Contrat DCIE

Conditions générales de DataCore pour la participation au programme et l'utilisation des ressources fournies par DataCore

BY EITHER CLICKING TO ACCEPT THESE TERMS AND CONDITIONS OR EXECUTING A PARTNER AGREEMENT YOU (“Participant”) ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO AGREE TO THEM ON BEHALF OF PARTICIPANT AND UNDERSTAND AND AGREE THAT PARTICIPANT BE BOUND BY THEM.

DEFINITIONS.

The following terms shall have a defined meaning as used in these Terms and Conditions:

• “DataCore Provided Resources” means all resources of any nature whatsoever (whether tangible, intangible, human or otherwise) that are provided or made available to Participant, in person, physically, electronically,  remotely, virtually (such as the DataCore Virtual Training Authorized Lab environment), by download or otherwise, directly or indirectly, by, through, or pursuant to arrangements made by, DataCore for use in connection with a Partner Agreement or the Participant Activity, including but not limited to all Proprietary Materials, training, testing or other equipment, software, goods, services, information, documentation, training and training materials.
•  “Distributor” means a distributor authorized by DataCore to distribute Software Products and Services in the territory in which the Participant Activity is to be conducted.
• “End User” means a licensee of Software Product who acquires such product for use rather than distribution or sublicensing.
• “Participant Activity” means: (i) the activities expressly identified in a Partner Agreement as the “Authorized Activity”; (ii) if Participant is a reseller of Software Products and Services it purchases directly from a Distributor, the activities of reselling such Software Products and the advertising and promotion of the Software Products and Services in connection therewith; and (iii) if the Participant is an individual that has received a DataCore certification (“Certification”) as a DataCore Certified Implementation Engineer (DCIE) or other formal DataCore certification, the activities of holding one’s self out as having been so certified but only for so long as   the Certification remains current and has not lapsed or been withdrawn.
• “Partner Agreement” means any agreement between DataCore and Participant into which these Terms and Conditions are expressly incorporated by reference in such agreement.
• “Proprietary Materials” means all DataCore publications, software and software code, the Trademarks (as defined below), documentation, course materials, marketing materials, whether or not subject to copyright, provided by DataCore for Participant’s use in connection with the Participant Activity, and all derivative works thereof whether or not authored by DataCore.
• “Services” means those DataCore Software Product support services, product training and professional services then made generally available by DataCore for resale to End Users in the territory in which the Participant Activity is to be conducted, as they shall exist from time to time.
• “Software Product” means the object code version of the DataCore software products then made generally available by DataCore for sale or resale to End Users in the territory in which the Participant Activity is to be conducted, as they shall exist from time to time (“Software”), and related documentation provided by DataCore for use by End Users (“Documentation”).
• “Terms and Conditions” means these DataCore General Terms and Conditions for Program Participation and Use of DataCore Provided Resources.

ADDITIONAL OBLIGATIONS OF PARTICIPANT.  The following obligations are in addition to and not in lieu of any other obligations of Participant to DataCore:

• Restrictions. Participant acknowledges that the Software and Proprietary Materials contain confidential or proprietary information of DataCore, and agrees not to disassemble, decompile or otherwise attempt to reverse engineer the Software or Proprietary Materials in whole or in part, except to the extent expressly permitted under applicable law notwithstanding such prohibition. Participant shall have no rights with respect to the Software or the Proprietary Materials or to their use except as expressly set forth herein, in the Partner Agreement, or in a separate license agreement under which any are specifically identified as licensed by DataCore to Participant.  Participant shall not reproduce, translate, modify or create derivative works of the Software or Proprietary Materials, or distribute the Proprietary Materials, without DataCore’s express prior written consent except as expressly set forth herein or in the Partner Agreement.
• Marketing. Participant agrees to use reasonable commercial efforts to market and support the Participant Activity, and further agrees that its marketing and advertising efforts will be of high quality, in good taste, and will preserve the professional image and reputation of DataCore and the Software Products. Participant agrees to include in all such advertising all applicable copyright and trademark notices of DataCore in accordance with the trademark license set forth below.

USE OF TRADEMARKS.

• Trademark License. DataCore hereby grants to Participant a non-exclusive, non-transferable license to use “DataCore” (both the name and in the stylized form used by DataCore), the applicable Software Product trademarks, and the logos for any Certification held by Participant (the “Trademarks”) in connection with Participant’s advertising and promotion of the Participant Activity.  Participant’s use shall be in accordance with applicable law and DataCore’s policies regarding advertising and trademark usage as they exist from time to time. Participant agrees not to remove or obscure any Trademarks or copyright notices on the Software Products or DataCore Provided Resources, or to attach any additional trademarks, logos or trade designations to the Software Products or DataCore Provided Resources. Participant further agrees not to affix any Trademark to products other than the genuine Software Products.
• Quality. Participant agrees that the nature and quality of all products and services it supplies in connection with the Trademarks shall be consistent with generally accepted industry standards, but of no less quality than for its own or other products it resells. Participant agrees to cooperate with DataCore in facilitating DataCore’s monitoring and control of the nature and quality of such products and services, and to supply DataCore with specimens of use of the Trademarks upon request.

OWNERSHIP OF PROPRIETARY RIGHTS.

Participant acknowledges that the Software Products and Proprietary Materials are proprietary to DataCore and that, as between DataCore and Participant, DataCore retains exclusive ownership of the Software Products and Proprietary Materials. Participant will take all reasonable measures to protect DataCore’s proprietary rights. Except as provided in the Partner Agreement, Participant is not granted any rights to patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), database rights or any other rights, franchises or licenses with respect to the Software Products or the Proprietary Materials.

NO WARRANTIES; INDEMNITY.

• Software Products, Services and DataCore Provided Resources.  ALL SOFTWARE PRODUCTS, SERVICES AND DATACORE PROVIDED RESOURCES ARE PROVIDED, AND PARTICIPANT ACCEPTS THEM, “AS IS” AND “WITH ALL FAULTS” AND PARTICIPANT’S USE OF THEM IS ENTIRELY AT ITS OWN RISK.  DATACORE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS REGARDING THE SOFTWARE PRODUCTS, SERVICES, DATACORE PROVIDED RESOURCES AND THE PARTICIPANT ACTIVITY, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST HIDDEN DEFECTS, TO THE FULLEST EXTENT PERMITTED BY LAW.  DataCore does not warrant that the Software Products, Services, DataCore Provided Resources, or Participant Activity will meet any requirements or that use of the Software or the DataCore Provided Resources will be uninterrupted or error free.
• General Indemnity. Participant agrees to indemnify and hold DataCore harmless from all liability, damages and costs (including attorneys’ fees) resulting from claims made against DataCore arising from or in connection with the Participant Activity or Participant’s failure to comply with its obligations under a Partner Agreement or these Terms and Conditions.

TERMINATION.

• The Partner Agreement, these Terms and Conditions and Participant’s conduct of or participation in the Participant Activity may be terminated at any time by either party, with or without cause, upon thirty (30) days prior written notice to the other party; provided, however, DataCore shall be entitled to terminate any of  or all the foregoing at any time upon written notice, without advance notice, if it determines, in its sole and absolute discretion that Participant has breached any of its obligations to DataCore under the Partner Agreement, these Terms and Conditions or any other agreement.  Each of the parties has considered its expenditures in performing and preparing for performance of the Partner Agreement and possible losses resulting from its termination.  It is expressly understood that this right of termination is absolute and that neither party shall be liable to the other for damages or otherwise arising from termination in accordance with these Terms and Conditions.
• Immediately upon termination or expiration of the Partner Agreement, these Terms and Conditions, or the Certification upon which its authorization to engage in the Participant Activity is based, Participant shall immediately cease engaging in the Participant Activity authorized thereby, return to DataCore all DataCore Provided Resources and other property of DataCore provided by or through DataCore without charge in connection with such Participant Activity, and (except as expressly authorized by another agreement with DataCore that then remains in effect) discontinue all use of the Proprietary Materials and the DataCore Provided Resources. Regardless of the reason for or method of such termination or expiration, neither party shall be entitled to any compensation, damages or payments for any loss of goodwill, prospective profits, or anticipated sales in connection with such termination or expiration, nor shall either party be entitled to reimbursement in any amount in connection with such termination or expiration for any training, advertising, market development, investments or other costs that shall have been expended by either party before the such termination or expiration. Participant hereby waives its rights under applicable laws for any such compensation, reimbursement, or damages. However, all payments due to DataCore by Participant shall be paid in full immediately upon any such termination or expiration.
• Sections 2(a), 4,5,6,7 and 8 shall survive the termination of this these Terms and Conditions.

LIMITATION OF LIABILITY.

UNDER NO CIRCUMSTANCES WILL DATACORE OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFITS, SAVINGS, BUSINESS, GOODWILL OR DATA, COST OF COVER, OR ANY INCIDENTAL, INDIRECT, RELIANCE, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER SIMILAR DAMAGES OR LOSS, EVEN IF DATACORE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS LIMITED BY APPLICABLE LAW, DATACORE’S AND ITS SUPPLIERS’ TOTAL LIABILITY TO PARTICIPANT ARISING FROM OR IN CONNECTION WITH THE PARTNER AGREEMENT, THE PARTICIPANT ACTIVITY, THE SOFTWARE, THE SERVICES, OR THE DATACORE PROVIDED RESOURCES SHALL IN NO EVENT EXCEED US$100.  The liability limitations set forth in these Terms and Conditions shall apply notwithstanding any failure of essential purpose of any exclusive remedy provided in the Partner Agreement or the invalidity of any other provision.

MISCELLANEOUS.

• Notices. All notices permitted or required of a party shall be in writing and shall be delivered by express courier or by certified or registered express mail, and shall be deemed given upon delivery or, in the case of mail, five (5) days after mailing to the address for such party.  The mailing address for DataCore is 6300 NW 5th Way, Fort Lauderdale, Florida  33309 Attention Contracts Administration or such other address as DataCore may specify in accordance with this Section.  Participant’s address shall be the address set forth in the Partner Agreement, or if there is no Partner Agreement, any other address that DataCore has been given for Participant, or to such other address as Participant shall otherwise specify in accordance with this Section.
• Force Majeure. Neither party shall be in default by reason of any failure to perform any obligation (excluding any obligation to pay money) due to unforeseen circumstances or to causes beyond such party’s reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, failure to obtain export licenses or shortages of transportation, facilities, fuel, energy, labor or materials.
• Assignment. Participant may not assign its rights or obligations under the Partner Agreement or these Terms and Conditions without the prior written approval of DataCore, which may be withheld or conditioned in DataCore’s sole discretion, and any unauthorized assignment shall be void.
• Waiver. No delay or failure by either party to enforce any right under the Partner Agreement or these Terms and Conditions shall constitute a waiver of that right or any other right.  A waiver of any breach or default under the Partner Agreement or these Terms and Conditions shall not constitute a waiver of any other right for subsequent breach or default.
• Severability. If any provision of the Partner Agreement or these Terms and Conditions is found illegal or unenforceable, it will be modified to the minimum extent required to make it legal and enforceable, and the legality and enforceability of the other provisions of the Partner Agreement and these Terms and Conditions will not be affected.
• Injunctive Relief. It is expressly agreed that Participant’s violation of Sections 2(a) (Restrictions), 3 (Use of Trademarks), or 4 (Ownership of Proprietary Rights) will cause irreparable harm to DataCore and that a remedy at law would be inadequate. Therefore, without limiting DataCore’s remedies that may be available at law, DataCore shall be entitled to an injunction or other equitable remedies in the event of any threatened or actual violation of any such provision.
• No Agency. Nothing contained in the Partner Agreement or these Terms and Conditions, including but not limited to any reference to “partner,” shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
• Government Contracts. All Software Products delivered to the U.S. Government are “commercial computer software” as defined in DFARS 252.227-7014(a)(1), and are provided subject to the manufacturer’s standard commercial end user license, pursuant to FAR 12.212(a)).  If applicable, such Software Products are provided with “restricted rights”, with use, duplication, and disclosure by the U.S. Government restricted as provided in either DFARS 252.227-7013(c)(1)(ii) (OCT 1988) or FAR 52.227-14 (ALT III) (JUN 1987).  Participant assumes responsibility to ensure that all deliverable Software Products are marked with the required restricted rights notice.  Manufacturer is DataCore Software Corporation.
• Export Controls. Participant acknowledges that the Software Products and certain DataCore Provided Resources are subject to export controls imposed by the U.S. Export Administration Act of 1979, as amended (the “Act”), and the regulations promulgated there under.  Participant will not export or re-export (directly or indirectly) the Software Products, DataCore Provided Resources, or associated technical data without complying with the Act and the regulations thereunder and will not export or re-export (directly or indirectly) to embargoed destinations.
• Governing Law; Disputes
  • If Participant’s Principal Office is in the U.S.A. or Canada: The laws of the State of Florida U.S.A. shall govern the Partner Agreement and these Terms and Conditions, without reference to its conflict of laws principles or the United Nations Convention on Contracts for the International Sale of Goods.  DataCore and Partner accept the exclusive jurisdiction of the state and federal courts of Broward County, Florida U.S.A.; provided, DataCore shall at all times have the right to commence proceedings in any other court of its choice of appropriate jurisdiction to obtain an injunction, specific performance or other equitable relief for protection of intellectual property rights. Each party irrevocably waives any rights to trial by jury as to any suit, action or proceeding under the Partner Agreement or these Terms and Conditions, and irrevocably agrees that such suit, action, or proceeding shall be tried by a judge without a jury.
  • If Participant’s Principal Office is not in the U.S.A or Canada: Any dispute arising out of or in connection with the Partner Agreement or these Terms and Conditions shall be finally settled by binding arbitration in Fort Lauderdale, Florida U.S.A. under the Rules of Arbitration of the International Chamber of Commerce (“ICC”), before an arbitrator selected by the parties (or, if not selected within fifteen (15) days of a Request for Arbitration, appointed by the ICC pursuant to its rules), who has practiced as a lawyer or judge for at least ten (10) years and who is reasonably familiar with the business pertaining to the Software Products.  The arbitrator shall apply Florida law to the merits of any dispute or claim, without reference to rules of conflicts of law or the United Nations Convention on Contracts for the International Sale of Goods.  The arbitration and all pleadings and written evidence shall be in the English language, and the procedure will be in accordance with ICC Rules without regard to local rules.  Judgment on the award may be entered in any court having jurisdiction thereof or having jurisdiction over either of the parties or its assets.  Notwithstanding the foregoing, DataCore shall at all times have the right to commence proceedings in any other court of its choice of appropriate jurisdiction to obtain an injunction, specific performance or other equitable relief for protection of intellectual property rights, without breach of this arbitration agreement and without any abridgment of the power of the arbitrator.
• Choice of Language.  The parties confirm that it is their wish that the Partner Agreement and these Terms and Conditions, as well as all other documents relating hereto, have been and shall be drawn up in the English language only.  Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s¢y rattachent, soient rédigés en langue anglaise. The English language version of the Partner Agreement will control in all respects, and all other versions are for convenience only and are not binding.
• Entire Agreement. The Partner Agreement and these Terms and Conditions set forth the entire agreement between the parties regarding the subject matter. No modifications or amendments to the Partner Agreement or these Terms and Conditions will be binding upon the parties unless made in writing and executed by authorized officials of each party. Neither the Partner Agreement nor these Terms and Conditions  constitute an offer by DataCore and shall not be effective until both are accepted by DataCore.
• Counterparts. The Partner Agreement may be executed in two or more counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument regardless of whether the signatures appear on the same page.