Last Updated: July 13, 2022
BY ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT/FORM THAT INCORPORATES IT, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS AS SET OUT BELOW. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “RESELLER” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY.
This Agreement is effective as of the last signature date of an Order (“Effective Date”). As used in this Agreement, “Party” means either Alation or Reseller, as appropriate, and “Parties” means both Alation and Reseller.
- WHEREAS, Alation is a leading provider of collaborative data catalog software solutions and licenses the software referred herein as the Alation Software;
- WHEREAS, Reseller wishes to promote, market, demonstrate and resell the Alation Software;
- WHEREAS, the Parties wish to promote this business relationship;
Now, therefore, in consideration of the promises and of the obligations herein made and undertaken, the Parties agree as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, these words and expressions will mean the following:
- “Alation Partner Program” means the partner program designed by Alation to help the Reseller in referring, reselling, servicing and supporting the Alation Software and/or Alation Professional Services.
- “Alation Software” means the Alation data catalog software.
- “Alation Professional Services” means the professional services provided by Alation.
- “Alation Technology” means the Alation Software, Documentation and Alation’s Confidential Information.
- “Customer” or “End User” means an Alation end user customer defined in each applicable Order.
- “Documentation” means documentation generally provided with the Alation Software, as revised by Alation from time to time, which may include end user manuals, operation instructions, installation guides, release notes and online help files.
- “Partner Program Rules” or “Rules” means the procedures, policies and rules published by Alation that describe the administration and functioning of the Alation Partner Program, as updated by Alation from time to time.
2. LICENSE; EULA
2.1. Overview. Reseller will market and resell the Alation Software and the Alation Professional Services to the End Users as set out in each applicable Order. Each Order entered into by and between Alation and Reseller will: (a) be subject to terms and conditions of this Agreement; (b) name the End User to whom Reseller will resell the Alation Software and Professional Services; (c) describe the Alation Software and Alation Professional Services purchased by Reseller; and (d) set out the applicable Fees (“Order“)”. Once Reseller submits a request for an Order, Alation will use reasonable endeavors to, at its own discretion, accept or reject the request and issue an Order within two (2) business days. To become effective, an Order and any modifications or amendments thereto must be signed by an authorized representative of each Party. This Agreement sets forth the terms and conditions applicable to all such Orders. Absent the execution of an Order by both Parties, this Agreement, in and of itself, does not represent a commitment by Reseller to order, receive or pay for the Alation Software and/or the Alation Professional Services nor a commitment by Alation to grant the Reseller License.
2.2. Alation reserves the right to make changes to the Alation Software and Alation Professional Services, its standard pricing and the discounts earned by Reseller with at least sixty (60) days prior written notice to Reseller, provided, however, that changes in pricing will not apply to Fees already paid by the Reseller under an active Order.
2.3. Software License Grant. Subject to Reseller’s compliance with this Agreement, including the payment of the Fees, Alation grants to Reseller a non-exclusive, non-transferable and non-assignable license to: (a) market and resell the Alation Software or Alation Professional Services to the End Users as set out in each applicable Order solely for the End User’s internal business purposes, subject to Sections 2.4 and 2.5 below; and (b) provide the Alation Professional Services as set out in Section 3.2 (“Reseller License”) .
2.4. End User Agreements and Alation EULA. Reseller will execute a legally enforceable license agreement with each End User prior to making the Alation Technology available to such End User, through which the End User will accept the Alation End User License Agreement available at https://alation.com/tscs/msa/ (“Alation EULA”). Reseller will make such license agreements between Reseller and End User available to Alation upon Alation’s request.
2.5. Third Party Beneficiary. Alation is a third-party beneficiary to the license agreements entered into by and between Reseller and the End User, as set out in Section 2.4 above, solely for the purposes of enforcing Alation’s intellectual property rights. Reseller will take reasonable measures to enforce and, as requested by Alation, assist Alation in the enforcement of such license agreements with respect to Alation’s intellectual property rights. A clause substantially similar to the following will be incorporated in all such license agreements entered into by and between Reseller and End User:
“Alation Intellectual Property and Confidential Information. End User is hereby notified that Reseller has a reseller agreement with Alation, Inc., a Delaware corporation, having its principal place of business at 3 Lagoon Drive, Suite 300, Redwood City, CA 94065 (“Alation“). The software licensed hereunder is subject to Alation’s intellectual property rights (“Alation IP”) and such Alation IP is highly confidential. End User shall take extra care to protect the confidentiality of the Alation IP, but no event less than reasonable care. End User agrees and acknowledges that any unauthorized or inadvertent disclosure of the Alation IP to any third party without Alation’s prior written consent will cause irreparable damage to Alation. In the event of End User’s violation of the license grants and restrictions and confidentiality obligations regarding Alation IP, End User acknowledges that Alation may enforce its rights against End User as permitted under any applicable laws and jurisdiction.”
2.6. Restrictions. Reseller will not directly or indirectly, nor will Reseller allow any third party to:
- decompile, disassemble, decode, redesign, reverse engineer or attempt to reconstruct or discover any source code, algorithms, architecture, or other elements of Alation Technology;
- translate, adapt, or modify Alation Technology;
- write or develop any program based upon Alation Technology;
- use Alation Technology for benchmarking or ‘service bureau’ purposes;
- allow access to unauthorized persons to Alation Technology;
- otherwise use Alation Technology except as expressly permitted hereunder.
2.7. Conduct of Business. Reseller will: (i) conduct business in a manner that reflects favorably at all times on Alation Software, Alation Professional Services and Alation’s good name, goodwill and reputation; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Alation or to the Alation Software and Alation Professional Services; (iii) make no representations, warranties or guarantees with respect to Alation or to the Alation Software and Alation Professional Services that are inconsistent with those customarily provided by Alation either through this Agreement, the Documentation, the Partner Program Rules or through any other means; and (iv) successfully complete applicable certification programs as requested by Alation.
2.8. Ownership. Alation Technology is licensed and not sold. As between Alation and Reseller, End User, or any other party, Alation hereby retains all right, title and interest, including all intellectual property rights, in and to the Alation Technology, the Alation Marks and the Partner Program Rules. As a condition of the License, Reseller must retain all proprietary, copyright and other attribution legends on all copies of the Alation Technology. Reseller agrees that Alation will have the right to use in any manner and for any purpose the feedback or suggestions which Reseller may provide to Alation.
2.9. Alation Marks. Subject to the terms of this Agreement, Alation grants to Reseller a non-exclusive,non-transferable license to use the trademarks, trade names and logos used by Alation for the Alation Software (the “Alation Marks”), solely in connection with Reseller’s promotion of the Alation Software pursuant to this Agreement, provided that all such use by Reseller of the Alation Marks will be strictly in accordance with Alation’s then-current trademark usage guidelines as described in the Program Rules and will clearly reference Alation as the owner of the Alation Marks. Nothing in this Agreement grants to Reseller ownership of, or any rights in or to use, the Alation Marks, except as expressly set out in this Section 2.9. Upon the expiration or termination of this Agreement, Reseller will no longer use any of the Alation Marks.
3. PROFESSIONAL SERVICES AND SUPPORT SERVICES
3.1. Support. During the period set forth on each Order, Alation will provide the support services, if any, directly to the End User in accordance with Alation’s support services policy located at https://alation.com/tscs/support/. Reseller may be designated by the End User as a designated support contact and can log support cases on behalf of the End User.
3.2. Professional Services. Alation may provide the Alation Professional Services directly to the End User or to the Reseller. Reseller will obtain all necessary consents required and will provide Alation with information and assistance as Alation may reasonably request to allow Alation to provide Alation Professional Services to the End User, including but not limited to access to Reseller and/or End User personnel, facilities, and data processing, hardware and software systems.
3.2.1 Reseller may provide the Alation Professional Services directly to the End User, provided that Reseller obtains Alation’s prior written approval to do so and follows Alation’s Documentation and guidance at all times.
4. FEES; PAYMENT
4.1. Fees. Reseller will pay Alation the non-refundable and non-recoupable (except as otherwise provided for herein): (i) fees for the Alation Software license as set forth in any Order (“Subscription Fees”); (ii) fees for the Alation Professional Services set forth in any Order (“Professional Services Fees”); and (iii) all other agreed-upon fees (“Other Fees” and together with Subscription Fees and Professional Services Fees, the “Fees”), set forth in this Agreement and the applicable Order (s).
4.2. Payment Terms. Unless otherwise set forth on an Order, invoices are due and payable in United States dollars within thirty (30) days after the invoice date, without deduction or setoff. For past due undisputed Fees, interest accrues from the due date at the greater of a rate of 1.5% per month or the highest rate allowed by law. The Subscription Fees are payable annually in advance and include maintenance and support services as provided in Section 3.1 above. Professional Services Fees are payable upon execution of the applicable Order and reimbursable expenses are payable monthly in arrears.
4.3. Dispute. Where the Reseller disputes any amount invoiced in good faith, it will: (i) notify Alation as soon as reasonably practicable, however, not later than five (5) business days after receipt of the relevant invoice; (ii) pay the balance of the invoice that is not in dispute by the due date; and (iii) pay the balance and any interest as set out in Section 4.2 on sums found or agreed to be due within five (5) business days after resolution of the dispute.
4.4. Taxes. All Fees are exclusive of taxes. Reseller will pay all taxes, if any, however designated and in addition to the Fees payable to Alation that are incurred in connection with, or as a result of an Agreement, including, without limitation, state and local privilege, excise, sales, VAT, and use taxes, paid or payable by Alation, except any tax based on Alation’s net income.
4.5. Payment by the End User. Reseller will be solely responsible for invoicing and collecting any amounts payable by any and all End Users to Reseller. All amounts payable by Reseller to Alation under this Agreement are not contingent upon Reseller collection from the End User.
5. TERM AND TERMINATION
5.1. Term and Termination. This Agreement will remain in effect for a term of two (2) years from the Effective Date, unless terminated earlier pursuant to Section 5.2 below. At the end of such two (2) year term, this Agreement will automatically expire unless the Parties agree in writing to renew it, at least thirty (30) days prior to the date of any such automatic expiration.
5.2. Either Party may terminate this Agreement upon written notice if: (i) the other Party materially breaches this Agreement and fails to cure the breach within thirty (30) days following written notice; (ii) the other Party ceases to operate without a successor; (iii) the other Party seeks protection under bankruptcy or comparable proceedings; or (iv) the other Party makes an assignment for the benefit of its creditors or takes similar actions.
5.3. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) the active Licenses granted under this Agreement will automatically and immediately terminate, Alation may disable access keys and Reseller will have no further right to the Alation Technology; (ii) all outstanding payment obligations of Reseller will immediately become due and payable; and (iii) each Party will promptly return to the other Party or destroy all of the other party’s Confidential Information in its possession or control, and will certify to the other party in writing to the return or destruction of all such Confidential Information (including deleting all instances of Alation Technology and certify such deletion from Reseller’s systems, if applicable). This Section 5.3 will not require the deletion of Alation Confidential Information from Reseller’s archive or backup systems, provided that the confidentiality obligations of this Agreement will continue to apply so long as such Confidential Information remains in Reseller’s possession. The termination or expiry of this Agreement will not affect any Orders that are active at the time of termination, provided the Reseller has paid or continues to pay the Fees in full. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 2.8 (Ownership), 4 (Fees), 5.3 (Effect of Termination), 6 (Warranty Disclaimer), 7 (Indemnification), 8 (Exclusion of Certain Damages; Limitation of Liability), 10 (Audit Rights) and 11 (General Provisions).
6. WARRANTY DISCLAIMER
The Alation Technology and related materials are provided to Reseller “as is” without representation or warranty of any kind, including warranties f merchantability, fitness for a particular purpose, non-infringement and any warranties arising from conduct or course of dealing.
7.1. IP Indemnification. Alation will defend, or at its option settle, any claim brought against Reseller by a third party to the extent it alleges that the Alation Technology as delivered to Reseller and used as authorized in this Agreement infringes or misappropriates any U.S. patent, copyright or trade secret of any third party (“Infringement Claim”), and pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Alation; provided that Reseller provides Alation: (a) prompt written notice of; (b)sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Alation in connection with the defense or settlement of, any such claim. If any Infringement Claim is brought or, in Alation’s judgment may be threatened, Alation may, at its sole option and expense: (i) procure for Reseller the right to continue to use the applicable Alation Technology; (ii) modify the Alation Technology to make it non-infringing; (iii) replace the Alation Technology with non-infringing technology that is functionally equivalent to the Alation Technology; or (iv) if none of the foregoing is commercially practicable, terminate this Agreement upon written notice to Reseller.
7.2. Limitations. Notwithstanding Section 7.1, Alation will have no liability to Reseller for any Infringement Claim arising out of or based upon: (i) use of the Alation Technology in combination with software, products or services not provided by Alation; (ii) any modification of the Alation Technology not made or authorized in writing by Alation; (iii) Reseller’s or End User’s failure to use the Alation Technology in accordance with this Agreement or Documentation, or otherwise using the Alation Technology for purposes for which it was not designed or intended; or (iv) use of any specified release of the Alation Software after Alation notifies Resellerr that continued use of such release may subject Reseller to an Infringement Claim.
7.3. Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF ALATION, AND THE SOLE AND EXCLUSIVE REMEDY OF RESELLER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE ALATION TECHNOLOGY OR ANY PART THEREOF.
7.4. Indemnification by Reseller. Reseller will: (i) indemnify, defend, or at its option settle, and hold Alation and its affiliates harmless against any and all claims brought against Alation and its affiliates by a third party relating to (a) any data provided or made available by or on behalf of Reseller and (b) Reseller’s use of the Alation Technology other than pursuant to this Agreement; and (ii) pay any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by Reseller; provided that Alation provides Reseller with: (x) prompt written notice of; (y) sole control over the defense and settlement of (except that Reseller may not settle any claim against Alation unless it unconditionally releases Alation of all liability); and (z) all information and assistance reasonably requested by Reseller in connection with the defense or settlement of any such claim.
8. EXCLUSION OF CERTAIN DAMAGES; LIMITATION OF LIABILITY
8.1. In no event will either Party be liable for any incidental, special or consequential damages, including loss of profits, revenue, data, or use, incurred by the other party or any third party, whether in an action in contract or tort, even if it has been advised of the possibility of such damages.
8.2. Except for either Party’s indemnification obligations, Reseller’s breaches of Sections 2.3 and 2.6, and damages arising out of a Party’s gross negligence or willful misconduct, in no event will either Party be liable for any damages in excess of the Fees paid by the Reseller to Alation under this Agreement during the 12-month period prior to the date the claim arose.
9.1. Definition. “Confidential Information” means: (i) any information disclosed, directly or indirectly, by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential”, or in some other manner to indicate its confidential nature; and (ii) information otherwise reasonably expected to be treated in a
confidential manner under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the Alation Technology, the Partner Program Rules and the terms (but not the existence) of this Agreement are the Confidential Information of Alation. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.
9.2. Limited Use; Protection. Neither Party will use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party will disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to an obligation of confidentiality. Each Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party, and will take at least those measures that it takes to protect its own most highly confidential information.
9.3. Compelled Disclosure. If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will, where allowed by law, promptly notify the Disclosing Party in writing and will cooperate with Disclosing Party in seeking a protective order or other appropriate remedy at the Disclosing Party’s expense. If disclosure is ultimately required, the Receiving Party will furnish only that portion of Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that it will receive confidential treatment.
10. AUDIT RIGHTS
Upon request and not more often than quarterly, Reseller will make available to Alation, within a reasonable timeframe not to exceed thirty (30) days, all information, documents or records reasonably necessary to demonstrate compliance with its obligations under this Agreement. Reseller will allow Alation (or Alation ́s independent third party auditor) to conduct an on-site audit of the procedures and records relevant to Reseller’s compliance with this Agreement, no more than once per calendar year, subject to the confidentiality provisions of the Agreement, upon thirty (30) days advance notice and at a mutually agreed time and manner. The costs of any audits shall be Alation’s sole responsibility unless the results of any such audits establish that Reseller is in breach of this Agreement, in which case Reseller will bear the expenses of the audit.
11.1. Compliance with Laws and Export Control. Each Party will comply with all applicable laws and government regulations, including, if applicable, the export laws and regulations of the United States and other applicable jurisdictions, in connection with providing and using Alation Technology. Without limiting the foregoing, (i) each Party represents that is not named on any government list of persons or entities prohibited from receiving exports, and (ii) Reseller shall not violate any export embargo, prohibition, restrictions or other similar law in connection with this Agreement. In the event that the provision of the Alation Technology and/or Alation Professional Services to Reseller or an End User is deemed to be in breach of any laws or trade sanctions, the Parties agree that Alation will, in its sole discretion, cease provision of such Alation Technology and Alation Professional Services to Reseller or End User immediately without liability.
11.1.1 Anti-Corruption. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restrictions.
11.2 Assignment. Neither Party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other Party, except in the case of an assignment due to corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions by either Party, which may occur without written consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
11.3 Force Majeure. Neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, pandemic, labor shortage or dispute, governmental act, hacker attack, or failure of the Internet (each a “Force Majeure Event”). The Party suffering a Force Majeure Event shall give the other Party written notice of such a Force Majeure Event and shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. In the event a Party suffers a Force Majeure Event that lasts longer than ninety (90) continuous days, the other Party may terminate the Agreement or an Order Form immediately upon written notice.
11.4 Governing Law. This Agreement is governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state courts located in San Mateo County and the federal courts located in the City and County of San Francisco, California. If either Party breaches or threatens to breach the provisions of Sections 2 or 9, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other
equitable relief, without bond and without the necessity of showing actual money damages.
11.5 Entire Agreement; Amendments. This Agreement, together with any Orders and Addendums, is the sole agreement of the Parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter whether oral or written. Any ambiguity in this Agreement shall be interpreted without regard to which Party drafted it. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. This Agreement may only be amended by a writing signed by the Parties.
11.6 Notices. Any required notice will be given in writing by customary means with receipt confirmed at the address of each Party set forth in the Order, or to such other address as either Party may substitute by written notice to the other, or by electronic transmission to an email address. Alation’s email address for notices is: email@example.com. Notices will be deemed to have been given at the time of actual delivery in person, one day after delivery to an overnight courier service, three days after deposit in the U.S. mail, or upon acknowledgement of receipt of electronic transmission.
11.7 Relationship of the Parties; No Exclusivity. The relationship between the Parties will be that of independent contractors. The Agreement doesn’t create a joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. The Parties agree that Alation may enter into similar agreements to this Agreement with third parties for the provision of similar or identical services.
11.8 Waiver; Severability. Waiver of any term of this Agreement or forbearance to enforce any term by either Party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void will be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.