General Terms — Table of Contents

  1. Definitions
  2. Agreement Structure, Acceptance, Contract Duration and Changes

2.1 Agreement Structure

2.1.1 Profiles

2.1.2 Attachments

2.1.3 Exhibits

2.1.4 Transaction Documents

2.1.5 Order of Precedence

2.2 Acceptance

2.2.1 Acceptance of General Terms, Profile, Attachments, Exhibits and Transaction Documents

2.2.2 Acceptance of Transaction Documents and Subsequent Attachments and Exhibits

2.3 Contract Duration

2.4 Changes to Agreement Terms

  1. Our Relationship

3.1 Independent Contractors

3.2 Dispute Resolution

3.3 Assignment

3.4 Electronic Communications and Notices

3.5 Responsibilities

3.5.1 Certent’s and Your Responsibilities

3.5.2 Your General Responsibilities

3.6 Certent’s Review of Your Compliance with this Agreement

  1. Business Conduct Requirements

4.1 Compliance With Laws

4.2 Prohibition on Gifts

4.3 Export and Import

4.4 Export and Import Restrictions

4.4.1 Compliance with Export and Import Laws

4.4.2 Exporting by You

4.4.3 Export and Import Compliance Verification

4.4.4 End User Exports

4.4.5 Third Party Claims

4.5 Special Bids

4.6 Certent’s Audit of Special Bid Transactions

  1. Internal Use, Demonstration, and Evaluation Programs and Services

5.1 Acquisition

5.2 License and Other Program Agreements

5.3 Internal Use

5.4 Demonstration, and Evaluation

  1. Status Change
  2. Confidential Information and Nondisclosure
  3. Intellectual Property Protection

8.1 Third Party Claims

8.2 Remedies

8.3 Claims for Which Certent Is Not Responsible

  1. Liability

9.1 Certent’s Liability

9.2 Items for Which Certent Is Not Liable

9.3 Your Liability

  1. Certent’s Trademarks
  2. Agreement Termination
  3. Geographic Scope
  4. Governing Law

 

 

General Terms

The Business Partner Agreement—General Terms (the “General Terms”) governs Certent’s relationship with you as a Certent Business Partner and transactions under such relationship in which you market Programs and Services from Certent.

1. Definitions

End User – a party who acquires Programs or Services for its own use and not for resale. The term “End User” does not include a party who is a part of the Enterprise of which you are a part.

Enterprise – any legal entity (such as a corporation) and the legal entities it owns by more than 50 percent. The term “Enterprise” applies only to the portion of the Enterprise located in the same country(ies) as the geographic scope set forth in section 14 (Geographic Scope) of these General Terms.

Certent Business Partner (also called “Business Partner”) – a business entity that has a Business Partner Agreement with Certent under which it is approved to market Programs or Services.

Program(s) –the original and all whole or partial copies of software programs specified in your Profile, which may be licensed to an End User via either an on-premises license or by access to a software-as-a-service (SaaS) license, including all:

  1. machine-readable instructions and data;
  2. audio-visual content (such as images, text, recordings, or pictures); and
  3. related licensed

Service(s) – performance of a task, provision of advice and counsel, assistance, Support, or access to a resource (such as an information database) that Certent may approve you to market.

Support – maintenance and support services provided in connection with an End User’s use of Programs.

Trademark – any title, trademark, registered trademark, or service mark owned by Certent, which Certent may authorize you to use.

2. Agreement Structure, Acceptance, Contract Duration and Changes

2.1 Agreement Structure

This Agreement between Certent and you as a Certent Business Partner includes these General Terms and additional terms in applicable Profile, Attachments, Exhibits, and Transaction Documents. This Agreement is the complete agreement regarding your relationship with Certent as a Certent Business Partner, and replaces any prior oral or written communications between you and Certent.

These General Terms include sections 1 through 13 and the Country Unique Terms (if any) appended after section 13 below. Only those Country Unique Terms applicable to the country where you are located as indicated in your Profile are applicable. The Country Unique Terms replace or modify those of sections 1 through 13 specifically referenced.

Attachments, Exhibits, and Transaction Documents are part of this Agreement only for those transactions to which they apply. Each transaction is separate and independent from other transactions.

2.1.1 Profiles

Certent specifies the details of our relationship (for example, the type of Business Partner you are and Programs and Services you are approved to market) in a document that is signed by you and Certent and is called a “Profile.”

2.1.2 Attachments

In general, Attachments may include terms that apply to the method of marketing Programs and Services and those that apply to the type of Business Partner you are. The Profile will specify the Attachments that apply to your Certent Business Partner relationship.

2.1.3 Exhibits

An Exhibit includes specific information about Programs and Services (for example, lists of Programs and Services applicable current list prices), which may be updated by Certent from time to time. The Profile will specify the Exhibits that apply to your Certent Business Partner relationship.

2.1.4 Transaction Documents

Transaction Documents contain specific details and terms related to individual transactions. Examples of Transaction Documents (with descriptions of the information they may contain) are invoices (item, quantity, payment terms, and amount due), order acknowledgments (confirmation of Programs and quantities ordered), and addendums.

2.1.5 Order of Precedence

If there is a conflict among the terms in the various Agreement documents, the terms of:

  1. a Transaction Document prevails over those of all Agreement documents;
  2. an Exhibit prevails over those of a Profile, an Attachment, and the General Terms;
  3. a Profile prevails over those of an Attachment and the General Terms; and
  4. an Attachments prevail over those of the General

The order of precedence within more than one of a single type of document (for example, two Attachments) will be stated in the applicable documents.

2.2 Acceptance

2.2.1 Acceptance of General Terms, Profile, Attachments, Exhibits and Transaction Documents

Each of us agrees to these General Terms, the terms of the Profile, and applicable Attachments and Exhibits by signing a Profile that incorporates each of those documents. Unless a handwritten signature is specifically required by Certent, a Profile and any other document required to be signed under this Agreement may be signed by hand or, where recognized by law, electronically.

2.2.2 Acceptance of Transaction Documents and Subsequent Attachments and Exhibits

You accept the terms of Transaction Documents and any Attachments or Exhibits provided by Certent after you sign a Profile (e.g., an updated Exhibit of current list prices) by doing any of the following:

  1. signing them;
  2. marketing or ordering the Program or Service;
  3. accepting or using the Program or Service, or allowing others to do so;
  4. providing the Program or Service to your End User; or
  5. making any payment or requesting a fee for the Program or

Any Transaction Document will be signed by both parties if requested by either party.

2.3 Contract Duration

Certent specifies this Agreement’s start date and duration in the Profile. Unless Certent specifies otherwise in writing, this Agreement will be renewed automatically for subsequent one-year periods. However, either party may decide not to renew this Agreement by providing the other party with three months’ written notice.

2.4 Changes to Agreement Terms

In order to maintain flexibility in our relationship, Certent may change the terms of this Agreement by providing you at least one month’s written notice. However, these changes are not retroactive. They apply, as of the effective date Certent specifies in the notice, only to new orders, ongoing transactions that do not expire, and transactions with a defined renewable contract period. For transactions with a defined renewable contract period, you may request that Certent defer the change effective date until the end of the current contract period.

You acknowledge your agreement to have these changes apply for such transactions by (i) placing new orders for or marketing Programs or Services after the change effective date, (ii) failing to request that the change effective date be deferred until the start of the new renewal period, (iii) allowing transactions to renew after receipt of the change notice, or (iv) failing to terminate non-expiring transactions prior to the change effective date.

Certent may need to change certain terms without providing the advance notice described above. The following changes are effective immediately upon written notice from Certent or on the date specified in the notice and, unless otherwise stated in the notice, apply to new and ongoing transactions under this Agreement:

  1. those this Agreement states do not require advance notice;
  2. those of an Exhibit, unless otherwise limited by this Agreement; and
  3. those relating to safety and

Changes to this Agreement terms may be communicated electronically in accordance with section 3.4 (Electronic Communications and Notices).

Except as otherwise provided above, for a change to this Agreement to be valid, both of us must sign it. Additional or different terms in any written communication from you are void.

Price and discount changes are only valid when contained in a Certent announcement letter, authorized special bid amendment, or other Certent written authorized channel program offering. Any modification to prices or discounts, by any means other than the authorized documentation described in this paragraph is invalid. Any attempt by you to change any of those terms, except as provided herein, will be a material breach of this Agreement.

3. Our Relationship

3.1 Independent Contractors

Both parties are independent contractors, and this Agreement is non-exclusive. Neither party is a legal representative or legal agent of the other. Neither party is legally a partner of the other (for example, neither party is responsible for debts incurred by the other), and neither party is an employee or franchise of the other, nor does this Agreement create a joint venture between the parties.

Each party is responsible for its own expenses regarding fulfillment of its responsibilities and obligations under the terms of this Agreement.

Neither party will assume or create any obligations on behalf of the other or make any representations or warranties about the other, other than those authorized.

3.2 Dispute Resolution

Each party will allow the other a reasonable opportunity to comply before it claims the other has not met its obligations under this Agreement, unless otherwise specified in this Agreement. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring a legal action, regardless of form, arising out of or related to this Agreement or any transaction under it more than two years after the cause of action arose and ii) after such time limit, any legal action arising out of this Agreement or any transaction under it and all respective rights related to any such action lapse.

3.3 Assignment

Certent reserves the right to assign this Agreement, in whole or in part, on written notice. Certent is also permitted to assign its rights to payments without obtaining your consent. It is not considered an assignment for Certent to divest a portion of its business in a manner that similarly affects all of its Business Partners.

Your rights under this Agreement are not property rights and, therefore, you can not transfer them to another party or encumber them in any way. For example, you can not sell your approval to market Certent’s Programs or Services or your rights to use Certent’s Trademarks.

You agree not to assign or otherwise transfer this Agreement, your rights under this Agreement, or any of its approvals, or delegate any duties, unless expressly permitted to do so in this Agreement. Otherwise, any attempt to do so is void.

3.4 Electronic Communications and Notices

Written communications, including notices to the receiving party’s designated representative, are to be sent to the address (physical, e-mail or facsimile) specified in an applicable Profile, Attachment, or Transaction Document. The parties consent to the use of electronic means and facsimile transmissions to send and receive communication in connection with our business relationship arising out of this Agreement, and such communication is acceptable as a signed writing.

3.5 Responsibilities

3.5.1 Certent’s and Your Responsibilities

  1. Certent may withdraw a Program or Service from those available for marketing by you at any time with reasonable notice to you.
  2. Failure by either party to insist on strict performance or to exercise a right when entitled does not prevent either party from doing so at a later time, either in relation to that default or any subsequent one.
  3. Neither party is responsible for failure to fulfill any non-monetary obligations due to events beyond its
  4. Certent does not guarantee the results of any of its marketing
  5. Each party grants only the licenses and rights specified in this Agreement. No other licenses or rights (including licenses or rights under patents) are granted either directly, by implication, or otherwise. The rights and licenses granted to you under this Agreement may be terminated if you fail to fulfill your applicable payment
  6. Where approval, acceptance, consent or similar action by either party is required under this Agreement, such action will not be unreasonably delayed or

3.5.2 Your General Responsibilities

You agree:

  1. to be responsible for your End User’s satisfaction regarding all of your activities associated with your Business Partner relationship with Certent, and to participate in customer satisfaction programs as Certent determines;
  2. to maintain the criteria Certent specified when Certent approved you as an Certent Business Partner;
  3. to achieve and maintain the certifications that Certent requires for the Programs and Services you are approved to market;
  4. to conduct business activities with Certent (including placing orders) as Certent specifies, using Certent’s automated electronic system if available. You agree to pay all expenses associated with your use of Certent’s system (for example, your equipment and communication costs);
  5. that when Certent provides you with access to Certent’s information systems, such access is only in support of your marketing activities associated with your Certent Business Partner relationship. Programs Certent provides to you for your use with Certent’s information systems, which are in support of your marketing activities, are subject to the terms of their applicable license agreements, except you may not transfer them. You agree you will comply with the license terms and the additional restrictions in this Agreement and use the Programs only for the purpose for which they were provided to you;
  6. promptly provide Certent with documents Certent may require from you or an End User (for example, a license agreement signed by the End User and you) when applicable;
  7. as reasonably required by Certent to fulfill its obligations under this Agreement, you agree to provide Certent with sufficient and safe access (including remote access) to your facilities, systems, information, personnel, and resources, all at no charge to Certent. Certent is not responsible for any delay in performing or failure to perform caused by your delay in providing such access or performing your other responsibilities under this Agreement; and
  8. that you authorize Certent and its subsidiaries(and their successors and assigns, contractors and Certent Business Partners) to store and use your contact information and any of your End Users’ business contact information that you provide to Certent wherever they do business, in connection with Certent Programs and Services or in furtherance of Certent’s business relationship with you. If information you provide to us includes personal data, you will obtain any consents needed so that Certent can use the information for the intended

3.6 Certent’s Review of Your Compliance with this Agreement

Certent may periodically review your compliance with this Agreement. You agree to provide Certent with relevant records on request. Certent may reproduce and retain copies of these records. Certent, or an independent auditor, may conduct a review of your compliance with this Agreement on your premises during your normal business hours.

If, during the review of your compliance with this Agreement, it is determined you have failed to comply with any material term of this Agreement, in addition to Certent’s rights under law and the terms of this Agreement, for transactions that are the subject of the breach, you agree to refund the amount equal to the commission (or discount, if applicable) Certent gave you for the applicable Programs or Services or Certent may offset any amounts due to you from Certent.

4. Business Conduct Requirements

4.1 Compliance With Laws

Each of us will comply with all applicable laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act and the applicable anti-bribery laws and laws governing transactions with government and public entities, antitrust and competition laws, applicable insider trading, securities, and financial reporting laws, laws governing consumer transactions, and laws regarding data privacy.

4.2 Prohibition on Gifts

You will not offer or make payments or gifts (monetary or otherwise such as travel, entertainment, meals, and other items of value) to anyone for the purpose of wrongfully influencing decisions in favor of Certent, directly or indirectly. Certent may terminate this Agreement immediately in case of a breach of this clause or 2) when Certent reasonably believes such a breach has occurred or is likely to occur.

4.3 Export and Import

You may not market Programs and Services outside the geographic scope of this Agreement, and you agree not to use anyone else to do so.

4.4 Export and Import Restrictions

4.4.1 Compliance with Export and Import Laws

You warrant that you:

  1. are and will remain knowledgeable about, applicable export and import laws, regulations, orders, and policies, including, but not limited to, those of the United States (which, in some instances, prohibit or restrict in-country marketing to certain End Users);
  2. when you market Programs, Services, and technical data, and otherwise in connection with this Agreement, will comply with such laws, regulations, orders, and policies and will secure all necessary clearance requirements, export and import licenses and exemptions, and make all proper filings;
  3. will comply with applicable prohibitions on delivery of Programs, prototypes, and technical data and provision of Services to certain End Users and for certain end uses, including, but not limited to, nuclear facilities, space or missile systems, and weapons systems (whether chemical, biological, or otherwise);
  4. will use your best efforts to ensure that your End User complies with such laws, regulations, orders, and policies; and
  5. will comply with all additional export and import restrictions in any applicable Attachment or Transaction Document under this

4.4.2 Exporting by You

You agree that if you export or import (for example, if you are approved for a geographic scope that includes multiple countries) Programs, Services, and technical data, you, and not Certent, will act as the exporter or importer.

4.4.3 Export and Import Compliance Verification

Certent may, in its sole discretion, require you from time to time to provide Certent with written certification relating to your compliance with applicable export and import laws or prohibit you from doing business with certain End Users in order to ensure that you and Certent comply with applicable export and import laws.

4.4.4 End User Exports

If an End User exports a Program, Certent’s responsibilities (including, but not limited to, warranty or support obligations), if any, under the IPLSA, portions thereof or otherwise under this Agreement no longer apply to that Program. Before your sale of such Program, you agree to prepare a support plan for it and obtain your End User’s agreement to that plan. Within one month of sale, you agree to provide Certent with the End User’s name and address, date of sale, and destination country.

4.4.5 Third Party Claims

You will indemnify Certent from all claims arising from your failure to comply with the provisions of this section 4.4.

4.5 Special Bids

Special bids (for example, a special discount or price) (called “Special Bids”) are provided to you on the basis that the information you provided to Certent in your Special Bid request is truthful and accurate. If the information you provided in your Special Bid request changes, you must immediately notify Certent. If you fail to notify Certent of Special Bid changes, Certent reserves the right to modify the terms of the Special Bid or to cancel your Special Bid authorization. If you fail to provide truthful and accurate information on Special Bid requests, then Certent shall be entitled to recover from you (and you shall be obligated to repay) the amount of any additional discounts Certent provided in the Special Bid and take any other actions authorized under this Agreement. Special Bid authorizations and the terms applicable to that Special Bid are Certent’s confidential information, which is subject to the Certent Agreement of Exchange of Confidential Information.

You accept the terms of the Special Bid by:

  1. accepting the Programs or Services for which you are receiving a Special Bid;
  2. providing the Programs or Services to your End User; or
  3. paying for the Programs or

The Special Bid discount or price for eligible Programs or Services is subject to the following:

  1. no other discounts, incentive offerings, rebates, or promotions apply to the Programs and Services, unless Certent specifies otherwise in writing;
  2. the applicable Programs and Services are subject to availability; and
  3. you agree to the additional terms contained in the Special Bid

If you are requesting a specific End User price or discount in your Special Bid, you agree that you will ensure that the intended End User receives the financial benefit of the Special Bid.

4.6 Certent’s Audit of Special Bid Transactions

Certent may audit any Special Bid transactions in accordance with the terms of this section 4.6 and section 3.6 (Certent’s Review of Your Compliance with this Agreement).

  1. Upon Certent’s request, you will promptly provide Certent or its auditors with all relevant documentation to enable Certent to verify that all information provided in support of a Special Bid request was truthful and accurate and that Certent Programs and Services have been or will be supplied to the End User in accordance with the terms of the Special Bid, including, but not limited to, documentation that identifies the dates of sale and delivery and End User prices for Certent Programs and Services, such as invoices, delivery orders, contracts and purchase orders by and between you and an End User (the “Special Bid Documentation”).
  2. In any case where you are unable to provide the Special Bid Documentation because of confidentiality obligations owed to an End User, whether arising by written contract or applicable law, you will promptly provide Certent with written evidence of, and any Special Bid Documentation not subject to, those obligations. In addition, you will promptly and in writing seek the End User’s consent to waive confidentiality restrictions to permit Certent to conduct its audit as intended. Should the End User refuse to grant that consent, you will i) provide Certent with a copy of the waiver request and written proof of that refusal and ii) identify appropriate contacts at the End User with whom Certent may elect to discuss the
  3. You hereby waive any objection to i) Certent sharing Special Bid information directly with the End User, notwithstanding the terms of any agreement that would prohibit Certent from doing so, and otherwise communicating (both orally and in writing) with the End User, as Certent deems necessary and appropriate to complete its desired compliance review and ii) the End User sharing Special Bid information directly with Certent. In this subsection (c), “Special Bid information” includes, but is not limited to, the types and quantity of Programs and anticipated End User prices and delivery dates set forth in a Special
  4. Certent may invalidate a Special Bid if in respect of such Special Bid, you fail to comply with this section 4.6 or the applicable Special Bid terms. In that event, Certent shall be entitled to recover from you (and you shall be obligated to repay) the amount of any additional discounts Certent provided in the Special Bid. Certent may also take any other actions authorized under this Agreement or applicable law.

5. Internal Use, Demonstration, and Evaluation Programs and Services

5.1 Acquisition

In addition to the terms of this Agreement, some Certent Business Partners may be required to have a separate agreement with Certent to acquire Programs and Services for internal use and demonstration, purposes. Certent will specify in an applicable Attachment if this requirement applies to your Certent Business Partner relationship.

5.2 License and Other Program Agreements

Programs you acquire for internal use or for demonstration purposes will be subject to this Agreement and additional terms.

5.3 Internal Use

You may acquire Programs you are approved to market for your internal use within your Certent Business Partner operations. You may also acquire Services you are approved to market for such purposes if Certent specifies in the Exhibit that the Services are available for such purposes. You are required to advise Certent when you order Programs or Services for your internal use.

Certent will specify in the Exhibit the discount or price, as applicable, at which you may acquire the Programs or Services for internal use.

Any value-added enhancement or systems integration services otherwise required by your Certent Business Partner relationship are not applicable when you acquire Programs or Services for internal use. You must retain such Programs and Services for a minimum of 12 months, unless Certent specifies otherwise in the Exhibit. Programs and Services acquired for internal use may not be used for work-for-charge.

5.4 Demonstration, and Evaluation

You may acquire Programs you are approved to market for your demonstration purposes, and for evaluation purposes, unless Certent specifies otherwise in the Exhibit. You may also acquire Services for such purposes if Certent specifies in the Exhibit that the Services are available for such purposes. Such Programs and Services must be used primarily in support of your Programs and Services marketing activities and may not be used for work-for-charge.

Certent will specify in the Exhibit the Programs and Services Certent makes available to you for such purposes, the applicable discount or price, and the maximum quantity of such Programs and Services you may acquire and the period they are to be retained.

Certent may decrease the discount it provides for such Programs and Services on one month’s written notice.

You may make these Programs and Services available to an End User only for the purpose of demonstration and evaluation. Such Programs and Services may be provided to an End User for no more than three months.

For a Program, you agree to ensure the End User has been advised of the requirement to accept the terms of a license agreement before using the Program.

6. Status Change

You agree to give Certent prompt written notice (unless precluded by law or regulation) of any material change or anticipated change in your financial condition, business structure, or operating environment (for example, a material change in equity ownership or management or any substantive change to information you provided to Certent when you applied to become an Certent Business Partner). Upon notification of such change, (or if you fail to give notice of such change) Certent may, at its sole discretion, terminate this Agreement on written notice to you.

7. Confidential Information and Nondisclosure

The exchange of confidential information will be governed by the Certent Agreement for Exchange of Confidential Information (“AECI”). Each party accepts the terms of the AECI by signing the AECI or by accepting the Certent Business Partner Agreement or another document that incorporates the AECI by reference. Except as provided in this section 7, confidential information should be marked with a restrictive legend or otherwise identified by the disclosing party as confidential at the time of disclosure subject to the terms of the AECI. If there is a conflict between the terms of this section 7 and those of the AECI, the terms of this section 7 will prevail.

The following information is always considered confidential, regardless of whether it is marked with a restrictive legend or otherwise identified as confidential at the time of disclosure:

  1. Certent’s list prices;
  2. Certent’s sales leads and information regarding Certent’s prospects or customers;
  3. unannounced information regarding Programs and Services; and
  4. Certent’s business and marketing plans and

You agree not to disclose confidential information to Certent unless Certent specifically requests it.

Neither party will disclose the terms of this Agreement, unless both parties agree in writing to do so, or unless required by law.

8. Intellectual Property Protection

8.1 Third Party Claims

If a third party asserts a claim against you that a Program Certent provides to you under this Agreement infringes that party’s patent or copyright, Certent will defend you against that claim at Certent’s expense and pay all costs, damages, and attorney’s fees that a court finally awards against you, or that are included in a settlement approved in advance by Certent, provided that you:

  1. promptly notify Certent in writing of the claim;
  2. allow Certent to control, and cooperate with Certent in, the defense and any related settlement negotiations; and
  3. are and remain in compliance with the Program’s applicable license terms and your other obligations in this section, including under 8.2 (Remedies)

8.2 Remedies

If such a claim is made or appears likely to be made, you agree to permit Certent, in Certent’s sole discretion, either to (i) enable you to continue to market or use the Program, (ii) modify it, or (iii) replace it with one that is at least functionally equivalent. If Certent determines that none of these alternatives is reasonably available, then on Certent’s written request, you agree to promptly return the Program to Certent and discontinue its use. Certent will then give you a credit equal to the amount you paid Certent for the Program, if any (less any price-reduction credit). If the claim relates to a Program you distributed to your End User, you are responsible for requiring your End User to return the Program to you in order for you to fulfill your obligations in this section.

8.3 Claims for Which Certent Is Not Responsible

Certent has no obligation regarding any claim based on any of the following:

  1. anything provided by you, your End User, or a third party on behalf of you or your End User that is incorporated into a Program or Certent’s compliance with any designs, specifications, or instructions provided by you, your End User, or a third party on behalf of you or your End User;
  2. a Program’s use other than in accordance with its applicable licenses and restrictions or use of a non-current version or release of a Program, to the extent a claim could have been avoided by using the current release or version;
  3. any modification of a Program made by you, your End User, or a third party on behalf of you or your End User or the combination, operation, or use of a Program with any other Program, hardware device, program, data, apparatus, method, or process;
  4. the distribution, operation, or use of a Program outside your entity or for the benefit of any third party, except to the extent that such distribution was i) authorized by Certent under this Agreement and ii) done in your role as an Certent Business Partner under this Agreement; or
  5. infringement related to interactive voice response functionality or use of a Program in a telephone call processing environment.

This Intellectual Property Protection section states Certent’s entire obligation and your exclusive remedy regarding any third party intellectual property claims.

9. Liability

Circumstances may arise where, because of a default or other liability, one of us is entitled to recover damages from the other. The following terms apply as your exclusive remedy and our exclusive liability.

9.1 Certent’s Liability

Regardless of the basis on which you are entitled to claim damages from Certent (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), Certent’s entire liability for all claims in the aggregate arising from or related to each Program or Service or otherwise arising under this Agreement will not exceed the amount of any actual direct damages up to the greater of U.S. $100,000 (or equivalent in local currency) or the charges (if recurring, 12 months’ charges apply) for the Program or Service that is the subject of the claim. For purposes of this Liability section, the term “Program” includes Materials.

This limit also applies to any of Certent’s subcontractors and Program developers. It is the maximum for which Certent and its subcontractors and Program developers are collectively responsible.

The following amounts are not subject to a cap on the amount of damages:

  1. payments referred to in the Intellectual Property Protection section above; and
  2. damages for bodily injury (including death) and damage to real property and tangible personal property for which Certent is legally

9.2 Items for Which Certent Is Not Liable

Except as expressly required by law without the possibility of contractual waiver, under no circumstances is Certent, its subcontractors, or Program developers liable for any of the following even if informed of their possibility:

  1. loss of, or damage to, data;
  2. special, incidental, exemplary, or indirect damages, or for any economic consequential damages; or
  3. lost profits, business, revenue, goodwill or anticipated

No right or cause of action for any third party is created by this Agreement, or any transaction under it, nor is Certent responsible for any third party claims against you except as described in the Intellectual Property Protection section above or as permitted by this Liability section for bodily injury (including death) or damage to real or tangible personal property for which Certent is legally liable to that third party.

9.3 Your Liability

In addition to damages for which you are liable under applicable law or the terms of this Agreement, you will indemnify Certent for claims made against Certent by others arising out of your conduct under this Agreement or as a result of your relationship with any third party, including without limitation, any claim based on representations, statements, claims or warranties not authorized by Certent.

10. Certent’s Trademarks

While marketing the Programs and Services, you may use the Certent Business Partner title and emblem and any other Trademark Certent may specify to you. You agree that your use of such Trademarks may be subject to additional terms and limitations in a separate agreement with Certent. You agree to comply with all terms governing your use of Certent’s Trademarks.

You may use the Trademarks only:

  1. within the geographic scope of this Agreement;
  2. in association with Certent’s Programs and Services you are approved to market; and
  3. as described in the written guidelines provided to you by

The royalty normally associated with non-exclusive use of the Trademarks will be waived, since the use of this asset is in conjunction with marketing activities for Certent’s Programs and Services.

You agree to promptly modify, at your expense, any advertising or promotional materials that do not comply with Certent’s guidelines. If you receive any complaints about your use of a Trademark, you agree to promptly notify Certent. When this Agreement terminates, you agree to promptly stop using Certent’s Trademarks. If you do not, you agree to pay any expenses and fees Certent incurs in getting you to stop.

You agree not to register or use any mark that is confusingly similar to any of Certent’s Trademarks.

Certent’s Trademarks, and any goodwill resulting from your use of Certent’s Trademarks, belong to Certent.

11. Agreement Termination

If either party fails to comply with a material term of this Agreement, the other party may terminate this Agreement on written notice to the non-compliant party. Examples of a “material breach” by you are if you (i) fail to maintain customer satisfaction, or to comply with the terms of a Transaction Document (for example, if you fail to pay an invoice or to meet your obligations under a statement of work), (ii) repudiate this Agreement, or (iii) make any material misrepresentations to Certent. You agree that Certent’s only obligation to you regarding notice of termination is to provide the notice called for in this section 11 (Agreement Termination) and Certent is not liable for any claims against you or losses you may incur if Certent terminates this Agreement with no additional notice.

License termination is specified in the applicable Program license agreement.

Upon Agreement termination:

  1. you agree to pay for any Program or Service for which you have not paid;
  2. each party agrees to settle any accounts with the other as soon as reasonably practicable. Certent may offset any amounts due you against amounts due to Certent, or any entity within Certent’s Enterprise as allowable under applicable law; and
  3. End Users that are bound to Certent by the IPLSA shall remain bound by the IPLSA. End Users with an agreement with you for Programs and Services may continue to use the Programs and Services for the period of time for which you have submitted payments to Certent; thereafter those End Users will need to contract directly with Certent or another Certent Business Partner to continue their use of the Programs and Services.

You agree that if Certent permits you to perform certain activities after Agreement termination or non-renewal (for example, to complete the fulfillment of an order to your End User), you will do so within the period of time Certent specifies and under the terms of this Agreement.

Any terms of this Agreement, which by their nature extend beyond Agreement termination, remain in effect until fulfilled and apply to respective successors and assignees.

Termination of certain Attachments may result in the termination of (i) Certent’s approval for you to market a Program or a Service or (ii) a particular Business Partner relationship. Certent will specify in the applicable Attachment or in a written notice to you if such termination will result.

12. Geographic Scope

The rights, duties and obligations of each party are valid only in the <country variable> except that all licenses are valid as specifically granted.

13. Governing Law

Both parties agree to the application of the laws of <country variable> to govern, interpret, and enforce all of your and Certent’s respective rights, duties and obligations arising from, or relating, in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.

If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.

The “United Nations Convention on Contracts for the International Sale of Goods” does not apply.

 

 

COUNTRY UNIQUE TERMS

NORTH AMERICA

Listing of the North America countries and group of countries follows:

Canada

Caribbean North District:

Bahamas and its sales territories of Turks and Caicos Islands

Barbados and its sales territories of Antigua, Dominica, Grenada, St. Kitts, St. Lucia and Tortolla Bermuda

Jamaica and its sales territory of Cayman Islands

Netherlands Antilles and its sales territories of St. Maarten, Bonaire, and Aruba Suriname

Trinidad and its sales territory of Guyana

United States

The following terms apply in North America, as noted:

CANADA

Section 4 – Business Conduct Requirements

The following is added after the first paragraph in Section 4.1:

In addition to the parties’ obligations under any existing agreements, the following provisions shall apply in the event that one party makes Personal Data available to the other: “Personal Data” refers to information relating to an identified or identifiable individual made available by one party or its personnel in connection with an agreement between them.

  1. General
    • Each of the parties is responsible for complying with any obligations applying respectively to each of the parties under applicable Canadian data privacy laws and regulations (Laws).
    • Neither party will request Personal Data beyond what is necessary to fulfill the purpose(s) for which it is requested. The purpose(s) for requesting Personal Data shall be reasonable. Each of the parties will agree in advance as to the type of Personal Data which is required to be made available.
  2. Security Safeguards
    • Each of the parties acknowledges that it is solely responsible for determining and communicating to the other the appropriate technological, physical and organizational security measures required to protect Personal
    • Each of the parties will ensure that Personal Data is protected in accordance with the security safeguards communicated by the
    • Each of the parties will ensure that any third party to whom Personal Data is transferred is bound by the applicable terms of these
    • Additional or different services required to comply with the Laws will be deemed a request for new
  3. Use
    • Each of the parties agrees that Personal Data will only be used, accessed, managed, transferred, disclosed to third parties or otherwise processed to fulfill the purpose(s) for which it was made
  4. Access Requests
    • Each of the parties agrees to reasonably cooperate with the other in connection with access requests for Personal
    • Each of the parties agrees to reimburse the other for any reasonable charges incurred in providing each other
    • Each of the parties agrees to amend Personal Data only upon receiving instructions to do so from the other party or its
  5. Retention

Each of the parties will promptly return to the other or destroy all Personal Data which is no longer necessary to fulfill the purpose(s) for which it was made available, unless otherwise instructed by the other party or its personnel or required by law.

Section 9- Liability

The reference to the amount of “US $100,000” stated in the opening paragraph in subsection 9.1 is replaced with the amount of “$100,000”.

The following replaces item b in the subsection 9.1, “Certent’s Liability”:

  1. bodily injury (including death), and damage to real property and tangible personal property caused by Certent’s negligence for which Certent is legally liable to that third party.

The following is added as new point d) in the subsection 9.2, “Items for Which Certent Is Not Liable”:

  1. third-party claims against you for damages (other than those under the first two items above in the subsection entitled ‘Our Liability’).”

Section 12 – Geographic Scope

The following replaces this section:

The rights, duties and obligations of each party are valid only in Canada.

Section 13- Governing Law

The following replaces the first paragraph in this Section:

Both parties agree to the applicable laws in the Province of Ontario to govern, interpret and enforce all of your and Certent’s respective rights, duties and obligations arising from, or relating, in any manner to, subject matter of this Agreement, without regard to conflict of law principles.

CARIBBEAN NORTH DISTRICT

Section 9 – Liability

The following replaces item b in the subsection 9.1, “Certent’s Liability”:

  1. bodily injury (including death), and damage to real property and tangible personal property caused by our negligence;

The following replaces item “a” in the subsection 9.2, “Items for Which Certent Is Not Liable”:

  1. third-party claims against you for damages (other than those under the first two items above in the subsection entitled ‘Our Liability’);”

Section 13- Governing Law

Insert the following as the country variable: the State of New York

UNITED STATES

Section 2 – Agreement Structure, Acceptance, and Contract Duration

In section 2.2.1 (Acceptance of General Terms, Profile, Attachments, Exhibits and Transaction Documents), in the second paragraph, delete:

, where recognized by law,

Section 3 – Our Relationship

In 3.2 (Dispute Resolution), add the following as the final paragraph of this section:

Each party waives any right to a jury trial in any proceeding arising out of or related to this Agreement.

Section 5 – Internal Use, Demonstration, and Evaluation Programs and Services

In 5.3 (Internal Use), the following replaces the third sentence in the first paragraph:

Except for Programs and Services Certent specifies, you are required to advise Certent when you order Programs and Services for your internal use.

Section 11 – Agreement Termination

Delete “or” after item (ii) and add the following examples to the second sentence of the second paragraph as new items (iv) and (v):

(iv) if you request fees or other compensation for the marketing of Programs and Services to Public Sector End Users while holding a contract with the Public Sector End User to advise on the selection of products and services or if you submit a project form for a fee payment under this Agreement requesting approval to market Certent Programs and Services to Public Sector End Users while holding a contract with the Public Sector End User to advise on the selection of products and services; or (v) if you do not fulfill your responsibilities regarding licensing agreements.

Section 12 – Geographic Scope

Insert the following as the country variable: the United States

Section 13- Governing Law

Insert the following as the country variable: the State of New York