OEM PARTNER SCHEDULE
This OEM PARTNER SCHEDULE (“OEM Partner Schedule”) is part of and subject to the Agreement and is hereby incorporated by reference. Any terms not defined in this OEM Partner Schedule shall have the meaning assigned to them in the Agreement.
If Partner is appointed as OEM Partner as indicated on the Partner Agreement Summary, the following terms and conditions shall apply to his appointment in addition to the other terms of the Agreement.
1. DEFINITIONS
“Partner Product(s)” means the Partner product(s) indicated in the Partner Agreement Summary.
“Partner Solution” means the combination of SDL Software with a Partner Product.
2. PARTNER SOLUTION
2.1 Subject to the terms and conditions of the Agreement (including this OEM Partner Schedule) and all applicable laws, SDL grants to Partner a non-exclusive and non-transferable right to use, access and display the SDL Software for the purpose of creating a Partner Solution as further described below.
2.2 Partner shall embed the ‘powered by SDL’ logo within the Partner Solution to identify SDL as a supplier of the SDL Software.
2.3 Partner shall have overall responsibility for the Partner Solution. SDL does not, and will not, endorse, warrant or guarantee the performance of the Partner Solution and/or the Partner Product. Partner shall not represent to any third party that SDL: (i) has endorsed, warranted or guaranteed the performance of the Partner Solution and/or the Partner Product; (ii) implied the merchantability or fitness for a particular purpose of the Partner Solution and/or the Partner Product; or (iii) intends to do either (i) or (ii).
2.4 In the event an action is brought by a third party against SDL based on a claim that the Partner Product or the Partner Solution infringes any Intellectual Property Rights (“Claim”), Partner shall at its own expense, indemnify, defend and hold SDL harmless from and against such Claim to the extent it is not based on the SDL Software.
3. TRAINING AND CERTIFICATION
3.1 Before the launch of the Partner Solution a minimum of two (2) Partner employees must be trained and certified on the applicable SDL Software as per SDL’s guidelines. Recertification shall take place for each new version of SDL Software released by SDL and used by Partner in a Partner Solution.
3.2 E-learning training is available free of charge for the Partner. Classroom and on-site training and certification can be purchased at the rates agreed between the parties.
3.3 Partner may send Partner employee(s) to the respective annual SDL Partner Summit at its own costs (e.g. registration fee, travel expenses etc.).
4. OEM PARTNER PROVISIONS
4.1. Partner Target (if applicable).
4.2. Reports.
Partner agrees to prepare and forward to SDL reports as may be reasonably requested by SDL, including quarterly sales data relating to the SDL Software licenses and SDL Support Services, forecasts of Partner’s projected purchases of SDL Software licenses and SDL Support Services and End User technical contact information.
5. DISTRIBUTION RIGHTS/RESTRICTIONS
5.1. Subject to the terms and conditions of the Agreement (including this OEM Partner Schedule) and all applicable laws, SDL grants to Partner, and Partner hereby accepts, a non-exclusive, non-transferable right and licence to licence and distribute SDL Software as part of its Partner Solution only and SDL Support Services to End Users in the Territory for the Term of the Agreement for End Users’ internal use.
5.2. Partner may under no circumstances deliver a licence key received hereunder from SDL to any third party other than the End User specified in the Order Form or report as set out below, nor transfer the licence key from such End User to any other third party.
5.3. SDL Software may not be sold by Partner as a standalone product hereunder.
5.4. Partner shall not supply the SDL Software and/or SDL Support Services outside the designated Territory, or to other Partners who will distribute the SDL Software outside the Territory or otherwise make it available to a competitor of SDL subject to SDL’s prior written consent. Partner may not appoint a third party to distribute the SDL Software and/or SDL Support Services without SDL’s prior written consent.
5.5. SDL reserves the right to:
5.5.1 deal directly in the SDL Software in the Territory, including the right to licence End Users directly, via Internet distribution or otherwise;
5.5.2 licence distributors and other resellers to distribute the SDL Software in the Territory;
5.5.3 provide SDL Support Services in the Territory;
5.5.4 enter into arrangements or agreements with third parties (including but not limited to End Users, distributors and other resellers, or systems integrators) in connection with the SDL Software and SDL Support Services in the Territory; and
5.5.5 revise the list of SDL Software and SDL Support Services at any time during the Term of this Agreement; SDL will notify Partner of such revisions.
6. ORDER TERMS
6.1. Order Forms.
6.1.1. During the Term of the Agreement Partner may order SDL Software and SDL Support Services from SDL to form part of the Partner Solution for End Users by submitting a written Order Form to SDL.
6.1.2. The term of an Order Form begins on the Order Form effective date set forth in the Order Form and shall continue in effect as described in the Order Form.
6.1.3. All Order Forms shall refer to this Agreement and, at a minimum, shall specify the number, type, term and quantities of SDL Software and SDL Support Services ordered, the agreed licence fee, Support Fee, the requested shipment date, the End User’s complete name and address, and the shipment destination.
6.2. Term licences. The minimum term of an Order Form for term based licences or SDL Support Services shall be twelve (12) months, unless otherwise agreed by SDL in writing. An Order Form for term based licences or SDL Support Services will automatically renew for all available offerings at the end of the initial term (or any renewal term thereafter) for additional one (1) year periods, unless either party has provided the other party with a written termination notice of its intention not to renew such Order Form at least sixty (60) days prior to the expiration of the then current term.
6.3. End User Order. Before Partner submits an Order Form to SDL, Partner must first obtain an order from the End User. No End User order will be deemed accepted by SDL unless and until SDL accepts such order in writing in accordance with an Order Form or unless SDL delivers the order to Partner or to the End User. SDL reserves the right to reject any End User order for any reason whatsoever without liability to Partner. Any terms and conditions contained in any End User order or purchase order that are inconsistent with or in addition to the terms and conditions of an Order Form and this Agreement will be deemed stricken from such End User order or purchase order, unless expressly agreed to in writing by SDL. Upon request, Partner shall provide to SDL a copy of the End User order documents, with any information reasonably deemed confidential or proprietary (such as, but not limited to pricing) removed from such documents.
6.4. Delivery. Subject to the relevant Order Form, SDL shall deliver the SDL Software to Partner. SDL will deliver the applicable SDL Software license key, login information, or other information necessary for Partner to use or access the applicable SDL Software and SDL Support Services directly to the delivery contact specified in the Order Form in accordance with SDL standard delivery procedures.
6.5. Partner shall submit a report to SDL quarterly detailing the SDL Software licenced by Partner as part of its Partner Solution during the previous quarter (“Partner Report”). In addition to the information stated in the Section above, each such report shall contain the respective End User name and address
7. END USER LICENCE AGREEMENT (EULA)
7.1. Partner will be fully responsible to enter into a written legally binding agreement with the End User and shall ensure that any distribution of SDL Software as part of the Partner Solution to an End User is subject to such end user licence agreement.
7.2. Partner agrees that the end user licence agreement will include as a minimum the following provisions:
(i) The SDL Software is licenced to and not owned by the End User and all Intellectual Property Rights in the SDL Software are expressly reserved except for the limited licence rights granted to the End User. The licence granted will be limited, non-exclusive, non-transferable, and non-sublicensable and for End User’s internal business operations.
(ii) The licence restrictions provided in Section 8 of the General Terms and Conditions.
(iii) SDL’s obligations to Partner and its respective End Users relating to any warranty on the SDL Software are limited by and subject to Section 11 of the General Terms and Conditions and the following provisions:
SDL Software will substantially perform in accordance with the Documentation for a period of ninety (90) days from the effective date of the applicable Order Form (“Warranty Period”). The warranty given above is made to Partner for the benefit of End User only.
If SDL Software fails to perform substantially in accordance with the Documentation, Partner must notify SDL in writing within the Warranty Period. As Partner’s and End User’s sole and exclusive remedy and SDL’s entire liability for any breach of the above warranty, SDL will, at its option: (a) promptly repair, correct or replace the SDL Software that fails to meet this warranty; (b) provide Partner with a reasonable procedure to circumvent the nonconformity; or if (a) and or (b) are not commercially feasible, refund the fees paid by Partner under the relevant Order Form for the non-conforming SDL Software. The warranty set forth in this Section (iii) shall not apply if: (i) SDL Software has not been properly installed or used at all times in accordance with the Documentation and supported platforms; (ii) Partner or End User (either itself or via a third party on its behalf) has modified the SDL Software; (iii) Partner or End User has combined SDL Software with other software or hardware not provided or approved by SDL pursuant to the Documentation; or (vi) SDL Software has been subject to misuse, neglect or unusual physical, electrical or electromagnetic stress, or some other type of accident, other than where it was in SDL’s reasonable control to prevent such an occurrence.
(iv) SDL’s liability to Partner and its respective End Users are limited by and subject to Section 13 of the General Terms and Conditions.
(v) Unless otherwise agreed, an obligation for the End User to discontinue use and destroy or return all copies of the SDL Software and related Documentation provided upon termination or expiry of the relevant Order Form.
(vi) A right of SDL to audit End User’s use of the SDL Software and SDL Support Services in order to verify compliance with the licence grant and terms of the Partner EULA.
(vii) A designation of SDL as a third party beneficiary to the EULA, without having SDL assume any of Partner’s obligations thereunder.
8. SDL SUPPORT SERVICES
8.1 During the Term of this Agreement and subject to payment of the applicable Support Fees for each effected End User, SDL shall provide SDL Support Services to Partner in accordance with the SDL Customer Support Service Policy, except 1st and 2nd Line Support in accordance to such SDL Customer Support Service Policy, which shall be provided by Partner directly to the End User, unless otherwise agreed in writing.
8.2 Any 3rd Line Support SDL provides to Partner may be suspended by SDL in the event Partner does not comply with the terms and conditions of this Agreement or with SDL’s Customer Support Policy in effect from time to time. The Support Fee does not include services requested as a result of, or related to, causes which SDL cannot reproduce on unmodified SDL Software and which can therefore not be attributed to SDL. If available, such services will be delivered by SDL against SDL’s then current time and material rates, which shall be agreed in advance by the parties.
9. FEES
9.1 The fees payable by Partner to SDL for the SDL Software and SDL Support Services are specified in the applicable Order Form.
9.2 SDL may increase the applicable fees by five percent (5%) in any subsequent renewal Term of an Order Form.
10. PAYMENTS AND INVOICES
SDL shall issue invoices to Partner (i) immediately after receipt of a signed Order Form from Partner and (ii) any anniversary thereafter for term based licences or SDL Support Services (unless the Order Form has been terminated in accordance with Section 6.2 of this OEM Partner Schedule).
11. CONSEQUENCES OF TERMINATION
11.1 In addition to Section 15.2 of the General Terms and Conditions and unless expressly otherwise agreed, on the effective date of termination or expiry of the Agreement and/or this OEM Partner Schedule: (i) Any active Order Form(s) shall survive the termination of the Agreement and/or this OEM Partner Schedule and only terminate upon expiration of the applicable term of said Order Form. Notwithstanding the termination of the Agreement and/or this Reseller Schedule, such Order Forms will continue to be governed by the terms of the terminated Agreement; and (ii) Partner’s right to distribute the SDL Software and SDL Support Services shall terminate.
11.2 Upon termination of this Agreement and/or this OEM Partner Schedule for any reason, SDL reserves the right to elect to continue providing SDL Software and/or SDL Support Services to any existing End User directly, or indirectly through another authorized SDL Partner. In such event Partner shall provide all necessary and related assistance to SDL as maybe reasonably requested and in a timely manner to ensure a smooth transition of that End User
SDL Limited is a part of the RWS Group Plc.