Schedule 1 –Partner Program Terms
1.1 Promotion. Subject to this agreement, TigerGraph appoints Partner, and Partner agrees to act as, a nonexclusive representative for the Products, solely to End Users within the Market and Territory. “End Users” means customers that acquire the Products for their own internal use, and not for distribution or for offering services to third parties. Except to the extent expressly provided in Schedule 2 to this agreement, nothing in this agreement shall be construed as limiting the marketing or distribution activities of TigerGraph or its appointment of other dealers, distributors, licensees, agents or representatives of any kind in the Territory and/or the Market.
Partner may not use the trade names, trademarks, logos and designations in or associated with the Products (“Marks”) without TigerGraph’s prior written consent. Partner shall not otherwise use or register (or make any filing with respect to) any trademark, name or other designation relevant to the subject matter of this Agreement anywhere in the world. Partner shall not contest anywhere in the world the use by or authorized by TigerGraph of any trademark, name or other designation or application or registration therefor, whether during or after the term of this Agreement.
TigerGraph reserves all other rights, title and interest in and to the Products and Marks not expressly granted to Partner under this agreement. Partner shall not, and shall not allow any End User, or other third party to (1) modify, copy, or otherwise reproduce the Products in whole or in part; (2) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the software used in the Products; (3) provide, lease, or lend the Products to any third party, except as expressly authorized hereunder; (4) modify or create a derivative work of any part of the Products; or (6) use the Products for any unlawful purpose.
4. Business Practices
4.1 Contacts. Each party will designate a technical contact, to be the other party’s primary contact for all technical matters relating this agreement, and a business contact, to be the other party’s primary contact for all other day-to-day matters arising under this agreement.
4.2 Business Practices. Partner shall use reasonable efforts to promote the Products on a continuing basis through the term of this Agreement, solely within the Territory and Market. Partner shall comply with good business practices and all applicable laws and regulations and shall diligently perform all other duties as mutually agreed upon herein. Partner shall conduct business in a lawful manner that reflects favorably on TigerGraph and its products, and Partner shall make no false, misleading, or inaccurate representations or advertisements regarding the Products or TigerGraph.
4.3 Forecasts. At TigerGraph’s request, Partner will provide monthly good faith forecasts and status reports on Partner efforts and anticipated orders.
5. Term & Termination
5.1 Term. Unless terminated sooner or extended according to its terms, this Agreement will end after one year. Each party acknowledges and agrees that the other has no obligation to renew this Agreement. If the parties continue to do business with each other after such termination without full documentation of an extension to the initial term, the relevant terms of this agreement will continue to govern the relationship unless otherwise expressly agreed in writing and except that the relationship may be terminated unilaterally by either party merely by ceasing to do business with the other or providing written notice of its intention to do so.
5.2 Termination for Cause. Either party may terminate this agreement, at any time, in the event that the other party breaches any material term of this agreement and fails to cure such breach within 30 days following notice from the non-breaching party. In addition, either party may terminate this agreement, at any time, in the event that the other breaches any payment-related provision and fails to cure such breach within 30 days following notice thereof from Partner.
5.3 Effect of Termination. Upon termination, all rights and licenses under this agreement shall terminate and (1) Partner will immediately discontinue any efforts to solicit new End Users, any use of the Marks, or any other representations or actions from which it might be inferred that any relationship exists between Partner and TigerGraph; (2) Partner will return to TigerGraph all copies of the Products and all related documentation, except to Partner provide post-termination maintenance and support to End Users to the extent expressly permitted under this agreement; and (3) each party will promptly return to the other all of the other party’s Confidential Information within its possession or control, and will certify in writing that it has complied with its obligations to return all such Confidential Information. In addition, upon any termination of this agreement, the payment dates of all amounts due TigerGraph will automatically be accelerated so that they will become due and payable on the effective date of termination, even if longer terms had been provided previously.
5.4 Survival. Except as expressly provided otherwise in this agreement, any provision of this agreement that contemplates performance or observance subsequent to termination or expiration of this agreement shall survive termination or expiration and continue in full force and effect for the period so contemplated including, but not limited to, this section as well as provisions relating to warranty disclaimers, intellectual property ownership, payment terms, confidentiality, and limitations on liability.
5.5 No Termination Liability. Partner acknowledges and agrees that it has no basis for expecting and has received no assurance that its business relationship with TigerGraph will continue beyond the stated term of this agreement. Each of the parties have considered the possibility of such expiration or termination and the possibility of loss and damage resulting therefrom in making expenditures pursuant to the performance of this agreement. It is the express intent and agreement of the parties that neither will be liable to the other for damages or otherwise by reason of the expiration or termination of this agreement as provided for herein.
Except as expressly set forth herein, this agreement does not grant either party any rights, implied or otherwise, to the other’s intellectual property. As between the parties, TigerGraph owns all IP Rights in the proprietary components of the Products, including error corrections, modifications and updates to that software and all modifications or derivative works of them. “IP Rights” means all current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights. Partner will use its reasonable efforts to protect TigerGraph’s IP Rights in the Products and will promptly report to TigerGraph any infringement or other violation of such rights of which Partner becomes aware.
7.1 Definition. Each party acknowledges that during the term of this Agreement it will receive information from the other party that such other party regards as confidential and proprietary. As used in this Agreement, “Confidential Information” means (1) the Products; (2) any information designated as confidential orally or in writing by either party; or (3) any information that the receiving party knows, or has reason to know, is confidential or proprietary based upon its treatment by the disclosing party. In addition, Confidential Information includes any information related to any products or business of each party, including, but not limited to, product plans, product designs, product costs, product prices, product names, finances, marketing plans, business opportunities, research, development, and know-how.
7.2 Confidentiality Obligation. Each party shall use Confidential Information only for the purposes of this Agreement and shall not disclose it to any third party. As to the other party’s Confidential Information, each party shall take reasonable steps (1) to prevent the unauthorized use, dissemination or publication of the Confidential Information; (2) not to divulge Confidential Information to any third party; (3) not to make any use of such Confidential Information except for the purposes contemplated under this Agreement; (4) to bind its employees and independent contractors (by agreement or otherwise) to obligations prohibiting such employees and independent contractors from revealing such Confidential Information (except to the extent required by such employee or independent contractor to carry out its obligations under this Agreement); and (5) to require that such Confidential Information be kept in a secure location or manner. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this agreement: (A) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement; (B) on a confidential basis to its legal or professional financial advisors; (C) as required under applicable securities regulations; or (D) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.
7.3 Exclusions. This Agreement imposes no obligation with respect to Confidential Information which: (1) is a part of or enters into the public domain; (2) was already in the recipient’s possession prior to the date of disclosure other than by breach of this Agreement; (3) is rightfully received from a third party without any duty of confidentiality; or (4) is independently developed without reference to the Confidential Information of the disclosing party.
7.4 Feedback. TigerGraph welcomes suggestions and feedback. If Partner provides any suggestions, feedback, or improvements to the Products, TigerGraph will have the right to use and have others use such suggestions, feedback, and improvements for any purpose.
TigerGraph warrants that the Products substantially conform to the documentation provided at https://docs.tigergraph.com/ (TIGERGRAPH MAKES NO WARRANTIES TO PARTNER UNDER THIS AGREEMENT WITH RESPECT TO THE PRODUCTS AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
9.1 Indemnification by TigerGraph. TigerGraph shall defend or settle at its sole expense any claim brought against Partner, its directors, officers, or employees by a third party alleging that the Products as delivered by TigerGraph infringe any U.S. patent, copyright, or trade secret of a third party, and TigerGraph shall pay all damages finally awarded or costs of settlement of such claim provided that Partner: (1) provides TigerGraph prompt written notice of any claim (provided that failure or delay in giving such notice shall not reduce or otherwise relieve TigerGraph of any liability it may have under this section, except to the extent that TigerGraph is prejudiced thereby); (2) gives TigerGraph sole control of the defense and settlement thereof (except that (A) Partner shall at all times have the right at its sole option to participate in the defense and settlement at its own expense; and (B) without Partner’s prior written consent, TigerGraph shall not enter into any settlement that would require Partner to make any payment or to accept any non-monetary obligations defined as contractual prohibitions against use and other mandatory conducts, which approval shall not be unreasonably withheld); and (3) provides all reasonable assistance in connection with a claim.
9.2 Injunctions. If Partner’s rights to use the Products is, or in TigerGraph’s opinion are likely to be, enjoined due to an indemnified claim above, then TigerGraph may, at its sole option and expense: (1) procure for Partner the right to continue using the Products according to the terms of this Agreement, (2) modify the Products such that they operate with materially equivalent functionality without infringing or misappropriation, or (3) if neither of the foregoing options is commercially reasonable, terminate this agreement.
9.3 Exclusions. The foregoing indemnity does not extend to claims arising from or relating to (1) modification of the Products other than by TigerGraph; (2) use of the Products in combination with any third party software or hardware to the extent the alleged infringement would not have occurred without the combination; or (3) the allegedly infringing activity continues after TigerGraph has informed Partner in writing of and made available at no additional charge a newer version of the Products that would have avoided the alleged infringement. The preceding clauses (1) through (3) are referred to collectively as “Indemnity Exclusions”.
9.4 THE FOREGOING PROVISIONS OF THIS SECTION 9 (INDEMNIFICATION) STATE TIGERGRAPH’S SOLE AND EXCLUSIVE LIABILITY AND PARTNER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD-PARTY PROPRIETARY RIGHTS OF ANY KIND.
9.5 Indemnification by Partner. Partner will defend or settle, indemnify and hold TigerGraph harmless from any liability, damages and expenses (including court costs and reasonable attorneys’ fees) arising out of or resulting from any third-party claim based on or otherwise attributable to: (1) Partner’s reckless or intentional misconduct; (2) any misrepresentations made by Partner with respect to TigerGraph or the Products; (3) Partner’s products or services; or (4) an Indemnity Exclusion.
10. Liability Limitation
10.1 Disclaimer. Except for liability arising out of sections 3 (Restrictions) and 7 (Confidentiality), neither party will be liable to the other party or to any third party for any consequential, indirect, special, incidental or exemplary damages arising out of this Agreement, whether foreseeable or unforeseeable (including, but not limited to, damages for loss of data, goodwill, profits, investments, use of money or use of facilities; interruption in use or availability of data; stoppage of other work or impairment of other assets) even if such party has been advised of the possibility of such damages.
10.2 Cap. Except in the case of a breach of section 7 (Confidentiality) and in the case of a party’s obligation under section [9 (Indemnification), under no circumstances shall either party’s liability to the other party or to any third party arising out of or related to this agreement or the Products exceed the greater of $100,000 or the cumulative fees paid or payable under this agreement, regardless of whether any action or claim is based on contract, warranty, indemnity, negligence, strict liability or other tort or otherwise.
11.1 Amendment. This Agreement may be amended or supplemented only by written agreement that refers explicitly to this agreement and is signed by both parties.
11.2 Assignment. This agreement may not be assigned by either party by operation of law or otherwise, without the prior written consent of the other party, which consent will not be unreasonably withheld. Such consent is not required in connection with the assignment of the agreement by TigerGraph pursuant to a merger, acquisition or sale of all or substantially all of its assets.
11.3 Entire Agreement. Except as expressly agreed to otherwise in writing by the parties that references this agreement, this agreement constitutes 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. In interpreting this agreement, the cover sheet, these Partner Program Terms, and any other documents or terms shall take precedence in that order in the event of a conflict, to the extent of the conflict. No term or condition contained in a purchase order or similar document will apply unless specifically agreed to by TigerGraph in writing, even if TigerGraph has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by TigerGraph.
11.4 Export Controls. Partner agrees to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and to ensure that the Products and Partner’s products and services are not, in violation of any Laws, exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
11.5 Force Majeure. Neither party will be liable under this agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, storm, earth quake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control.
11.6 Governing Law; Arbitration; Venue. This agreement is to be construed in accordance with and governed by the internal laws of the State of California without regard to its conflict of laws principles, and will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, any controversy, claim or action arising out of or relating to this agreement shall be settled by binding arbitration under the rules of the American Arbitration Association by 3 arbitrators appointed in accordance with such rules. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in San Mateo County, California for any action permitted under this section, challenge to this section, or judgment upon the award entered.
11.7 Independent Contractors. This agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.
11.8 Non-proprietary Components. TigerGraph provides the non-proprietary components of the Products without warranty and subject to their applicable Apache license or other terms.
11.9 Notices. All notices required or permitted under this agreement will be in writing and delivered by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth on the cover sheet above or to such other address as may be specified by either party to the other in accordance with this section.
11.10 Press Releases. TigerGraph may use Partner’s name and logos in its marketing program, including use on TigerGraph’s company website, marketing literature, and in press releases.
11.11 Severability and Waiver. In the event that any provision of this agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this agreement, while the remainder of this agreement will continue in full force. The waiver by either party of any default or breach of this agreement will not constitute a waiver of any other or subsequent default or breach.
11.12 Taxes. Partner shall pay all taxes and duties assessed in connection with this Agreement and its performance, except for taxes payable on TigerGraph’s net income. The parties shall cooperate with each other to lawfully reduce the amount of taxes payable under this agreement.