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Last Updated: August 27, 2013
NON-EXCLUSIVE NAKIVO CLOUD PROVIDER AGREEMENT
This contract is not effective until executed by Cloud Provider, and received and accepted by Nakivo by an electronic approval confirmation letter.
This Non-Exclusive Cloud Provider Agreement (this "Agreement") is entered into as of the date of approval into the Nakivo Cloud Provider Program (the "Effective Date"), by and between
Nakivo, Inc., a California corporation having a primary place of business at 4894 Sparks Blvd., Sparks, NV, 89436-8202 USA ("Nakivo") and company name entered into the online application ("Cloud Provider") having a primary place of business at the company address entered into the online application.
A. Nakivo has developed and desires to advertise, promote, market and distribute the company’s software products.
B. Cloud Provider desires to obtain the right to act as an independent Cloud Provider of the Products, with the non-exclusive right to market, promote and host the Products as a service.
Nakivo and Cloud Provider agree as follows:
1. APPOINTMENT AS A CLOUD PROVIDER. On the terms and subject to the conditions set forth herein, Nakivo appoints Cloud Provider as an independent, non-exclusive authorized Cloud Provider of the Products in the geographic area identified in the country entered into the online application hereto ("Market"), and Cloud Provider hereby accepts such appointment. Cloud Provider may advertise, promote and host the Products as a service solely to third party End Users within the Market. For purposes of this Agreement, the term "End User" means a person or entity that desires to acquire the Products as a service for its own use, rather than for resale or distribution. Cloud Provider may not authorize or appoint any dealers, sub-resellers, agents, representatives, subcontractors, or other third parties to advertise, promote, resell, or distribute the Products. All rights not specifically granted by Nakivo hereunder are reserved by Nakivo. Without limiting the generality of the foregoing,
Nakivo reserves the right to advertise, promote, market and distribute the Products, and to appoint third parties to advertise, promote, market and distribute the Products, worldwide, including in the Market. Further, Nakivo reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Products, or to discontinue the publication, distribution, sale or licensing of any or all of the Products without liability of any kind.
In addition to the regular end-user license agreement of Nakivo, the Cloud Provider agrees as follows:
a.Cloud Provider will send via email the Nakivo Support Bundle to Nakivo (email@example.com) along with a request for an invoice and the number of VMs to protect.
b.Nakivo will send an invoice to the Cloud Provider, with pricing based on the price list (sent separately) less any agreed to discount.
c.To receive the 31 (thirty-one) day rental license, Cloud Provider will pay the invoice.
d.The software is available at www.nakivo.com
e.Installing NAKIVO Director in the customer environment is not permitted under this agreement. NAKIVO Director must be installed in the Cloud Provider’s infrastructure only.
f.NAKIVO Transporters may be installed in any environment including the customer’s infrastructure.
2. CONSIDERATION, ORDERS, AND DELIVERY. Cloud Provider's initial price ("Price") for Products shall be as set forth in the Nakivo Cloud Provider pricelist. Cloud Provider acknowledges that Nakivo has the right, at any time and from time to time, to modify any or all of the products Prices. Cloud Provider shall pay for the Products in U.S. dollars, GBPs or Euros in immediately available funds using a Visa, MasterCard, or American Express Credit Card, or by wire transfer, or in such other manner as Nakivo may approve. Orders shall be shipped via the internet from Nakivo's online warehouse. Except as otherwise mutually agreed in writing, Cloud Provider shall be responsible for all costs associated with its performance of this Agreement. All freight, insurance, duty and taxes applicable to Cloud Provider's purchase and sale of Products shall be paid by Cloud Provider. Cloud Provider will indemnify and hold Nakivo harmless from any obligation to pay any governmental entity any employer statutory taxes, withholding taxes, social security taxes or other taxes, levies or duties in connection with Cloud Provider's performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs of litigation) arising out of or resulting therefrom.
3. MARKETING AND PROMOTION OF PRODUCTS
3.1 Promotion. Cloud Provider shall use its best efforts to market and promote Products as a service to End Users in the Market, including by: (a) attendance by Cloud Provider at trade shows at which Cloud Provider promotes the Products, (b) listing the Products in Cloud Provider's product lists and Cloud Provider's other marketing materials, (c) advertising the Products in trade journals, magazines, and other appropriate publications, and (d) at Nakivo's request, joint success stories, translating and distributing Nakivo's press releases and other publicity and sales materials in the Market.
3.2 Marketing Practices. Cloud Provider will at all times perform hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by Nakivo. Cloud Provider will: (a) conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of Nakivo; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Nakivo, the Products or the public, including but not limited to disparagement of Nakivo or the Products; (c) make no false or misleading representation with respect to Nakivo or the Products; and (d) make no representations with respect to Nakivo or the Products that, are inconsistent with Nakivo's end user license agreement for the Products, promotional materials and other literature distributed by Nakivo, including all liability limitations and disclaimers contained in such materials.
3.3 Promotional Materials. Cloud Provider consents to the listing of its business name, address, phone number and website addresses in such Nakivo advertising and promotional materials as Nakivo may determine in its sole discretion, including product literature and Nakivo's websites. During the term of this Agreement, Nakivo may provide to Cloud Provider promotional materials with respect to Products as a service. Cloud Provider may not use the promotional materials for any purpose other than advertising and promoting the Products as a service to End Users in the Market. Notwithstanding anything to the contrary herein, Cloud Provider may not distribute any Cloud Provider created promotional materials with respect to Nakivo or the Products without Nakivo's prior written approval of such materials.
3.4 Permits, Licenses and Compliance with Laws. Cloud Provider will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules, and regulations in the performance of this Agreement. Without limiting the generality of the foregoing, Cloud Provider will comply with all applicable export laws. Without limiting the foregoing, Cloud Provider agrees that it will not knowingly export or re-export any Products as a Service to Country Group Q, S, W, Y, or Z, Afghanistan, or the People's Republic of China unless prior export license or authorization is obtained from the United States Department of Commerce, if so required by U.S. export laws or regulations.
3.5 Privacy/Data Collection. Cloud Provider will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any End User data that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. Cloud Provider will act only on Nakivo’s instructions in relation to the collection, use, disclosure and processing of any such End User data, but in all instances in accordance with all applicable laws, rules and regulations.
4. SERVICES and LIMITATION. Cloud Provider shall not resale Nakivo Products. Cloud Provider must not allow clients to operate any Nakivo Product separate from the Cloud Provider’s Nakivo Product instance operating at the Cloud Provider’s data center. A majority of the data backed up by Nakivo Products must be stored in the Cloud Provider’s data center.
5. OWNERSHIP. As between Nakivo and Cloud Provider, all right, title and interest in and to the Products and associated Nakivo promotional materials and documentation, including without limitation all copyrights, patent rights, trademark and service mark rights, trade secret rights and other intellectual property rights are and will remain the property of Nakivo, and such items may only be used by Cloud Provider as expressly permitted hereunder. Cloud Provider shall not remove, alter or otherwise modify any copyright, trademark or other notices of proprietary interest contained in the Products, Nakivo promotional materials, and/or documentation.
6. CONFIDENTIAL INFORMATION
6.1 "Confidential Information" Defined. “Confidential Information” includes: (a) the Products; (b) any personally identifiable data or information regarding any End User; (c) any and all information disclosed by Nakivo to Cloud Provider, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary; (d) any notes, extracts, analyses or materials prepared by Cloud Provider which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and (e) the terms and conditions of this Agreement. “Confidential Information” does not include information received from Nakivo that Cloud Provider can clearly establish by written evidence: (x) is or becomes known to Cloud Provider from a third party without an obligation to maintain its confidentiality; (y) is or becomes generally known to the public through no act or omission of Cloud Provider; or (z) is independently developed by Cloud Provider without the use of Confidential Information.
6.2 Cloud Provider's Obligations. Cloud Provider will make no use of Confidential Information for any purpose except as expressly authorized by this Agreement. Except as expressly provided in this Agreement, Cloud Provider will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care. Except as expressly provided in this Agreement, Cloud Provider will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of Nakivo. In the event that Cloud Provider is required to disclose Confidential Information pursuant to law, Cloud Provider will notify Nakivo of the required disclosure with sufficient time for Nakivo to seek relief, will cooperate with Nakivo in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES, IF ANY, MADE TO THE END USER IN THE APPLICABLE NAKIVO END USER LICENSE AGREEMENT, NAKIVO MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED. NAKIVO DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PRODUCTS OR THE MEDIA ON WHICH PRODUCTS ARE SUPPLIED. CLOUD PROVIDER WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF NAKIVO.
8. LIMITATION OF LIABILITY. NAKIVO'S AGGREGATE LIABILITY TO CLOUD PROVIDER UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE PRICE PAID BY CLOUD PROVIDER FOR THE COPY OF THE PRODUCT WHICH GIVES RISE TO THE CLAIM. IN NO EVENT WILL NAKIVO BE LIABLE FOR ANY INDIRECT,
PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF NAKIVO HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
9. INDEMNIFICATION BY CLOUD PROVIDER. Cloud Provider will indemnify, defend and hold harmless Nakivo from and against any and all claims, damages and expenses (including reasonable attorneys' fees and costs of litigation) by any third party resulting from any acts or omissions of Cloud Provider relating to its activities in connection with this Agreement, Cloud Provider's breach of this Agreement, or Cloud Provider's misrepresentations relating to Nakivo, the Products or this Agreement, regardless of the form of action. Cloud Provider will be solely responsible for any claims, warranties or representations made by Cloud Provider or Cloud Provider's representatives or agents which differ from the warranties provided by Nakivo in the applicable end user license agreement.
10. INFRINGEMENT. Nakivo agrees to defend or, at its option, settle any claim or action against Cloud Provider to the extent arising from a third party claim that a permitted use of a Product by End Users infringes any U.S. patent or copyright, provided Nakivo has control of such defense or settlement negotiations and Cloud Provider gives Nakivo prompt notice of any such claim and provides reasonable assistance in its defense. In the event of such a claim of infringement, Nakivo, at its option, may provide Cloud Provider with substitute Products reasonably satisfactory to Cloud Provider to replace those affected Products then in Cloud Provider's inventory. Nakivo will not be liable under this Section if the infringement arises out of Cloud Provider's activities after Nakivo has notified Cloud Provider that Nakivo believes in good faith that Cloud Provider's activities will result in such infringement. The foregoing states the entire liability of Nakivo with respect to infringement of intellectual property rights.
11. NAKIVO SUPPORT. Nakivo shall offer Cloud Provider technical training for the Products from time to time upon reasonable request from Cloud Provider at Nakivo's then-current charges for such training. All training will be at Nakivo's offices unless Nakivo, in its sole discretion, agrees to offer training at another location or via the internet.
12. NAKIVO TRADEMARKS. "Nakivo Trademarks" means all names, marks, logos, designs, trade dress and other brand designations used by Nakivo in connection with its products and services. In performing its obligations hereunder, Cloud Provider may refer to the Products by the associated Nakivo Trademarks, provided that such reference is not misleading and complies with any guidelines issued by Nakivo. Cloud Provider is granted no right, title or license to, or interest in, any Nakivo Trademarks. Cloud Provider acknowledges and agrees that any use of the Nakivo Trademarks by Cloud Provider will inure to the sole benefit of Nakivo. If Cloud Provider acquires any rights in any Nakivo Trademarks by operation of law or otherwise, it will immediately, at no cost or expense to Nakivo, assign such rights to Nakivo along with all associated goodwill.
13. RELATIONSHIP OF PARTIES. This Agreement does not constitute either party the agent of the other or create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever. Cloud Provider acknowledges and agrees that its relationship with Nakivo is that of an independent contractor, and Cloud Provider will not act in a manner that expresses or implies a relationship other than that of an independent contractor. Nakivo and Cloud Provider acknowledge and agree that: (a) Cloud Provider is permitted to promote and sell products and services of companies other than Nakivo; (b) Cloud Provider is not required to promote Nakivo products or services exclusively; and (c) Cloud Provider’s decision to devote all or some of its business efforts to the products or services of any particular company is solely in the discretion of Cloud Provider.
14. TERM AND TERMINATION
14.1 Term. This Agreement shall be effective for a term of one year from the Effective Date. It shall be automatically extended for further one-year terms unless either party gives written notice to the other at least 60 days before the expiration of the initial or any renewal term of the party's intent not to renew.
14.2 Termination. Notwithstanding anything in this Agreement that may be interpreted to the contrary, Nakivo may terminate this Agreement without cause and without liability upon 30 days' prior written notice to Cloud Provider. Either party may terminate this Agreement for any material breach of the Agreement that is not cured to the non-breaching party's satisfaction within 10 days of written notice that specifies the breach.
14.3 Effect of Termination. Upon termination of this Agreement, Cloud Provider will cease all advertising, marketing, and offering of the Products as a Service. Termination of this Agreement will not affect either party's rights or obligations with respect to Products offered as a Service by Cloud Provider prior to the effective date of the termination.
14.4 No Liability for Termination. Neither party will be liable for any damages arising out of the termination of this Agreement in accordance with this Section 14. Cloud Provider acknowledges and agrees that Nakivo is not responsible for Cloud Provider's dependence on revenues hereunder, and Cloud Provider agrees to release, hold harmless and indemnify Nakivo from any and all claims and liabilities relating to Cloud Provider's revenues, financial forecasts or economic value that may result from any termination by Nakivo of this Agreement as permitted hereunder.
14.5 Survival. Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature should survive will remain in effect after termination or expiration of this Agreement.
15. ASSIGNMENT. Neither this Agreement nor any rights or obligations of Cloud Provider hereunder shall be assignable or transferable by Cloud Provider, in whole or in part, by operation of law or otherwise, without the prior written consent of Nakivo.
Any attempted assignment, subcontract or other transfer of this Agreement or any of Cloud Provider's rights or obligations hereunder will be void and will be considered a material breach of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
16. NOTICES. Any notices or other communications required or permitted hereunder shall be in writing and personally delivered at the principal business addresses designated at the beginning of this Agreement, or mailed by registered or certified mail, return receipt requested, postage prepaid, at the address set forth above, or to such other address or addresses as may be hereafter furnished by one party to the other party in compliance with the terms hereof. Notwithstanding the foregoing, Nakivo may give notice of changes in Prices, Product descriptions, order procedures, delivery procedures and other routine events and procedures by way of printed materials, email or electronic newsletter.
17. FORCE MAJEURE. Nakivo shall not be liable for failure or delay in performance of any of its obligations hereunder if such delay or failure to perform is caused by circumstances beyond its control. Cloud Provider shall be required to accept any delayed shipment or delivery made within a reasonable time.
18. GOVERNING LAWS; ATTORNEYS' FEES. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, U.S.A. The parties agree that any legal action or proceeding with respect to this Agreement may be initiated only in the federal or state courts located in the State of California. By execution and delivery of this Agreement, the parties submit to and accept with regard to any such action or proceeding the exclusive jurisdiction of such courts. If any legal action or proceeding is initiated, the prevailing party shall be entitled to all attorney fees, court costs, and expenses in addition to any other relief to which such prevailing party may be entitled.
THIS AGREEMENT WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS OR BY THE PROVISIONS OF ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE, THE APPLICATION OF WHICH IS EXPRESSLY EXCLUDED.
19. EQUITABLE RELIEF. Cloud Provider acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of Confidential Information or Nakivo intellectual property will result in irreparable harm to Nakivo for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, Nakivo will be entitled to seek injunctive or other equitable relief, as appropriate, and Cloud Provider hereby waives the right to require Nakivo to post a bond. If Nakivo seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement by Cloud Provider involving an unauthorized use of Confidential Information or Nakivo intellectual property, Cloud Provider agrees that it will not allege in any such proceeding that Nakivo’s remedy at law is adequate. If Nakivo seeks any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will Nakivo be deemed to have made an election of remedies.
20. ENTIRE AGREEMENT; WAIVER. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes and terminates all other prior commitments, arrangements or understandings, both oral and written, between the parties with respect thereto. This Agreement may not be modified or amended except by an instrument in writing executed by each of the parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either party, their agents or employees, but may be waived only by an instrument in writing signed by an officer of the waiving party. No waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision or of the same provision on another occasion.
IN WITNESS WHEREOF, by clicking on the agree box in the reseller online application the undersigned parties have entered into this Agreement as of the Effective Date of being approved by Nakivo.