SOLUTION PARTNER Terms and Conditions
The following is the list of terms and conditions that apply to all members of the RxTROSPECT Solution Partner Program.
Effective starting: 07 July 2021
“We”, “Our”, “Us” or related capitalized terms used herein shall refer to RxTROSPECT LLC. Please read these terms and conditions (“Terms”) carefully as they form a contract between You and Us. We reserve the right to amend these Terms from time to time in which case the new terms will supersede the previous versions. These terms and conditions will provide You with all information You will need to know about Our Solution Partner Program.
If You are agreeing to these Terms on behalf of a company, organization or another legal entity (“Entity”), You are representing to Us that You have the authority to bind such Entity and its affiliates to these Terms, in which case the terms, “You,” “Your” or related capitalized terms used herein shall refer to such Entity and its affiliates. If You do not have such authority, or if You do not accept these Terms, You will not be a part of the RxTROSPECT Solution Partner Program.
1. ELIGIBILITY AND APPLICABILITY
You are eligible to be an authorized partner provided You:
are competent to contract under applicable laws.
have fully and correctly disclosed the information in full in the Partner Information Form available at https://www.rxtrospect.com/join-solution-partner
undertake to perform all acts mentioned in the subsequent provisions of this Agreement.
are not an agent / employee / Associate of a competitor service provider, whether in the present or past, unless authorized by Us.
2. TERRITORY
We hereby appoint You on a non-exclusive and non-transferrable basis to provide Our Product(s) in territories as mutually agreed between the parties in writing.
3. PRODUCTS AND PRICING
3.1 Products: You may resell any of Our products mentioned in Annexure A (“Products & Pricing”). With reference to the Partner Levels and corresponding accreditation requirements listed in Annexure B (“Solution Partner Program Brochure”), You shall offer and resell the Products at the list prices mentioned in Annexure A (“Products & Pricing”). We reserve the right, in Our sole discretion, at any time and from time to time, to add new products, modify any or all of the Products and/or retire or discontinue publication, distribution, or sale of any or all of Products without liability of any kind. The availability for discontinued Products will be available for a maximum period of one (1) year after notice of discontinuance. New products, if any, and commission with respect to such new product shall be notified through email and/or updated on Our website. Such new products shall then be deemed to be included in Annexure A and this Agreement shall be fully binding with respect to such new products. We may from time to time require that You demonstrate specific capabilities in order to become and/or remain authorized to provide demonstration and implementation services with relation to certain Products, including but not limited to product knowledge that corresponds to respective Partner Level accreditations listed in Annexure B.
3.2 Use of Products by Customer: The use of the Products resold by You shall be governed by the terms provided at https://www.rxtrospect.com/terms-and-conditions as in effect and as amended from time to time.
3.3 Onboarding and training: As part of onboarding You as a new partner, and during the term of this Agreement, We may send various collaterals about Our Products that You may use to promote Our Products in accordance with these Terms. In order for You to fulfill Your obligations under these Terms as a Solution Partner, We may also, from time to time, conduct various webinars and other training programmes as We deem fit about Our Products.
3.4 No White Labelling: You shall not white-label any of Our Products. All Products shall be branded with “RxTROSPECT” marks and logos. The Products shall in all cases retain any relevant patent, copyright and/or other intellectual property notices as may be determined to be appropriate by Us.
4. COMMISSION & ATTRIBUTION
You shall be entitled to receive a commission of 12.5% (Silver Partner), 25% (Gold Partner), or 30% (Platinum Partner), as listed in Annexure B, on all applicable transaction amounts actually collected by Us for all the Products sold and attributed to You, except where this Agreement is terminated. You shall not be entitled to commission from subsequent or perpetual customer transaction amounts that are collected ninety (90) days after Your attribution. You shall not be entitled to commission after the effective date of termination of this Agreement.
On early termination of annual subscriptions for Products which You have already received commission, You may be debited from future payment of a commission, as applicable, at Our sole discretion.
Commissions and attributions will be reconciled at the end of each calendar quarter using the administrative checklist listed in Annexure B. We shall pay the You the commission for applicable transactions within thirty (30) days after the end of each calendar quarter (“Payment”); provided however that Payment shall not be made until commission due to You is greater than or equal to $2500 (the “Minimum”). If the Minimum is not met, such amounts will roll over to the next calendar quarter(s) until Payment is made. We will include a statement of commission within thirty (30) days after the end of each calendar quarter. You agree to provide written notification of all disputes You may have regarding commission within fifteen (15) days of receipt of the commission report and any dispute for which You do not provide such notification shall be deemed waived by You.
5. PAYMENT TERMS
For every Product sold, We set thirty (30) day payment terms for all customer purchases. Customers may negotiate payment terms, if accepted by Us, We will inform You of changes to these terms. We, at Our sole discretion, may suspend Products for the applicable Customer(s) no earlier than seven (7) calendar days after We are unable to obtain payment.
6. RESPONSIBILITIES OF SOLUTION PARTNER
You shall:
maintain marketing and customer service standards as appropriate to maintain high-quality Product(s) and to reflect favorably on either party’s reputation;
provide Your prospects and/or existing Customers with prompt, courteous, and efficient service;
solely, at Your own cost, employ experienced individuals who are knowledgeable concerning the functions and advantages of the Products and experienced technical persons who are knowledgeable concerning the functions, specifications, and advantages of the Product(s).
You shall not (and shall not authorize any third party to):
modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Products except to the extent that enforcement of the foregoing restriction is prohibited by applicable law;
circumvent any user limits, use or functionality restrictions built into the Product(s);
remove or alter any proprietary notices, labels, or marks from the Product(s) (except to the extent You are so permitted for the purposes of re-branding the Products);
frame or mirror any content forming part of the Product(s); or
access the Product(s) in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Products.
sell the Product(s) to Clients or Customers through other partners;
make the Product(s) available to anyone other than the Customer;
use the Product(s) to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
use the Product(s) to store or transmit malicious code;
interfere with or disrupt the integrity or performance of the Product(s) or third- party data contained therein
attempt to gain unauthorized access to the Product(s) or their related systems or networks
use Our Product(s) in any other manner except for the purpose specifically mentioned herein.
If You breach any of the obligations mentioned in this section, the Agreement shall be terminated in accordance with Section 17.
7. PRODUCT AND PROFESSIONAL SERVICES
7.1 Professional Services: You may, in addition to sale or resale of Products, also provide professional services to Your Clients including consultation, implementation, customizations, training, maintenance and support.
7.2 Product Support and Integration Support Services: You may assist in on-boarding new Customers of the Products as sold by or on behalf of You, including but not limited to setting up Client accounts. You may provide support for the Products as sold by or on behalf of You. We will provide support for escalated issues and will work to resolve such escalated issues, if feasible.
7.3 Product Consulting Services & Custom Fees: You are free to provide consulting services that leverage Our Product(s) to aid Your consulting practice, including delivery of analytics and reporting to Your Clients, and you may collect custom fees from the Client, if applicable, as mutually agreed between the You and Your Client. We shall not be liable for any consulting service delivered by You and the receipt of consulting services shall be governed by terms as specified by You, provided however that it does not deteriorate or bring into disrepute any of Our Products.
8.REFERRAL AND OTHER PROGRAMS
You may participate in referral and/or other programs with Us, if and when available. Notwithstanding anything contained in these Terms, such participation and the corresponding relationship between You and Us shall be governed by the respective agreements signed between the parties and these Terms shall have no bearing on such participation unless otherwise indicated in those agreements.
9. PUBLICITY
You agree to
identify Us as Your partner on Your websites and/or marketing collaterals;
grant Us a royalty-free, worldwide, transferable license to use Your trademarks or logo to identify You as Our Solutions Partner on websites and/or marketing collateral.
secure to Us a royalty-free, worldwide, transferable license to use the trademark or logo of Your Client, to identify Client as Our Customer on the websites and/or marketing collateral.
10. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
10.1. Intellectual Property Rights
You acknowledge and agree that all rights, title and interest in and to all patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”), with respect to the Product(s) and all data compiled by Us, including without limitation, any custom development services (both existing and future services) to the Product(s), shall be the exclusive property of Us.
No Intellectual Property Rights are hereby conveyed to You or Your Clients. You agree to ensure that no action or inaction of You or any third party authorized by You, is detrimental to the Intellectual Property Rights of Us and/or the Products. You shall promptly notify Us of any actual or threatened misappropriation or infringement of Our Intellectual Property Rights that You become aware of.
10.2. Use of Trademarks
You shall not remove from the Products (or documentation), or alter, any of Our trademarks, trade names, service marks, logos (collectively called “Marks”), patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products (or documentation), without the prior written consent of Us. We hereby grant to You a non-exclusive, non-transferable, limited license to use Our trademarks relating to the Products solely in connection with marketing of the Products and/or provision of Service(s) in accordance with these Terms provided however that:
You shall clearly designate that such Marks are owned by Us, and;
You will otherwise comply with Our then-current policies for use of its Marks.
Any use of Our trademarks by You (i) will be in capital letters, (ii) if they are registered in the United States Patent and Trademark Office, will be accompanied by the “®” symbol, (iii) if they are not registered in the United States Patent and Trademark Office, will be accompanied by the “™” symbol, and (iv) will be followed by a common descriptive name for the Products. Your use of Our trademarks will accrue to Our benefit. If You, in the course of performing Your Service(s) hereunder, acquire any goodwill in any of the Marks, all such goodwill will automatically vest with Us and You shall take all such actions or execute any documents necessary to affect such vesting. You also agree not to register any marks identical or similar to the Our Marks.
11. INDEMNITY
11.1. Indemnification by You
You will indemnify and hold Us harmless from and against any and all claims, proceedings, losses, damages, liabilities, fines, penalties, costs and fees (including attorneys’ fees) arising out of
any breach of these Terms by You, violation of any covenants in these Terms, or any acts or omissions by You;
provision, use or failure of any product or service not provided by Us;
infringement or misappropriation of any Intellectual Property Rights or other rights by You;
violation of any law or regulation by the You or Your Affiliates or any of its officers, directors, employees, contractors or agents.
11.2. Indemnification by Us
We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Marks as permitted hereunder, brought by a third party alleging that the Marks infringe a third party’s valid intellectual property (an “IP Claim”). We shall, at Our own expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us for such defense, provided that (a) You promptly notify Us of the threat or notice of such IP Claim; (b) We have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperates with Us in connection therewith.
This is Our sole, exclusive and entire liability to You and constitutes Your sole remedy with respect to an IP Claim brought by reason of Your use of the Marks.
This obligation does not apply to any claim based on: (a) a use of other than the version of the Marks in use currently, if the infringement would have been avoided by use of the current version; (b) modification of the Marks by You; or (c) the combination or use of the Marks with materials not furnished by Us, if such infringement would have been avoided by the use of Our materials, information, documentation and/ or Products alone.
12. DISCLAIMER OF WARRANTIES
WE HEREBY EXPRESSLY EXCLUDE AND DISCLAIM ANY WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU SHALL NOT MAKE ANY REPRESENTATIONS OR WARRANTY FOR THE PRODUCTS AND SERVICES ON BEHALF OF US.
13. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS: (A) OUR AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS, THE PRODUCTS AND ANY SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE AGGREGATE COMMISSION THAT YOU ARE ELIGIBLE FOR UNDER THESE TERMS; (B) NEITHER PARTY SHALL BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, LOSS OF BUSINESS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR LOSS OF PROFIT OR REVENUE,), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (C) WE SHALL NOT BE LIABLE FOR ANY CLAIMS OF THIRD PARTIES RELATING TO THE PRODUCTS OR SERVICES NOT PROVIDED HEREUNDER, AND YOU SHALL DEFEND US FROM, AND INDEMNIFY AND HOLD US HARMLESS AGAINST, ALL SUCH CLAIMS.
THE LIMITATIONS ON EITHER PARTY’S LIABILITY SET FORTH IN CLAUSES “(A)” AND “(C)” OF THIS SECTION SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY OUR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
THE FOREGOING STATES OUR ENTIRE LIABILITY WITH REGARD TO THESE TERMS, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER. THE LIMITATIONS ABOVE AND IN THIS SECTION ARE A FUNDAMENTAL PART OF THE BASIS OF OUR BARGAIN HEREUNDER, AND WE WOULD NOT ENTER INTO THESE TERMS ABSENT SUCH LIMITATIONS.
14. CONFIDENTIALITY AND DATA PRIVACY
14.1 “Confidential Information” means any information disclosed by either party to the other party pursuant to these Terms that is marked “Confidential,” “Proprietary,” or in some similar manner. Each party shall treat as confidential all Confidential Information of the other party and shall not use such Confidential Information except to exercise its rights or perform its obligations under these Terms and shall not disclose such Confidential Information to any third party. This paragraph will not apply to any Confidential Information that is generally known and available, or in the public domain through no fault of the receiver. The parties agree that any breach or threatened breach of the provisions set forth in this clause shall cause irreparable harm to the non-breaching party and shall entitle the non-breaching party to injunctive and equitable relief in addition to any other remedies it may have.
14.2 You acknowledge and agree that (i) We, at Our sole discretion, have the right to audit You for Your performance under these Terms and You shall extend full cooperation during such audits; (ii) any information about Us, Our customers or Our employees, including but not limited to personal data, disclosed by Us to You shall be utilized by You solely for provision of services to Us under this Agreement. A breach of section 14.1 and 14.2 by You shall be deemed a material breach of these Terms and You shall be liable to indemnify Us in accordance with Section 11.1 of this Agreement.
14.3 Any information that We collect about You shall be governed by Our Privacy Notice available at https://www.rxtrospect.com/privacy-policy.
15. TAXES
You shall be responsible for all costs associated with Your performance of these Terms. In addition to any other payments due under these Terms, You shall pay, and indemnify and hold Us harmless from, any sales, use, excise, import or export, value-added or similar tax or duty not based on Our net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof, levied on the delivery of the Products provided hereunder by Us to You or Clients, and from any and all damages, losses, liabilities and expenses (including reasonable legal fees and costs of litigation) arising out of or resulting therefrom.
16. FORCE MAJEURE
Neither party shall be responsible for any failure to fulfil its obligations under these Terms due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars.
17. TERM AND TERMINATION
This Agreement will remain valid until either party notifies the other in writing thirty (30) days prior of its intention to terminate this Agreement. Notwithstanding anything in this Agreement that may be interpreted to the contrary, We may terminate this Agreement without cause and without liability upon sixty (60) days’ prior written notice to Us. However, We may terminate this Agreement with immediate effect for any material breach of the Agreement that is not cured by You within ten (10) days of written notice that specifies the breach.
Upon expiration or termination of this Agreement: (a) You shall cease offering the Product(s) and/or Service(s) (b) You shall pay all the dues/amounts, if any, for Product(s) and/or Service(s) provided by You in accordance with the payment provisions herein.
18. SURVIVAL
Sections 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 22 shall survive any termination of this Agreement with respect to provision of the Service(s) by You. Termination of this Agreement will not affect either party's rights or obligations with respect to Products and/or Service(s) provided by You prior to the Effective date of the termination.
19. GOVERNING LAW AND DISPUTE RESOLUTION
These Terms shall be governed by the laws of the State of Massachusetts without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Massachusetts, for the purpose of resolving any dispute relating to these Terms. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in Boston, Massachusetts before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
20. INDEPENDENT CONTRACTOR
You agree that these Terms do not constitute either party, the agent of the other, or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever. You acknowledge and agree that Your relationship with Us is that of an independent contractor on ‘Principal’ to ‘Principal’ basis, and You will not act in a manner that expresses or implies a relationship other than that of an independent contractor. You agree to comply with all laws and regulations applicable to its business and shall, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of these Terms.
21. NO LIABILITY FOR SOLUTION PARTENR’S DEPENDENCE
You acknowledge and agree that We are not responsible for Your dependence on revenues hereunder, and You agree to release, hold harmless and indemnify Us from any and all claims and liabilities relating to Your revenues, financial forecasts or economic value that may result from any termination by Us of thus Agreement as permitted hereunder.
22. MISCELLANEOUS PROVISIONS
22.1 AMENDMENT OF THIS AGREEMENT: These Terms may be modified, at any time at Our sole discretion by posting a change notice or a new agreement on Our website and by email to You. Modifications may include changes in the scope of available Products, List Price/Commission, payment procedures, etc. If any modification is unacceptable to You, You may terminate this Agreement with 60 days’ prior written notice.
22.2 ASSIGNMENT: You shall not, directly or indirectly assign all or any of Your rights under these Terms without Our prior written consent. These Terms will inure to the benefit of the parties' successors and assigns. Notwithstanding anything to the contrary herein We may assign this Agreement at Our discretion. We may freely assign part or whole of this Agreement.
22.3 MUTUAL OBLIGATIONS: Neither party shall by way of statement, act or omission, discredit or reflect adversely upon the reputation of or the quality of the other party or the products or services provided by the other party.
22.4 NOTICES: All notices to be provided by Us to You under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You while subscribing to the Solution Partner Program; or (ii) electronic mail to the electronic mail address provided by You. Our address for a notice to Us in writing by Courier or US Mail is: RxTROSPECT, LLC., Attn: Managing Members, 4 CHEIFTAIN LANE, NATICK, MA 01760 with a CC to theteam@rxtrospect.com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, 2 (two) business days after being deposited in the mail or with a Courier as permitted above.
22.5 SEVERABILITY AND WAIVER: If any provision in these Terms are held by a court of competent jurisdiction to be unenforceable, such provisions shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non-exercise of any right under or provisions of these Terms does not constitute a waiver of that right or provisions of these Terms.
22.6 ANNEXURES: The Annexures to these Terms form part and parcel of this Agreement between You and Us. It shall not be read separately.
22.7 ENTIRE AGREEMENT: These Terms constitute the entire agreement and supersedes any and all prior agreements between You and US with regard to the subject matter hereof.
23. DEFINITIONS
Affiliate: means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Customer: means any natural or legal person who has subscribed to Our Products for its own use, that may be pursuant to Your sale and/or marketing efforts, made in accordance with this Agreement.
Client: means any natural or legal person who receives your services, whether consulting, training or advisory in nature, supplementary to Your sale and/or marketing efforts of Our Product(s), made in accordance with this Agreement.
Service(s): means marketing and sale of Products or services by reseller, including packaging of Our Products in combination with other software products as an application bundle by a value added reseller. It includes support services, professional services, consulting services, and other miscellaneous services authorized by Us.
Partner Levels: means the classification of Your partnership, each level is identified at Annexure B (“Solution Partner Program Brochure”). These Partner Levels inherit accreditations that are awarded by Us, award of each level is achieved through Your progress in the program. Accreditations are directly correlated to Partner Levels, and each Partner Level is directly aligned to Your earning of commission. Commission entitlement is confirmed using Our attribution checklist, which references evidence of Your sale and/or marketing efforts of Our Product(s), made in accordance with this Agreement.
ANNEXURE A (Products & Pricing)
PRODUCT
RxTROSPECT Annual Subscription
LIST PRICE
For latest pricing on RxTROSPECT Annual Subscription – https://www.rxtrospect.com/pricing
(Password required to view pricing — Partners contact theteam@rxtrospect.com)
ANNEXURE B (Solution Partner Program Brochure)
To download a copy of the RxTROSPECT Solution Partner Program Brochure, visit webpage: https://www.rxtrospect.com/join-solution-partner