RESELLER AGREEMENT TERMS AND CONDITIONS
This Reseller Agreement ("Agreement") is entered into by the Reseller (as defined below) and Nimble Storage, Inc. with a principal place of business at 211 River Oaks Parkway, San Jose, California 95134 USA ("Nimble"), as of the date on which Reseller indicates its acceptance of this Agreement (the "Effective Date") by clicking on the button below that is marked "I Accept".
1. DEFINITIONS. Capitalized terms used in this Agreement are defined in this Section 1 or in the section where they are first used.
1.1 “Customer(s)” means a person or entity that acquires a Product for its own use in the
Territory and not for further redistribution, remarketing or leasing to any other person or entity.
1.2 “Intellectual Property Rights” means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, and other proprietary rights.
1.3 “Marks” means the trademarks, service marks, and logos of a party.
1.4 “Product(s)” means the Nimble product(s) set forth on Nimble’s published price list or quote from Nimble, as amended from time to time by Nimble, including the Software included therein.
1.5 “Product Price(s)” means the purchase price for the Products, as set forth on Nimble’s published price list or any quote provided by Nimble, as amended from time to time by Nimble.
1.6 “Product Specification” means Nimble’s specification for a Product, as the same may be amended from time to time by Nimble.
1.7 “Reseller” means the company identified on the Nimble Partner Program application and the entity who orders Products from Nimble pursuant to this Agreement for resale to Customers.
1.8 “Software” means the release of software pre-installed by Nimble on each Product or as otherwise made available by Nimble in conjunction with the Product and ordered by Reseller hereunder.
1.9 “Support Services” means Nimble’s standard maintenance and support services for the Products.
1.10 “Territory” means the geographic area in which Reseller is authorized to resell the
Products, as approved by Nimble.
2.1 Appointment. Subject to Reseller’s compliance with the terms of this Agreement and Nimble's acceptance of Reseller into its Reseller program, Nimble appoints Reseller as a non- exclusive Reseller to sell (or, as relates to Software, distribute) the Products directly to Customers in the Territory. Reseller hereby accepts this appointment upon the terms and conditions contained in this Agreement. Reseller’s rights hereunder are non-sublicenseable and non-transferable. Reseller agrees it will not modify the Products except as otherwise agreed by the Parties in writing. Reseller will sell (or, as it relates to Software, distribute) Products only directly to Customers. Reseller represents, warrants, and certifies that Reseller is purchasing the Products solely for resale to, and licensing the Software solely for distributing to, Customers, and subject to the foregoing, solely in the Territory. Reseller may not purchase Products for any other purposes under this Agreement.
2.2 General Restrictions and Obligations. Reseller agrees to:
(a) use Reseller’s diligent and commercially reasonable efforts to promote, develop the market for, market and distribute the Products for use in the Territory, and to conduct its business in such a manner as will reflect favorably on Nimble and the Products;
(b) engage in advertising and/or sales promotion activities solely in the Territory, designate the Products by their correct name and identify them as Nimble Products being marketed by Reseller as an independent entity;
(c) to the extent that Reseller will be providing any support with regard to the Products, maintain an adequate staff of trained technicians and inventory to provide technical support and service to Customers, at prices and on terms as Reseller may establish. Nimble reserves the right to review Reseller’s technical organization and recommend improvements in quality or quantity of technical personnel;
(d) conduct all of its business in a businesslike, ethical, and professional manner, and not engage in any deceptive, misleading, illegal or unethical business practice;
(e) pay all costs of conducting its business and in relation to its performance under this Agreement;
(f) not issue any press releases, make any statements to the press, or create, display, or distribute any marketing or promotional materials or information concerning Nimble, the Nimble Products and/or Services, or this agreement, without Nimble’s prior written consent;
(g) distribute the Software for use solely as contained in the Products (and not on a “stand-alone” basis), unless such Software is designated in writing as “stand-alone” Software by Nimble, and solely in accordance with Section 2.1 (“Appointment of Reseller”);
(h) make no representations, warranties, promises, or assurances, on behalf of
(i) report to Nimble any reported Product defects (including safety problems) in such detail as to make it possible for Nimble to duplicate such defects in an effort to correct them;
(j) not in any way distribute or otherwise dispose of the Products to any Reseller, Customer, or other third party whether or not within the Territory who Reseller knows or has reason to believe intends to sell, remove, re-export, transport, or use the Products outside of the Territory.
2.3 Nonexclusivity. Nimble reserves the right to appoint, at its sole discretion, additional distributors or resellers for the Products within or outside the Territory. Nothing in this Agreement will be construed to prohibit Nimble from selling the Products within or outside of the Territory, either (i) directly by dealing with customers itself, or (ii) indirectly by appointing sales representatives to contact such customers on Nimble’s behalf.
3. ORDERING AND DELIVERY OF PRODUCTS.
3.1 Ordering. All units of Product will be ordered from Nimble through Reseller’s designated distributor (“Distributor”).
3.2 Delivery. Delivery for each accepted order will be subject to terms and conditions as negotiated between Reseller and its Distributor, if any.
4.1 Price. The prices for Products and Support Services will be specified by Reseller’s
5. MARKETING AND SALES BY RESELLER.
5.1 General. Reseller will assume all responsibilities for direct sales support in association with Products to Reseller’s sales representatives, and may charge Customers in the Territory such prices for the Products as it determines. Reseller agrees to actively market and distribute the Product, within the Territory throughout the term of the Agreement, using no less than commercially reasonable efforts, and at all times subject to compliance with the Nimble marketing and partner guidelines as may be updated from time to time in Nimble’s sole discretion.
6. LICENSES; OWNERSHIP.
6.1 Product License. Subject to the terms and conditions of this Agreement, Nimble grants to Reseller a nonexclusive, non-transferable (except as permitted under Section 12.1 (“Assignment”)), revocable license to (a) sell the Products (excluding any Software incorporated therein) and (b) sell licenses to the Software solely as incorporated in the Products to Customers in the Territory. Reseller is not authorized to sell the Products or licenses to the Software to Customers outside of the Territory or through any other distribution channel without written consent from Nimble. Any reference to the sale of Products in this Agreement will be deemed, with respect to the Software incorporated therein, a reference to the sale of licenses for such Software.
6.2 End User Agreements. All sales of Product and Services, and all licenses of Software are subject to Nimble’s then-current terms and conditions available at http://www.nimblestorage.com/docs/ (the “General Terms and Conditions”). Reseller will inform Customers that their purchase, installation, and use of Products and Support Services will be subject to the Customers’ separate agreement to the General Terms and Conditions. Without limiting the foregoing, Nimble may separately require Customers to agree to the General Terms and Conditions in order to install and use the Products and Software, and to register with Nimble in order to receive Support Services. Reseller will enforce each such agreement with Customers with at least the same degree of diligence that Reseller uses to enforce similar agreements for its own products or other products that it distributes, but in no event less than reasonable efforts. Reseller will immediately notify Nimble if Reseller becomes aware of any breach of the General Terms and Conditions relating to the Products and agrees to cooperate with Nimble in any legal action to prevent or halt any unauthorized activity with respect to the Products or any software incorporated therein.
6.3 Third Party Software. Certain modules or technology included by Nimble within the Nimble Products are provided by Nimble’s direct or indirect licensors (“Licensors”). Certain requirements imposed by the Licensors are included with the Product(s) and are
incorporated herein by reference. The Third-Party Software requirements are included for the express benefit of the corresponding Licensors who are third-party beneficiaries of, and entitled to enforce, such provisions. Updates to the Software and new product offerings may be subject to revised Third-Party Software requirements that will be made available to the Customer as of the date of installation of a Software update or new offering and are effective immediately upon installation.
6.4 Demonstration License. Subject to the terms and conditions of this Agreement, Nimble hereby grants Reseller a nonexclusive, non-transferable (except as permitted under Section 12.1 (“Assignment”)), revocable license to use, perform, and display the Products solely for the purpose of demonstrations to potential Customers in the Territory, subject to purchase by the Reseller of such Product through Nimble’s “Not-For-Resale” purchase program with Nimble’s consent.
6.5 License Restrictions. Reseller acknowledges and agrees that the Products and the design, structure, and source code of the Software incorporated therein constitute valuable trade secrets of Nimble and its suppliers. Reseller agrees not to (a) modify, adapt, alter, translate, or create derivative works from the Products; (b) except as expressly permitted hereunder, distribute, sublicense, lease, rent, loan, or otherwise transfer the Products to any third party; (c) reverse-engineer or disassemble the Products; or (d) reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code of any Software incorporated in the Products or otherwise provided by Nimble for use with the Products. Reseller will not remove, alter, or obscure in any way any proprietary rights notices (including copyright notices and patent markings) of Nimble or its suppliers on or within the units or packaging of Products furnished by Nimble to Reseller hereunder.
6.6 Trademark License. Subject to the terms and conditions of this Agreement, Nimble hereby grants to Reseller a non-exclusive, non-transferable, revocable license to use the Nimble Marks in the Territory solely to market and promote the Products. All marketing and promotion of the Products and use of the Nimble Marks by Reseller must be in accordance with Nimble’s standard trademark policy and pursuant to the marketing guidelines as set forth in Section 5.1 (as it may be updated from time to time by Nimble in its discretion). Reseller agrees to state in appropriate places on all materials using the Nimble Marks that the Nimble Marks are trademarks of Nimble and to include the symbol ™ or ® as appropriate. Nimble grants no rights in the Nimble Marks other than those expressly granted in this Section 6.6. Reseller acknowledges Nimble’s exclusive ownership of the Nimble Marks. Reseller agrees not to take any action inconsistent with such ownership in any jurisdiction and to cooperate, at Nimble’s request and expense, in any action (including the conduct of legal proceedings) which Nimble deems necessary or desirable to establish or preserve Nimble’s exclusive rights in and to the Nimble Marks. Reseller will not adopt, use, or attempt to register any trademarks or trade names in any jurisdiction that are the same or confusingly similar to the Nimble Marks or in such a way as to create combination marks with the Nimble Marks, including, but not limited to, through the registration and/or use of any domain name or URL containing “nimblestorage” or derivatives thereof, nor will Reseller oppose any action taken by Nimble to register the foregoing. Reseller will provide Nimble with samples of all products and materials that contain the Nimble Marks prior to their public use, distribution, or display for Nimble’s quality assurance purposes and will obtain Nimble’s written approval before such use, distribution, or display. At Nimble’s request, Reseller will modify or discontinue any use of the Nimble Marks if Nimble determines that such use does not comply with Nimble’s then-current trademark usage policies and marketing guidelines. Reseller will promptly notify Nimble if Reseller becomes aware of any unauthorized party using a Nimble Mark, and agrees to cooperate with Nimble in any legal action to prevent or halt any unauthorized activity with respect to: (i) the use of the Nimble Marks or (ii) marketing of the Products.
6.7 Ownership. As between Nimble and Reseller, title to, and ownership of each copy of the Software, and all Intellectual Property Rights or other proprietary rights relating to the Products will remain at all times with Nimble and/or Nimble’s licensors. Reseller: (i) will not represent to any third party that Reseller owns or controls any rights or interest in or to such Intellectual Property Rights, apart from the limited licenses granted herein; (ii) will not take any action which might foreseeably impair, limit or derogate either any Intellectual Property Right of Nimble or its licensors, or any claim, action or suit based thereon; and (iii) agrees that all licenses or rights will be only as expressly granted in this Agreement and that no license or right will be deemed to be granted by implication, waiver, estoppel or otherwise. Reseller will use reasonable efforts to ensure that Customers respect Nimble’s Intellectual Property Rights and will notify Nimble of any infringements that come to Reseller’s attention and assist Nimble in any prosecutions that Nimble may undertake. There are no implied licenses under this Agreement, and all rights in and to the Products not expressly granted to Reseller in this Agreement are reserved by Nimble.
7.1 Support. All Support Services will be ordered on behalf of the Customer from
Nimble through Reseller’s Distributor.
8.1 By Nimble Storage. Subject to the indemnification procedures set forth below in Section 8.3 (“Indemnification Procedures”), Nimble will defend Reseller with respect to any claim, suit, or proceeding (a “Claim”) brought against Reseller by a third party resulting from or arising out of any breach by Nimble of its obligations, duties, or responsibilities under this Agreement; and will pay any resulting damages, costs, and expenses finally awarded to such third party or agreed to in a settlement.
8.2 By Reseller. Reseller will defend Nimble with respect to any Claim brought against Nimble by a third party resulting from or arising out of (a) any breach by Reseller or its agents of Reseller’s representations, warranties, obligations, duties, or responsibilities under this Agreement; (b) any actions, omissions or representations on the part of Reseller or its agents in marketing, selling, or distributing the Products.
8.3 Indemnification Procedures. Reseller will (a) give Nimble prompt notice of the relevant claim; (b) cooperate with Nimble, at Nimble’s expense, in the defense of such claim; and (c) give Nimble the right to control the defense and settlement of any such claim (except that Nimble may not offer a defense or agree to any settlement that does not unconditionally release Reseller, without Reseller’s prior written consent).
9. LIMITATION OF LIABILITY.
9.1 Limitation of Damages. EXCEPT IN THE CASE OF BREACHES OF SECTION 6 (“LICENSES; OWNERSHIP”) OR 11 (“CONFIDENTIALITY”), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, OR ANY OTHER ENTITY OR PERSON, FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) OF ANY KIND, OR FOR THE COST OF PROCURING ALTERNATE OR SUBSTITUTE GOODS OR SERVICES, WHETHER ARISING UNDER BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND WHETHER BASED ON THIS AGREEMENT OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASE OF BREACHES OF SECTION 6 (“LICENSES; OWNERSHIP”) 11 (“CONFIDENTIALITY”), OR 12.3 ("Compliance"), INCLUDING INDEMNIFICATION CLAIMS ARISING OUT OF A BREACH OF THE OBLIGATIONS OF SECTION 12.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT WILL EXCEED U.S. $100,000. THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF TWO OR MORE CLAIMS OR SUITS WILL NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE THAT THE FEES SPECIFIED IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF ITS LIABILITY. Some jurisdictions do not allow the exclusion or limitation of liability, so the above limitation or exclusion may not apply.
10. TERM AND TERMINATION.
10.1 Term. This Agreement shall become effective upon the Effective Date when accepted by Nimble as set forth in Section 12.10, and, unless earlier terminated in accordance with this Agreement, will continue in full force and effect.
10.2 Termination. This Agreement may be terminated by either party if the other party breaches a material term or condition of this Agreement and fails to cure such breach within thirty (30) days of receipt of notice of such breach. This Agreement may also be terminated by either party for convenience, upon thirty (30) days’ prior written notice to the other party.
10.3 Effect of Termination. Upon termination or expiration of the Agreement for any reason, (a) all licenses granted hereunder will expire except for any end user licenses between Customers and Nimble; and (b) each Party will promptly return to the other Party (or destroy, and provide a certificate of destruction signed by a company officer upon request) all Confidential Information of the other Party in such Party’s possession. Upon termination or expiration of this Agreement for any reason, the following Sections will survive and remain effective: 1 (“Definitions”); 2.3 (“Nonexclusivity”); 6.3 (“Third Party Software”); 6.5 (“License Restrictions”); 6.6 (“Trademark License”) (only with regard to the ownership and license restriction provisions set forth therein); 6.7 (“Ownership”); 8 (“Indemnification”);
9 (“Limitation of Liability”); 10.3 (“Effect of Termination”); 11 (“Confidentiality”); and 12 (“General
11.1 Existing NDA (if applicable). If a valid nondisclosure agreement is in effect between the parties and would protect communications made under this Agreement (the "NDA") at the time of the communication, then all such communications will be subject to the terms and conditions of such NDA, which the parties acknowledge will continue to be in full force and effect during the term of this Agreement regardless of any expiration or termination of the NDA. The parties agree that the Product Specification(s) and Software will be considered Nimble’s Confidential Information under the NDA. The purpose of such NDA is amended to include the performance of this Agreement. In the event of a conflict between the terms of this Agreement and the terms of the NDA, the terms of this Agreement will be controlling.
11.2 If No NDA Exists. If no NDA exists, then the following terms will apply. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information to the Receiving Party within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, however: (i) any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party; and (ii) ProductSpecification(s), Product Price and Software will be considered Nimble’s Confidential Information.
11.3 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to those employees who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
11.4 Exceptions. Notwithstanding the provisions of this Section 11, Confidential Information will not include any information which is: (i) published or otherwise available to the public other than by breach of this Agreement; (ii) rightfully received by the Receiving Party from a third party without confidential limitations; (iii) independently developed by the Receiving Party as evidenced by appropriate records; (iv) known to the Receiving Party prior to its first receipt of same from the Disclosing Party as evidenced by appropriate records; or (v) approved for public release by written authorization of the Disclosing Party. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of the Receiving Party, the Receiving Party will promptly notify the Disclosing Party of the order or request and permit the Disclosing Party (at its own expense) to seek an appropriate protective order.
11.5 Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its affiliates, attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law or (b) pursuant to a mutually agreeable press release or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party to this Agreement).
12. GENERAL PROVISIONS.
12.1 Assignment. Reseller may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without Nimble’s prior written consent. Nimble may freely assign this Agreement or delegate any of its duties under this Agreement to any third party without Reseller’s consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
12.2 Injunctive Relief. Notwithstanding any other provisions of this Agreement, breach of the provisions of Section 6 (“Licenses; Ownership”) or 11 (“Confidentiality”) of this Agreement will cause the non-breaching Party irreparable damage for which recovery of money damages would be inadequate, and such non-breaching Party will therefore be entitled to obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law.
12.3 Compliance. Reseller represents, warrants and agrees that it (i) shall abide by Nimble's Partner Code of Conduct ("PCC") as located on Nimble's Partner Portal website, and as may be updated by Nimble from time to time; and (ii) has complied and shall continue to comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act ("FCPA") and U.K. Bribery Act (all of the foregoing referred to as the "Anti-Corruption Laws"). Reseller will comply with applicable laws applicable laws, rules, ordinances and regulations of the United States, and with any other jurisdiction in which it acts. If Nimble has reasonable grounds to suspect that the Reseller has violated the PCC or the Anti-Corruption Laws, during the term of this Agreement and for a period of one (1) year thereafter Nimble shall have the right to audit the relevant books and records of the Reseller related to its activities in connection with this Agreement, the marketing and sale of Nimble Products, and the suspected violation, including as applicable all charges made and services performed by the Reseller pursuant to this Agreement and payments (whether in kind or in cash) made by the Reseller for or on behalf of Nimble. Reseller will cooperate fully in connection with any audit hereunder, and will allow, or obtain, access to such Reseller books and records, personnel, and third party providers as Nimble may reasonably require for such audit purposes. All audits will be conducted with reasonable prior written notice of not less than fifteen (15) business days, at the expense of Nimble, and subject to the confidentiality provisions set forth in Section 11.
12.4 Notices. All notices, consents and approvals under this Agreement must be delivered in writing personally, by FedEx or other international overnight service, by electronic facsimile, by email, or by certified or registered mail, (postage prepaid and return receipt requested) if to Nimble, at the address identified above, and if to Reseller, at the address identified in Reseller’s Nimble Partner Program application, , and will be effective upon receipt or when delivery is refused. Either party may change its address by giving notice of the new address to the other party as specified herein, although for purposes of change of address notices, email (with confirmation of receipt) will suffice.
12.5 Governing Law. This Agreement will be governed by the laws of the State of
California without giving effect to any conflict of laws principles that require the application of the laws of another jurisdiction. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and any jurisdiction’s adoption of the Uniform Computer Information Transactions Act (or any similar law) will not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court located in Santa Clara County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
12.6 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.7 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.8 Construction. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to”.
12.9 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
12.10 Acceptance. This Agreement is a legal agreement between Nimble, Inc. and the Reseller. By clicking “I Accept”, you represent that you are authorized to bind Reseller and agree on behalf of Reseller to the terms and conditions set forth herein. Acceptance into the Reseller program is at the sole discretion of Nimble and shall not be binding until the Reseller receives from Nimble a written acceptance notification sent via the email address provided by the Reseller in the Nimble Partner Program application.