|Signing up with the Intel® Cluster Ready partner program is required to enter the procedure of certification or registration of cluster systems, software products, or components. You will follow the flow and process as set out in the section Intel® Cluster Ready documents. With successful certification or registration of cluster systems, software products, or components, your product can be listed as Intel® Cluster Ready, use the Intel® Cluster Ready logo, etc., as described in the partner agreement below.
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|Intel® Cluster Ready Program Agreement for Independent Software Vendors I the undersigned, on behalf of the Company Organization listed below and Company Organization's worldwide directly and indirectly majority owned subsidiaries (hereafter referred to as the "Company"), warrant that I am authorized to enter into this Intel® Cluster Ready Program Agreement ("Agreement") with Intel on behalf of Company, and I understand and agree to the following: Recitals A. Intel has developed a cluster Specification which includes Intel hardware and software products int egrated with hardware, peripherals, and software applications and tools of third party vendors which are intended to be implemented to achieve cluster system needs; B. Intel desires to license the Documentation to Company and Company desires to license from Intel the Documentation for the purpose of developing applications which comply with the Specification, according to the terms and conditions set forth in this Agreement, including the exhibits hereto; C. Intel desires to license the trademark "Intel® Cluster Ready" to Company and Company desires to use the trademark, in connection with Company's products that comply with the Specification. NOW, THEREFORE, the Parties agree as follows: 1. DEFINITIONS 1.1 Intel - shall mean Intel Corporation and its majority owned worldwide subsidiaries 1.2 Program - shall mean the Intel® Cluster Ready Program 1.3 Effective Date - shall mean the date upon which Company accepted this Agreement. 1.4 CNDA - shall mean the Corporate Non-Disclosure Agreement in effect between the Parties. 1.5 Confidential Information - shall mean the confidential information provided by Intel or Company to the other Party pursuant to this Agreement, as defined in the CNDA between the Parties, or where a CNDA does not exist between the parties, as defined in Section 8.2 "Confidential Information" of this Agreement. The Parties agree and acknowledge that the Documentation shall be deemed Confidential Information of Intel, and that the terms and conditions of this Agreement shall be deemed Confidential Information. 1.6 Documentation - shall mean the Specification, Cluster Checker, Registration Procedure and other information, data and procedures delivered by Intel to Company in electronic or paper form under the Program to aid Company in the design and testing of Company's products against the Specification. 1.7 Specification - shall mean the Intel® Cluster Ready Architecture and Specification document which describes Intel hardware and software components integrated with hardware, peripherals, and software tools and applications/technology developed by third parties. The Specification is available at http://www.intel.com/go/cluster. 1.8 Cluster Checker - shall mean the Intel software product known as Intel® Cluster Checker. 1.9 Registration Procedure - shall mean the Intel® Cluster Ready ISV Application Registration document which states the procedure under which Independent Software Vendors may register their software applications under this Program. The Registration Procedure is available at http://www.intel.com/go/cluster . 1.10 Compliant Applications - shall mean Company's software products which comply with the requirements of the Registration Procedure. 1.11 Compliant Product - shall mean a Compliant Application. 1.12 End User - shall mean an entity that has acquired a license to use the Cluster Checker and/or licensed a Compliant Product for its own internal business purposes. 1.13 End User License Agreement - shall mean a written agreement between Intel and an End User, which agreement is either signed by both parties or is in "shrinkwrap" or "clickwrap" form, covering th e use of the Cluster Checker by such End User. 1.14 Licensed Trademarks - shall mean "Intel® Cluster Ready" and the Design Trademark. 1.15 Design Trademark - shall mean the design trademark that is designated as such on http://www.intel.com/go/cluster 1.16 Design Trademark Guidelines - shall mean the guidelines describing the correct way to use the Design Trademark. The Design Trademark Guidelines are available at http://www.intel.com/go/cluster 1.17 Intellectual Property Rights - shall mean (i) all United States and foreign patent and applications for patents, industrial models, industrial designs, utility models, certificates of invention, and other indicia of invention ownership, including any such rights granted upon any reissue, reexamination, division, continuation or continuation-in-part applications now or hereafter filed ("Patent Rights"); (ii) all trade secret rights arising under the laws of any jurisdiction; (iii) all United States and foreign semiconductor mask work rights and registrations for such rights; and (iv) all United States and foreign copyright rights and all other literary property and author rights, whether or not copyrightable, and all copyrights and copyrighted interests, including any renewals thereof but will not include any rights relating to semiconductor manufacturing technology or any rights in any trademarks, trade names, service marks, logos and the goodwill associated therewith. 2. INTEL LICENSE GRANTS 2.1 Documentation License. Subject to Company's compliance with the terms and conditions of this Agreement, Intel hereby grants to Company and Company accepts a free of charge, nonexclusive, non-transferable, worldwide license under Intel copyrights and trade secrets, without the right to sublicense, to copy the Documentation and use the information for internal use only, for the sole purpose of creating Compliant Products. 2.2 Cluster Checker License. Internal Use. The Cluster Checker is licensed to Company, free of charge, in accordance with the terms and conditions set out in the Cluster Checker End User License Agreement, and the terms of this Agreement, for the purpose of determining compliance of Company's product's with the Specification. 2.3 Ownership. Intel shall remain the sole owner of all right, title and interest (including ownership of all Intellectual Property Rights) in and to the Documentation and all Intel materials provided to Company under this Agreement. 2.4 Intel Trademarks. Except as expressly provided in Section 6 hereof, no rights or licenses are granted by this Agreement, expressly or by implication, to use any Intel trademark or trade name, or any word or mark similar thereto. Any additional rights or licenses must be addressed in a separate written agreement signed by authorized representatives of the Parties. 2.5 No Other License. No rights or licenses are granted by Intel under this Agreement, expressly, by implication, inducement, estoppel or otherwise with respect to any proprietary information or any patents or other Intellectual Property Rights owned or controlled by Intel, except as expressly provided in this Agreement. Any further license under Intel Intellectual Property Rights must be express and in writing. 2.6 Third Party Products. Company acknowledge s that the Documentation makes reference to third party products. Company is solely responsible for engaging with the relevant third parties to gain the rights and or licenses to use third party products and third party intellectual property rights. 3. TRAINING, SUPPORT AND UPDATES. Subject to Company's compliance with the terms and conditions of this Agreement, Intel shall provide the following to Company: 3.1 Training. Intel will offer optional marketing and technical training to Company personnel. The training may take place within 3 months of the Effective Date of this Agreement. The training will consist of marketing and technical training with respect to testing Company's products in relation to the Specification. The training described in this section shall be conducted once for each Company and Company shall be responsible for training new or additional Company personnel. Company may request additional technical and/or marketing training from Intel, subject to the then current availability of appropriate Intel training staff. 3.2 Intel Support. Intel's obligation with respect to Company questions and issues shall be limited to using commercially reasonable efforts to successfully resolve such questions and issues that are raised by Company's personal who participated in the training delivered by Intel under this Agreement. Intel support shall be provided through Intel® Premier Support services following Company's registration for Intel® Premier Support (if not already registered). Company agrees and acknowledges that support for individual products or components mentioned in the Specification shall be obtained from the supplier of that product or component, in accordance with the supplier's support policies and/or agreements with Company. Intel support shall be provided to Company only. Company shall be solely responsible to Company's customers for any update or support obligation or other liability which may arise from the distribution or sale of the Compliant Product. 3.3 Updates. Intel will use commercially reasonable efforts to deliver to Company, provided that Company is not in default hereunder, updates to the Documentation ("Updates") as such Updates are developed by Intel. The content of the Updates shall be determined at Intel's sole discretion and may not include the latest releases of third party products, components, software or hardware at any particular time. 3.3.1 An Update to the Specification (including a concurrent Update to the Registration Procedure) shall take effect 9 months from the date it is published by Intel ("Introduction Period"). During the Introduction Period, Company may choose to register its products in compliance with the Update to the Specification or to the Specification in effect, at Company's discretion, in accordance with the respective Registration Procedure. In the event an overlap occurs in the Introduction Periods of a number of Updates, Company may choose whether to register new product designs in compliance with a Specification in effect, or with any of the Updates which are in an Introduction Period, at Company's discretion, in accordance with the respective Registration Procedure. After an Introduction Period has lapsed, new Company product designs will need to be registered in compliance with the Specification which is in effect, or to an Update which is still wit hin its Introduction Period, at Company's discretion, following the respective Registration Procedure, in order to be eligible to use the Licensed Trademarks under the terms of this Agreement. 3.3.2 Except with respect to an Update of the Specification and a concurrent Update to the Registration Procedure (dealt with in section 3.3.1), Updates shall have immediate effect for new Company product designs. 3.3.3 There is no requirement to re-register previously registered Complaint Products in order to continue using the Licensed Trademarks with respect to such Complaint Products, unless registration is required under a different section of this Agreement. 4. COMPANY OBLIGATIONS. Company agrees that: 4.1 Engineering resources. Company will assign a reasonable number of engineers with substantial experience in developing application software to work on developing Compliant Applications. 4.2 Use of Licensed Trademarks. Company shall designate its Compliant Products with the Licensed Trademarks. Company may only use the Licensed Trademarks for the specific Compliant Products for which Company has received compliance certificates from Intel, in accordance with the Registration Procedure. This limitation applies to the use of the Licensed Trademarks in Company's pre-sales communications as well as any other communication by Company. 4.3 No representations. Company will make no representations or affirmations to any third party, including its customers, that (i) Intel endorses any of Company's Compliant Products or other products or (ii) except as provided in a separate written Agreement between Intel and Company, Intel has certified, validated, endorsed, qualified, or otherwise approved the Company's Products or other products. 5 COMPANY LICENSE GRANTS. 5.1 Compliant Applications. With respect to Compliant Applications, Company hereby grants Intel, and Intel hereby accepts, a limited, non-exclusive, royalty free license under Company's Intellectual Property Rights to copy and reproduce the Compliant Applications and workloads solely for internal solution testing under the Intel® Cluster Ready Program, and to add Company's name and Company's Compliant Application's product name to the list of Intel® Cluster Ready Compliant Applications on Intel's externally facing website. 5.2 Feedback. With respect to any feedback, in any form (including, without limitation; verbal, electronic or paper communications and provision of binary, executable or source code), that Company chooses to provide to Intel with respect to the Documentation ("Communications"), Company agrees that Intel and its designees will be free to copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense through multiple tiers of distribution and licensees, incorporate and otherwise use the Communications, including derivative works thereof, for any and all commercial or non-commercial purposes, and that Communications shall not be deemed Company's Confidential Information. 5.3 No Other License. No rights or licenses are granted by Company under this Agreement, expressly, by implication, inducement, estoppel or otherwise with respect to any proprietary information or any patents or other Intellectual Property Rights owned or controlled by Company, excep t as expressly provided in this Agreement. Any further license under Company Intellectual Property Rights must be express and in writing. 6 INTEL TRADEMARK LICENSE GRANT. 6.1 License Grant. Subject to and conditioned upon Company's full compliance with the terms of this Agreement, Intel grants to Company, and Company accepts, a limited, nonexclusive, non-transferable, royalty-free, revocable worldwide license to use the Licensed Trademarks in connection with Compliant Products as provided in this Agreement and all terms incorporated by reference herein. No other right, title or license is granted hereunder. 6.2 Quality control. Company shall only use the Licensed Trademarks in connection with Compliant Products and no other products. Company represents and warrants that its Compliant Products meet Intel defined standards as set forth in the Registration Procedure. In the event that one or more of Company's formerly Compliant Products no longer meet Intel's defined standards, Company will immediately notify Intel in writing. Company shall comply with all applicable laws and regulations in its design, manufacture, advertising, promotion, distribution and sale of Compliant Products. Company shall use the Licensed Trademarks only in connection with products that meet or exceed the quality and performance standards customary in the industry and commensurate with Company's overall reputation for high quality products. Intel shall have the right and upon reasonable notice shall be given the opportunity to review, inspect and/or test Company's products and associated collateral to ensure compliance with this Agreement. 6.3 Proper Usage. The Design Trademark shall be used in accordance with the Design Trademark Guidelines. In addition, and without limiting the foregoing, the Licensed Trademarks shall only be used in Company's advertisements and other promotional materials and in Company's Internet web site and Company's product packaging. Company shall not use the Licensed Trademarks on any business cards, letterhead, building signage, or any other use that could be understood to be branding of Company's products or services. Company shall not alter the Licensed Trademarks in any way or integrate the Licensed Trademarks or Intel® trademark into any of its own trademarks, logos, or designs or those of third parties. Company shall use the Licensed Trademarks with the following acknowledgement line: "Intel® is a trademark of Intel Corporation in the U.S. and other countries." Company shall not use the Licensed Trademarks in any manner that is likely to create confusion as to the source or sponsorship of its products or services, or that in any way indicates to the public that it is a division or affiliate of Intel. Wherever Company displays the Licensed Trademarks, it must also display its own corporate name in a size and style more prominent than, and separately from, the Licensed Trademarks. Company shall display the Licensed Trademarks so that the Licensed Trademarks stands alone in terms of commercial impression. Company shall display the Licensed Trademarks only in a positive manner and shall not use the Licensed Trademarks in any manner that may disparage Intel, its brands, or its products or services. Company shall not use the Licensed Trademarks in any manner that, in Intel's judgment, may diminish or otherwise damage Intel's goodwill in the Licensed Trademarks or the Intel® trademark, including but not limited to use on materials that could be deemed to be obscene, pornographic, violent, or otherwise in poor taste or unlawful, or the purpose of which is to encourage unlawful activities. Intel shall have the right to randomly review and inspect materials displaying the Licensed Trademarks and Company shall reasonably cooperate in providing Intel access to such materials. Company further agrees to make any modification to materials displaying the Licensed Trademarks that may be requested by Intel and are required to comply with the terms of this Agreement. 6.4 Acknowledgement of Rights. Company acknowledges Intel's exclusive rights in the Intel® trademark and all goodwill associated therewith and acknowledges that any and all use of the Intel® trademark inures solely to the benefit of Intel. Company shall not challenge Intel's exclusive ownership rights in and to the Intel® trademark, nor take action inconsistent with Intel's rights in the Intel® trademark. Company shall not adopt, use, apply to register and/or register as its own trademark(s) any word(s) or design(s) confusingly similar to or that dilute(s) the Intel® trademark. If at any time Company acquires any rights in, or registration(s) or application(s) for the Intel® trademark by operation of law or otherwise, Company will immediately and at no expense to Intel assign such rights, registrations, and/or applications to Intel, along with any and all associated goodwill. 6.5 Enforcement. In the event Company becomes aware of any unauthorized use of the Licensed Trademarks or Intel® trademark by a third party, Company shall promptly notify Intel in writing and shall cooperate fully, at Intel's expense, in any enforcement of Intel's rights against such third party. The right to enforce Intel's rights in the Licensed Trademarks and the Intel® trademark rests entirely with Intel and shall be exercised in Intel's sole discretion. Company shall not commence any action or claim to enforce Intel's rights in the Licensed Trademarks or the Intel® trademark. 6.6 NO REPRESENTATIONS OR WARRANTIES. INTEL MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND RESPECTING THE LICENSED TRADEMARKS OR INTEL TRADEMARK, INCLUDING THE VALIDITY OF INTEL'S RIGHTS IN ANY COUNTRY, AND EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES THAT MIGHT OTHERWISE BE IMPLIED BY APPLICABLE LAW. 7. INDEMNITIES. 7.1 Company Indemnity. Company shall defend, indemnify, and hold Intel harmless against any and all actions, claims, lawsuits, or proceedings brought against Intel concerning: (a) Company's use of the Licensed Trademarks in violation of this Agreement (unless Intel in its sole discretion chooses to retain control over the defense and/or settlement of such claim); (b) Company's design, manufacture, advertising, marketing, promotion, distribution or sale of Compliant Products, and (c) Company's breach of any Company's warranty to the third party and/or for Company's negligence to the third party; brought by any third parties. If any such claim is made, or if any such lawsuit or proceeding is commenced, Company, at Company's expense, shall defend against and pay any and all costs, expenses incurred (including reasonable attorneys' fees), all settlements and damages of any kind arising out of such claim, lawsuit or proceeding, wh ether or not the claim, lawsuit or proceeding is successful, provided that Intel: (a) gives Company prompt written notice of such claim, lawsuit or proceeding and uses reasonable efforts to furnish Company with a copy of each communication, notice or other action relating thereto; and (b) reasonably cooperates with Company, at Company's expense, in the defense of such claim, lawsuit or proceeding. Company shall not settle or agree to settle any such claim; lawsuit or proceeding without Intel's prior written consent. Such consent shall not be unreasonably withheld, delayed or conditioned. Intel shall not be responsible for any settlement made by Company without Intel's prior written consent. 7.2 Intel Indemnity. Intel agrees to defend and/or settle (in its sole discretion) any claim threatened against Company or brought in any suit or proceeding against Company based on any allegation that the Licensed Trademarks, as used by Company in accordance with this Agreement, infringes or violates the trademark rights of another, and Intel will pay all damages, costs and fees finally awarded against Company and exclusively attributable to any such claim, provided that (i) Company promptly notifies Intel in writing of any such claim, (ii) Intel solely controls and conducts the defense and/or settlement of the claim, (iii) Company fully and timely cooperates and provides all requested authority, information and assistance to Intel, at Intel's expense, and (iv) at Intel's instruction, Company immediately ceases use of the challenged Licensed Trademarks. In the event of any claim or threatened claim against Intel or Company challenging the Licensed Trademarks, Intel reserves the right to terminate, immediately upon written notice, all or a part of this Agreement, and Company will take all steps necessary to immediately cease use of the Licensed Trademarks. Intel will not be responsible for any damages, costs, or fees awarded to the extent such amounts reflect Company's continued use of the challenged Licensed Trademarks contrary to Intel's instructions to cease use thereof. This indemnity shall not cover damages that Company could have avoided or mitigated through the exercise of reasonable efforts under the circumstances. 8. CONFIDENTIAL INFORMATION. 8.1 The Parties intend to transfer and/or exchange Confidential Information as may be necessary to accomplish the purposes described in this Agreement. The Confidential Information shall be deemed to be subject to the terms and conditions contained within the CNDA. 8.2 Should a CNDA not exist between the Parties, the following confidentiality terms and conditions shall apply: 8.2.1 Confidential Information. The confidential, proprietary and trade secret information of the disclosing party ("Confidential Information") to be disclosed hereunder is (i) information in tangible form that bears a "confidential," "proprietary," "secret," or similar legend, and (ii) discussions relating to that information whether those discussions occur concurrent with or following disclosure of the information in tangible form. 8.2.2 The disclosing party shall make reasonable efforts to mark its confidential information in tangible form with any of the aforementioned legends prior to disclosure. However, the disclosing party's information in tangible form that does not bear an y of these legends, and discussions relating to that information, shall nevertheless be protected hereunder as Confidential Information, if the receiving party knew, or should have reasonably known under the circumstances, that the information was confidential and had been communicated to it in confidence. 8.2.3 Obligations of Receiving Party. The receiving party will maintain the confidentiality of the Confidential Information of the disclosing party with at least the same degree of care that it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. The receiving party will not disclose any of the disclosing party's Confidential Information to any employees or to any third parties except to the receiving party's employees, parent company and majority-owned subsidiaries who have a need to know and who agree to abide by nondisclosure terms at least as comprehensive as those set forth herein; provided that the receiving party will be liable for breach by any such entity. For the purposes of this Agreement, the term "employees" shall include independent contractors of each party. The receiving party will not make any copies of the Confidential Information received from the disclosing party except as necessary for its employees, parent company and majority-owned subsidiaries with a need to know. Any copies which are made will be identified as belonging to the disclosing party and marked "confidential", "proprietary" or with a similar legend. 8.2.4. Termination of Obligation of Confidentiality. The confidentiality obligations set forth in this Agreement shall bind the Parties for a period of five (5) years from the date of disclosure of Confidential Information, unless any of the exceptions set forth in Section 4 below occurs. 8.2.5. Exceptions to the Obligation of Confidentiality. The receiving party will not be liable for the disclosure of any Confidential Information which is: (a) generally made available publicly or to third parties by the disclosing party without restriction on disclosure; (b) rightfully received from a third party without any obligation of confidentiality; (c) rightfully known to the receiving party without any limitation on disclosure prior to its receipt from the disclosing party; (d) independently developed by employees of the receiving party; or (e) required to be disclosed in accordance with applicable laws, regulations, court, judicial or other government order, provided that the receiving party shall give the disclosing party reasonable notice prior to such disclosure and shall comply with any applicable protective order. 8.2.6. Title. Title or the right to possess Confidential Information as between the parties will remain in the disclosing party. 8.2.7. No Obligation of Disclosure. Neither party has any obligation to disclose Confidential Information to the other. Either party may, at any time: (a) cease giving Confidential Information to the other party without any liability, and/or (b) request in writing the return or destruction of all or part of its Confidential Information previously disclosed, and all copies thereof, and the receiving party will promptly comply with such request, and certify in writing its compliance. 8.2.8. General. (a) Both parties understand and acknowledge that no license under any patents, copyrights, trademarks, or maskworks is granted to or conferred upon either party by the disclosure of any Confidential Information by one party to the other party as contemplated hereunder, either expressly, by implication, inducement, estoppel or otherwise, and that any license under such intellectual property rights must be express and in writing. (b) The disclosing party disclaims all warranties regarding all Confidential Information disclosed pursuant to this Agreement, including all warranties as to the accuracy or utility of such Confidential Information. 9. TERM AND TERMINATION 9.1 Term. The term of this Agreement shall commence upon the Effective Date and extend thereafter for a period of three (3) years, unless terminated earlier. 9.2 Termination. Either Party may terminate this Agreement with or without cause, at any time, upon sixty (60) days advance written notice. This Agreement may be terminated with immediate effect by either Party for cause, if the other Party fails to comply with any material term or condition of this Agreement, provided that the non-defaulting party has given the defaulting party written notice of such default and the defaulting Party has not remedied the default within thirty (30) days of receipt of such written notice. 9.3 Return of Information. Upon termination or expiration of this Agreement, each Party shall immediately return (or with the disclosing Party's agreement, destroy) all tangible Confidential Information of the other Party in its or its employee's possession, ownership or control. In the event such Confidential Information or any copy thereof has been previously destroyed, the receiving Party shall certify in writing to the disclosing Party that such copy or Confidential Information belonging to the disclosing Party has been previously destroyed by the receiving Party. 9.4 Effect of Termination. Upon any termination or expiration of this Agreement, Company shall immediately cease any and all use of the Licensed Trademarks. 9.5 Survival. The provisions of Sections 1, 4.3, 5.1, 5.2, 6.6, 7, 8, 9.3, 9.5, 10 and 11 shall survive any termination or expiration of this Agreement. 10. LIMITATION OF LIABILITY AND WARRANY DISCLAIMERS 10. 1 SPECIFICATION TESTING. Intel has tested the Specification in Intel facilities and the Specification has performed in accordance with the details described in the Documentation. Company agrees and acknowledges that the testing and performance of the Specification are determined with the specific computer systems, components, and data described in the Documentation. Any difference in system hardware, software, firmware, data, use, load, or peripherals design or configuration may affect actual performance and functionality of the Specification. Company agrees and acknowledges that changes in the foregoing components, configurations, and other factors may cause performance degradation or loss of functionality and that Company is responsible for its specific design, implementation and configuration of its Compliant Products. Company agrees and acknowledges that its results obtained through use of the Documentation to comply with the Specification may vary significantly from th e results described in the Documentation. Company agrees and acknowledges that the registration of a Compliant Product is performed with the aid of the Cluster Checker which searches for particular components and data as described in the Documentation. The Cluster Checker may not identify all matters, data and information that could potentially affect performance, compatibility or stability of the Compliant Product ("Additional factors"). Company agrees and acknowledges that Additional Factors may cause performance degradation or loss of functionality, compatibility or stability and that Company is responsible for its specific design and configuration of its Compliant Products. 10.2 DISCLAIMER OF WARRANTIES. 10.2.1 ALL INFORMATION, DOCUMENTATION, MATERIALS, SERVICES AND LICENSES ARE PROVIDED "AS IS." NEITHER INTEL NOR ITS SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE DOCUMENTATION, MATERIALS, SERVICES, OR INTELLECTUAL PROPERTY RIGHTS PROVIDED HEREUNDER, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FUNCTIONALITY, OR FITNESS FOR A PARTICULAR PURPOSE. INTEL AND ITS SUPPLIERS MAKE NO WARRANTIES THAT ANY PRODUCTS DEVELOPED IN ACCORDANCE WITH THE DOCUMENTATION WILL PERFORM IN THE INTENDED MANNER. 10.2.2 COMPANY AGREES AND ACKNOWLEDGES THAT INTEL IS NOT SUPPLYING ANY HARDWARE OR SOFTWARE TO COMPANY UNDER THIS AGREEMENT. EXCEPT FOR INTEL'S SPECIFIC PRODUCT WARRANTIES INCLUDED IN THE SALES OR LICENSE AGREEMENTS FOR ANY INTEL COMPONENTS INCLUDED IN THE DOCUMENTATION, INTEL MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY HARDWARE OR SOFTWARE PRODUCT DESCRIBED IN THE DOCUMENTATION NOR ANY REPRESENTATIONS OR WARRANTIES REGARDING THE OPERATION OR PERFORMANCE OF THE DOCUMENTATION. 10.2.3 INTEL MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE USE OF ANY MATERIALS OR INFORMATION PROVIDED HEREUNDER WILL NOT INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. It is Company's responsibility to seek and obtain any necessary licenses to third party intellectual property rights for all components of the Documentation. 10.2.4 Third Party Product Warranty Disclaimer. Warranty for and support for the products based on, mentioned in, or developed in accordance with the Documentation are provided by the manufacturer or supplier of the product and not by Intel. Intel does not make representations or warranties of any kind regarding the products including, but not limited to, any warranties of performance or non-infringement. 10.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY, END USERS OR ANY OTHER THIRD PARTY, FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY TO ANY BREACH BY THE PARTIES OF THEIR CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR TO THE PARTIES' INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL EITHER PARTY'S ENTIRE LIABILITY UNDER THIS AGREEMENT EXCEED A TOTAL OF FIV E THOUSAND US DOLLARS, PROVIDED, HOWEVER, THAT THIS CAP ON LIABILITY SHALL NOT APPLY TO ANY BREACH BY THE PARTIES OF THEIR CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT NOR TO THE PARTIES' INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT. 11. GENERAL PROVISIONS 11.1 Governing Law. This Agreement and matters connected with the performance thereof shall be construed, interpreted, applied and governed in all respects in accordance with the laws of the United States of America, and of the State of Delaware, without reference to its conflict of laws principles. The parties further acknowledge and agree that any non-contractual cause of action that either party may assert, including but not limited to trademark infringement, trademark dilution, passing off, false designation of origin, unfair competition and other non-contractual causes of action, will be governed by U.S. federal law and the law of the State of California. Any dispute arising out of this Agreement shall be brought in, and the parties consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within Santa Clara County, California. 11.2 Dispute Resolution. The Parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of both parties, then each Party shall nominate one senior officer of the rank of Vice President, Division General Manager or higher as its representative. These representatives shall, within thirty (30) days of a written request by either Party to call such a meeting, meet and shall attempt in good faith to resolve the dispute. If the disputes cannot be resolved by such senior officers in such meeting, the Parties agree that they shall, if requested in writing by either Party, meet within thirty (30) days after such written notification for one day with an impartial mediator and consider dispute resolution alternatives other than litigation. If an alternative method of dispute resolution is not agreed upon within thirty (30) days after the one day mediation, either Party may begin litigation proceedings. This procedure shall be a required prerequisite before taking any additional action hereunder. However, if either Party in its sole discretion believes that the other Party has communicated or is about to communicate Confidential Information to a third party in breach of this Agreement, it may seek immediate injunctive relief, including, but not limited to, a temporary restraining order, to stop the dissemination of such information without breach of this provision. 11.3 No Assignment. Except for an assignment by Intel to one of its directly or indirectly, wholly owned subsidiaries, this Agreement and any right or obligation hereunder is not assignable, whether in conjunction with a change in ownership, merger, acquisition, the sale or transfer of all, or substantially all or any part of a Party's business or assets or otherwise, either voluntarily, by operation of law, or otherwise, without the prior written consent of the other Party. Any such purported assignment or transfer shall be deemed a breach of this Agreement and shall be null and void. 11.4 Export Controls. Neither Party shall export, either directly or indirectly, any product, service or technical data or system (collectively "Items") incorporating s uch Items without first obtaining any required license or other approval from the U. S. Department of Commerce or any other agency or department of the United States Government. In the event any product is exported from the United States or re-exported from a foreign destination by either Party, that Party shall ensure that the distribution and export/re-export or import of the product is in compliance with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations and the appropriate foreign government. Both parties agree that neither it nor any of its subsidiaries will export/re-export any technical data, process, product, or service, directly or indirectly, to any country for which the United States government or any agency thereof or the foreign government from where it is shipping requires an export license, or other governmental approval, without first obtaining such license or approval. 11.5 Bankruptcy. If either Party files a petition in Bankruptcy Court, is adjudicated as bankrupt, becomes insolvent, makes an assignment for the benefit of creditors or has a receiver appointed for its business (or is subject to substantially similar proceedings in a country which has jurisdiction over Company), the other Party may at its option, by written notice, immediately terminate this Agreement. 11.6 Notice. All notices required or permitted to be given hereunder shall be in writing and shall be delivered by hand, or if dispatched by prepaid air courier or by registered or certified airmail, postage prepaid, addressed as follows: If to Company: At Company’s address provided in the registration procedure With a copy to: General Counsel At Company’s address provided in the registration procedure If to Intel: Post Contract Management, JF3-149 Intel Corporation 2111 NE 25th Street Hillsboro, Oregon 97124 With a copy to: General Counsel Intel Corporation 2200 Mission College Blvd. Santa Clara, CA 95052 USA Such notices shall be deemed to have been served when received by addressee or, if delivery is not accomplished by reason of some fault of the addressee, when tendered for delivery. Either Party may give written notice of a change of address and, after notice of such change has been received, any notice or request shall thereafter be given to such Party as above provided at such changed address. 11.7 Entire Agreement. This Agreement embodies the entire understanding of the Parties with respect to the subject matter hereof, and shall merges all prior discussions between them, and neither of the parties shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided herein. No oral explanation or oral information by either Party hereto shall alter the meaning or interpretation of this Agreement. No amendments or modifications shall be effective unless in writing and signed by authorized representatives of both Parties. 11.8 Waiver. Failure by either Party to enforce any term of this Agreement shall not be deemed a waiver of future enf orcement of that or any other term in this Agreement or any other agreement that may be in place between the parties. 11.9 Compliance with Laws. Anything contained in this Agreement to the contrary notwithstanding, the obligations of the parties hereto shall be subject to all laws, present and future, of any government having jurisdiction over the Parties hereto, and to orders, regulations, directions or requests of any such government. 11.10 Partial Invalidity. If any paragraph, provision, or clause in this Agreement shall 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 shall be valid and enforceable and the parties shall use their best efforts to negotiate a substitute, valid and enforceable provision which most nearly effects the Parties' intent in entering into this Agreement. 11.11 Attorneys' Fees. In the event any legal action, arbitration or other proceeding is brought to enforce this Agreement, the prevailing or successful Party shall be entitled to recover reasonable attorneys' fees as well as other costs incurred in that action, arbitration, or proceeding in addition to any compensation to which it may be entitled as a result. 11.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, all of which, taken together, shall be regarded as one and the same instrument. 11.13 Section Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 11.14 Relationship of Parties. The Parties hereto are independent contractors. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement or undertaking with any third party. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment or agency relationship between the Parties.
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