25 August 2021
These ANUNTA DesktopReady™ MSP Partner Terms and Conditions (these “Terms”) apply Partners who register as, and are accepted by ADI as an “MSP Partner” (“Partner”). “ADI” is Anunta Desktop Inc., a Delaware, USA corporation with an address at 9711 Washingtonian Blvd., Suite #550, Gaithersburg, Maryland 20878 USA (“ADI”) ADI and Partner may be referred to herein as a “Party,” and together as the “Parties.” An “Agreement” consists of these Terms, as accepted by ADI and Partner in an applicable Registration Form.
ADI makes available certain desktop as a service (DaaS) technology Services and services, hereafter referred to as the “Services.” Partner provides certain managed information technology services to Prospects who might desire to use Services, as provided by Partner. In consideration of the mutual promises and agreements set forth herein, the Parties agree as follows:
2.1 The following capitalized terms have the following meanings for this Agreement:
(a) “ADI Marks” has the meaning set out in Section 15.2.
(b) “Confidential Information” means any and all technical and non-technical information provided by either Party to the other, including but not limited to: proprietary information, ideas, techniques, drawings, works of authorship, models, inventions, data, databases, know-how, processes, software programs (including in the case of ADI, the Services), information related to the current, future, and proposed Services and services of each of the Parties, and including, without limitation, their respective information concerning development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, including, without limitation, this Agreement and related Schedules and pricing terms, business forecasts, business plans, sales, marketing plans and similar information relating to third parties, Prospects, and Customers.
(c) “Control Panel” means the portal or administrative control panels, collectively, through which ADI makes information about and functionality of the Services available to Partner in connection with this Agreement.
(d) “Customer” means any entity with whom Partner has entered into an agreement in accordance with the terms of this Agreement to provide for the Customer’s use of the Services.
(e) “Customer Information” means all information provided to ADI, directly or indirectly, about or pertaining to Customers, including, but not limited to, name, address, email address, contact information, license and install base data, and support renewal information.
(f) “Effective Date” means the date that ADI authorizes Partner in writing to become a Partner pursuant to this Agreement, or such other date as specified in the Registration Form.
(g) “Expert Level Support” has the meaning set out in Section 7.4.
(h) “Extension Term” has the meaning set out in Section 14.1.
(i) “Force Majeure” has the meaning set out in Section 16.2.
(j) “Indemnitee” has the meaning set out in Section 12.2.
(k) “Indemnitor” has the meaning set out in Section 12.2.
(l) “Industry Solution” means the targeted industry application described in the Registration Form.
(m) “Initial Term” has the meaning set out in Section 14.1.
(n) “Intellectual Property Rights” means all patent, copyright (including any rights in the source code), database rights, designs, design rights, trademarks, service marks, trade and business names, domain names, trade secrets and all other intellectual and intangible property rights, in each case whether registered or unregistered and including all registrations and applications therefore, and all continuations, continuations in part, divisional applications, re-examinations and renewals of any of the foregoing and all associated goodwill, in each case in any jurisdiction.
(o) “Materials” means, collectively, the Services and any other materials provided or made available by ADI to Partner in connection with this Agreement.
(p) “NFR” has the meaning set out in Section 5.1.
(q) “Partner” means the business entity identified in the Registration Form.
(r) “Partner Order” refers to an order for Services that details the rates, terms, and any other relevant information required to process and provision Services for a Customer. Every Partner Order, whether provisioned through the Control Panel or a separate document, will remain subject to and governed by the terms of this Agreement. A Partner Order is not valid until accepted by ADI.
(s) “Pricing” means pricing from ADI to Partner for Services, as set out in a Registration Form.
(t) “Prospect” is a prospective or potential Customer.
(u) “Registration Form” is the registration form identifying the Partner and spelling out other relevant terms for this Agreement whereby a Partner may become an MSP Partner. A Registration Form is not effective until it has been accepted and approved by ADI.
(v) “Representatives” has the meaning set out in Section 13.1.
(w) “Service(s)” means the ADI DesktopReady service offered by ADI for resale pursuant to this Agreement., along with the related documentation, as more particularly specified in a Registration Form.
(x) “Service Desk Support” has the meaning set out in Section 7.3.
(y) “Subscription Term” means the term of the license granted by Partner to Customer pursuant to this Agreement. Subscription Terms are a minimum of 1 month and a maximum of 3 years.
(z) “Terms of Service” has the meaning set out in Section 3.3.
(aa) “Territory” means the geographic area or other description of a subset of the world described in the Registration Form.
(bb) “Third-Party Products” has the meaning set out in Section 10.1.
(cc) “Third-Party Terms” has the meaning set out in Section 10.2.
3.1 Subject to all of the terms and conditions of this Agreement, and conditioned on approval of the Registration Form, ADI hereby appoints Partner as a non-exclusive reseller of Services solely within the Territory. Partner may resell only to Prospects who are located in the Territory and who are also customers of Partner’s designated Industry Solution. In conjunction with such appointment, ADI hereby grants to Partner a non-exclusive, revocable, nontransferable license to market and sell the Services to Prospects and Customers within the Territory.
3.2 ADI may work with multiple Partners (as referral partners, resellers, distributors, or otherwise) in the Territory.
3.3 Use of Services by Prospects or Customers is in all events subject to the terms of the DesktopReady Terms of Service (the “Terms of Service,” available at https://www.desktopready.com/documentation/terms-of-use-msp) and any applicable Third Party Terms (defined in Section 10.2, below). Partner must ensure that the then-current Terms of Service and applicable Third Party Terms are presented to, and accepted by, Customers, in a full and unmodified format.
4.1 ADI may permit Partner to brand the Services with Partner-specific branding (“Partner Branding”) prior to making the Services available for re-sale by Partner. The Services may retain “Powered by DesktopReady” marks and logos, along with any relevant patent, copyright and/or other intellectual property notices as may be determined to be appropriate by ADI.
4.2 ADI may only use any Partner Branding materials provided to ADI for the purposes of re-branding the Services as contemplated in this Section and for the operation of the white-labeled Services. Except for the foregoing limited rights, Partner will retain all right, title and interest in the Partner Branding provided to ADI.
4.3 Partner represents and warrants that it has all applicable rights to the Partner Branding to authorize its use as provided in this Section 4. ADI may refuse to apply, or remove, Partner Branding at any time for any reason, in its sole discretion.
5.1 Partner’s use of any ADI-provided free Services (not for resale, or “NFR”) is for marketing and internal training and development purposes only, and not for other production use by Partner or for resale. Use of all NFR Services is otherwise subject to the Terms of Service.
5.2 All Partner Orders will be fulfilled through the Control Panel, or through access over the internet with specified credentials. ADI may provide Partner with the capability to do initial provisioning of Customers without the need for action by ADI. In some cases, small portions of software will be downloaded onto Partner or Customer systems, as applicable, and all as part of the Services.
5.3 The Services are licensed and not sold. As between Partner and ADI, ADI and its licensors own all rights, title and interest in and to any Materials supplied to Partner or Customers hereunder (including, without limitation, any constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Materials). Partner may not remove or alter any copyright notices or other proprietary rights notices placed on or embedded in the Materials including the Services. Partner must immediately notify ADI of any infringing copy or reproduction of Materials, and Partner may not distribute or assist in distributing such infringing copy or reproduction. Partner will do all other things reasonably requested by ADI to protect ADI intellectual property rights in the Materials, including without limitation copyrights, patent rights, trademarks and trade secrets.
5.4 Unless otherwise authorized by applicable law or as specifically provided in this Agreement, Partner may not: (a) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to discern the source code incorporated into the Materials , or their individual components, (b) sell, resell, rent, lease, or distribute the individual components of the Materials, (c) remove, obscure, or obfuscate any copyright, trademark or other proprietary notice, label or marking on the Materials or components thereof, or (d) modify, translate, or sublicense the individual components of the Materials.
5.5 ADI and its licensors reserve all rights not expressly granted in this Agreement. The licenses granted hereunder are non-exclusive, and ADI may continue to market the Services, and grant rights therein, to third parties in its sole discretion.
5.6 Partner may translate certain Materials into local language(s) in use in the Territory, but ADI has the right to review and approve all such translations. In addition, upon termination or expiration of this Agreement, ADI will be entitled to copy, use, and modify any such translated Materials for its own use and for the use of other resellers or marketing partners or suppliers, all without the need to account to Partner.
5.7 Partner must comply with applicable laws and ADI policies relating to Partner’s advertising, marketing, and promotional activities and will not make unfair, misleading, inaccurate, exaggerated or false claims about the Materials or the Services.
6.1 In general, Partner must: (a) identify appropriate sales opportunities for the Services, (b) qualify Prospects, (c) close sales of, and deliver, Services to Customers, and (d) assist with support, as more particularly described in Section 7.
6.2 In furtherance of its obligations under Section 6.1, Partner will, at its own expense, use commercially reasonable efforts to market the Services to Prospects through various media and methods, including, but not limited to, by means of engaging the services of advertising agencies, sales representatives or similar third parties, by participation in trade shows or professional meetings, or by publication online or in the print or broadcast media.
6.3 Partner will provision Prospects, as applicable, and Customers so they can access the Services, all as reasonably directed by ADI, including through the Control Panel.
7.1 In general, Partner will provide Support as set out in a Registration Form. Support for the Services will generally be categorized as “Service Desk Support” or “Expert Level Support,” as described below in this Section 7 and as may be more particularly described in a Registration Form.
7.2 Before providing any support for Services, Partner must:
(a) Complete ADI’s applicable Partner training requirements, and
(b) Establish demonstration, testing and interoperability capabilities in collaboration with ADI’s Partner Relationship Manager (designated in the Registration Form, or such new Partner Relationship Manager as may be appointed by ADI from time to time).
7.3 “Service Desk Support” means that a Party will:
(a) Take calls and reports from Customers,
(b) Ensure that the Customer’s problem is not generated by an unsupported system configuration or third-party cause,
(c) Duplicate the problem for isolation and testing purposes documenting the operational steps needed to reproduce the problem,
(d) Research solutions and workarounds in the ADI Knowledgebase, and
(e) Where a solution or workaround cannot be found, escalate Expert Level Support.
7.4 “Expert Level Support” means that ADI will:
(a) provide engineer/developer support to address any issues with the Services that are not resolved with Service Desk Support,
(b) when Service Desk Support is provided by Partner, ADI will work directly with Partner’s trained support staff only to assist with Service issues encountered by Partner or Customers, and
(c) on a case-by-case basis, interact with Customers or Prospects, upon written request by the Partner, provided Partner qualified staff is present on all such calls (such services to be provided, if at all, at ADI's discretion, with no obligation to provide any such services).
7.5 When Service Desk Support is provided by Partner, as a condition to ADI’s Expert Level Support, Partner must:
(a) Provide clear, accurate and complete problem statements with symptoms and environment information,
(b) Ensure highly qualified resources are available to assist the ADI support engineer assigned to the case,
(c) Ensure any workaround or final resolution provided will be usable and acceptable in the customer’s environment,
(d) Deliver all ADI lab-tested solutions to the Customer in a timely manner and verify application, and
(e) Promptly report any issues with the new solution to ADI.
8.1 Partner must comply with all governing laws, including but not limited to the Foreign Corrupt Practices Act (“FCPA”) and all US and international anti-bribery laws as applicable. Neither Partner nor any of its agents or employees may offer, pay, promise or authorize any direct or indirect payments of anything of value for the purpose of obtaining business to any government official (including any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, or any official or employee of any public international organization, such as the United Nations or World Bank, or any person acting in any official capacity for or on behalf of such government, public enterprise or state-owned business), any political party or party official, any political candidate or any person or entity whom Partner knows or has reason to believe will give part of the payments to any of the previously mentioned categories of people. Should Partner have any further questions about the FCPA, Partner may visit the Department of Justice’s website at http://www.usdoj.gov/criminal/fraud/fcpa/.
8.2 Partner must comply with all ADI policies and processes required in connection with this Agreement. Partner may only export or re-export Services as permitted by this Agreement and all applicable export control laws, including the United States Export Administration Act. All other exports are expressly prohibited.
9.1 In general, Partner must qualify and register Prospects with ADI by completing and forwarding the ADI Deal Registration Form (“Deal Form,” as the same may be provided by ADI) to ADI’s designated contact (the “Relationship Manager”). Each approved Deal Form will be valid for 90 days from ADI's approval and will reserve the registered Prospect deal to the Partner. ADI will accept or reject each such Deal Form in ADI's sole discretion. ADI may, for example, reject a proposed Deal Form if: (a) a Prospect is already under contract with ADI, (b) a third party not affiliated with ADI introduces a Prospect or refers a Prospect to ADI before a Deal Form referring to the same Prospect is provided by Partner to ADI, or (c) ADI has entered into discussions with the Prospect prior to receipt of a Deal Form from Partner.
9.2 As a reseller, Partner will place orders for Services for a particular Customer as reflected in a Partner Order. All Partner Orders are subject to acceptance by ADI, in its sole discretion in each case.
9.3 Unless otherwise agreed to in writing, Partner must pay for the applicable subscription term upon delivery of the Services to Partner or Customer. Unless otherwise specified in a Partner Order, ADI will issue monthly invoices to Partner for payment of the Services for applicable Customers in the next month, and Partner will have 30 days from the invoice date to pay it. Any payment which is delayed for more than 30 days beyond the due date will be subject to any interest and service charge of 1.5% per month, compounded monthly from the date such payment first became due until paid. All payments made hereunder must be made in U.S. dollars by wire transfer, check, or other reasonable payment means and to such bank account(s) indicated by ADI in writing from time to time. Partner’s failure to pay may result in termination or suspension of Services by ADI.
9.4 Partner represents and warrants that it is and will be an authorized agent of each Customer, empowered to act on Customer’s behalf as reflected in the Partner Order or other acts undertaken on behalf of a Customer. Until and unless notified in writing to the contrary, ADI will deal with Partner, acting on Customer’s behalf, as necessary, to provide the Services and any related Support.
10.1 The Service may be delivered with, or require the use of, certain third-party applications, services or products, as specified in a Partner Order (“Third-Party Products”). In addition, ADI may make available additional, optional third-party applications, services or products for use in connection with the Service, and those are Third-Party Products as well. Use of the Third-Party Products (and any exchange of any information, license, payments etc.) is between Partner and the applicable provider of the Third-Party Products. ADI makes no warranties of any kind and assumes no liability of any kind for Partner or Customer use of such Third-Party Products.
10.2 Use of any Third-Party Products may be subject to additional terms and conditions (the “Third-Party Terms”), and Customer may be required to agree to the applicable Third-Party Terms before it is permitted to use the Third-Party Products. To the extent that no separate Third-Party Terms apply, use of the Third-Party Products, as applicable, is subject to the terms of Sections 5, 12, and 16 of these Terms.
10.3 Except as otherwise specified in a Partner Order, all Third-Party Products are the responsibility of MSP to provide or make available to Customers, and MSP must obtain Customer acceptance of applicable licenses to Third Party Technology.
10.4 The Services require the use of certain services provided by Microsoft Corporation (“Microsoft”). Customer must have applicable license rights to required Microsoft products for use of the Services. Customer may acquire the required licenses to the Microsoft products from ADI, if specified in a Partner Order (to the extent specified in a Registration Form), or from an authorized distributor of the required Microsoft products. Upon request, Partner will provide evidence of applicable licenses for a Customer to use Microsoft products. To the extent the Microsoft products are obtained through ADI and not otherwise subject to applicable Third-Party Terms, those products will be considered part of the Materials for purposes of this Agreement.
11.1 ADI and Partner may use the other Party’s names and public logos on any public “partner” listing or website in a reasonable form or manner (such permission subject to revocation at any time by the owner of the name/logo).
12.1 ADI will indemnify, defend, and hold harmless Partner, its employees, officers, directors, and agents from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) incurred in connection with any claim, action, proceeding, or judgment arising from any and all third-party claims that the Services, as used in accordance with this Agreement, infringe third-party Intellectual Property Rights. Excluded from the above indemnification obligations are claims to the extent arising from (i) a modification of the Services by or at the direction of Partner or a Customer, (ii) use of the Services in violation of this Agreement or applicable law, (iii) use of the Services after ADI notifies Partner or Customer to discontinue use because of an infringement claim, (iv) the combination, operation, or use of the Services with any other software, program, service, or device not provided or specified by ADI, to the extent such infringement would not have arisen but for such combination, operation, or use, or (v) Partner’s or Customer’s use of the Services in a manner that is inconsistent with its intended use.
12.2 Each Party (the “Indemnitor”) will defend and indemnify the other Party, and its agents, employees, officers, directors and representatives (each, an “Indemnitee”) against and hold such persons harmless from any liability or damages assessed against or incurred by an Indemnitee arising out of any personal injury or death caused by the Indemnitor’s gross negligence or intentional misconduct, except to the extent resulting from the Indemnitee’s negligence or intentional misconduct.
12.3 Partner must not make any false or misleading representations to Prospects or Customers relating to the Services.
12.4 PARTNER WILL INDEMNIFY AND HOLD ADI HARMLESS FROM AND AGAINST ALL CLAIMS, LOSSES, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING DIRECTLY OR INDIRECTLY OUT OF ANY ACT OR OMISSION OF PARTNER, INCLUDING BUT NOT LIMITED TO THE FURNISHING OF ANY SERVICES, ANY UNAUTHORIZED REPRESENTATIONS OR WARRANTIES MADE, THE IMPROPER USE OF ANY OF THE ADI MARKS (DEFINED BELOW), OR ANY FAILURE TO COMPLY WITH ANY OF THE TERMS OF THIS AGREEMENT.
12.5 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT AND EACH APPLICABLE SCHEDULE FOR: (A) LOSS OF ACTUAL OR ANTICIPATED PROFIT, (B) LOSSES CAUSED BY BUSINESS INTERRUPTION, (C) LOSS OF GOODWILL OR REPUTATION, (D) LOSS OF OR CORRUPTION OF DATA, OR (E) ANY INDIRECT, PUNITIVE, EXEMPLARY, MULTIPLE, SPECIAL OR CONSEQUENTIAL COST, EXPENSE, LOSS OR DAMAGE, EVEN IF SUCH COST, EXPENSE, LOSS OR DAMAGE WAS REASONABLY FORESEEABLE OR MIGHT REASONABLY HAVE BEEN CONTEMPLATED BY THE PARTIES AND WHETHER ARISING FROM BREACH OF CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE.
12.6 EXCEPT AS EXPRESSLY PROVIDED IN ADI’S SERVICE DESCRIPTION DOCUMENT AVAILABLE THROUGH THE CONTROL PANEL, ADI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET THE PARTNER’S OR ANY CUSTOMER’S REQUIREMENTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND ANY RELATED SERVICES ARE PROVIDED TO PARTNER “AS IS” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
12.7 IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER FOR ALL CLAIMS OF ANY KIND ARISING IN CONNECTION WITH THIS AGREEMENT, THE SERVICES, OR ANY OTHER MATERIALS OR SERVICES FURNISHED HEREUNDER EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO ADI HEREUNDER DURING THE 12-MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO LIABILITY FOR ANY DAMAGES.
12.8 THE LIMITATIONS STATED IN SECTIONS 12.5, 12.6, AND 12.7 ABOVE APPLY WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY), TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE GROUNDS. EACH OF THE LIMITATIONS OF LIABILITY IS INTENDED TO BE ENFORCEABLE REGARDLESS OF WHETHER ANY OTHER EXCLUSIVE OR NON-EXCLUSIVE REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
12.9 The provisions of Sections 12.5 and 12.7 will not apply to any claims arising under, or relating to, a Party’s breach of its obligations pursuant to Sections 12.1-and 12.4 (Indemnity), or a Party’s gross negligence or willful misconduct.
12.10 In no event may Partner or Customer bring any claim, action or proceeding arising out of this Agreement more than one year after the date on which the claim accrued.
12.11 Except as specifically provided in this Agreement, each Party is responsible for the general maintenance and security of its own software, data and equipment.
13.1 Each Party will hold the other’s Confidential Information in confidence and, unless required by law, will not make the other Party’s Confidential Information available in any form to any third party or use the other Party’s Confidential Information for any purpose other than for the performance of its obligations hereunder. Each Party may only permit access to Confidential Information of the other Party to those of its agents, employees, officers, and directors (collectively, “Representatives”) having a need to know. Each Party will be responsible for ensuring that their respective Representatives do not disclose, use or distribute Confidential Information in violation of the terms of this Agreement. Each Party will undertake commercially reasonable efforts to protect the other Party's Confidential Information, which efforts means in all cases exercising at least the degree of care that the receiving Party uses to prevent disclosure, publication or dissemination of its own Confidential Information.
13.2 A Party’s Confidential Information will not include information that: (a) is or becomes a part of the public domain through no act or omission of the other Party, (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party, (c) is lawfully disclosed to the other Party by a third party without restriction on disclosure, or (d) is independently developed by the other Party.
13.3 Notwithstanding anything to the contrary in this Section 13, the receiving Party may disclose Confidential Information of the disclosing Party to the extent such information is required to be disclosed by law, including a subpoena, or to respond to a regulatory request, provided the receiving Party, to the extent practicable and legally permissible, promptly notifies the disclosing Party in writing of such intention prior to any disclosure to allow the disclosing Party to seek a protective order or similar relief in the disclosing Party's sole and absolute discretion, and at the disclosing Party’s sole cost and expense, as between the Parties. In addition, such Confidential Information will not, by virtue of such compelled disclosure alone, be excluded from the definition of, and protections of, such information.
13.4 Upon any termination of this Agreement, Partner must (i) deliver to ADI or securely erase all Confidential Information furnished by ADI, and (ii) erase or destroy all copies of part or all of the Confidential Information under Partner’s control, including all copies that are fixed or running in machines controlled by Partner. In addition, an authorized representative of Partner must certify in writing to ADI that it has complied with the requirements of this Section 13.4.
14.1 This Agreement will commence on the Effective Date and, unless earlier terminated in accordance with the terms hereof, will remain in effect for the “Initial Term” set forth in the Registration Form. If no term is specified in the Registration Form, then the Initial Term will be 1 year. After the Initial Term, this Agreement will automatically renew for successive 1-year terms (each, an “Extension Term,” and, together with the Initial Term, the Term).
14.2 Either Party may terminate this Agreement for convenience on no less than 30 days’ written notice provided to the other Party.
14.3 In the event either Party (the "breaching Party") is in material breach of this Agreement, the other Party (the "non-breaching Party") will have the right to terminate this Agreement. In such event, the non-breaching Party will give the breaching Party notice specifying the nature of the breach, and, if the breaching Party fails to cure the breach within 10 days of receipt of such notice, the non-breaching Party may thereafter terminate this Agreement effective immediately by giving notice of same.
14.4 In the event of termination, neither Party waives any right to damages which it may have in accordance with the terms of this Agreement and applicable law. No termination will relieve either Party of any obligation to pay amounts due as a result of transactions occurring prior to the effective date of termination.
14.5 The Parties expressly agree that no damages, indemnity or termination benefits whatsoever (including, without limitation, any compensation for goodwill established by Partner during the term of the Agreement or for any lost profits or expenses of Partner) will be due or payable to Partner by reason of any termination of this Agreement, and Partner expressly waives the application of any statute, law or custom to the contrary.
14.6 Upon termination, Partner must immediately cease all activities associated with the selling or reselling of the Services. Upon termination, Partner must cease all use of, and must return to ADI, all Services provided hereunder. Neither party will be responsible to the other for any costs or damages resulting from the termination of this Agreement. Termination or expiration of this Agreement will not relieve either party of obligations or liabilities incurred prior to such termination or expiration.
14.7 Except in case of termination by ADI for Partner’s default or Partner’s business failure, licenses properly granted to Customers prior to termination of this Agreement will survive according to their terms, and ADI and Partner will perform pursuant to this Agreement until the expiration or termination of all related outstanding orders by Customers in effect as of the date of termination.
14.8 In case of termination by ADI for Partner’s default or Partner’s business failure, or in case of a Customer written request at any time, ADI may offer to provide, and provide, the Services directly to the Customer or through another partner.
14.9 If Customer requests to work directly with ADI or with another reseller of the Services, then ADI and Partner will cooperate with Customer to effect such change with minimal disruption to Customer’s business.
14.10 Notwithstanding anything else in this Agreement, the provisions of Sections 2, 3.3, 5, 8, 12, 13, 14, 15, and 16 will survive any termination of this Agreement.
15.2 ADI trademarks, service marks and logos supplied or made available to Partner in connection with this Agreement (the “ADI Marks”) may be used solely in press releases or other public announcements or related marketing programs as provided by ADI and only in the manner expressly approved by ADI in advance in writing. The ADI Marks may not be used in any manner that express or might imply ADI affiliation, sponsorship, endorsement, certification, or approval, other than agreed by ADI in writing. The ADI Marks may not be included in any Partner or non-ADI trade name, business name, domain name, Service or product name, logo, trade dress, design, slogan or other trademark. Partner is hereby granted a non-exclusive, limited, immediately terminable license during the term of this Agreement to use the ADI Marks solely for the purpose of advertising, marketing, promoting, and selling the Services and solely in accordance with this Agreement, applicable law, and ADI policies related to use of its Marks. All use of the ADI Marks inures to the benefit of ADI alone.
15.3 Partner consents to receiving marketing-related information from ADI. Partner agrees that ADI may reference Partner as a member of the ADI Partner Network Program using Partner’s logo, with the prior written approval of the Partner, provided ADI complies with the Partner’s then current trademark guidelines as provided by the Partner. Partner also consents to ADI using Customer Information or Partner information provided by Partner to populate data on ADI license activation and support renewal portals as well as any other mechanisms developed by ADI to aid in delivering Services and any related services to customers.
16.1 Notwithstanding the use of the term “Partner,” Partner and ADI are independent contractors and are not, and may not represent themselves as, principal and agent, partners or joint venturers. Neither Party may attempt to act, or represent itself as having the power, to bind the other or create any obligation on behalf of the other. Each Party will be solely responsible for the employment, direction and control of its respective employees and their acts.
16.2 Neither Party will be responsible or have any liability for any delay or failure to perform its non-monetary obligations under this Agreement to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of nature, earthquake, fire, flood, sanctions, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities and severe weather (“Force Majeure”). The affected Party will give the other Party prompt written notice (when possible) of the failure to perform due to Force Majeure and use its reasonable efforts to limit the resulting delay in its performance.
16.3 THE MATERIALS ARE NOT FAULT TOLERANT AND ARE NOT GUARANTEED TO BE ERROR FREE OR TO OPERATE UNINTERRUPTED. PARTNER AND EACH CUSTOMER AGREES THAT IT SHALL NOT USE THE MATERIALS IN ANY MANNER IN WHICH THE FAILURE OF THE MATERIALS COULD LEAD TO DEATH OR SERIOUS BODILY INJURY OF ANY PERSON OR TO SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“High Risk Use”). Examples of High Risk Use include, but are not limited to: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include utilization of the Materials for administrative purposes, to store configuration data, engineering and/or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with applications that perform the control, but must not be directly or indirectly responsible for the control function. Partner agrees to indemnify and hold harmless ADI from any claim arising out of Partner’s or any Customer’s use of the Materials in connection with any High Risk Use.
16.4 During the term of this Agreement, upon reasonable notice, not to exceed 15 days, ADI will be entitled to audit Partner’s records to verify Partner’s compliance with: (a) all terms of this Agreement including but not limited to: territorial restrictions, program compliance, protection of proprietary rights, confidential information and payment obligations, and (b) any ADI policies applicable to Partners. In the event an audit reveals that Partner is not in compliance, ADI will be entitled to immediately terminate Partner from any Program or pursue all legal, injunctive and equitable remedies available. Any such inspection will be performed at the expense of ADI during normal business hours and with full cooperation by Partner no more than twice per calendar year, provided further that Partner must promptly reimburse ADI for the cost of such audit if such audit reveals (1) any evidence that Partner has violated governing laws, Program rules or ADI policies, or (2) any other material breach of this Agreement. In addition to the foregoing, Partner will be required to immediately reimburse ADI for any and all underpayments or improperly obtained Program benefits, incentives or discounts uncovered by an audit or similar investigation.
16.5 This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, USA, without reference to its choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods, the Uniform Commercial Code, the Uniform Computer Information Transactions Act, and any law effectuating these conventions do not apply to these Terms. Any claims relating to this Agreement can only be litigated in the federal or state courts the State of Delaware, and Partner and ADI each agree to personal jurisdiction in those courts. However, ADI may apply for injunctive remedies in any jurisdiction.
16.6 ADI provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services consist only of those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial).
16.7 This Agreement sets forth the entire agreement between the Parties relating to the subject matter hereof and supersedes any prior oral or written agreements and understandings relating thereto. No modification, amendment or waiver of any of the provisions of this Agreement will be binding upon ADI or Partner unless it is in writing and is executed by the Party against whom such amendment, waiver or discharge is sought to be enforced. No purchase order, invoice or other similar form may vary the terms hereof, and any term thereof that is inconsistent with or additional to the terms hereof will not be binding, unless otherwise expressly agreed by the Parties in writing.
16.8 No delay or omission by either Party hereto in exercising any right or power occurring upon any noncompliance or default by the other Party with respect to any of the terms of this Agreement will impair any such right or power or be construed to be a waiver thereof. A waiver by either of the Parties of any of the terms of this Agreement will not be construed to be a waiver of any succeeding breach hereof or of any other terms of this Agreement.
16.9 All notices to be given in connection with this Agreement will be effective upon receipt, must be made in writing and will be sufficiently given if personally delivered or if sent by courier or certified mail, return receipt requested, addressed to the Party entitled or required to receive such notice at the address for such Party set forth in the Registration Form. Either Party may by such notice to the other change such address. All notices ADI must be accompanied by a contemporaneous copy of same by email to email@example.com.
16.10 The terms and conditions of this Agreement are personal to Partner and Partner may not assign its rights or delegate its obligations hereunder without the prior written consent of ADI. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the successors and assigns of the Parties.