EnterpriseDB Partner Program Agreement
This EnterpriseDB Partner Program Agreement is between EnterpriseDB Corporation and its Affiliates (“EnterpriseDB” or “EDB”), and Partner, as identified on one or more Program Addenda (“Partner”). Partner and Enterprise DB may participate in one or more Partner Programs by executing (including online if applicable) a Program Addendum for each. This Agreement includes the terms of such Program Addenda, including their Program Guides.
1. License Grant. EnterpriseDB grants to Partner a nonexclusive, nontransferable license for promotion, use or distribution of Products and/or Services in a Territory as set forth in each Program Addendum. Products and Services are those that EnterpriseDB chooses to make available under each Program. In support of Partner’s activities under one or more Program Addenda, EnterpriseDB hereby grants Partner the following additional licenses:
1.1. Internal Use License. A nonexclusive, nontransferable license to install EDB proprietary software included in Products covered by the applicable Program on computers owned, leased or controlled by Partner within the Territory solely for evaluation, demonstration and promotional purposes in support of authorized activities under the Program Addendum. This internal use license does not include the right of Partner to use the proprietary software for production or any other commercial purpose.
1.2 Marketing Materials License. A nonexclusive, nontransferable license to use, copy and distribute EnterpriseDB proprietary marketing materials within the Territory that EnterpriseDB chooses to make available in its sole discretion under the applicable Program. If Partner desires to perform any localization of marketing materials: (a) Partner must obtain the prior written consent of EnterpriseDB (e-mail is sufficient); (b) Partner will ensure that the original meaning, quality and intent is preserved in the translation; (c) EnterpriseDB shall own all intellectual property rights to such localized marketing materials; and (d) Partner will provide copies of all localized versions of the marketing materials to EnterpriseDB for its review and written approval prior to distribution (e-mail is sufficient).
1.3 Trademark License. A nonexclusive, nontransferable license to use EnterpriseDB’s trademarks in accordance with the EnterpriseDB trademark usage guidelines set forth at https://www.enterprisedb.com/trademarks-copyrights solely in connection with Partner’s authorized activities within the Territory under the applicable Program Addendum. Partner must submit all proposed uses of the EnterpriseDB trademarks to EnterpriseDB for prior approval (e-mail is sufficient). All goodwill accruing from Partner’s use of EnterpriseDB’s trademarks shall inure to the benefit of EnterpriseDB. Partner will at no time contest or aid in contesting the validity or ownership of any of EnterpriseDB’s trademarks or take any action in derogation of EnterpriseDB’s rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any trademark of EnterpriseDB. During the term of this Agreement, EnterpriseDB and Partner shall have the right to identify Partner as authorized pursuant to applicable Program Addenda.
1.4 Open Source Software License. Open source software is licensed exclusively under the applicable open source license. Any open source software provided by EnterpriseDB in Products will be described in the applicable Product license directory.
1.5 License Restrictions. No license is granted under this Agreement to: (a) use, copy or distribute Products or Services except as expressly licensed above or in a Program Addendum; (b) rent, lease or sublicense the Products or Services or use them in providing time-sharing services or service bureau services; (c) allow access to or permit use of the Products or Services by any third party except as authorized in a Program Addendum or otherwise by EnterpriseDB in writing (email is sufficient), provided that Partner shall be liable for all acts and omissions of such authorized third party; (d) circumvent any license restrictions or technical enforcement functionality; (e) modify or create derivative works based upon the Products or Services; (f) reverse engineer, disassemble, decompile the Products or Services; (g) alter or remove any proprietary notices; or (i) make available to any third party any analysis of the results of operation of the Products or Services, including benchmarking results, without the prior written consent of EnterpriseDB (email is sufficient). Except as expressly granted herein, no license regarding the use of EnterpriseDB’s copyrights, patents, trademarks or trade names is granted or implied.
2. Partner Requirements. Partner must read the Program Guide incorporated in each applicable Program Addendum and agree to comply with the requirements, and will receive the benefits, set forth therein. The Program Guide may be modified from time to time in EnterpriseDB’s sole discretion, but subject to thirty (30) days prior e-mail notice. The revised Program Guide will be provided with such notice, but posted as of its effective date (with the “Last revised” date on the posted Program Guide reflecting such effective date).
3. Confidentiality. Each party expressly undertakes to retain in confidence the terms and conditions of this Agreement and all information transmitted by one party to the other hereunder that (i) the disclosing party has identified in writing as confidential, or (ii) due to the circumstances of disclosure or the nature of the information, should reasonably be considered confidential. Either party may disclose confidential information as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party prior to its disclosing to the receiving party; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; or (iii) is independently developed by the receiving party. Each party’s obligation under this Section shall extend to the earlier of such time as the information protected hereby falls into the public domain through no fault of the receiving party or five (5) years from the date of disclosure.
4. Term and Termination. Unless terminated earlier as provided below, this Agreement shall become effective with the first Program Addendum between the parties and shall continue until all Program Addenda between the parties have expired or been terminated. Each party shall have the right to terminate this Agreement, including all Program Addenda, in the event the other party: (a) ceases to do business in the ordinary course; (b) becomes or is declared insolvent or bankrupt; (c) is the subject to any proceeding related to its liquidation or insolvency; which proceeding, if involuntary is not dismissed within sixty(60) days; (d) makes an assignment for the benefit of creditors; or (e) materially breaches any provision of this Agreement and fails to remedy such breach within thirty (30) days after receipt of written notice of such breach given by the non-breaching party, except no right to cure shall apply in the event of Partner’s breach of Subsection 11.4 (Compliance) or 11.5 (Export). Additional termination rights specific to individual Program Addenda may be set forth in Program Addenda. Both parties agree that the opportunities presented by this Agreement constitute adequate consideration for such termination rights. Neither party shall be responsible to the other for any costs or damages resulting from the termination of this Agreement and/or any Program Addenda. Upon expiration or termination of this Agreement or any Program Addendum, all applicable rights and licenses granted shall revert to EnterpriseDB. Termination shall not affect any claims or obligations arising prior to the effective date of termination.
5. Ordering. Products and Services shall be sourced as indicated in the applicable Program Addenda.
6. New Products and Services & End of Sale. Notwithstanding any other provisions of this Agreement, EnterpriseDB may elect at any time during the term of this Agreement to announce new Products or Services which are not available under one or more Program Addenda. Maintenance releases of existing Products will not be considered new Products. Over time, EnterpriseDB may elect to terminate availability of Products and Services pursuant to its then current end-of-life policy.
7. Limited Warranties. EnterpriseDB warrants Products and Services to end users under the terms of its EULA at https://www.enterprisedb.com/legal/EDB-Eula. THESE LIMITED WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND OF ALL OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON ENTERPRISEDB’S PART EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW. PRODUCTS AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR DISTRIBUTION OR USE IN CIRCUMSTANCES WHERE FAILURE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Partner warrants that it has the authority to bind under this Agreement any participating Affiliates. Partner will be liable to EnterpriseDB in the event any participating Affiliate fails to comply with any term or condition of this Agreement. “Affiliate” as used in this Agreement means any entity which directly or indirectly controls, is controlled by, or is under common control with a party; with “control” meaning ownership of greater than fifty percent (50%) of the voting and equity rights or the power to direct the management of the entity.
8. Indemnification
8.1 EnterpriseDB. EnterpriseDB shall indemnify and defend Partner against any third party Infringement Claim, and pay reasonable attorneys’ fees, court costs, damages finally awarded, or reasonable settlement costs, with respect to such Infringement Claim; provided that: (i) Partner promptly notifies EnterpriseDB in writing of an Infringement Claim such that EnterpriseDB is not prejudiced by any delay of such notification; (ii) EnterpriseDB has sole control over the defense and any settlement of any Infringement Claim; and (iii) Partner provides reasonable assistance in the defense of same. If Partner’s resale of the relevant Product or Service and/or its EnterpriseDB authorized reseller’s resale or the same and/or its end user’s use is, or in EnterpriseDB’s opinion is likely to be, enjoined as a result of an Infringement Claim, EnterpriseDB shall, at its sole option and expense, either (i) procure for Partner the right to continue to resell the Product and Service, or (ii) replace or modify the Product or Service to make its resale and use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) are not reasonably available, EnterpriseDB may, in its sole discretion and upon written notice to Partner, cancel access to such Product or Service, including the right of Partner to resell the same, the EnterpriseDB authorized reseller’s right to resell the same and the end user’s right to use, with a refund of any pre-paid unused fees for the Product or Service (with Partner to flow-down the applicable portion of such fees to the EnterpriseDB authorized reseller and end user purchasers). For purposes of this Agreement, “Infringement Claim” means any claim, suit or proceeding brought against Partner based on an allegation that any Product or Service, as delivered by EnterpriseDB, infringes upon any patent or copyright or violate any trade secret rights of any third party. EnterpriseDB assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Partner’s use or resale of a Product or Service following notice of an Infringement Claim; (ii) any modification of a Product or Service by Partner or end users; (iii) Partner’s combination of a Product or Service with its own products or services or any other third party programs, services, data, hardware, or other materials; (iv) Open Source Software in Software or Deliverables; or (v) any trademark or copyright infringement involving any marking or branding not applied by EnterpriseDB or involving any marking or branding applied by Partner or at Partner’s request. THE FOREGOING STATES ENTERPRISEDB’S SOLE LIABILITY AND PARTNER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
8.2 Partner. Partner shall defend, indemnify, and hold harmless EnterpriseDB from and against all liabilities, claims, costs, fines, and damages of any type (including attorney’s fees) arising out of or in any way related to Partner’s (i) design, manufacture, marketing (including misrepresentation), sale or delivery of its own or any third party products or services; (ii) improper marketing (including misrepresentation) or sale of EnterpriseDB Products or Services; or (iii) breach of Subsection 11.4 (Compliance) or 11.5 (Export).
9. Limitation of Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION UNDER SECTION 8, AND SUBJECT TO APPLICABLE LAW, NEITHER ENTERPRISEDB NOR PARTNER SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSSES OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, LOSS OF OPPORTUNITY AND THE LIKE, AND IN THE CASE OF ENTERPRISEDB, THOSE ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCTS, OR PROVISION OF, OR FAILURE TO PROVIDE, SUPPORT OR OTHER SERVICES, EVEN IF ENTERPRISEDB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. IN ANY EVENT, EXCEPT WITH RESPECT TO INDEMNIFICATION UNDER SECTION 8, AND AS OTHERWISE PROVIDED BY LAW, THE LIABILITY OF ENTERPRISEDB OR PARTNER, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE, SHALL, IN THE AGGREGATE, NOT EXCEED THE AMOUNT PAID OR PAYABLE BY PARTNER FOR THE PRODUCTS OR SERVICES AT ISSUE. FURTHER, AS STATED IN SECTION 4 (TERM AND TERMINATION), NEITHER PARTY SHALL BE RESPONSIBLE TO THE OTHER FOR ANY COSTS OR DAMAGES RESULTING FROM THE TERMINATION OF THIS AGREEMENT.
10. Territory. Partner’s Territory shall be as set forth in the applicable Program Addendum. Partner’s Territory is non-exclusive and this Agreement does not prohibit, impair or affect the right of EnterpriseDB to market and sell Products or Services or other offerings directly or indirectly in the Territory.
11. General
11.1 Independent Contractors. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, franchise or agency relationship between EnterpriseDB and Partner. Partner agrees that it shall inform its end users that Partner is an independent business from EnterpriseDB, and shall not hold itself out as an agent of EnterpriseDB, or attempt to bind EnterpriseDB to any third party agreement.
11.2 Choice of law and venue. This Agreement shall be governed by the laws and jurisdiction based on Partner’s domicile pursuant to the table here: https://www.enterprisedb.com/legal/partner_law_venue.
11.3 Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform its nonmonetary obligations hereunder to the extent due to unforeseen circumstances or causes beyond its reasonable control, including without limitation: (i) acts of God; (ii) pandemics, (iii) electrical power failures or surges; (iv) utilities or other telecommunications failures; (v) storms or other elements of nature; or (vi) terrorism or acts of war; but only for so long as such condition exists.
11.4 Compliance. Partner represents that:
Partner shall comply with the then current EnterpriseDB Supplier Code of Conduct at https://www.enterprisedb.com/sites/default/files/pdf/Supplier_Code_of_Conduct_English.pdf and additional compliance requirements as may be set forth in the Program Guide.
Partner shall at all times comply with the United States Foreign Corrupt Practices Act, the UK Bribery Act of 2010, the India Prevention of Corruption Act (if applicable), or any other applicable laws addressing anti-bribery and anti-corruption.
Neither it nor its owners, directors, employees, agents or partners has or will directly or indirectly offer, promise, give or pay, or authorize payment of anything of value to any person to improperly obtain, retain or direct business or secure an improper advantage in connection with the marketing or sale of Products or Services. Partner represents that none of its owners, directors, employees, agents, or partners has been convicted of or pleaded guilty to bribery, fraud or related charges.
Except as disclosed by Partner to EnterpriseDB, and to the best of its knowledge, none of Partner’s owners (in whole or in part), directors, employees, partners, contractors, or agents, or close family members thereof (i.e., spouses, children, parents and siblings), is presently (or has been within the last year) a Government Official. Partner acknowledges that, for purposes of this Section, a “Government Official” is (i) any officer or employee, appointed or elected, of a local, state, regional or federal government, or any department, agency, ministry or instrumentality of a government; (ii) any individual who, although temporarily or without payment, holds a public position, employment or function; (iii) any officer or employee of a public international organization; (iv) an individual acting in an official capacity for or on behalf of a government department, agency, ministry, instrumentality or public international organization; (v) a political party, a political party official, officer or employee or any candidate for political office; (vi) any officer or employee of an entity owned or controlled by a government, as well as entities that perform a government function; or (vii) a member of a royal family, including one who may lack formal authority, but could otherwise be influential in advancing EnterpriseDB’s business interests, through, for example, partially owning or managing a state-owned or state-controlled entity. Partner further acknowledges that, for purposes of this Section, a relative of a Government Official is also a Government Official if interactions with that relative are intended or have the effect of conferring anything of value on a Government Official. Partner shall not use any agent, subcontractor, consultant or other third party in connection with this Agreement that is a Government Official. Partner shall promptly inform EnterpriseDB if Partner learns that any such person, as described above, assumes such a position.
Partner agrees to implement adequate policies and procedures to prevent, detect, and deter a breach of this Section and to make all personnel engaged in the marketing and sale of Products and Services available for compliance training, as reasonably requested by EnterpriseDB. With reasonable notice, EnterpriseDB and/or its representatives will have the right to review all records of Partner related to compliance with this Section. Partner agrees to cooperate with any compliance investigation undertaken by EDB in connection with this Agreement, including permitting EDB access to Partners’ correspondence and financial records.
11.5 Export. Partner acknowledges that Products and Services are subject to U.S. export control and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including the U.S. Export Administration Regulations (“EAR”) and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Partner agrees to comply with all such applicable laws and regulations and to obtain all necessary and appropriate export, reexport, transfer, or import licenses or other authorizations. Partner will not, directly or indirectly, export, reexport, transfer (in-country), or allow access to or use of any Products or Services, or related technology to, in, by, or for any sanctioned or prohibited country, region, person, or end use under U.S. law without authorization from the U.S. government. For avoidance of doubt, prohibited end uses can include, but are not necessarily limited to, weapons proliferation activities; military or military-intelligence end uses in or for certain countries, including Belarus, Burma, Cambodia, the People’s Republic of China (including Hong Kong), Nicaragua, the Russian Federation, and Venezuela; certain energy projects in Russia or benefitting Russian entities; and certain supercomputer, advanced-node integrated circuit, and semiconductor manufacturing end uses in or for certain countries, including the People’s Republic of China (including Hong Kong and Macau) and other countries listed in Country Group D:5 in the EAR, 15 C.F.R. Part 740, Supp. No. 1.
Partner certifies that neither it nor any of its direct or indirect owners, officers, directors, controlling individuals or entities, employees, agents, or subcontractors are (i) subject to U.S., European Union, United Kingdom, United Nations, or other applicable sanctions or export restrictions, including being designated on or pursuant to the U.S. Department of Commerce’s Denied Persons List, Unverified List, or Entity List; the U.S. Department of State’s Non-Proliferation Sanctions Determinations; OFAC’s Specially Designated Nationals List, Foreign Sanctions Evaders List, or Sectoral Sanctions Identifications List; or sanctions-related U.S. Executive Orders; (ii) located or headquartered in, or directly or indirectly owned by any person located, ordinarily resident, or headquartered in, a country or region subject to comprehensive or near-comprehensive U.S. or other applicable sanctions (at the time of this Agreement, without limitation, Cuba, Iran, North Korea, Syria, Russia, Crimea, the so-called Donetsk People’s Republic, and the so-called Luhansk People’s Republic); or (iii) part of the national armed services, national guard, national police, or a government intelligence or reconnaissance organization in Belarus, Burma (Myanmar), Cambodia, the People’s Republic of China (including Hong Kong), the Russian Federation, or Venezuela; or otherwise qualify as a military end user or military-intelligence end user(as those terms are defined in Sections 744.21 and 744.22 of the EAR, 15 C.F.R. §§ 744.21, 744.22, and related U.S. government guidance), such as by developing, producing, maintaining, or using military items; or (iv) owned or controlled by, or acting on behalf of, any of the foregoing. Partner must immediately notify EDB, in writing, of any change that may impact the certification above.
11.6 Audit. Partner represents that it shall keep accurate books, accounts and records relating to authorized transactional activities under applicable Program Addenda, and that no side or off-books shall exist. Partner will, during this Agreement and for a period of two (2) years after termination, maintain records relating to contracts, invoices, accounts, complaints and other transactions relating to the Products, Services, Support and EnterpriseDB. Partner agrees that EnterpriseDB may directly or through an agent once per year inspect such accounts, records and information. If an audit reveals an underpayment to EnterpriseDB, Partner will immediately pay the amounts due and will be responsible for the reasonable cost of the audit; otherwise EnterpriseDB will bear the cost of the audit.
11.7 No Waiver. If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions. No waiver of any breach of any provisions of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the waiving party.
11.8 Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned or sublicensed by Partner, without prior written consent from EnterpriseDB. EnterpriseDB may assign, novate or otherwise transfer, without Partner’s approval, its rights or obligations arising out of or under this Agreement pursuant to a merger, corporate reorganization, or a sale or transfer of all or substantially all of EnterpriseDB’s assets; or to any of EnterpriseDB’s Affiliates. Partner must do all things, including execute all documents, reasonably required by EnterpriseDB to give effect to such assignment, novation or transfer.
11.9 Survival. Termination or expiration of this Agreement shall not relieve either party of any liability or obligation intended by the parties to survive expiration or termination, specifically those under Sections 3 (Confidentiality), 7 (Limited Warranties), 8 (Indemnification), and 9 (Limitation of Liability), and Subsections 11.1 (Independent Contractors), 11.2 (Choice of Law and Venue), 11.4 (Compliance), 11.5 (Export), 11.6 (Audit), and 11.7 (No Waiver). All other rights and obligations of the parties shall cease upon expiration or termination of this Agreement.
11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications including all prior and current Partner agreements. It shall not be modified except by a written amendment executed by the parties.