to the other Party, either directly or indirectly, in writing, orally, or by inspection that (a) is designated as "Confidential," "Proprietary," or some similar designation or (b) by the nature of the information or the circumstances surrounding disclosure, would be reasonably understood as proprietary or confidential.
a software and communications interface that connects an End User’s Software Platforms with a Phocas Product.
a report or dashboard (or set of reports or dashboards) built on Phocas Services.
a customer who purchases a Phocas Service in conjunction with a Partner’s Connector.
the later of the dates in which both parties’ authorized signatories sign the partnership agreement.
Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
all trade secrets, patents and patent applications, Marks, copyrights, moral rights, rights in Inventions, and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent rights that may exist anywhere in the world.
the provision by Partner to Phocas of the contact details of a relevant individual at the Prospective Client, provided always that the Partner shall make reasonable efforts in the circumstances and in accordance with Phocas’ instructions to establish contact between Phocas and the Prospective Client.
in respect of each Prospective Client means the period of 6 calendar months commencing at the initiation of an Introduction by the Partner.
complete and up-to-date contact details of third parties that express an interest, or may have an interest in purchasing the Services.
the Marks Phocas provides to Partner in accordance with Section 3(b)(iii) (Marketing Activities; Phocas Marks).
any trade names, trademarks, service marks, marks and logos owned by a Party (whether registered or unregistered and including any goodwill acquired in such trademarks).
the payments made to Phocas for the Services under a Relevant Contract less any value-added tax or other sales tax on them, any out of pocket expenses incurred by Phocas in providing the Services and any discounts or rebates granted by Phocas.
the technology and Intellectual Property that the Partner uses to provide its Connector and the Solution, if applicable, including computer software programs, Partner’s Documentation, schematics, websites, networks, and equipment, as applicable.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
any services work provided by Phocas to a Customer relating to implementations, support or any ongoing services work relating to the product.
the technology and Intellectual Property that Phocas uses to provide its Services, if including computer software programs, documentation, schematics, websites, networks, and equipment, as applicable.
any program or incentive Phocas offers to third parties to partner with Phocas, including developing Connectors and referring potential customers to Phocas in return for commissions.
an End User who may purchase Services from Phocas.
each period of three calendar months ending on 31 March, 30 June, 30 September and 31 December.
an End User other than the Partner who purchases Services as a result of being referred to Phocas by Partner under a referral partner agreement between Phocas and the Partner.
a contract for the supply of Services entered into during the Introduction Period between Phocas and a Prospective Client who was Introduced by the Partner.
a customer (other than Partner), who purchases Phocas’ services from Partner under the terms of a reseller partner agreement between Phocas and the Partner.
the software and/or service provided to End Users by Phocas.
any business or financial software provided by a Partner or third party, such as Enterprise Resource Planning (ERP), Customer Relationship Manager (CRM), or ecommerce platform, including all updates, modifications, and amendments.
The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
A reference to writing or written includes e-mail.
Partner’s intellectual property
Partner Technology. Partner retains all right, title, and interest in all Intellectual Property rights in the Partner Technology and all enhancements or improvements to, or derivative works of, the foregoing. Nothing in the Agreement transfers or conveys to Phocas any ownership interest in the Partner Technology. Partner hereby grants to Phocas a non-transferable (except as permitted under the Agreement), non-exclusive and sub-licensable license to: (A) demonstrate and sell the Connector (in circumstances where the Connector is owned by the Partner) to End Users and users of the applicable Solution; (B) test the functionality of such Connector to ensure that the Connector is functional and compatible with Phocas Technology and Services; and (C) use such Connector and the Partner Technology to satisfy Phocas’ other obligations under the Agreement and under the Phocas Terms with End Users. Except to the extent required by Phocas to exercise its rights or perform its obligations under the Agreement, Phocas agrees not to reverse assemble, reverse compile, or build a product using Partner’s Confidential Information.
Partner Marks. Subject to the terms of the Agreement, Partner grants to Phocas a limited, non-exclusive, non-transferable, revocable license to display Partner’s Marks solely to market and promote the relationship contemplated by this Agreement.
Phocas’ intellectual property
Phocas Technology. Phocas retains and owns all right, title, and interest in all Intellectual Property rights in the Phocas Technology, Phocas’ documentation, Phocas’ Confidential Information, the Services, and all enhancements or improvements to, or derivative works of, the foregoing. Any work product created by or on behalf of Phocas (including any Inventions used or developed by Phocas or its subcontractors in connection with the Phocas Professional Services) will be Phocas’ Intellectual Property only to the extent that the work product does not incorporate (A) any Partner Intellectual Property or Partner Technology or (B) any works-made-for-hire that Phocas creates for Partner’s exclusive use. Nothing in the Agreement transfers to Partner any ownership interest in the Phocas Intellectual Property.
Restrictions. Partner shall use the Services only as set forth in the Agreement and Phocas’ documentation. Partner shall not A) reverse assemble, reverse engineer, decompile, or otherwise attempt to derive source code from any of the Phocas Technology; (B) reproduce, modify, create, or prepare derivative works of any of the Phocas Technology or documentation; (C) except as permitted by this Agreement, distribute or display any of the Phocas Technology or Documentation; (D) share, sell, rent, lease, or otherwise distribute access to the Services, or use the Services to operate any timesharing, service bureau, or similar business; (E) alter, destroy, or otherwise remove any proprietary notices within the Phocas Technology or Documentation; or (F) disclose the results of any Service or program benchmark tests to any third parties without Phocas’ prior written consent.
Marketing Activities; Phocas Marks. In conducting any marketing activities under a Partner Program, Partner shall use only those marketing materials Phocas provides (either directly or through https://partners.phocassoftware.com/brand) or approves in writing (“Phocas Assets”). Partner shall use the Phocas Assets and Phocas Marks in compliance with all guidelines Phocas provides. Partner shall not modify the Phocas Assets or Phocas Marks without Phocas’ prior written approval. Phocas grants Partner a limited, non-exclusive, non-transferable, non-assignable, revocable right to display the Phocas Assets and Phocas Marks solely to fulfil its obligations under the Agreement. This right to use terminates automatically when the Agreement terminates. Notwithstanding the foregoing, Phocas retains all right, title, and interest in the Phocas Assets and Phocas Marks, and nothing in the Agreement confers any right of ownership in the Phocas Assets or Phocas Marks on Partner, and all use of them inures to Phocas’ benefit.
If either Party provides the other Party with any suggested improvements to a Program, Phocas Assets, the Partner Portal, Intellectual Property, the Services, Partner’s Solution or any other products or services of such Party, then that Party also grants the other Party a nonexclusive, perpetual, irrevocable, royalty-free, worldwide license, with rights to transfer, sublicense, sell, use, reproduce, display, and make derivative works of such suggested improvements. Notwithstanding the foregoing, nothing in this Section 2.3 (Suggestions and Feedback) grants a Party a license to use any Inventions covered by a registered patent owned by the other Party.
The use of Phocas software to create templates, reports, dashboards and databases or other uses inside Phocas software does not constitute the creation of intellectual property under this agreement.
Except as may otherwise be provided in the Agreement and except for the rights set forth in Section 2(a), Phocas may modify these General Partner Terms.
If Phocas modifies these General Partner Terms, it will provide prior written notice (“Modification Notice”) to Partner of those modifications at least 30 days prior to the effectiveness of the modifications. If the modifications materially and adversely affect Partner, and Partner does not wish to accept such modifications, then Partner may withdraw Partner’s participation in the applicable Program and terminate the applicable Partner Agreement, subject to any wind-down obligations in the Partner Agreement and this Modification Section by written notice to Phocas.
No authority to bind
The Partner shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind Phocas in any way, and shall not do any act which might reasonably create the impression that the Partner is so authorised.
No authority to contract or negotiate
The Partner shall not make or enter into any contracts or commitments or incur any liability for or on behalf of Phocas, including for the provision of the Services or the price for them, and shall not negotiate any terms for the provision of the Services with Prospective Clients.
Provision of information
Phocas shall provide the Partner at all material times with the information that Phocas reasonably believes the Partner requires to carry out its duties, including marketing information relating to, and details of, the Services.
Payment of expenses
Phocas shall not be responsible for any expenses incurred by the Partner unless such expenses have been agreed by Phocas in writing, in advance.
Obligations of confidentiality
Each party undertakes that it shall not at any time during this agreement or thereafter disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2.
Confidentiality exceptions
Each party may disclose the other party's confidential information:
to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party's obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 6;
Confidential Information does not include information (i) that is or becomes generally available to the public other than through the action of the receiving Party; (ii) lawfully in the possession of the receiving Party at the time of disclosure without restriction on use or disclosure; (iii) lawfully obtained by the receiving Party from a third party without restriction on use or disclosure or breach of such third party’s obligations of confidentiality; or (iv) independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.
Disclosures required by law
If any applicable law, regulation, or judicial or administrative order requires the receiving Party to disclose any of the disclosing Party’s Confidential Information (a “Disclosure Order”) then, unless otherwise prohibited by the Disclosure Order, the receiving Party will promptly notify the disclosing Party in writing prior to making any such disclosure, in order to facilitate the disclosing Party’s efforts to protect its Confidential Information. Following such notification, the receiving Party will cooperate with the disclosing Party, at the disclosing Party’s reasonable expense, in seeking and obtaining protection for the disclosing Party’s Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver by the disclosing Party, the receiving Party is legally compelled to disclose Confidential Information by any tribunal, regulatory authority, agency, or similar entity, the receiving Party may disclose, without liability hereunder, that portion of the Confidential Information which is legally required to be disclosed and the receiving Party will exercise its best efforts to preserve the confidentiality of the remaining Confidential Information.
Limited use of confidential information
No party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
Notice
Each Party will promptly notify the other Party, as reasonably practicable under the circumstances, not to exceed 72 hours from the time of confirmation, of unauthorized access, use, or disclosure of Confidential Information; each Party will reasonably cooperate with the other with respect to such unauthorized access, use, or disclosure, including its containment and investigation. Upon confirmation of any vulnerability or breach of security, a Party will modify its processes and security program as necessary to remediate the vulnerability or breach, at such Party’s sole cost and expense.
Return of documents and records
All documents and other records (in whatever form) containing confidential information supplied to or acquired by the Partner from Phocas, directly or indirectly, shall be returned promptly to Phocas on termination of this agreement, and no copies shall be kept, whether digitally or otherwise.
Compliance
Each party shall at its own expense comply with all laws and regulations relating to its activities under this agreement, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
Anti-bribery compliance
Compliance with Bribery Act 2010. Partner shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption (Relevant Requirements), including but not limited to the Bribery Act 2010 (BA 2010);
Data Protection Regulation. Partner shall comply with the UK Data Protection Act 2018 or any successor legislation, as well as the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) with respect to the exercise of individual data subjects’ rights, including, for example, collecting and documenting individual data subjects’ affirmative consent to disclose their Personal Information prior to providing such Personal Information to Phocas.
Each party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
Mutual assistance. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation relating to the Agreement.
Unlimited liability
Nothing in this agreement shall limit or exclude the liability of either party for:
Death or personal injury. Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
Fraud. Fraud or fraudulent misrepresentation; or
Unlawful liability restrictions. Any matter in respect of which it would be unlawful to exclude or restrict liability.
Limitations of liability
Subject to clause 1 above:
Loss of profit, revenue, goodwill, or anticipated savings. Neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, revenue, goodwill, or anticipated savings.
Loss on termination and indirect loss. Neither party shall under any circumstances whatever be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
any loss arising out of the lawful termination of this agreement or any decision not to renew its term, or
any loss that is an indirect or secondary consequence of any act or omission of the party in question.
Total cap. The total liability of either party to the other in respect of any loss or damage arising under or in connection with this agreement excluding liability arising in connection with Phocas’ supply of services in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Commission paid by Phocas during the 12 months immediately preceding the date on which the claim arose.
Liability for supply of services. The liability of Phocas arising in connection with the supply of services shall be as set out in Phocas’ applicable customer terms and conditions.
Agreement term. The term of the Agreement (the “Term”) begins on the effective date of the first Partner Agreement the Partner enters, and ends on the date of termination or expiration of the final Partner Agreement.
Termination for breach or cause. Either Party may terminate the Agreement or withdraw from participation in any Program by notice to the other (i) if the other Party materially breaches its obligations under the Agreement and, if the breach is capable of cure, fails to cure the breach within 30 days of the date of notice of breach; or (ii) upon the other Party ceasing to operate in the ordinary course, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing.
Effects of termination. Upon termination, (i) all licenses granted under the Agreement terminate; (ii) subject to a Party’s wind down obligations, (1) Phocas shall cease all use of Partner Marks and Partner Technology, and (2) Partner shall cease all use of the Phocas Marks and the Phocas Assets; (iii) each Party will remain liable for all fees owed to the other Party unless otherwise provided in a Partner Agreement; (iv) upon request, each Party will immediately return or, if instructed, destroy the other Party’s Confidential Information in its possession or control other than in automatic computer backups. A Party is not required to destroy or return any Confidential Information that must be retained for regulatory, legal, or audit purposes or for compliance with its document retention policies and has no obligation to destroy electronic copies made as part of its routine archival or backup procedures. All provisions that by their nature should survive termination will do so (including, for example, payment obligations, indemnification and defense obligations, and duties of confidentiality).
Accrued rights. Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
No partnership or agency between the parties. Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
No agency on behalf of third party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Either Party may assign the Agreement without the other Party’s consent to an entity that acquires all or substantially all of its assets or that is an Affiliate of the assigning Party, provided that (i) the assigning Party must provide notice to the other Party of the assignment, (ii) the assignee must agree in writing to be bound by the Agreement, and (iii) the non-assigning Party may prohibit assignment to a competitor. Except as provided above, neither Party may assign its rights or obligations under the Agreement without the other Party’s prior written consent, such consent not to be unreasonably withheld or delayed, and any attempt to so assign the Agreement will be null and void. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.
Deemed modification or deletion. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
Obligation to negotiate compliance amendments. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Entire agreement. These General Partner Terms, together with the Partner Agreement, and all other terms incorporated by reference, constitutes the entire agreement and understanding between the Parties. Except as provided in Section 4 (Modification) of these General Partner Terms, the Agreement may not be modified or amended except by a written instrument executed by both Parties. Partner’s standard terms of purchase (including purchase order terms), if any, are inapplicable.
Form of notices. Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or by commercial courier or email.
Deemed receipt of notices. A notice or other communication shall be deemed to have been received:
if delivered personally, when left at the address referred to in clause 5;
if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed;
or, if sent by email, one Business Day after transmission.
Exclusions from notice provisions. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall not include email.
This Agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania, and the courts of the Commonwealth of Pennsylvania shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.
Each party irrevocably agrees that the courts of the Commonwealth of Pennsylvania shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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