This Partner Agreement (“Agreement”), entered into by and between HAProxy Technologies LLC (“HAProxy”) and the entity (“Partner”) joining the HAProxy Partner Program is effective as of the date Partner signs the HAProxy Partner Program Agreement (“Partner Program Agreement”).
1. HAPROXY PARTNER PROGRAMS.
This Agreement is entered into with the purpose of setting forth an arrangement under which Partner may participate in various HAProxy Partner Programs by entering into one or more Partner Program Agreements which will be governed by the terms of this Agreement
Confidential and proprietary information exchanged hereunder will be treated in accordance with the most recent confidentiality agreement between the parties, which is hereby incorporated by reference; and is no confidentiality agreement is in place, the terms in Exhibit A will apply. The parties agree that for the purposes of this Agreement, the obligations of confidentiality specified in the confidentiality agreement will exist for a period not less than two (2) years following the termination of this Agreement, notwithstanding the earlier termination or expiration of the confidentiality agreement; provided that to the extent the Confidential Information disclosed constitutes a trade secret(s) under applicable law, the parties agree to protect such information for so long as it qualifies as a trade secret under applicable law.
3. INTELLECTUAL PROPERTY RIGHTS.
HAProxy reserves all intellectual property rights not expressly granted by it to Partner under this Agreement. Other than the limited licenses granted under a Partner Program Agreement, HAProxy retains all right, title and interest in the Marketing Materials, the HAProxy Products, and all modifications, extensions, localizations and translations of the Marketing Materials, the HAProxy Products. Except as otherwise set forth in this Agreement, the rights granted to Partner under this Agreement do not extend to its affiliates or to any other third party.
4. MARKETING AND BRAND FEATURES.
HAProxy grants to Partner a nonexclusive, nontransferable license to use the Trademarks for the HAProxy Products in accordance with the trademark standards for use at https://www.haproxy.com/trademark-policy/. Partner grants to HAProxy a nonexclusive, nontransferable license to use the Trademarks for the Partner products and services in accordance with the applicable trademark standards for use. In addition, HAProxy grants to Partner a nonexclusive, nontransferable license to use, copy and supply the Marketing Materials to prospective customers. If Partner performs any localization of Marketing Materials, Partner will ensure that the original meaning, quality and intent is preserved in the translation and HAProxy shall own all intellectual property rights to such localized Marketing Materials. Partner will provide copies of all localized versions of the Marketing Materials to HAProxy prior to distribution. Partner will issue a joint press release with HAProxy within forty-five (45) days of the Effective Date and provide suitable quotes from appropriate Partner personnel. Partner will use reasonable efforts to arrange for appropriate personnel to be available to serve as references for the HAProxy Products and HAProxy in the event of an inquiry from any member of the press, any industry analysts or any potential customer. Partner will work with HAProxy to prepare a case study/reference testimonial about the HAProxy Products.
4.2 Brand Features.
Each party will own all right, title and interest to trade names, trademarks, service marks, logos and domain names it secures from time to time (“Brand Features”). HAProxy Partner Brand Features (“Partner Brand Features”) shall include the HAProxy Partner logo and mark provided to Partner. Subject to the terms and conditions of the Agreement, HAProxy grants to Partner a nonexclusive and non-sublicensable license during the term of this Agreement to display HAProxy’s Partner Brand Features solely for the purpose of: (a) marketing and promoting the HAProxy Products, and (b) identifying itself as a HAProxy partner on its website and marketing materials. Subject to the terms and conditions of the Agreement, Partner grants to HAProxy a nonexclusive and non-sublicensable license during the term of this Agreement to display Partner’s Brand Features solely in connection with the applicable partner program. HAProxy will be permitted to reference its relationship with Partner on its website, in marketing materials, during discussions with analysts, meetings with the press, customer briefings, or in regulatory filings. Partner agrees to adhere to HAProxy’s then-current usage guidelines set forth at https://www.haproxy.com/trademark-policy/ Any goodwill accruing to a party’s Brand Features from use hereunder shall inure to the benefit of the owning party.
All fees will be paid as set forth in the applicable Partner Program Agreement. Unless set forth in the applicable Partner Program Agreement, all payments will be made in U.S dollars without deductions or withholdings. Each party is responsible for the taxes levied upon the delivery or use of the software products and/or taxable services described in this Agreement; unless a valid state sales/use/excise tax exemption certificate or direct pay permit is provided. If Partner is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to HAProxy, then the sum payable to HAProxy will be increased by the amount necessary so that HAProxy receives an amount equal to the sum it would have received had no withholdings or deductions been made. Except as otherwise set forth in this Agreement, each party will be responsible for its own fees, costs, expenses or taxes incurred in connection with its performance under this Agreement. Each party will keep complete and accurate books of account for the accurate determination of all payments due under this Agreement and will provide the other party with documentation concerning transactions related to this Agreement within ten (10) days after written request.
6. REPRESENTATIONS AND WARRANTIES.
Each party represents and warrants that it is an entity duly organized and validly existing under the laws of its jurisdiction of organization, and has all requisite corporate power and authority to: (a) execute, deliver and perform this Agreement and any other agreements contemplated by this Agreement; and (b) consummate the transactions contemplated by this Agreement. Each party represents and warrants that this Agreement does not contravene or constitute a default or violation of any provision of law applicable to its business in its performance under this Agreement or any material agreement to which it is a party.
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, THE HAPROXY PARTNER PROGRAMS AND THE HAPROXY PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS AND HAPROXY HEREBY DISCLAIMS ALL ADDITIONAL WARRANTIES OF ANY NATURE, EXPRESS, IMPLIED OR OTHERWISE, OR ARISING FROM TRADE OR CUSTOM, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, OR SYSTEM INTEGRATION. HAPROXY SPECIFICALLY DISCLAIMS ANY WARRANTY THAT USE OF THE HAPROXY PARTNER PROGRAMS AND THE HAPROXY PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE RESULTS OF USE WILL MEET PARTNER’S OR ANY CUSTOMERS’ REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HAPROXY OR ITS AFFILIATES, AGENTS, OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF WARRANTY OR SERVICES OBLIGATIONS PROVIDED HEREIN. NO ACTIONS PERFORMED BY HAPROXY OR ITS EMPLOYEES OR AGENTS WILL CREATE ANY EXTENSION OF SCOPE OF SERVICES TO BE PROVIDED HEREUNDER.
7. LIMITATION OF LIABILITY.
IN NO EVENT WILL HAPROXY BE LIABLE FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT WILL HAPROXY’S AGGREGATE AND CUMMULATIVE LIABILITY FOR ALL CLAIMS ARISING UNDER OR OUT OF THIS AGREEMENT OR OTHERWISE ARISING FROM THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (E.G., WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) EXCEED THE PROVEN DIRECT DAMAGES IN EXCESS OF THE GREATER OF THE AMOUNT PAID UNDER THIS AGREEMENT DURING THE TWLEVE (12) MONTH PERIOD IMMEDITELY PRECEDING THE DATE OF THE CLAIM OR TEN THOUSAND DOLLARS (US$10,000). 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.
8. TERM AND TERMINATION.
This Agreement will become effective as of the Effective Date and will continue for a period of one (1) year. Thereafter, this Agreement will automatically renew for additional one (1) year periods unless either party provides written notice to the other party at least sixty (60) days prior to the end of the then-current term. The term of each specific Partner Program Agreement will be as set forth in the applicable Partner Program Agreement.
This Agreement may be terminated with the prior written consent of both parties. In addition, either party may terminate this Agreement immediately upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. Each party shall also have the right to terminate this Agreement at any time after the first anniversary of the Effective Date upon notice to the other party if there are no Partner Program Agreements in place between Partner and HAProxy.
8.3 Effect of Termination.
Upon the expiration or termination of this Agreement, (a) all outstanding amounts owed under this Agreement will become immediately due and payable; (b) Partner will have no further right to market the HAProxy Products; (c) all licenses granted under this Agreement will terminate; (d) Partner will immediately cease using the HAProxy Products and Marketing Materials; (e) Partner will immediately cease using the HAProxy Brand Features; and (f) HAProxy will immediately cease using any Partner Brand Features. Neither party will be liable to the other for damages, losses, costs or expenses of any kind due to the termination or expiration of this Agreement, including those arising from the loss of prospective sales, any expenses incurred or investments made in connection with establishing, developing or maintaining either party’s business.
Sections 2, 3, 5, 6.2, 7, 8.4, will survive the expiration or termination of this Agreement.
This Agreement does not create or constitute a franchise, joint venture, partnership or other relationship which implies or imposes a fiduciary responsibility to each other or to any third parties. Partner is an independent contractor, and will not hold itself out as, or be deemed to be, an employee, agent or franchisee of the other party. Except as specified in this Agreement, neither party has the right to bind the other party in any manner. This Agreement, including the Program Partner Agreements constitute the complete and exclusive statement of the agreement between the parties, and supersedes all prior agreements, proposals, negotiations and communications between the parties, both oral and written, regarding the subject matter hereof. No waiver, alteration, modification or amendment of any of the provisions of this Agreement will be binding unless made in writing and signed by the duly authorized representatives of each of the parties to this Agreement. This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and unless otherwise specified in this Agreement is not intended to and does not confer any rights or remedies on any other person or entity. This Agreement and any dispute relating to, or arising out of this Agreement or its formation or termination or actions or omissions contemplated by this Agreement, will be governed by and in accordance with the laws of New York, without giving effect to the conflict of laws provisions. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the courts located in New York, and each party irrevocably consents to such personal jurisdiction and waives all objections to such jurisdiction and venue. The parties hereby expressly exclude the application of the U.N. Convention on Contracts for the International Sale of Goods to the Agreement. All rights and remedies, whether conferred by this Agreement or by any other instrument or by law will be cumulative, and may be exercised singularly or concurrently. If any provision of this Agreement is held invalid by any law, rule, order, or regulation of any government or by the final determination of any court of competent jurisdiction, such invalidity will not affect the enforceability of any other provisions and such provisions will be interpreted so as to best accomplish the objectives of such invalid provisions within the limits of applicable law or applicable court decision. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns; provided, however, that except in the case of a merger or sale of all or substantially all of its assets or stock, neither party may assign this Agreement or its rights or obligations hereunder, in whole or in part, either voluntarily or by operation of law, with the prior written consent of the other party. Neither party will be liable for failure to perform any of its obligations under this Agreement (except payment obligations) when such failure is caused by the occurrence of any contingency beyond the reasonable control of such party. Notices to be given under this Agreement will be in writing, and sent by reputable overnight courier service, to the addresses set forth at the beginning of this Agreement (or to such other addresses as the parties may designate by notice given in accordance with this provision). All such notices will be effective two (2) days after the date sent. Purchase orders will be for the sole purpose of defining quantities, prices and describing the items purchased and fees to be paid 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.
Capitalized terms in this Agreement have the following meanings:
- HAProxy Partner Programs
- mean the programs offered by HAProxy from time to time to companies offering complementary solutions for the HAProxy Products.
- HAProxy Products
- means the HAProxy Enterprise Edition, as well as any additional HAProxy product listed in a Partner Program Agreement and related services offerings.
- Marketing Materials
- mean information and materials obtained from HAProxy that are not included with HAProxy Products, such as data sheets and sales presentations.
- Partner Program Agreement
- mean the terms and conditions under which Partner will becomes a participant in one or more of the HAProxy Partner Programs.
- means the countries specified in the applicable Partner Program Agreement, except to the extent limited by applicable import and export laws. In the event that the Territory listed is blank, the territory is worldwide.
- means a recognizable word, design, or expression which identifies products or services of a particular source from those of others.
Certain Confidential Information may be made available to the other party in connection with discussions regarding joint business opportunities. “Confidential Information” means any confidential or proprietary information of the disclosing party (“Discloser”) disclosed to the receiving party (“Recipient”), including without limitation, pricing, product and company roadmaps, software, and information about customers and prospects. Confidential Information shall not include any information which Recipient can establish by written documentation (i) was publicly known and made generally available in the public domain prior to the time of disclosure to Recipient by Discloser; (ii) becomes publicly known and made generally available after disclosure to Recipient by Discloser through no action or inaction of Recipient; or (iii) is in the possession of Recipient, without confidentiality restrictions, at the time of disclosure by Discloser.
Recipient agrees not to use any Confidential Information for its own purpose or for any purpose except to evaluate and engage in discussions concerning potential business relationships between Recipient and Discloser (“Purpose”). In addition, each party agrees not modify, reverse engineer, decompile, create other works from or disassemble any software programs or Confidential Information of the other party.
Recipient agrees not to disclose any Confidential Information to third parties or to its employees or advisors, except to those employees and advisors of Recipient who have executed a written non-use and non-disclosure agreement in content similar to the provisions in this Nondisclosure Agreement and who are required to have access to such Confidential Information to accomplish the Purpose. Recipient is liable for violations of the obligations by its employees and advisors receiving the Confidential Information. In the event Recipient is required to disclose Confidential Information pursuant to law or regulation, Recipient may disclose such Confidential Information, however, to the extent possible, Recipient shall provide Discloser with reasonable advance notice to enable Discloser to seek a protective order to prevent or limit such disclosure.
Maintenance of Confidentiality.
Recipient agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. In addition, Recipient shall take at least those measures that it takes to protect its own highly confidential information of a similar nature, but in no case shall Recipient exercise less than reasonable care. Recipient shall notify Discloser upon each discovery of any unauthorized use or disclosure of Confidential Information.
ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. DISCLOSER MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, AND DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
Return of Materials.
All documents and other tangible objects containing or representing Confidential Information and all whole or partial copies or embodiments which are in the possession or under the control of Recipient shall be and remain the property of Discloser and shall be promptly returned to Discloser upon Discloser’s request, however Recipient is not required to delete or return information stored as part of its standard electronic backup or other business continuity systems.
Nothing in this Nondisclosure Agreement is intended to grant any rights to Recipient under any intellectual property rights of Discloser, nor shall this Nondisclosure Agreement grant Recipient any rights in or to Confidential Information.
The obligations under this Nondisclosure Agreement shall survive until five (5) years after the latest date Confidential Information has been disclosed under this Nondisclosure Agreement.
This document contains the entire agreement between the parties with respect to its subject matter and supersedes all prior understandings with respect this subject matter. Any failure to enforce any provision of this Nondisclosure Agreement shall not constitute a waiver of such provision or of any other provision. This Nondisclosure Agreement may not be amended except by a writing signed by authorized representatives of both parties. This Nondisclosure Agreement shall be governed by the laws of the state of New York, without reference to conflicts of law principles. This Nondisclosure Agreement may not be assigned except in the case of a merger or sale of all or substantially all of its assets or stock. This Nondisclosure Agreement shall bind and inure to the benefit of the parties hereto and their successors and permitted assigns.