Array Networks Partner Program
Americas “A-Team” Partner Agreement
PLEASE READ AND UNDERSTAND THE FOLLOWING ARRAY NETWORKS “A-TEAM” PARTNER PROGRAM AGREEMENT BEFORE PROCEEDING TO REGISTER AS AN ARRAY NETWORKS PARTNER. BY ACCEPTING THIS AGREEMENT YOU ARE CERTIFYING THAT YOU ARE AUTHORIZED TO ENTER YOUR ORGANIZATION INTO A LEGALLY BINDING AGREEMENT AND AGREE TO ABIDE BY THE TERMS & CONDITIONS CONTAINED IN THIS DOCUMENT. IF FOR ANY REASON YOUR ORGANIZATION IS UNABLE OR UNWILLING TO AGREE TO THE TERMS STATED THEREIN, DO NOT PRECEDE TO REGISTER AS AN A-TEAM PARTNER WITH ARRAY NETWORKS.
BY REGISTERING FOR THE ARRAY “A-TEAM PARTNER” PROGRAM, YOU (AS THE “A-TEAM PARTNER”) BIND YOURSELF, AND THE COMPANY YOU REPRESENT, TO THIS AGREEMENT. YOU ARE ACKNOWLEDGING YOU HAVE READ AND UNDERSTAND THIS AGREEMENT COMPLETELY. FURTHER, YOU HAVE HAD AN OPPORTUNITY TO SEEK LEGAL COUNSEL PRIOR TO AGREEING. IF FOR ANY REASON THE TERMS OF THIS AGREEMENT REQUIRE MODIFICATION, CONTACT AN ARRAY NETWORKS REPRESENTATIVE AND THE ARRAY NETWORKS LEGAL DEPARTMENT.
THIS AGREEMENT IS BETWEEN THE “A-TEAM PARTNER” and “ARRAY NETWORKS”. THIS AGREEMENT WILL BE VALID IN THE UNITED STATES AND CANADA ONLY.
THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE DEFINED AS THE DAY “A-TEAM PARTNER” COMPLETES THE ONLINE REGISTRATION FORM AND SAID APPLICATION HAS BEEN ACCEPTED BY ARRAY NETWORKS.
The terms of this Agreement shall apply to each Hardware product purchased, each Software license granted, and to all Services provided by Array Networks under this Agreement and identified on one or more Order Forms.
“Confidential Information” means any technical or non-technical proprietary or trade secret information or materials obtained by Partner from Array Networks whether orally, visually, or in writing that is designated or declared in any manner to be confidential, or that a reasonable person would deem confidential in nature, concerning the Products, including without limitation, business plans, product roadmaps, software, price lists, customers, financial information, competitive information and product development information. The terms of this Agreement shall also be deemed the Confidential Information of Array Networks.
“Fee and Territory Addendum”shall mean any addendum hereto which specifies the additional terms and fees associated with reselling or distributing Products and sublicensing Software, and which the parties agree to.
“Hardware” means networking appliance products specified on Array Networks’ Price List in effect at the time the Hardware is purchased.
“Order” means a non-cancelable order for Products to be purchased by Partner.
“Order Form”means (i) Array Networks’ standard hard copy or electronic document, or (ii) a Partner purchase order or other ordering document, by which Partner orders Products, and Services and which is agreed to by the parties. The Order Form shall reference the Effective Date of this Agreement.
“Products”means any combination of Array Networks’ Hardware and Software products which Partner acquires or is licensed to use or resells, distributes pursuant to this Agreement, and the media, user documentation (“Documentation”) and Updates therefore.
“Services”means Technical Support or training services provided by Array Networks to Partner under this Agreement.
“Software”means software in object code form distributed by Array Networks in conjunction with its Hardware for which Partner is granted a license pursuant to this Agreement.
“Technical Support” shall mean Product support provided under Array Network’s policies in effect on the date Technical Support is ordered.
“Update” means a subsequent release of the Software which Array Networks generally makes available for Software licenses at no additional license fee other than media and handling charges, provided the Partner and the applicable End User have ordered Technical Support services for such licenses for the relevant time period. Update shall not include any release, option, or future product that Array Networks licenses separately. Partner and/or End User shall be responsible for installing Updates on the Hardware.
“End User” shall mean Partner’s customer who obtains Products or Services from Partner solely for its own internal business purposes and that has agreed to the terms of Array Networks’ End User License.
“End User License” shall mean the written sale and license terms and conditions contained in Array Networks’ End User License agreement, which shall be contained in the packaging of or downloaded with each Product. The terms of the End User License agreement are subject to change at Array Network’s sole discretion; a sample of Array Network’s current End User License is attached hereto as Exhibit A.
Grant of License
Subject to the terms of this Agreement, Array Networks grants Partner the following licenses during the term of this Agreement as set forth in this Section, solely to End Users:
Hardware. Partner shall have the nonexclusive, nontransferable right to market, demonstrate, distribute, and resell Hardware (i) solely to End Users located in the Territory solely for their own internal business purposes, (ii) solely in conjunction with Partner’s professional services, and (iii) in accordance with the terms of this Agreement and any applicable Order Form at the fees set forth in the applicable Fee and Territory Addendum.
Software. Array Networks hereby grants Partner a nonexclusive, nontransferable license to market, and distribute the Software to Partner’s End Users solely in conjunction with reselling Hardware as set forth above.
Partner acknowledges and agrees the Products purchased and licensed from Array Networks under this Agreement will be solely marketed, sold, distributed, and demonstrated directly to End Users located within the territory specified in the applicable Fee and Territory Addendum (the “Territory”), and not through any intermediary or chain of distribution. Partner acknowledges that its appointment under this Agreement is non-exclusive and that it obtains no exclusive rights in any geographic area for the Products. Partner also acknowledges Array Networks’ right to sell direct and it’s right to appoint additional resellers, distributors, OEM’s and any other channel or entity to make sales to any End User or customer in the Territory without liability or obligation to Partner.
In marketing and reselling the Products, Partner shall:
1. Not engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Array Networks or to Array Networks’ services or Products;
2. Not make any representations, warranties, or guarantees concerning the Products other than those made in this Agreement or by Array Networks; and
3. Comply with all applicable federal, state and local laws and regulations in performing its duties with respect to the Products.
Partner may order Products from Array Networks for its own internal use for testing, training or demonstration, in which case Array Network grants to Partner a nonexclusive, nontransferable license to use the accompanying Software and Documentation solely for purposes of testing Products, demonstrating Products to potential End Users and providing training (“Demonstration Products”) under the terms and fees set forth in this Agreement and the Fee and Territory Addendum.
Limitations on Use
Partner shall not use the Products (including the Documentation) for any purpose other than as specified in this Agreement or the applicable Order Form, or make the Products available to unauthorized third parties. Partner shall not use the Products for its internal business operations, or cause or permit the creation of derivative works of the Products, in whole or in part. Partner agrees that it will not: (a) disassemble, decompile, or reverse engineer any Products; (b) copy or otherwise reproduce any Products, in whole or in part; (c) remove, modify or otherwise tamper with notices or legends on the Products or any labeling on any physical media containing the Software, or (d) attempt to remove, copy, decompile, disassemble or modify any firmware contained in the Products. Partner’s rights in the Products will be limited to those expressly granted in this Agreement. Partner has no right to use, modify, enhance, copy, or sublicense the Software. Partner will resell solely to End Users pursuant to Array Networks’ then-current End User License. Array Networks will grant license rights for such Software contained in the Products directly to End Users under such End User License.
Title to and ownership of the Software, Updates, and Documentation, and all copyright, patent, trade secret, trademark and other intellectual property rights embodied in the Products, shall at all times remain the property of Array Networks or its licensors. Partner and its End Users do not acquire any rights in the Products other than those specified in this Agreement.
Partner may not assign this Agreement or transfer a Software license to a legal entity separate from Partner without Array Networks’ prior written consent.
Technical Support Services
By Partner. Partner shall provide first-tier and second-tier support services regarding the Products to End Users. Such support shall include, at a minimum, telephone support during Partner’s normal business hours. Partner agrees to provide installation and post-installation support for the Products and to be the primary contact for Product information, technical advice, and operational advice associated with the Products.
By Array Networks. Array Networks shall, during its normal business hours, provide third-tier support services to Partner. Such support shall be limited to Array Networks’ then-current support services offered by Array Networks via its website, e-mail support or telephone support. If Partner is unable to determine and resolve problems with the Products, Partner may provide End User with a mutually agreed upon Array Networks technical service contact, provided that Partner has provided Array Networks with End User’s address, contact, and product information sufficient to verify such End User. Array Networks’ responsibility for support under this Section 3.1 shall be contingent on Partner’s satisfactory completion of Section 4.5 (Reporting), and provision by the Partner or End User of a detailed description of the problem sufficient to allow Array Networks to reproduce and confirm that the problem exists.
For any on-site Services requested by Partner, Partner shall reimburse Array Networks for actual, reasonable travel and out-of-pocket expenses incurred.
Ordering, Reporting, Records
During the term of the Agreement, within ten (10) days after the beginning of each month, Partner will submit to Array Networks a forecast of its projected purchases for a one hundred and eighty (180) day rolling period. The forecasts will include quantity and type of Product to be sold. Such forecasts shall not be binding on either party, but shall be made in good faith.
Partner will order Product by submitting written Orders to Array Networks (using an Order Form) for the number of Products to be purchased by Partner during the period specified in the Order. All Orders shall reference this Agreement, state the quantities and descriptions of Product ordered, applicable prices and license fees, requested delivery dates and shipping instructions including “bill to” and “ship to” addresses. All Orders placed by Partner will be subject to acceptance by Array Networks in its sole discretion, as set forth in Section 4.3. For purposes of this Agreement, the order date will be the date on which Array Networks receives Partner’s Order. Array Networks will use commercially reasonable efforts to ship the Products to Partner in accordance with delivery dates specified in the Order, as accepted by Array Networks, but shall not be liable to Partner, or third parties claiming through such entities for shipments that do not meet the specifications in a given Order from Partner. Without limiting the foregoing, Partner acknowledges that no less than a thirty (30) day order lead time will be required for the Products unless otherwise indicated by Array Networks in writing.
Array Networks shall have the right in the exercise of its sole and absolute discretion to reject any Order, either in whole or in part, placed by Partner, and no Order shall be binding upon Array Networks unless accepted by Array Networks in writing or by delivery of Products in whole or partial fulfillment thereof. All Orders accepted by Array Networks that conform to the terms of this Agreement shall become binding commitments by Partner for the purchase of Product in the quantities reflected on such Order.
Order Cancellation and Rescheduling
Orders may not be cancelled by Partner once received by Array Networks. Subject to Array Networks’ prior written approval, Partner may reschedule and/or reconfigure a shipment of an Order one (1) time if Partner provides written notification to Array Networks at least fifteen (15) days prior to the scheduled ship date; provided that, the requested rescheduling or reconfiguration date does not fall outside of Array Networks’ current fiscal quarter. Array Networks reserves the right to cancel any Orders placed by Partner and accepted by Array Networks as set forth above, or to refuse or delay shipment thereof, if (a) Partner fails to make any payment as provided in this Agreement or under the terms of payment set forth in any invoice or otherwise agreed to by Array Networks and Partner, (b) Partner fails to meet reasonable credit or financial requirements established by Array Networks, including any limitations on allowable credit, or (c) Partner otherwise fails to comply with the terms and conditions of this Agreement. Array Networks also reserves the right to discontinue the manufacture, sale or distribution of any or all Products at any time, and to cancel any orders for such discontinued Products without liability of any kind to Partner or to any other person. No such cancellation, refusal or delay will be deemed a termination (unless Array Networks so advises Partner) or breach of this Agreement by Array Networks.
Within five (5) days of delivering a Product to an End User, Partner shall submit to Array Networks a Resale Report specifying the End User name, applicable Products and part numbers, quantity, licensing metric (if applicable), fees shipment date, and shipping location and contact information, to facility the delivery of Technical Support and Services. In addition, on the first business day of each month, Partner shall provide to Array Networks an itemized list of all Product Inventory on hand as of the last day of the preceding month, and copies of all Resale Reports and orders placed for resale to End Users in the preceding month.
Partner shall maintain adequate books and records in connection with activity under this Agreement. Such records shall include the information required in or related to Order Forms and Resale Reports, and the Product quantities sold, used, or distributed by Partner. Upon prior notice of at least one (1) week, Array Networks may audit the relevant books and records of Partner and Partner’s use of the Products. Any such audit shall be conducted during regular business hours at Partner’s offices and shall not interfere unreasonably with Partner’s business activities. If an audit reveals that Partner has underpaid fees to Array Networks, Partner shall be invoiced for such underpaid fees. Audits shall be conducted not more than once annually.
Notice of Claim
Partner shall notify Array Networks promptly in writing of: (a) any claim or proceeding involving the Products that comes to its attention, and (b) any material change in the management or control of Partner.
Fees and Payments
Partner may order from Array Networks Demonstration Products and Products for resale and sublicensing at the standard Product fees set forth in the Array Networks Price List in effect at the time of the order, less the applicable discounts set forth in the Fee and Territory Addendum. Partner has the right to determine unilaterally its End User fees for Products it resells to End Users. The non-payment of fees by the End User shall not relieve Partner of its obligation to pay such fees to Array Networks.
Technical Support Fees
Partner may order Technical Support services from Array Networks for Products obtained under this Agreement at the standard Technical Support fees set forth in the Array Networks Price List in effect at the time of the order, less the applicable discounts set forth in the Fee and Territory Addendum. Technical Support fees shall be payable in full in advance. Partner has the right to determine unilaterally its fees for first-line technical support it provides directly to End Users. The non-payment of fees by the End User shall not relieve Partner of its obligation to pay such fees to Array Networks.
General Payment Terms
All fees shall be due and payable net thirty (30) days from the invoice date, subject to credit approval by Array Networks (credit forms to be submitted and approved as a condition of the VAR agreement). Product and Technical Support fees shall be invoiced on the date Array Networks ships Products to Partner or any End User, as applicable, and shall be deemed overdue if not paid in accordance with this Section. Fees due by Partner shall not be subject to set off for any claims against Array Networks. All payments shall be made in United States currency and shall be made without deductions based on any taxes or withholdings, except where such deduction is based on Array Networks’ gross income. Any amounts payable by Partner hereunder which remain unpaid after the due date shall be subject to a late charge equal to 1.5% per month or the maximum rate legally allowable, whichever is less, from the due date until such amount is paid. Partner agrees to pay applicable shipping and handling charges. Partner shall issue a purchase order, or other alternative document acceptable to Array Networks, on or before the effective date of the applicable Order Form.
The fees specified in this Agreement do not include taxes. If Array Networks is required to pay sales, use, property, value-added or other taxes based on the Demonstration Products, Products, or Services granted under this Agreement or on Partner’s or an End User’s use of the Demonstration Products, Products or Services, then such taxes will be billed to and paid by Partner. This shall not apply to taxes based on Array Networks’ income.
Shipment, Title and Security Interest
Shipment and Delivery
Partner shall bear all costs and expenses incident to Array Networks’ shipment of the Products to Partner or its End Users. Delivery shall be EXW (INCOTERMS) Array Networks’ point of shipment as designated by Array Networks in writing from time to time. In the absence of specific written instructions from Partner, Array Networks shall select the method of shipment and the carrier but such carrier will not be the agent of Array Networks.
Title and Risk of Loss
Title to all of the Products sold by Array Networks to Partner shall pass upon Array Networks’ delivery thereof to the carrier. Risk of loss or damage to any of the Products in transit, without regard to whether Array Networks paid the shipping charges therefore or whether any third party is designated as consignee thereof, is Partner’s, whose responsibility it will be to file claims with the carrier.
Partner hereby grants Array Networks, its successors and assigns, a security interest in all of the Products ordered by Partner, and the proceeds of all such Products (including, but not limited to, the related accounts), and in contract rights related to any of such Products, to secure payment of the purchase price of any such Products. Default in payment of such price shall permit Array Networks, at its sole discretion, to declare all of Partner’s obligations owing to Array Networks to be immediately due and payable, and in such event Array Networks shall have all the rights and remedies of a secured party under the applicable Uniform Commercial Code or similar applicable statutes. In connection with the security interest granted herein, Array Networks is expressly authorized by Partner, at its sole discretion and as Partner’s attorney-in-fact, to file any financing statements, including without limitation UCC 1 documents, necessary or desirable under applicable law to perfect this security interest (without Partner’s signature in states where such filings are permitted); and Partner agrees to sign, as debtor, and immediately return to Array Networks any such financing statement that Array Networks may in its sole discretion choose to submit to Partner for signature.
Term and Termination
The term of this Agreement will commence on the Effective Date and continue for one (1) year, unless terminated sooner pursuant to this Section 7 (“Term and Termination”). This Agreement shall renew automatically for successive one (1) year terms, unless either party gives at least thirty (30) days written notice prior to the beginning of any renewal term to the other party of its intention not to renew.
Termination for Cause
Either party may terminate this Agreement for the other's material breach by providing the breaching party with a written notice that describes the breach. The termination will become effective thirty (30) days after receipt of the notice unless the breach is cured within that thirty (30) day period. However, if the breach by its nature, cannot be remedied in thirty (30) days, but can be remedied in a reasonable time thereafter, the breaching party will take reasonable and diligent steps to remedy it, notify the other party of the action plan, progress towards completion, and complete such remedial action promptly. In such event, the notice period will be suspended while the breaching party takes these actions.
Termination by Partner
Partner may terminate this Agreement with or without cause upon thirty (30) days written notice to Array Networks; however, termination shall not relieve Partner’s obligations specified in Section 7.5.
Termination by Array Networks
Array Networks may terminate any Software license, any Order Form, or this Agreement upon thirty (30) days written notice.
Effect of Termination
Upon expiration or termination of an Order Form or this Agreement, all of Partner’s rights to market, resell and distribute the Products as set forth in such Order Form or this Agreement shall cease. The termination of this Agreement, an Order Form, or any Software license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve Partner’s obligation to pay all fees that have accrued or are otherwise owed by Partner under any Order Form. The parties’ rights and obligations under Sections 2.6, 5, 6.3, 7.5, 8, 9, 10, 11 and 12 shall survive termination of this Agreement. Upon termination, Partner shall cease using, and shall return to Array Networks or destroy all copies of the applicable Software.
Indemnification of Partner
Array Networks will defend any suit or proceeding brought against Partner based on a claim that any of the Products, as furnished by Array Networks under this Agreement, infringe or misappropriate any U.S. patent issued as of the Effective Date or trade secret. Array Networks will pay all settlements and damages finally awarded therein against Partner, provided that Partner (a) promptly informs Array Networks of such suit or proceeding, and furnishes to Array Networks with a copy of each communication, notice or other action relating thereto, (b) gives Array Networks the authority, information and reasonable assistance necessary to settle or litigate such suit or proceeding, (c) gives Array Networks sole control over the defense and/or settlement of any such suit, and (d) does not settle, agree to settle, or compromise any such suit or proceeding without the prior written permission of Array Networks. If Products are held in any such suit to infringe and the use of such Products is enjoined, Array Networks will have the option, at is own discretion and expense, to (w) procure for Partner the right to continue using such Products, (x) replace such Products with non-infringing Products of similar quality and purpose, (y) modify such Products to make them non-infringing, provided the modified Products remain similar in quality and purpose to such Products, and (z) return the depreciated value of such Products and accept its return. Array Networks shall have no liability for any claim of infringement based on use of a superseded or altered version of the Products if the infringement would have been avoided by the use of a current unaltered release of the Products which Array Networks provides to Partner.
Array Networks will not be obligated to defend or be liable for costs and damages to the extent that infringement, or a claim thereof, arises out of or is related to (a) a modification made to Products by Partner or a third party, (b) use or combination of Products with products or data not provided by Array Networks, (c) use of other than the latest unmodified release of Products made available to Partner by Array Networks if such infringement would have been avoided by the use thereof, or (d) use or distribution of Products after Partner receives notice, or has reason to believe, that Products infringe a patent or trade secret of a third party.
THE FOREGOING STATES THE ENTIRE LIABILITY OF ARRAY NETWORKS FOR PATENT, TRADE SECRET, COPYRIGHT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT BY ANY PRODUCT, OR ANY PART THEREOF, FURNISHED UNDER THIS AGREEMENT.
Indemnification of Array Networks
Partner agrees to enforce the terms of the End User License required by this Agreement so as to affect a timely cure of any breach, and to notify Array Networks of any known breach of such terms. Partner will defend, indemnify and hold Array Networks its officers, directors, shareholders, employees, insurers, attorneys, successors and assigns (each a “Array Networks Indemnified Party”) harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands or damages of any kind, arising out of or related to:
Use by Partner or its End Users of any product not provided by Array Networks but used in combination with the Products if such claim would have been avoided by the exclusive use of the Products; and
Partner’s breach of its obligations under this Agreement.
Warranty and Disclaimer
Array Networks warrants for a period of three-sixty five (365) days from the invoice date that the unmodified Hardware and ninety (90) days for Software portions of the Products used in accordance with Array Networks’ handling and operating instructions in a normal operating environment will perform substantially in accordance with the applicable Documentation.
Array Networks warrants the diskettes, CD-ROMs or other media to be free of defects in materials and workmanship under normal use for sixty (60) days from the invoice date.
Array Networks warrants that its Services will be performed consistent with generally accepted industry standards. This warranty shall be valid for sixty (60) days from the performance of the Service.
The warranties above shall not apply to any third party software or hardware, whether or not such third party software or hardware is provided by Array Networks. Partner agrees to any additional terms and conditions relating to the third party software or hardware, which are specific to Array Networks’ suppliers as described in the applicable Documentation.
THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Array Networks does not warrant that the Products will operate in combinations other than as specified in the applicable Documentation or that the operation of the Products will be uninterrupted or error free. Partner shall not make any warranty on Array Networks’ behalf.
For any breach of the warranties in this Section 9, Partner’s exclusive remedy, and Array Networks’ entire liability, shall be:
In the event a Product is found not to substantially conform to the Product Warranty within the applicable warranty period, Partner will obtain from Array Networks a Return Material Authorization (“RMA”) for the immediate return of the Product. Provided that (a) Partner has notified Array Networks in writing of such defect in Product during the applicable warranty period, and (b) Array Networks has confirmed such Product to be defective after Partner has returned it to Array Networks, as Partner’s exclusive remedy for breach of warranty, Array Networks will repair or, at Array Networks’ sole discretion, replace any such Product at no charge to Partner. The foregoing warranty shall not apply to Product that has been (i) damaged by accident, Act of God, shipment, improper installation, inadequate maintenance, abnormal physical or electrical stress, misuse, or misapplication; or (ii) modified without Array Networks’ express written acceptance of such modification for warranty purposes.
The replacement of defective media returned to Array Networks within sixty (60) days of the invoice date.
The re-performance of the Services, or if Array Networks is unable to perform the Services as warranted, Partner shall be entitled to recover the fees paid to Array Networks for the deficient Services.
Limitation of Liability
High Risk Applications
Partner acknowledges that the Products are not specifically designed, manufactured or intended for use in connection with the design, construction, maintenance, and/or operation of any (i) nuclear facility, (ii) transportation or transportation communication system (iii) life support system or (iv) similar high risk or critical application. Except as otherwise provided herein, Array Networks shall not be liable to Partner, in whole or in part, for any claims or damages arising from such use, or resale by Partner to a third party for such purposes, and Partner agrees to indemnify, defend (with counsel approved in writing in advance by Array Networks) and hold Array Networks harmless against any claims for cost, damage, expense (including reasonable attorneys’ fees) and/or liability arising out of or in connection with any such use or resale.
Consequential Damage Exclusion
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE COST OF COVER, INTERRUPTION OF BUSINESS, COLLATERAL DAMAGES, LOSS OF PROFIT, DATA, BUSINESS, GOODWILL, SAVINGS, OR REVENUE, OR THE CLAIMS OF THIRD PARTIES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. NOTWITHSTANDING THE ABOVE, THE LIMITATIONS SET FORTH IN THIS SUBSECTION 10.2 SHALL NOT APPLY TO BREACHES OF SECTIONS 2.3 (MARKETING/RESELLING PRACTICES), 2.5 (LIMITATIONS ON USE), 11 (CONFIDENTIALITY), 8.4 (INDEMNIFICATION OF ARRAY NETWORKS), AND 12.10 (EXPORT).
Limitation of Liability
NOTWITHSTANDING ANY OTHER PROVISION herein, ARRAY NETWORKS’ TOTAL LIABILITY TO THE PARTNER OR ANYONE CLAIMING ON ITS BEHALF UNDER THIS AGREEMENT SHALL NOT EXCEED THE PAYMENTS RECEIVED BY ARRAY NETWORKS FROM PARTNER UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT (S) WHICH GAVE RISE TO SUCH DAMAGES.
No Failure of Essential Purpose
The LIMITATIONS in this Section 10 shall apply notwithstanding the failure of essential purpose of any limited remedy.
Confidentiality and Non-Use Obligations
Partner agrees to use Confidential Information solely for purposes of performance under this Agreement and to take all reasonable steps to hold Confidential Information in confidence during the term of this Agreement and for a period of seven (7) years after termination of this Agreement, or until one of the exclusions stated in Section 11.2 applies to that Confidential Information. Partner further agrees that it will not make Confidential Information available in any form to any third party, and that it will disclose Confidential Information only to its own employees or contractors who have a “need to know” for purposes of implementing this Agreement and have signed a confidentiality agreement containing terms at least as protective of Confidential Information as those contained herein. Partner will be responsible for any violation of this Section by any of its past, present or future employees, agents or contractors.
The restrictions in Section 11.1 (Confidentiality and Non-Use Obligations) will not apply to any information that Partner can reasonably document (a) was or becomes publicly available through no act or omission of Partner; (b) was rightfully received by Partner from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (c) was previously rightfully known to Partner prior to disclosure thereof by Array Networks. Confidential Information may be disclosed pursuant to a governmental or court order (but in such event, only to the extent required to be disclosed), provided that Partner provides prompt advance notice thereof to enable Array Networks to seek a protective order or otherwise prevent such disclosure.
Ownership and Return
Array Networks will retain all ownership of its Confidential Information. At Array Networks’ request or upon termination of this Agreement and no later than five (5) days after such request or termination, Partner will promptly destroy or deliver to Array Networks, at Array Networks’ option, (a) all materials, in any medium, furnished to Partner by Array Networks; and (b) all tangible media or expression in Partner’s possession or control to the extent that such tangible media incorporate, reflect or reference any Confidential Information. Partner will provide written certification of Partner’s compliance with its obligations under this Section 11.3 (Ownership and Return).
In the event of the unauthorized use, distribution, or disclosure of any Confidential Information, the parties agree that the Array Networks will not have an adequate remedy at law. Therefore, the parties agree that Array Networks shall be entitled to injunctive or other equitable relief that may be appropriate to restrain such use, distribution, or disclosure, threatened or actual, without the necessity of posting bond.
The Software is copyrighted by Array Networks. Partner shall not make any copies of the Software for any reason whatsoever.
“Array Networks” and any other trademarks and service marks adopted by Array Networks to identify the Products and other Array Networks products and services belong to Array Networks; Partner shall have no rights in such marks except as expressly set forth herein and as specified in writing by Array Networks from time to time. During the Term of this Agreement, Partner is authorized to use Array Networks’ name and/or trademarks (“Array Networks’ Marks”) in accordance with Array Networks’ then-current trademark policies and procedures in connection with Partner’s marketing, distribution, resale and sublicensing of the Products. Partner agrees not to use any mark likely to cause confusion with the Array Networks Marks. Partner shall not market the Products in any way that implies that the Products are the proprietary product of Partner or of any other party other than Array Networks. Array Networks shall have no liability to Partner for any claims made by third parties relating to Partner’s use of Array Networks’ trademarks.
Partner acknowledges that any breach of its obligations with respect to Array Networks’ proprietary rights will cause Array Networks irreparable injury for which there are inadequate remedies at law and that Array Networks shall be entitled to equitable relief in addition to all other remedies available to it.
Relationship Between the Parties
The parties are independent contractors. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as an agent, employee, franchisee, or in any other capacity. Nothing in this Agreement shall be construed to limit either party’s right to independently develop or distribute hardware or software that is functionally similar to the other party’s product, so long as proprietary information of the other party is not included in or used in the development of such hardware or software.
Governing Law and Jurisdiction
This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of California, without giving effect to principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Santa Clara County, California. Array Networks and Partner agree to submit to the jurisdiction of these courts in any such legal action or proceeding.
All notices required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail to the first address listed in the relevant Order Form (if to Partner) or to the Array Networks address on the Order Form (if to Array Networks). To expedite order processing, Partner agrees that Array Networks may treat documents faxed by Partner to Array Networks as original documents; notwithstanding, either party may require the other to exchange original signed documents.
Partner agrees that Array Networks may use Partner’s name in lists of partners included in Array Networks’ advertising and marketing materials.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for non-payment or breach of Array Networks’ proprietary rights in the Products, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
Partner agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to assure that neither the Products nor any direct product thereof are (a) exported, directly or indirectly, in violation of Export Laws; or (b) intended to be used for any purposes prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.
This Agreement and any Order Forms constitute the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to modify or amend this Agreement.
It is expressly agreed that the terms of this Agreement shall supersede the pre-printed terms in any Partner purchase order or other ordering document. This Agreement also shall supersede the terms of any unsigned or shrink-wrap license included in any package, media, or electronic version of Array Networks-furnished Products and any such Products shall be licensed under the terms of this Agreement.