Cumulocity

PARTNER MASTER TERMS AND CONDITIONS

These MASTER Partner Terms and Conditions (the “Partner Terms”) shall apply to the Parties’ business relationship regarding Cumulocity’s Offerings, together with any services, products or deliverables offered by the Partner in connection with Cumulocity's offerings. Further details of the Partner Relationship will be agreed upon in a Partner Addendum to be executed by the Parties. These Partner Terms together with the Partner Addendum will constitute the Partner Agreement.

1. RELATIONSHIP 

The Parties intend to cooperate in the framework of Cumulocity’s Partner Program for the purpose of marketing, promoting, selling or using Cumulocity’s Offerings in the field of Technology (Technology Partner Addendum),  as Consultancy / System Integration partners (Implementation Partner Addendum), as a Device Partner (Device Partner Addendum) or in other fields. 

The Parties shall cooperate on a non-exclusive basis. Either party may design, develop, manufacture, acquire, purchase or market competitive products, services and/or deliverables unless explicitly otherwise stated in the Partner Addendum. The Parties are independent contractors and have no power to bind or incur obligations on the other Party’s behalf. The Partner Agreement shall not constitute a joint venture, partnership or a similar corporate relationship.

2. COMPLIANCE WITH LAWS, ETHICS AND DATA PROTECTION

Compliance with laws

The Parties shall comply with all applicable laws, rules and regulations.

Export control and sanctions compliance

The Partner shall not use, access, download, provide access to, or otherwise export or re-export the Cumulocity’s Offerings, in whole or in part, other than except as explicitly allowed in this Partner Agreement and in compliance with all applicable export laws, regulations, and restrictions (whether international, federal, state, local, or provincial). Cumulocity reserves the right to not perform any obligation under the Partner Agreement if prohibited by such export laws, regulations, or restrictions. Without limiting the generality of the foregoing, Partner represents and warrants that: (a) Partner or its officers or directors are not a citizen, national, or resident of, and is not under control of, the government of Cuba, Iran, North Korea, Sudan, Syria, nor any country to which the European Union (EU) or the United States have prohibited export; (b) Partner or its officers, directors or shareholders are not listed on the EU’s 'Consolidated List of persons, groups and entities subject to EU financial sanctions' or on the United States Department of Treasury lists of 'Specially Designated Nationals', 'Specially Designated Terrorists', or 'Specially Designated Narcotic Traffickers', nor is Partner or are its officers, directors or shareholders listed on the United States Department of Commerce 'Denied Persons List' or 'Entity List'; and © Partner will not download, grant access to, or otherwise export or re-export Cumulocity’s Offerings, directly or indirectly, to (i) the countries, or the citizens, nationals or residents of the countries, referenced in subsection (a) or (ii) the persons, groups, or entities referenced in subsection (b).

Code of Conduct

Partner hereby agrees to comply with the Cumulocity Code of Conduct. Partner must accept the Cumulocity Code of Conduct before the Partner can be accepted into the Cumulocity Partner Program. 

Cumulocity may carry out an audit in order to monitor the Partner’s compliance during the term of the Partnership Agreement, at its own cost and no more than once per year. Non-compliance by the Partner with the obligations set out in the Cumulocity Code of Conduct authorizes Cumulocity to terminate the Partner Agreement.

Data Security, Data Protection

The Parties shall comply with all applicable data security laws, rules and regulations and data security industry best practices and data protection laws, rules and regulations. The Parties may enter into appropriate agreements as mutually agreed in a written Data Processing Agreement.

3  PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

The Parties shall respect each other’s Intellectual Property Rights.

No provision of the Partnership Agreement shall be interpreted as giving the other Party a license to use, sell, distribute or modify in any way the other Party’s intellectual property, unless explicitly stated otherwise in a mutually agreed written Partner Addendum.

4. CONFIDENTIALITY

Each Party will have access to confidential or non-public information (“Confidential Information”) of the other Party or third parties. Confidential Information disclosed is proprietary and will remain the sole property of the disclosing Party or such third parties. The Software and Documentation are Cumulocity’s Confidential Information. Confidential Information will not include information that: (i) is or becomes publicly available or enters the public domain through no fault of the recipient; (ii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations; (iii) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure, as proven by documentary evidence; (iv) is independently developed by the recipient; or (v) is approved, in writing, for release or disclosure without restriction. 

Each Party agrees to: (i) use Confidential Information only for the purposes of this Agreement; (ii) hold Confidential Information in confidence and protect it from dissemination to, and use by, any third party; (iii) not to create any derivative work from Confidential Information; (iv) restrict access to Confidential Information to its personnel, affiliates, agents, and contractors who need access to such Confidential Information and who have agreed in writing to treat such Confidential Information in accordance with this Agreement; and (v) return or destroy all Confidential Information of the other Party upon termination or expiration of this Agreement. If the recipient is required by law or valid legal order to disclose Confidential Information, the recipient will, unless prohibited by law, give reasonable notice of such demand to allow the disclosing Party to seek a protective order or other remedy.

5. JOINT MARKETING ACTIVITIES

In case the Parties agree on marketing and promotion efforts for Cumulocity’s Offerings they will use commercially reasonable efforts to market and promote Cumulocity’s Offerings including, but not limited to, promotion in outbound marketing materials (such as websites, blogs, etc.) as agreed between the Parties in writing. Each of the Parties agrees that, without the other Party’s prior written consent (which may be via email), the Parties will not make any verbal or written statements about Cumulocity’s Offerings which are inconsistent with the applicable documentation. Except as otherwise expressly agreed to in writing, any feedback or other information that a Party may wish to publish, communicate, describe, or otherwise publicly disclose in any manner whatsoever related to the activities conducted under these Partner Terms will require the other Party’s prior review and written approval.

Cumulocity grants to Partner a non-transferable, non-exclusive, non-sublicensable, revocable and royalty-free license to use Cumulocity’s trade name, trademarks, logos, and other identifying information (“Cumulocity’s Marks”) on marketing literature, advertising, and promotions during the term of the Partnership Agreement. Partner shall comply with all of Cumulocity’s policies regarding the use and display of Cumulocity’s name, trademarks, logos, and other identifying information provided to Partner in writing.

6. MUTUAL INDEMNIFICATION

The Parties agrees to indemnify, hold harmless and defend each other from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with: (a) Party’s acts or omissions, (b) negligence, intentional misconduct or fraud or misrepresentation by a Party in the performance under the terms of the Partner Agreement; or © misuse of Cumulocity’s Marks.

The indemnified party agrees to give the indemnifying party prompt written notice of such claim. If the indemnified party elects to require the indemnifying party to provide legal defence, the indemnified party shall give the indemnifying party: (1) authority to control and direct the defence and/or settlement of such claim; and (2) such information and assistance as indemnifying party may reasonably request, at the indemnified party’s expense, in connection with such defence. The indemnifying party shall not settle any third-party claim against the indemnified party unless such settlement completely and forever releases the indemnified party with respect thereto or unless the indemnified arty provides its prior written consent to such settlement.

7.MISCELLANEOUS 

Payment

All payments are due and payable within 30 days of date of invoice and are non-refundable, non-cancellable, and irrevocable except as expressly stated in the Partner Agreement. All payments shall be made without recoupment or set-off. Partner will pay all taxes and duties including, but not limited to, sales, use, rental, receipt, personal property, and other taxes (but excluding taxes based upon Supplier’s income), which may be levied or assessed in connection with the Partner Agreement. Any payment that is not paid in accordance with the terms of the Partner Agreement will accrue interest at the rate of 1.5% per month, accruing daily from the date due (both before and after judgement).

Records

For three (3) years after termination of the Partner Agreement, the Parties will maintain at its principal place of business records with respect to payments pursuant to the Partner Agreement and all other data needed for verification of amounts that were paid or payable under the Partner Agreement and, at the request of the other Party, will provide reasonable access to the same.

TERM AND TERMINATION

This Agreement shall commence on the Effective Date and shall extend for a period of one (1) year. This Agreement shall automatically renew for additional one (1) year terms after the expiration of the initial term.

Either Party may terminate the Partner Agreement with or without giving a reason upon three (3) months’ prior written notice at any time. 

Upon termination or expiration of the Partner Agreement, each Party shall immediately discontinue all use of the other Party’s Confidential Information, including Cumulocity’s Offerings; return to the other Party or, at the other Party’s option, delete, destroy, all copies of such other Party’s Confidential Information then in its possession including from its computer storage or any other media, including, but not limited to, online and off-line libraries; and provide written confirmation of such deletion on the other Party’s request.

Partner must make reasonable effort to transfer Customers who pay Partner for Maintenance and Support Services provided by Cumulocity within twelve months after termination of the Partner Agreement. Until Maintenance and Support Services are transferred from Partner to Cumulocity, Partner will continue to be obliged to pay the corresponding maintenance fees to Supplier. 

Termination or expiry of this Agreement for whatever reason will not affect any accrued rights or liabilities as at the date of termination, including the payment of any sums outstanding under this Agreement.

Survival of Clauses

The provisions of this Clause and the Clauses Confidentiality, and Effect of Termination and Dispute Resolution shall remain in full force and effect as between the parties notwithstanding any termination or expiry of this Partner Agreement.

Assignment

No Party may assign, transfer, delegate, or sublicense any of its rights or obligations under the Partner Agreement without the other Party’s prior written consent. Any assignment, transfer, delegation, or grant of sublicense without the other Party’s consent is null and void.

Dispute Resolution

In the event of a dispute, each Party will appoint a senior management representative to negotiate in good faith to resolve the dispute before commencing formal proceedings. Formal proceedings may not commence until 30 days have passed since the initial request to negotiate the dispute; provided, however, that a Party may file for formal proceedings at any time to avoid the expiration of any limitations period, preserve a superior position with respect to other creditors, or apply for interim, injunctive, or equitable relief.

Notices

All notices and demands relating to the Partner Agreement must be in writing and sent to the other Party at the address set out in the applicable Form to the attention of such Party, unless a different address or recipient is designated by a Party. All notices and demands will be effective upon delivery when: (i) delivered in person with signed receipt; (ii) sent by registered mail (return receipt requested); or (iii) sent by nationally recognized trackable carrier service.

Entire Agreement; Waiver; Order of Precedence; Severability

The Partner Terms together with the Partner Addenda constitute the entire agreement between the Parties (the Partner Agreement) and supersede all prior written and oral agreements and communications related to the subject matter of the Partner Agreement. Any modifications of the Partner Agreement must be in writing and mutually signed by the duly authorized representatives of the Parties. Any waiver under the Partner Agreement must be in writing and signed by the Party granting the waiver. A waiver granted under the Partner Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other provision of the Partner Agreement. No failure or delay by either Party in exercising any right under the Partner Agreement will constitute a waiver of that right. In the event of a conflict between any provision of the Partner Terms and any Partner Addenda, the Partner Addenda will take precedence over the Partner Terms. If any provision of this Agreement is held invalid or unenforceable, the provision will be limited to the minimum effect necessary, and the remaining provisions of the Partner Agreement will remain binding and enforceable. 

8. DEFINITIONS