THIS MASTER TERMS ALLIANCE AGREEMENT (“Agreement”) is entered into between Incorta, Inc. with offices at 950 Tower Ln, Suite 1550, Foster City, CA 94404(“Incorta”), and the Partner specified in the applicable order form to which this Agreement is explicitly made a part thereof. (“Partner”). As used herein, each of Incorta and Partner may be referred to as a “Party” and collectively as the “Parties”.
This Agreement sets forth the specific terms under which Partner may serve as a Reseller Partner (“Reseller Partner”), and/or a Referral Partner (“Referral Partner”) to Incorta wherein Partner will either refer End User Customers (“End Users”) to Incorta for the purchase of Incorta software licenses (“Software Services”), or resell Incorta Software Services to End Users. The term End User means customers that acquire the Software Services for their own internal use, and not for distribution or for offering services to third parties.
A. Background
1. The Parties have agreed to a common set of terms as set out below (“Master Terms”) and the following attached Exhibits (“Exhibits”) (as applicable) are incorporated herein:
a) EXHIBIT A - REFERRAL PARTNER EXHIBIT
b)EXHIBIT B – RESELLER PARTNER EXHIBIT
The provisions of any Exhibit will take precedence over these Master Terms, to the extent that they are inconsistent.
B. Definitions
1. “Documentation” means (a) the publications relating to the use of the Product(s), such as reference, user, systems administrator and technical guides; and (b) the written materials prepared by Incorta describing the technical specifications relating to the functionality of the Product(s), installation specifications, and other technical requirements specified for the operation of the Incorta Product(s); all of which are generally made available by Incorta to its customers.
1. “End User Agreement” or “EULA” means Incorta’s then-current end user agreement for the relevant Incorta Product(s) (web based, signed or a negotiated version of Incorta’s then-current end user agreement) which is valid and binding against the End User.
2. “Price List” shall mean Incorta’s then-current price list for the relevant Territory which may be obtained from Incorta sales personnel from time to time during the Term.
3. "Product(s)" shall mean the Incorta Software Services (whether on-premise or hosted solutions) set forth in Incorta’s then-current relevant Incorta Price List. Incorta reserves the right to add, change or modify Product(s). Incorta may discontinue any Product(s) at any time with thirty (30) days prior notice to Partner.
4. “Territory” means the geographical location(s) identified in the applicable Exhibit.
C. General Terms
1. Ownership; Intellectual Property.
1.1 Ownership. All intellectual property rights in the Product(s), Documentation and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with Incorta. The Partner and End Users shall (i) not represent that it possesses any proprietary interest in the Product(s), Documentation or any part or derivative thereof; (ii) not directly or indirectly, take any action to contest Incorta’s intellectual property rights or infringe them in any way; (iii) except as specifically permitted in writing by Incorta, not use the name, trademarks, trade-names, and logos of Incorta (“Incorta Marks”); (v) except as specifically permitted herein, not copy any part or content of the Product(s), reports or Documentation other than for Partners or an End User’s own business purposes; (vi) not copy any features, functions or graphics of the Product(s) or use it to build a competitive Product(s) or service; and (vii) not remove any proprietary notices contained on or in the Product(s), or Documentation.
1.2 Feedback. Partner is not obligated to provide any ideas, suggestions or feedback to Incorta regarding the Product(s) (“Feedback”). In the event Partner does provide any Feedback to Incorta, Partner agrees that Incorta may freely use, make, have made, modify, sell, offer for sale, sublicense and otherwise exploit such Feedback for any purpose and in any manner on a perpetual, irrevocable and worldwide basis and without payment of any compensation to Partner.
1.3 Trademarks. Partner agrees that it shall only use Incorta Marks as specified by Incorta in its promotion, marketing, and sale of the Product(s). All goodwill associated with the use of Incorta Marks shall inure to the benefit of Incorta. Notwithstanding anything else herein, except as expressly permitted by Incorta, Partner may not use Incorta Marks without the express written consent of Incorta. Partner shall at no time contest or aid in contesting the validity or ownership of any Incorta Mark or take any action in degradation of Incorta’s rights therein, including without limitation applying to register any trademark, trade name, service mark or other designation that is confusingly similar to any Incorta Marks. If Partner does file such a registration or application in contravention of the above, it hereby assigns to Incorta all right, title and interest in such registration or application to Incorta, and agrees that it shall, without charge to Incorta, perform any tasks and execute any documents necessary to affect such assignment. Additional Communication and Brand obligations are as set forth in the Incorta Partner Program Communication and Brand Guidelines, made available by Incorta to Partner (either as part of its Partner Portal or otherwise in writing). This document may be updated by Incorta from time to time at Incorta’s sole discretion and without notice.
1.4 Restrictions. Partner shall not (and shall not permit any third party to): (i) attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Product(s) or any part thereof for any purpose; (ii) not represent that it possesses any proprietary interest in the Product(s), Documentation or any part or derivative thereof; (iii) copy or use the Product(s) or Documentation or any portion thereof, except as expressly authorized by this Agreement; (ii) modify the Product(s) or create or attempt to create, by reverse engineering or otherwise, the source code or internal structure of the Product(s) or any part thereof, except and only to the extent such restrictions are prohibited by local law; (iii) rebrand Product(s)Product(s)Product(s) or Documentation or remove any proprietary notices or restrictions from the Product(s) or Documentation; or (iv) use the Product(s) (including any analytics, data, content, or other output created by or from the Product(s)) for any purpose other than to demonstrate the Product(s) to potential End Users and/or support End Users as required by this Agreement; or (v) provide the Product(s) to any third party which is not subject to an End User Agreement; or (vi) permit any End User to use the Product(s) beyond the scope of the End User Agreement; (vii) promote, advertise, market, sell or otherwise distribute the Product(s) outside the Territory as agreed upon by the parties without Incorta’s prior written consent; (viii) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Incorta software Product(s), including without limitation, any such mechanism used to restrict or control the functionality of the Incorta software Product(s) to license parameters purchased.
2. Warranty.
2.1 Mutual Warranties. Each Party represents and warrants to the other that (i) it has the full power to enter into this Agreement and that this Agreement constitutes a legal, valid and binding obligation of such Party, enforceable against it, and (ii) this Agreement does not contravene, violate or conflict with any other agreement of such Party with any third party.
2.2 Warranties to End Users. With respect to the Product(s), Incorta provides warranties directly to the End Users in the relevant End User Agreement. Notwithstanding anything else, Partner agrees that it shall not provide or make any inconsistent, additional or different warranty, guarantee, or representation, whether written or oral, on Incorta’s behalf, beyond those warranties provided for by Incorta directly to the End User in the End User Agreement.
2.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, INCORTA PROVIDES NO OTHER WARRANTIES TO PARTNER WITH RESPECT TO THE PRODUCT(S) PROVIDED HEREUNDER. EXCEPT FOR THE WARRANTIES EXPRESSLY DESCRIBED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, INCORTA AND ITS LICENSORS DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, AND THE PRODUCT(S) PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
3. Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF EITHER PARTY’S BREACH OF CONFIDENTIALITY, OWNERSHIP, OR INTELLECTUAL PROPERTY OR WITH RESPECT TO A PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT: (A) EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, INCLUDING CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE GREATER OF ONE HUNDRED THOUSAND DOLLARS OR THE AMOUNTS PAID TO OR OWED TO INCORTA BY PARTNER HEREUNDER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE LIABILITY AROSE, AND (B) EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUE, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR COST OF SUBSTITUTE PROCUREMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4. Indemnification.
4.1 Partner Indemnity. Partner shall defend, indemnify and hold Incorta harmless from and against any third-party claims, actions or demands brought against Incorta, its affiliates, agents, or their respective employees, directors or officers (collectively “Incorta Indemnities”) to the extent based upon or arising from Partner’s breach of this Agreement or any grossly negligent act or omission, intentional misconduct, or misrepresentation by Partner or Partner’s agents, affiliates, or employees in connection with their activities under this Agreement (including any representations or warranties made by Partner to End Users beyond the scope of those contained in the EULA).
4.2 Incorta Indemnity. Incorta shall defend, indemnify and hold Partner harmless from and against any third-party claim brought against Partner, its affiliates, agents, or their respective employees, directors, officers (collectively “Partner Indemnities”) to the extent based upon or arising from an allegation that Incorta’s Product(s) infringe or violate any intellectual property right of a third party in the Territory. The foregoing obligation of Incorta does not apply to the extent the claim arises or is based upon: (i) third party Product(s) or services, (ii) modifications to)Product(s), if the alleged infringement relates to such modification, (iii) combination of Product(s) with other Product(s), processes or materials where the alleged infringement relates to such combination, (iv) continuation of allegedly infringing activity after notification thereof or after delivery of modifications that would have avoided the alleged infringement, (v) where use or delivery of the Product(s) is not strictly in accordance with rights granted with respect to the Product(s). The remedies set forth in this Section constitute Partner’s sole and exclusive remedies, and Incorta’s entire liability, with respect to claims of infringement or violation of any third-party intellectual property or other rights.
4.3 Conditions of Indemnification. A Party’s indemnity obligation hereunder is conditioned upon: (i) the indemnitee providing the indemnitor prompt written notification of any and all threats, claims and proceedings for which indemnity is being sought, provided that any failure by the indemnitee to provide prompt notice shall not relieve the indemnitor of its indemnification obligations except to the extent that the defense against such threats, claims, or proceedings is prejudiced by such delay, and (ii) the indemnitee providing the indemnitor all reasonable assistance in connection with the defense or settlement of any such claim, at the indemnitor’s cost and expense and (iii) the indemnitee providing the indemnitor the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise.
5. Confidential Information.
5.1 Definition. “Confidential Information” means (i) any information disclosed (directly or indirectly) by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is marked as “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; and (ii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself. Partner agrees that all code, inventions, algorithms, designs, know-how, ideas, and all business, technical and financial information it obtains from Incorta (and/or its contractors and/or customers), including information about Incorta business, Product(s), Documentation the EULA, and Incorta pricing are deemed the Confidential Information of Incorta. Partner shall not use the Incorta Confidential Information except in performance of this Agreement. Incorta will respect Partner’s Confidential Information disclosed by Partner to Incorta in accordance with this Article 5.
5.2 Exceptions. 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 Disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (iii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.
5.3 Duties. Except as expressly authorized in this Agreement, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform its obligations or exercise its rights granted under this Agreement (including providing the features and services associated with the normal use of the Software Services); (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case less than reasonable care; and (iii) disclose the Disclosing Party’s Confidential Information only to its Affiliates, and those employees, agents and contractors of the Receiving Party who have a need to know the information for the purposes of this Agreement, provided that any such employee, agent or contractor must be subject to obligations of non-use and confidentiality with respect to the Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party will remain liable for any non-compliance of such Affiliates, and it’s or their employees, agents or contractors with the terms of this Agreement.
5.4 Compelled Disclosure. In the event the Receiving Party is required under applicable law, rule, regulation, court or administrative order to disclose Confidential Information of the Disclosing Party, the Receiving Party shall use commercially reasonable efforts to: (i) promptly give notice, if permitted, to the Disclosing Party in order to enable the Disclosing Party to seek a protective order or other remedy; (ii) consult with the Disclosing Party with respect to the scope of the request or legal process to the extent possible; and (iii) limit any such disclosure to the extent necessary and required.
5.5 Return of Information. Upon termination of this Agreement and upon subsequent written request by the Disclosing Party, the Receiving Party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the Receiving Party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the Parties.
6. Term And Termination
6.1 Term. The Term (“Term”) of this Agreement shall begin on the Effective Date and shall continue until terminated by either Party as outlined in this Section.
6.2 Termination for Cause. This Agreement may be terminated by a Party for cause by written notice upon the occurrence of any of the following events: (it) if the other ceases to do business or otherwise terminates its business operations without a successor or if there is a material change in control of the other or (ii) if the other breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days (ten (10) days in the case of a failure to pay) of written notice describing the breach; or (iii) if the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within ninety (90) days).
6.3 Termination for Convenience. Either Party may terminate this Agreement at any time with or without cause upon thirty (30) days prior written notice to the other Party.
6.4 Effects of Termination or Expiration. Upon any termination or expiration of this Agreement: (i) Partner shall pay Incorta all fees due to Incorta forProduct(s) sold hereunder; (ii) Partner shall discontinue all marketing and reselling ofProduct(s); (iii) all valid End User Agreements entered into with End Users shall survive for the term specified in the relevant End User Agreement; (iv) discontinue all use of the Product(s) and Incorta Marks and return to Incorta all materials containing Incorta Marks, except to the extent needed to support existing End Users for the relevant End User subscription term, in which case, such discontinuation of use shall occur at the end of all relevant End User subscription terms, and (v) each Party shall promptly return all Confidential Information of the other Party in its possession or control, and upon request, provide the other Party with a written certification, signed by one of its officers certifying to the return of all such Confidential Information, except to the extent needed to support existing End Users for the relevant End User subscription term, in which case, such return and certification shall occur at the end of all relevant End User subscription terms.
6.5 Survival. Any terms which by their nature should survive, shall survive any termination or expiration of this Agreement.
6.6 Damages Associated with Termination. Neither Party shall be liable to the other Party for any claims or damages of any kind arising solely out of a Party exercising its termination rights described in this Agreement, and each Party hereby waives, and covenants to the other that it shall not pursue, any compensation or reparation associated with a such termination, whether such compensation or reparation results by operation of law or otherwise. For clarity, the foregoing sentence is not intended to affect any remedies a Party is entitled to seek in connection with a breach of this Agreement by a Party, nor does such provision affect the obligation of Partner to pay fees due to Incorta for Product(s) resold.
7. Compliance With Laws and Anti-Bribery. Each Party will comply at all times with all applicable laws and regulations pertaining to, without limitation, anti-money laundering, embargoes and/or sanction requirements as well as the US Foreign Corrupt Practices Act, the UK Bribery Act and similar laws in the Territory.
7.1 Both Parties represent they have not, in conjunction with any business transactions involving the other Party, made, offered or promised to make, and will not make, offer or promise to make, any payment or other transfer of anything of value, including without limitation the provision of any service or gift or entertainment to: any government official, employee of the other Party; any political party, official of a political party; or any other person or entity for the purpose of obtaining or influencing the award of or carrying out of this Agreement to the extent that to do so is or would be in violation of the anti-bribery laws of any relevant jurisdiction, including without limitation, the US Foreign Corrupt Practices Act, the UK Bribery Act, KSA’s Anti-Bribery Law and Anti-Money Laundering Law, as may be amended.
7.2 Both Parties agree that all payments under this Agreement, including in connection with joint sales and marketing activities paid by one Party to third parties (if any) shall be made by check or wire transfer, and that none shall be made by cash or other negotiable instrument.
7.3 Incorta may upon reasonable notice, and not more frequently than once per contract year, conduct a reasonable audit of Partner’s relevant records to confirm Partner’s compliance with the terms and conditions of this Agreement. In particular, Incorta may audit all records pertaining to a joint customer deal, including records of hospitality, gifts, sales expenses and any commission paid. Any such audit shall be conducted during regular business hours and shall not unreasonably interfere with Partner’s business activities. Partner shall reasonably cooperate in any such audit.
7.4 If Incorta has a reasonable basis to believe that Partner has taken or failed to take any action that may subject Incorta to liability under any anti-bribery laws, Partner agrees that Incorta shall have the right upon written notice to Partner to conduct an investigation of Partner to determine to Incorta’ reasonable satisfaction whether any actions or failures to act on behalf of Partner may subject Incorta to such liability. Partner agrees to assist Incorta to the extent necessary for Incorta to conduct said investigation.
7.5 Incorta may terminate this Agreement in the event that it determines, in its sole discretion exercised in good faith, that Partner has violated its obligations set out in this Agreement. Partner shall indemnify and hold Incorta, its affiliates, directors, employees and representatives harmless from any claims, costs, liabilities, obligations and damages that may incur as a result of such a violation.
7.6 Partner shall keep Incorta informed of all its activities under this Agreement. At a minimum, such information shall include marketing activities, competition, and other similar circumstances. Partner shall also inform Incorta of any third party unauthorized use of Incorta trademarks, service marks, patents, copyrights, or other intellectual or industrial property rights.
7.7 Partner may not engage sub-agents, distributors, resellers or other types of third party partners without Incorta’ written approval. Notwithstanding any such written approval, Partner is fully responsible and liable for all actions and inactions of such third party partners.
8 Third Parties.
8.1 With respect to third parties, subject to the control or determining influence of a Party, including but not limited to: agents, business development consultants, sales representatives, customs agents, general consultants, resellers, subcontractors, franchisees, lawyers, accountants or similar intermediaries, acting on the Party’s behalf in connection with marketing or sales, the negotiation of contracts, the obtaining of licenses, permits or other authorizations, or any actions that benefit the Party or as subcontractors in the supply chain, Parties should instruct them neither to engage nor to tolerate that they engage in any act of corruption; not use them as a conduit for any corrupt practice; hire them only to the extent appropriate for the regular conduct of the Party’s business; and not pay them more than an appropriate remuneration for their legitimate services. The Parties agree to disclose their plan to engage any and all third parties in advance to the other party, including details of the scope of work of that third party and eventual compensation model.
8.2 The Parties agree that, at all times in connection with and throughout the course of the Agreement and thereafter, they will comply with and that they will take reasonable measures to ensure that their subcontractors, agents or other third parties, subject to their control or determining influence, will comply with the following provisions:
8.3 The Parties will prohibit the following practices at all times and in any form, in relation with a public official at the international, national or local level, a political party, party official or candidate to political office, and a director, officer or employee of a Party, whether these practices are engaged in directly or indirectly, including through third parties:
8.3.1 Bribery is the offering, promising, giving, authorizing or accepting of any undue pecuniary or other advantage to, by or for any of the persons listed above or for anyone else in order to obtain or retain a business or other improper advantage, e.g. in connection with public or private procurement contract awards, regulatory permits, taxation, customs, judicial and legislative proceedings.
Bribery often includes:
8.3.2 kicking back a portion of a contract payment to government or party officials or to employees of the other contracting Party, their close relatives, friends or business partners or
8.3.3 using intermediaries such as agents, subcontractors, consultants or other third parties, to channel payments to government or party officials, or to employees of the other contracting Party, their relatives, friends or business partners.
8.3.4 Extortion or Solicitation is the demanding of a bribe, whether or not coupled with a threat if the demand is refused. Each Party will oppose any attempt of Extortion or Solicitation and is encouraged to report such attempts through available formal or informal reporting mechanisms, unless such reporting is deemed to be counter-productive under the circumstances.
8.3.5 Trading in Influence is the offering or Solicitation of an undue advantage in order to exert an improper, real, or supposed influence with a view of obtaining from a public official an undue advantage for the original instigator of the act or for any other person.
8.3.6 Laundering the proceeds of the Corrupt Practices mentioned above is the concealing or disguising.
9.0 Government Matters. Partner will not sell the Product(s) to the United States Federal Government either directly or indirectly, or through the General Services Administration ("GSA"). Incorta does not accept any flow down provisions, including but not limited to, United States Government Federal Acquisition Regulations ("FARs"), Defense FARs, or NASA FARs, notwithstanding the existence of such provisions on Partner's orders or supplementary documentation or Incorta’s acceptance of such orders or documentation. This Agreement will not be construed by Partner as a representation that Incorta will furnish supplies needed by Partner to fulfill any of Partner’s GSA or similar contract obligations under any schedule contract. Notwithstanding anything else, Partner may not provide to any person or export or re-export or allow the export or re-export of the Product(s), Documentation or anything related thereto (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Partner acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Software Service is deemed a representation and warranty that the End User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.
10. Audit Rights. Partner shall, upon Incorta’s written request (which shall not be made more than once per year during the Term or within twelve (12) months of the termination of the Agreement) provide Incorta with a report which shall include information reasonably requested by Incorta from time to time relating to the sales or distributions of Product(s), including the name and address of End User entity, Product(s) sold (including scope of licenses sold to the relevant End User), fees paid to Incorta for the same, and any other reasonable information Incorta may request. Upon thirty (30) days’ written notice, but no more frequently than once per calendar year, Partner will provide Incorta with reasonable access to Partner’s business premises during normal business hours to conduct an audit of Partner’s records and systems to verify compliance with this Agreement. Partner will provide reasonable cooperation to the auditors during any such audit. Incorta will bear the costs of any audit contemplated by this Section, except that if Partner is found to have intentionally underpaid Incorta by more than five percent (5%) for any audited calendar quarter, Partner will reimburse Incorta for all reasonable expenses incurred in connection with the audit in addition to any and all remedies available to Incorta in law or equity.
11. Compliance with Good Business Practices and Laws. While acting as a Partner for Incorta, Partner agrees that it shall conduct its business in a manner that favorably reflects upon the Product(s), Incorta, its good name, goodwill and reputation and Partner shall avoid any deceptive, misleading or unethical practices that may be detrimental to Incorta or its reputation. Partner shall maintain a valid resale certificate from local tax authorities, if required by local law, and submit proof thereof to Incorta upon request. Partner agrees to comply with all laws and regulations in connection with its performance under this Agreement, including to the extent applicable, privacy laws, telecommunication laws and all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. Without limiting the forgoing, Partner agrees that it shall not import, export or re-export, or allow or authorize the import, export or re-export of any Product(s), technology or information it obtains or learns pursuant to this Agreement (or any direct Product(s) thereof) in violation of any laws or regulations. Where required, Incorta shall provide Partner information regarding the export classification control numbers (ECCN) and any export licenses it has obtained with respect to its Product(s). Subject to the foregoing, Partner shall be responsible for procuring any necessary governmental authorizations for importation of the Product(s) within the Territory (including any territories from which the Product(s) may be accessed), including without limitation any necessary licenses, approvals, permissions or consents.
12. Communications. During the Term, Partner agrees to keep Incorta informed as to any problems encountered with the End User or prospect or the Product(s)Product(s) and any resolutions arrived at for those problems of which Partner becomes aware. Partner will not make any inaccurate statements concerning the quality, performance or other characteristics of the Product(s).
13. Demonstration of Product(s) to Prospects. If Incorta has approved Partner for obtaining a not-for-resale copy of Product(s) for demonstration to potential prospects, then the following shall apply: Subject to the terms of this Agreement, Incorta grants Partner a nontransferable, non-exclusive license to use the not-for-resale copy of the Product(s) obtained (including any updates or upgrades delivered to the Partner) solely on Partner systems and only to demonstrate Product(s) to potential prospects but only if the prospect is subject to obligations of confidentiality and non-use which are no less restrictive than the confidentiality terms described herein. For clarity, Partner may not use the not-for-resale copies of Product(s) for internal use or to provide services to third parties or to allow prospects to trial the Product(s) on prospect systems or otherwise to help or allow or engage the prospect in a proof of concept using prospect data on prospect systems. Evaluation licenses may be granted by Incorta to the prospect for thirty (30) day trial periods subject to the terms of Incorta’s evaluation agreement. Incorta may revoke the license to the not-for-resale copy of the Product(s) at any time.
14. Opportunity Registration. The Opportunity Registration requirements and obligations will be as set forth in the Incorta Opportunity Registration Guide, made available by Incorta to Partner (either as part of its Partner Portal or otherwise in writing). This document may be updated by Incorta from time to time at Incorta’s sole discretion and without notice.
15. General.
15.1 Relationship of Parties. The parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the Parties. Neither Party nor any of its employees has the authority to bind or commit the other Party in any way or to incur any obligation on its behalf.
15.2 Assignment. This Agreement and the rights hereunder are not transferable or assignable without the prior written consent of the other Party, except to an entity who acquires all or substantially all of the assets or business of a Party, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement shall bind and inure to the benefit of each Party’s permitted successors and assigns.
15.3 Amendment and Waiver. Except as otherwise expressly provided herein, any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or any particular instance and either retroactively or prospectively) only with the written consent of the Parties. However, it is the intention of the Parties that this Agreement be controlling over additional or different terms of any order, confirmation, invoice or similar document, even if accepted in writing by both Parties, and that waivers and amendments shall be effective only if made by non-preprinted agreements clearly understood by both Parties to be an amendment or waiver.
15.4 Governing Law; Disputes; Arbitration. This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to conflicts of law’s provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods or UCITA. In the event of any dispute between Partner and Incorta, the Parties shall attempt, promptly and in good faith, to resolve the dispute. The Parties agree that any dispute that cannot be resolved by those involved shall be submitted to the senior management of each Party for attempted resolution of the dispute. Senior management shall discuss the problem and negotiate in good faith in an effort to resolve the dispute. If senior management, within thirty (30) days after their first communication have not resolved the dispute, then either Party may thereafter submit the dispute to binding arbitration. Except as otherwise specifically provided in this Section, each Party agrees that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in San Francisco, California before one arbitrator. If Partner is in the United States or Canada, the arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. If Partner is outside the United States or Canada, the arbitration will be administered by International Chamber of Commerce. The language to be used in the arbitral proceedings will be English. Judgment on the arbitral award may be entered in any court having jurisdiction. This clause will not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
15.5 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
15.6 Notices. Any notice required to be given under this Agreement shall be in writing and delivered personally, by express overnight mail, by certified U.S. mail or by email to the other Party at the address, (or such other address provided by each Party in accordance with this Section) or electronic delivery. Notices shall be deemed effective (i) on the date of delivery, if delivered personally; (ii) on the date of email transmission, if sent by email and a response email or other confirmation by the recipient of the receipt of such email is provided; (iii) one (1) business day after deposit, if sent by express overnight courier, with written confirmation of receipt; or (iv) five (5) business days after posting, if sent by certified U.S. mail.
15.7 Entire Agreement. This Agreement supersedes all past and contemporaneous proposals (oral or written), negotiations, conversations, or discussions between or among Parties relating to the subject matter of this Agreement.
15.8 Severability. If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
15.9 Counterparts. This Agreement may be executed and delivered in one or more counterparts (including PDF or other electronic counterparts), with the same effect as if the Parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
This Exhibit sets forth the rights and obligations concerning establishing a Referral Partner relationship between Incorta and Referral Partner. The Incorta Master Terms are an integral part of this Referral Partner Exhibit and are incorporated herein by reference.
1. Definitions.
1.1 “Customer” means an End User
1.2 prospect registered and accepted by Incorta using the process described in the Incorta Opportunity Registration Guide (“Opportunity Registration Guide”). The Opportunity Registration Guide shall mean the then current program guide made available by Incorta to Partner (either as part of its Partner Portal or otherwise in writing) which outlines the Incorta Referral Partner Program(s). This document may be updated from time to time.
1.3 “Incorta Partner Program Guide” shall mean the then current program guide made available by Incorta to Reseller (either as part of its Partner Portal or otherwise in writing) which outlines the Incorta Reseller Program(s). This document may be updated from time to time.
1.2 “Net Revenue” shall mean the net revenue actually received by Incorta from the Customer in connection with an Order placed in connection with the specific Accepted Opportunity (“Accepted Opportunity”), which for clarity the revenue calculation specifically excludes (i) any revenue which is subject to a refund or other contingency, (ii) any pass through costs (taxes or the like), credits or refunds payable in connection with the transaction (iii) revenue obtained by Incorta for any professional services rendered or to be rendered by Incorta (e.g. training, installation, configuration services) (iv) revenue obtained by Incorta for hosting or hosting services (v) revenue received from another opportunity with the same Customer that is registered to another Partner (vi) revenue received from prior or future orders placed by the Customer (vii) opportunity which is not approved or registered by Incorta and (viii) revenue generated from sales to the Customer after the Accepted Opportunity has expired.
1.3 “Order” means an executed written order placed by the Customer in connection with a Qualified Opportunity, provided that the Order is placed prior to the expiration of Qualified Opportunity.
2. Appointment. Subject to the terms and conditions of this Exhibit, Incorta appoints Referral Partner as Incorta’s independent, non-exclusive, referral partner for the Product(s) in the following Territory North and South America and any additional territories approved by Incorta for a single transaction on a case by case basis, if any. Incorta expressly reserves the right to market and sell the Product(s) in the Territory, directly or through other partners, distributors or other channels.
3. Referral Fee and Payment. Referral Fee. Subject to the terms and conditions of this Exhibit, Incorta shall pay Referral Partner the Referral Fees (“Referral Fees”) as described in the then current Incorta Partner Program Guide made available by Incorta to Partner (either as part of its Partner Portal or otherwise in writing) which outlines the Incorta Referral Partner Program(s). The Incorta Partner Program Guide may be updated by Incorta from time to time at Incorta’s sole discretion and without notice.
Referral Fees payable pursuant to Section represent the full and entire compensation due to Referral Partner in consideration of the performance of its obligations under this Exhibit; for clarity, in no event will Incorta be obligated to reimburse Referral Partner for any expenses incurred by Referral Partner for any marketing efforts for performing any of its obligations under this Exhibit. Notwithstanding anything else herein and for clarity, if more than one Incorta partner is involved in the solicitation of the relevant Customer (e.g. where other partners may be soliciting the same Customer on other opportunities), Incorta, in its sole discretion, may appropriately split the revenue received between or among the partners involved as appropriate to calculate the Referral Fee due.
4. Setting Pricing and Terms for the Customer. Referral Partner understands that Incorta and the Customer shall mutually agree on the price and pricing terms relevant to the transaction. Referral Partner will not make any representations about the pricing or state anything to the contrary to Customer or any person or entity. UNDER NO CIRCUMSTANCES SHALL REFERRAL PARTNER OR A REFERRAL PARTNER’S EMPLOYEE, CONTRACTOR, AGENT, AFFILIATE, SUBSIDIARY, DIVISION OR PARENT HAVE THE RIGHT OR AUTHORITY TO MAKE ANY SALES COMMITMENTS OR REPRESENTATIONS ON BEHALF OF INCORTA, INCLUDING THE MAKING OF ANY OFFER FOR A FIXED PRICE, TARGET PRICE, DISCOUNTED, “PREFEREED,” “MOST FAVORED,” OR COST BASIS OR OTHERWISE. Additionally, in connection with any Order placed, Incorta shall have the sole right to set cash discounts, make allowances and adjustments, accept returns, returns, and write off overdue Customer accounts as bad debts, in each case as Incorta deems advisable.
5. Payment Terms. Referral Fee payments will be made within thirty (30) days after Incorta receives payment on the Order from the Customer and a valid invoice from the Referral Partner has been received by Incorta at ap@Incorta.com, provided that in the event acceptance terms are added to the End User Agreement, Referral Fees will be made within ten (10) days after the acceptance terms have been met, irrespective of when payment is made and the invoice is received. For clarity, no Referral Fees will be due or payable unless Customer pays Incorta under the Order and a valid invoice is received and all conditions of acceptance have been met. Referral Fees shall be paid in United States dollars and will be subject to all applicable governmental regulations and rulings, including the withholding of any taxes required by law. Referral Partner agrees that Incorta may charge back to Referral Partner account any amounts previously paid or credited to it with respect to such adjustments, returns or bad debts. Further, Incorta may deduct or offset any amounts owed by Referral Partner to Incorta from any amounts payable by Incorta to Referral Partner.
This Exhibit sets forth the rights and obligations concerning establishing a Reseller Partner relationship between Incorta and Partner (“Reseller”). The Incorta Master Terms are an integral part of this Reseller Partner Exhibit and are incorporated herein by reference.
1. Definitions:
“Price List” shall mean Incorta’s then-current price list for the relevant Territory which may be obtained from Incorta sales personnel from time to time during the Term.
2. Appointment. Subject to the terms and conditions of this Exhibit, Incorta hereby appoints Reseller, during the Term, as Incorta’s independent, non-exclusive, reseller of the Product(s) in the following Territory North America (which specifically excludes the United States Public Sector, including US Federal, US State, US County and US Cities) (and any additional territories approved by Incorta for a single transaction on a case by case basis, if any. Incorta expressly reserves the right to market and sell the Product(s) in the Territory directly or through other resellers, distributors and/or other channels.
3. Provision of Services. Subject to the terms and conditions of this Exhibit, Incorta hereby grants Reseller, a non- exclusive, non-transferable, revocable license to sub-license the Software Services to the End Users for the use by the End Users and their authorized users. For the purposes of clarity, Reseller may not use the Services for its internal business.
4. Changes. Incorta shall be entitled to change the Services during the Term, provided, that Incorta shall not materially reduce the capabilities provided by the Services.
5. Software Product(s) and End User Agreement Restrictions. Notwithstanding anything else in this Agreement, all software Product(s) are licensed and not sold. Reseller has no right to receive any copies of any source code or related source listings to the Incorta software Product(s). Reseller’s appointment only grants to Reseller a license to market, resell and distribute Product(s) in accordance with the terms herein, and does not transfer any other right, title or interest in any Product(s) to Reseller, End User or any third party. Reseller shall only resell and distribute Product(s) to End Users subject to Incorta’s End User Agreement. If an End User seeks to negotiate a nonstandard form of End User Agreement, at Reseller’s request, Incorta shall attempt to negotiate mutually satisfactory terms; provided, however, Incorta shall not be obligated to agree to any non-standard terms. For clarity, Reseller understands and agrees that in each instance, End Users must agree to be bound by the End User Agreement prior to delivery of anyProduct(s) (and/or license keys for access to Product(s)) to such End Users.
6. End User Subscriptions. All End User subscriptions to be provided by the Reseller shall be provided only upon an Order (“Order”) being issued by or to the Reseller to Incorta. End User subscriptions shall become active only once the Order is accepted by Incorta, in its discretion, either in writing or through electronic means. Unless otherwise agreed in writing (i) access to the Software Services purchased by the End User may be accessed by no more than the specified number of Users in the applicable Order, and (ii) additional User (“User”) subscriptions may be added during the applicable subscription term, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. End User subscriptions are for designated number of Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
7. Prices and Payment Terms; Invoices. Unless otherwise agreed in writing (as part of a quote provided by Incorta to Reseller), Prices (“Prices”) payable by Reseller to Incorta for Product(s) resold to End Users are those set forth on Incorta's then-current relevant Price List, less the applicable Commission. Incorta may revise its then-current Price List with thirty (30) days written notice, provided such revised pricing shall only apply to orders registered after such notice period expires. Incorta may invoice Reseller forProduct(s) resold upon Incorta’s acceptance of the Reseller purchase order. Reseller shall pay all amounts invoiced by Incorta within thirty (30) days from receipt of invoice. Reseller shall pay interest on all amounts not paid when due at the rate of one and 1.5% per month or the highest rate permitted by law, whichever is lower; Such interest shall accrue on the balance of unpaid amounts from time to time outstanding, measured from the date on which portions of such amounts become due and owing until payment thereof in full. Incorta may suspend Reseller's ability to sell the Incorta Software Services if Reseller does not make a payment on time or is not in good standing.
8. Pricing to End Users. Reseller is free to determine its own resale prices to the End User for Incorta Product(s). Reseller may also define unique payment terms with the End User; however, such terms shall not alter or in any way modify Reseller's obligations with regard to the payment of fees due to Incorta hereunder.
9. Taxes. All stated Prices are exclusive of any taxes, fees and duties or other amounts, however designated or levied, and including without limitation value added and withholding taxes which are levied or based upon such charges, or upon this Exhibit. Any taxes due in connection with any payments due hereunder shall be paid by Reseller or Reseller shall present an exemption certificate acceptable to the taxing authorities. Applicable taxes shall be billed as a separate item on the invoice, to the extent possible. Reseller will pay or reimburse Incorta for any sales, value added, use, excise and like taxes, withholding, import duties and/or other applicable levies ("Tax"), in connection with such Reseller's selling of Product(s) under this Exhibit.
10. Placing Orders; Order fulfillment; Delivery. In order to place an Order, Reseller shall issue a valid purchase order (“PO”) or Order to Incorta identifying the relevant End User, the End User contact and delivery contact information, the Product(s) being purchased, the fees due to Incorta, and the relevant End User subscription license parameters under which pricing is determined (subscription term, counts, capacity limitations, etc.) and such other information reasonably requested by Incorta. Sample ordering documents shall be made available by Incorta to Reseller. Reseller’s PO once approved by Incorta shall be non-cancelable by Reseller. Any contingencies contained on such PO are not binding upon Incorta. The terms and conditions of the Agreement and this Exhibit prevail regardless of any additional or conflicting terms on any such PO or ordering document, even if accepted by Incorta. Incorta may accept or reject any order in its sole discretion, including based on an End User’s refusal to accept the End User Agreement. Incorta may indicate acceptance by delivery to the End User against the Reseller approved Order. Subject to the terms and conditions of this Exhibit, Incorta shall fill Reseller's approved written Orders for Product(s) to End Users who have assented to a valid End User Agreement. Incorta shall not be liable to Reseller or to any other party for any for any unregistered opportunities, or any orders not formally accepted by Incorta in writing. Incorta shall deliver Product(s) directly to End Users electronically based on the licensed parameters outlined in Reseller’s approved order.