Cumulocity

DEVICE PARTNER AGREEMENT

This Device Partner Agreement (“Device Program”) is selected by Partner when enrolled in the Cumulocity Partner Program. The following Terms and Conditions as specified below apply to the Device Program. 

RECITALS

WHEREAS, Cumulocity offers certain Cloud Products and Services (as defined below) and ancillary  services to end users (the “Cumulocity Offerings”); 

WHEREAS, Partner develops, markets and distributes  certain devices that Partner wishes to test with the Cloud Services to accomplish, verify and maintain compatibility; and

WHEREAS, the Parties would like to enter into this Device Program to allow Partner limited access to the Products and Cloud Services to test and certify their devices with the Products and Cloud Services; and

THEREFORE, in consideration of the foregoing, and of the mutual covenants and Device Programs herein, Cumulocity and Partner agree to the terms and conditions set forth in this Device Program.

INCORPORATED DOCUMENTS

The following documents are integral elements of this Device Program:

• The Partner Master Terms and Conditions;
• The Partner Cloud Services Agreement;
• The Device Partner Registration; and 
• The Cumulocity Acceptance and Welcome Letter.
  

TERMS AND CONDITIONS

1 DEFINITIONS

1.1 Definitions: Unless the context requires otherwise the following words and expressions shall bear the meanings set out below where used in this Device Program:

2 PARTICIPATION

2.1 Participation: After registering for the Device Program by self-registration at https://www.cumulocity.com/ecosystem/partners-registration/ Partner  is accepted into the Device Program by Cumulocity with a Welcome and Acceptance Letter, 

3 SCOPE OF THE DEVICE PROGRAM

3.1 Scope of Device Program: Subject to the terms of this Device Partner Program, Partner will receive access to the Cloud Services pursuant to the Partner Cloud Services Agreement and will participate in the Device Certification which is part of the Device Program Program. Partner may receive a notification of its participation in the Device Certification and a logo designated by Cumulocity. Cumulocity and Partner may agree to pursue mutual marketing efforts subject to a separate agreement. 

4 CLOUD SERVICES

4.1 Cloud Services Access: Participation in the Device Certification Program grants Partner access to the Cloud Services pursuant to the terms of the Partner Cloud Services Agreement.

5 CONFIDENTIALITY

5.1 Confidential Information:  The confidentiality terms in the Cumulocity Master Partner Terms and Conditions shall apply to this Device Program.

6 TERM

6.1 Term: This Device Program shall commence on the acceptance date of Cumulocity Partner Program as evidenced in the Welcome and Acceptance Letter and terminated as set forth below. 

7 TERMINATION

7.1 Termination: Either Party may terminate this Device Program upon three (3) months prior written notice at any time with or without giving reasons. Cumulocity may terminate this Device Program with thirty (30) days advance notification if the Cumulocity terminates the Device Program.

7.2 Compatibility Changes: The Certification provided lapses when the Partner has a hardware or software change that affects the compatibility with the Cloud Service. The compatibility Certification only applies to the level of Cumulocity’s products and services set forth in the Certification.. Upon any compatibility breaking change, Partner must notify Cumulocity promptly in order for Partner to recertify the hardware under the Device Certification Program. 

7.3 Effect of Termination: Termination or expiry shall be without prejudice to the rights of the parties accrued prior to the termination or expiry and shall not affect the rights and duties from the overall Cumulocity Partner Program. Upon termination of this Device Program, each Party shall

(a) immediately discontinue all use of the other Party’s Confidential Information and Cumulocity’s Marks;

(b) 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; and

(c) provide written confirmation of such deletion on the other Party’s request.

8 SURVIVAL : The provisions of this Clause and the Clauses titled Confidentiality, Limitation of Liability, Effect of Termination and Governing Law shall remain in full force and effect as between the parties notwithstanding any termination or expiry of this Device Program.

9 WARRANTIES

9.1 Cumulocity Warranties: Cumulocity represents and warrants that it has the full right and power to enter into and perform this Device Program without the consent of, or any notice to, any third party. Except as specifically provided in this Program, the Device Certification Program is provided “as is” without any warranty of any kind, either express or implied, including without limitation, warranties of merchantability, fitness for a particular purpose. Any warranty pertaining to the Cloud Services shall be as set forth in the terms of the Partner Cloud Services Agreement. 

9.2 Partner Warranties: The Partner represents and warrants that: (a) it has the full right and power to enter into and perform this Device Program without the consent of, or any notice to, any third party (b) all code is owned by Partner, (c) Partner will not upload any code or files that contain any viruses, worms, Trojan horses, or other malicious or destructive code, and (d) any code, file, data, or information uploaded by Partner (“Content”) does not infringe any third party intellectual property rights. 

9.3 Compatibility: The Parties understand and agree that there is no promise of compatibility, including but not limited to upward or downward compatibility or any other technical warranty regarding Cumulocity’s products and services. Partner understands that the Certification only means that the Devices certified are eligible for compatibility testing. It is not an operational guarantee, as the operation of Cumulocity’s products may require additional systems environment adjustments, code changes and configuration changes.

10 LIABILITY

The Parties are liable to each other within the scope of Clauses 3,and 6 of the Cumulocity Master Partner Terms and Conditions. The total liability of each party shall be limited to $ 50,000 in the aggregate. This shall not apply in cases of gross negligence, intentional misconduct or IP infringement.

11 DISPUTE RESOLUTION

In case no resolution can be achieved under of the Partner Master Terms and Conditions, the Parties agree that any and all disputes, claims or controversies arising out of or relating to this Partner Program shall be submitted to the Judicial Arbitration and Mediation Services, Inc. (JAMS) or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration according to the JAMS International Arbitration Rules and Procedures. 

Arbitration shall be held in the English language before one arbitrator. No discovery shall be held. The proceedings shall be confidential. Each Party shall bear its own costs. Arbitration fees shall be equally borne by each Party. 

Judgment upon the award rendered by the Arbitrator(s) may be entered by any court having jurisdiction thereof.

12 NOTICES

All notices and demands relating to this Agreement must be in writing and sent to the other Party: (a) if to Cumulocity, at Cumulocity GmbH, Marc-Chagall-Strasse 2, 40477 Düsseldorf to the attention of the Legal Department and (b) if to Partner, at the email address Partner provided on the sign-up webpage. 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); (iii) sent by nationally recognized trackable carrier service; or (iv) on the date sent by email.