Storage Certification Program

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PLEASE READ THE FOLLOWING TERMS AND CONDITIONS BEFORE PARTICIPATING IN THE NAKIVO STORAGE CERTIFICATION PROGRAM (hereinafter – the “PROGRAM”). THIS IS A LEGALLY BINDING AGREEMENT BETWEEN YOU, AN ORGANIZATION THAT IS A STORAGE VENDOR (hereinafter – the “STORAGE VENDOR”) AND NAKIVO INC., A LEGAL ENTITY ORGANIZED AND EXISTING UNDER THE LAWS OF THE USA, NEVADA, WITH PRINCIPAL OFFICE AT 4894 SPARKS BLVD., SPARKS, NV, USA 89436 – 8202 (hereinafter – “NAKIVO”) ESTABLISHING THE TERMS AND CONDITIONS UNDER WHICH THE STORAGE VENDOR IS ELIGIBLE TO PARTICIPATE IN THE PROGRAM. PARTICIPATION IN THE PROGRAM IN ANY MANNER IMPLIES THAT YOU ACCEPT THESE TERMS AND CONDITIONS (hereinafter – the “Terms and Conditions”). IF YOU DO NOT AGREE TO THE TERMS & CONDITIONS, DO NOT PARTICIPATE IN THE PROGRAM.

It is your responsibility to read and understand the information provided herein before participating in the Program. These Terms and Conditions can be updated. Further, it is your responsibility to check these Terms and Conditions regularly to determine whether the provisions have been modified. If you do not agree to any such modification, you must immediately cease participation in this Program by sending an email to promo@nakivo.com. By continuing to participate in the Program after such modification, you are hereby deemed to have agreed to such modification.

This Program is intended for Storage Vendors to certify that NAKIVO Backup & Replication they are testing can successfully run on a storage device. Please note that throughout this Terms and Conditions, “we,” “us,” and “our” refer to NAKIVO, and “you,” “your,” and “yours” refer to the Affiliate.

1. The Program Period:

The Program will be available from March 11, 2022 to December 31, 2025 (“Program Period”), or until terminated in accordance with these Terms and Conditions, and shall serve as an ongoing or continuing Program until termination or expiration.

2. Eligible Participants

  • Invitation emails will be sent to Storage Vendors to join the Program. There is no admission fee to join the Program. Registration is granted at the sole discretion of NAKIVO whose decision shall be final and binding;
  • Each Storage Vendor is responsible for ensuring their own eligibility to participate in the Program, in compliance with all applicable rules, regulations and policies;
  • The Storage Vendor acknowledges that NAKIVO may, at its sole discretion, restrict, suspend, withdraw or otherwise alter aspects of, or the whole of the Program, with or without notice at any time to the Participant.

4. Completed certification offers the following benefits for Storage vendors:

  • Certified storage devices can be added to the System Requirements (a list of systems and devices that NAKIVO Backup and Replication runs, successfully provided at https://helpcenter.nakivo.com/User-Guide/Content/Deployment/System-Requirements/System-Requirements.htm);
  • Certified storage devices can be recommended by NAKIVO to NAKIVO end users;
  • Certified Storage Vendors receive the “Certified by NAKIVO” badge;
  • Listing in the Ecosystem category at on www.nakivo.com which is dedicated to NAKIVO’s partners and Technology Alliances;
  • NAKIVO’s announcement and blog posts about the Storage Vendor’s product(s) successful certification by NAKIVO;
  • Joint field marketing opportunities which may include webinars, email blasts, social media promotions, interviews, etc.;
  • Marketing collateral creation (solution briefs).

5. General terms and conditions

5.1. Definitions:

Documentation means the written user manuals, guides and other descriptive items provided with NAKIVO Backup & Replication.

Purpose means the internal testing of interoperability of NAKIVO Backup & Replication with the Storage vendor product within a test environment.

5.2. Granting of Licenses

5.2.1. NAKIVO grants you a non-exclusive license to use NAKIVO Backup & Replication and Documentation within the Program Period solely as required for the Purpose, not in production environment and subject to applicable terms of EULA https://www.nakivo.com/support/eula/.

5.2.2. NAKIVO grants you a non-exclusive, non-transferable, revocable right to (i) access our website through HTML links solely in accordance with these Terms and Conditions and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member of the Program and solely to the extent reasonably necessary for the Purpose. You agree that all uses of the Licensed Materials will be on behalf of NAKIVO and the good will associated therewith will inure to the sole benefit of NAKIVO.

5.2.3. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, or obscene, or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.

5.3. We may reject your application for the Program at our sole discretion.

5.4. You may not create or design your website or any other website that you operate, explicitly or implicitly, in a manner which resembles our website, nor design your website in a manner which leads customers to believe you are Nakivo.com or any other affiliated business.

5.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it is writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.

6. NAKIVO’s Rights and Obligations

We have the right to monitor your participation in the Program at any time to determine whether you are following these Terms and Conditions. We may notify you of any changes to your website that we feel need to be made, or contact you to make sure that your links to our website are appropriate. If we notify you of changes that must be made and you do not make the changes to your website that we feel are necessary, we reserve the right to terminate your participation in the Program.

7. Termination

NAKIVO, in its sole discretion, may terminate the Program and this Terms and Conditions in whole or in part, for all participants, or for you alone, with or without cause, at any time, with or without notice.

8. Modification

We may modify any of these Terms and Conditions at any time at our sole discretion. In such event, you may be notified by email. It is your responsibility to check these Terms and Conditions regularly to determine whether the provisions have been modified. If any modification is unacceptable to you, your only option is to end the Agreement. Your continued participation in the Program following the posting of the changes, modifications or a new Agreement on our website will indicate your agreement to the changes and modifications.

9. Program Restrictions

You are free to promote your own websites, but any promotion that mentions NAKIVO may be perceived by the public or the press as a joint effort. You should be aware that certain forms of advertising are always prohibited by NAKIVO. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial emails (UCE), posting to non-commercial newsgroups, and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use emails to customers to promote NAKIVO as long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future distributions and promotion emails. You may post to newsgroups to promote NAKIVO as long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your websites as independent from NAKIVO. If it comes to our attention that you are spamming, we will consider that a cause for immediate termination of this Agreement and your participation in the Program.

10. Disclaimer

NAKIVO MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING NAKIVO’S SERVICE AND WEBSITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN. ANY IMPLIED WARRANTIES OF NAKIVO ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO CLAIM THAT THE OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

11. Representations and Warranties

You represent and warrant that you have the full right, power, and authority to enter into and be bound by these Terms and Conditions and to perform your obligations herein, without the approval or consent of any other party.

12. Limitations of Liability

WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NAKIVO’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY THE PARTY’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED USD5.

13. Indemnification

You hereby agree to indemnify and hold NAKIVO, its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your website, including, without limitation, content therein not attributable to us.

14. Privacy Policy

Information collected by NAKIVO will be treated in accordance with NAKIVO’s Privacy Policy, available at https://www.nakivo.com/support/privacy-policy/. You represent that you have permission from all of the applicable individuals to use and disclose any information or data that alone or together with any other information relates to an identified or identifiable natural person, or data considered to be personal data as defined under applicable laws, including but not limited to your employees’ names and contact information.

15. Miscellaneous

15.1. You agree that you are an independent contractor, and nothing in this Terms and Conditions will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and NAKIVO. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statements, whether on your website or any other website or otherwise, that would reasonably contradict anything in this Section.

15.2. Neither party may assign its rights or obligations under these Terms and Conditions to any other party, except to a party who obtains all or substantially all of the business or assets.

15.3. Governing Law and Dispute Resolution. These Terms and Conditions are governed by the laws of the State of Nevada without reference to any conflict of laws principles that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

ANY CONTROVERSY, CLAIM OR DISPUTE BETWEEN YOU AND NAKIVO ARISING OUT OF OR RELATING TO THESE TERMS, OR THE BREACH OR ALLEGED BREACH THEREOF, SHALL BE SETTLED BY BINDING ARBITRATION CONDUCTED IN ENGLISH. THE ARBITRATION SHALL BE HELD IN NEVADA, CLARK COUNTY, U.S.A., UNDER THE CURRENT COMMERCIAL OR INTERNATIONAL, AS APPLICABLE, RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE COSTS OF THE ARBITRATION SHALL BE BORNE EQUALLY PENDING THE ARBITRATOR’S AWARD. THE AWARD RENDERED SHALL BE FINAL AND BINDING UPON THE PARTIES AND SHALL NOT BE SUBJECT TO APPEAL TO ANY COURT, AND MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. NOTHING IN THESE TERMS SHALL BE DEEMED AS PREVENTING EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THE DISPUTE AS NECESSARY TO PROTECT EITHER PARTY’S CONFIDENTIAL INFORMATION, OWNERSHIP, OR ANY OTHER PROPRIETARY RIGHTS. ALL ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN CONFIDENCE, AND THE PARTY PREVAILING IN ARBITRATION SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS’ FEES AND NECESSARY COSTS INCURRED RELATED THERETO FROM THE OTHER PARTY.

Any proceeding must be started within 1 year from the date a right or claim first arose.

15.4. The headings and titles contained in these Terms and Conditions are included for convenience only, and shall not limit or otherwise affect these Terms and Conditions.

15.5. If any provision of these Terms and Conditions is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of the Agreement shall have full force and effect.