General Terms

Recitals

Welcome, partner! You’ve been directed to these terms and conditions through the Auvik Partner Portal because you’ve been accepted to join one or more of the partner programs of Auvik Networks Inc. (“Auvik”). They are as follows:

Each program is more fully described in the applicable program specific portion of the terms and conditions. Please review each program as it applies to you.

Participation in each program is subject to these terms and conditions – both the General portion of the terms and conditions, and the applicable program specific portion of the terms and conditions. These portions are indicated by headers in this document. To be clear, the use of “partner” or “affiliate” in this document is solely used to indicate a company joining our program to perform certain actions and receive corresponding benefits; it is not used in the legal sense of an entity under shared ownership or control of Auvik. Nothing in these terms and conditions will be deemed to establish a legal partnership, joint venture, agency, franchise, sales representatives, or employment relationship between you, your customers, or representatives, and Auvik or our corporate affiliates.

Please read these partner program terms and conditions carefully before you join a program or begin any activities covered by a program. We have attempted to write these terms and conditions in plain language to ensure that they may be clearly understood and followed; if you have any doubt or questions as to the meaning of any portion of these terms and conditions, it is solely your responsibility to make the relevant enquiries of Auvik. You are responsible for ensuring that your employees, agents and contractors comply with these terms and conditions.

These terms and conditions may change from time to time to reflect changes in the programs. Although Auvik will make reasonable efforts to notify you of any changes, it is your responsibility to ensure that you are compliant with the then-current terms and conditions.

Definitions

As used in these terms and conditions:

“we”, “us”, or “our” refers to Auvik;
“you” or “your” refers to the partner entity entering into the Program, and any individual users of this partner portal acting on such partner entity’s behalf;
“our website” refers to the Auvik site and content located at www.auvik.com;
“your website” refers to any websites that you will link to our website;
“Program” refers to the Auvik reseller program, affiliate program and/or referral program, as applicable to you;
“Program Materials” means any content, documentation, information, or other materials made available to you by Auvik through or in connection with the Program; and
“Program Portal” refers to the third-party software platform through which the Program is administered.

Program Application and Enrollment

After receiving your application, we will review your application, and, where applicable, your website and notify you of your acceptance or rejection into our Program. Please allow up to 5 business days for your application to be reviewed. We reserve the right to accept or reject any application, however we encourage you to contact us if you feel we have made an incorrect decision and provide reasons for reconsideration. Please note that if you are currently employed by Auvik or our affiliates, you and your immediate family members are prohibited from joining the Program and from earning associated discount or commission amounts. You warrant that you have the full power to participate in the Program and to enter these terms and conditions and perform your obligations hereunder without breaching any obligations to any third party.

Your Obligations

If you are accepted into a Program, you must adhere to the following obligations:

You must keep all your contact information, banking details, and any other information requested by Auvik in relation to Program participation, up to date in the Program Portal. If you fail to do so, you may not receive your reward, commissions and/or other Program benefits for which you would be eligible.
You must collect any commissions and rewards, and submit all relevant information, within the timeframes specified by Auvik. Failure to do so may result in administrative processing fees being imposed on you by Auvik and/or the Program Portal provider, or a forfeit of the commission, discount, or reward.
You may not create, publish, distribute, or print any written material that refers to our Program or that modifies the Program Materials without first submitting your materials to us and receiving our prior written consent.
You have no authority to make or accept any offers or representations on Auvik’s behalf beyond those expressly consented to in writing by Auvik.
You are prohibited from:
1. altering, modifying, adapting, creating derivative works based on, translating, defacing, or reverse engineering, decompiling or disassembling any materials provided to you under the Program, including the Program Portal and our website, and any Auvik products or services, as applicable;
2. using any aspect of the Program to create, market or distribute any product or service that is competitive with the Program, Program Portal, or Auvik products and services, or that is illegal; and
3. transferring, selling, leasing, licensing, sublicensing, distributing, disclosing, or making available or permitting use of or access to the Program or Program Portal to any other person.
You must comply with any usage guidelines of the Program Portal provider in your use of the Program Portal, including the provider’s terms of service and privacy policy. Your agreement with such provider is solely between you and such provider.
In submitting any information to Auvik, including personal data, you accept full responsibility for the legality and accuracy of such submission, including representing and warranting that Auvik may use such information for the purposes for which you have provided it, that you have the right and authority to provide such information, that you have obtained all relevant third party permissions and consents to provide such information, and that you have complied with all applicable legal and contractual obligations, including in relation to privacy and the protection of personal information, in doing so.
You must comply with all applicable federal, state, provincial and local laws and regulations in performing your obligations under any Program and these terms and conditions, including without limitation those laws relating to tax, foreign exchange, transfer of money, data protection and privacy, and will promptly notify Auvik of any changes to such laws that would impact on the relationship of the parties or your performance.
From time to time, we may provide written or electronic materials to you as part of the Program. You shall use such materials only for the purpose of performing Program activities and specifically for the purposes specified by us in relation to such materials, and, except to the extent expressly permitted in the Program, shall not copy, publish, modify, alter or otherwise improperly use such materials, including to represent our products or services inaccurately or to provide to any competitor of Auvik’s. All such materials shall be immediately returned to us upon termination of your participation in the Program, as they are to be considered our proprietary materials.

Lead Protection

One of the many benefits of participating in the Programs is that registered leads and deals that you submit through the lead and deal submission forms on the Program Portal are subject to protection. A lead is a prospective Customer of Services, whose contact information (and other pertinent information appearing on the lead submission form) you submit to Auvik, and where Auvik accepts such lead, Auvik will spearhead the sales process respecting such prospective Customer. A deal is a prospective Customer of Services, or a proposed deal with a prospective Customer respecting specific Services, where, if Auvik accepts the deal, you will spearhead the sales process respecting such prospective Customer.

Any proposed lead or deal must be submitted through the Program Portal, and Auvik will determine if such lead or deal is eligible for inclusion in the applicable Program. Upon such lead or deal being accepted by Auvik, in Auvik’s sole discretion, the lead or deal will be deemed to be registered. For a lead or deal to be eligible and accepted as a registered lead or deal, the lead or deal must meet the following criteria:

The primary business location of the prospective Customer is in your designated territory
The prospective Customer isn’t in an active sales cycle with Auvik
The prospective Customer isn’t actively registered to another partner
The prospective Customer isn’t a current Auvik customer
All information requested on the lead or deal registration form is completed
Upon request, you must be able to demonstrate recent marketing or sales activity with the prospective Customer
Including Auvik or the Services in an RFP response will make the lead ineligible

Upon acceptance of the lead or deal, the lead or deal will be protected for a period of ninety (90) days, meaning that: (a) in the case of a lead, Auvik will not permit another partner to resell Services to such Customer during such ninety (90) day period, and (b) in the case of a deal, Auvik will not itself, and will not permit another partner, to resell the Services described on the deal submission form to such Customer during such ninety (90) day period. If an extension is needed, a request can be submitted to [email protected] with the reason, and proof that you are still in an active sales cycle with the prospective Customer. Auvik reserves the right to revoke approvals of any lead or deal registration if you are in material breach of these terms and conditions.

Trademarked Terms

The list of Auvik’s current trademarked terms appears below, and may be updated from time to time:

Auvik
Frankly MSP
TrafficInsights
From Glass to SaaS
Own the Network
Frankly IT

We expect you to use our trademarked terms only for the purposes and in the manner set out in these terms and conditions or otherwise permitted by Auvik in writing, and in a way that always reflects well on Auvik. This includes not contesting the validity of any Auvik trademarks, or asserting any right or claim to ownership in any Auvik trademarks, including making or being associated with conflicting registrations or applications. It also includes not using, employing or attempting to register any trademarks, service marks, trade names or domain names which may be confusingly similar to any Auvik trademarks, including the above-listed trademarked terms.

Domain Names

Use of any of our trademarked terms as part of the domain or sub-domain for your website is strictly prohibited e.g., Auvik.website.com or www. Auvik-coupons.com

Advertising & Publicity

You shall not create, publish, distribute, or print any written material that makes reference to any Program without first submitting that material to us and receiving our prior written consent. If you intend to promote a Program via e-mail campaigns, you must adhere to the following:

Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to our Program.
E-mail must be sent on your behalf and must not imply that the e-mail is being sent on behalf of Auvik.
Except as otherwise set forth in the Program specific terms, e-mails must first be submitted to us for approval prior to being sent.

Operations Outside United States

If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the European Union’s Privacy and Electronic Communications Directive if you are conducting business in or taking orders from persons in one or more of the European Union countries.

Reversal & Communication Policy

Auvik takes pride in its very low reversal rate, which we attribute to open communication with our partners. However, we reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and program violations as outlined in these terms and conditions.

Additionally, if we ask you for clarification or more information on any orders, referrals or clicks that we suspect may be in violation of our terms and conditions, we expect that you will respond in a timely and honest manner. Below are examples of violations of our communications policy.

You are not forthcoming, intentionally vague or are found to be lying.
You are not responsive within a reasonable time period and after multiple attempts to contact you using information you have provided.
You cannot substantiate or validate the source of your traffic (including customers and referrals) to our program with clear and demonstrable proof.

If any of the above apply, or we find that you have otherwise violated our terms and conditions, then we reserve the absolute right to reverse orders, refuse payments, or suspend you from the program for the period or orders in question. We know that many violations are a result of automated processes; however it is incumbent upon each partner to ensure that it has the appropriate checks and balances in place to pro-actively address these issues and adhere to our program rules.

Confidentiality and Intellectual Property

During the course of performing obligations under these terms and conditions and the Program, you and we may be exposed to confidential information of each other. Accordingly, you and Auvik agree to:

maintain all confidential information of the other party in strict confidence, take all necessary precautions against unauthorized disclosure of such confidential information, and not disclose, allow access to, transmit or transfer any such confidential information to a third party without the knowledge and express written consent of the other party;
not use, disclose or reproduce the confidential information of the other party except as reasonably required in the performance of obligations under these terms and conditions and the Program and with the knowledge and express written consent of the other party; and
advise the other party immediately in writing of any misappropriation, disclosure, conversion or misuse by any person of any confidential information of which it may become aware.

Where you and Auvik have entered into a separate non-disclosure agreement, the terms of such non-disclosure agreement will also apply to any confidential information disclosed in relation to the Program, and will govern in the event of any conflict with this confidentiality clause.

Neither party acquires any intellectual property or other proprietary rights under these terms and conditions or participation in the Program, including without limitation any right, title or interest in and to patents, copyrights, trade-marks (including those listed above), industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the other party’s products, services, or any part thereof, including any Services (as defined in the individual Program terms and conditions) and any third party intellectual property therein. Any rights not expressly granted under these terms and conditions are reserved.

Disclaimer

THE PROGRAM AND LINKS, INCLUDING OUR PROGRAM MATERIALS, PROGRAM PORTAL, OUR WEBSITE, PRODUCTS AND SERVICES, ARE PROVIDED TO YOU “AS IS”. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AUVIK DOES NOT WARRANT THAT THE PROGRAM, LINKS, PROGRAM MATERIALS, PROGRAM PORTAL, OUR WEBSITE, OR ANY AUVIK SERVICES OR PRODUCTS, WILL MEET YOUR OR ANY THIRD PARTY’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE PROGRAM, LINKS, PROGRAM PORTAL, OUR WEBSITE, OR PROGRAM MATERIALS WILL BE COMPLETELY ERROR-FREE OR UNINTERRUPTED. AUVIK EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT, OMISSION OR ERROR OF ITS SERVICES PROVIDERS OR OTHER CORPORATE AFFILIATES OR THEIR RESPECTIVE PRODUCTS AND SERVICES. AUVIK DOES NOT GUARANTEE THAT YOU WILL BE ELIGIBLE FOR OR EARN ANY SPECIFIC AMOUNT THROUGH THE PROGRAM.

Indemnity

You hereby agree to indemnify, defend and hold harmless Auvik and our subsidiaries, corporate affiliates, partners, licensors, directors, officers, employees, and service providers (“Auvik Participants”) against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees and costs) arising from (i) any failure to comply or breach of these terms and conditions (including all representations, warranties, covenants, restrictions and obligations herein) by you, your customers or representatives; (ii) your or your customers’ or representatives’ misuse of the links, Program Portal, Program Materials, our confidential information, or any other content or intellectual property connected with our Program; (iii) any claim related to your website, including but not limited to, the content contained on such website (excluding claims based upon our links or the Program Materials); (iv) your negligence or wilful misconduct, and/or (v) your, your customer’s or your representative’s violation of applicable law, rule, regulation or court order.

Limitation Of Liability

IN NO EVENT WILL AUVIK OR ANY AUVIK PARTICIPANTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE LINKS, PROGRAM PORTAL OR PROGRAM MATERIALS; ANY TECHNICAL MALFUNCTIONS, COMPUTER ERRORS, CORRUPTION OR LOSS OF INFORMATION; OR FOR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND. IN NO EVENT WILL AUVIK OR AUVIK PARTICIPANTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY, WRONGFUL DEATH, OR SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT AUVIK OR AUVIK PARTICIPANTS HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF. AUVIK’S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY IN CONNECTION WITH THESE TERMS AND THE PROGRAM, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE LESSER OF (I) ONE THOUSAND DOLLARS OR (II) THE COMMISSION AMOUNTS PAID TO YOU BY AUVIK DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.

Termination

You may terminate your participation in any Program at any time upon thirty (30) days’ written notice to Auvik. Auvik may terminate your participation in any Program and these terms and conditions immediately upon notice to you if: (a) you materially breach, fail to comply with, or otherwise contravene any of these terms and conditions, any terms and conditions in the Program Materials, or any other agreement that you may have with Auvik, or (b) you become involved in any legal proceeding concerning your solvency, commence liquidation proceedings, have a receiver or administrator appointed respecting any of your assets, cease or threaten to cease operations, or otherwise have a serious and reasonable doubt arise respecting your solvency. Additionally, Auvik may terminate any Program and/or these terms and conditions if required to do so by any law, regulation, requirement or ruling issued in any form whatsoever by any judicial or other governmental body. Auvik may also terminate any Program and/or these terms and conditions at any time upon sixty (60) days’ written notice to you for any or no reason.

General

Injunctive Relief. You agree that Auvik will have the right to seek, in addition to any of its other rights and remedies under law and equity, injunctive relief for any violation of these terms and conditions without posting bond or by posting bond at the lowest amount required by law, as Auvik products and services are of significant commercial value to Auvik and inappropriate use or marketing of the products and services could cause Auvik irreparable harm.
Force majeure: Neither party shall be deemed to be in default of these terms and conditions for failure to fulfill its obligations due to causes beyond its reasonable control. This provision shall not be construed as excusing any payment obligations of either party hereunder.
Independent Contractors: Each party shall perform its obligations hereunder as an independent contractor, and nothing contained in these terms and conditions or Program Materials shall be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the parties. Except as expressly authorized by a party hereunder, neither party shall act nor purport to be acting as the legal agent of the other party, nor enter into any agreement on behalf of the other party or otherwise bind or purport to bind the other party in any manner whatsoever.
Notices: Any notices, reports or other communications required or permitted to be given under these terms and conditions shall be in writing and shall be sufficient if delivered by hand or sent by registered mail, electronic mail, courier or facsimile addressed to Auvik or you at the addresses as provided to each other in writing. Any such notices, reports, or other communications shall be deemed to have been received by the party to whom they were addressed: (a) upon delivery by hand, (b) five (5) business days after being sent by registered mail, (c) one (1) business day after being sent by electronic mail with confirmed receipt, (d) upon delivery by courier, as evidenced by the courier receipt, or (e) upon successful receipt confirmation report after being sent by facsimile.
No Waiver: No waiver by either party of a breach or omission by the other party of these terms and conditions or the Program requirements shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party. Any waiver by a party of a particular breach or omission by the other party shall not affect or impair the rights of the waiving party in respect of any subsequent breach or omission of the same or different kind.
Assignment: You shall not assign or transfer your rights or obligations under the Program or these terms and conditions without the prior written consent of Auvik. These terms and conditions shall be binding upon the parties hereto and their respective lawful successors and permitted assigns.
Severability: If any one or more of the provisions of the Program or these terms and conditions is for any reason held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable, in which event the Program and these terms and conditions shall be construed as if such provision had never been contained herein.
Survival: Any provision of the Program or these terms and conditions which expressly states that it is to continue in effect after termination or expiration of the Program or these terms and conditions, or which by its nature would survive the termination or expiration of the Program or these terms and conditions, shall do so.
Dispute Resolution: In the event a dispute or difference is not promptly resolved at operational levels of the two organizations, then either party may request that the matter be escalated to a senior executive from each party with appropriate management responsibility for the matter in dispute. If, after good faith efforts, it is clear that the matter cannot be resolved by mutual agreement, the parties may pursue formal dispute resolution as set out in this section or pursue any other legal or equitable remedy to which they may be entitled. If the informal dispute resolution process outlined above is unsuccessful, then the dispute or difference shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules. The arbitral tribunal shall consist of a sole arbitrator. The place of arbitration shall be Toronto, Ontario, Canada. The language to be used in the arbitral proceedings shall be English. The arbitrator will have no power to award punitive damages. The arbitrator’s fees and costs will be shared equally by the parties. This section does not preclude either party from seeking injunctive or other equitable relief from any court of competent jurisdiction.
Governing Law: These terms and conditions shall be governed by and interpreted in accordance with the laws of the Province of Ontario. The Parties specifically agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded from application to these terms and conditions. The courts of Ontario shall have the exclusive jurisdiction to hear any matter arising in connection with these terms and conditions.
Entire Agreement/Modification: These terms and conditions, together with the Program Materials, constitutes the entire agreement between the parties and supersedes all previous agreements and understandings relating to the subject matter hereof. Except as otherwise set forth herein, these terms and conditions may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties. Notwithstanding the foregoing, if you and Auvik have entered into a specific written agreement respecting the subject matter herein, such written agreement will take precedence over these terms in the event of any conflict.
Language: It is the express will of the parties that these terms and conditions, together with the documents pertaining thereto, be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.