itopia Legal Policy Center

These Partner General Terms and Conditions, along with the Partner Letter of Agreement and the Partner Program Guide (each hereby incorporated into the Agreement by this reference, and together the “Agreement”) comprise the full and complete agreement between the parties on the subject matter.  Any prior agreements, communications or references to the subject matter are hereby replaced in full by this Agreement.

1. DEFINITIONS.

1.1 “Confidential Information” means any material or information disclosed by one party to the other party relating to the research, development, products, product plans, services, clients, client lists, markets, software, developments, inventions, processes, formulas, technologies, designs, drawings, marketing or finances of the disclosing party or a third party to which the disclosing party owes a duty of confidentiality, or other business information or trade secrets, in each case marked as “proprietary” or “confidential,” or that the receiving party otherwise should reasonably understand to be the proprietary or confidential information of the disclosing Party or such third party. The itopia Products and the terms of this Agreement, including, without limitation, all incentive payments, the payment schedule, and information relating to payments due under this Agreement, shall be deemed Confidential Information. 

1.2 “Deal Registration Acceptance Date” means the date on which the Deal Registration Form is executed by an appropriate itopia officer. 

1.3 “Deal Registration Form” or “Blacksheet” means the electronic or paper-based template, as determined by Itopia, which Partner completes and submits to itopia for each proposed company or entity to which Partner wishes to sell itopia Products (each a “Deal”).  The Blacksheet may be updated from time to time by Itopia.

1.4 “Documentation” means itopia’s standard user documentation (including electronic documentation) generally made available to licensees of the itopia Products and itopia’s training documentation made available to Partner, and may also include sales literature and marketing documentation. 

1.5 “itopia Marks” means the marks “itopia” and any other trademark, service mark, logo design or other designation used by itopia, or provided to Partner by itopia for purposes of enabling Partner to perform its obligations under this Agreement, during the Term of this Agreement. 

1.6 “itopia Products” means the products and services that itopia makes available from time-to-time under this Agreement.  For the sake of this Agreement, itopia professional services, including but not limited to, implementation and customization, are not itopia Products and therefore not eligible for Partner Incentive Payment(s).  Free trials or pilots are not eligible for Partner Incentive Payment(s).

1.7 “Net Product Revenue” means the amounts received from the sale of the itopia Products to a referred Subscriber of a Registered Deal pursuant to an executed Terms of Service by the applicable Subscriber (which may include license fees, monthly subscription fees, and/or monthly transaction fees), less (i) taxes, (ii) returns, (iii) refunds, and (iv) any third-party fees. Both parties must mutually agree in writing upon deduction of any other amounts. Hosting fees or other service fees paid by applicable Subscriber to Google are excluded. Costs associated with the marketing of the itopia Products are not deductible. 

1.8 “Partner Incentive Payment” means the incentive payment (commission) paid in connection with the successful sale of the itopia Products to a Subscriber of a Registered Deal, which incentive payment will be set forth and payable per this Agreement and the Partner Program Guide. 

1.9 “Partner Letter of Agreement” means the letter executed by itopia and Partner that identifies the parties to the Agreement, along with other material parameters.  The Agreement is in full force and effect upon the signature of the duly appointed representative of each itopia and Partner.

1.10 “Partner Program Guide” means the latest version of the document titled Partner Program Guide, which may be found here and, by this reference, incorporated into this Agreement.  The Partner Program Guide may be updated from time to time by Itopia.

1.11 “Promotional Materials” has the meaning given to it in Section 5.2 below. 

1.12 “Registered Deal” means a company or entity set forth on a Deal Registration Form submitted by Partner that has been reviewed, accepted and approved by itopia. 

1.13 “Terms of Service” means the contract in the form, and containing the terms and conditions (including price and payment terms), established by itopia from time to time for the sale and use of the itopia Products by Subscribers. Terms of Services may be electronic or paper-based, as determined by itopia. The latest version of the general Terms of Service may be found here.

1.14 “Subscriber” means a company or entity licensed to use the itopia Products for its own use and not for resale in accordance with an executed Terms of Service between itopia and Subscriber.  For the purposes of this Agreement, Subscribers are end-user customers of itopia Products, who’s source of their subscription is from a Registered Deal.

1.15 “Term” means, collectively, the Initial Term and all Renewal Terms, if any (as those terms are defined in Section 6.1). 

2. APPOINTMENT. 

2.1 Appointment as Partner. Subject to the terms and conditions of this Agreement and Partner’s fulfillment of all of its obligations under this Agreement, itopia hereby grants to Partner a limited, nonexclusive, non-transferable (except as provided in Section 10.4), non-sublicensable right and license during the Term to (a) market, display, demonstrate, and refer the itopia Products to Subscribers; and (b) use and make a reasonable number of copies of itopia Documentation for internal use and distribution to Subscribers. 

2.2 Deal Registration. Within three (3) business days of receipt, itopia, at its sole discretion, shall approve or reject Partner’s submission of the Deal Registration Form, which approval shall not be unreasonably withheld. An approved submission becomes a Registered Deal pursuant to this Agreement.  If itopia does not respond to the Deal Registration Form within three business (3) days, the Deal Registration Form will be deemed rejected. Additional terms and conditions may be found in the Partner Program Guide. 

2.3 Responsibilities. Partner shall: 

(a) Use its best efforts to promote the sale of itopia Products; 

(b) Market and reasonably demonstrate the itopia Products on behalf of itopia in accordance with the Partner Program Guide; 

(c) Maintain, at its expense, an adequate place or places of business (including remote capabilities) and sufficiently trained and qualified personnel (i) for presentation of the itopia Products to Subscribers and prospective Subscribers for the purpose of promoting sales of itopia Products, (ii) for training Subscribers in the use of itopia Products (level of training to be agreed between itopia and Partner), and (iii) to otherwise meet its obligations hereunder;

(d) Not engage in any unethical or deceptive business practices that would diminish the goodwill and reputation of itopia or the itopia Products; 

(e) Use the Deal Registration Form to register and request approval of all prospective lead opportunities; 

(f) Pay all expenses incurred by Partner in the performance of its duties under this Agreement; and 

(g) Comply with all statutes, laws, ordinances, rules, regulations and any other governmental authority applicable to it in the performance of its obligations under this Agreement in connection with the advertising, promotion, marketing, and sale of the itopia Products. 

2.4 Non-itopia Services. Partner is authorized to offer directly to Subscribers, independent of its functions as a Partner under this Agreement, appropriate extended, non-itopia services in support of the itopia Products. Such services may include, without limitation: 

(a) Training of Subscriber’s personnel on the use of itopia Products; 

(b) Business and consulting support services to Subscribers with respect to the itopia Products and value delivery consulting services; and 

(c) The terms, conditions and charges for such additional services shall be established by Partner with Subscribers. Partner shall inform each Subscriber that: (i) itopia’s obligations are limited to those contained in the Terms of Service, (ii) that all services of Partner are offered exclusively by Partner, and (iii) Partner is solely responsible for all such ancillary services. 

2.5 Limits of Authority. Partner shall not, without prior written approval from an authorized representative of itopia, take any of the following actions: 

(a) Waive, alter, or change any provision of any terms and conditions (including warranty) for the itopia Products and Documentation related to the itopia Products; 

(b) Modify or extend the amount of time for the payment of any charge or fee required for the purchase of itopia Products; 

(c) Modify, add or alter any provision of the Terms of Service; 

(d) Endorse, cash checks, drafts, or money orders payable to itopia or others for the itopia Products; 

(e) Commit to any commercial terms regarding the sale or delivery of itopia Products to Subscribers; or 

(f) Sell or promise to deliver any itopia Products and services other than those subject to this Agreement, without the prior written consent of itopia. 

2.6 Marketing Support. itopia shall provide Partner, at no cost, reasonable content and marketing collateral in order to support Partner efforts under this Agreement. This support may include product descriptions and promotional documents, product specifications, sample statements of work or deliverables, sales literature, and scripts as applicable. itopia will also engage in reasonable training of Partner personnel, including telephone support during sales calls. 

2.7 Reservation. itopia reserves the right and option to discontinue offering the itopia Products and to change and modify the itopia Products as itopia sees fit at any time. Itopia will provide Partners with 90 days advance notice of discontinued or significantly modified itopia Products and a commercially reasonable transition path to alternate itopia Products if such reasonable transition path exists.

2.8 Restrictions.  Partner acknowledges that the itopia Products contain Confidential Information of itopia, and agrees that it shall not, nor shall any third-party solicited or otherwise engaged by Partner, disassemble, decompile or otherwise attempt to reverse engineer the itopia Products in whole or in part, except to the extent expressly permitted under applicable law notwithstanding such prohibition. Partner shall have no rights with respect to the itopia Products or Documentation except as expressly set forth herein, and agrees not to copy or translate the itopia Products or Documentation except as provided in Section 2.1.

3. COMPENSATION. 

3.1 Incentive Payment. Partner Incentive Payment(s) shall be paid during the Term of this Agreement. The Partner Incentive Payment shall be based upon Net Product Revenue and determined as set forth in the Partner Program Guide. 

3.2 Payment. All Incentive Payments under this Agreement shall be paid quarterly within thirty (30) days after the collection of Net Product Revenue for the respective calendar quarter and in accordance to the terms of the Partner Program Guide.  Incentive Payment(s) shall be paid by wire transfer unless otherwise arranged by mutual agreement.  Partner to provide banking information (sufficient to facilitate payments) to itopia finance department at billing@itopia.com within ten (10) days of the Effective Date. Any payments between parties not defined in the Partner Program Guide shall be due Net 30 days from the date of invoice.  All payments under this Agreement shall be in United States currency. 

3.3 Audit. During the Term and for one (1) year thereafter, upon advance notice of no less than thirty (30) days, and no more than once per calendar year, itopia or its designated representative (provided that the representative is not a competitor of Partner) shall have access during normal business hours to all pertinent books and records of Partner relating to Partner’s obligations under this Agreement solely for the purpose of verifying compliance with the terms of this Agreement, including verification that all Incentive Payments have been properly earned, credited and paid.

3.4 Taxes. Each of the parties is responsible for the payment of all taxes that may be levied or assessed upon it in connection with this Agreement. Notwithstanding the above, unless a party provides the other with a certificate of exemption from the applicable taxing authorities, the paying party will deduct from all payments to other party hereunder all applicable withholding taxes. If a party is required to withhold taxes, that party agrees to provide other party with written evidence of the withholding. 

3.5 No Partner Incentive Payment Payable. 

(a) itopia has no obligation to pay Partner Incentive Payment(s) on any of the following: (i) products or services other than the itopia Products; (ii) terminated subscriptions; (iii) lapsed or suspended subscriptions; (iv) an unapproved, unregistered or improperly Registered Deal (see Sections 1.12 and 2.2); or (v) Subscriber signings, meaning Subscriber’s execution of a Terms of Service, after this Agreement expires or terminates for any reason. 

(b) No Partner Incentive Payment will be payable on any itopia Products subscription or service for which itopia does not receive good funds as payment.  Partner acknowledges that itopia may determine whether a new Subscriber is a referred Subscriber based solely on Partner properly submitting and itopia approving a Deal Registration Form, and Partner will not receive Partner Incentive Payment where it fails to register and obtain itopia approval for a referred Subscriber, or itopia is otherwise unable to definitively determine the Partner sourced, and was responsible for, the sale. If there is a question as to whether a Subscriber qualifies as a referred Subscriber, itopia shall determine the matter in good faith, as itopia determines to be equitable. itopia’s decision will be final and controlling. 

4. PROPRIETARY RIGHTS AND CONFIDENTIALITY. 

4.1 Ownership. Partner acknowledges that, as between the parties, itopia owns the itopia Products. All right, title and interest in and to the itopia Products, including without limitation, all copyrights, trade secrets and other intellectual property rights pertaining thereto will remain vested in itopia. Partner shall not, and shall not solicit others to, modify, reverse engineer, decompile, disassemble, distribute, or transfer the itopia Products. itopia reserves all rights not expressly granted to Partner hereunder. There are no implied rights. Partner will not alter, remove, modify or suppress any confidentiality legends or proprietary notices placed on or contained within the itopia Products. 

4.2 Confidentiality. Each party agrees to maintain in confidence all Confidential Information. Each party, as receiving party, agrees that it shall not use the discloser’s Confidential Information other than as necessary to perform this Agreement or exercise its rights hereunder, and each party further agrees that it shall not disclose or make available the disclosing party’s Confidential Information to any person or entity, except as a necessary part of performing its obligations hereunder, and shall take all reasonable steps to prevent unauthorized disclosure or use of the disclosing party’s Confidential Information, and to prevent it from falling into the public domain or into the possession of unauthorized persons. The receiving party shall not disclose Confidential Information of the disclosing party to any person or entity other than its employees and consultants who need access to such Confidential Information in order to perform obligations under this Agreement and who have entered into written confidentiality agreements with the receiving party with obligations no less stringent than the terms of this Agreement. The receiving party shall promptly and without undue delay give notice to the disclosing party of any unauthorized use or disclosure of disclosing party’s Confidential Information. The disclosing party agrees to assist the other party in remedying the unauthorized use or disclosure of its Confidential Information. 

4.3 Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto; or (v) is independently developed by the receiving party without reference to, or use of, the Confidential Information of the disclosing party, which independent development the receiving party shall have the burden of proving. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides at least ten (10) business days’ prior written notice of any subpoena, order, or the like to the other party so that the party has the opportunity to obtain a protective order or otherwise oppose the disclosure or seek protective treatment. 

4.4 Permitted Disclosures. A party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by persons and provided that the disclosures are made in confidence, (b) the party’s outside accounting firm, or (c) the party’s outside legal counsel; provided such discloses agree to keep the information confidential in accordance with the terms of this Agreement. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. A party may also disclose this Agreement under seal in any litigation concerning this Agreement. 

4.5 Injunctive Relief. Monetary damages may not be an adequate remedy for breach of the obligations set forth herein. In addition to all other remedies, the non-breaching party will have the right to apply to a court of competent jurisdiction for a temporary restraining order, preliminary injunction or other equitable relief, without the need to post bond or other security. 

5. TRADEMARKS. 

5.1 Grant of License. Subject to the terms and conditions set forth in this Agreement and Partner’s fulfillment of all of its obligations under this Agreement, itopia hereby grants to Partner a personal, non-exclusive, non-transferable license, to use the itopia Marks to market, advertise, and sell the itopia Products. 

5.2 Advertising and Promotional Materials. All advertising, promotional materials, displays, and presentations (including all Web pages, packaging, and displays) that include or refer to any itopia Marks (collectively the “Promotional Materials”) are subject to itopia’s prior written approval. Partner shall submit a pre-production sample of any proposed Promotional Materials bearing the itopia Marks to itopia for its written approval prior to Partner’s commercial use. Upon itopia’s written approval of any Promotional Materials, no further approval is required from itopia for Partner’s use of the same Promotional Materials for the purposes defined in the Marketing Collateral Approval Form.

5.3 itopia Marks. Partner acknowledges that itopia is and will remain the owner of all right, title, and interest in and to each of the itopia Marks in any form or embodiment thereof, and is also the owner of all goodwill associated with the itopia Marks, and all goodwill generated by those sales shall inure exclusively to the benefit of itopia. 

5.4 Partner’s Marks. itopia acknowledges that Partner is and will remain the owner of all right, title, and interest in and to each of the Partner Marks in any form or embodiment thereof, and is also the owner of all goodwill associated with the Partner Marks.  Partner hereby grants to itopia a personal, non-exclusive, non-transferable license, to use the Partner Marks on promotional materials, advertisements and on its website during the Term of this Agreement for the purpose of fulfilling its obligations under this Agreement. For purposes of this Section, “Partner Marks” are those specifically provided to itopia by Partner for use in marketing of Partner relationship. 

6. TERM AND TERMINATION. 

6.1 Term. The initial term of this Agreement (“Initial Term”) will commence on the Effective Date and continue for a period of one (1) year thereafter. Following the Initial Term, this Agreement will automatically renew for successive one (1) year terms (each, a “Renewal Term”), unless either party notifies the other, at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term, as the case may be, of the notifying party’s election not to renew this Agreement. 

6.2 Material Breach. Either party may terminate this Agreement on or after the thirtieth (30th) day after the party gives the other party written notice of a material breach by the other party of any obligation hereunder, unless such breach is cured within thirty (30) days following the breaching party’s receipt of the written notice. Additionally, either party may at its option and without notice terminate this Agreement effective immediately if the other party (i) becomes involved in any voluntary or involuntary bankruptcy or other insolvency proceeding, or (ii) ceases to be actively engaged in business or becomes financially incapable of fulfilling its obligations under this Agreement. 

6.3 Immediate Termination. itopia may terminate this Agreement immediately, upon written notice to Partner, if Partner (a) is using the itopia Products for any purpose not expressly permitted by this Agreement, (b) violates any law or regulation, which is applicable to it in the performance of its obligations under this Agreement, or (c) commits any willful or intentional act that could injure itopia. 

6.4 Effect of Termination. Upon any termination of this Agreement, the licenses granted under this Agreement shall terminate, Partner shall cease soliciting new itopia Products Subscribers, shall cease representing the itopia Products, and Partner shall promptly destroy or return to itopia all copies of the itopia materials, including Confidential Information, in its possession or under its control. itopia’s acceptance of any subscription for itopia Products after the expiration or termination of this Agreement will not be construed as a renewal or extension of this Agreement, or as a waiver of the right to terminate or of any other matter or right. itopia shall continue to pay to Partner the Partner Incentive Payment for referred Subscriber subscriptions that are in effect up to the date of termination.  For the avoidance of doubt, Subscriber subscriptions shall be deemed to be in effect if Subscriber and itopia have fully executed a Terms of Service prior to the date of termination of this Agreement.

6.5 Survival. The provisions that by their nature continue and survive shall survive the expiration or termination of this Agreement, including, without limitation, the following Sections: 3.2, 3.3, 4.1, 4.2, 4.3, 4.5, 5.3, 5.4, 6.4 – 6.6, 7.1, 7.2, 8.1, 8.2, 9 and 10.1-10.13. 

6.6 No Compensation. Partner is not entitled to any compensation, damages, or payments in respect to goodwill that has been established or for any damages on account of prospective or anticipated profits, nor is Partner entitled to reimbursement in any amount for any training, advertising, market development, investments, leases, or other costs that is expended by Partner before (or projected to occur after) the termination of this Agreement. Partner hereby waives its rights under applicable laws for that compensation. 

6.7 Notice of Claims. Partner must give written notice to itopia of any claims against itopia arising under or in any way relating to this Agreement or the selling representation created hereby within six (6) months after the effective termination date of this Agreement; the failure by Partner to do so shall be deemed a waiver of those claims. 

7. WARRANTY. 

7.1 General Warranties. Each party hereby represents and warrants to the other that: (a) it has all right, power and authority to execute, deliver and perform this Agreement and to grant the rights and consummate the transactions contemplated hereby; (b) this Agreement has been duly authorized, executed and delivered by such party, constitutes the legal, valid and binding obligation of such party and is enforceable against such party in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency, or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity). 

7.2 No Product Warranties. itopia warrants the itopia Products only to Subscribers who have purchased subscriptions to the itopia Products subject to the terms of the Terms of Service. The scope of those warranties is in the sole discretion of itopia. No warranties are made to Partner in this Agreement with respect to itopia Products. Partner has no right to make any representations or warranties, or otherwise cause any Subscribers or potential Subscribers to believe that any warranty, except as is provided in writing by itopia, is applicable to any itopia Product. 

7.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, EACH PARTY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. itopia does not warrant or guarantee any minimum amount of money Partner will receive under this Agreement, and Partner does not warrant or guarantee any minimum number of new Subscribers itopia will receive under this Agreement. 

8. INDEMNIFICATION. 

8.1 By itopia. itopia will defend any action (or portion thereof) brought against Partner based solely on a third-party claim that an itopia Product infringes a U.S. patent or copyright or misappropriates the proprietary trade secret of any third party. itopia will indemnify Partner against damages awarded against Partner in such actions which are directly attributable to such claim, on condition that Partner is not in breach of this Agreement and that itopia is given prompt written notice of such claim, reasonable assistance from Partner, and sole authority to defend or settle the claim. If an itopia Product becomes, or in itopia’s opinion is likely to become, the subject of a claim of infringement, itopia may, at its option, procure for Partner the right to continue to use the product, replace or modify the product to make it non-infringing, or discontinue sales and marketing of the product if deemed necessary. itopia will have no liability for any claim based on (i) any modification of the itopia Products, except with respect to modifications performed by itopia; or (ii) any use of the itopia Products other than as provided in this Agreement. This Section 8.1 sets forth itopia’s complete liability with respect to infringement of intellectual property rights. 

8.2 By Partner. Partner will indemnify, defend, and hold harmless itopia, its affiliates and their respective officers, directors, shareholders and representatives against all liabilities, obligations, losses, costs, damages and other expenses and attorneys’ fees relating to claims arising from Partner’s own breaches, acts, omissions or misrepresentations, provided itopia gives Partner prompt written notice of such claim, reasonable assistance and authority to defend such claim. 

9. LIMITATION OF LIABILITY. 

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL PARTNER INCENTIVE PAYMENTS PAID BY ITOPIA TO PARTNER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY IN THE CASE OF A PARTY’S BREACH OF ITS INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OR IN THE CASE OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

10. MISCELLANEOUS. 

10.1 Jurisdiction, Choice of Law. The laws of the state of Florida (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of Miami-Dade County, Florida in all controversies arising out of, or relating to, this Agreement. 

10.2 Non-Solicitation of Employees. During the Term of this Agreement, and for a period of one (1) year thereafter, neither party shall directly solicit or induce any of the employees of the other party involved in the performance of this Agreement to terminate their employment. 

10.3 Assignment. Partner may not assign this Agreement or any of its rights or obligations hereunder voluntarily, by operation of law, or otherwise, (including without limitation in connection with a sale of its stock or assets or a merger, consolidation or other change of control involving Partner), without itopia’s prior written consent, which consent shall not be unreasonably withheld. Any attempt to assign this Agreement without such consent shall be void. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns. 

10.4 Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each party remain valid, legal, and enforceable. 

10.5 Notices. A party giving or making any notice, request, demand or other communication (each, a “Notice”) under this Agreement shall give the Notice in writing and use one (1) of the following methods of delivery: personal delivery, registered or certified mail (in each case, return receipt requested and postage prepaid), nationally recognized overnight courier (with all fees prepaid), or confirmed facsimile. Any party giving a Notice shall address the Notice to the receiving party (the “Addressee”) at the address listed on the signature page of this Agreement or to another Addressee or another address as designated by a party in a Notice pursuant to this Section. Except as provided elsewhere in this Agreement, a Notice is effective only if the party giving the Notice has complied with this paragraph and if the Addressee has actually received the Notice. 

10.6 Export Restrictions. Partner shall not export or re-export directly or indirectly (including via remote access) any of the itopia Products provided by itopia to Partner (including any Confidential Information of itopia) to any country for which export or re-export is forbidden or for which a validated license is required under U.S. law. 

10.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. 

10.8 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of such right. 

10.9 Construction. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement, which shall be considered as a whole. 

10.10 Relationship of the Parties. Partner and itopia enter into this Agreement as independent contractors, and neither Partner nor itopia will be or construed to be an agent, joint venture, or employee of the other. 

10.11 Compliance with Laws. Each party agrees to comply with all laws, rules, and regulations in connection with its activities under this Agreement. Partner warrants that in the performance of its obligations under this Agreement, it shall not act in any fashion or take any action which will render itopia liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or itopia in obtaining or retaining business. 

10.12 Force Majeure. Neither party will be liable to the other for any failure of performance under this Agreement due to acts of God; acts of the public enemy; strikes, lockouts, or other industrial disturbances; plagues, pandemics, or other health outbreaks; earthquakes, tidal waves, volcanoes, fires, floods, storms, droughts, or weather conditions; war, riots or terrorist acts; legal interferences; or, without limitation by enumeration, any other cause beyond the reasonable control of a party, on condition that the cause occurs without the fault, negligence or involvement of that party and that the party promptly and diligently takes all action as may be necessary and practicable under the then existing circumstances to remove the cause of failure and resume performance at the earliest reasonable time and gives notice of the circumstance to the other party as soon as practicable. If any event of force majeure continues for more than sixty (60) consecutive days, the party whose performance is not affected by the event of force majeure may terminate this Agreement upon written notice to the other party. 

10.13 Governmental Approval Obligations. Partner shall, at its own expense, obtain and arrange for the maintenance in full force and effect of all governmental approvals, consents, licenses, authorizations, declarations, filings, and registrations as may be necessary or advisable for the performance of all the terms and conditions of this Agreement, including, but not limited to, all approvals which may be required to realize the purpose of this Agreement.

Rev. January 1, 2021