These Single Transaction Reseller Agreement Terms and Conditions (the "Reseller Terms" and, along with the applicable Order Form, the "Agreement") are agreed to and entered into by Reseller and Sonatype, Inc. ("Sonatype") and govern Reseller's right to resell Products to the Company (the "Company") identified in the applicable Order Form. Company has, via Reseller, purchased a subscription to access and use the Products pursuant to the terms of the applicable Order Form and these Reseller Terms. Sonatype and Company may be referred to individually in the Agreement as a "Party" or collectively as the "Parties." Capitalized terms used in these Reseller Terms that are not otherwise defined herein have the meaning set forth in the Order Form.
By executing the Single Transaction Reseller Order Form (the "Order Form"), the Parties agree that the Order Form is governed by these Reseller Terms, and that the Order Form grants Reseller the right to resell the Products to the Company pursuant to the Agreement. Upon receipt of a fully executed copy of the Order Form, Reseller is hereby granted a one-time, non-exclusive, non-transferable right to resell a subscription to the Products to Company during the subscription term specified in the Order Form. By executing the Order Form, Reseller confirms that it has complied with the requirement set forth in the Order Form and in Section 3(b) below to pass through the EULA terms to Company and to ensure that Company's use of the Products is governed thereby.
"Product" means Sonatype's software application(s) and/or hosted data service each as identified in one or more Ordering Document(s) to which Company purchases a Subscription pursuant to the terms of this Agreement and an Ordering Document.
"Services" means any training, consulting, professional or other services to be performed by Sonatype for the benefit of Company as reflected in the Order Form.
"Subscription" means the right and license granted to Company by Sonatype to access and use the Products in accordance with the terms of this Agreement during the specified term.
"User" means an individual who is authorized by Company to use a Product for the benefit of Company's internal business purposes and for whom a Subscription to the Product has been purchased. Users may include Company's employees (including managers, Contributing Developers and administrators), consultants, contractors and agents. For purposes of this definition, "Contributing Developer" means a User who produces, consumes or in any other way uses software artifacts managed and/or scanned by the Product.
a. Delivery. Upon receipt of a fully executed Order Form, Sonatype will deliver the Products via electronic means to Company (or, at Reseller's request and upon Sonatype's agreement, directly to Reseller) in accordance with Sonatype's then-current delivery processes and procedures for end user customers.
b. Restrictions. Reseller will not: (i) permit any third party to access the Products except as permitted in the Agreement, (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works of or copy the Products or otherwise seek to obtain or use the source code or non-public APIs of the Product, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Sonatype), (iii) remove, alter or obscure any proprietary notices, labels or marks on any component or portion of the Products, (iv) interfere with or disrupt the integrity or performance of the Products, (v) use the Products for the benefit of any third party including use of the Products to operate as a service bureau, ASP, or hosting service, (vi) attempt to gain unauthorized access to the Products, or their related systems or networks, (vii) access, or permit access, to the Products for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, and/or (viii) access or use the Products in order to (A) build a competitive product or service, (B) copy any features, functions or graphics of, or data or information in, the Products; or (C) scrape, collect or in any manner compile Application Component Identifiers from any repository or data source for the purpose of creating a repository to be used by Reseller and/or Company separate from the Products.
c. EULA. Reseller agrees that it must: (i) provide Company with a copy of or link to Sonatype's end user license agreement posted on the Internet at http://www.sonatype.com/Usage/Master-EULA (the "EULA") prior to delivery of the Product by Sonatype; (ii) notify Customer that its use of the Products is governed by the terms and conditions of the EULA; and (iii) include either a copy of or link to the EULA in each ordering agreement entered into by and between Reseller and the Company.
d. Ownership. Subject to the limited rights expressly granted hereunder Sonatype, for itself and on behalf of its licensors, reserves all rights in the Products and any and all other materials delivered by Sonatype to Reseller and/or Company pursuant to the Order Form that are not expressly granted to Reseller in this Agreement. Reseller acknowledges and agrees that, except as otherwise expressly set forth in this Agreement, Sonatype owns all rights, title and interest in and to the Products and such materials. All rights, title and interest in and to any and all improvements, modifications, derivative works and innovations of, to and/or involving the Products and such material will be retained in full and owned by Sonatype, even if such improvements, modifications, derivative works or innovations result from suggestions, enhancement requests, recommendations or other feedback provided to Sonatype by or on behalf of Reseller and/or Company. Reseller agrees not to challenge, directly or indirectly, the right, title, and interest of Sonatype in and to the Products or such materials, and further agrees that it will not directly or indirectly, register, apply for registration, or attempt to acquire any legal protection for any of the Products and/or any such materials.
Reseller will pay all fees specified in the Order Form. Sonatype will submit an invoice for all fees relating to Products and Services purchased by Reseller to be resold to Company as set forth in the Order Form. Unless otherwise agreed in the Order Form, all Sonatype invoices are payable no later than thirty (30) days from the date of the invoice. All fees payable under this Agreement are non-cancelable and non-refundable and shall be made without recoupment or set-off. If any fees are not received from Reseller by the due date, then at Sonatype's discretion, such charges may accrue interest at the monthly rate of the lower of 1.5% of the outstanding balance, or the maximum rate permitted by law, from the date such payment was due until the date paid. If any amount owing by Reseller pursuant to this Agreement is thirty (30) or more days overdue, Sonatype may, without limiting Sonatype's other rights and remedies, suspend provision of any Services and/or Company's access to the Products until such amounts are paid in full. Unless otherwise stated, Sonatype's fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Except for taxes assessable against Sonatype based on Sonatype's income, Reseller is responsible for paying all Taxes associated with Reseller's purchases hereunder. If Sonatype has the legal obligation to pay or collect Taxes for which Reseller is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Reseller as set forth above, unless Reseller provides Sonatype with a valid tax exemption certificate authorized by the appropriate taxing authority. Reseller agrees to maintain complete and accurate records in accordance with generally accepted accounting principles with respect to matters necessary to ensure Reseller's compliance with this Agreement. Sonatype will have the right, at its own expense and upon reasonable prior notice, periodically to inspect and audit the records of Reseller and of Company with respect to matters covered by this Agreement. If such inspection and audit reveals that Reseller has underpaid Sonatype with respect to any amounts due and payable during the period to which such inspection and audit relate, Reseller shall promptly pay such amounts as are necessary to rectify such underpayment, together with interest as set forth above. Such inspection and audit rights shall extend throughout the term of this Agreement and for a period of 3 years thereafter.
Reseller agrees not to represent itself as an agent or employee of Sonatype and agrees that Sonatype shall have primary control over any communications with Company regarding the Products. Reseller shall not make any representations regarding Sonatype or the Products except as expressly permitted in the Agreement. Reseller agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Sonatype or its Products, and agrees to comply with all applicable federal, state and local laws and regulations while performing its duties under this Agreement.
Either Party may terminate this Agreement for any reason or no reason upon ten (10) days written notice to the other Party, and upon five (5) days written notice upon material breach by the other Party. Upon termination of this Agreement: (a) each Party's obligations with respect to accepted Order Forms shall survive for the term specified in the applicable Order Form (unless Sonatype terminates this Agreement due to Reseller's material breach, in which case the Order Form shall terminate immediately), (b) Reseller shall cease any activity with respect to Sonatype and shall return to Sonatype all property of Sonatype and (c) Reseller shall pay Sonatype any and all fees then due and owing. The terms of the EULA will survive and will continue to govern Company's use of the Products, provided that in no event may any licenses granted under the EULA be extended or renewed without the prior written consent of Sonatype. Sections 3(c) and Sections 4 through 17 shall survive any expiration or termination of the Agreement.
As used herein, "Confidential Information" means all confidential information disclosed by a Party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each Party shall include the terms and conditions of this Agreement and the Order Form, as well as business and marketing plans, research, development, services, customers, customer lists, designs, drawings, technology and technical information, products, software, developments, inventions, processes, formulas, finances, and business processes of such Party; and Sonatype's Confidential Information shall include the Products related documentation and specifications as well as any other material delivered or made available to Reseller. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or access to the Disclosing Party's Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event less than reasonable care) not to disclose any Confidential Information of the Disclosing Party or use it for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement, who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein, and for whom the Receiving Party remains fully liable. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of any such disclosure (to the extent not legally prohibited) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. Each Party acknowledges that the extent of damages in the event of any threatened or actual breach of this Section 7 would be difficult or impossible to ascertain and that there would be available no adequate remedy at law in the event of any such breach. Each Party therefore agrees that, in the event it breaches this Section 7, the other Party will be entitled to specific performance and injunctive or other equitable relief, in addition to any other relief to which it may be entitled at law or in equity. Any such relief shall be in addition to and not in lieu of any relief in the form of monetary damages.
SONATYPE MAKES NO, AND RESELLER HEREBY WAIVES AND DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES REGARDING THE AGREEMENT OR THE PRODUCTS, SERVICES AND OTHER MATERIALS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ERROR-FREE OR UNINTERRUPTED USE, AS WELL AS ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. FURTHERMORE, THE PRODUCTS, SERVICES AND OTHER MATERIALS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND SONATYPE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCLUDING ANY CLAIMS ARISING AS A RESULT OF A BREACH BY EITHER PARTY OF SECTION 7 (CONFIDENTIAL INFORMATION). IN NO EVENT SHALL SONATYPE BE LIABLE FOR ANY AMOUNTS HEREUNDER IN EXCESS OF THE TOTAL FEES PAID TO SONATYPE BY RESELLER FOR THE ORDER FORM GIVING RISE TO THE CLAIM. The Parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in the Agreement is found to have failed of its essential purpose.
Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, upon written verification of receipt; or (c) by certified or registered mail, return receipt requested, upon verification of receipt. Notices shall be sent to Reseller at the address provided in the Order Form, and to Sonatype at 8161 Maple Lawn Blvd., Suite 250, Fulton, MD 20759, Attention: Legal Department. Either Party may designate a different address by providing written notice to the other Party. The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, USA, without regard to that jurisdiction's conflicts of laws or choice of law rules, and each Party agrees to submit to the exclusive jurisdiction of the State courts located in Howard County, Maryland and Federal courts located in the State of Maryland. The Parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act or the United Nations Convention on Contracts for the International Sale of Goods. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions when providing and using the Products. Without limiting the foregoing, (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Reseller shall not permit Company to access or use Products in violation of any U.S. export embargo, prohibition or restriction. Furthermore, Reseller will not, directly or indirectly, remove or export from the United States or allow the export or re-export of any part of the Product and/or related documentation: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.
It is the express intention of the parties that Reseller is an independent contractor and not an employee, agent, joint venture or partner of Sonatype. Nothing in this Agreement shall be read as creating the relationship of employer and employee between Reseller and Sonatype. Reseller is not entitled to participate in any benefits provided by Sonatype including its pension plans, bonus, stock or similar benefits that Sonatype makes available for its employees. The rights granted to Reseller hereunder are non-exclusive and nothing under this Agreement shall be deemed to prohibit Sonatype from entering into any reseller, end-user license, services or other agreement with any party anywhere in the world either during or after the term of this Agreement.
The Products are commercial computer software that were developed fully at private expense. If the User or licensee of the Products is or becomes an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related Documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All other use is prohibited.
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies set forth in the Agreement are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Neither Party will have the right to assign this Agreement without the written consent of the other Party; provided, however, that Sonatype will have the right to assign the Agreement to an affiliate of Sonatype or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets of the business to which the Agreement relates. Any assignment in violation of the foregoing provision shall be void and of no effect. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
The captions to the Sections of this Agreement are not a part of this Agreement but are merely guides or labels to assist in locating and reading the Sections hereof. The terms "this Agreement," "herein," "hereof," "hereunder" and similar expressions refer to this Agreement and not to any particular section or other portion hereof. Except as expressly provided otherwise, references herein to "days" are to calendar days. Any use of the terms "include" and "including" in this Agreement shall be construed as if followed by the phrase "without limitation."
The Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless in writing and signed by an authorized representative of each Party. Unless otherwise expressly agreed in the Order Form, if the terms of these Reseller Terms conflict with the terms of the Order Form, the terms of these Reseller Terms will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Reseller's purchase order or other order documentation generated by Reseller shall be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void.