MapR Advantage Partner Program Agreement
(This Agreement was last updated on July 31, 2015)
This Agreement establishes the framework of the MapR Advantage Partner Program ("Program"), a comprehensive technical and marketing program for MapR partners to develop and promote their products, services and solutions in conjunction with MapR Solutions. The benefits available to Partner through the Program and the requirements Partner must meet, depend on the Partner Type assigned, and are described in the then-current version of the MapR Advantage Partner Program Guide. DEFINITIONS. As used in this Agreement, the following capitalized terms shall have the meanings set forth below.
1.1 "MapR Logo(s)" means the MapR Advantage Partner Program logo(s) set forth in the Partner Guide.
1.2 "MapR Materials" means materials made available to Partner by MapR, including via a MapR web site, such as newsletters, training materials, webinars, white papers, product demonstrations, datasheets, marketing collateral, and other sales tools, excluding MapR Solutions.
1.3 "MapR Solutions" means MapR software products and/or related services that are identified in MapR then-current marketing literature and generally available for commercial use.
1.3 "Partner Logo" means Partner's company logo.
1.4 "Partner Solutions" means one or more of the following value-added goods and/or services developed, sold, or provided by Partner to customers in the ordinary course of business: (a) provision of consulting, training, or technical support services, (b) development and/or licensing of application software or software-as-a-service products, (c) development and/or licensing of content or content services, or (d) development and/or sale of hardware, database systems, network services and/or operating systems.
1.5 "Partner Type" means the appropriate partner category defined in the Program Guide and assigned to Partner by MapR. MapR has defined the benefits of membership in the Program around different Partner Types.
1.6 "Program Guide" means the then-current MapR Advantage Partner Program Guide, which describes the rules of engagement, requirements and benefits for specific Partner Types as defined by MapR.
2. OBLIGATIONS OF THE PARTIES.
2.1 MapR Commitments. During the term of this Agreement, subject to the terms and conditions of this Agreement, MapR agrees to provide to Partner the then-current benefits for its applicable Partner Type as set forth in the Program Guide. The Program Guide may be modified from time to time by MapR without prior notice. It is incumbent upon the Partner to review the Program Guide regularly to understand the then-current requirements and benefits of a particular Partner Type. If any modifications to the Program Guide are unacceptable to Partner, Partner's sole and exclusive remedy shall be to terminate this Agreement within thirty (30) days after such modification takes effect.
2.2 Partner Commitments. During the term of this Agreement, subject to the terms and conditions of this Agreement, Partner shall perform the obligations for its applicable Partner Type as set forth in the Program Guide. Partner will identify a named Executive Sponsor (Vice President or above) and one manager who will act as the MapR primary contact for all customer-facing activities under the Program. Partner shall not: (a) publish or disseminate any deceptive, misleading or inaccurate marketing, advertising or promotional materials with regard to MapR or the MapR Solutions, or (b) make any representations with respect to the specifications, features or capabilities of the MapR Solutions that are inconsistent with any MapR representations, warranties or disclaimers with respect to the MapR Solutions.
2.3 Mutual Commitments. Each party will comply with all applicable international, national, state, regional and local laws and regulations, applicable to its business and its marketing, advertising and promotional activities in connection with this Agreement.
3. LOGO LICENSES.
3.1 Partner's Use of the MapR Logo(s). Subject to the terms and conditions of this Agreement, MapR hereby grants to Partner the following limited, non-exclusive, non-transferable, non-sublicenseable worldwide right to use the MapR Logo(s) during the term of this Agreement on Partner's website, and in Partner's marketing, advertising and promotional materials solely for the purpose of publicizing Partner's membership in the Program and the benefits of the parties' joint value proposition or as otherwise agreed by the parties in writing. Partner's use of the MapR Logo(s) shall comply with all trademark and other guidelines provided by MapR.
3.2 MapR Use of the Partner Logo(s). Subject to the terms and conditions of this Agreement, Partner hereby grants to MapR the following limited, non-exclusive, non-transferable, non-sublicenseable worldwide right to use the Partner Logo(s) during the term of this Agreement on MapR website, and in MapR marketing, advertising and promotional materials solely for the purpose of publicizing Partner's membership in the Program and the benefits of the parties' joint value proposition or as otherwise agreed by the parties in writing. MapR use of the Partner Logo(s) shall comply with all trademark and other guidelines provided by Partner.
3.3 Restrictions. Any and all intellectual property and other rights in and to the MapR Logo(s) that are not expressly granted to Partner in Section 3.1, are hereby reserved by MapR. All use by Partner of the MapR Logo(s) (including any goodwill associated therewith) shall inure to the benefit of MapR. Partner shall not take any action inconsistent with MapR ownership of the MapR Logo(s), and further agrees to cooperate, at MapR reasonable request and expense, in any action that MapR deems necessary or desirable to establish or preserve MapR rights in and to the MapR Logos. Partner acknowledges and agrees that it will not adopt, use, or attempt to register any trademarks, domain names, service marks, trade names and the like that are or may be confusingly similar to any of the MapR Logo(s) or in such a way as to create any combination marks with any of the MapR Logo(s). Any and all intellectual property and other rights in and to the Partner Logo(s) that are not expressly granted to MapR in Section 3.2, are hereby reserved by Partner. All use by MapR of the Partner Logo(s) (including any goodwill associated therewith) shall inure to the benefit of Partner. MapR shall not take any action inconsistent with Partner's ownership of the Partner Logo(s), and further agrees to cooperate, at Partner reasonable request and expense, in any action that Partner deems necessary or desirable to establish or preserve Partner rights in and to the Partner Logos. MapR acknowledges and agrees that it will not adopt, use, or attempt to register any trademarks, domain names, service marks, trade names and the like that are or may be confusingly similar to any of the Partner Logo(s) or in such a way as to create any combination marks with any of the Partner Logo(s).
4. PROPRIETARY RIGHTS.
MapR and its licensors shall own all right, title and interest in and to the MapR Solutions and MapR Materials, including any improvements, modifications, and enhancements to them. Except for those rights expressly granted in this Agreement, no other rights are granted, whether express or implied. Partner shall not remove or alter any copyright notices or other proprietary rights notices placed on or embedded in the MapR Solutions and MapR Materials by MapR. Partner will do all things reasonably requested by MapR to protect MapR intellectual property rights as those reasonably relate to Partner's use of the MapR Solutions and MapR Materials under the terms of this Agreement, including without limitation copyrights, patent rights, trademarks and trade secrets.
6. TERM AND TERMINATION.
6.1 Term. This Agreement shall commence on the Effective Date and continue in effect for a term of one (1) year, unless sooner terminated in accordance with this Section 6. Provided Partner continues to meet the eligibility requirements set forth in the Program Guide, on each anniversary of the Effective Date this Agreement shall renew automatically for successive one-year terms unless and until either party gives the other written notice of intent to terminate at least thirty (30) days prior to the expiration of the then-current term.
6.2 Termination. Either party may terminate this Agreement for any reason, with or without cause, upon thirty (30) days prior written notice to the other party. Either party may terminate this Agreement immediately upon written notice in the event the other party ceases to conduct business in the normal course, becomes insolvent, enters into bankruptcy proceedings, or becomes subject to any other judicial proceedings that relate to insolvency or protection of creditors' rights.
6.3 Effect of Termination. Upon termination or expiration of this Agreement all rights and licenses granted under this Agreement and the Program Addenda will cease. Neither party shall be responsible to the other for any costs or damages resulting from the termination of this Agreement. Notwithstanding any expiration or termination of this Agreement, Sections 1, 3.3, 4, 6, 7, 8, 9, 10 and 11 shall survive and remain in effect in accordance with their terms.
7. WARRANTY, WARRANTY DISCLAIMERS. Partner warrants that all information provided to MapR in connection with Partner's application to participate in the Program is true, correct and complete. In the event any such information changes during the term of this Agreement, Partner shall promptly inform MapR in writing with details of such changes. MapR makes no representation or warranty that Partner will succeed in licensing or selling any Partner Solutions to any present or future MapR customer, and MapR will not be liable to Partner for Partner's failure to license or sell Partner Solutions. Partner makes no representation or warranty that MapR will succeed in licensing or selling any MapR Solutions to any present or future Partner customer, and Partner will not be liable to MapR for MapR failure to license or sell the MapR Solutions. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 7, PARTNER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PROGRAM, PARTNER LOGO(S) OR PARTNER SOLUTIONS. MAPR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE PROGRAM, THE MAPR SOLUTIONS, MAPR MATERIALS, MAPR LOGO(S), THE PROGRAM GUIDE OR ANY SERVICES OR BENEFITS PROVIDED HEREUNDER, EACH OF WHICH IS MADE AVAILABLE "AS IS." NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM MAPR OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE.
8. LIMITATION OF LIABILITY. EXCEPT FOR EITHER PARTY'S LIABILITY FOR BREACH OF ITS OBLIGATIONS UNDER SECTION 10 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, DAMAGES FOR LOST DATA, LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, INCURRED BY EITHER PARTY OR BY A THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS, DAMAGE OR EXPENSE THAT DIRECTLY OR INDIRECTLY ARISES FROM OR IN CONNECTION WITH THE INABILITY OF THE MAPR SOLUTIONS AND THE PARTNER SOLUTIONS TO WORK WITH EACH OTHER. EXCEPT FOR MAPR LIABILITY FOR BREACH OF ITS OBLIGATIONS UNDER SECTION 10 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL MAPR AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY MAPR FROM PARTNER UNDER THIS AGREEMENT. EXCEPT FOR PARTNER'S LIABILITY FOR BREACH OF ITS OBLIGATIONS UNDER SECTION 10 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL PARTNER AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY PARTNER UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED IN THIS AGREEMENT.
9. PARTNER INDEMNITY. Partner agrees to indemnify and hold MapR harmless from any loss, cost, liability or damage, including attorneys' fees, incurred by MapR arising out of any third party claim, suit, or proceeding ("Action") brought against MapR based upon (a) any negligent act or omission by, or willful misconduct of the Partner, its employees, agents or other representatives, (b) any omission or inaccuracy in Partner's advertisements or promotional materials that relate to the MapR Solutions, or (c) any representations made by Partner relating to the MapR Solutions.
10. CONFIDENTIAL INFORMATION
10.1 "Confidential Information" means any non-public 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, MapR customer lists and customer information, any information regarding future MapR Solutions (including, without limitation, MapR product road maps), the MapR Solutions, the results of any performance, functional or other evaluation of the MapR Solutions, any Feedback, and the terms and conditions of this Agreement, whether or not such information is designated as confidential at the time of disclosure, are Confidential Information of MapR. The confidentiality obligations in this Section 10 shall not apply with respect to Discloser information which Recipient can demonstrate: (a) was in the public domain at the time it was disclosed to Recipient or has entered 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) was independently developed by Recipient without any access to or use of the Confidential Information by employees or other agents of (or contractors hired by) Recipient as shown by Recipient's contemporaneous written records, or (d) 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.
10.2 Recipient agrees not to use Confidential Information or disclose, distribute or disseminate such Confidential Information to any third party, except as expressly permitted 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 are bound by an enforceable 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.
10.3 Authorized Disclosure. If Recipient believes that it is required by law, court order or government authority to disclose Confidential Information of Discloser, where permitted by applicable law 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. In addition, notwithstanding the provisions of Section 10.2, Recipient may disclose the terms of this Agreement (a) in connection with the requirements of its initial public offering or securities filing, (b) in confidence, to accountants, banks, and financing sources and their advisors, (c) in connection with the enforcement of this Agreement or rights under this Agreement, or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
10.4 Equitable Relief. 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 seek immediate injunctive or other equitable relief from any court of competent jurisdiction 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.
10.6 Within ten (10) business days of termination or expiration of this Agreement or Discloser's earlier request, Recipient shall (a) promptly return all tangible materials containing Confidential Information to Discloser and (b) without limiting the foregoing, remove and destroy all Confidential Information from any Recipient (and its contractors' and distributors') 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, and all electronic files containing Confidential Information have been destroyed. Recipient shall cause its affiliates, agents, contractors, and employees to strictly comply with the foregoing.
10.7 Feedback. Partner may provide feedback to MapR concerning the functionality and performance of the MapR Solutions, including identifying potential errors and improvements ("Feedback"). Partner hereby assigns to MapR all right, title, and interest in and to the Feedback, if any.
10.8 Publicity. Except as required by law, Partner shall not publicly announce or disclose the terms or conditions of this Agreement, or advertise or release any publicity regarding this Agreement without prior written consent from MapR.
11. GENERAL PROVISIONS
11.1 No Partnership. The relationship of the parties under this Agreement is that of independent contractors. This Agreement does not, and is not intended to, create any employment, agency, distributorship, franchise, joint venture, legal partnership or other similar legal relationship between MapR and Partner for any purpose. Neither party will have any right or authority to act on behalf of, or create any obligation or responsibility on behalf of the other, and neither party will represent to any third party that it has such right or authority.
11.2 Export Control. Each party agrees to comply fully with all applicable export laws and regulations of the United States in connection with its performance under this Agreement. Without limiting the generality of the foregoing, Partner expressly agrees that it shall not, and shall cause its representatives to agree not to export directly or indirectly, re-export, divert or transfer the MapR Solutions, MapR Materials or any direct product thereof to any destination, company or person restricted or prohibited by applicable United States law.
11.3 Freedom of Action. This Agreement is not exclusive in any respect. Each party may enter into similar agreements with other parties. Partner acknowledges that, under the Program, MapR intends to enter into similar agreements with other companies who may compete directly or indirectly with Partner or the Partner Solutions. Nothing contained in this Agreement will limit the right of each party to develop products and/or services similar to those of the other party, provided that such development activity does not violate any terms or conditions of this Agreement, including but limited to the confidentiality provisions of Section 10.
11.4 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be addressed to the other party's "Legal Department" and delivered (a) in person, (b) by first class registered mail, or air mail, as appropriate, posted and fully prepaid to the appropriate address set forth in the preamble to this Agreement, or (c) by reputable overnight courier service to the address set forth in the preamble to this Agreement. Notices will be considered provided at the earlier of the time of receipt or five (5) business days after being sent.
11.5 Governing Law. This Agreement will be governed by the laws of the State of California and the United States of America, without regard to conflicts of law principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California and each party hereby consents to the personal and exclusive jurisdiction thereof.
11.6 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Partner, whether voluntarily or by operation of law, without the prior written consent of MapR. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
11.7 Waiver and Severability. Any waiver of the provisions of this Agreement must be in writing to be effective. If any provision in this Agreement is found to be invalid or unenforceable to any extent, the remaining terms of this Agreement will continue to be valid and enforceable to the fullest extent permitted by law, and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable.
11.8 Entire Agreement. This Agreement, the Program Guide, and any Program Addenda entered into hereunder contain the entire agreement of the parties with respect to the subject matter of this Agreement and such Program Addenda (if any), and supersede all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. To the extent of any conflict between the terms of this Agreement and the Program Guide, the terms of this Agreement shall control. To the extent of any conflict between the terms of this Agreement and any Program Addendum executed by the parties hereunder, the terms of the Program Addendum shall control with respect to the subject matter of such Program Addendum. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under this Agreement. This Agreement may not be amended, except by a writing signed by both parties