BY CLICKING “ACCEPT”, ACCESSING THE PARTNER PORTAL, OR PARTICIPATING IN ANY DENODO PARTNER PROGRAM ACTIVITIES (INCLUDING USE OF ANY DENODO PROGRAM MATERIALS OR BENEFITS), YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS PARTNER AGREEMENT. THIS IS A LEGAL AGREEMENT BETWEEN YOU, AND, IF APPLICABLE, YOUR AFFILIATES (“PARTNER”) AND DENODO TECHNOLOGIES INC., AND ITS AFFILIATES (“DENODO”). IF YOU SIGN UP FOR THE DENODO PARTNER PROGRAM OR PARTNER PORTAL USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER AFFILIATE, OF IF YOU ARE AN EMPLOYEES, CONTRACTOR OR AGENT OF AN ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT THAT ENTITY, (B) YOU HEREBY BIND THAT ENTITY TO THIS AGREEMENT AND REPRESENT WARRANT THAT YOU HAVE AUTHORITY TO DO SO AND (C) THE WORD “YOU” AND “PARTNER” HEREIN WILL REFER TO THAT ENTITY, THE RIGHTS AND BENEFITS GRANTED UNDER THIS AGREEMENT, INCLUDING ANY BENEFITS OF THE DENODO PARTNER PROGRAM, ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS THE PARTNER PORTAL, PARTICIPATE IN DENODO PARTNER PROGRAM ACTIVITIES, OR USE ANY DENODO PROGRAM MATERIALS. IF YOU DO NOT AGREE YOU SHOULD NOT CLICK “ACCEPT” NOR SHOULD YOU ACCESS THE PARTNER PORTAL NOR PARTICIPATE IN THE DENODO PARTNER PROGRAM ACTIVITIES. THIS AGREEMENT SHALL BE EFFECTIVE UPON THE EARLIER OF (1) YOU CLICKING “ACCEPT”, (2) YOUR ACCESSING THE PARTNER PORTAL, OR (3) YOU PARTICIPATING IN THE DENODO PARTNER PROGRAM ACTIVITIES.
For purposes of this Agreement, “Affiliate” means any entity, currently or in the future, that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” is defined as ownership of more than fifty percent (50%) of outstanding shares or securities, or an equivalent ownership interest.
BACKGROUND
- Denodo is in the business of developing data virtualization software products and solutions that substantially improve the integration of internal and external data sources and enable the faster and more cost-effective and secure delivery of data for analytics and new business applications.
- Partner wishes to participate in Denodo’s partner program pursuant to the terms of this Agreement and the Program Details (defined in Section I.a) and market, sell or deliver services on certain Denodo products (“Denodo Products”) for mutual benefit.
AGREEMENT
Partner Program; Structure
- Generally. This Agreement is the master agreement setting forth the general legal terms governing the relationship between Partner and Denodo. Partner has elected to participate in one or more of Denodo’s partner programs, the commercial terms of which are described in Attachment B and in the Denodo Partner Program Guide, which is hereby incorporated by reference into this Agreement (together, the “Program Details”). All references to this Agreement shall be deemed to include the Program Details, as may be amended by Denodo from time to time in accordance with the terms of Attachment B.
- Appointment. Subject to Partner’s compliance with this Agreement, Denodo authorizes Partner, on a non-exclusive basis: (i) solely to the extent expressly permitted by the Program Details, to refer prospective Customers (defined in Section I.e) to Denodo; (ii) solely to the extent expressly permitted by the Program Details, to market and resell Denodo Products to, and solicit purchase orders for the Denodo Products from, Customers and prospective Customers, in each case having a business address in the Territory (defined in Section I.c); (iii) to display, demonstrate and evaluate the Denodo Products for Customers and prospective Customers, subject to confidentiality obligations as otherwise set forth herein; and (iv) to copy and distribute marketing materials and documentation provided to Partner by Denodo, solely in connection with Partner’s marketing and support of the Denodo Products in accordance with this Agreement (including the Program Details).
- Territory. The Partner’s “Territory” shall be set forth in Attachment A.
- Structure. This Agreement is between Denodo and Partner. The Parties may also elect to enter into one or more separate agreements incorporating this Agreement and setting forth the Parties’ responsibilities in respect of a specific Customer relationship or engagement (each a “Transaction Agreement”). Denodo shall enter into a EULA with each Customer. Notwithstanding anything to the contrary set forth in this Agreement: (i) all rights and obligations governing the relationship between Denodo and each Customer shall be as set forth in the applicable EULA; and (ii) the rights and obligations set forth in a EULA shall not affect Denodo’s and Partner’s rights or obligations to one another under this Agreement.
- EULA. Each customer of Denodo or end user of a Denodo Product (each, a “Customer”), whether invoiced by Denodo or by Partner, shall enter into a Software End User License Agreement (“EULA”) with Denodo setting forth Denodo’s and such Customer’s respective rights and obligations. If, in accordance with this Agreement, Partner enters into any Transaction Agreement with a Customer under which it invoices a Customer in connection with the sale of a Denodo Product, then Partner shall direct the Customer to enter into a EULA directly with Denodo. It is Partner’s responsibility to ensure that any applicable EULA is incorporated into Partner’s purchase agreement/order with the Customer in a way that legally binds the Customer to the EULA. For clarity, the EULA described in this Section I(e) is not appropriate for use in connection with a sale of a Denodo Product for which Denodo will invoice the applicable Customer. Partner may extend to prospective Customers on Denodo’s behalf solely the warranties that are expressly extended to Customers under the EULA. Only the terms of the EULA will govern a Customer’s use of the Denodo Products, and any additional or conflicting terms in an agreement between Partner and a Customer are Partner’s responsibility.
Compensation
- By Partner. In consideration of Partner’s participation in one or more partner programs, Partner shall pay to Denodo the compensation, if any, set forth in the Program Details.
- By Denodo. In consideration of the services rendered by Partner, Denodo shall pay to Partner the compensation, if any, set forth in the Program Details.
- Procedures. Unless otherwise set forth in the Program Details or a Transaction Agreement, payments by Partner shall be due within thirty (30) days following the date on which Partner receives from Denodo an invoice setting forth the amount of such payments.
Proprietary Rights
- Generally. Except as otherwise expressly set forth in this Agreement, each Party retains ownership of its intellectual property rights, including its software, technology and all upgrades and improvements to each of the foregoing.
- Denodo Products. As between Partner and Denodo, Denodo shall own all right, title and interest, including all intellectual property rights, in and to the products and services made available by Denodo, including Denodo’s data virtualization software products, materials (including technical, training and marketing materials) the Partner Server License (defined in Section IV.a below) and documentation related to the foregoing, including any modifications, alterations, translations or derivative works thereof (collectively, “Denodo Materials”).
- Partner Work Products. Except as set forth in Section III.b, as between Partner and Denodo, Partner shall own all right, title and interest, including all intellectual property rights, in and to any solution, module, materials or other item developed independently by the Partner, without use of, access to or reference to, any Confidential Information of Denodo (defined in Section IX.a below) or Denodo Materials (including without limitation any Denodo application programming interface or design workbench).
- Feedback. If Partner provides any feedback or suggestions to Denodo concerning the features, functionality or performance of the Denodo Materials, Partner hereby assigns all right, title and interest in and to such feedback or suggestions to Denodo.
License Grant
- License. Subject to the terms and conditions of this Agreement, Denodo hereby grants to Partner a nonexclusive, nontransferable, nonsublicenseable, fully paid-up and royalty free license, during the Term (defined in Section 10.a below), to install and use, in object code format only, any server software related to the Denodo Products and made available to Partner by Denodo (“Partner Server License”), solely for the purpose of demonstrating the Denodo Products, providing technical support to Customers, training of Partner staff, and performing any other activities expressly authorized by an agreement between the Parties.
- Restrictions. Partner shall not, nor contractually permit any End User to: (a) use the Partner Server License for production purposes, (b) sell, lease, license or sublicense the Partner Server License or any related documentation; (c) disassemble, decompile or otherwise reverse engineer the Partner Server License or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Partner Server License, in whole or in part (except the extent that such restriction is not permitted under applicable law); (d) allow access to the Partner Server License by any person or entity that is not a Partner employee; (e) translate or develop any derivative software or any other software program based upon the Partner Server License or related documentation (except to the extent that such restriction is not permitted under applicable law); (f) use the Partner Server License on a “service bureau” basis or share access to the Partner Server License other than as expressly authorized by this Agreement; (g) provide, disclose, divulge or make available to, or permit use of the Partner Server License by, any third party without Denodo’s prior written consent; or (h) copy or bypass or delete any copyright protection methods that are for preventing unauthorized copying or use of the Partner Server License.
Trademarks/Trade Names
- Right to Use Licensor’s Trademarks. Subject to the terms and conditions of this Agreement, each Party (the “Licensor”) grants to the other Party (the “Licensee”) a worldwide, limited, non-sublicensable, non-transferable (except pursuant to Section 11.g), non-exclusive license to use during the Term the Licensor’s trade names, trademarks and logos designated by the Licensor from time to time (“Trademarks”) only for the purposes of enabling the Licensee to exercise its rights and fulfill its obligations under this Agreement. All representations of the Licensor’s Trademarks that the Licensee intends to use shall be submitted to the Licensor for approval in advance, or the Licensee shall fully comply with any and all guidelines provided by the Licensor concerning the use of the Licensor’s Trademarks, as updated by the Licensor from time to time, including written requests to cease use of any of the Licensor’s Trademarks. Partner expressly acknowledges and agrees that Denodo may use the Partner Trademarks to identify the Partner as a Denodo Partner in its commercial publications and websites. Denodo's right to use such Trademarks may be revoked by Partner at any time upon written request.
- No Other Rights in Licensor’s Trademarks. The Licensee shall obtain no rights with respect to any of the Licensor’s Trademarks or the trademarks or trade names of the Licensor’s suppliers, other than the limited right to use set forth in Section 5.a. The Licensee hereby assigns to the Licensor any and all right, title and interest that it may obtain in the Licensor’s Trademarks and the associated goodwill. All goodwill arising out of any uses of the Licensor’s Trademarks will inure solely to the benefit of the Licensor. The Licensee shall not attempt to register or use in any country any trademarks, marks or trade names confusingly similar to the Licensor’s Trademarks.
Warranties and Disclaimers
- Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and (ii) the acceptance, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all requisite corporate action on the part of such Party.
- Partner Warranties. Partner represents and warrants to Denodo that: (i) it will perform its responsibilities under this Agreement in a professional and workmanlike manner; (ii) it will avoid misleading, deceptive or wrongful practices that may be detrimental to Denodo or the Software, and will not take any action that is reasonably likely to injure the reputation of Denodo and the Denodo Products.
- Denodo Warranty. Denodo represents and warrants to Partner that, it has used and will continue to use, commercially reasonable measures to ensure that Denodo Products do not contain any viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
- WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSSLY SET FORTH IN THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER PARTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. DENODO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT AND TITLE. DENODO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF ANY DENODO PRODUCT. DENODO DOES NOT WARRANT THAT ANY DENODO PRODUCT IS ERROR-FREE OR THAT OPERATION OF ANY DENODO PRODUCT WILL BE SECURE OR UNINTERRUPTED. EXCEPT AS EXPRESSLY SET FORTH IN THE PROGRAM DETAILS: (I) PARTNER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF DENODO TO ANY CUSTOMER OR OTHER THIRD PARTY; AND (II) NO EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF DENODO HAS THE AUTHORITY TO BIND DENODO TO ANY ORAL REPRESENTATION OR WARRANTY CONCERNING DENODO OR ANY DENODO PRODUCT. ANY WRITTEN REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT WILL NOT BE ENFORCEABLE. DENODO TECHNOLOGIES DOES NOT PROVIDE ANY WARRANTIES REGARDING THE PROGRAM GUIDE OR THE INFORMATION THEREIN AND SPECIFICALLY DISCLAIMS ANY LIABILITY FOR DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL AND SPECIAL DAMAGES INCURRED IN CONNECTION WITH THE PROGRAM GUIDE OR THE PROGRAMS DESCRIBED THEREIN.
Indemnification
- Indemnification by Denodo. Denodo shall, at its own expense, defend, indemnify, and hold Partner and its officers, directors, agents, and employees harmless from any loss, cost, damages, judgments, settlements or other liabilities, including without limitation reasonable attorneys’ fees (collectively, “Losses”), arising out of or related to any third party suits or claims brought against Partner alleging that any Denodo Product infringes any copyright, patent, trademark, or other intellectual property right, or misappropriates any trade secret, of any third party. Denodo assumes no liability to the extent such claims are based on (i) combination of a Denodo Product with software or hardware not provided by Denodo if the infringement would have been avoided by use of the Denodo Product alone; or (ii) any marking or branding not applied by Denodo or applied at the request of an authorized employee of Partner. THE FOREGOING PROVISIONS OF THIS SECTION VII a. STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF DENODO, AND THE EXCLUSIVE REMEDY OF PARTNER, WITH RESPECT TO THE INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY A DENODO PRODUCT.
- Indemnification by Partner. Partner shall, at its own expense, defend, indemnify, and hold Denodo and its officers, directors, agents, and employees harmless from and against any Losses arising out of or related to: (i) any warranties or statements made by Partner concerning Denodo or the Denodo Products, other than warranties or statements that Partner is expressly permitted to make under Section I.b or the Program Guide; (ii) any breach by Partner of the requirements of Section I.e; and (iii) any breach by Partner of the warranties set forth in Section VI.
- Mutual Indemnification. Except for matters covered by Sections VII.a and VII.b, each Party shall indemnify, defend and hold harmless the other, from and against any and all Losses the extent arising out of third-party claims caused by acts of the Indemnitor (defined in Section VII.d) that violate applicable law.
- Procedure. The Party seeking indemnification (the “Indemnitee”) shall provide the other Party (the “Indemnitor”) with prompt notice of any claim for which indemnification is sought hereunder and shall cooperate in all reasonable respects with the Indemnitor in connection with any such claim; provided, however, that Indemnitor’s obligations under this Section VII shall continue even if Indemnitee fails to satisfy the obligations set forth in the foregoing sentence, unless such failure by Indemnitee materially prejudices Indemnitor’s defense of the applicable claim. The Indemnitor shall be entitled to control the handling of any such claim and to defend or settle any such claim, in the Indemnitor’s sole discretion, with counsel of its own choosing. The Indemnitor shall not be responsible for costs, expenses and fees incurred by the Indemnitee without the Indemnitor’s prior written authorization.
Limitation of Liability
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT WITH RESPECT TO LIABILITY RESULTING FROM (I) PHYSICAL DAMAGE TO PROPERTY, (II) PERSONAL INJURY OR DEATH, (III) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (IV) BREACH OF SECTIONS VII (INDEMNIFICATION) OR IX (CONFIDENTIALITY) OF THIS AGREEMENT; OR (V) BREACH BY PARTNER OF ANY LICENSE SET FORTH IN SECTION IV: (1) THE LIABILITY OF EACH PARTY ARISING IN ANY WAY OUT OF THIS AGREEMENT, THE TERMINATION HEREOF, OR THE PROVISION OF GOODS OR SERVICES HEREUNDER, SHALL NOT EXCEED THE GREATER OF: (A) AMOUNTS PAID UNDER THIS AGREEMENT, AND (B) $100,000; AND (2) NEITHER PARTY WILL BE LIABLE, UNDER ANY CONTRACT, TORT, STRICT LIABILITY, OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, MULTIPLE, INCIDENTAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES, OR FOR DAMAGES RELATING TO LOSS OF OR DAMAGE TO DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE, OR IMPAIRMENT OF OTHER ASSETS, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Confidentiality
- “Confidential Information” means any information disclosed by either Party (“Discloser”) to the other Party (“Recipient”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, the Denodo Products and related documentation and the terms of this Agreement), which is: (i) designated as “Confidential,” “Proprietary” or some similar designation; or (ii) otherwise reasonably considered to be confidential due to its nature or the circumstances of its disclosure. Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a Discloser by third parties. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the Discloser; (ii) becomes publicly known and made generally available after disclosure by the Discloser to the Recipient through no action or inaction of the Recipient; (iii) is already in the possession of the Recipient at the time of disclosure by the Discloser as shown by the Recipient’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Recipient from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information, as shown by documents and other competent evidence in the Recipient’s possession. Notwithstanding the foregoing, the terms of this Agreement (including the Program Details) and any Transaction Agreements, as well as any Denodo-provided price lists and Customer proposals are the Confidential Information of Denodo.
- Non-Use and Non-Disclosure. Recipient agrees not to use the Confidential Information of Discloser for any purpose except to exercise its rights and perform its obligations under this Agreement. Recipient agrees not to disclose any Confidential Information of Discloser to Recipient’s employees, except to those employees of Recipient with a need to know. Recipient agrees that it shall take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, Discloser’s Confidential Information. Without limiting the foregoing, Recipient shall take at least those measures to protect Discloser’s Confidential Information that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Discloser’s Confidential Information are bound by confidentiality obligations at least as protective of the Confidential Information as those set forth in this Agreement, prior to any disclosure of Discloser’s Confidential Information to such employees. Recipient shall not disclose the Confidential Information to any third parties without Discloser’s prior consent. Confidential Information may only be disclosed to third-parties (i) in the context of Partner sharing Denodo Confidential Information with a current or prospective Customer, or (ii) that need to know such information and, on the condition, that such third-party is subject to a written agreement with confidentiality obligations at least as protective of the Confidential Information as those set forth in this Agreement. Notwithstanding the foregoing in this Section IX.b, Recipient may disclose such Confidential Information to the extent it is required by applicable law to be disclosed by Recipient, provided that (to the maximum extent permitted by applicable law) Recipient gives Discloser written notice of such requirement prior to such disclosure and provides reasonable assistance to Recipient, upon request and at Recipient’s expense, in obtaining an order protecting the information from public disclosure. For the avoidance of doubt, any Confidential Information required to be disclosed in accordance with the foregoing sentence of this Section IX.b shall remain Confidential Information subject to the obligations set forth in this Section IX for all other purposes.
- Copies. Each Party shall reproduce the other Party’s proprietary rights notices on any approved copies of Discloser’s Confidential Information, in the same manner in which such notices were set forth in or on the original.
Term and Termination
- Term. This Agreement will commence on the Effective Date and will continue for an initial term lasting until March 31 of the following calendar year, and will renew for successive one (1) year terms thereafter, unless (i) either Party provides notice to the other Party of its desire not to renew this Agreement at least thirty (30) days prior to the date in which such automatic renewal would otherwise occur, or (ii) this Agreement is earlier terminated in accordance with this Section X (collectively, the “Term”).
- Termination for Convenience. Either Party may terminate this Agreement for convenience upon thirty (30) days’ advance written notice to the other Party.
- Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party (i) breaches any material term or condition of this Agreement, and fails to remedy the breach within thirty (30) days after being given notice thereof, (ii) ceases to function as a going concern or to conduct operations in the normal course of business, or (iii) has a petition filed by or against it under any state or federal bankruptcy or insolvency laws which petition has not been dismissed or set aside within sixty (60) days of filing. Denodo may terminate this Agreement in the event of any change in control of Partner, including without limitation a sale of substantially all its assets, a merger or share exchange, or a sale of a controlling interest in the capital stock of Partner. For the purposes of the foregoing, sentence, “control” means beneficial ownership (direct or indirect) of at least fifty percent (50%) of the shares of Partner entitled to vote in the election of directors (or if Partner is not a corporation, for the election of the corresponding managing authority).
- Termination Obligations. In the event of termination of this Agreement for any reason, each Party shall: (i) return or destroy all of the other Party’s Confidential Information and, in the case of Partner, all copies of the Denodo Materials under Partner’s control; (ii) cease all use of the other Party’s Trademarks; and (iii) upon request, within twenty (20) days of termination, certify that it has complied with requirements set forth in (i) and (ii) of this Section X.d.
- NO LIABILITY. EXCEPT AS EXPRESSLY REQUIRED BY LAW, IN THE EVENT OF TERMINATION OF THIS AGREEMENT BY EITHER PARTY IN ACCORDANCE WITH ITS TERMS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR COMPENSATION, REIMBURSEMENT OR DAMAGES OF ANY KIND RESULTING FROM SUCH TERMINATION.
Miscellaneous Provisions
- Costs and Expenses. Except as otherwise expressly provided in this Agreement, each Party shall solely bear all costs and expenses of performing its obligations hereunder and neither Party shall be liable to the other Party for any costs or expenses incurred without prior written authorization.
- Independent Contractors. The Parties are independent contractors, and nothing in this Agreement shall be construed to (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) constitute the Parties as partners, joint ventures, co-owners, employers or employees of the other or otherwise participants in a joint undertaking; or (iii) authorize either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever. No third-party beneficiaries are intended under this Agreement.
- Notice. Any notice required or permitted to be given hereunder shall be in writing and shall be: (i) sent by electronic mail to the email address provided by the Party for notice; (ii) sent by certified mail, return receipt requested; (iii) delivered by a recognized international express courier service (such as DHL or Federal Express); or (iv) delivered by hand to the address of the other Party set forth in the preamble of this Agreement, or such other address as a Party may designate by written notice in accordance with this Section X.c. Any such notice shall be deemed effective: (i) three (3) days after sending, in the case of electronic mail; or (ii) when received by the applicable Party, in the case of physical mail.
- Force Majeure. Neither Party shall be responsible for any delay or failure in its performance of any obligation hereunder (other than payment obligations) due to causes beyond its reasonable control, provided that the Party invoking this Section X.d: (i) provides prompt notice to the other Party; and (ii) resumes performance promptly when conditions allow it to do so. If a performance delay, as described in this Section X.d, continues for more than thirty (30) days, then the other Party shall have the right to immediately terminate this Agreement for convenience.
- Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or any transactions contemplated by this Agreement may be brought by either Party more than one (1) year after its cause of action has accrued. For the purposes of this Agreement, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.
- Governing Law and Jurisdiction. THIS AGREEMENT SHALL NOT BE GOVERNED BY THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS; rather, this Agreement, and all disputes arising out of or related to this Agreement or any Denodo Product or portion thereof, shall be governed by and construed under the laws of the jurisdiction corresponding to the domicile of Partner as set forth in the table below, without reference to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the courts located in the jurisdiction corresponding to the domicile of Partner as set forth in the table below, and the Parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
PARTNER’S DOMICILE
GOVERNING LAW
EXCLUSIVE JURISDICTION
North America (other than Mexico) or the Caribbean
California
State and federal courts in Santa Clara County
The United Kingdom, Europe (other than the Germany, Austria and Switzerland or Spain), the Middle East or Africa
England and Wales
England
Germany, Austria and Switzerland
Germany
Germany
Spain, Mexico, or Central or South America
Spain
Spain
Asia or the Pacific region (other than Australia or Japan)
Singapore
Singapore
Australia
New South Wales, Australia
New South Wales, Australia
Japan
Japan
Tokyo, Japan
- Assignment. The rights and obligations under this Agreement may not be transferred or assigned directly or indirectly except upon written consent of the non-assigning Party; provided, however, that Denodo may assign this Agreement to a successor in interest (or its equivalent) of all or substantially all of Denodo’s relevant assets, whether by sale, merger, or otherwise, effective upon notice to the other Party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and assigns. Any assignment in violation of this Section X.g shall be null and void.
- Severability. If, for any reason, a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. The Parties shall negotiate in good faith an enforceable substitute provision that most nearly achieves the intent and economic effect of such invalid or unenforceable provision.
- Survival. In the event of termination or cancellation of this Agreement, Sections I (for ongoing transactions only), II, III, V.b, VI.d, VII, VIII, IX (for a period of five (5) years after termination, except in the case of trade secrets, which shall remain confidential indefinitely), X.d, X.e and XI shall survive, as well as any sections of the Program Details that expressly provide that they shall survive or that should, by their nature, survive.
- Compliance with Laws. Each Party shall comply with all applicable laws, regulations, orders and other governmental requirements in performing obligations and exercising rights under this Agreement and shall obtain any governmental licenses and approvals that may be necessary in connection with the sale and purchase of Denodo Products in accordance with this Agreement.
- Entire Agreement. This Agreement (including the Program Details) and any Transaction Agreements set forth the entire agreement and understanding of the Parties with respect to subject matter of this Agreement and supersedes all prior and contemporaneous agreements relating thereto, written or oral, between the Parties, notwithstanding any limitations on acceptances or any contrary, additional, different, altering or conflicting terms in any policy, quotation, order, sales acceptance or acknowledgment, confirmation or other document issued by either Party affecting the purchase and/or sale of a Party’s products. Except with respect to changes that Denodo may make to the Program Details in accordance with the terms of Attachment B, no other modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Parties. In the event of a conflict between the provisions set forth in the body of the Agreement and the provisions set forth in the Program Details, the provisions set forth in the Program Details shall prevail.
- Foreign Corrupt Practices Act. The Parties represent and warrant that they will comply fully with the FCPA and any other applicable anti-corruption and/or anti-bribery laws and regulations. Specifically, the Parties acknowledge that it shall be unlawful for the Parties and/or, if applicable, any officer, director, employee or agent of the Parties, to make any offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value to either:
- Any foreign official (or foreign political party) for purposes of either influencing any act or decision of the foreign official in his official capacity, or inducing the foreign official to do or omit to do any act in violation of his lawful duty, or inducing such foreign official to use his influence with a foreign government, or instrumentality thereof, to affect or influence any act or decision of a foreign government or instrumentality in order to obtain or retain business; or
- Any person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official (or foreign political party), or to any candidate for foreign political office, for any of the prohibited purposes described above. The Parties acknowledge that “foreign official” means any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality. The Parties warrant that any agent or subcontractor they may employ will also abide by both the requirements of the FCPA as well as those of the local laws of the countries in which such agent or subcontractor does business.
- Export Control Compliance. Partner agrees to comply fully with United States government or foreign laws and regulations applicable to the export or disclosure of Denodo Products or Confidential Information hereunder insofar as they may control or limit the sale or use of Denodo Products. Partner agrees that in rendering services and in carrying out its duties under this Agreement, it shall neither undertake nor cause or permit to be undertaken any activity that is illegal under applicable export control laws of the United States of America or of those of any countries in which it does business. Partner shall provide Denodo with written assurances of compliance upon request by Denodo.
- Waiver. The failure of either Party to require performance of any provision of this Agreement shall not affect the right of such Party to require full performance at any time thereafter, nor shall the waiver of either Party of a breach or default be taken or held to be a waiver of a provision itself or a waiver of any other right hereunder.