IMPORTANT – READ CAREFULLY. THIS MATTERMOST, INC. SALES PARTNER AGREEMENT (“AGREEMENT”) SETS FORTH THE LEGAL TERMS AND CONDITIONS WHICH GOVERN RELATIONSHIP BETWEEN YOU (“SALES PARTNER” OR “YOU”) AND MATTERMOST, INC. (“MATTERMOST”) AND THE RELATED TERMS AND CONDITIONS APPLICABLE TO ANY MATTERMOST SOFTWARE YOU DOWNLOAD OR ACCESS. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU SHOULD CLICK ON CANCEL AT THE BOTTOM OF THIS PAGE AT WHICH POINT YOU WILL NOT BE GRANTED ACCESS TO THE PRODUCT. DO NOT CLICK “I ACCEPT” UNLESS (1) YOU ARE AUTHORIZED TO ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF SALES PARTNER AND (2) YOU INTEND TO ENTER INTO AND TO BE BOUND BY THE TERMS OF THIS AGREEMENT ON BEHALF OF SALES PARTNER. IF YOU CLICK ON THE BOX AT THE BOTTOM OF THIS PAGE LABELED “I ACCEPT”, SALES PARTNER WILL BE GRANTED ACCESS TO THE PRODUCT, AND THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY (THE “EFFECTIVE DATE”).
“Customer” means a customer of Sales Partner (i) who is pre-approved by Mattermost via the deal registration process set forth in Section 2 of this Agreement and (ii) to whom Sales Partner resells Mattermost Product pursuant to an End User Agreement. A Customer includes both individuals and entities, and specifically includes end users of a Mattermost Product associated with any Customer which is an entity.
“Mattermost Product“ means Mattermost Enterprise Edition sold to Sales Partner pursuant to purchase orders placed by Sales Partner under this Agreement.
“End User Agreement” means an agreement between Sales Partner and Customer for access to Mattermost Product containing at a minimum the terms and conditions set forth on Exhibit A to this Agreement.
“Open Source Software“ means computer programs included which are made available under any license recognized as a free, libre or open source license (including but not limited to the GNU General Public License and other similar licenses).
“Third Party Software” means third party or Open Source Software, including open source software developed by Mattermost and open source software included in the Mattermost Product.
I. Terms and Conditions
1. Appointment: License; Restrictions
(a) Appointment; Restrictions. Subject to the terms and conditions of this Agreement, Mattermost appoints Sales Partner as a non-exclusive reseller to Customers of the Mattermost Product. Sales Partner agrees that Sales Partner will acquire Mattermost Products solely for resale to Customers and no other purpose. Sales Partner may refer potential customers to Mattermost for product or services other than the Mattermost Products, such as support, consulting or other services, but absent a separate, express written agreement between Mattermost and Sales Partner, Sales Partner will not be compensated for such referrals. Upon mutual agreement, Sales Partner and Mattermost will conduct marketing activities related to Mattermost Products.
(b) Demonstration License. Subject to Sales Partner’s compliance with this Agreement, Mattermost hereby grants to Sales Partner a non-exclusive, non-sublicensable, license to use the Mattermost Product solely to educate and train their internal staff on the product and to demonstrate the Mattermost Products to potential Customers.
(c) License Restrictions. Sales Partner will not, and will not authorize any third party (i) alter, modify, translate, or adapt any Mattermost Product or create any derivative therefrom; (ii) copy, reverse engineer or attempt to derive the source code of any Mattermost Product, except to the extent expressly authorized to do so by applicable law or license; (iii) assign, sublicense or otherwise transfer the Mattermost Product, in whole or in part, except in conjunction with the resale of the Mattermost Product containing such Mattermost Product; (iv) use the Mattermost Product except as specifically contemplated in this Agreement and in accordance with any documentation; (v) disclose the Mattermost Product to any third party except as specifically contemplated in this Agreement; or (vi) access or use any Product Materials or Services in order to build a competitive product or service. The entire right, title and interest in and to the Mattermost Product will remain with Mattermost, and Sales Partner will not remove any copyright notices or other legends from the Software or any documentation.
(d) Reservation. All rights not expressly granted by Mattermost to Sales Partner are retained by Mattermost. All licenses set forth in this Agreement, are subject to, and do not modify, the terms of any Open Source Software license applicable to the Mattermost Products.
2. Deal Registration
Sales Partner will notify Mattermost in writing or through a submission on the Mattermost partner online Deal Registration Form (“DRF”) of a proposed Customer. If Mattermost determines that such potential Customer is an appropriate target for Mattermost Products, Mattermost will respond to the DRF with written confirmation that Sales Partner may offer for sale to such potential Customer the Mattermost Product (the “Approval”). Mattermost will not unreasonably withhold or delay its Approval. Upon receipt of the Approval, Sales Partner may market or offer, as applicable, the approved Mattermost Product to such potential Customer. Approvals will remain in effect for a period of six months, at which time, if the potential Customer has not entered into a Customer Agreement the Approval is revoked. Sales Partner may resubmit the DRF, but Mattermost is under no obligation to provide Approval therefor.
(a) Customer Agreements. Sales Partner will ensure that each Customer enters into an End User Agreement. Sales Partner will diligently enforce such End User Agreement. Sales Partner will promptly notify Mattermost of any violations of the End User Agreement of which Sales Partner is aware and will further notify Mattermost with respect to the steps Sales Partner has taken, and the steps Sales Partner is planning to take, to stop such violations. Sales Partner will acquire Mattermost Products directly from Mattermost. Sales Partner agrees that (1) Mattermost will be a third-party beneficiary of any End User Agreement entered into directly between Sales Partner and Customer; and (2) the terms thereof are made expressly for the benefit of Mattermost and are enforceable by Mattermost.
(b) Order; Delivery. With respect to each sale of a Mattermost Product to a Customer, Sales Partner will follow Mattermost’s then-current process for placing orders including providing any information about the Customer as may be required by Mattermost. Mattermost will use commercially reasonable efforts to respond to each purchase order promptly following receipt thereof. No purchase order will be binding on Mattermost until accepted (in whole or in part) by Mattermost. No term or condition contained on or in, or referenced by, any purchase order, which is different from or conflicts with any term or condition of this Agreement is expressly rejected, and acceptance of any related purchase order will not be deemed to be acceptance of any such additional or different terms and conditions. The Mattermost Product will be deemed delivered when Mattermost makes the Mattermost Product first available to the Sales Partner. Sales Partner hereby acknowledges and agrees that Mattermost may the change or discontinue the Mattermost Product or the process for the ordering and delivery of the products and services upon twenty (20) days written notice to Sales Partner.
(c) Fees;Payment Terms for Customers. Sales Partner will pay to Mattermost for orders placed hereunder within thirty (30) days after the date the order is accepted by Mattermost. Sales Partner’s sole compensation for resales of a Mattermost Product under this Agreement is represented by discounts off the Mattermost Product standard list prices. Fees paid or payable to Mattermost pursuant to this Agreement are non-refundable and non-cancelable regardless of whether a Customer pays any corresponding fees to Sales Partner. The list prices for Mattermost Products do not include and are net of any foreign or domestic governmental taxes or charges of any kind that may be applicable to the sale, licensing, marketing, or distribution of Mattermost products and services, including without limitation, excise, sales, use, property, license, value-added taxes, franchise, income, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties. Any such taxes, except those taxes that are imposed on the net income of Mattermost, are solely the responsibility of Sales Partner. Sales Partner will maintain a valid resale certificate from local tax authorities, if required by local law, and provide the certificate to Mattermost upon request. In addition, upon Mattermost’s reasonable request, but not more than once each calendar year, Sales Partner will provide Mattermost with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Mattermost to establish that such taxes have been paid.
At such time as Mattermost requests, Sales Partner will certify to Mattermost in writing that Sales Partner has complied with the requirements of this Agreement. Mattermost will have the right, once per calendar year and with reasonable notice to Sales Partner, to have Sales Partner’s records inspected and audited to verify compliance with the terms and conditions of this Agreement. Any such audit will take place during normal business hours and will be conducted in accordance with applicable government requirements, if any. Mattermost will pay for the audit, unless the audit discovers an underpayment of five percent (5%) or greater, in which case Sales Partner will pay for the audit. Sales Partner will pay any underpayment to Sales Partner within thirty (30) days of receiving notice of the underpayment.
5. Rights in Intellectual Property
(a) Ownership; Reservation of Rights. As between Mattermost and Sales Partner, Mattermost retains all right, title and interest (including all intellectual property rights and other rights) in and to the Mattermost Products, including any updates, modifications, and derivative works thereto. Sales Partner does not acquire any other rights, express or implied, in the Mattermost Products other than those rights expressly granted under this Agreement. Sales Partner: (i) will not represent to any third party that Sales Partner owns or controls any rights or interest in or to Mattermost Products 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 Mattermost, or any claim, action or suit based thereon; (iii) will not private label, re-brand sub-brand or co-brand any Mattermost Product or component thereof and (iv) 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.
(b) Marks. Each party grants to the other a revocable, nonexclusive, nontransferable, royalty-free right to display such party’s respective trademarks, service marks, and logos (the “Trademarks”) for the sole purpose of identifying the other as a partner, subject to the terms of this Agreement and such party’s standard trademark usage guidelines. The use of all Trademarks will be subject to the approval of the other party, which approval will not be unreasonably withheld or delayed. If a party has any concerns with respect to the other party’s use of any Trademarks, it will notify the other party and if requested, the other party shall promptly make any requested changes or cease all use of such Trademark and marketing materials. On termination of this Agreement, each party will cease use of the Trademarks of the other party’s
6. Term and Termination
(a) Term. This Agreement will begin on the Effective Date and will continue in force until June 30th of each calendar year, unless that initial term will be less than six months, in which case the Agreement will continue in force until the second June 30th following the Effective Date. Thereafter, this Agreement will automatically renew for additional one-year periods unless terminated as set forth herein.
(b) Termination for Cause. This Agreement may be terminated by either party upon notice if the other party (i) breaches any material term or condition of this Agreement and fails to remedy the breach within thirty (30) days after being given notice thereof, or (ii) ceases to function as a going concern or to conduct operations in the normal course of business, or (iii) has a petition filed by or against it under any bankruptcy or insolvency laws which petition has not been dismissed or set aside within sixty (60) days of filing. Mattermost may terminate this Agreement, at any time, in the event Sales Partner fails, in the sole reasonable discretion of Mattermost, to provide high-quality service to any Customer.
(c) Termination for Convenience. Either party may terminate this Agreement for any reason upon ninety (90) days written notice to the other party.
(d) Effect of Termination. Upon termination of this Agreement, Sales Partner’s appointment as a reseller and remarketer, and all licenses granted to Sales Partner under this Agreement will immediately terminate, provided, however, that each End User Agreement will survive for the remaining then-current term of such End User Agreement. Sales Partner and Mattermost will destroy or return to the other any copies of Confidential Information of the other party that is in its possession or under its control, with the exception of information sent to Mattermost for Customer support or information necessary to continue providing Mattermost Products to Customers. Sales Partner will make no further sales of Mattermost Products. Neither party will be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investment, leases or commitments in connection with the business or goodwill of Mattermost or Sales Partner. Termination will not, however, relieve either party of obligations incurred prior to the termination.
(e) Survival of Provisions. The provisions of Sections 1c, 1d, 3c, 4, 5a, 6d, 6e, 7a-7c, 8, 10 and 11of this Agreement, all associated definitions and all accrued rights to payment, will survive the termination of this Agreement for any reason. All other rights and obligations of the parties will cease upon termination of this Agreement.
7. Disclaimers; Warranties and Representations
(a) Warranty. Mattermost warrants, solely to Sales Partner, that for a period of sixty (60) days after the Mattermost Product is delivered to a Customer (the “Warranty Period”), the Mattermost Product, when installed properly and used as anticipated by this Agreement and the Product Purchase Agreement, will be capable of functioning substantially in accordance with the documentation published by Mattermost at the time of delivery to the Customer of such Mattermost Product. If Mattermost breaches this warranty, Mattermost’s sole obligation shall be to remedy such breach as set forth in this Section. At the sole discretion of Mattermost, Mattermost will either: (i) repair or replace the defective Mattermost Product to enable it to perform substantially in accordance with the documentation published by Mattermost at the time of delivery to the Customer of such Mattermost Product or (ii) terminate this Agreement and refund to Sales Partner the fees paid by Sales Partner to Mattermost for the defective Mattermost Product for the Customer in question for the twelve (12) month period prior to such termination of the Agreement minus an allowance for the period the Customer used the Mattermost Product. This warranty will not apply if the Customer fails to implement all product updates to the Mattermost Product made available to the Customer, and Mattermost shall have no obligation to Sales Partner for breach of the warranty set forth in this Section if Sales Partner fails to notify Mattermost thereof during the Warranty Period.
(b) DISCLAIMER. EXCEPT AS PROVIDED IN SECTION 7, MATTERMOST MAKES NO WARRANTIES (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) WITH RESPECT TO ANY SOFTWARE OR SERVICES PROVIDED HEREUNDER. MATTERMOST SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT. MATTERMOST DOES NOT WARRANT THAT ANY SOFTWARE OR SERVICES PROVIDED HEREUNDER WILL MEET SALES PARTNER’S OR CUSTOMERS’ OR END USERS’ REQUIREMENTS, THAT THE OPERATION OF ANY SOFTWARE PROVIDED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
(c) No Authority to Make Other Warranties. Sales Partner has no authority, without the prior written consent of Mattermost, to bind Mattermost to any contract, representation, understanding, act or deed concerning Mattermost, the Mattermost Products, or any other service or product offered by Mattermost that is outside the scope of this Agreement. Sales Partner will not make any warranties or representations binding on Mattermost, and Sales Partner will limit its representations regarding Mattermost products and services to those contained in the End User Agreement.
(d) No Other Competitive Referrals. Sales Partner agrees not to refer potential customers to any person or entity, other than Mattermost, that offers products and services that are in competition with those offered by Mattermost.
8. Limitation of Liability
(a) Limitation. EXCEPT WITH RESPECT TO SALES PARTNER’S BREACH OF ITS LICENSED RIGHTS OR ITS OBLIGATION FOR PROTECTION OF MATTERMOST’S MARKS, EACH PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT, THE TERMINATION THEREOF, AND/OR THE PROVISION OF GOODS OR SERVICES HEREUNDER WILL BE LIMITED TO THE AMOUNT PAID BY SALES PARTNER HEREUNDER TO MATTERMOST IN THE TWELVE MONTHS PRECEDING ANY CLAIM.
(b) Disclaimer. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY: (1) FOR LOSS OF DATA, LOSS OF PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (2) FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, UNDER ANY CAUSE OF ACTION, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS LIMITATION WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
(a) By Mattermost. Mattermost will, during the term of this Agreement, defend and indemnify Sales Partner from and against any claim, action, injury, loss or expense, including reasonable attorneys and expert witness fees (collectively “Losses”) which Sales Partner incurs arising out of a third party claim that the Mattermost Product delivered to Sales Partner by Mattermost pursuant to this Agreement infringes any copyright or U.S., E.U. or Japanese patent as of the Effective Date of the Agreement. Mattermost’s obligations do not include Losses arising from (i) modifications to the Mattermost Product made by a party other than Mattermost, (ii) combinations of the Mattermost Product with any third party product or service, (iii) Third Party Software, or (iv) continued use of the Mattermost Product after receiving notice to cease use due to an infringement claim.
(b) By Sales Partner. Sales Partner will, at its expense, defend and indemnify Mattermost from and against any Losses which Mattermost incurs as a result of the activities of Sales Partner, or performance of, or failure to perform any services, related thereto, including any claims arising out of Sales Partner’s breach of any provision of this Agreement, the issuance by Sales Partner of any warranty or representation regarding Mattermost Products or Mattermost’s products or services not specified in this Agreement, or Sales Partner’s violation or alleged violation of any applicable laws.
(c) Conditions. Neither party will have the obligation to indemnify the other under this Section with respect to any Losses if party seeking indemnification fails to promptly notify the other party of the claim or action (provided that such failure results in actual prejudice to the indemnifying party), refuses to give such other party sole control over the defense or settlement of the claim or action, or fails to cooperate with such other party in the defense or settlement of such claim or action.
10. Confidential Information
(a) Definition. As used in this Agreement, the term “Confidential Information” will mean any information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) pursuant to this Agreement which is in written, graphic, machine readable or other tangible form and is marked “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature or would be understood to be confidential given the nature of the information and circumstances governing disclosure. Despite the foregoing, the Product, and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information.
(b) General. Except with the consent of the Disclosing Party, the Receiving Party will hold in confidence and not use or disclose any Confidential Information of the Disclosing Party except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the disclosure, unauthorized duplication, misuse or removal of the other party’s Confidential Information and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such party under this Agreement, and subject to confidentiality and nonuse obligations at least as protective as those set forth herein. Without limiting the foregoing, the Receiving Party will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the Disclosing Party, but in no event less than reasonable care.
(c) Exceptions. Notwithstanding the above, the Receiving Party’s nondisclosure obligation will not apply to information it can document (i) is generally available to the public other than through breach of this Agreement (ii) is rightfully disclosed to the Receiving Party by a third party or (iii) is independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.
(d) Remedies. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the Disclosing Party’s remedies at law for a breach by the Receiving Party of its obligations under this Section may be inadequate and that the Disclosing Party will be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance). Nothing stated herein will limit any other remedies provided under this Agreement or available to the Disclosing Party at law. Upon expiration or termination of this Agreement for any reason, each party will return all copies of all Confidential Information of the other party in its possession or control.
(a) Controlling Law; Venue. This Agreement is governed by the laws of the State of California, USA, without reference to conflict of laws principles and excluding the 1980 United Nations Convention on Contracts. Any claim,controversy, or dispute concerning this Agreement will be brought in the state and federal courts located in Santa Clara County, California, USA. The prevailing party will be entitled to collect reasonable attorneys’ fees.
(b) Assignment. Sales Partner may not assign or delegate this Agreement or any of its licenses, rights or duties under this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of Mattermost. Upon any attempted prohibited assignment or delegation, this Agreement will automatically terminate. Except as provided above, this Agreement will inure to the benefit of each party’s successors and assigns. Mattermost may assign this agreement without notice to or consent of Sales Partner in connection with a merger, acquisition, asset transfer, or corporate reorganization.
(c) Notices. All notices under this Agreement will be in writing, and will be deemed given when personally delivered; three (3) days after being sent by prepaid certified, registered airmail, air or courier; or upon delivery when sent by express mail or facsimile with confirmation of receipt to the address of the party to be noticed as set forth herein below (or such other address either party may hereafter communicate to the other in writing from time to time). Notices will be provided (i) to Mattermost at Mattermost, Inc., 855 El Camino Real, 13A-168, Palo Alto, California 94301 USA, Attn: Legal Notices, and (ii) to Sales Partner at the address provided by Sales Partner to Mattermost.
(d) Partial Invalidity. If any paragraph, provision, or clause in this Agreement will be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, the remainder of this Agreement will be valid and enforceable and the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly effects the parties’ intent at the time of entering into this Agreement.
(e) Counterparts. This Agreement may be executed in one or more counterparts, all of which, taken together, will be regarded as one and the same instrument.
(f) Amendments; No Waiver. No alteration, modification, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be effective unless in writing and signed by the party to against whom enforcement is sought. The failure of either party to enforce at any time the provisions of this Agreement will in no way constitute a present or future waiver of such provisions, nor in any way affect the right of either party to enforce each and every such provision thereafter.
(g) Independent Contractors. The relationship of Mattermost and Sales Partner established by this Agreement is that of independent contractors, and despite the use of the term “Sales Partner”, nothing contained in this Agreement will be construed to constitute the parties as partners, joint venturers, legal representatives, employees, franchisees, agents, co-owners or otherwise as participants in a joint or common undertaking, or allow either party to create or assume any obligation on behalf of the other party. All financial obligations associated with a party’s business are the sole responsibility of such party.
(h) FCPA Compliance. Sales Partner will comply strictly with the United States Foreign Corrupt Practices Act (the “FCPA”) and all anti-corruption laws and regulations of any country in which Sales Partner resells or remarkets the Mattermost Products. At no time during this Agreement, will Sales Partner pay, offer, give or promise to pay or give, any monies or any other thing of value, directly or indirectly to: (a) any officer or employee of any government, or any department, agency or instrumentality of any government; (b) any other person acting for, or on behalf of, any government, or any department, agency or instrumentality of any government; (c) any political party or any official of a political party; (d) any candidate for political office; (e) any officer, employee or other person acting for, or on behalf of, any public international organization; or (f) any other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any of the foregoing persons. Sales Partner represents and warrants that: (i) Sales Partner is not owned or controlled by, or otherwise affiliated with, any government, or any department, agency or instrumentality of any government; and (ii) none of Sales Partner’s officers, directors, principal shareholders or owners is an official or employee of any government or any department, agency or instrumentality of any government. Sales Partner acknowledges and agrees that any breach of this Section will be grounds for immediate termination of this Agreement by Mattermost.
(i) Export Control. Sales Partner understands and acknowledges that Mattermost is subject to regulation by agencies of the United States Government, including, but not limited to, the United States Department of Commerce, which prohibit export or diversion of certain software, technology and information to certain countries. Any and all obligations of Mattermost to provide products and services, as well as any other technical information or assistance shall be subject, in all respects, to such United States laws and regulations as shall from time to time govern the license and delivery of technology and software abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations issued by the Department of Commerce, Bureau of Industry and Security. Sales Partner warrants that it will comply with the Export Administration Regulations and other United States laws and regulations governing exports in effect from time to time. In particular, and without limitation, Sales Partner may not provide to any Customer, or export or re-export or allow the export or re-export of, any Mattermost Product or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Mattermost Product is subject to Sales Partner’s representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.
(j) Force Majeure. Neither party will be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such failure or delay results directly or indirectly from an event beyond such party’s reasonable control.
(k) Compliance. Sales Partner agrees that it will comply with all applicable laws of each jurisdiction applicable to Sales Partner’s activities under this Agreement, including any U.S. or foreign export or import laws.
THIS AGREEMENT, INCLUDING ALL ATTACHMENTS, EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF PURCHASE ORDERS AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF.
Sales Partner shall ensure that each End User Agreement contains, at a minimum, substantially the following terms, in each case allowing reasonable modifications to keep consistent terminology and without materially changing the associated meaning.
“Customer“ means the person or entity licensing a Mattermost Product under the terms set forth herein. Customer includes both individuals and entities, and specifically includes end users of a Mattermost Product associated with any Customer which is an entity.
“Licensed Software“ means all of the software that may be delivered to a Customer.
“Mattermost Product“ means Mattermost’s E10 and E20 products.
“Title“ means, subject to any applicable public license, all right, title and interest to the patents, trademarks, service marks, trade names, copyrights, trade secrets, inventions, and know-how relating to the Licensed Software.
Subject to the Customer’s compliance with the terms and conditions of this Agreement, Mattermost hereby grants to Customer a limited, non-exclusive, non-transferable, global, non-sublicensable license to (1) internally run and use the number of concurrent instances of the Licensed Software to manage internal corporate communications and invite external users to communicate via the number of unique users (employees, contractors, and invited third parties) for which Customer has a current subscription to the Mattermost Enterprise Edition; and (2) use the documentation, training materials or other materials supplied by Mattermost the “Other Mattermost Materials”) to enable the internal use specified above. Customer’s licenses shall terminate upon any termination of the Agreement.
Intellectual Property Ownership.
Except to the extent licenses are expressly granted under the terms of an applicable license, Mattermost alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Licensed Software and any suggestions, ideas, enhancement requests, feedback, code, recommendations or other information provided by Customer or any third party relating to the Licensed Software, which are hereby assigned to Mattermost. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Licensed Software, or any intellectual property rights. Customer shall not remove, alter or obscure any of Mattermost’s (or its licensors’) copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Mattermost’s (or its licensors’) ownership or contribution from the Licensed Software. Additionally, Customer agrees to reproduce and include Mattermost’s (and its licensors’) proprietary and copyright notices on any copies of the Licensed Software, or on any portion thereof, including reproduction of the copyright notice. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all information, content and data provided by or on behalf of Customer and made available or otherwise distributed through use of the Licensed Software (“Content”) and the intellectual property rights with respect to that Content. Customer will indemnify, defend and hold Mattermost harmless from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such claim related to the Content, as incurred. Mattermost may participate in the defense and/or settlement of any applicable Claim with counsel of its choosing at its own expense.
Except as expressly authorized, Customer will not, and will not permit any third party to: reverse engineer (except as expressly required by law) or otherwise derive the source to the Licensed Software, use the Licensed Software for any purpose other than as specifically authorized, or in such a manner that would enable access to the Licensed Software by anyone for whom Customer has not purchased a current subscription; use the Licensed Software or any other Mattermost software for timesharing or service bureau purposes or for any purpose other than its own internal use (including without limitation, sublicensing, distributing, selling, reselling any of the foregoing); use the Licensed Software in connection with any high risk or strict liability activity (including, without limitation, military applications, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital and medical operations or the like); use the Licensed Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any privacy laws, and laws and regulations concerning intellectual property, consumer and child protection, obscenity or defamation); or use the Licensed Software in any manner that (1) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, or libelous (including without limitation, accessing any computer, computer system, network, software, or data without authorization, breaching the security of another user or system, and/or attempting to circumvent any user authentication or security process), (2) impersonates any person or entity, including without limitation any employee or representative of Mattermost, or (3) contains a virus, Trojan horse, worm, time bomb, unsolicited bulk, commercial, or “spam” message, or other harmful computer code, file, or program (including without limitation, password guessing programs, decoders, password gatherers, keystroke loggers, cracking tools, packet sniffers, and/or encryption circumvention programs). Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
Limitation of Liability.
CUSTOMER AGREES THAT DESPITE ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, MATTERMOST SHALL NOT BE LIABLE TO CUSTOMER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY INCLUDING LIABILITY FOR: (I) ANY INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA OR LOST BUSINESS OR PROFITS OR (II) ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR RIGHTS OR (III) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN ALL CASES, THE MAXIMUM AGGREGATE LIABILITY OF MATTERMOST UNDER ANY AND ALL THEORIES OF LIABILITY SHALL NOT EXCEED THE FEES PAID BY THE CUSTOMER IN THE 12 MONTHS PRECEDING ANY CLAIM.
Sales Partner disclaims on behalf of Mattermost any and all warranties, express, implied and statutory, including without limitation any implied warranties of non-infringement, satisfactory quality, merchantability or fitness for a particular purpose.
The Licensed Software is regulated by the Department of Commerce and Export Administration Regulations. Customer shall not transfer, export or re-export, directly or indirectly, the Licensed Software to any Prohibited Entity, and Customer affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity. A Prohibited Entity includes any person or entity that is identified on the Denied Persons List issued by the U.S. Bureau of Industry and Security or otherwise prohibited from receiving the Licensed Software by the U.S. Export Administration Regulations.
High Risk Activities.
The Licensed Software is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, air traffic control, or direct life support machines, in which the failure of the Licensed Software could lead directly to death, personal injury, or severe physical or environmental damage.
Third Party Beneficiary.
Customer agrees that (1) Mattermost is a third-party beneficiary to this Agreement; and (2) the terms thereof are made expressly for the benefit of Mattermost and are enforceable by Mattermost.