Terms and Conditions
BY CLICKING THE “I ACCEPT” BUTTON, THE COMPANY AGREES TO BE BOUND BY THESE MILESTONE PARTNER PROGRAM TERMS AND CONDITIONS (“TERMS”) AND THE MILESTONE PARTNER PROGRAM (“PROGRAM”), WHICH IS INCORPORATED INTO AND FORM PART OF THESE TERMS. THESE TERMS ARE BETWEEN COMPANY AND MILESTONE AND A PREREQUISITE FOR PARTICIPATING IN THE PROGRAM. IF YOU ARE ACCEPTING ON BEHALF OF A COMPANY THAT IS YOUR EMPLOYER OR WITH WHICH YOU ARE OTHERWISE ENAGAGED, YOU REPRESENT AND WARRANT THAT (i) YOU HAVE FULL LEGAL AUTHORITY TO BIND THE COMPANY TO THESE TERMS AND THE PROGRAM, (ii) YOU HAVE READ AND UNDERSTOOD THE TERMS AND THE PROGRAM, AND (iii) YOU AGREE TO THE TERMS AND THE PROGRAM ON BEHALF OF THE COMPANY. IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND THE COMPANY, PLEASE DO NOT CLICK “ACCEPT”. PLEASE NOTE THAT IF YOU SIGN UP FOR THE TERMS AND THE PROGRAM USING AN E-MAIL ADDRESS FROM THE COMPANY, THEN (A) YOU WILL BE DEEMED TO REPRESENT THE COMPANY, (B) YOUR CLICK AND AGREE WILL BE DEEMED TO BIND THE COMPANY YOU ARE REPRESENTING.
IF A COMPANY WAS A MILESTONE CHANNEL PARTNER UNDER THE MILESTONE PARTNER PROGRAM THAT WAS IN EFFECT UNTIL 30TH JUNE 2022 AND CONTINUES TO SELL MILESTONE PRODUCTS TO END-USERS UNDER PURCHASE ORDERS SUBMITTED TO AND ACCEPTED BY A MILESTONE DISTRIBUTOR PARTNER ON OR AFTER 1ST JULY 2022, THE COMPANY SHALL BE DEEMED TO HAVE ACCEPTED AND HAVE AGREED TO BE BOUND BY THESE TERMS AND THE PROGRAM, EVEN WITHOUT ACTUALLY CLICKING “I ACCEPT” BUTTON. IF THE COMPANY DOES NOT AGREE TO THESE TERMS, THE COMPANY SHALL NOT SELL MILESTONE PRODUCTS NOR SHALL THE COMPANY EXERCISE OTHER RIGHTS GRANTED TO MILESTONE PARTNERS UNDER THESE TERMS AND THE PROGRAM.
1. DEFINITIONS
"Affiliate"means a subsidiary, i.e., a corporation, company, or other entity, directly or indirectly, controlled by one of the Parties. For purposes of this definition, "control" shall mean to have, directly or indirectly, the ownership of more than 50% of the shares (or on other grounds have the right to elect or appoint, directly or indirectly, the majority of the board of directors, or a similar managing authority). For the purpose of this definition, the Company can only include Affiliates that have their registered address in the Country.
“Confidential Information” means any kind of business, commercial, price, product, proprietary or technical information and data that is disclosed between the Parties in connection with their relationship as described in these Terms irrespective of the medium in which such information or data is embedded, irrespective of whether such information or data is disclosed orally, visually or in a tangible form or via electronic communication, and irrespective of whether or not the information is marked "Confidential" or similarly identified by the disclosing party.
"Company"means the business entity, as identified in the application form on Milestone’s website that has accepted these Terms; and Company’s Affiliate(s) submitted to the Program by the Company.
“Country” means the country related to the Company’s participation in the Program, i.e., the country where the Company and the included Company Affiliates have their registered address.
“End-User” means a person or entity who purchases the Milestone Products for own use.
“EULA” means the Milestone End-User License Agreement setting the terms of licensed use of the Products.
“First Line Support” means all non-technical and technical requests characterized as routine in nature and typically resolved through existing documentation including knowledge base articles, manuals, guides, historical case data and previously released hotfixes.
“Intellectual Property Rights” means all worldwide, current or future (i) patents, patent applications and patent rights; (ii) rights associated with works of authorship, including copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications and mask work registrations; (iii) rights relating to the protection of trade secrets and confidential information; (iv) trademarks and service marks (registered or unregistered), or any mark embodying product goodwill or indications of origin, (v) rights analogous to those set forth herein and any other proprietary rights relating to tangible and intangible property; and (vi) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued or acquired.
"Milestone" means Milestone Systems A/S.
"Milestone Products" or “Products” means the Milestone software products (i.e., Milestone licenses for such software), Milestone hardware products, Milestone Care™, and other Milestone products and
services offered to Company and Company’s Affiliates through the Program.
”My Milestone” means your account on the Program Website.
“Notice” means information provided in writing in accordance with these Terms, which has binding effect on the Parties’ rights and obligations under these Terms. The Notice requirements are set out in Clause 10 (Notices).
“Party” and “Parties” means Milestone and the Company.
"Program" means the Milestone Partner Program offered to the Company, which includes requirements, eligibility for benefits, discounts, and license to sell and market specific Milestone Products in the Territory, based on the Company’s Program tier and acquired Milestone certifications. The Program includes at all times the current Program Guide, Milestone policies, procedures, and Milestone requirements (“Milestone Policies”), all of which are an integrated part of the Program and are published on the Program Website, and which from time to time, as deemed necessary and appropriate by Milestone, may be changed and amended and/or new Milestone Policies may be included in the Program.
"Program Guide" means the guide providing additional guidance about the Program and Program requirements, and that can be found on the Program Website.
"Program Website" means Milestone’s website where information on the Program is published and/or the website currently located at https://www.milestonesys.com/MyMilestone, or equivalent local site, or a successor site designated by Milestone. The Program Website provides tools and information about the Program.
“Terms" means these Milestone Partner Program Terms and Conditions.
“Territory” means the geographical area in which the Company is provided license rights under these Terms. The Territory is identical to the Country where the Company and Company’s Affiliates have their registered address. The EU/EEA and Switzerland is one Territory.
2. THE PROGRAM
2.1. Enrollment
The Company acknowledges that these Terms are offered to the Company conditioned upon Milestone’s acceptance of the Company to the Program in accordance with Milestone’s internal compliance policies, in relation to, but not limited to, export control, corruption, anti-bribery, GDPR and/or competition laws. After Company accepts these Terms, Milestone will contact the Company in relation to Milestone’s acceptance of the Company to the Program, the practicalities around the Program, and the inclusion of the Company Affiliates if applicable, cf. Clause 2.4. (Company’s Affiliates).
2.2. Appointment
Upon the Company’s enrollment to the Program, Milestone appoints the Company as a non-exclusive authorized reseller of the Milestone Products in the Territory subject to these Terms and the Program. Respectively, Milestone grants the Company, and the Company hereby accepts, the non-exclusive revocable license to sell the Milestone Products in the Territory to End-Users subject to these Terms and the Program. The Company purchases and sells the Milestone Products in its own name and for its own account, risk and costs.
The Company’s tier, requirements to comply with, commitments, discounts and benefits are defined in accordance with the Program. The Program also determines which Products the Company has sales rights for.
Company’s participation in the Program is voluntary. Nothing in these Terms restricts Company from supporting, promoting, distributing or using non-Milestone technology.
2.3. Territory
The Company may not actively market the Products outside the Territory unless otherwise agreed in writing by Milestone and/or defined in the Program. Online advertising shall not be considered an act of active marketing by the Company.
For the purpose of this Clause, the EU/EEA and Switzerland are considered one Territory. Within the Territory the Company may sell Products, either actively or passively.
The provisions of these Terms, including Clause 2.2. (Appointment) and this Clause 2.3. (Territory), shall be interpreted and applied by the Parties in compliance with applicable competition laws and shall not limit the Company’s mandatory rights under such laws.
The Company and the Company’s Affiliates must have and maintain a registered address in a Country within the Territory.
2.4 The Company's Affiliates
The Company’s Affiliates will be included in the Program by their separate acceptance of these Terms and enrollment to the Program.
Subject to these Terms and Program requirements, the Company may also submit its Affiliates to the Program by providing required information on the Affiliates to Milestone, e.g., Affiliate’s full name, address, contact information and other information if required. Such Affiliates will be enrolled and become subject to these Terms and the Program upon their acceptance by Milestone as specified in Clause 2.1. (Enrollment). The Company is responsible for and shall ensure that the included Affiliates comply with these Terms and the Program.
Milestone and/or a Milestone Affiliate shall have the right to enforce the Terms directly against the Company, respectively against the Company’s Affiliate that is related to the issue in question, or towards the Company in whole as being jointly and severally liable for the Company’s Affiliates. Milestone and/or a Milestone Affiliate shall be entitled to enforce these Terms towards the Company and/or the Company’s Affiliates on behalf of itself, Milestone, and/or another Milestone Affiliate, including in respect of losses incurred by Milestone and/or Milestone Affiliate(s).
2.5. My Milestone
The Company is granted access to My Milestone via a username and password. Usernames and passwords are individual to Company’s employees and must be stored in a safe place. Milestone reserves the right to revoke login credentials under the suspicion of misuse.
My Milestone contains the latest information pertaining to the Program itself, so it is advisable to reference this on a regular basis.
2.6. Products and pricing
The Company can access Manufacturer Suggested Retail Pricing (MSRP) information under My Milestone. Milestone publishes new price lists with MSRP for each release of Milestone Products or for changes in price lists, including but not limited to MSRP changes, as amended by Milestone, through My Milestone. Such MSRP is Milestone’s non-binding recommended retail prices for the Products.
Milestone reserves the right to change pricing on existing Products, introduce new Products and announce end of life for Products without further notice.
2.7. Usage of Company information
The Company grants the non-exclusive, worldwide and royalty-free right to Milestone to use the Company and the included Company Affiliates’ name and logo as well as address, contact information, provided in the application form and/or My Milestone, or otherwise provided and made available to Milestone, in order to advertise the Company and Company’s Affiliates on the Milestone website, such as where-to-buy section, and to generally refer to the Company and the included Company’s Affiliates for the purpose of Program management and execution, and marketing purposes.
2.8 Company’s obligations
The Company is obligated to perform its duties under the Terms, including to:
i. Adhere to and comply with the current Program, including the current Program Guide and Milestone Policies;
ii. Actively market, promote, and sell the Milestone Products subject to these Terms and the Program. The activities shall be carried out in compliance with applicable laws in the Territory, and subject to good business ethics and in a manner which favorably preserves the goodwill of the Milestone Products and Milestone;
iii. Deliver the Milestone Products to End-Users in their original form and with all related documentation and material as delivered from Milestone;
iv. Adhere to the Program requirements on training, learning and certification in order for the Company to qualify for selling Milestone Products;
v. Make commercially reasonable efforts to ensure that the Company’s sellers are trained and qualified to secure the upmost professional experience for End-Users when acquiring and using the Milestone Products;
vi. Supply the End-Users with all First Line Support for the Milestone Products and any other support as required under the Program and/or Milestone Policies, by the Company’s qualified, trained and certified personnel. The Company must collaborate with Milestone to resolve any support issue that may arise at the End-User’s installation; and
vii. The Company is required to fulfill and comply with any other Program requirements, e.g. on technical support, return material authorization process, and End-User’s authentication process, etc.
2.9. Consent to receive electronic communication
The related contacts The related contacts for the Company and Company’s Affiliates and all added individuals hereby consent to receive unsolicited electronic communications as well as service messages and notifications from Milestone. Each such unsolicited electronic communication shall provide a clear opt-out option as well as a clear identification of the sender. Unsolicited electronic communications and service messages coming from Milestone shall be relevant to the business relationship entered between Milestone and the Company, respectively the Company’s Affiliates.
3. TRADEMARKS AND OTHER INTELLECTUAL PROPERTY
The Company shall market the Milestone Products using the trademarks, name, logo, trade dress, packaging and marketing designation as determined by Milestone. The Company may not in the Territory or elsewhere apply for registration of or register trademark, domain name, company name which may be confused with trademarks proprietary to Milestone. The Company may neither directly nor indirectly use Milestone's name, trademarks or other exclusive rights as a part of its own name. The Company may not alter or delete any references concerning rights, trademarks, etc., stated in the Products or on the media upon which the Products are delivered.
Milestone retains all Intellectual Property Rights in and to the Milestone Products, its related documentation, materials, etc., except for third party Intellectual Property Rights. Except as expressly granted under these Terms, the Company is not granted any licenses or rights in any of Milestone’s Intellectual Property Rights. The Company warrants not to use Milestone’s Intellectual Property Rights outside the scope and right of use provided under these Terms.
4. MILESTONE END-USER LICENSE AGREEMENT
The Company confirms to have read and understood the EULA and to sell Milestone Products in alignment with its terms. The Company accepts that Milestone may amend the EULA at any time without notice. The EULA(s) released with the Products are found on Milestone’s website.
The EULA must be accepted for use of the Milestone Products. When e.g. installing, copying, or otherwise using a Milestone Product, the user or installer with the Company must ensure that the End-User agreesto be bound by the terms of the EULA. If not accepted, the Company may not install the Milestone Product, but instead the End-User may return the Milestone Product together with all associated material to the place of purchase for a full refund, subject to the terms offered to the End-User under the Milestone EULA.
5. CHANGES TO THE PROGRAM AND TERMS
5.1. Program changes
Milestone has the right to change, also by introducing supplementary and/or new requirements and terms, and otherwise modify or discontinue the Program or any aspect of it, including the Program Guide and any Milestone Policies. Minor changes are changes to the Program, Program Guide and Milestone Policies, save for material changes, and such minor changes can be made without Notice. Material changes, including discounts, thresholds, benefits, etc., can be brought into effect upon a minimum of 30 (thirty) days written Notice provided in accordance with Clause 10 (Notice).
Milestone Partner Program Changes will be published on the Program Website. For all changes, the Company is responsible for checking the Program Website regularly. The Company will be bound by changes to the Program, Program Guide, and/or Milestone Policies as of the date the changes are posted on the Program Website, unless the changes are subject to a Notice period, as set out in Clause 6 (Termination).
5.2. Changes to the Terms
Milestone may modify the Terms from time to time. Minor changes to the Terms can be made by publishing the revised Terms on the Program Website. Material changes to the Terms require a minimum of 30 (thirty) days written Notice provided in accordance with Clause 10 (Notice).
6. TERMINATION
6.1. Termination for convenience
At any time, the Company may terminate for convenience the Program membership by informing Milestone in writing, including if the Program and/or the Terms have been materially changed. By providing 30 days’ written Notice, Milestone may terminate for convenience the Company’s Program membership.
6.2. Termination for cause
Milestone may terminate the Company’s Program membership with immediate effect in case of a material breach of the Terms, including the Program and Milestone Policies, provided, if the breach is capable of remedy, that Milestone has sent to the Company a written Notice of the breach and of the intent to terminate, and the breach has not been remedied within fourteen (14) days from receipt of the Notice. Events of material default which cannot be remedied shall include but not be limited to any matter which may discredit Milestone or devalue the brand names used from time to time by Milestone; any new information or regulatory change which may render marketing within the Territory illegal or subject to significantly increased business risks; initiation of insolvency proceedings, bankruptcy, receivership or similar proceedings; any claimed Company’s regulatory compliance breach, such as but not limited to any claims for breach of anti-bribery, competition law, or export control requirements; or any events, which could in Milestone’s unilateral view include a direct or indirect risk of Milestone breaching or being exposed to a risk of such anti-bribery, competition law, or export control requirements.
6.3. Effect of termination
Upon termination of the Company’s Program membership, whether for convenience or for cause, the Company will not be subject to the Program and the Terms will not apply to the Company, except for the terms that by their nature will continue to have their legal effect, i.e. Trademarks and other Intellectual Property (Clause 3), Milestone Warranties and Disclaimers (Clause 7), Liability (Clause 8), Confidentiality (Clause 9), and Law and Legal Venue (Clause 16). Also, upon termination of the Company’s Program membership, whether for convenience or for cause, the Company shall:
I. have no claim for damages or compensation for loss of goodwill or the like thereof against Milestone;
II. at Milestone’s option, either promptly return to Milestone or destroy all Confidential Information which the Company has received from Milestone, but for one electronic record for archival purpose solely if needed to document its activities under the Terms in accordance with applicable law;
III. promptly pay all outstanding invoices to Milestone (if any); and
IV. have all Program rights, discounts and benefits revoked and the Company’s details removed from any public listings on any Milestone owned websites. The Company cannot use the Program label, tier, logos and any other references to the Program in any way.
7. MILESTONE WARRANTIES AND DISCLAIMERS
Milestone represents and warrants that it has good transferable title to the Milestone Products and that to its knowledge Milestone has made commercially reasonable efforts to ensure it has sufficient rights to grant license under these Terms. Milestone makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Milestone Products and Milestone trademarks.
Milestone has done its utmost to ensure that the Milestone materials and documentation displayed on the Milestone website and the Program Website, including My Millstone, and also the documentation provided by Milestone with delivery of the Milestone Products, are accurate. However, errors may occur. Milestone accepts no responsibility or liability for any incorrect material.
Unless Milestone provides a specific warranty for particular Milestone Products, Milestone expressly disclaims any warranty for the Milestone Products. Milestone Products and related documentation are provided without any implied warranty of merchantability, fitness for a particular purpose, or non-infringement. Milestone Products will be used and integrated with other third-party products and are installed by third parties or under their instructions, and, therefore, the entire risk arising out of or related to the specific use or performance of the Milestone Products remains with the users thereof.
In the event of any actual material defect or error in a Milestone software product, the sole and exclusive remedy in such event is defined in accordance with and subject to the terms offered to the End-User under the Milestone EULA, cf. Clause 4 (Milestone End-User License Agreement).
Payments offered by Milestone to the Company under the Program, e.g. rebates and other possible payments if offered and defined under the Program, which are not the Company’s tier discount under the Program, shall not be considered or interpreted as Milestone’s obligation, but an intention of a potential incentive offered by Milestone, at Milestone’s discretion and subject to the Program’s requirements, to recognize the Company’s performance under the Program. Milestone’s payments of incentives are furthermore always subject to the Program requirements, applicable law restrictions and limitations; any regulatory and compliance requirements; export control requirements; any event or restriction, which could in Milestone’s unilateral view include a direct or indirect risk of Milestone breaching or being exposed to a risk of anti-bribery, competition law, or export control requirements; or any matter which may discredit Milestone or devalue the brand names, or impose a business risk, as well as Force Majeure event, cf. Clause 15. If a payment in such event cannot in Milestone’s judgment be executed by Milestone, such payment will either not be awarded or if already awarded will be deemed cancelled at Milestone’s sole discretion without any legal and financial consequences whatsoever for Milestone and for the Company, including without any right for the Company to claim damages, refunds, penalties, or any compensation.
8. LIABILITY
Subject to these Terms and its disclaimers, exclusions and limitations on liabilities and indemnities, Milestone’s liability under these Terms and in tort is set in accordance with the governing law and only to the extent that such liability may not be contractually waived.
Milestone assumes product liability only to the extent that the product liability may not be contractually waived but disclaims product liability on any other basis. The exclusions and limitations of these Terms shall also apply to any product liability.
Milestone’s total liability and indemnifications under these Terms and in tort shall be limited to direct losses, excluding any indirect, incidental, and consequential losses (including, without limitation, damages for loss of business profits, business interruption, loss of business information and/or personal data), and shall be limited to an amount actually paid for the Milestone Products causing the event for the liability or indemnification or EUR 20,000 (twenty thousand Euro), whichever is the lowest.
9. CONFIDENTIALITY
Any Confidential Information obtained by the Company or Milestone must be returned, destroyed, and otherwise kept confidential after Program membership termination.
The Confidential Information which has been given by Milestone to the Company shall be kept confidential by the Company with the same degree of care as is customarily used in respect to the Company’s own equally important Confidential Information to avoid disclosure to any unauthorized third party and shall only be used for the purpose of the Terms.
Any misuse of the Confidential Information shall be considered a material breach of the Terms.
10. NOTICES
Milestone may provide Notices on changes to the Terms and/or Program via written information on the Program Website.
For material changes to the Terms and/or Program, Milestone shall provide at least 30 days’ notice via written information on the Program Website as well as via e-mail or other written communication to the Company contact person as registered with Milestone under the Program. Other Notices to be provided under these Terms shall be sent via e-mail or other written communication to the Company contact person as registered with Milestone under the Program, or to the Company contact in Milestone and/or to another email designated by Milestone if a written notification is required from the Company.
The Company and Company’s Affiliates must always keep their contact information current on their My Milestone account.
11. ASSIGNMENT
The Company shall have no right to transfer or assign its rights or obligations under the Terms without the prior written consent of Milestone. Milestone and Milestone Affiliates may transfer all rights and obligations under the Terms to a Milestone Affiliate, or to a third party in connection with the sale of a part or all the assets or shares of Milestone and/or a Milestone Affiliate.
12. INDEPENDENT CONTRACTORS
The Parties remain independent parties, and nothing in these Terms shall create a partnership, franchise, joint venture or agency; and neither Party will have the right, power or authority (whether expressed or implied) to enter into or assume any duty or obligation on behalf of the other Party.
13. EXPORT CONTROL
The scope of the Company’s rights under these Terms shall be subject to any applicable sanctions, export control regulations or other trade restrictive measures imposed by the United Nations, the United States of America, the United Kingdom, Denmark and/or the European Union. The Company shall not disclose information, sell, export or re-export, divert or otherwise transfer any Milestone Products, whether directly or indirectly, sold or otherwise provided by Milestone to any destination or legal or natural person, if such action is prohibited by, or subject to any applicable sanctions, export control regulations or other trade restrictive measures. Milestone shall not be obliged to sell, transfer or otherwise deliver any Milestone Products, if such sale, transfer or delivery would be prohibited pursuant to applicable sanctions or export control laws or regulations.
14. COPENHAGEN CLAUSE
Milestone is a signatory to the Copenhagen Letter, a technology declaration to aspire to open and honest public conversation about the power of technology and how technology should enhance the quality of life. We who shape technology must reflect on how technology affects human needs and behaviors, and how we further the responsible use of technology. Milestone encourages our partners not only to involve themselves in this important discussion on responsible use of technology, but to also sign the Copenhagen Letter at www.copenhagenletter.org and adopt a corresponding Copenhagen Clause into their own agreements.
15. FORCE MAJEURE
Neither Party shall be liable for loss or damage inflicted on the other Party as a direct or indirect consequence of the non-performing Party being delayed or prevented in performance of its obligations under the Terms if caused by an event which is unforeseeable, beyond the control of the non-performing Party, and cannot be remedied by the exercise of commercial reasonable efforts (“Force Majeure”). Force Majeure shall include without limitations acts of God, natural disasters, acts of government, import and export regulations or any risk thereof, war and mobilization, strikes, lock-out, fire, damage to production plant, acts of terror or cybersecurity attacks. The Party affected shall be relieved from its obligations (or part thereof) as long as performance is prevented due to Force Majeure. However, the Company shall not be excused from any obligation of payment. The Party affected shall promptly notify the other Party. In case of Force Majeure, Milestone may suspend the Company’s membership in the Program for the term defined by Milestone. During such suspension, the Company cannot exercise or enforce any of its rights and benefits under these Terms and the Program, including the license granted under this Agreement, cf. Clause 2.2. (Appointment). Either Party may terminate the Agreement if the event of Force Majeure continues for more than forty-five (45) days.
16. LAW AND LEGAL VENUE
The Terms shall be governed, interpreted, and construed in accordance with the laws of Denmark, without giving effect to its choice of laws rules. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
Any dispute arising out of or in connection with these Terms, including any disputes regarding its existence, validity, or termination, shall be finally settled by arbitration before the ICC in accordance with its rule of procedure. The tribunal shall consist of one arbitrator in which the appointment shall be effected as set forth in the procedures for constitution of the arbitral tribunal with a sole arbitrator under the ICC Rules of Arbitration. The seat of the Arbitration shall be Copenhagen, Denmark. The procedural laws of such seat of arbitration as applicable to international arbitrational proceedings shall apply where the ICC Rules of procedure are silent. All proceedings shall be confidential and shall be conducted in the English language, unless otherwise agreed by the Parties.