This Corporate Partner Agreement (“Agreement”) between KLDiscovery Ontrack GmbH with its registered office at Hanns-Klemm-Straße 5, 71034 Böblingen, Germany, registered in the Stuttgart Commercial Register under HRB 244142 (“Ontrack”) and the legal entity whose details are specified in the registration of Ontrack’s Corporate Partner Program (“Partner”) governs purchases by the Corporate Partner of Ontrack Services and Products as specified below.
1. Definitions
“Brand” means the registered and unregistered trademarks for ‘Ontrack’ and other brand and product name(s) made available to Partner in connection with the Services and Products governed under this Agreement;
“Confidential Information” shall have the meaning given to it in Clause 9 below;
“Intellectual Property Rights” means copyright, patents, trademarks, design rights, trade secrets, rights in Confidential Information, domain names and all similar rights whether registered or not, including applications, renewals or future rights;
“Partner” is any organisation registered under a Corporate Partner ID with Ontrack and who purchases Products and Services
The ‘Partner ID’ is a unique ID that is communicated to the Corporate Partner after the registration and is required to identify the Corporate Partner during the process.
“Services and Products” are those delivered by Ontrack to the Partner
“Service or Product Terms and Conditions“ means the specific terms and conditions governing the provision of the respective Ontrack Service or Product.
2. Direct Purchase of Services or Products
2.1 In the event that Partner wishes to purchase Services or Products directly from Ontrack, Partner may be eligible for specific benefit(s). The specific benefit(s), including specific conditions of the benefit(s), if applicable, will be specified in a separate notification. Partner shall identify itself as a Partner during the order process using their unique Partner ID so that the Partner benefit(s) can be applied. Orders for Services or Products shall be placed through the standard Ontrack order process for each Product or Service and for each order, where Ontrack’s specific Service or Product Terms and Conditions shall apply.
3. Audit
3.1 Ontrack may, at its own expense, during normal business hours and upon reasonable prior notice to Partner, no more than once per calendar year, audit or have an independent auditor selected by Ontrack, the compliance of this agreement. The individual Service or Product Terms and Conditions may specify or broaden the right to audit.
4. Use of the Brand
4.1 Ontrack grants to the Partner a non-exclusive, non-transferable, revocable, and limited license during the term of this Agreement to use the Brand for the purpose of making Referrals to Ontrack and publish Ontrack’s Brand (logo) on the Partner’s website and social media sites to state the use of Ontrack as a Referral Partner or service provider of Partner. No other rights to use the Brand are permitted.
4.2. Any use of the Brand shall be in full adherence to our Branding Guidelines available at https://www.kldiscovery.com/brand-guidelines#iconography. Ontrack reserves the right to audit the use of the Brand according to Ontrack’s brand guidelines.
5. Use of Partner Logo
5.1 Ontrack may, but has no obligation to, use Partners name and logo for promotional activities relating to the Partner cooperation only upon prior written consent and approval of the Partner. In case of approval, the Partner grants Ontrack during the existence of the Partner Agreement a non-exclusive license for use of Partners name and logo on Ontrack’s website and in marketing materials. Ontrack is required to immediately cease using the Partner name and logos upon receipt of written notification from the Partner.
6. Confidentiality
6.1 Both Ontrack and Partner agree keep confidential all information, data or materials relating to each other, including Customer details, products and services, technology, business plans, prices, financial information, marketing plans, and other trade secret or proprietary information (“Confidential Information”). Ontrack and Partner agree to (i) use such Confidential Information only for the purposes of carrying out its obligations pursuant to this Agreement; (ii) to use the same methods and degree of care to prevent disclosure of such Confidential Information as it uses to prevent disclosure of its own proprietary and Confidential Information but in no event less than reasonable care; and (iii) to disclose Confidential Information to its employees and affiliates only on a need-to-know basis.
6.2 Confidentiality obligations shall not apply to any information which (i) enters the public domain through no fault of Receiving Party; (ii) which was known to Receiving Party prior to receipt from Disclosing Party; (iii) which is disclosed to Receiving Party by a third party (other than employees or agents of either party) which in making such information available to Receiving Party is not in violation of any confidentiality obligation to the disclosing party; (iv) which is independently developed by Receiving Party without recourse to Confidential Information; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
7. Data Protection
7.1 In respect of the data provided to Ontrack pursuant to an order, Partner confirms that it has either: (i) obtained valid consent from the data subject, or (ii) an alternative lawful basis, in order to process and transfer to Ontrack any personal data in accordance with Data Protection Laws. Ontrack shall only use such data to contact and/or interact with the Partner with a view to providing the requested Services.
7.2 In the event that personal details of other individuals are provided to Ontrack to enable Ontrack to provide Services or Products to the Partner, Partner confirms that it has the appropriate legal basis to provide their personal data to Ontrack for this purpose. Partner acknowledges that Ontrack shall directly confirm to such individuals within a reasonable time of receipt that Ontrack received their contact details from the Partner.
7.3 Following an order, Ontrack shall contract directly with the Partner for the Services and/or Products and the use of data shall be subject to the Ontrack’s Service or Product Terms and Conditions and Data Processing Agreement (if applicable).
7.4 All processing of personal data, which Ontrack processes as a data controller, shall be undertaken pursuant to the Ontrack’s Privacy Policy (https://www.ontrack.com/de-de/legal/datenschutzrichtlinie).
8. Proprietary Rights
8.1 The Partner acknowledges and agrees that Ontrack and/or its licensors own all Intellectual Property Rights in (i) any software, hardware, documentation or other materials used to perform the Services; (ii) any software licenses and (ii) the Brand.
9. Limitation of Liability
9.1 Save as permitted by applicable law, in no event will either party (including its officers, employees, affiliates and agents) be liable for consequential, special, or indirect, damages or expenses relating to this Agreement, even if a party has been advised of the possibility of such damages.
9.2 The total aggregate liability of either party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with this Agreement shall be limited to: (i) in respect of Intellectual Property Rights, data protection or confidentiality, a total of EUR 100,000 (one hundred thousand); or (ii) in respect of any other claim, the total of EUR 1,000 (one thousand). For the avoidance of doubt any liability of the Parties in connection with the provision of the specific Service or Product shall be specified the respective Service or Product Terms and Conditions.
10. Term and Termination
10.1 This Agreement may be terminated at any time. For the avoidance of doubt, this shall not affect the Parties' rights in relation to clauses: 6, 7, 8, 9 and 12 for Services already ongoing prior to termination.
10.2 In the case of 10.1, Ontrack will continue to: (ii) honour the Direct Purchase benefits until any ongoing Services are completed. Notwithstanding the above, Ontrack may refuse to fulfil the obligation in the event of: (i) default by Partner of any term of this Agreement; and/or (ii) fraud, suspicion of fraud or other malicious conduct by Partner.
10.3 Ontrack may terminate this Agreement if, by performing the Contract, we may breach applicable export and sanctions laws relating to dealings with certain companies and individuals set by the European Commission or other national authorities, including the United States. Partner agrees to provide, upon Ontrack’s request, proof of identity for the purpose of verifying the applicability of applicable export and sanctions law.
11. General
11.1 If any provision of this Agreement is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of the Agreement shall remain in full force and effect.
11.2 Nothing in this Agreement shall be construed as creating a partnership, joint venture, or agency relationship between the Partner and Ontrack.
11.3 This Agreement constitutes the entire agreement between the Partner and Ontrack in relation to this subject matter supersedes any prior oral or written agreements.
11.4 Ontrack may amend this Agreement at any time at its sole discretion by giving 30 days written notice to Partner. Please download the Agreement and file it for your records.
11.5 Ontrack shall not be liable for failure to fulfil its obligations under this Agreement due to causes beyond its reasonable control. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
12. Governing Law
12.1 This Agreement shall be governed by and construed in accordance with German law. All disputes arising in connection with this agreement shall be subject to the exclusive jurisdiction of the German courts.
13. Authorization
13.1 By agreeing to this Agreement, you confirm that you are an authorized representative of the Partner and are legally capable of entering into binding contracts as well as fully authorized and empowered to enter into the Partner Agreement.
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