APPLICATION GALLERY MARKETING AGREEMENT
THIS MAPR APPLICATION GALLERY MARKETING AGREEMENT (“AGREEMENT”) IS BY AND between MapR Technologies Inc., a Delaware company with offices at 2860 Zanker Rd, Ste 190, San Jose, CA 95134 (“MapR”) AND the INDIVIDUAL OR LEGAL ENTITY WHO HAS SUBMITTED A SUBMISSION FORM TO MAPR FOR, AND THESE TERMS GOVERN, INCLUSION OF SUCH SOFTWARE IN THE APPLICATION GALLERY (“YOUR” OR “company”). BY SUBMITTING THE SUBMISSION FORM ANDCLICKING ON THE “ACCEPT” BUTTON BELOW AND/OR A BUTTON OR CHECKBOX WITH SIMILAR DESIGNATION, YOU SIGNIFY AND DO HEREBY ACCEPT THE TERMS OF THIS AGREEMENT. If you are an individual agreeing to the terms of this agreement on behalf of an entity, such as your employer, you represent that you have the legal authority to bind that ENTITY AND “YOUR” AND "COMPANY" SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MUST NOT SUBMIT YOUR SOFTWARE FOR INCLUSION IN THE GALLERY.
1.1 “Application Gallery” or “App Gallery” means the MapR web pages offered at “www.MapR.”
1.2 "Company Products” or “Company Software" means the object code form of the software programs identified in Your Submission Form.
1.2 "Documentation" means Company's then current on-line help, guides, and manuals published by Company and made generally available by Company for the Company Products.
1.3 “Effective Date” means the date You submit Your Submission Form and accept this Agreement.
1.4 “End User” means an individual or entity using MapR Software who obtains Company Products and/or Services pursuant to a binding agreement between End User and Company.
1.5 “Services” means Company’s software Maintenance Services, training and/or professional services offered to its End Users.
2. APPLICATION GALLERY
2.1 Offering of Company Products. Subject to the terms and conditions of this Agreement, MapR will offer, at MapR’s sole discretion, Company Products and Services through its Application Gallery, including a link to the Company Products and Services offerings on the Company website. Such offering shall be on a non-exclusive basis.
2.2 Company Documentation. Prior to display of Company links or Company Products or Services in the App Gallery, Company will provide MapR all Company Product Documentation and written specifications.
2.3 License Grants. Company hereby grants to MapR a worldwide, royalty free, nontransferable, nonexclusive, nonsublicenseable, limited for the term of the Agreement right and license to use, modify (as required for display in the Application Gallery), reproduce, perform, display and distribute: (i) Company’s trademarks, service marks, logos or other source or business identifiers applicable to Company Products and Services; (ii) Documentation and any other marketing materials provided by Company to MapR; (iii) screen shots and other content provided by Company; and (iv) links to Company’s home page or landing page which contains the Products and/or Services offering (collectively, “Company Content”), solely for the offering through the Application Gallery as described in this Agreement.
3. RIGHTS AND OBLIGATIONS.
3.1 Company will offer Company Product(s) to MapR End Users consistent with its current business practices for offering and licensing Company Product(s). Company represents and warrants to MapR that it has all rights to distribute the Company Products and to grant MapR the licenses and other rights set forth in this Agreement.
3.2 MapR may suggest or propose to Company improvements to the Company Products, Services or Content. Company will evaluate all proposals and suggestions in its sole discretion, and reserves the right to adopt or modify them in whole or in part.
3.3 Both Parties agree to comply with all applicable federal, state and local laws and regulations in connection with its performance under this Agreement.
3.4 All licenses for the Company Product(s) and/or agreements for Company Services will be between End Users and Company. MapR shall not have any obligations or liabilities for Company Products or such use or integration of Company Products with MapR software or services.
4. COMPANY WARRANTY AND INDEMNITY.
4.1 Warranty. Company represents and warrants that (i) the Company Products perform substantially in conformance with the Company Documentation and any written specifications; (ii) the Company Products do not infringe any U.S. patent, copyright or trademark or other intellectual property rights of any third party, and (iii) Company will not make any false or misleading statements regarding MapR, or its software or services.
4.2 Indemnity. Company will indemnify MapR for and hold MapR harmless from any loss, expense, damages, or liability arising from any claim, suit, action or demand resulting from: (a) a claim that the Company Products and/or Services infringe the intellectual property rights of a third party; (b) the negligence, error, omission or willful misconduct of Company or its representatives; (c) the breach of any terms of this Agreement; (d) any misrepresentations made by Company regarding MapR software or services; or (e) Company’s breach of any applicable law, regulation or other legal requirement.
5. OWNERSHIP AND PROPRIETARY RIGHTS
MapR and Company shall retain all title, copyright and other proprietary rights in and to their respective products, software and services and acknowledge and agree that they do not acquire any rights, express or implied therein, other than those specified in this Agreement. In the event that Company makes suggestions to MapR regarding new features, functionality or performance that MapR adopts for its software, such new features, functionality or performance shall become the sole and exclusive property of MapR.
6. LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS ARISING UNDER SECTIONS 4 (COMPANY WARRANTY AND INDEMNITY), 5 (OWNERSHIP AND PROPRIETARY RIGHTS), 8 (CONFIDENTIALITY), OR A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE TOTAL LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY EITHER PARTY PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY LOST PROFITS OR BUSINESS OPPORTUNITIES OR ANY LOSS OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall commence on the Effective Date and shall continue in force for one year, and upon expiration auto-renew for additional one-year terms (together, the “Term”) unless sooner terminated as provided in this Agreement. MapR shall have no obligation to renew or extend the term of the Agreement.
7.2 Termination for Convenience. The Parties agree that either party may terminate this Agreement at any time, for convenience, by providing the other Party fifteen (15) days advance written notice.
7.3 Termination For Cause. Either party may terminate this Agreement, by written notice to the other party: (a) upon the material failure of the other party to observe, keep or perform any of the covenants, terms or conditions herein if such default continues for thirty (30) days after written notice by the other Party, provided however that such thirty (30) day notice shall not be required in the event that a series of cumulative breaches results in a material reduction in the value of this Agreement to the non-breaching party; or (b) if all or substantially all of the assets of a party are acquired by a direct competitor of the other party.
7.4 Effect of Termination. Upon expiration or termination of this Agreement: (a) all licenses and rights granted to the Parties shall terminate; (b) each Party shall refrain from representing themselves as a party to this Agreement; and (c) each Party will promptly cease use of, and, at the other Party's option, either promptly destroy or return to the other Party all Confidential Information of such other Party as well as any materials that embody any such Confidential Information.
7.5 Survival. Sections 4 (“Company Warranty and Indemnity”), 5 (“Ownership and Proprietary Rights”), 6 (“Limitation of Liability”), 7.4 (“Effect of Termination”), this Section 7.5 (“Survival”), 8 (“Confidentiality”) and 9 (“Miscellaneous”) shall survive the termination of this Agreement.
8.1 Nondisclosure. “Confidential Information” means any information disclosed by a party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as "Confidential," "Proprietary" or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties. As between the parties, the each party’s software, products, results of any performance, functional or other evaluation of such software and/or products, any Feedback, documentation, training materials, ancillary programs, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, and prospective customer names are Confidential Information of such Party.
8.2 Recipient agrees not to use Confidential Information or disclose, distribute or disseminate such Confidential Information except as allowed hereunder or as otherwise expressly agreed in writing by Discloser. Recipient agrees to restrict access to such Confidential Information to those employees or consultants of Recipient who need to know such information for performing as contemplated hereunder and have agreed to be bound by a confidentiality obligation not less protective than that contained in this Agreement. Recipient shall exercise the same degree of care to prevent unauthorized use or disclosure of the Confidential Information to others as it takes to preserve and safeguard its own confidential information of like importance, but in no event less than reasonable care.
8.3 The confidentiality obligations in this Section shall not apply with respect to Discloser information which Recipient can demonstrate that it: (a) was in the public domain at the time it was disclosed to Recipient or has become in the public domain through no act or omission of Recipient; (b) was known to Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) is disclosed by Recipient with the prior written approval of Discloser; (d) was independently developed by Recipient without any use of the Confidential Information by employees or other agents of (or contractors hired by) Recipient who had no access to any Confidential Information; or (e) became known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser’s rights.
8.4 If Recipient believes that it will be compelled by a court or other authority or applicable law to disclose Confidential Information of Discloser, it shall give Discloser prompt written notice and shall provide Discloser with reasonable cooperation at Discloser’s expense so that Discloser may take steps to oppose such disclosure. Recipient shall not be in breach of its obligations in this Section 9 if it makes any disclosure described in the immediately preceding sentence provided that Recipient provides the notice and cooperation required therein.
8.5 Recipient acknowledges that breach of the confidentiality obligations would cause irreparable harm to Discloser, the extent of which may be difficult to ascertain. Accordingly, Recipient agrees that Discloser is entitled to immediate injunctive relief in the event of breach of an obligation of confidentiality by Recipient, and that Discloser shall not be required to post a bond or show irreparable harm in order to obtain such injunctive relief.
8.6 At any time, upon Discloser’s reasonable request, Recipient shall promptly return to Discloser any Confidential Information. In addition, within thirty (30) days after termination of this Agreement, Recipient shall (i) promptly return all tangible materials containing such Confidential Information to Discloser and (ii) without limiting the foregoing, remove all Confidential Information from any Recipient servers and other assets. Concurrently with the return of such materials, Recipient agrees to confirm in writing that all materials containing Confidential Information have been returned to Discloser by Recipient. Recipient shall cause its affiliates, agents, contractors, and employees to strictly comply with the foregoing.
9.1 Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the parties may specify from time to time by written notice to the other party.
9.2 Relationship Between the Parties. The parties undertake their respective obligations under this Agreement as independent contractors. This Agreement does not, and is not intended to, create any employment, agency, franchise, joint venture, legal partnership or other similar legal relationship between MapR and Company. Neither party will have any right or authority to act on behalf of, or to bind, the other party and neither party will represent to any third party that it has such right or authority.
9.3 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, 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.
9.4 Waiver. 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; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
9.5 Counterparts and Exchanges by Fax. This Agreement may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax shall be sufficient to bind the parties to the terms and conditions of this Agreement.
9.6 This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. All disputes arising out of or related to it, will be subject to the exclusive jurisdiction of the state courts located in Santa Clara County, California, and the federal courts located in the Northern District of California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Reseller may not assign this agreement, except to a successor of all or substantially all of its assets or stock (whether by sale, acquisition, merger, change of control, operation of law or otherwise), provided that such successor is not a competitor of MapR. This Agreement, including its Exhibits, is the entire agreement between the parties relating to the subject matter hereof. This Agreement shall control over any additional or different terms of any correspondence, order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments of any provision of this Agreement shall be effective only if made by non-preprinted agreements indicating specifically what sections of this Agreement are affected, signed by both parties and clearly understood by both parties to be an amendment or waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable.