Authorised Partner Agreement

This Authorised Partner Agreement (“Agreement”) between KLDiscovery Ontrack B.V., with its registered office at De Brand 22, 3823 LJ Amersfoort, the Netherlands (KvK 56256655) (“Ontrack”) and the legal entity whose details are specified in the registration of Ontrack’s Partner Program (“Partner”) governs referrals and purchases by the 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;

“Customer” means a customer of the Partner who requires Services and Products delivered by Ontrack as specified in this Agreement;

“Customer Agreement” has the meaning set out in clause 2.1;

“Customer Data” means all data and information, including personal data, provided to Ontrack that Partner has received from a Customer;

“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 individual or organisation registered under a Partner ID with Ontrack and referring Customers or submitting orders on behalf of Customers to Ontrack or purchasing Products and Services for themselves.  

‘The ‘Partner ID’ is a unique ID that is communicated to the Partner after the registration and is required to identify the Partner during the Referral or Resale process.

"Referral” means a direct introduction of a Customer to Ontrack, whereas the customer is not already in Ontrack’s customer data base, leading to a confirmed Order of Services or Products by that Customer.

“Referral Fees” has the meaning set out in clause 5.1;

“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. Referrals

2.1 To qualify for the payment of a Referral Fee, Partner shall provide a direct introduction of a Customer to Ontrack for Services or Products leading to a confirmed order by the Customer (“Customer Agreement”) for the specific Service or Product the Referral was made for. A Referral is tracked by either an RFQ from the Partner website or sales channel, a written notice from Partner referring to a specific Customer and/or Customer informing Ontrack that Customer was referred by the Partner. The Partner shall keep a record of all Customers it refers to Ontrack and shall provide a copy of this record to Ontrack on request. In the event of any dispute of any Referral and whether or not made by the Partner, Ontrack’s decision will be final. In the event that another Partner of Ontrack refers the same Customer, Ontrack shall pay any Referral Fee to the first Referral of that Customer recorded in Ontrack’s records.

2.2 Where the Partner refers a Customer with whom Ontrack already has an existing relationship (which for the avoidance of doubt means the customer to already exist in Ontrack’s customer data base), Ontrack shall notify the Partner of the existence of the relationship within seven (7) days of the Referral. Where Ontrack provides such notification pursuant to this clause 2.2, the Partner shall not be entitled to receive any Referral Fees in respect of that Customer.

2.3 The Partner agrees to: (i) conduct business in a manner that reflects favourably at all times on the good name, goodwill and reputation of Ontrack and the Services or Products it offers; and (ii) make no false or misleading representation with respect to Ontrack or the Services and Products.

3. Direct Purchase of Services or Products

3.1 In the event that Partner wishes to purchase Services or Products directly from Ontrack, Partner shall be eligible for a direct purchase discount or other benefits depending on the specification in the separate notice. The specific percentage or benefit 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 discount or benefit can be applied. Orders for Services or Products shall be placed through the standard Ontrack order process for each Product or Service, where Ontrack’s specific Service or Product Terms and Conditions shall apply.

4. Reselling of Services or Products (including Software licenses)

4.1 In the event that the Partner wishes to purchase services directly from Ontrack on behalf of Partner’s Customer, Partner shall be eligible for a reselling discount or other benefits. The specific percentage or benefit 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 discount can be applied.

4.2 Orders for Services or Products shall be placed through the standard Ontrack order process for each Product or Service, where Ontrack’s specific Service or Product Terms and Conditions shall apply. Ontrack’s contractual relationship is only with the Partner. The Partner maintains contractual documentation with the Customer and functions as Customers’ main point of contact.

4.3 Partner assures to be transparent about the use of Ontrack as service provider for Partner’s resold Services.

4.4 Partner ensures that its contractual documentation with the Customer includes relevant clauses for each Product or Service. Partner is hence obligated to incorporate specific terms into its own customer agreement. The terms to be included may be specified further for each Service or Product.

4.5 Reselling of Ontrack Software is only allowed where Partner is explicitly authorized to act as Reseller for the specified Product. The specific Software License Agreement or Purchase Agreement state whether the product or license may be resold.

4.6 The clauses for “Direct Purchase of Services and Products” and its purchase process and fees apply.

5. Fees

5.1 In consideration of receiving the Referral Services, Ontrack shall pay to the Partner a percentage of the fees received by Ontrack pursuant to each Customer Agreement (“Referral Fees”). The specific percentage will be specified in a separate notification. Referral Fees shall be calculated on the total fees received in respect of each Customer Agreement excluding any taxes charged on Ontrack’s services by applicable law, hard-drive costs, insurance, shipping costs, credit card processing fees, refunds and expenses for parts, suppliers, disks/media and/or off-the-shelf software used to complete the Data Recovery Services pursuant to a Customer Agreement.

5.2 Ontrack shall make payment to the Partner of any Referral Fees within 30 days of the end of each calendar quarter (calendar year commencing January 1) provided that Ontrack has collected in full all fees relating to the Customer Agreement. Ontrack shall report to Partner within 10 (ten) days of the end of the calendar quarter of the amounts due to Partner for that calendar quarter, whereupon Partner shall submit an invoice to Ontrack for the specified amount. Ontrack shall have no obligation to make any payment of Referral Fees until an invoice from Partner has been received.    

5.3 In consideration of Direct Purchase and Reselling, Ontrack shall give the Partner a discount of the service fee or another benefit. The specific discount or benefit will be specified in a separate notification. In case of a discount, the discount will be applied on the total fees received in respect of each Purchase Agreement excluding any taxes charged on Ontrack’s services by applicable law or any other additional costs for processing, insurance or hardware.

The discount will be specified on the order documentation during a direct purchase of Products or Services by Partner.

6. Audit

6.1 Partner shall maintain accurate records necessary to verify compliance with the provisions for Referring or Reselling Ontrack Products or Services for a minimum of three (3) years. A different time frame may be specified within the specific Service or Product Terms and Conditions.

6.2 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.

7. Use of the Brand

7.1 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.

7.2. 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.

8. Use of Partner Logo

8.1 Ontrack may, but has no obligation to, use Partners name and logo for promotional activities relating to the Partner cooperation. 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.

9. Confidentiality

9.1 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.

9.2 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.

10. Data Protection

10.1 In respect of Customer Data provided to Ontrack pursuant to a Referral, Partner confirms that it has either: (i) obtained valid consent from its Customers, or (ii) an alternative lawful basis, in order to process and transfer to Ontrack any personal data contained within the Customer Data in accordance with Data Protection Laws. Ontrack shall only use such Customer Data to contact and/or interact with the Customer with a view to providing the requested Services.

10.2 Following any Referral leading to an order for Services, Ontrack shall contract directly with the Customer for the Services and the use of Customer Data shall be subject to the Ontrack’s Service or Product Terms and Conditions and Data Processing Agreement (if applicable).

10.3 All processing of personal data by Ontrack shall be undertaken pursuant to the Ontrack’s Privacy Policy (https://www.ontrack.com/nl-be/legal/privacy-policy).

10.4 In case of a Direct Purchase or Reselling of Products or Services, Partner confirms that it has received explicit consent from all Customers whose personal data Partner has provided to Ontrack to enable Ontrack to deliver the Services and Products. This includes consent to document, support and to generally communicate with Customer in the provision of the Service. It may be possible that Ontrack delivers Services and Products, in whole or in part directly to the Customer.

10.5 Where the Partner is acting as a Reseller and Ontrack is processing Personal Data as a sub-processor of the Partner in the course of providing the Service or Product, the Reseller Data Processing Agreement ("Reseller DPA") linked under https://www.ontrack.com/nl-be/legal/reseller-dpa shall apply to the relevant Service or Product Terms and Conditions. If the Service or Product Terms and Conditions contain a different DPA, the Reseller DPA shall prevail and the other DPA shall have no validity.

11. Proprietary Rights

11.1 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.

12. Limitation of Liability

12.1 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.

12.2 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 the performance or contemplated performance of 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, 2 (two) times the total Referral Fees paid by Ontrack in the twelve (12) month period immediately preceding the date on which the claim arose.

13. Terms and Termination

13.1 This Agreement may be terminated at any time. For the avoidance of doubt, this shall not affect the Parties' rights in relation to clauses: 5, 9, 10, 11, 12 and 14 for Services already ongoing or referrals made prior to termination.

13.2 In the case of 13.1, Ontrack will continue to: (i) pay all Referral Fees to the Partner; and (ii) honour the Direct Order Discount until any ongoing Services or Referrals are completed. Notwithstanding the above, Ontrack may refuse to fulfil either 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.

13.3 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.

14. General

14.1 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.

14.2 Nothing in this Agreement shall be construed as creating a partnership, joint venture, or agency relationship between the Partner and Ontrack or and any of the Customers.  

14.3 This Agreement constitutes the entire agreement between the Partner and Ontrack in relation to this subject matter supersedes any prior oral or written agreements.

14.4 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.

14.5 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.

15. Governing Law

15.1 This Agreement shall be governed by and interpreted in accordance with laws of the Netherlands, and any dispute arising in connection with it is subject to the exclusive jurisdiction of the courts of the Netherlands.  

16. Authorization

16.1 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, empowered and authorized to enter into the Partner Agreement.