IMPORTANT – PLEASE READ CAREFULLY Reseller Marketing Support Agreement
The following Reseller Marketing Support Agreement (the “Agreement” or “RMSA”) contains the legal agreement between the “Solution Provider” (meaning the organization identified in the Reseller Application in which this Agreement is included) and “EMC” (which means (i) EMC Corporation if Solution Provider is located in the United States; (ii) the local country EMC sales subsidiary, if Solution Provider is located in a country in which EMC Corporation has a local sales subsidiary; and (iii) EMC Information Systems International, if Solution Provider is located outside the United States and in a country in which EMC Corporation does not have a local sales subsidiary. Notwithstanding the foregoing, EMC represents that it is authorized by EMC Corporation to include the Logo License in Section 10 below that is granted by EMC Corporation. By clicking on the “I Accept” button set forth below you are representing to EMC that you are authorized to bind the Solution Provider and are agreeing on behalf of the Solution Provider that the terms of this Agreement shall govern the relationship of the parties with regard to Solution Provider's acceptance, if applicable, in the EMC Business Partner Program for Solution Providers (“Program”). EMC reserves the right to limit acceptance to the Program. Solution Provider is not a member of the Program and this Agreement and the Logo license grant shall not become binding until the date (the “Effective Date”) that EMC, or the EMC subsidiary providing EMC products for use in the country in which Solution Provider is located, sends Solution Provider notice of acceptance to the Program. Such notice(s) will be sent to the email address and contact provided by the Solution Provider in the Reseller Application. EMC products shall be obtained by Solution Provider under Solution Provider'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:
"Information" means all information contained on the EMC “Powerlink” website and the Partner Portal or such other website as EMC may designate from time to time.
"Logo" means the EMC logo designated by EMC as appropriate for Solution Provider’s status that can be accessed by Solution Provider via its connection to the applicable EMC website, which website is currently located at URL: http://brand.emc.com/BrandGuide/brand-elements/emc-logo/.
"Reseller Application" means the completed application form submitted by Solution Provider and approved by EMC in connection with Solution Provider’s authorization as a reseller and/or participation in the EMC Business Partner Program for Solution Providers, or the successor thereto, as designated by EMC.
"Territory" means the country (ies) in which Solution Provider is authorized by the Distributor to market EMC products as identified in the Reseller Application approved by EMC.
SOLUTION PROVIDER REPRESENTATION. Solution Provider warrants to EMC that as of the date Solution Provider submits the Reseller Application to EMC, Solution Provider either has, or is in the process of establishing, an agreement with a Distributor(s) to enable Solution Provider to obtain EMC products from that Distributor(s) and remarket the products as part of transactions in which Solution Provider 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. Solution Provider agrees that EMC may disclose the information on the Reseller Application and the terms of this RMSA to Distributor(s).
SOLUTION PROVIDER TRAINING OBLIGATIONS.
Marketing, Sales, and Technical Training. Solution Provider 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 Program (if applicable), currently located at URL: http://powerlink.emc.com or the Partner Portal at http://partner.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. Solution Provider shall also be responsible for its transportation and living expenses associated with the attendance of Solution Provider’s representatives at the training. Enrollment and completion of training courses must be made in accordance with the EMC Program requirements available at the EMC web site or Partner Portal. Failure to comply with the above training and certification requirements entitles EMC to terminate the RMSA for cause without notice to Solution Provider.
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 the training becomes reasonably available form EMC.
Acknowledgement. Solution Provider acknowledges that this RMSA does not authorize Solution Provider to perform implementation, installation or support services for any EMC product.
TERM AND TERMINATION.
Commencement. This RMSA shall commence upon the Effective Date and unless terminated in the manner set forth below, shall remain in effect for as long as Solution Provider has a then current product ordering agreement with the Distributor.
Termination. This RMSA 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 the Logo license if that breach has not been cured within the thirty (30) day period, or immediately if no cure is possible; (ii) by EMC immediately upon notice to Solution Provider if Solution Provider 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 Solution Provider’s then current business operations or credit profile; (iii) by EMC Corporation or EMC immediately upon notice to Solution Provider if Solution Provider breaches Section 9 or 10 below; (iv) by EMC immediately and automatically without notice of any kind from EMC in the event Solution Provider, 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.
Effect of Termination. Upon termination of the RMSA, the license and rights granted hereunder shall terminate completely. Solution Provider 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 Solution Provider 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 Solution Provider’s premises, or the premises of Solution Provider’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 Section 4.C shall limit EMC's right to pursue other legal remedies, including immediate court or judicial relief. 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, 6, 9, 10.A. 5) - 9), 10.D and 10.E will remain in effect after termination or expiration hereof.
Termination of Website Access. Except as otherwise provided below, the right to access the websites shall be valid for a term of one (1) year from the Effective Date or until Solution Provider’s agreement with Distributor expires or is terminated, which ever occurs later. Either party has the right to terminate access to or discontinue access to the Information, at its convenience, by sending the other written notice thereof. That notice will be effective upon receipt. EMC has the right to deny Solution Provider or Solution Provider 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 10.A, or (iii) Solution Provider’s agreement with Distributor, Solution Provider shall cease to use Information and must promptly return to EMC, at Solution Provider’s own cost, all tangible copies of the Information in its possession.
INFORMATION RELATED DISCLAIMER.
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.
SOLUTION PROVIDER INDEMNITY. Solution Provider shall indemnify EMC and hold EMC harmless against all claims asserted by third party’s against EMC as a result of Solution Provider’s failure to comply with its obligations hereunder or any acts or omissions of Solution Provider.
References.Each party shall not, and shall not authorize or assist another to, originate, produce, issue or release any written publicity, news release, marketing collateral or other publication or public announcement, relating in any way to this Agreement, without the prior written approval of the other, which approval shall not be unreasonably withheld; provided, however, that EMC may identify Solution Provider for reference purposes unless and until Solution Provider expressly objects in writing.
Notices. Any notices hereunder shall be in writing. For Solution Provider, such notices shall be sent to the address which Solution Provider states in this Agreement or on its Reseller Application. For Business related notices to EMC, such those notices shall be sent to the EMC channel operations group responsible for the relationship with Solution Provider. For legal related notices to EMC, those notices shall be sent to:
EMC Corporation, 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
Force Majeure. Except for payment of fees, neither party will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
Assignment. Solution Provider shall not assign this Agreement or any right herein or delegate any performance without EMC’s prior written consent, which consent shall not be unreasonably withheld. Any other attempted assignment or transfer by Solution Provider will be void.
Governing Law. Except for matters pertaining to the Logo, this Agreement is governed by the laws of the country in which EMC is located (excluding its conflict of law rules). All matters pertaining to the Logo are governed by the laws of the Commonwealth of Massachusetts and the Federal laws of the United States, excluding their conflict of law rules. To the extent permitted by law, the country determined in accordance with this Section 7. E will have exclusive jurisdiction for disputes arising out of or in connection with this Agreement. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
Waiver.Failure to enforce a provision of this Agreement will not constitute a waiver.
Independent Contractors.The parties shall act as independent contractors for all purposes under this Agreement. 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, and neither party shall have authority to speak for, represent or obligate the other party in any way without the prior written approval of the other party.
Partial Invalidity. If any part of this Agreement is held unenforceable, the validity of all remaining parts will not be affected.
Equitable Relief. Solution Provider acknowledges that its breach of this Agreement 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.
EXPORT CONTROL AND ANTI-CORRUPTION.
Export Control. All content, Services and the technology included therein (collectively the “Materials”) provided under this Agreement are subject to governmental restrictions on (i) exports from the United States; (ii) exports from other countries in which the Materials may be produced or located; (iii) disclosures of technology to non-U.S. persons; (iv) exports from abroad of products derivative of the Materials; and (v) the importation and/or use of the Materials outside of the United States or other countries (collectively, "Export Laws"). Customer must comply with all Export Laws. Diversion contrary to U.S. law or other Export Laws is expressly prohibited.
Anti-Corruption. Solution Provider understands the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (collectively the “Anticorruption Laws”) and their applicability to conduct in the Territory. Solution Provider agrees not to cause EMC to breach the Anticorruption Laws, and agrees to comply with the Anticorruption Laws as if they were applicable to Solution Provider. Solution Provider agrees to accurately record in its books and records any and all expenses related to EMC business. Solution Provider represents that none of the officers, directors, shareholders, or beneficial owners of Solution Provider are government officials. Solution Provider will grant EMC reasonable access to Solution Provider’s books and records concerning EMC business if EMC has reason to believe Solution Provider may have violated any Anticorruption Laws. Solution Provider agrees to provide EMC with periodic certifications, in a form and manner acceptable to EMC, of compliance with the Anticorruption Laws. EMC may terminate this Agreement immediately if EMC has reason to believe that Solution Provider has breached any Anticorruption Laws.
ACCESS TO EMC WEBSITE.
Scope and Grant of License. EMC maintains, from time to time, a website, currently identified as “EMC Powerlink,” and a Partner Portal at partner.emc.com which contain Information pertaining to EMC products and EMC services. EMC may grant Solution Provider 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 this Section 9. All Information shall remain the property of EMC and if marked “EMC Confidential” or similar, may not be disclosed to third parties or made public by Solution Provider. 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 Solution Provider under this Agreement.
Restriction on Usage. Solution Provider shall use the Information obtained through such access only for the purposes of (i) marketing and delivery of EMC products obtained by Solution Provider from Distributor; (ii) development of Solution Provider services utilizing EMC products and EMC services; and/or (iii) assisting EMC or Distributor to sell and/or license EMC products and EMC services. Solution Provider shall make no other use thereof and shall use the Information only in a manner that inures to the benefit of EMC. Solution Provider shall not use the Information to engage in deceptive, misleading or unethical practices that are or might be detrimental to EMC or EMC products. Solution Provider 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 Solution Provider 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 Solution Provider of such changes. Solution Provider shall promptly notify EMC of the termination or reassignment of any Solution Provider personnel who have been granted access hereunder.
Responsibility. Solution Provider shall be fully responsible to EMC for the full compliance of its personnel with its obligations under this Section 9.
Subject to and expressly conditioned upon compliance with the terms and conditions of this Agreement, EMC hereby grants to Solution Provider a nonexclusive, nontransferable, royalty-free, personal right to use the Logo, but only in connection with Solution Provider’s marketing, advertising, distribution and/or sale, within the Territory, of the EMC products obtained under the product ordering agreement with 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://brand.emc.com. EMC reserves the right to modify these standards and guidelines from time to time by posting such at such website.
Solution Provider may not use or reproduce the Logo in any manner whatsoever except as expressly permitted under this Agreement.
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, Solution Provider shall cease all use of the Logo in any such jurisdiction.
EMC reserves the right to amend the Logo or to replace it with a different logo. Upon notice from EMC, Solution Provider shall cease use of the Logo as quickly as reasonably possible.
EMC retains all right, title and interest in and to the Logo. Except as explicitly granted in this Agreement, Solution Provider 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.
Solution Provider 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 Solution Provider’s product names, service names, company names, domain names, or any other similar designations. Solution Provider’s use of the Logo inures to the sole benefit of EMC.
If, at any time, Solution Provider acquires any rights in, or trademark registrations or applications for the Logo or any of the EMC trademarks by operation of law or otherwise, Solution Provider will immediately and at no expense to EMC assign such rights, registration or applications to EMC, along with any and all associated goodwill.
Solution Provider shall indemnify EMC from and against all loss, cost, damage or expense resulting from Solution Provider’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 10.E below.
Upon termination of this RMSA, the logo license and rights granted hereunder shall terminate completely. Solution Provider 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 Solution Provider’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 Solution Provider's premises, or the premises of Solution Provider's agents, Solution Providers or distributors, by covering the Logo with an opaque label or by other methods pre-approved by EMC in writing. Nothing in this section shall limit EMC’s right to pursue other legal remedies, including immediate court or judicial relief.
Quality, Inspection, and Approval of Logo. It is the intent of EMC to periodically audit Solution Provider to verify that Solution Provider is in compliance with the then current EMC Program Graphic Standards (including usage guidelines) and this RMSA. EMC shall provide advance notice of an audit (‘Program Audit”). EMC may conduct such Program Audit itself or may appoint a third party to do so. EMC shall pay the cost of the Program Audit. Solution Provider 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 Solution Provider and disclosed by Solution Provider 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 Program Audit, EMC determines in its sole discretion that Solution Provider has not met any requirement of this RMSA, EMC shall notify Solution Provider of the noncompliance and Solution Provider shall immediately cease using the Logo until it remedies the situation, which EMC shall determine in its sole discretion. At EMC’s request, Solution Provider shall promptly supply EMC with suitable specimens of Solution Provider’s use of the Logo.
Identification and Use of Logo.Solution Provider must use the Logo only in the exact form of approved camera-ready or electronic artwork received from EMC. Solution Provider 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.
LOGO RELATED WARRANTIES AND DAMAGES
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.
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 SOLUTION PROVIDER’S USE OF THE LOGO OR TERMINATION OF THIS RMSA OR 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 SOLUTION PROVIDER’S USE OF THE LOGO IN VIOLATION OF THE TERMS OF THIS AGREEMENT.
INFRINGEMENT OF LOGO.
Solution Provider shall promptly notify EMC of any suspected infringement or challenge to the Logo or any constituent elements.
EMC shall, at EMC’s expense, defend Solution Provider against any third party claim made against Solution Provider that the Logo infringes any trademark rights enforceable in the Territory, and pay the resulting costs and damages awarded against Solution Provider by a court of competent jurisdiction, provided Solution Provider (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 Solution Provider the right to continue use the Logo; (b) replace or modify the Logo to make it non-infringing, and in which case Solution Provider 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 Solution Provider’s use of the Logo after EMC’s notice to Solution Provider that Solution Provider shall cease use of the Logo.
THIS SECTION 10.E STATES EMC’S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENT CONCERNING THE LOGO OR ANY OTHER INTELLECTUAL PROPERTY RIGHT.