Jetpack Agency Platform Beta Agreement

This Jetpack Agency Platform Beta Agreement, (the “Agreement”) is a legally binding agreement between Automattic, Inc. (“Automattic”) and you (“Partner”), effective as of the date Partner first accesses the Platform (the “Effective Date”).  By registering for and participating in the Jetpack Agency Platform Beta, Partner acknowledges and agrees that it has read and agrees to be bound by the terms of this Agreement.

  1. Automattic Platform and Services
    1. Platform. Subject to Partner’s compliance with the terms and conditions of this Agreement and its maintenance of an applicable Jetpack account with Automattic (including Partner’s compliance with Jetpack’s terms of service), Automattic will provide Partner with access to its Agency Partner Platform (the “Platform”) during the course of this Agreement which will enable Partner to license the Jetpack products and services made available to it by Automattic (the “Automattic Products”). Automattic Products made available through the Platform by Automattic may be added, removed, or changed at Automattic’s sole discretion. 
    2. License. Subject to Partner’s compliance with the terms and conditions of this Agreement, Automattic grants Partner a license to access the Platform solely for the purpose of procuring discounted licenses to the Automattic Products to provide relevant services for its customers and affiliates, and shall not access or use the Platform for any other purpose.  For clarity, Partner is not permitted to act solely as a reseller or wholesaler of Automattic Products, as determined by Automattic.
    3. Account Access. In order to be provisioned into the Platform, Partner must provide Automattic with its Jetpack ID. Partner shall not grant any third party access to the Platform, and will maintain the confidentiality of any account login credentials provided by Automattic or generated by the Platform. Partner shall be responsible for the acts or omissions of any person who accesses the Platform using these credentials. Partner agrees to establish and use commercially reasonable procedures and controls to protect the privacy, security, and integrity of the Platform. Partner will immediately notify Automattic of any actual or suspected threat or hazard to the security of the Platform (“Security Breach”), and will assist Automattic in taking any actions Automattic deems necessary to remedy such Security Breach. 
  2. Fees and Payment
    1. Pricing. Partner may license Automattic Products through the Platform at a thirty-five percent discount (35%) off Automattic’s public standalone (i.e., unbundled) rates for the Automattic Products (the “Posted Rates” which are subject to change by Automattic, from time to time) during the Beta Term. During any Renewal Terms, the discount shall be twenty five percent (25%) for all currently and newly-licensed Automattic Products. Automattic may change the discount upon written notice to Partner, effective at any point after the conclusion of the Beta Term.  Notwithstanding the foregoing, in the event Partner drops below ten (10) Automattic Products licensed through the Platform, Automattic may elect, upon advance written notice, to revoke Partner’s access to the Platform or charge Partner the full price for the Automattic Products.   Partner is under no obligation to pass through any discount to their customers, however Partner shall not represent itself as a wholesaler of Automattic Products or publicly advertise or misrepresent prices of Automattic Products.
    2. Payment. Automattic will provide a monthly invoice to Partner, and Partner shall pay all amounts invoiced within ten (10) days from receipt.  Alternatively, Automattic may require Partner to include a payment method in the Platform to enable automatic payments.
    3. Monthly Reports. Automattic reserves the right to request, and Partner shall provide upon such request, a monthly report from Partner, showing data for Automattic Products licensed by Partner. 

If requested by Automattic, the report will detail for the prior month, at a minimum: 

  • the number of new Automattic Products licensed,
  • the number of Automattic licenses terminated,
  • the number of Automattic licenses transferred,
  • the dates of activation, termination, and transfer of each of the foregoing,
  • the number of Partner’s clients using the Automattic Products, and the breakdown of clients with each combination of license, and
  • detail on number of Jetpack Products purchased or upgraded, cumulatively and incrementally, compared to the prior month.

Automattic may request reasonable backup documentation to verify the numbers included in the monthly report. Partner will provide the report no later than ten (10) days after Automattic’s request.

  1. Ownership

As between the parties, Automattic owns all right, title, and interest in the Platform, the Automattic Products, all Automattic intellectual property, and all registration data and other data collected by Automattic in connection with the use of Automattic Products.

Except to the extent set forth herein, neither party grants the other any license, express or implied, to its intellectual property rights (including but not limited to patents, copyrights, trade secrets and trademarks), and Partner may not transfer or grant any licenses to the Automattic Products to any third party. 

  1. Term, Termination, Suspension

Term. This Agreement will commence as of the Effective Date and will remain in effect for a period of one year from the Effective Date (the “Beta Term”). After the Beta Term, this Agreement will automatically renew for consecutive one-year periods (each a “Renewal Term”), unless either party gives written notice of its intent not to renew at least 30 days before the expiration of the then-current term.

Termination.  Either party may terminate this Agreement: (a) at any time, if the other party breaches any material term of this Agreement and fails to cure such breach within 30 days after receiving notice from the non-breaching party; or (b) immediately if the other party becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of creditors. Automattic may terminate this Agreement for any reason upon written notice to Partner.  In the event of the termination or expiration of this Agreement, licenses to Automattic Products acquired hereunder shall terminate, and Partner must procure replacement licenses directly with Automattic.

Suspension Rights.  Automattic may suspend access to or remove access to the Automattic Products for Partner or Partner’s customers or affiliates in Automattic’s sole discretion, if Automattic believes that Partner or a customer or affiliate of Partner is engaged in: (a) any activity that may harm Automattic, its brand/reputation its systems or any third-party systems, (b) fraudulent or illegal activity or any other activity that could result in legal liability to Automattic or any third party or (c) acting as a reseller or wholesaler of Automattic Products. Any such suspension may continue until the activity giving rise to the suspension has been cured and Automattic has received satisfactory assurances that it will not recur. Automattic reserves the right to work directly with Partner’s customers and affiliates to resolve any issue related to or arising out of this Agreement.

  1. Confidentiality

The Parties each acknowledge that they may be furnished with, receive or otherwise have access to information of or concerning the other Party that such Party considers to be confidential, a trade secret or otherwise restricted.  “Confidential Information” means all information, in any form, furnished or made available directly or indirectly by one Party to the other that is marked confidential, restricted, or with a similar designation, or information which, under the circumstances of its disclosure, a reasonable party would deem to be confidential information. Each Party shall maintain as confidential and shall use at least the same degree of care as it employs to avoid unauthorized disclosure of its own Confidential Information, but in any event no less than commercially reasonable efforts.

  1. Representations and Warranties

Each Party represents and warrants to the other Party that: (1) it is duly organized, validly existing and in good standing under the laws of the state under which it is organized; (2) it has the power and authority to enter into this Agreement and to perform fully its obligations hereunder; (3) it is under no contractual or other legal obligation that will in any way interfere with its full, prompt and complete performance hereunder; (4) the individual executing this Agreement on its behalf has the authority to do so; (5) it will comply with all applicable laws, rules, and regulations in its performance under this Agreement; and (6) the obligations created by this Agreement, insofar as they purport to be binding on it, constitute legal, valid and binding obligations enforceable in accordance with their terms.

Partner additionally represents and warrants to Automattic that: (1) it shall access and use the Platform solely as contemplated under this Agreement to license Automattic Products for its use on behalf of its customers and affiliates; (2) it has all appropriate rights, licenses and consents to incorporate the Automattic Products into its customers’ and affiliates’ products and services; (3) it shall not place excessive calls to Automattic’s systems or otherwise overburden Automattic systems, as determined by Automattic; (4) it shall not use or allow the use of the Jetpack API to send or facilitate the sending of unsolicited communications or for any fraudulent purpose; (5) it shall not modify, decompile, reverse engineer or otherwise alter or seek to derive the trade secrets and other inherent intellectual property of the Jetpack API or the Platform; and (6) it shall not use the Jetpack API or the Platform (i) to create or enable any application, website, tool, or other mechanism that is, or enables, or operates in conjunction with, any malware, spyware, adware, other malicious programs or code, or (ii) in any manner that would violate any applicable law or governmental regulation.

  1. Indemnification

You will indemnify, defend and hold harmless Automattic, its affiliates, and its directors, officers and employees against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by Automattic in connection with any claim arising out of or relating to this Agreement. 

  1. Limitation of Liability

Except for Partner’s breach of its confidentiality obligations in Section 5, Partner’s indemnification obligations in Section 7, or Partner’s gross negligence or willful misconduct, in no event will Automattic or Partner be liable for indirect, special, incidental, punitive or consequential damages arising out of or related to this Agreement, however caused, and under whatever cause of action of theory of liability even if a Party has been advised of the possibility of such damages.  To the maximum extent permitted by applicable law, Automattic’s total aggregate liability will not exceed the amounts payable under this Agreement. 

  1. Miscellaneous

Trademarks.  Except as required by law or to comply with the request of a governmental entity, Partner will not use Automattic’s name, trademarks, service marks, logos or other identifiers (collectively, “Trademarks”), or make any reference to Automattic or its Trademarks in any manner including, without limitation, client lists and press releases, without the prior written approval of Automattic.  If approval is granted, you agree to abide by Automattic’s published trademark guidelines at all times, available at https://automattic.com/press/brand-materials/.

Independent Contractors.  The Parties shall be independent contractors under this Agreement, and nothing herein shall constitute either Party as the employer, employee, agent, or representative of the other Party, or both Parties as joint venturers or partners for any purpose.

Assignment.  This Agreement is not assignable or transferable by either Party; provided, however, that this Agreement may be assigned in its entirety by Automattic to a successor-in-interest or an affiliated company.

Notices.  All notices must be in English, in writing and sent by email to the other Party’s email address as indicated below. Notice will be treated as given on receipt, as verified by electronic log.

If to Partner: any email address used to register with the Platform or Jetpack

If to Automattic: contracts@automattic.com

Governing Law.  This Agreement shall be governed by the laws of the State of California, without reference to conflict of law principles. For all disputes arising out of or related to this Agreement, the Parties submit to the exclusive subject matter jurisdiction, personal jurisdiction and venue of the United States District Court for the Northern District of California.

Force Majeure.  The performance of this Agreement s subject to termination without liability or liquidated damages/cancellation fees upon the occurrence of any circumstance beyond the control of either Party (including but not limited to: acts of God, war, acts of terrorism, government regulations and quarantines, disaster, strikes, civil disorder, epidemics, pandemics or outbreaks) to the extent that such circumstance makes it illegal or impossible for a Party to performs its obligations under this Agreement. The affected Party may terminate this Agreement without liability upon written notice to the other Party. 

Amendment.  This Agreement may only be amended in a writing signed by both Parties.

No Waiver.  The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.  

Entire Agreement.  This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. Any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the Parties after the effectiveness hereof, shall have no force or effect.

Severability.  If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable.

No Third Party Beneficiaries.  The provisions hereof are for the benefit of the Parties only and not for any other person or entity.

Attorneys’ Fees.  The prevailing Party in any action to enforce this Agreement will be entitled to recover its attorney’s fees and costs in connection with such action.

Survival.  Any provisions which by their nature should survive termination or expiration of this Agreement will survive.