1. PRODUCT LICENSE
1.1 Right to Distribute Product
Subject to all of the terms and conditions of this Agreement, Vizydrop hereby grants to Partner during the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable right to market and distribute the Product, in Docker container images code form in an on-premises or hosted model, directly to (a) End Users on an annual Subscription basis; (b) prospects on an evaluation basis for evaluation purposes only for a term not to exceed sixty (60) days which may be extended with Vizydrop’s written agreement; and (c) for existing End Users only, for staging, disaster recovery, hot-standby, mirrored-sites, and similar non-production uses during the existing license term. Partner shall license the Product to Partner Product users without regard to the number of integration users in third-party systems, per-cluster licenses are issued. As a condition of each license grant, for each individual license to the Product which Partner issues to an End User, Partner must report distribution of the exact license detail for the Product to Vizydrop on a quarterly basis as provided in Section 4.7. Distribution of the Product is permitted solely pursuant to an End User Agreement between each End User and Partner.
1.2 Right to Distribute Upgrades
Subject to all the terms and conditions of this Agreement, Vizydrop hereby grants to Partner during the Term a non-exclusive, non-transferable, non-sublicensable right to distribute Upgrades of the Product, but only to End Users who are entitled to Support.
1.3 Internal Use License
Subject to all of the restrictions in this Agreement, Partner shall have the right during the Term to install and use, only on its own computers, a reasonable number of copies of the Product solely for internal training, demonstration and support of the Product (the “Internal Use License”). Notwithstanding any contrary provision in this Agreement, Vizydrop makes no warranty and shall have no support obligation of any type regarding the Product licensed under the Internal Use License except as specifically set forth in this Agreement. Partner shall cease use of all copies of the Product licensed under the Internal Use License to Vizydrop upon the earlier of the termination of this Agreement or at the end of the Term.
The rights granted to Partner hereunder are non-exclusive and nothing under this Agreement shall prohibit Vizydrop from entering into any Partner, reseller, end-user or other agreement with any other party in any territory or region of the world.
1.6 Delivery Method
Vizydrop may deliver to Partner a single copy of the Product in electronic form, and in fulfillment of its delivery obligations herein may deliver to Partner the applicable number of license key(s) to activate the Product (“License Keys”). Partner is authorized to provide to each End User a copy of the Product along with the License Keys delivered by Vizydrop for that purpose. License Keys are issued on a per-order basis, and Partner shall not reuse or provide any End User with License Keys issued by Vizydrop for a different End User. Vizydrop will make commercially reasonable effort to respond to Partner requests for License Keys within eight (8) business hours.
1.7 Channel Partners
Partner may sublicense to Channel Partners the license rights set forth in this Section 2 subject to the obligations in this Section 2, provided that (a) Partner ensures that such Channel Partners that benefit from the terms and conditions of this Agreement shall agree in writing to terms at least as protective of the Product and Vizydrop as the terms of this Agreement, and (b) Partner shall fully indemnify and hold Vizydrop harmless for any breach by a Channel Partner of the terms of this Agreement.
1.8 Open Source Software
In lieu of the terms of this Agreement, the Open Source Software is licensed to Partner under the terms of the applicable open source license conditions and/or copyright notices that can be found in the licenses file, the Documentation or other materials accompanying the Product. Copyrights to the Open Source Software are held by copyright holders indicated in the copyright notices in the corresponding source files or in the licenses file or other materials accompanying the Product.
1.9 Legal Compliance
Vizydrop shall perform all obligations of Vizydrop under this Agreement in compliance with all laws, rules, regulations and other legal requirements applicable to Vizydrop.
Each party will indemnify, defend and hold harmless the other party from and against all claims arising out of or alleged to have arisen out of: (a) the gross negligence or willful misconduct of such party, its employees or agents; and (b) bodily injury or death of any person or damage or destruction to any real or tangible personal property resulting from the negligent performance of such party's obligations under this Agreement.
2.2 Intellectual Property
Subject to the remainder of this Section, Vizydrop shall defend Partner against any third party claim that the Product infringes such third party’s intellectual property rights (“Infringement Claim”), and indemnify Partner from the resulting costs and damages awarded against Partner to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed to in settlement; provided that Partner (a) notifies Vizydrop promptly in writing of such Infringement Claim, (b) grants Vizydrop sole control over the defense and settlement thereof, and (c) reasonably cooperates in response to a Vizydrop request for assistance. Vizydrop will have the exclusive right to defend any such Infringement Claim and make settlements thereof at its own discretion, and Partner may not settle or compromise such Infringement Claim, except with prior written consent of Vizydrop.
Should any Product become, or in Vizydrop’s opinion be likely to become, the subject of such an Infringement Claim, Vizydrop shall, at its option and expense, (a) procure for Partner the right to make continued use thereof, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the Product and, upon receipt thereof, the corresponding licenses are terminated and Vizydrop shall refund the prepaid but unused fees paid for the infringing Product.
Vizydrop shall have no liability if the alleged infringement is based on (1) combination with non-Products, provided, however, that third party software products delivered by Vizydrop with the Product and unmodified by Partner shall not be deemed to be non-Product for purposes of the foregoing exclusion, (2) use for a purpose or in a manner for which the Product was not designed, (3) use of any older version of the Product when use of a newer Vizydrop revision would have avoided the infringement, (4) any modification of the Product by Partner other than that which is expressly authorized by Vizydrop in writing, (5) any intellectual property right owned or licensed by Partner, excluding the Product, or (6) third party open source software.
THIS SECTION STATES PARTNER’S SOLE AND EXCLUSIVE REMEDY AND Vizydrop’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
3. OWNERSHIP; RESTRICTIONS
Subject to the rights granted herein, Vizydrop and its licensors own and retain all right, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights (“Intellectual Property Rights”) in and to the Product (including all components and derivative rights thereof) and the Support, including without limitation, content provided through training and support services as enhanced during the Term, and Vizydrop expressly reserves all rights not expressly granted to Partner in this Agreement. Partner agrees to promptly notify Vizydrop in the event Partner suspects or becomes aware of any misuse of the Product or the Support or any violation, infringement or misappropriation of Vizydrop's proprietary rights by any End User or other third party.
Partner will not distribute the Product other than to End Users, or otherwise use, distribute or make available the Product except in strict accordance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, Partner will not (a) copy or duplicate the Product in excess of the number of licenses purchased; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Product is compiled or interpreted, and Partner hereby acknowledges that nothing herein will be construed to grant Partner any right to obtain or use such source code; (c) distribute the Product in any form other than the form delivered by Vizydrop to Partner or otherwise permitted under this Agreement; (d) modify, further develop or create any derivative product from the Product without the prior written consent of Vizydrop; (e) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Partner’s rights under this Agreement; or (f) create, modify, or change the behavior of, classes, interfaces, or subpackages that are in any way identified as "java", "javax", “javafx”, "sun", “oracle” or similar convention as specified in any naming convention designation. Partner acknowledges that the Products are not designed or intended for use in the design, construction, operation or maintenance of any nuclear facility.
Partner will undertake all measures necessary to ensure that its use of the Product and the Vizydrop Marks complies in all respects with any contractual or other legally binding obligations of Vizydrop to its third party licensors, provided that Vizydrop has notified Partner with respect to any such obligations. Partner will not enter into any contractual relationship or other legally binding obligation with any third party which will have the purpose or effect of encumbering the use by Vizydrop of the Product or the Vizydrop Marks.
4. PARTNER RESPONSIBILITIES
The Product shall be co-branded as a Partner and Vizydrop product, and shall include “Powered by Vizydrop” or similar annotation, and it is acknowledged that only certain aspects of the Product will be Partner branded and references to Vizydrop Marks will be present in the Product. Partner may grant to Vizydrop and its distributors including without limitation its resellers and systems integrators, a non-exclusive, non-transferable, royalty-free license to use the graphics provided by Partner and the mark “Ncontractors” (“Partner Marks”) inside the Product and other online and offline materials for purposes of marketing the Product. Vizydrop’s use of the Partner Marks shall conform to Partner’s then-current reasonable trademark use policies as provided to Vizydrop prior to the Effective Date or during the Term of this Agreement provided that Partner gives Vizydrop at least sixty (60) days’ prior notice of any change to such policies. All goodwill arising from the use of the Partner Marks shall be vested in and inure to the benefit of Partner. Vizydrop recognizes Partner’s exclusive ownership of the Partner Marks and agrees not to take any action inconsistent with such ownership.
Partner shall not make any representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Product which are in addition to or inconsistent with those set forth in the unaltered product descriptions or promotional materials delivered by Vizydrop to Partner hereunder. Partner shall represent Vizydrop and the Product in a positive and professional manner at all times.
4.3 Partner Product
Partner warrants and represents that the Partner Product, in whole or in part: (a) does not infringe on any intellectual property rights of a third party; and (b) is not licensed under any Contaminated License Terms.
4.4 Business Practices
Partner agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Vizydrop or the Product and agrees to comply with all applicable federal, state and local laws and regulations (including, without limitation, data protection, privacy and import and export compliance laws and regulations) while performing its duties under this Agreement.
4.5 No Residual Rights
In no event may Partner incorporate any of Vizydrop’s intellectual property into the Partner’s existing or future products without Vizydrop’s express written consent.
Partner agrees to be responsible for End Users’ compliance with the terms of each End User Agreement and to notify Vizydrop of any suspected or known material breach of such terms.
Partner shall issue to Vizydrop a factual report due no later than ten (10) days after the end of each calendar quarter detailing the actual number of Subscriptions sold for the Product during the previous quarter, including the customer name, address, license type and support contact information for each Subscription sold and the corresponding royalty fees (“Royalty Fees”) as described in the Pricing Terms Schedule in Appendix II. Upon request, Partner will provide Vizydrop with details concerning distributions made pursuant to Section 1.1(b) and 1.1(c) as well. Partner shall provide the above reports to Vizydrop in the format agreed between the parties.
Partner may provide feedback regarding the Product including without limitation any functionality issues, and errors, flaws, failures, or faults in the Product (collectively, "Feedback") via an online Vizydrop forum or other method. Partner hereby grants to Vizydrop a perpetual, irrevocable, worldwide, sub-licensable, transferable, royalty-free, fully-paid right and license to use and exploit in any manner and for any purpose all Feedback and related information.
5. LICENSE TO MARKS
Subject to the terms of this Agreement, during the Term, Vizydrop hereby grants Partner a nonexclusive, limited license to use and reproduce “Vizydrop” and the applicable Product trademarks, trade names, and logos (the “Vizydrop Marks”) solely in its distribution, marketing and advertising of the Product in accordance with this Agreement. Partner’s use of the Vizydrop Marks shall conform to Vizydrop’s then-current trademark use policies. Partner shall not remove any trademarks or other proprietary notices incorporated in, marked on, or fixed to the Product. All goodwill arising from the use of the Vizydrop Marks shall be vested in and inure to the benefit of Vizydrop. Partner recognizes Vizydrop’s exclusive ownership of the Vizydrop Marks and agrees not to take any action inconsistent with such ownership. Partner will cease using the Vizydrop Marks immediately upon expiration or termination of this Agreement.
Vizydrop shall provide Support as set forth in the Support Appendix. Any Product updates provided to Partner pursuant to the Support set forth in the Support Appendix I shall be deemed part of the Product and shall be licensed under the terms and conditions of this Agreement. In addition, Vizydrop will provide the deployment services as described in Appendix II, and for clarity, such deployment services constitute Support under this Agreement. Partner may, at its option, provide deployment services for the Product directly to End Users as described in Appendix II.
7. FEES AND PAYMENTS
7.1 Fees Payable
In consideration for the licenses granted to Partner and the performance of Vizydrop’s obligations under this Agreement, Partner shall pay to Vizydrop certain fees, in such amounts as set forth in the Pricing Terms Schedule attached on Appendix II, the terms of which are incorporated fully herein by this reference. Except as otherwise set forth in this Agreement, including, for the avoidance of doubt, fees paid to Vizydrop are non-refundable.
All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Partner will be responsible for payment of all such taxes (other than taxes based on Vizydrop’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of services. Any such taxes imposed on any payments hereunder to Vizydrop will be Partner’s sole responsibility, and Partner will, upon Vizydrop’s request, provide Vizydrop with official receipts issued by the appropriate taxing authority, or such other evidence as Vizydrop may reasonably request, to establish that such taxes have been paid.
7.3 Auditing Rights
Throughout the Term and for two (2) years thereafter, Vizydrop will have the right, at its own expense, upon reasonable prior notice, once per year (unless the prior audit found an issue or breach of this Agreement, in which case Vizydrop may audit Partner again during the same year at its sole discretion) to inspect and audit Partner’s use of the Product and Documentation for purposes of determining Partner’s compliance with the terms and conditions herein. Partner agrees to cooperate with Vizydrop in the performance of any such audit, and shall provide to Vizydrop such access to Partner’s relevant records, data, information, personnel and/or facilities as Vizydrop may reasonably request for such limited purposes. If such audit reveals an underpayment by Partner of the amount due, Partner shall pay the fees due and if such underpayment is more than five percent (5%) of the amount due, Partner shall also pay for the cost of such audit.
The Receiving Party shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein; (ii) make any use of Confidential Information except: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party is liable for all acts and omissions of its employees and consultants to the extent that such act or omission would be a breach of this Agreement if done by Receiving Party. The Receiving Party shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable care. The Receiving Party may disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the Receiving Party provides prompt written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. The Receiving Party shall protect Confidential Information in the manner provided herein for five (5) years after receipt thereof, unless such obligation ceases earlier pursuant to this Section; provided that, to the extent the Confidential Information constitutes a trade secret under law, such information shall be protected as long as it qualifies as a trade secret under applicable law.
9. WARRANTIES AND LIMITATIONS
9.1 Limited Vizydrop Warranties
Vizydrop warrants to Partner for a period of ninety (90) days from the date of each initial licensing of the Product to an End User (the “Warranty Period”) that the Product, under normal use and service, will substantially perform in compliance with the Documentation accompanying it. As Partner’s sole remedy, Product obtained from Vizydrop that does not comply with the warranty in this section during the Warranty Period will be repaired or replaced, at Vizydrop’s option; provided that this remedy is only available if Vizydrop receives written notice of such breach during or within thirty (30) days following expiration of the Warranty Period. The above warranty does not extend to any Product that is modified or altered, is operated in a manner other than that specified by Vizydrop, is altered or is treated with abuse, gross negligence or other improper treatment (including, without limitation, use outside the recommended environment). Vizydrop further warrants to Partner that the deployment services, training and sales engineering support services as described in Appendix II will be performed in a timely and professional manner, in accordance with industry standards, by individuals of suitable competency, training and skill. As Partner’s sole remedy, such services provided by Vizydrop that do not comply with the foregoing warranty will be re-performed; provided that this remedy is only available if Vizydrop receives written notice of such breach within thirty (30) days of delivery of the applicable services. Except as set forth in this Section 10, Partner is fully responsible for satisfaction of its End Users and will be responsible for all claims, damages, settlements, expenses and attorneys’ fees incurred by Vizydrop with respect to Partner’s End Users or their claims beyond Vizydrop’s above warranty obligation to Partner.
9.2 No Other Warranties
EXCEPT AS EXPRESSLY WARRANTED IN SECTION 9.1 OF THIS AGREEMENT, THE PRODUCT, SUPPORT AND ANY OTHER MATERIALS, SOFTWARE, DOCUMENTATION, DATA AND/OR SERVICES PROVIDED BY Vizydrop ARE PROVIDED “AS IS” AND Vizydrop EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. NO WARRANTY IS MADE BY Vizydrop ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. Vizydrop DOES NOT WARRANT THAT THE PRODUCT, ANY OTHER INFORMATION, DOCUMENTATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET PARTNER’S OR END USER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. PARTNER ACKNOWLEDGES THAT Vizydrop’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF PARTNER ONLY.
10. LIMITATION OF LIABILITY
IN NO EVENT WILL VIZYDROP BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, WHETHER OR NOT Vizydrop HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF, AND IN NO EVENT WILL Vizydrop’S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT WHETHER IN ACTIONS BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Vizydrop HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF, EXCEED THE AMOUNT PAID HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM. IN NO EVENT WILL THE LICENSORS OF Vizydrop HAVE ANY LIABILITY UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE AN ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
11.TERM AND TERMINATION
This Agreement shall become effective upon the Effective Date and shall continue for one (1) years from the Effective Date (the “Initial Term”). This Agreement shall automatically renew for additional one (1) year periods (a “Renewal Term”) at the end of the Initial Term or any Renewal Term unless one party provides at least thirty (30) days prior written notice to the other party of their intent not to renew this Agreement (collectively, the Initial Term with any Renewal Term shall be referred to as the “Term”).
11.2 Termination for Breach
Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches this Agreement and has failed to cure such breach within thirty (30) days after receiving written notice thereof.
11.3 Termination upon Bankruptcy, Insolvency, etc
Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable liquidation bankruptcy, reorganization, moratorium, or similar debtor relief laws, or in the event that a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in liquidation bankruptcy has been filed against such other Party, which proceeding or petition has not been dismissed, vacated, or stayed within ninety (90) days.
11.4 Accrued Obligations
Termination of this Agreement shall not release the Parties from any liability which, at the time of termination, has already accrued.
11.5 Effect of Termination
Upon termination of this Agreement, any party that has received Confidential Information hereunder shall return or destroy it and provide a certificate of destruction to the Disclosing Party. Except for any License Keys required by Partner to fulfill any outstanding contractual commitments or orders as of the effective date of termination, Partner shall return or destroy and provide a certificate of destruction to Vizydrop for any License Keys that have not been validly distributed and paid for. Partner shall pay Vizydrop applicable Royalty Fees with respect to any License Keys required by Partner to fulfill any of its outstanding contractual commitments or orders as of the date of termination. Any termination of this Agreement shall not affect or terminate any of Partner’s End Users’ right to continue their use of any Product license distributed by Partner in accordance with this Agreement, provided that such continued use of the Product is in accordance with the terms and conditions of the corresponding End User Agreement or EULA as applicable. Except as otherwise provided in this Agreement, Partner’s license and access rights to the Product shall terminate upon termination of this Agreement. Notwithstanding any contrary terms and conditions in this Agreement, for a maximum period of twelve (12) months after the termination of this Agreement, Vizydrop and Partner shall continue their obligations hereunder to each other for the sole purpose of providing Support and Product licenses to End Users who have already entered into the agreements for such Support and licenses with Partner. During this period, Partner shall not register or re-register any End Users for Support and Product licenses from Partner, but shall instead direct those End Users to Vizydrop to purchase Support and licenses directly from Vizydrop. Partner may retain and use copies of the Product and Documentation and other related materials necessary to provide Support and licenses during this twelve (12) month period. Notwithstanding the foregoing, if at the time of termination of this Agreement, Partner is contractually obligated to continue to provide certain End Users with Support and licenses for a fixed period of time that is beyond such twelve (12) month period, and such End Users are unwilling to release Partner from its obligation to continue to provide such support, then the parties agree to negotiate in good faith at that time the possibility of and the specific terms and conditions under which Vizydrop may continue to provide Partner with Support.
11.6 Survival of Obligations
The provisions of Sections 1, 2, 3, 4.3, 4.4, 4.5, 4.6, 4.8, 7, 8, 9, 10, 11.5, 11.6 and 12, as well as Partner’s obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement.
12.1 Applicable Law
This Agreement shall be governed and construed in accordance with the laws of the United States of America and the State of New York without regard to its conflicts of laws provisions. Each party agrees that any claim or cause of action arising under or relating to this Agreement will be brought in a court of competent jurisdiction located in New York, New York and each party irrevocably consents to such personal jurisdiction and waives all objections thereto. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement.
12.2 Force Majeure
Each party shall be excused from performance of its obligations under this Agreement (except for any payment obligations) if such a failure to perform results from compliance with any requirement of applicable law, acts of God, fire, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of Vizydrop. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the other party at the address shown above or addressed to such other address as that party may have given by written notice in accordance with this provision. All notice shall be effective upon receipt.
Neither party shall assign its rights or delegate its obligations under this Agreement without the other party’s prior written consent, and, absent such consent, any purported assignment or delegation by either party shall be null, void and of no effect; provided that upon notice to the other party the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This Agreement shall be binding upon and inure to the benefit of Vizydrop and Partner and their successors and permitted assigns.
12.5 Independent Contractors.
Partner and Vizydrop acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the Parties are acting as independent contractors in making and performing this Agreement.
No amendment to this Agreement shall be valid unless such amendment is made in writing and is signed by the authorized representatives of the Parties.
No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right.
If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
12.9 Compliance with Laws; Export Controls.
Partner shall undertake all measures necessary to ensure that its use of the Product, Vizydrop Marks and/or any services offered by Partner under this Agreement complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the Parties, the Product, the Vizydrop Marks or services offered by Partner. Partner acknowledges that Vizydrop makes no representation or warranty that the Product may be exported without appropriate licenses or permits under applicable law, or that any such license or permit has been, will be or can be obtained. Partner acknowledges that the Product is subject to export restrictions by the U.S. government and import restrictions by certain foreign governments. Partner may not export or re-export the Product except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions. Partner shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any Product or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Partner agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Product is further restricted from being used for: (y) terrorist activity, or (z) the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government.
12.10 No Third Party Beneficiaries.
The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.11 U.S. Government End Users.
The Product and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Product and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement.
This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.
The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
12.14 Entire Agreement.
This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Products and Support to be provided under this Agreement, and to this extent only are incorporated as a part of this Agreement and all other terms in purchase orders are rejected.
APPENDIX I. Support Terms
Vizydrop Partner Production Support in Connection with Use by End Users.
Vizydrop’s Support for the Product covers two areas: Error correction services and Upgrades. All Support will be provided in the English language only. Vizydrop will provide Partner with worldwide Business Hour Level 2 and Level 3 Production Support for the Product for use solely by Partner representatives.
The registered Named Contact(s) can place support inquiries to Vizydrop Customer Support Portal. At any time, Partner may change the name of the designated Named Contact list by providing Vizydrop with at least seven (7) days prior written notice.
1. Level 1 Support
Provided by Partner to End Users for the Product consists of general assistance of the type that would be expected from a typical help desk, including answer questions about hardware and software requirements for the Product; assisting in the execution of the Product’s installation programs; providing the necessary support to achieve basic functionality as described in the applicable Documentation; attempting to reproduce Errors; searching a knowledge base for known solutions to common problems, and escalating to Vizydrop for Level 2 Support as necessary.
2. Level 2 Production Support
Provided by Vizydrop to Partner for the Product. This Level 2 Support consists of assistance of the type that would be expected from a skilled support engineer, including set up, and configuration and troubleshooting involving the Product.
3. Level 3 Production Support
Provided by Vizydrop to Partner for the Product consists of Vizydrop code-level review. If Vizydrop cannot reproduce the reported Error on a generally-available standalone version of Vizydrop software, installed and configured to use the standard data source such as CSV file and application server components, Vizydrop may not be able to provide Level 3 Partner Production Support as set forth herein.
Partner will designate support personnel who are knowledgeable about the Product to be responsible for reporting Errors and receiving and distributing Error corrections. Vizydrop’s support team representatives will record all Error reports and coordinate responses. Partner may submit Error reports electronically. Partner may also request electronic status reports on reported Errors online or via e-mail. Vizydrop and Partner will cooperate in efforts to resolve reported Errors. For all reproducible reported Errors, Vizydrop will assign a tracking or ticket number, will work to determine the source of the Errors and will use commercially reasonable efforts to provide a fix, by-pass or work-around according to the timeframes described in the Service Levels section below. Vizydrop may request that the Partner duplicate the Error, instruct Vizydrop how to duplicate the Error or provide problem log dumps, diagnostic tests or other investigative support. Partner will provide all reasonably requested information to assist in arriving at a problem solution. In cases where Vizydrop determines in its sole discretion that an Error in the standard Product has been identified by Partner, Vizydrop will attempt to provide a temporary resolution, and where appropriate, provide a permanent fix to the standard Product within a commercially reasonable timeframe according the terms of the Service Levels section below.
Vizydrop may determine based on the information provided by Partner or through its own investigation that identified Errors were caused by non-Vizydrop hardware, software, customizations, or from unauthorized modifications to Product (a “Partner Error”). In the event of a Partner Error, Vizydrop will either, at its sole discretion, notify Partner in writing of its determination and close the ticket without fixing the Partner Error or ask the Partner if it would like Vizydrop to attempt to fix the Partner Error. If Partner and Vizydrop agree that Vizydrop will attempt to fix a Partner Error (though Vizydrop is under no obligation to do so), Vizydrop will bill Partner for such efforts on a time and materials basis, even if Vizydrop is unable to fix the Partner Error. All Error correction services will be provided from Vizydrop’s offices unless otherwise mutually agreed in writing.
Vizydrop will keep its Product compatible with the versions of third-party software listed in Partner's then-current product roadmap. Vizydrop will continue to maintain compatibility with such third-party software upgrades or new releases to the extent Vizydrop and Partner together determine it to be financially and technically expedient to do so.
Vizydrop will continue to offer support for the Product following the issuance of a superseding release for up to twelve (12) months; provided however that Vizydrop may withdraw support for a Product by providing one (1) year prior written notice.
“Severity level” means the following for any reported Error:
a) "Severity 1" means a suspected Product Error that: (1) renders the Product inoperative; or (2) causes the Product or the End User’s network to fail catastrophically (system down condition). b) "Severity 2" means a suspected high impact, Product Error that materially restricts the use or performance of the Product or the End User’s network. c) "Severity 3" means a Product Error that causes a minor impact on the use of the Product or a Documentation error. d) “Severity 4” means a question about Product use or implementation.
Vizydrop will use commercially reasonable efforts to respond to Partner requests within the following response times during Normal Business Hours:
- Severity 1 - 4 Business Hours
- Severity 2 - 8 Business Hours
- Severity 3 - 12 Business Hours
- Severity 4 - 2 Business Days
Vizydrop will make commercially reasonable efforts to provide corrections or workarounds and then fix for Error in the following time periods:
- Severity 1 - Work-around or fix restoring functionality of system (must be restored to Severity 2 or better level of functionality) within two Business Day and fix for Error within 15 Business Days.
- Severity 2 - Work-around or avoidance within 15 Business Days and fix within 25 Business Days
- Severity 3 - Work-around or avoidance within 21 Business Days and fix available in next Product release
- Severity 4 - N/A
Vizydrop shall make the final determination of the severity level for any reported Error.
From time to time, Vizydrop may provide Upgrades of its Product. Upgrades may incorporate third party upgrades as well as accumulated bug fixes. A list of associated upgrades and bug fixes is provided via the Documentation. There will be no additional charge for Upgrades provided Partner is current, without lapse, in its Support Services fees from the date of initial licensing. The Partner will implement provided Upgrades as soon as is reasonably practical. Upgrades do not include new Products. New Products provide significant new features and functions not available in the current product line, port existing Products to new hardware or software platforms, provide significant new functionality on new hardware or software platforms or are designated by Vizydrop as having a new Product code. Vizydrop will provide Partner with electronic download access to Upgrades.
Vizydrop will have no obligation to provide Support if Partner has not paid all applicable and undisputed fees and other amounts payable pursuant to this Agreement, or is otherwise not in substantial compliance with the terms of this Agreement. To be eligible for Support, the Partner must be current, without lapse, in its undisputed Support fees from the date of initial licensing, and the hardware and operating system on which the Product are installed must meet Vizydrop’s minimum configuration requirements, which, for a given Minor Release of a Product, will be published in that Product Minor Release’s Documentation.
Support Service Exclusions
No Support can be provided for (i) Product that are modified by Partner personnel or by third parties; (ii) problems caused by accident, neglect, misuse or improper programming by Partner or End User personnel; (iii) failure or fluctuations in electrical power or hardware equipment; or (iv) failure of Partner to fulfill its material obligations under its written agreements with Vizydrop.
Support does not include or cover support that becomes necessary due to:
- A malfunction of equipment or media not supplied or maintained by Vizydrop;
- Extensions to the Product involving custom or client-specific code (whether created by Vizydrop, Partner or a third party);
- Software configuration not related to the Product;
- Code required to feed data to Product (feed-related code);
- Project management and training;
- A failure of hardware, equipment or programs not covered by this Agreement;
- Use of software not obtained from Vizydrop under this Agreement;
- Use in a production environment of any release of the Product not marked as "Generally Available";
- Any cause or causes beyond the reasonable control of Vizydrop (e.g. floods, fires, loss of electricity or other utilities), errors arising from anything other than the Product, such as databases, web-servers or hardware;
- Failure to comply with operating instructions contained in the Documentation;
- Any modification, enhancement or customization of the Product made by anyone other than Vizydrop;
- APIs, interfaces, web services or data formats other than those included with the Product; or
- Any third-party products except to the extent that they are provided by Vizydrop, and then only in support of the specific functionality that is intended by Vizydrop.
Definitions “Business Day” means each day Monday through Friday except on national and provincial holidays in New York, USA. “Business Hours” means 9am - 5pm Eastern Time on a Business Day.
APPENDIX II. Pricing Terms
1. Royalty Fees:
Partner may include the Product on a per Partner Product End instance basis. The Royalty Fees for such resale transactions of the Product are ____ USD per each instance of Partner Product in accordance with 1.1.
Partner shall pay to Vizydrop, based on Partner’s quarterly reports, the Royalty Fees specified in Section 1.1 above within thirty (30) days after the end of each calendar quarter.
2. Deployment services
Deployment services must be provided by Vizydrop or a Vizydrop trained Engineer. Vizydrop will provide the training to Partner to deploy, configure and support the Product for End Users. Partner personnel who are Vizydrop trained Engineers will deploy the software independently and escalate deployment issues to Vizydrop during Vizydrop’s normal Business Hours when they cannot be resolved internally. Alternatively, Partner may, at its option: (a) refer the sale of deployment services to Vizydrop.
Vizydrop will provide up to two (2) days of training sessions for 3 participants on Product deployment training. Partner shall not engage in sales activity for the Product until Partner personnel have completed a reasonable amount of training on the Product deployment and capabilities.