Last updated Aug. 18, 2021
This Backendless Partner Program Agreement (“Agreement”) is a contract between Backendless, Inc. (“Backendless”) and the Backendless account holder that elects to join the Backendless Partner Program (“User”). The terms of this Agreement apply to User’s (and its personnel’s) participation in the Backendless Partner Program (“Program”).
By submitting an application to join the Program, accessing the Portal (defined below), or otherwise participating in or accepting any Program benefits, User accepts this Agreement (which includes any terms and policies in or applicable to the Portal). The individual accepting this Agreement is doing so on User’s behalf and such individual represents and warrants he or she is agreeing to these terms on behalf of, and has authority to bind, User. User represents and warrants that it has read and understands this Agreement.
This Program is designed to help implementers of Backendless technologies and services deliver solutions to their customers. User’s participation in this Program is voluntary.
(a) “Affiliate” means any legal entity that owns, is owned by, or is commonly owned with a party.
(b) “Collateral” means packaging, documentation, marketing, and advertising materials in any media, now known or developed in the future, including print, broadcast, electronic, and online media.
(c) “Confidential Information” means non-public information, know-how, or trade secrets in any form, that a reasonable person knows or reasonably should understand to be confidential based on the nature of the disclosure by Backendless or that Backendless designates as confidential. Information is not Confidential Information if it: (1) is or becomes publicly available without User’s breach of this Agreement; (2) was lawfully known to User without an obligation to keep it confidential; (3) is received by User from another source who can disclose it lawfully and without an obligation to keep it confidential; or (4) is independently developed by User.
(d) “Effective Date” is defined in Section 10(a).
(e) “Law” means all laws and regulations applicable to this Agreement or the Program promulgated by any government or administrative body having jurisdiction over the Agreement or the Program.
(f) “Portal” means the “Backendless Partner Portal”, or a successor site as designated by Backendless. The Portal provides or will provide tools, information, marketing Collateral, policies about the Program, as well as best practices regarding implementing Backendless technologies and services and various online forms (e.g., to update User’s listing on Backendless’s “Partner Gallery”, Program review status, support escalation form, etc.).
(g) “Backendless Materials” means any tangible or intangible materials provided or made available by or on behalf of Backendless to User under or in relation to the Program, including the Portal. Backendless Materials include any modifications to, or derivative works of, such materials, but exclude any Backendless technologies or services licensed by User outside of this Agreement.
(h) “Term” is defined in Section 10(a).
(a) Program levels. The Program is open to qualifying companies that offer access to, or that build plugins and extensions for, Backendless technologies and services.
(b) Eligibility. To be eligible to participate in the Program, User must at all times during the Term comply with this Agreement, Law, and the requirements specified in the Portal. The applicable requirements vary depending upon the Program category in which User wishes to participate.
(c) Enrollment. User will be enrolled after it: (1) verifies its eligibility under Section 2(a); (2) accepts this Agreement; (3) is accepted by Backendless; and (4) if an annual Program fee is applicable to the Program category that User has selected, pays the then-current, annual Program fee. Backendless will notify User if and when its enrollment is complete.
(d) Administration. Backendless will administer the Program and its benefits through the Portal and through Program-related notices. Backendless may communicate with User to: (1) administer the Program; (2) give User information about the Program, including events and training opportunities; (3) invite User to participate in surveys and any other opportunities; and (4) give User information and Backendless Materials (e.g., security information, technical information, sales and marketing information) to help it deliver solutions based on Backendless technologies and services, all in Backendless’s discretion.
(e) Changes. Backendless may change or discontinue the Program, in whole or in part, at its discretion. Backendless will give User at least 30 days’ notice, via email or the Portal, if Backendless intends to discontinue the Program. Backendless will send such notices not provided through the Portal to the email or address User provided to Backendless when it enrolled (unless User has changed its online profile through the Portal). User is responsible for checking the Portal regularly for all other changes. Portal changes are effective on the date the changes are posted. Changes do not apply retroactively.
- Program benefits
So long as User is fully in compliance with this Agreement and all Program requirements, it will be entitled during the Term to receive benefits generally as described in this Agreement (including the Portal). All Program benefits (including those described below in this Section 3) are subject to Section 2(e). Benefits may vary by the category in which User is participating in the Program, competency, country, and other relevant criteria in Backendless’s discretion. Access to or participation in certain Program categories or benefits may require payment of fees, may have additional or separate terms (e.g., agreements Backendless may have for participation in “beta” or other such programs or to event participation), or any combination of these. Any such requirements will be disclosed to User before it accepts such benefit. User must pay any such fees and accept any such additional or separate terms before accessing or using any Program benefit, as applicable. Any such separate or additional terms are deemed incorporated by reference in this Agreement, but solely as applicable to the benefit with which they were provided. User’s access to or use of the applicable Program benefits constitutes User’s acceptance of any such additional fees or separate or additional terms. User will use Program benefits according to this Agreement. Any Program benefits (and access to any Backendless Materials provided through or in connection with any Program benefits) are provided “as is”, “with all faults”, “as available”, and without warranties, guarantees, or services levels of any kind. Backendless’s provision of any such benefits to non-Program participants is not a breach of this Agreement. Delivery of certain benefits depends on User’s full and timely cooperation and on User’s information being complete and accurate. Without limiting the above, the following terms apply to certain Program benefits to the extent they remain in the Program.
(a) Portal. User will ensure that its relevant employees become familiar with the Portal and consult it regularly to receive communications and notices from Backendless, including updates to policies, processes, best practices, and other information. Use of or access to the Portal (or certain of its functionalities) may be subject to separate or additional terms. User’s personnel will use the Portal responsibly, and User will permit only its authorized personnel to access it. If Backendless provides tools enabling User to self-administer its personnel’s access rights to such Portal, User will use such tools to monitor and control its personnel’s access.
(b) Backendless Materials. Backendless may, from time to time, provide User with access through the Portal to various Backendless Materials, such as: (1) guidelines to help integrators provide the “best of Backendless” to their customers; (2) marketing Collateral; (3) best practices to implement Backendless technologies and services; and (4) other information. Any such Backendless Materials must be used solely in accordance with this Agreement (including any terms specific to those Backendless Materials as specified on the Portal). If the Portal does not provide a license specific to particular Backendless Materials, then the license in Section 4(b) will apply.
(c) Partner Pages. Backendless may, during the Term, make available one or more online web properties to showcase various Program participants or other participants in Backendless’s ecosystem (each, a “Partner Page”). Each Partner Page may feature trademarks, logos, company names, and descriptions of, and other content and links or online buttons for, such participants, all as determined by Backendless in its discretion. The look and feel and functionality of any Partner Page will be determined by Backendless in its sole discretion. For clarity: (1) Partner Pages will be informational only and have no ecommerce or other transactional functionality; and (2) planned Partner Pages include Backendless’s official public “partner” directory (i.e., the “Partner” directory and successors) and Backendless’s internal “partner” directory for Backendless’s sales and user operations teams. Backendless will make all decisions regarding placing and promoting various Program participants within any Partner Page, other Backendless online properties, or other Backendless Collateral. If User is invited to provide content for a particular Partner Page, its right to participate is contingent on timely providing Backendless with all applicable content for the page, in form and substance acceptable to Backendless. Backendless may edit any content provided by User to comply with its content guidelines, formatting requirements, or otherwise. Certain Partner Pages or other Backendless online properties may allow third parties to comment on and rate Program participants. Backendless may use those ratings and other data to determine placement, marketing, or availability of Program benefits. User will not attempt to manipulate, and waives and releases Backendless from all claims related to, any such ratings. All Partner Page content provided to Backendless by or on behalf of User is deemed licensed to Backendless under Section 4(d).
(d) Support. Backendless will establish dedicated technical support escalation channels for Program participants, as further described in the Portal. For clarity, under no circumstances is Backendless obligated to provide any such support to User’s customers under this Agreement or under any other agreement with User, and Backendless has no obligation to provide any particular quantity or frequency of support through such channels.
(e) Beta and event access. Backendless may, from time to time, invite User to participate in applicable Backendless programs to provide User with pre-commercial-release access to, and software or service licenses for, new versions (if any) of Backendless technologies and services, all as determined by Backendless. Backendless may also invite User to participate in other events applicable to Program participants.
(f) Backendless apps. Backendless will convert up to 20 Backendless applications to the Springboard plan at no additional cost per year. Applications must be created in the developer account used to pay the Partner Program fee.
- Intellectual property
(a) Limited trademark license. The “Backendless Partner Program Marks” are those trademarks, logos, symbols, and names (if any) identified on the Portal as being available for the use of Program participants. User must meet the criteria explained on the Portal to use the Backendless Verified Partner Marks. Subject to User’s compliance with the applicable terms of this Agreement (including those in Section 4(c)), Backendless grants User a nonexclusive, non transferable, limited, royalty-free license to use the applicable Backendless Partner Program Marks, solely in accordance with the Backendless Marks Usage Agreement, and only so long as User meets such usage criteria. Backendless is the sole owner of the Backendless Partner Program Marks and the sole beneficiary of any goodwill related to User’s use of them.
(b) Backendless Materials license. Backendless grants User a non-exclusive, revocable license to copy, use, and (solely for any Backendless Collateral) distribute any Backendless Materials provided to User under this Agreement, solely to the extent contemplated by the Portal. Backendless or its suppliers retain all other interest in Backendless Materials and related intellectual property. User has no right to sublicense the right to use Backendless Materials. If the Backendless Materials come with (or are made available through the Portal in connection with) a separate license, the terms of that license will apply and will control in case of conflict with this Agreement (but only as applicable to those Backendless Materials). Backendless may revoke the license to Backendless Materials at any time for any reasonable business reason. The license to any Backendless Materials will terminate automatically on the earlier of expiration or termination of this Agreement. User will promptly return any Backendless Materials on request or termination of User’s license. User will not modify (and, for any Backendless Materials that include technology, will not reverse engineer, decompile, or disassemble) Backendless Materials except as may be expressly allowed by Backendless. Backendless is not obligated to provide any support, maintenance, or updates for Backendless Materials.
(c) Backendless license limitations and requirements. Without limiting Backendless’s logo usage guidelines, User will: (1) not acquire any right, title, or interest in the Backendless Partner Program Marks because of its use of them; (2) not register, adopt, or use any name, trademark, domain name, or other designation that includes any part of, or any term confusingly similar to, a Backendless Partner Program Mark (including any translation or transliteration of a Backendless Partner Program Mark); (3) use the Backendless Partner Program Marks only in the form Backendless provides, only for the purposes expressly identified by Backendless, and only in accordance with this Agreement; (4) not alter, animate, or distort the Backendless Partner Program Marks or combine them with any other symbols, words, images, or design elements; (5) not use Backendless Partner Program Marks or Backendless Materials for transmission or distribution of unsolicited commercial email or in any manner that violates Law; (6) maintain the quality of its products and services at a level commensurate with the quality User offered before the Effective Date and otherwise at a level that meets or exceeds standards of quality and performance generally accepted in the industry; (7) promptly correct any improper use of the Backendless Partner Program Marks and deficiencies in the quality of its products and services on notice from Backendless; and (8) use the correct trademark and symbol (either “™” or “®”) when first mentioning a licensed Backendless technology name in any advertisement, brochure, or other material, which mention must also indicate Backendless’s ownership of the trademark, in accordance with the trademark usage examples on the Portal.
(d) User materials license. User grants to Backendless, effective as of User’s delivery of any User materials to Backendless, under all of User’s applicable intellectual property and other proprietary rights, the following worldwide, non-exclusive, royalty-free, fully-paid-up license: (1) to install, access, and use such materials to perform under and in relation to this Agreement; and (2) to the extent this Agreement, the Program, or the Portal contemplate distribution by Backendless (or its Affiliates or subcontractors), to modify, localize, copy, and make derivative works of such materials; to publicly perform and display and distribute such materials (in the form provided by User or as modified, localized, or recast as a derivative work in accordance with the license granted under this Section 4(d) for their intended purposes). The license granted under this Section 4(d) is for, and will be irrevocable during, the Term.
(e) Notices. User will not remove or in any manner alter any copyright, trademark, or other proprietary rights notices in any Backendless Materials.
(f) Reservation of rights. Backendless reserves all rights not expressly granted in this Agreement.
(g) User marks. User grants Backendless a nonexclusive, nontransferable, limited, royalty-free license to use User’s trademarks, logos, symbols, and names in any Program-related Collateral, including by identifying User in advertisements or promotions for the Program.
(a) Fees. If User is accepted into a Program category for which a fee is payable, User will be required to provide Backendless with payment information that will enable Backendless to receive the first annual payment. Backendless will retain such payment information, and at each anniversary of such acceptance during the Term, Backendless will use the payment information to charge User the then-current, annual Program fee and any other applicable fees referenced in the Portal. If, at the time of such a renewal, User’s payment information is no longer valid, User must promptly provide Backendless with substitute, valid, payment information, in order to continue participation in a paid category of the Program. Upon termination of this Agreement, Backendless will not refund any already-paid fees.
(b) Taxes. Amounts payable to Backendless under this Agreement exclude any and all taxes (including sales, use, income, and value added taxes), duties, levies, fees, excises, or tariffs imposed on any activities of User or its customers in relation to this Agreement.
User will: (1) protect Backendless’s Confidential Information from unauthorized dissemination with the same degree of care it uses to protect its own like information, but never less than reasonable care; (2) use Backendless’s Confidential Information solely as necessary to perform under this Agreement; and (3) not disclose Backendless’s Confidential Information to any third party without Backendless’s prior written permission in each case. Backendless’s Confidential Information may, however, be disclosed in accordance with a judicial or other governmental order, if User either gives reasonable notice of such disclosure to allow Backendless a reasonable opportunity to seek a protective order or equivalent; or obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under Law. User may also disclose Backendless’s Confidential Information to User’s personnel who are bound by written confidentiality obligations not less restrictive than those of this Agreement and to its Affiliates, in each case solely to the extent such personnel or Affiliates reasonably need to know such Confidential Information for proper performance of this Agreement. Backendless’s Confidential Information includes the terms of this Agreement, and all other information pertaining to released or unreleased Backendless technologies or services, marketing or promotion of any Backendless technologies or services, and Backendless’s business policies and practices.
- No warranties
To the maximum extent permitted under Law, Backendless provides the Backendless Materials, the Portal, and the Program to User “as is” and without warranties of any kind. Backendless expressly disclaims all representations and warranties (express, implied, statutory, or otherwise). This includes the warranties of merchantability, fitness for a particular purpose title, non-infringement, lack of viruses, quiet enjoyment, scope of license, lack of errors, satisfactory condition, or quality with regard to the Backendless Materials, the Portal, and the Program. This disclaimer also includes any implied warranties or conditions arising from course of dealing or usage of trade.
User will defend, indemnify, and hold Backendless and its officers, directors, employees, contractors, Affiliates and agents harmless from any and all claims, suits, demands, costs, liabilities, expenses, and damages (including reasonable attorneys’ costs and fees) related to User’s or its agents’ participation in the Program or acts or omissions under this Agreement.
- Limited liability
To the maximum extent permitted by Law, in no event will Backendless be liable for any indirect, incidental, consequential (including lost profits, lost data, or loss of business), punitive, special, or exemplary damages arising out of or relating in any way to this Agreement or its performance. This exclusion will apply regardless of the legal theory on which any claim for such damages is based, whether User had been advised of the possibility of such damages, whether such damages were reasonably foreseeable, or whether application of this exclusion causes any remedy to fail of its essential purpose. The maximum, aggregate liability of Backendless to User or any third party arising out of or related to this Agreement will be limited to direct damages incurred in reasonable reliance, in an amount not exceeding $250.
- Term and termination
(a) Term. This Agreement begins on the date Backendless accepts this Agreement (“Effective Date”) and continues until terminated by either party.
(b) Termination. Either party may terminate this Agreement at any time, for any reason or no reason, on 30 days’ notice. If either party breaches this Agreement, other than Section 6, the nonbreaching party may terminate this Agreement immediately on notice if the breaching party has not cured such breach within 14 days after notice of the breach. If User breaches Section 6, Backendless may terminate this Agreement immediately on notice. Neither party will be responsible to the other for costs or damages resulting from terminating this Agreement in accordance with its terms. Upon termination of this agreement, Backendless applications in the Partner’s account in the Backendless console on the Springboard plan will be removed from the plan.
(c) Effect of termination. Upon termination, User must immediately stop using any rights and benefits granted by this Agreement and the Program and, at Backendless’s discretion, either destroy or return all Confidential Information received under this Agreement and in User’s possession or control.
(d) Survival. Sections 1, 3 (solely the 10th and 11th sentences), 3(c) (solely the last two sentences), 4(a) (solely the last sentence), 4(b) (solely the limitations on Backendless’s obligations or on User’s rights), 4(c) (solely clauses 1, 2, 4, 5, and 7), 4(e), 4(f), 5(a) (solely as applicable to fees that accrued during the Term), 5(b), 6, 7, 8, 9, 10, and 11 will survive termination of this Agreement.
(a) No representations. User has not relied on any representations by Backendless not contained in this Agreement in deciding to enter into this Agreement. User represents and warrants that it has relied solely on its own skill and judgment or that of its advisers in relation to these matters.
(b) Notices. User consents to Backendless providing it notifications about the Program, or information the law requires Backendless to provide, via email, to User’s email address of record with Backendless, or via regular mail, to User’s physical address of record with Backendless. Backendless may also provide notices that are generally applicable to all companies participating in the Program by posting them conspicuously in the Portal.
(c) Feedback. User may provide suggestions, comments, or other feedback to Backendless with respect to Backendless’s technologies and services. Feedback is voluntary and, even if designated as confidential, Backendless may use it for any purpose without obligation of any kind. Unless the parties specifically agree in writing, feedback will not create any confidentiality obligation.
(d) Law, Dispute Resolution; Agreement to Arbitrate. The laws applicable in the state of Texas will govern this Agreement, without reference to its conflict of law principles to the contrary. Each party will bring any suit or action under or in connection with this Agreement exclusively in the courts located in Dallas, Texas, and each party waives any objection to that venue.
(e) Assignment. Backendless may assign this Agreement, in whole or in part, at any time without notice. User may not assign this Agreement or transfer any rights with regard to this Agreement or the Program, without Backendless’s express, prior, written consent. Any attempted assignment in breach of this Section 11(e) is void ab initio and a material breach of this Agreement.
(f) Force majeure. Backendless will not be liable for failure to perform any obligations under this Agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, and any other cause beyond Backendless’s reasonable control). Backendless will notify User of the force majeure event within a commercially reasonable time and will use commercially reasonable efforts to resume performance. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible after such event concludes.
(g) Order of precedence. If the terms in any of the sources in following list conflict, the terms in the sources earlier in the list will control over conflicting terms in sources later in the list (although the mere absence of a term in one source may not, without more, be construed to conflict with a term present in another source): (1) this document; (2) any terms in, or referenced in, the Portal; and (3) any other terms incorporated by reference in this Agreement.
(h) Construction and interpretation. If a court of competent jurisdiction finds any part of this Agreement unenforceable, that part will be enforced to the maximum extent possible, to effect the parties’ intent, and the rest of the Agreement will continue in force. Section headings are intended solely for convenience and will not affect the meaning of this Agreement. Unless stated, or context requires otherwise: (1) “written” or “in writing” means a non-electronic document only, manually signed by authorized representatives of the writing party(ies); (2) all internal references are to this Agreement and its parties; (3) “days” means “calendar days”; (4) “may” means that the applicable party has a right, but not a concomitant duty; (5) “notify” means to provide notice under (and “notice” means a notice that complies with) Section 11(b); (6) a party’s choices related to this Agreement are in its sole discretion, subject to any implied duty of good faith; (7) the term “partner” as used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership; (8) “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured; (9) the word “or” will be deemed to be an inclusive “or”; and (10) lists of examples following “including” or “e.g.” are not exhaustive (i.e., are interpreted to include “without limitation”), unless qualified by words such as “only” or “solely.” This Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed to favor either party. This Agreement has been executed in English, which will be the sole and controlling language used to interpret or construe its meaning (except if otherwise required by Law).
(i) Miscellaneous. Each party is an independent contractor to the other and has no authority to act on behalf of or bind the other, and this Agreement does not create any other relationship (e.g., employment, partnership, agency, or franchise). Each party will pay its own costs to perform and User has no expectation of payment from Backendless related to this Agreement. All rights and remedies under this Agreement are cumulative. Terms and policies in or applicable to the Portal are deemed incorporated. No waiver of any breach will waive any other breach, and only written waivers are effective. This Agreement: (1) is the parties’ entire agreement on this subject and merges and supersedes all oral understandings, representations, prior discussions, letters of intent, or preliminary agreements to the extent related to this subject; (2) is formed as of the Effective Date; and (3) may be modified only as expressly provided in this Agreement. It neither merges nor supersedes any separate agreement between the parties (e.g., the SSA is neither merged nor superseded by this Agreement).
(j) Modifying the Agreement. Backendless may modify this Agreement at any time, solely with prospective effect. Backendless will notify User of any such modifications either through the Portal, in an email message, or through other reasonable means. When changes are made to the Agreement, Backendless will post a new version on the Portal, which will include all changes and a revised “Last updated” date. If User does not agree to any modifications, User (including its personnel) must immediately stop participating in (and accepting any benefits from) the Program. User’s (or any of its personnel’s) continued access of the Portal, or acceptance of any benefits of the Program, constitutes acceptance of the modified Agreement.