NON-EXCLUSIVE OEM AGREEMENT
THIS NON-EXCLUSIVE OEM AGREEMENT (“AGREEMENT”) GOVERNS THE USE, DISTRIBUTION, AND REPRODUCTION OF THE ACRONIS OEM SOFTWARE (AS DEFINED BELOW). ACRONIS INTERNATIONAL GMBH, A SWISS COMPANY WITH ITS PRINCIPAL PLACE OF BUSINESS LOCATED AT RHEINWEG 9, 8200 SCHAFFHAUSEN, SWITZERLAND (“ACRONIS”) IS WILLING TO LICENSE THE OEM SOFTWARE TO Company, a Country company with its principal place of business located at Address City State Country (“OEM”), PROVIDED, AND ONLY ON THE CONDITION THAT, OEM ACCEPTS AND AGREES TO COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT APPLIES TO ANY UPDATES FOR THE OEM SOFTWARE, UNLESS OTHER TERMS SPECIFICALLY COVER THOSE ITEMS.
- 1.1 “Confidential Information”” shall mean certain commercially valuable, proprietary and confidential information with respect to the Disclosing Party’s business, including without limitation, information that may relate to the Disclosing Party’s financial information, financial projections, financial analysis, corporate organizational documents, business plans, forecasts, products, whether in distribution or under development, trade secrets, computer source code and object code, software and other product designs and specifications, methodologies, data, developments, ideas, improvements, product and marketing plans, customer and vendor lists, and other oral, visual or written information that the Disclosing Party designates as confidential or proprietary at the time of disclosure or that, under the circumstances surrounding disclosure, or by the nature of the information, would reasonably be understood by the Recipient to be confidential or proprietary, including without limitation any of the foregoing that is Confidential Information of the Disclosing Party’s customers, vendors, partners, licensors or other third party with respect to which the Disclosing Party has an obligation of confidentiality. Confidential Information will not include information that (a) is disclosed in a printed or web publication available to the public, is otherwise in the public domain at the time of disclosure, or becomes publicly known through no wrongful act or omission on the part of the Recipient, or (b) is obtained by the Recipient lawfully from a third party who is not under an obligation of secrecy to Disclosing Party or not under any similar restrictions as to use.
- 1.2 “Disclosing Party” shall mean the party that discloses the Confidential Information to the Recipient.
- 1.3 “Distributor” shall mean a distributor who is duly and currently authorized by Acronis to distribute OEM Software to OEM.
- 1.4 “Excluded License” shall mean any “open source” or other license that requires as a condition of use, modification and/or distribution of software subject to such license, that such software or other software combined and/or distributed with such software be: (a) disclosed or distributed in source code form; (b) licensed for the purpose of making derivative works; or (c) redistributable at no charge.
- 1.5 “End User” shall mean a direct or indirect customer of OEM who uses the OEM Software for his/her internal business purposes. The customer’s use will be conditioned on his/her acceptance and compliance with the terms and conditions set forth in the OEM Software’s end user license agreement.
- 1.6 “Effective Date” shall mean TODAYs DATE.
- 1.7 “Intellectual Property Rights” shall mean all patent rights, copyright rights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, and any other intellectual property rights, registered and unregistered, recognized by the laws of the United States, Switzerland and of each applicable jurisdiction.
- 1.8 “Marks” shall mean product names, trademarks, trade names, service marks, service names and logos that Acronis may adopt from time to time, including the name(s) of the OEM Software. A list of Acronis Marks is available at http://www.acronis.com/legal.html, which list may be amended from time to time in Acronis’ sole discretion.
- 1.9 “OEM Software” shall mean the object code version of the following computer software: Acronis True Image HD/Personal/Data Protection Editions, including System Builder Toolkit and Acronis True Image OEM for Windows Server with System Builder Toolkit, including any modifications or additions provided directly to OEM by Acronis and including related software documentation provided by Acronis.
- 1.10 “OEM Product” shall mean hardware or software product which is manufactured, distributed, sold, leased and/or provided by OEM to End Users and which is bundled with or integrated with the OEM Software.
- 1.11 “Party” shall mean Acronis or the OEM, referred to individually.
- 1.12 “Parties” shall mean Acronis and the OEM, referred to jointly.
- 1.13 “Recipient” shall mean the party to this Agreement, other than the Disclosing Party.
- 1.14 “Territory” shall mean Country, except for countries that are on the United States Treasury prohibited/embargoed countries list as updated from time to time. Notwithstanding the foregoing, Territory does not include any country that is not a part of the EMEA region, as defined by Acronis in its sole discretion.
- 2.1 Grant of License. Subject to the terms and conditions of this Agreement, Acronis grants OEM a non-exclusive, non-transferable license to reproduce and distribute the OEM Software solely as bundled with or integrated into the OEM Product for the term of this Agreement. Only one (1) copy of the OEM Software may be distributed with or as part of each OEM Product.
- 2.2 Reproduction. OEM may only reproduce the OEM Software to (a) make reasonable numbers of back-up copies, which can only be used to replace damaged or destroyed copies of the OEM Software as provided to OEM by Acronis, and (b) for distribution in accordance with this Agreement. OEM may sublicense the right of reproduction set forth in Section 2.1 to its contracted manufacturing service providers only on an as needed basis to permit such service providers to produce OEM Products as a service for OEM (and not for their own account or for other parties), provided that, each OEM service provider has agreed in writing to comply with the relevant terms of this Agreement.
- 2.3 End User Agreement. OEM may not distribute, or permit is distributors or resellers to distribute, any OEM Software to any End Users unless such End User agrees to be bound by the terms of the end user software license agreement of the OEM Software, the form of the text of which may be found at http://www.acronis.com/legal.html
- 2.4 Distributors/Retailers. OEM must require its distributors/retailers to acknowledge to OEM that they agree the OEM Software is licensed not sold. OEM must require its distributors/retailers to comply with all of the applicable obligations imposed on OEM under this Agreement with respect to the OEM Software and distribution of the OEM Software.
3. MARKETING OBLIGATIONS
- 3.1 Marketing Efforts. OEM will use its commercially reasonable efforts to market and distribute the OEM Software in the Territory.
- 3.2 Branding. Acronis authorizes OEM the limited use of Acronis Marks related to the OEM Software in association with the marketing of the OEM Software in the Territory during the term of this Agreement. The use of the trademarks must at all times comply with the terms and conditions of usage set forth on http://www.acronis.com/company/trademark.html as they may be updated from time to time by Acronis in its sole discretion.
4. LICENSE RESTRICTIONS
- 4.1 No Unauthorized Derivative Works. OEM will not modify, adapt, alter, translate, or create derivative works of the OEM Software in any manner and will not permit other parties to do any of the aforementioned acts.
- 4.2 Source Code. OEM shall not subject the OEM Software in whole or in part to any of the terms of an Excluded License.
- 4.3 Sublicensing. OEM shall not transfer or sublicense the OEM Software except as expressly defined in Section 2.
- 4.4 Limited Rights. OEM’s rights in the OEM Software will be limited only to those rights expressly granted in this Agreement.
- 5.1 OEM Products Support. Support for OEM Products will be provided directly by OEM.
- 5.2 Acronis End-User Support. Acronis will not provide direct End User support services for the OEM Products or the OEM Software. OEM may refer End Users seeking technical support services for the OEM Software to Acronis, which may choose, at its discretion, to provide End User support services to customers who (a) legally upgrade the registered OEM Software to the corresponding Acronis software title (which will be determined by Acronis in its sole discretion as a licensor), and (b) purchase support services in accordance with the terms and conditions posted by Acronis on its web site.
- 5.3 Support to OEM. Acronis will provide Acronis Warranty Support (distribution of updated builds that are available) and Self-Service Support (knowledge base and other OEM tools), including access to the Acronis OEM Portal to OEM during the term of this Agreement. Products. Acronis will not provide any other support to OEM.
6. PRODUCT DELIVERY
- 6.1 OEM Orders and Fulfillment. OEM will obtain OEM Software licenses and the OEM Software from the Distributor. Acronis or Distributor may also provide OEM with OEM Software registration materials, which OEM shall provide to End Users, and a list of serial numbers for End User OEM Software activation.
- 6.2 Order Limit. Notwithstanding anything to the contrary, OEM will not place orders under this Agreement in excess of Twenty Thousand Euro (€20,000) per calendar quarter. In the event that OEM needs to place an order in excess of this limit, OEM will contact an Acronis OEM sales representative.
- 7.1 License Payments for OEM Software. OEM will pay Distributor for the OEM Software pursuant to a separate agreement between the Distributor and the OEM.
- 7.2 Records and Audit. OEM shall keep clear and accurate records sufficient to prepare reports of the number of licensed copies of OEM Software distributed by OEM with the OEM Product. Acronis and/or its Distributor or representatives may from time to time audit the appropriate records of OEM to verify compliance with the terms and conditions of this Agreement. OEM will make prompt payment to Distributor for any OEM Software licenses discovered during the audit to have been distributed without proper payment to Distributor.
- 8.1 Terms of Agreement. All terms of this Agreement are confidential between the Parties hereto. Both Parties hereby agree not to divulge the content of this Agreement, including payment arrangements, to any third-party without the prior written approval of the other Party.
- 8.2 Confidential Information. Recipient agrees: (a) to hold the Confidential Information in confidence using reasonable security measures, (b) not to disclose the Confidential Information to any person outside its organization, (c) not to reverse engineer, decompile, disassemble or otherwise attempt to derive software source code, (d) not to remove any proprietary rights legend from, and upon Disclosing Party’s reasonable request to add such legend to, materials disclosing or embodying Confidential Information, and (e) to use the Confidential Information only in connection with Recipient’s performance under this Agreement. Recipient further agrees that it will disclose the Confidential Information received by Recipient under this Agreement only to persons within its organization with a need to know such Confidential Information in the course of the performance of their duties, and who are bound by confidentiality obligations at least as restrictive as those set forth herein. Neither Party makes any warranties regarding any Confidential Information disclosed under this Agreement, which is provided “as is” only, and neither party bears any responsibility for any expenses, losses or actions incurred or undertaken as a result of the receipt or reliance upon such Confidential Information. If any Confidential Information is required to be disclosed by a judicial or governmental order, the Recipient will promptly notify the Disclosing Party and take reasonable steps to assist in contesting such order or in protecting the Disclosing Party’s rights prior to disclosure.
9. PROPRIETARY RIGHTS
- 9.1 Acronis’s Ownership. The OEM Software is licensed not sold under this Agreement, notwithstanding any references herein to “sale” or “sold.” The OEM Software is and will remain the sole and exclusive property of Acronis and its suppliers, if any, whether the OEM Software is separate or combined with any other products. Acronis’ rights under this subsection will include, but are not limited to: (a) all copies of the OEM Software, in whole or in part; (b) all Intellectual Property Rights in the OEM Software; and (c) all modifications to, and derivative works based upon, the OEM Software. OEM will not delete or in any manner alter the Intellectual Property Rights notices of Acronis and its suppliers, if any, appearing on the OEM Software as delivered to OEM. As a condition of the license rights granted to OEM in this Agreement, OEM will reproduce and display such notices on each copy of any OEM Software.
- 9.2 OEM’s Duties. OEM will use its reasonable efforts to protect Acronis’ Intellectual Property Rights in the OEM Software and will report promptly to Acronis any infringement of such rights of which OEM is presently aware or becomes aware.
- 9.3 Third Party Infringement. Acronis reserves the sole and exclusive right at its discretion to assert claims against third parties for infringement or misappropriation of its Intellectual Property Rights in the OEM Software.
- 10.1 License. Subject to the terms and conditions of this Agreement, Acronis grants OEM a limited non-exclusive, non-transferable license for the term of this Agreement to use the Marks in OEMs marketing of the OEM Software, provided that such use is in accordance with Acronis’ trademark usage guidelines then in effect, which may be found at http://www.acronis.com/legal.html. Such use must reference the Marks as being owned by Acronis. Nothing in this Agreement grants OEM ownership or any rights in or to use the Marks, except in accordance with this license. The rights granted to OEM in this license will terminate upon any termination or expiration of this Agreement. Upon such termination or expiration, OEM will no longer make any use of any Marks. Acronis will have the exclusive right to own, use, hold, apply for registration for, and register the Marks during the term of, and after the expiration or termination of, this Agreement. OEM will neither take nor authorize any activity inconsistent with Acronis’ exclusive right.
- 11.1 Power and Authority. Each party represents and warrants that it has sufficient right and authority to enter into this Agreement.
- 11.2 Disclaimer of Other Warranties. The OEM Software, and all other materials provided to OEM by Acronis are provided “AS-IS”, except for the warranty provided in Section 11.1. To the maximum extent allowed by applicable law, the warranties in Section 11 are the sole and exclusive warranty of any kind, express or implied, that is made by Acronis in connection with the OEM Software provided under this Agreement, and Acronis specifically disclaims all statutory or other warranties, including, but not limited to, any implied warranties of merchantability, title, non-infringement, or fitness for a particular purpose or any implied warranties arising from usage of trade, course of dealing or course of performance. Without limiting the generality of the foregoing, Acronis specifically does not warrant that the OEM Software will meet the requirements of OEM or End User or that OEM Software will be accurate or error-free. To the extent that Acronis may not disclaim any warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum permitted under such law.
- 12.1 Indemnification by OEM. OEM will indemnify, defend and hold harmless Acronis and its affiliates and their respective officers, directors, shareholders, employees and agents (for purposes of this Section 12.1, collectively, “Acronis”) from and against any and all third party claims arising out of or in connection with (a) the gross negligence or willful misconduct of OEM and/or its employees, (b) OEM's breach of this Agreement, and (c) any misrepresentation made by OEM to any of its customers or any other third party with respect to the OEM Software. OEM shall have no obligation under this Section as to any action, proceeding, or claim unless: (i) OEM is notified of it promptly; (ii) OEM has sole control of its defense and settlement, provided that, without the consent of Acronis, Acronis will not be subject to any liability whatsoever for any settlement made by OEM, Acronis will not be liable for any litigation costs or expenses incurred by OEM, and if the settlement may have an adverse effect on Acronis, then OEM will not settle such action, proceeding, or claim; and (iii) Acronis provides OEM with reasonable assistance in its defense and settlement.
13. LIMITATIONS OF LIABILITY
- 13.1 Exclusion of Damages. In no event will either party be liable to the other party for any special, incidental, indirect, or consequential damages (including lost profits or lost data), whether based on breach of contract, tort (including negligence), product liability, or otherwise, and whether or not such party has been advised of the possibility of such damage. The total cumulative liability of Acronis in connection with this agreement and the OEM Software, whether in contract, in tort (including negligence) or otherwise, will not exceed the amount of license fees that OEM has paid to Acronis under this Agreement in the preceding twelve (12) months. The existence of multiple claims will not expand this limit. The parties acknowledge that the license fees reflect the allocation of risk set forth in this agreement and that Acronis would not enter into this Agreement without these limitations on its liability. The foregoing does not apply to breaches of Section 8 and any other infringement of either party’s intellectual property rights.
- 13.2 Failure of Essential Purpose. The Parties have agreed that the limitations specified in this Section 13 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
14. TERM AND TERMINATION
- 14.1 Term. The term of this Agreement will begin on the Effective Date and will continue for a period of one (1) year, and shall automatically renew for additional one (1) year periods thereafter, unless (a) either Party provides the other party with written notice of its decision to terminate this Agreement within ninety (90) days prior to the end of the then-current term, or (b) the Agreement is terminated in accordance with the provisions set forth below.
- 14.2 Events of Termination. Either party will have the right to terminate this Agreement if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice. Without any liability to OEM, Acronis will have the right to terminate this Agreement without cause in its sole discretion subject to a written notice.
- 14.3 Effect of Termination.
- a. Upon termination or expiration of this Agreement, OEM will immediately return to Acronis or (at Acronis’ request) destroy all copies of the OEM Software and other Confidential information in its possession or control, and an officer of OEM will certify to Acronis in writing that OEM has done so.
- b. Upon termination or expiration of this Agreement, all unshipped orders may be cancelled by Acronis in its sole discretion.
- c. Upon termination or expiration of this Agreement, OEM will immediately pay any amounts owing to Acronis under this Agreement.
- 14.4 No Damages for Termination. Termination or expiration alone is not grounds for damages, including incidental or consequential damages, under this Agreement. OEM waives any right it may have to receive any compensation or reparations on termination or expiration of this Agreement under the law of the Territory or otherwise, other than as expressly provided in this Agreement. Neither Party will be liable on account of termination or expiration of this Agreement to the other for reimbursement or damages for the loss of good will, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either Party or for any other reason whatsoever based upon or growing out of such termination or expiration.
- 14.5 Survival. The rights and obligations of the parties contained in Sections 7, 8, 9, 10, 11.2, 12, 13, 14 and 15 will survive the termination or expiration of this Agreement.
- 14.6 Nonexclusive Remedy. The exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise except as otherwise expressly provided herein.
- 15.1 Assignment. This Agreement will bind and inure to the benefit of each party and to the Parties’ permitted successors and assigns. OEM may not assign this Agreement, in whole or in part, by operation of law or otherwise, without Acronis’ written consent. Any attempt to assign this Agreement without such consent shall be null and void.
- 15.2 Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of Switzerland without giving effect to any choice of law principles that would require the application of the laws of a different country or state. The parties expressly exclude the application of the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods.
- 15.3 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of law, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
- 15.4 Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control (each a Force Majeure), including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that such party gives prompt written notice thereof to the other party. The time for performance will be extended for a period equal to the duration of the Force Majeure, but in no event longer than sixty (60) days. Notwithstanding the foregoing, payments due under this Agreement are not subject to this Section 15.4.
15.5 Notices.. All notices, requests and other communications under this Agreement must be in writing and must be (a) delivered personally, (b) sent by confirmed facsimile transmission, or (c) sent by certified or registered U.S. mail or nationally-recognized express courier, return receipt requested. Notice will be deemed given on the date received or five (5) days after deposit in the U.S. mail, whichever occurs first.
If to Acronis, the notice will be sent to the following address:
Acronis International GmbH
Rheinweg 9, 8200 Schaffhausen, Switzerland
With copy to
Attention: General Counsel
1 Van de Graaff Drive, Suite 301 Burlington, MA
If to OEM, the notice will be sent to the following address:
First Name Last Name Company Address City State Country
- 15.6 Arbitration. Should the parties hereto be unable to resolve amicably between them any serious disagreement(s) relating to or arising from any one or more of the provisions of this Agreement, neither party shall seek redress against the other in any court or tribunal in any part of the world, but instead both parties shall submit their disagreement(s) to arbitration in Switzerland in accordance with the arbitration rules of the International Chamber of Commerce then in effect. The award of the arbitration shall be final and binding upon both parties and enforceable in any court of competent jurisdiction. The parties agree to share equally all costs and expenses of all arbitration proceedings irrespective of their outcome.
- 15.7 Relationship between the Parties. The Parties are entering into this Agreement as independent entities and nothing herein will be deemed to create an employer/employee, principal/agent or joint venture relationship. Neither party will have the authority to enter into any contracts in the name of or on behalf of the other party or otherwise bind such other party.
- 15.8 Entire Agreement. This Agreement and its appendices are the complete agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
- 15.9 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.