AUTHORIZED RESELLER AGREEMENT TERMS & CONDITIONS
The current version was last updated on 10/10/2016
- Definitions. The following capitalized terms shall have the meanings ascribed to them in this section.
- "Authorized Reseller" means the entity identified in the Agreement Confirmation, as executed by Cohesity and such entity.
- "Agreement Confirmation" means the separate cover section signed by Cohesity, Inc. ("Cohesity") and Authorized Reseller, which together with these terms constitute the Agreement.
- "Documentation" means the end user documentation furnished to Authorized Reseller by Cohesity for the Products.
- "End User" means a person or entity in the Territory that acquires a Product for its own internal use and not for redistribution.
- "End User Agreement" means the end user agreement between Cohesity and an end user that governs the end user's use of the software embodied within the Product and related documents, as found at www.cohesity.com/agreements.
- "Limited Warranty" has the meaning set forth in Section 10.2.
- "Marketing Materials" means any marketing collateral relating to the Products that Cohesity may furnish to Authorized Reseller hereunder.
- "Product" means the Cohesity data protection and storage product.
- "Cohesity Marks" means any Cohesity trademark or logo that Cohesity may provide to Authorized Reseller for use in connection with this Agreement.
- "Cohesity Partner Program" means the Partner Program guidelines that Cohesity posts on its partner portal or otherwise provides to Authorized Reseller in writing from time to time.
- "Contract Year" means a period of twelve consecutive months starting on the Effective Date or an anniversary thereof, as appropriate.
- "Support Services" means the standard maintenance and support services for the Products made available by Cohesity or its authorized support partners, as described in the then-current standard support and maintenance terms set forth in the End User Agreement.
- "Territory" is as defined in the Agreement Confirmation.
- Appointment. Subject to the terms and conditions of this Agreement, Cohesity hereby appoints Authorized Reseller as a non-exclusive, direct reseller of the Products to End Users in the Territory.
- Deal Registration. Authorized Reseller may register potential sales opportunities in exchange for preferred discounts in accordance with the Cohesity Partner Program. Authorized Reseller must submit each sales opportunity (specific to an End User and application use case) to Cohesity for registration, subject to and in accordance with Cohesity's then-current standard deal registration policies, as Cohesity publishes on its channel partner portal site or otherwise provides to Authorized Reseller in writing from time to time. If (a) such sales opportunity has not already been registered by another Cohesity channel partner; (b) Cohesity determines in its sole discretion that such opportunity otherwise meets all of Cohesity's then-current standard deal registration requirements; and (c) Authorized Reseller obtains a binding purchase order from the applicable End User within ninety (90) days after such submission, then the sale effected by such binding purchase order shall be deemed to be a "Registered Deal" for pricing purposes. All other sales shall be deemed to be "Unregistered Deals" for pricing purposes. Upon Authorized Reseller's request, Cohesity may extend the foregoing ninety (90) day period for an additional ninety (90) days in Cohesity's sole discretion.
- Authorized Reseller Obligations
- Marketing and Promotion.
(a) Authorized Reseller will market and promote the Products only within the Territory in accordance with the terms of this Agreement and the Cohesity Partner Program. From time to time, Cohesity may provide Authorized Reseller, at no cost, with reasonable quantities of Marketing Materials to enable Authorized Reseller to market and promote the Products. Authorized Reseller may use the Marketing Materials only in accordance with any guidelines provided by Cohesity from time to time and may not modify any such Marketing Materials without Cohesity's prior written consent. Notwithstanding the foregoing, Authorized Reseller may make modifications to the Marketing Materials without Cohesity's prior written consent where necessary to localize the Marketing Materials to specific geographic regions within the Territory, provided that such modifications do not substantively change the content of the Marketing Materials.
(b) As mutually agreed by the parties, Authorized Reseller shall cooperate and participate in promotional, marketing, sales and advertising programs or efforts sponsored or initiated by Cohesity.
- Demonstration Not-for-Resale Equipment. Cohesity may offer Authorized Resellers the ability to purchase not-for-resale hardware equipment related to the Products ("NFR Equipment") at a significant discount for the purposes of internal use, demonstration, training, support, and/or marketing activities as set out in the published price list offered on the Cohesity Partner Program. NFR Equipment may not be resold, exchanged, leased, or otherwise transferred or encumbered for any purpose for a minimum period of six (6) months after delivery to Authorized Reseller, at which time Authorized Reseller may sell the NFR Equipment and transfer any applicable Support Services to an End User.
- Training. Authorized Reseller will provide its sales and technical staff with the resources reasonably required for such staff to obtain on-going product, sales and marketing training, which training will be provided by Cohesity as part of the Cohesity Partner Program requirements.
- Reports. Each quarter, Cohesity may request from Authorized Reseller, and Authorized Reseller will provide to Cohesity, a report that summarizes Authorized Reseller's sales forecasts for the Products, marketing event results, End User account details, and any other information that Cohesity reasonably requests for the purposes of quarterly business reviews.
- Business Conduct. Authorized Reseller will: (i) avoid deceptive, misleading or unethical practices; (ii) conduct business in a manner that reflects favorably on the Products and the good name, goodwill and reputation of Cohesity; and (iii) make no representations, warranties or guarantees to any third party with respect to the specifications, features or capabilities of the Products other than as expressly set forth in the Documentation.
- Packaging. Authorized Reseller will distribute the Products unmodified and with all packaging and license agreements, limited warranty statements, proprietary rights statements, and any other documentation intact as received from Cohesity.
- Notification. Authorized Reseller will immediately notify Cohesity of any claim or proceeding involving the Products or any claimed or suspected defects in the Products of which Authorized Reseller becomes aware.
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- Marketing and Promotion.
- Intellectual Property
- License Grant. Subject to the terms and conditions of this Agreement, Cohesity grants to Authorized Reseller, during the Term of this Agreement, a nonexclusive, nontransferable, revocable license, without right of sublicense, to (a) sell Products to End Users in the Territory solely pursuant to Orders (as defined below) that comply with this Agreement in all respects and have been accepted by Cohesity in accordance herewith; (b) use Products in the Territory solely for the purposes of demonstrating, marketing, and promoting the Products at data centers that are mutually agreed upon by the parties; and (c) distribute the Marketing Materials and Documentation to End Users and prospective End Users in the Territory for the purpose of promoting the sale of Products.
- General Restrictions. Authorized Reseller acknowledges that the Product embodies valuable trade secrets of Cohesity and its suppliers. Except as provided herein, Authorized Reseller shall not (except to the extent such prohibition is contrary to applicable law): (a) alter or remove any of Cohesity's or its suppliers' copyright, patent, or other proprietary rights notices or legends appearing on or in the Products; (b) modify, adapt, alter, translate, or create derivative works of the Products; or (c) reverse-engineer the Products or reverse-compile, decompile, or attempt to derive the source code of any object code contained in any of the Products. The Products include software that is subject to an accompanying End User Agreement. Authorized Reseller understands that each End User must accept Cohesity's End User Agreement by way of shrink-wrap, click through, or other contract formation mechanisms. All such software is not sold but is licensed solely for the End User's internal use only as installed in the Product and strictly in accordance with the documentation and any other use restrictions applicable for such Product.
- Trademark License. Subject to the terms and conditions of this Agreement, Cohesity grants to Authorized Reseller a nonexclusive, nontransferable, revocable license to reproduce the Cohesity Marks in Authorized Reseller's marketing and promotional materials solely for the purpose of marketing the Products in the Territory pursuant to this Agreement, provided that (a) Authorized Reseller's use of the Cohesity Marks complies with the then-current Cohesity trademark guidelines; and (b) Authorized Reseller's use of the Cohesity Marks is not misleading and does not imply that Cohesity endorses Authorized Reseller or any products or services offered by Authorized Reseller other than the Products. Authorized Reseller may not reproduce or use the Cohesity Marks (or any other Cohesity trademarks) other than as expressly provided in this section except as expressly approved by Cohesity in writing (including electronic communication). Authorized Reseller acknowledges Cohesity's proprietary rights in the Cohesity Marks and agrees that any use thereof shall not create any right, title, or interest in or to the Cohesity Marks, and shall inure to the sole benefit of Cohesity. Authorized Reseller shall not incorporate any Cohesity Marks into Authorized Reseller's trademarks, service marks, company names, Internet addresses, domain names, or any similar designations without Cohesity's prior written consent.
- Ownership. As between Authorized Reseller and Cohesity, Cohesity and its suppliers shall retain exclusive ownership of all worldwide intellectual property rights in and to the Products, the Documentation, the Marketing Materials, and any updates, upgrades, modifications, or enhancements thereto, and any derivative works thereof. There are no implied licenses in this Agreement, and Cohesity reserves all rights not expressly granted under this Agreement.
- Ordering Process
- Ordering. Authorized Reseller may order Products and Support Services by submitting written purchase orders ("Orders"). All Orders shall refer to this Agreement and, at a minimum, shall specify the quantities of Products and Support Services ordered, the price, the requested shipment date, the End User's complete name and address, and the shipment destination. All Orders shall be subject to acceptance by Cohesity in its sole discretion. All Orders are non-cancellable once received and accepted by Cohesity. Any terms or conditions contained in Orders that are inconsistent with, or additions to, the terms of this Agreement are hereby expressly rejected, irrespective of whether Cohesity accepts such Order.
- Shipment. Shipping dates will be scheduled by Cohesity in its sole discretion upon its acceptance of Orders from Authorized Reseller. All shipments of Products shall be from a location designated by Cohesity. Cohesity will, however, process the documentation for shipment of the Product(s) to the destination (within the Territory) specified by Authorized Reseller in such Order, with all costs of freight, insurance, duty and documentation billed to and paid by Authorized Reseller.
Cohesity shall exercise its own discretion in selecting a carrier. Risk of loss of, and title to, Product shall pass to Authorized Reseller and delivery will have been deemed to have occurred upon delivery to the carrier. All sales are final. Authorized Reseller or End User (as applicable) shall inspect all Products promptly upon receipt thereof and shall be deemed to accept such Products and waive all claims with regard to obvious defects and shipment errors, unless Authorized Reseller provides Cohesity with a detailed rejection notice within five (5) days after receipt. Authorized Reseller will comply with Cohesity's return policy that forms part of the End User Agreement.
- Pricing and Payment
- roduct Pricing. Pricing for the Products and Support Services is set forth in the Agreement Confirmation, and is based on Cohesity's then-current applicable MSRP pricing (including currency) which will be deemed to amend the Agreement Confirmation. Cohesity may amend the MSRP pricing for some or all Products or Support Services from time to time in its sole discretion, and will keep Authorized Reseller informed of changes to MSRP pricing. Notwithstanding anything to the contrary in this Agreement, Authorized Reseller will have the sole and exclusive right and ability to independently determine all prices that it charges to End Users. In the event of a price change, Cohesity will honor all already outstanding quotations issued by Cohesity until their expiration date.
- Payment Terms. Cohesity invoices upon shipment of Products (or, in the case of Support Services, at the start of the term of such Support Services), and payment is due within forty-five (45) days following Cohesity's invoice date. Payments shall be made via electronic transfer or check representing payment of the full amount invoiced, notwithstanding the amounts actually collected by Authorized Reseller from End Users. In the event that credits are owed to Authorized Reseller by Cohesity, Cohesity may issue credits against Authorized Reseller's account and offset against the next invoice. Authorized Reseller shall not deduct such credited amounts from, or offset such credited amounts against, any invoiced amounts due from Authorized Reseller to Cohesity without Cohesity's prior written approval. For any amount that is past due, Cohesity reserves the right to impose upon Authorized Reseller a late charge equal to one percent (1.0%) per month (or the maximum legal rate then in effect, whichever is less) of all outstanding amounts, accruing from the due date until final payment. The foregoing shall in no way limit any other remedy available to Cohesity.
- Creditworthiness. Notwithstanding the foregoing, Cohesity reserves the right to request at any time, and Authorized Reseller shall provide to Cohesity upon such request, financial information (including, without limitation, a credit check) reasonably sufficient for Cohesity to make a determination of Authorized Reseller's creditworthiness. If Cohesity at any time determines that Authorized Reseller's credit is not satisfactory, then, with respect to future Orders, Cohesity reserves the right, at its sole option, to require payment upfront for such Orders or to establish a confirmed irrevocable letter of credit in favor of Cohesity on terms acceptable to Cohesity.
- Taxes, Fees and Documentation. Authorized Reseller agrees to pay, and to indemnify and hold Cohesity harmless from, any sales, use, excise, withholding, import or export, value added or similar tax (excluding any taxes based on Cohesity's net income), and all government permit or license fees and all customs, duty, tariff and similar fees levied upon the delivery of Products, Support Services, and any other deliverables or provision of services related thereto, and any costs associated with the collection or withholding thereof, including penalties and interest (collectively, "Taxes"). The amounts set forth in the Agreement Confirmation are exclusive of all Taxes. If applicable, Authorized Reseller shall provide Cohesity with a tax exemption certificate acceptable to the appropriate taxing authorities. Without limiting the foregoing, if any amount payable by Authorized Reseller to Cohesity under this Agreement should be subjected to any deduction or withholding on account of any tax or charge, Authorized Reseller shall (a) effect such withholding, remit such amounts for the proper authorities, and promptly furnish Cohesity with receipts evidencing the payments of such amounts and (b) pay to Cohesity such additional amounts as may be required in order that the net amount actually received and retained by Cohesity, after deduction or withholding of all related taxes and charges, free from liability for such deduction or withholding, shall be equal to the amount expressed to be payable to Cohesity pursuant to the terms of this Agreement.
- Confidentiality. "Confidential Information" means any nonpublic information of a party (the "Disclosing Party"), whether disclosed orally or in written or magnetic media, that is identified as "confidential" or with a similar legend at the time of such disclosure or that the receiving party (the "Receiving Party") knows or reasonably should have known is the confidential or proprietary information of the Disclosing Party. Information will not constitute the other party's Confidential Information if it (a) is already known by the Receiving Party without obligation of confidentiality; (b) is independently developed by the Receiving Party without access to the Confidential Information; (c) is publicly known without breach of this Agreement; or (d) is lawfully received from a third party without obligation of confidentiality. The Receiving Party shall not use or disclose any Confidential Information except (i) as expressly authorized by the other party or in this Agreement, or (ii) in connection with providing services to End Users, and shall protect the Disclosing Party's Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. The Receiving Party shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party's Confidential Information. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements, the Receiving Party shall promptly notify the Disclosing Party of the order or request and permit the Disclosing Party (at its own expense) to seek an appropriate protective order.
- Amendment; Term and Termination
- Amendment. Cohesity may amend the terms and conditions of this Agreement at any time in its sole discretion by providing Authorized Reseller with written notice of such amended terms (for which email shall suffice). Such changes will become effective thirty (30) days following the date of such notice (such thirty-day period, the "Grace Period"); provided that if Authorized Reseller objects to such changes, then as your its sole remedy, Authorized Reseller may terminate this Agreement by providing Cohesity with written notice of termination within the applicable Grace Period.
- Term. Unless terminated earlier as expressly permitted by this Agreement, the initial term of this Agreement shall begin on the Effective Date and continue until July 31st, 2017 (the "Initial Term"). This Agreement shall renew automatically for additional consecutive periods of one (1) year each (each, a "Renewal Term" and together with the Initial Term, the "Term"), unless earlier terminated as set forth herein.
- Termination. Authorized Reseller may terminate this Agreement as set forth in Section 9.1 above. In addition and without limitation, either party may terminate this Agreement (a) for convenience in its sole discretion, upon ninety (90) days' prior written notice to the other party; (b) upon written notice at any time if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days of written notice thereof; and (c) immediately (and without a cure period) upon written notice (i) by Cohesity if Authorized Reseller materially breaches Section 2 (Appointment), or Section 5 (Intellectual Property); (ii) by either party if the other party materially breaches Section 8 (Confidentiality); or (iii) by either party if the other party becomes subject to appointment of a trustee or receiver for all or any part of its assets, becomes insolvent or bankrupt, or makes any assignment for the benefit of creditors. SUBJECT TO SECTION 12.1 BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OR PAYMENTS OF ANY KIND, INCLUDING LOSS OF PROFIT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS Section 9.
- Effect of Termination. Upon termination or expiration of this Agreement, all rights and licenses granted to Authorized Reseller hereunder shall immediately terminate and each party shall return or destroy all Confidential Information of the other party. For clarity, Authorized Reseller shall not resell any Support Services, or renew any Support Services term, after the date of expiration or termination of this Agreement. Authorized Reseller shall pay any amounts owed to Cohesity at the time of termination in accordance with Section 7 above, and Cohesity shall pay to Authorized Reseller any amounts owed for credits to Authorized Reseller's account, within fifteen (15) days after receipt of such payment from Authorized Reseller. Sections 1, 5.4, 7.2, 7.4, 8, 9.4, 10, 11, 12, 13, and any outstanding payment obligations shall survive any expiration or termination of this Agreement. All other rights and obligations will terminate.
- Representations and Warranties
- Representations and Warranties. Each party hereby represents and warrants that (a) it has full power and authority to enter into and perform this Agreement; and (b) none of its activities under this Agreement is restricted by, contrary to, in conflict with, or ineffective under any law or regulation to which such party is subject.
- End User Limited Product Warranty. Cohesity provides a limited warranty to each End User for the Products (the "Limited Warranty"). This Limited Warranty is provided with the End User Agreement and is solely between Cohesity and the applicable End User.
- Disclaimers. EXCEPT AS SET FORTH IN THE COHESITY LIMITED WARRANTY TO THE END USER DESCRIBED ABOVE AND SUBJECT TO SECTION 12, COHESITY PROVIDES THE COHESITY PRODUCTS, DOCUMENTATION, MARKETING MATERIALS, AND RELATED SERVICES AND MATERIALS "AS IS" AND WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. COHESITY ALSO MAKES NO WARRANTY, REPRESENTATION, CONDITION OR OTHER TERM REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS. Authorized Reseller shall not make, or authorize any other person or entity to make, any representation or warranty whatsoever on behalf of Cohesity with regard to the Products or Support Services.
- Excluded Uses. THE COHESITY PRODUCTS ARE NOT DESIGNED OR INTENDED FOR USE IN APPLICATIONS IN WHICH FAILURE OF SUCH PRODUCTS COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE (THE "EXCLUDED USES"). THE END USER HAS THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA -- BY PERIODICALLY CREATING REDUNDANT COPIES OR OTHERWISE -- AND COHESITY IS NOT RESPONSIBLE FOR LOST OR CORRUPTED DATA, WORK STOPPAGE, RE-RUN TIME, INACCURATE OUTPUT, COMPUTER FAILURE OR MALFUNCTION ASSOCIATED WITH OR OCCURING DURING ANY EXCLUDED USE.
- Indemnification by Cohesity. Cohesity will defend and hold Authorized Reseller harmless against any loss, liability and expense (including reasonable attorneys' fees) paid to third parties arising from any third-party action brought against Authorized Reseller based upon a claim that any of the Products (in the form provided by Cohesity) infringes any patents issued in the Territory as of the date of this Agreement, or copyrights in the Territory, or misappropriates any trade secrets in the Territory, provided Cohesity is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and/or settlement of such claims. Cohesity will not be responsible for any settlement it does not approve in writing. If the Products become, or in Cohesity's opinion are likely to become, the subject of an infringement claim, Cohesity may, at its sole option and expense, either (a) procure for Authorized Reseller the right to continue exercising the rights licensed to it in this Agreement; (b) replace or modify the affected Product so that it becomes non-infringing; or (c) accept return of the affected Products, refund to Authorized Reseller prorated payments of fees for such returned Products made by Authorized Reseller to Cohesity pursuant to Section 7 (Pricing and Payment), reduced on a straight-line basis over three (3) years from the date of delivery of such Product by Cohesity, and terminate this Agreement by written notice to Authorized Reseller. This indemnification obligation shall not apply to infringement actions or claims to the extent that such actions or claims are based on or result from: (i) modifications made to the Products by a party other than Cohesity; (ii) the combination of the Product with products, processes, or materials not supplied by Cohesity; (iii) any activities with respect to the Products by Authorized Reseller or any End User not authorized by this Agreement or the Documentation; (iv) any Products (or portions or components thereof) not created by Cohesity (including, without limitation, any third party software contained in or distributed with the Products); or (v) Authorized Reseller's solicitation of orders or distribution of Product after Cohesity has instructed Authorized Reseller to cease soliciting orders or distribution for such Product. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE HEREBY DISCLAIMED. THIS SECTION STATES AUTHORIZED RESELLER'S SOLE AND EXCLUSIVE REMEDY AND COHESITY'S ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.
- Indemnification by Authorized Reseller. Authorized Reseller agrees to defend and hold Cohesity and its suppliers harmless against any loss, liability and expense (including reasonable legal fees) paid to third parties arising from (a) anything set forth in Section 11.1(i)-(iii) above; (b) any claims arising from the use of the Cohesity Products for any of the Excluded Uses in Section 10.4; (c) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Authorized Reseller relating to the Products, or Support Services, other than as authorized by Cohesity specifically in writing on a case-by-case basis or made in the Documentation; and (d) any breach of this Agreement by Authorized Reseller.
- Limitation of Liability.
If the governing law of this Agreement is based in the USA (or outside the EEA), Section 12A below applies. If the governing law is based in the European Economic Area (EEA), Section 12B applies and Section 12A
does not apply.
12A LIMITATION OF LIABILITY (APPLICABLE OUTSIDE EEA)
EXCEPT FOR BREACHES OF Section 5 (Intellectual Property) OR Section 8 (Confidentiality) AND EACH PARTY'S OBLIGATIONS UNDER Section 11 (Indemnification):
NEITHER PARTY (NOR ANY OF COHESITY'S SUPPLIERS) SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED TWO HUNDRED FIFTY THOUSAND U.S. DOLLARS (U.S. $250,000). THIS LIABILITY LIMIT IS CUMULATIVE AND THE EXISTENCE OF ONE OR MORE CLAIMS HEREUNDER SHALL NOT ENLARGE THE LIMIT. THE FOREGOING DOES NOT LIMIT AUTHORIZED RESELLER'S PAYMENT OBLIGATIONS UNDER SECTION 7 (PRICING AND PAYMENT) FOR PURCHASES OF PRODUCTS AND SUPPORT SERVICES.
12B LIMITATION OF LIABILITY (APPLICABLE INSIDE EEA)
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY FOR BREACHES OF SECTION 5 (INTELLECTUAL PROPERTY) OR SECTION 8 (CONFIDENTIALITY) OR EACH PARTY'S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), OR FOR NEGLIGENCE CAUSING PERSONAL INJURY OR DEATH OR FOR FRAUDULENT MISPRESENTATION OR FOR ANY OTHER LIABILITY WHICH MAY NOT, DESPITE THE PARTIES' EXPRESS AGREEMENT, BE LIMITED OR EXCLUDED (AS APPROPRIATE) UNDER APPLICABLE LAW.
SUBJECT TO THE FOREGOING PARAGRAPH, NEITHER PARTY (NOR ANY OF COHESITY'S SUPPLIERS) SHALL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT AND INCLUDING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION OR OTHERWISE FOR ANY (I) INTERRUPTION OF BUSINESS, (II) LOSS OF PROFITS, (III) LOSS OF OR LOSS OF USE OF SOFTWARE OR DATA (WHETHER ANY CATEGORIES OF LOSS OR LIABILITY IN (I) TO (III) INCLUSIVE ARE DIRECT OR INDIRECT) OR (IV) INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT LOSS OF ANY KIND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUBJECT TO THE FIRST PARAGRAPH OF SECTION 12B, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT:
IN ANY CONTRACT YEAR EXCEED THE HIGHER OF (I) $25,000 (TWENTY-FIVE THOUSAND U.S. DOLLARS) AND (II) THE AMOUNTS PAYABLE BY AUTHORIZED RESELLER DURING THE RELEVANT CONTRACT YEAR; AND
AS A GLOBAL CAP REGARDLESS OF THE DURATION OF THIS AGREEMENT AND THE CONTRACT YEAR(S) IN WHICH LIABILITY MAY ARISE EXCEED $250,000 (TWO HUNDRED AND FIFTY THOUSAND U.S. DOLLARS)
THE LIABILITY LIMITS IN THE PRECEDING PARAGRAPH ARE CUMULATIVE AND THE EXISTENCE OF ONE OR MORE CLAIMS HEREUNDER ARISING IN THE SAME CONTRACT YEAR SHALL NOT ENLARGE THE LIMITATION.
NOTHING IN THIS CLAUSE 12B LIMITS AUTHORIZED RESELLER'S PAYMENT OBLIGATIONS UNDER SECTION 7 (PRICING AND PAYMENT) FOR PURCHASES OF PRODUCTS AND SUPPORT SERVICES.
- Independent Contractors. Each party hereto is an independent contractor of the other and nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties. Neither party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so. The parties' relationship is non-exclusive, and nothing in this Agreement shall prevent either party from marketing or providing its products or services to any third party.
- Governing Law; Arbitration.
If Authorized Reseller is headquartered in the USA (or outside the EEA), Section 13.2(a) below applies and Section 13.2(b) does not apply.
If Authorized Reseller is headquartered inside the European Economic Area (EEA), Section 13.2(b) applies and Section 13.2(a) does not apply.
(a) If this Section applies: This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Santa Clara County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
(b) If this Section applies: This Agreement, including contractual and non-contractual aspects, shall be governed by and construed in accordance with the laws of England and Wales, excluding its conflicts of law rules. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration ("LCIA"), which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one, unless the LCIA Court determines that in view of all the circumstances of the case a three‑member tribunal is appropriate. The place and seat of arbitration shall be London, England. The language to be used in the arbitration proceedings shall be English. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.
- Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of Section 5 (Intellectual Property), Section 8 (Confidentiality) and any attempt by Authorized Reseller to resell Products or Support Services outside of the Territory may cause irreparable damage for which recovery of money damages shall be inadequate, and that a party shall therefore be entitled to obtain timely injunctive relief (without the requirement of posting a bond or other security) to protect such party's rights under this Agreement in addition to any and all remedies available at law.
- Notices. Except as otherwise expressly set forth in this Agreement, all notices required under this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight deliver such as Federal Express, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt. Notices shall be sent to the parties at the addresses in the heading of this Agreement or such other address as either party may designate for itself in writing. If the notice is to Cohesity, a copy shall also be sent to the attention of its Chief Executive Officer at the Cohesity address specified herein.
- Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, floods, storms, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
- Waiver; Severability. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter. In the event that any provision of this Agreement shall be held by a court to be unenforceable or invalid under any applicable law, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law.
- Compliance with Laws. Each party shall obey all applicable laws and regulations in the performance of its duties and tasks under this Agreement. Without limiting the foregoing, each party will comply with all applicable U.S. and foreign export control laws and regulations, including the Export Administration Regulations promulgated by the U.S. Department of Commerce.
- Construction. The headings of sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. As used in this Agreement, the word "including" means "including but not limited to."
- Assignment. Authorized Reseller may assign this Agreement to its successor in the course of a merger or acquisition by or of Authorized Reseller, with prior written consent from Cohesity. Except as provided above, Authorized Reseller may not delegate, assign or transfer this Agreement, the license(s) granted or any of Authorized Reseller's rights or duties hereunder, and any attempt to do so, without Cohesity's express prior written consent, shall be null and void. Cohesity may freely assign this Agreement, and its rights and/or obligations hereunder, in its sole discretion and Authorized Reseller hereby consents to any such assignment and will sign any documents requested by Cohesity to confirm or perfect such assignment.
- Entire Agreement; Modification. This Agreement, including the exhibits, constitutes the entire agreement between Authorized Reseller and Cohesity and supersedes in their entirety any and all oral or written agreements previously existing between Authorized Reseller and Cohesity with respect to the subject matter hereof (other than in respect of prior statements of either party made fraudulently). Each party confirms that, in entering into this Agreement, it has not relied on any representation, assurance or statement not expressly set out herein. Except as expressly set forth in Section 9.1 above, this Agreement may only be amended or supplemented by a writing that refers explicitly to this Agreement and that is signed by duly authorized representatives of Authorized Reseller and Cohesity.