Last Updated: May 14, 2014
These Program Terms (“Terms”) are part of an agreement (the “Agreement”) between Partner and DataStax that includes these Terms, any terms expressly incorporated herein by reference, any terms in a fully-executed document that incorporates these Terms (the “Enrollment Form”), and the terms in a schedule or exhibit that is expressly incorporated into this Agreement (a “Schedule”). The Agreement shall govern Partner’s enrollment and participation in the DataStax Partner Network (“DSPN”).
1. Program Guide
The “Program Guide” means the then-current DSPN program guide made available to Partner. The Program Guide provides details regarding the DSPN, including benefits, requirements, commercial models and the roles and responsibilities of DataStax and Partner under the DSPN, and is incorporated into this Agreement by reference. Subject to the terms of this Agreement, DataStax and Partner agree to abide by the applicable requirements of the Program Guide.
2. Business Practices
DataStax and Partner shall comply with good business practices and all applicable laws and regulations, including export controls and any laws or regulations specified in this Agreement, and shall diligently perform all other duties as mutually agreed upon herein. Partner shall conduct business in a lawful manner that reflects favorably on DataStax and its products, and Partner shall make no false, misleading, or inaccurate representations or advertisements regarding the DataStax products or DataStax.
Partner and DataStax may each publicly identify Partner as a participant in the DSPN, and may include the other’s Marks in a list of business associates, online or in promotional materials. “Marks” means a party’s trade names, trademarks, logos, domain names and designations. Each party grants to the other party a nonexclusive, worldwide, non- transferable, royalty-free license to use the other party’s Marks pursuant to this Agreement; provided that each party agrees to follow the trademark or identity guidelines provided by the other party, and provided that either party may revoke the other party’s right to use its Marks on written notice.Neither party shall register the other party’s Marks, obtain a URL using the other party’s Marks, bid on or purchase any keyword which is the other party’s Marks in any keyword advertising service (such as, for example, Google AdWords), or use the other party’s Marks in any of its own Marks.
4. Term & Termination
Unless terminated sooner or extended according to its terms, this Agreement shall have a one year term, starting on the Effective Date. If the parties continue to do business with each other after such termination without full documentation of an extension to the initial term, the relevant terms of this Agreement will continue to govern the relationship unless otherwise expressly agreed in writing and except that the relationship may be terminated by either party on 90 days written notice. Either party may terminate this Agreement, or any Schedule under it, at any time, (1) in the event that the other party breaches any material term of this Agreement and fails to cure such breach within 30 days following notice from the non-breaching party; or (2) with or without cause, upon 90 days’ written notice. If this Agreement or any Schedule under it is terminated without cause, then the terminating party shall refund any prepaid but unused fees, but any fees prepaid to the non-terminating party are non-refundable. If the Agreement expires or is terminated, then the rights granted by one party to the other will immediately cease and, upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
During the term of this Agreement, both parties agree that (1) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (2) each will use the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care; and (2) Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. “Confidential Information” means any information designated as confidential orally or in writing by either party, or any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party. This Agreement imposes no obligation with respect to information which: (1) is a part of or enters into the public domain; (2) was already in the recipient’s possession prior to the date of disclosure other than by breach of this Agreement; (3) is rightfully received from a third party without any duty of confidentiality; (4) is independently developed without reference to the Confidential Information of the disclosing party.
6. Intellectual Property
Except as expressly set forth herein, neither party will acquire any rights, title or interest, in any of the IP Rights belonging to the other party. As between the parties, each party owns all IP Rights in its products, services and Marks. “IP Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY NOR ITS SUPPLIERS MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EACH PARTY, FOR ITSELF AND ITS SUPPLIERS, SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
8. Limitation of Liability
To the fullest extent permitted by applicable law, in no event shall either party or its suppliers be liable for damages other than direct damages, including the cost of procurement of substitute goods or technology, loss of profits, or for any special, consequential, incidental, punitive or indirect damages on any theory of liability, whether in statute, contract, tort, strict liability or otherwise, even if advised of the possibility of such damages. To the fullest extent permitted by applicable law, in no event shall the total liability of either party to the other party under this Agreement exceed the total amounts paid by one party to the other party during the 12 months prior to the date the claim arises. The liability limitations in this paragraph (and otherwise in the Agreement) do not limit or exclude damages for bodily injury or death or other damages that under applicable law cannot be limited or excluded.
9.1. Amendment. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and is signed by both parties.
9.2. Anti-Bribery/Foreign Corrupt Practices Act. Each party acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA”) and the U.K. Bribery Act of 2010 (“UKBA”) (and any other similar laws in other jurisdictions (“Anti-Bribery Laws”) and agrees to comply with their terms as well as any provisions of related local law and the other party’s corporate policy and procedures related thereto. Each party further understands the provisions relating to the Anti-Bribery Laws prohibitions regarding the payment or giving of anything of value, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party’s influence with that government, to obtain or retain business or otherwise gain an advantage. Each party is also aware of the UKBA’s prohibition relating to providing things of value to any person, not only foreign officials, with the intent to induce such party to not act with good faith, impartiality or abuse a position of trust. Each party, including but not limited to its officers, directors, employees, agents or subsidiaries, agrees to not violate or knowingly let anyone violate the Anti-Bribery Laws while working on behalf of the other party. Upon one party’s request, the other party agrees to provide written certifications of its Anti-Bribery Laws compliance and assist the other party with an investigation into possible wrongdoing should a party have reason to believe violations of the Anti-Bribery Laws have occurred in connection with Partner’s engagement with the DataStax.
9.3. Assignment. This Agreement may not be assigned by either party by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of the Agreement by DataStax pursuant to a merger, acquisition or sale of all or substantially all of its assets.
9.4. Conflicting Terms. If there is a conflict among the documents that make up this Agreement, the documents will control in the following order: the Enrollment Form (and its attachments), the Program Guide, these Program Terms, and the terms located at any URL referenced in this Agreement.
9.5. Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. No term or condition contained in a purchase order or similar document will apply unless specifically agreed to by DataStax in writing, even if DataStax has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by DataStax. The terms located at a URL referenced in this Agreement are hereby incorporated by this reference. After the Effective Date, DataStax may provide Partner with an updated URL in place of any URL in this Agreement. If DataStax provides any consulting services to Partner, it provides those according to the Services Terms at www.datastax.com/services-terms, as updated or amended from time to time.
9.6. Export Controls. Partner agrees to comply with all applicable export controls laws (US or otherwise), export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and to ensure that the DataStax and Partner products and services are not, in violation of any laws, exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
9.7. Force Majeure. Neither party will be liable for failure or delay in its performance under this Agreement to the extent caused by circumstances beyond its reasonable control.
9.8. Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without regard to its conflict of laws principles, and any disputes arising herender will be litigated exclusively in the federal or state courts of Santa Clara County, California, USA; the parties consent to personal jurisdiction in those courts. Each party hereby waives any right to jury trial in any litigation in any way arising out of or related to this Agreement.
9.9. Independent Contractors. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors. The term “Partner” is used in this Agreement as a naming convention only. It is not intended to imply or create a legal partnership, joint venture or similar legal connection between Partner and DataStax.
9.10. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
9.11. Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
9.12. Severability and Waiver. In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, the provision (or portion) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
9.13. Survival. The following sections will survive any expiration or termination of this Agreement: Confidentiality, Intellectual Property, Disclaimer, Limitation of Liability, and Miscellaneous.
9.14. Updates. Except as expressly provided herein, no modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each party. DataStax may make changes to terms located at a URL referenced in the Agreement, including these Terms (collectively, the “URL Terms”) from time to time. DataStax will post the amended terms and will update the “Last Updated Date” at the top. By continuing to participate in the DSPN after DataStax has provided such notice of a change, Partner is indicating that it agrees to be bound by the modified terms. If the change has a material adverse impact and Partner does not agree to the change, Partner must notify DataStax within thirty days after being informed of the change. If Partner notifies DataStax as required, then Partner will remain governed by the terms in effect immediately prior to the change until the end of the then-current Agreement term. If the Agreement is renewed, it will do so under the updated URL Terms.