IMPORTANT – PLEASE READ CAREFULLY
The following Reseller Marketing Support Agreement (the “Agreement”) contains the legal agreement between EMC Corporation (“EMC”) and the organization identified in the Reseller Application (the “Reseller”) in which this Agreement is included, regarding Reseller's acceptance as authorized EMC reseller and if applicable, membership and participation in the EMC Velocity Partner Program. By clicking on the “I Accept” button set forth below you are representing to EMC that you are authorized to bind the Reseller and are agreeing on behalf of the Reseller that the terms of this Agreement shall govern the relationship of the parties with regard to resale of EMC products and/or the Velocity Partner Program. EMC reserves the right to limit acceptance to the Program. Reseller is not a member of the Program and this Agreement shall not become binding until EMC, or the EMC subsidiary providing EMC products for use in the country in which Reseller is located, sends Reseller notice of (i) authorization to resell certain EMC products and (ii) acceptance to the EMC Velocity Partner Program. Such notice(s) will be sent to the email address and contact provided by the Reseller in the Reseller Application.
EMC Reseller Marketing Support Agreement
EMC Corporation (“EMC”), with a principal place of business at 176 South Street, Hopkinton, MA 01748-9103 the organization identified in the Reseller Application (the “Reseller”) (the “Reseller”) enter into this Reseller Marketing Support Agreement (the “Agreement”) as of the date that EMC Corporation, or the EMC subsidiary providing EMC products for the country in which Reseller is located, notifies Reseller that Reseller has (i) authorization to resell certain EMC products and/or (ii) been approved for membership in EMC Velocity Partner Program (the “Effective Date”). This Agreement sets forth the terms and conditions under which EMC may permit Reseller to (i) access information at a certain EMC website(s), (ii) use certain EMC logo(s), and (iii) obtain certain EMC technical training, all for use solely in connection with EMC products obtained by Reseller under Reseller's agreement with the EMC distributor identified on the Reseller Application, or an additional distributor as may be subsequently agreed by EMC in electronic or hard-copy form (the “Distributor”), all as more specifically described below.
ACCORDINGLY, in consideration of the premises and obligations contained herein, it is agreed as follows:
1.1 “Information” means all information contained on the EMC “Powerlink” website and/or such other website as EMC may designate from time to time.
1.2 “Logo” means the EMC logo as may be designated by EMC at and can be accessed by Reseller via its connection to the applicable EMC website, which website is currently located at URL: http://powerlink.emc.com.
1.3 “Reseller Application” means the completed application form submitted by Reseller and approved by EMC in connection with Reseller's authorization as a reseller and/or participation in the EMC Velocity Partner Program, or the successor thereto, as designated by EMC.
1.4 “Territory” means the country(ies) in which Reseller is authorized by Distributor to market EMC products as identified in the Reseller Application approved by EMC.
2. RESELLER REPRESENTATION
2.1 Reseller warrants to EMC that, as of the date Reseller submits the Reseller Application to EMC, Reseller either has, or is in the process of establishing, an agreement with Distributor under which Reseller is permitted to obtain EMC products from such Distributor and remarket such as part of a transaction in which Reseller also adds incremental value to the EMC products and/or services in the form of substantial hardware and/or software integration, networking, installation, systems analysis, systems development or consulting services; and/or market knowledge of the Territory. Reseller agrees that EMC may disclose the information on the Reseller Application and the terms of this Agreement to Distributor.
3. RESELLER TRAINING OBLIGATIONS
3.1 Marketing, Sales, and Technical Training – Reseller shall use good faith and reasonable efforts to conform to any training obligations required for its reseller status, including the training requirements set forth in the EMC Velocity Partner Program (if applicable), currently located at URL: http://powerlink.emc.com, as promptly as possible after EMC makes the applicable training available. The charges associated with this training shall be identified by EMC in advance. Reseller shall also be responsible for its transportation and living expenses associated with the attendance of Reseller's representatives at such training. Enrollment and completion of training courses must be made in accordance with the EMC Velocity Education Program and the EMC Proven Professional Program available in EMC Powerlink web site. Non-compliance with the above training and certification requirements entitles EMC to terminate the Agreement for cause without notice to Reseller.
3.2 Completion of Training – The parties shall use good faith efforts to complete the Marketing, Sales and Technical training described above within ninety (90) days after such training becomes reasonably available form EMC.
3.3 Reseller acknowledges that this Agreement does not authorize Reseller to perform implementation, installation or support services for any EMC Product.
4. TERM AND TERMINATION
4.1 This Agreement shall commence upon the Effective Date and unless terminated in the manner set forth below, shall remain in effect for as long as Reseller has a then current product ordering agreement with the Distributor.
4.2 The Logo license may be terminated under the following conditions: (i) by either party effective thirty (30) calendar days after notice of termination to the other party for breach of any provision of this Logo license if such breach has not been cured within such thirty (30) day period, or immediately if no cure is possible; (ii) by EMC immediately upon notice to Reseller if Reseller has misrepresented itself or its products in its Reseller Application, or if at any time the information set forth in the Reseller Application materially overstates the level or character of Reseller's then current business operations or credit profile; (iii) by EMC immediately upon notice to Reseller if Reseller breaches Section 9.2 above; (iv) by EMC immediately and automatically without notice of any kind from EMC in the event Reseller, without the prior written consent of EMC, (a) merges, is acquired or otherwise undergoes a change in control; or (b) attempts to assign any of its rights or delegate any of its obligations hereunder (any action violating the foregoing restriction on assignment or delegation shall be void); and (v) by either party for convenience upon sixty (60) days' written notice to the other party.
4.3 Upon termination of the Logo license, the license and rights granted hereunder shall terminate completely. Reseller must discontinue all use of the Logo according to the following schedule unless EMC has agreed in writing to some other schedule: (i) Within seventy-two (72) hours on Reseller's website; (ii) Within thirty (30) calendar days, or such earlier date as required by court or judicial order, on all Products, Products packaging, Products documentation, and related marketing materials, where applicable, on Reseller's premises, or the premises of Reseller's agents, resellers or distributors, by covering the Logo with an opaque label or by other methods pre-approved by EMC in writing. Nothing in this Paragraph 4.3 shall limit EMC's right to pursue other legal remedies, including immediate court or judicial relief.
4.4 Rights and obligations under the Logo license which by their nature should survive, including, but not limited to, all rights and obligations in Sections 4.3, 4.4, 6.0 9.5, 9.6, 9.7, 11.0, and 12.0 will remain in effect after termination or expiration hereof.
4.5 Termination of Website Access – Except as otherwise provided below, the right to access the website shall be valid for a term of one (1) year from the Effective Date or until Reseller's agreement with Distributor expires or is terminated, which ever occurs later. Either party shall have the right to either terminate access to or discontinue access to the Information, at its convenience, by sending the other written notice thereof. Such notice shall be effective upon receipt. EMC shall have the right to deny Reseller or Reseller personnel access to the websites made available hereunder. Upon any termination, expiration or cancellation of (i) this Agreement, (ii) the license granted in sub-section 9.1, or (iii) Reseller's agreement with Distributor, Reseller shall cease to use Information and shall promptly return to EMC, at Reseller's own cost, all tangible copies of the Information in its possession.
5. INFORMATION RELATED DISCLAIMER
5.1 EMC PROVIDES ACCESS TO THE EMC WEBSITE AND INFORMATION ON AN “AS IS” BASIS AND MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR OTHERWISE OF ANY EMC LOGO, OR OTHER INTELLECTUAL PROPERTY RIGHT LICENSED UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATURE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT AND/OR SPECIAL DAMAGES FOR ANY CLAIMS ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, EVEN IF THE POSSIBILITY OF SUCH DAMAGES IS, OR SHOULD HAVE BEEN, KNOWN.
6. RESELLER INDEMNITY
6.1 Reseller shall indemnify EMC and hold EMC harmless against all claims asserted by third party's against EMC as a result of Reseller's failure to comply with its obligations hereunder or any acts or omissions of Reseller.
7.1 Entire Agreement – The terms contained herein constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior communications and agreements, either oral or written. No modification or amendment hereto, nor any waiver of any rights herein, shall be effective unless assented to in writing by both parties. In the event of a conflict between this Logo License and the product ordering agreement, the terms of this Logo License shall prevail with regard to the subject matter contained herein.
7.2 Assignment – Reseller shall not assign this Agreement or any of its rights, or delegate any its obligations hereunder without EMC' prior written consent, and any such action in violation of the foregoing shall be void.
7.3 Separability and Waiver – If any provision hereof shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions. The waiver of any breach or default shall not constitute a waiver of (i) any other right or remedy hereunder, or (ii) any subsequent breach or default
7.4 Independent Contractors – Each party shall act only as an independent contractor and not as an employee, agent, servant, or representative of the other for all purposes under this Logo License. Neither party shall have any authority to transact business or make any commitments or speak on behalf of the other party unless expressly authorized in writing by an officer of the other party. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party. Reseller shall not make any statement (or fail to correct any statement) which indicates that Reseller is an agent or representative of EMC in any capacity, or that Reseller is authorized by EMC to do more than perform the ordinary functions of an independent contractor and reseller of EMC products.
7.5 Governing Laws – This Agreement is governed by the laws of the Commonwealth of Massachusetts, excluding its conflict of law rules and excluding the U.N. Convention on Contracts for the International Sale of Goods. Reseller hereby consents to jurisdiction and venue in the state and federal courts sitting in the Commonwealth of Massachusetts
7.6 Government Regulations – The EMC products and the technology included therein provided to Reseller are subject to governmental restrictions on exports from the U.S.; restrictions on exports from other countries in which such Products and technology included therein may be produced or located; disclosures of technology to foreign persons; exports from abroad of derivative products thereof; and the importation and/or use of such Products and technology included therein outside of the United States (collectively, "Export Laws"). Diversion contrary to U.S. law is expressly prohibited. Reseller shall, at its sole expense, comply with all Export Laws and EMC export policies made available to Reseller by EMC. Reseller represents that it is not a Restricted Person, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, North Korea, Sudan, Syria, or any other countries that may, from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency. Certain information, products or technology may be subject to the International Traffic in Arms Regulations (“ITAR”). This information, products or technology shall only be exported, transferred or released to foreign nationals inside or outside the United States in compliance with ITAR.
7.7 Notices – Any notices pertaining to this Agreement shall be sent to
Office of the General Counsel
176 South Street
Hopkinton, MA 01748
Fax for legal notices: 508.293.7780
Email for legal notices: email@example.com
7.8 Equitable Relief - Reseller acknowledges that its breach of Sections 2.0, 8.0, and 9.0 and sub-sections 4.2 and 4.3 may cause EMC irreparable damages which cannot be remedied in monetary damages in an action at law and that EMC shall be entitled to seek an injunctive relief.
8. ACCESS TO EMC WEBSITE
8.1 Scope and Grant of License – EMC maintains, from time to time, a website, currently identified as “EMC Powerlink,” which contains Information pertaining to EMC products and EMC services. EMC may grant Reseller a limited, non-exclusive, nontransferable, non-sublicensable right and license, during the period in which this Agreement is in effect, to access such site and to use the Information solely in accordance with the provisions of sub-section 8.2 below. All Information shall remain the property of EMC. Except as expressly stated herein, no other grant of right or license to use, under any patent, copyright or any other intellectual property rights is made from EMC to Reseller under this Agreement.
8.2 Restriction on Usage – Reseller shall use the Information obtained through such access only for the purposes of (i) marketing and delivery of EMC products obtained by Reseller from Distributor; (ii) development of Reseller services utilizing EMC products and EMC services; and/or (iii) assisting EMC or Distributor to sell and/or license EMC products and EMC services. Reseller shall make no other use thereof and shall use the Information only in a manner that inures to the benefit of EMC. Reseller shall not use the Information to engage in deceptive, misleading or unethical practices that are or might be detrimental to EMC or EMC products. Reseller shall not make any representations, warranties or guaranties to anyone with respect to the specifications, features or capabilities of EMC products of EMC Services that are inconsistent with the Information. Access to the Information shall be made available only to Reseller personnel that have completed the training, if any, designated by EMC; have a “need to know” such Information in order to fulfill the uses described above and have been assigned the necessary access and security codes to enable such personnel to use the website. EMC may change the access and security privileges and codes from time to time and shall promptly notify Reseller of such changes. Reseller shall promptly notify EMC of the termination or reassignment of any Reseller personnel who have been granted access hereunder.
8.3 Responsibility – Reseller shall be fully responsible to EMC for the full compliance of its personnel with its obligations under this Section 3.0.
APPLICABLE UPON ACCEPTANCE IN THE EMC Velocity PARTNER PROGRAM ONLY
9. LOGO LICENSE GRANT
9.1 Subject to and expressly conditioned upon compliance with the terms and conditions of this Agreement, EMC hereby grants to Reseller a nonexclusive, nontransferable, royalty-free, personal right to use the Logo, but only in connection with Reseller's marketing, advertising, distribution and/or sale, within the Territory, of the EMC products obtained under the product ordering agreement with the Distributor, and only in strict accordance with the current version of the EMC Program Graphic Standards (including usage guidelines), which are currently located at URL: http://powerlink.emc.com. EMC reserves the right to modify these standards and guidelines from time to time by posting such at such website.
9.2 Reseller may not use or reproduce the Logo in any manner whatsoever except as expressly permitted under this Agreement.
9.3 EMC may eliminate any country or jurisdiction from the Territory if EMC reasonably determines that use or continued use of the Logo may subject EMC or any other party to legal liability or may jeopardize or impair EMC's rights in the Logo. Upon written notice from EMC, Reseller shall cease all use of the Logo in any such jurisdiction.
9.4 EMC reserves the right to amend the Logo or to replace it with a different logo. Upon notice from EMC, Reseller shall cease use of the Logo as quickly as reasonably possible.
9.5 EMC retains all right, title and interest in and to the Logo. Except as explicitly granted in this Agreement, Reseller shall not have any rights in the Logo. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any EMC technology or proprietary right.
9.6 Reseller shall not (a) challenge EMC's ownership or use of the Logo; (b) attempt to register any portion of the Logo or any constituent elements; (c) remove, alter or add to the Logo; or (d) incorporate the Logo or any other EMC trademark into Reseller's product names, service names, company names, domain names, or any other similar designations. Reseller's use of the Logo inures to the sole benefit of EMC.
9.7 If, at any time, Reseller acquires any rights in, or trademark registrations or applications for the Logo or any of the EMC trademarks by operation of law or otherwise, Reseller will immediately and at no expense to EMC assign such rights, registration or applications to EMC, along with any and all associated goodwill.
9.8 Reseller shall indemnify EMC from and against all loss, cost, damage or expense resulting from Reseller's use of the Logo in violation of this Logo License, excluding only losses resulting from a claim of infringement that is covered by EMC's obligations pursuant to Section 13.0 below.
10. QUALITY, INSPECTION AND APPROVAL OF LOGO
10.1 It is the intent of EMC to periodically audit Reseller to verify that Reseller is in compliance with the then current EMC Program Graphic Standards (including usage guidelines) and this Agreement. EMC shall provide advance notice of an audit for the Logo (“Program Audit”). EMC may conduct such Program Audit itself or may appoint a third party to conduct the Program Audit. EMC shall pay the cost of the Program Audit. Reseller shall provide all reasonable assistance necessary for EMC or its designee to perform the Program Audit. EMC or its designee shall maintain the confidentiality of any proprietary information so designated by Reseller and disclosed by Reseller or discovered during the course of the Program Audit, with the exception of any information directly related to reporting the results of the Program Audit to EMC. If following such audit, EMC determines in its sole discretion that Reseller has not met any requirement of this Agreement, EMC shall notify Reseller of the noncompliance and Reseller shall immediately cease using the Logo until it remedied the situation, which EMC shall determine in its sole discretion.
10.2 At EMC's request, Reseller shall promptly supply EMC with suitable specimens of Reseller's use of the Logo.
11. IDENTIFICATION AND USE OF LOGO
11.1 Reseller must use the Logo only in the exact form of approved camera-ready or electronic artwork received from EMC.
11.1 Reseller shall not (i) use the Logo in a manner that derogates EMC's reputation or EMC's rights in the Logo; and (ii) take any action that will interfere with or diminish EMC's rights therein at any time.
12. LOGO RELATED WARRANTIES AND DAMAGES
12.1 EMC MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE LOGO OR ANY INTELLECTUAL PROPERTY RIGHT LICENSED HEREUNDER, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY, OR WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, OR PERFORMANCE, OR USAGE OF TRADE, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS AGREEMENT.
12.2 IN NO EVENT SHALL EMC BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING LOSS OF BUSINESS OR BUSINESS PROFITS) ARISING FROM OR RELATED TO RESELLER'S USE OF THE LOGO OR TERMINATION OF THIS LOGO LICENSE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, OR STRICT LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EMC BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH RESELLER'S USE OF THE LOGO IN VIOLATION OF THE TERMS OF THIS AGREEMENT.
13. INFRINGEMENT OF LOGO
13.1 Reseller shall promptly notify EMC of any suspected infringement or challenge to the Logo or any constituent elements.
13.2 EMC shall, at EMC's expense, defend Reseller against any third party claim made against Reseller that the Logo infringes any trademark rights enforceable in the Territory, and pay the resulting costs and damages awarded against Reseller by a court of competent jurisdiction, provided Reseller (i) notifies EMC promptly in writing of such claim, (ii) grants EMC sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to an EMC request for assistance. Should the Logo become, or in EMC's opinion be likely to become the subject of such a claim, EMC shall, at its option and expense, (a) procure for Reseller the right to continue use the Logo; (b) replace or modify the Logo to make it non-infringing, and in which case Reseller shall cease use of the earlier version of the Logo; or (c) terminate this Logo License. EMC shall not have any liability for any intellectual property claim based on Reseller's use of the Logo after EMC's notice to Reseller that Reseller shall cease use of the Logo.
13.3 THIS SECTION 13.0 STATES EMC'S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENT CONCERNING THE LOGO OR ANY OTHER INTELLECTUAL PROPERTY RIGHT.
RMSA Rev 070508