IMPORTANT PLEASE READ CAREFULLY
This CaringoConnect site (the Program) is a legal agreement between Caringo, Inc. and the company or individual identified in the CaringoConnect on-line registration form (the Partner) regarding membership in the Program. By clicking on the Accept button set forth below you are representing to Caringo that you are authorized to bind the Partner and are agreeing on behalf of the Partner that the terms of this Agreement shall govern the relationship of the parties with regard to the Program. Caringo reserves the right to limit acceptance to the Program. Partner is not a member of the Program until Caringo sends Partner such notice of acceptance to the Program. Such notice will be sent to the eMail address and contact provided by the Partner in the Program on-line registration form.
CaringoConnect Program Agreement
Caringo Inc. (“Caringo”), with a principal place of business at located at 6801 North Capital of Texas Highway, Building 2, Suite 200, Austin, TX 78731, and the organization on whose behalf this CaringoConnect Program Agreement (the Agreement) has been acknowledged and agreed (the Partner) enter into this Agreement as of the date on which Partner indicates its acceptance of the Agreement (the Effective Date) by clicking on the button below that is marked “I Accept”. This Agreement sets forth the general terms and conditions under which Caringo and the Partner agree that Partner is authorized by Caringo to use, develop, test program and application access to Caringo’s software and other materials and information made available through the CaringoConnect site.
NOW, THEREFORE, in consideration of the premises and obligations contained herein, it is agreed as follows:
1 DEFINITIONS
1.1. “Confidential Information” shall mean any and all information or materials provided by one party to the other which are in tangible form and labeled confidential or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure and are followed up within 30 days with an identifying record in a tangible form that is appropriately labeled and which identifies for the subject matter disclosed a short description thereof, the date of such disclosure and what persons were present for the Partner and Caringo during the disclosure (e.g. an email from the person who gave the oral disclosure to an Caringo person present during such disclosure), but shall not include information or materials that (i) were, on the Effective Date of this Agreement, generally known to the public; or (ii) become generally known to the public after the Effective Date other than as a result of the act or omission of the receiving party; or (iii) were rightfully known to the receiving party prior to that party receiving same from the disclosing party; or (iv) are or were disclosed by the disclosing party to a third party generally without restriction on disclosure; or (v) the receiving party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (vi) are independently developed by the receiving party.
1.2. Caringo Product” shall mean any of the family of CAStor products that Caringo develops, markets and sells.
1.3. “Logo(s)” shall mean the CaringoConnect Program Logo and any other logo which Caringo may license to Partner for use hereunder.
1.4. “Territory” shall mean worldwide.
2 PARTNER OBLIGATIONS
2.1. Copyright And Trademark Notices - Partner will acknowledge and credit Caringo for the unique features/support found in the Caringo Product by providing an appropriate copyright notice including Caringo’s name. Any mention or reference by Partner to the Caringo Product with a trademarked name shall be in accordance with Caringo’s usage guidelines. Any Caringo trademarks mentioned or referenced in materials of Partner shall be accompanied by an appropriate trademark notice identifying the marks as trademarks of Caringo. This Agreement does not grant Partner any license or other right to use or display the Caringo corporate logo or any other logo or design of Caringo, except for the Logo(s) as set forth in Section 9 below.
3 COOPERATIVE Exchange of information and Proprietary rights
3.1. Exchange Of Information
A Confidentiality - It is expected that certain information which the parties may exchange hereunder may be considered confidential or proprietary by the disclosing party and may be designated by the disclosing party as "Confidential Information" in accordance with Section 4 below. Each party recognizes the value and importance of the protection of the other's Confidential Information. All Confidential Information of one party disclosed to the other party shall remain solely the property of the disclosing party, and its confidentiality shall be maintained and protected by the other party in accordance with the terms of Section 4 below.
3.2. Proprietary Rights; Relationship Of Parties
A Proprietary Rights - Caringo retains all right, title, and interest in and to the Caringo Product(s) and any and all Caringo technical support databases, worldwide copyrights, patents, trademarks, trade secrets, know-how and other proprietary rights therein. .
B Relationship - Nothing herein shall be construed to place either party in the relationship of legal representative, partner, joint venturer, principal, or agent of the other, and neither party shall have the power to obligate or bind the other in any manner. Each party is solely responsible for its own employees, including terms of employment, wages, hours, required insurance, and daily direction and control. Each party shall assume and be responsible for its own costs and expenses which may be incurred in the performance of its obligations hereunder.
4 CONFIDENTIALITY
4.1. Confidential Information - The receiving party shall protect the other’s Confidential Information by means of the same standard of care as used by the receiving party to protect its own information of a similar nature and importance, and no less than reasonable care. The receiving party shall not make the other's Confidential Information available to any third party and shall use the Confidential Information only to fulfill its obligations or to exercise its rights hereunder and shall disclose Confidential Information only to those persons in its organization who have a need to know such Confidential Information in the performance of their duties in connection with this Agreement and who are bound by a written agreement to protect the confidentiality of such Confidential Information. Each party will promptly report to the disclosing party any actual or suspected breach of the terms hereof.
4.2. Publicity - Except as set forth below, Partner and Caringo shall not, and shall not authorize, assist or permit another party to originate or produce, any written publicity, news release, marketing collateral or other publication or public announcement, relating to this Agreement, without the prior written approval of the other party, which approval shall not be unreasonably withheld. The terms of this Agreement but not its existence, are considered Caringo Confidential Information. Caringo may use Partner’s name and logo in any list of CaringoConnect Program members without prior approval, providing Caringo complies with Partner's then current logo guidelines as provided by Partner.
5 TERM AND TERMINATION
5.1. Term And Termination For Convenience - This Agreement commences on its Effective Date and, unless otherwise terminated in accordance herewith, ends when a party terminates such for its convenience by providing the other with written notice, which notice shall become effective ten (10) business days after receipt thereof.
5.2. Termination Due To Transfer Of Control - Caringo shall, in its sole discretion, have the right to terminate the Agreement and/or any related licenses by written notice to Partner, with such termination to be effective immediately, if Partner merges, is acquired or otherwise undergoes a change of control, or attempts to assign any of its rights or delegate any of its obligations under this Agreement without Caringo’s prior written consent, and any such assignment or delegation in violation of the foregoing shall be void. Partner shall promptly notify Caringo in the event Partner so merges, is acquired or otherwise undergoes a change in control.
5.3. Obligations On Termination Under Sub-Section 5.1 Or 5.2 - Upon giving or receiving notice of termination under sub-section 5.1 or 5.2, Partner shall, within ten (10) business days cease making use of any printed material, trademark, trade name or logo identified with Caringo, as pertains to this Agreement and will immediately discontinue use of the Caringo Products, and within ten (10) days thereafter, shall return or destroy such Caringo Products, all copies of Caringo Products made by Partner, and any related materials in its possession, and certify in writing to Caringo that all such have been returned to Caringo or destroyed and that no further use of Caringo Products or any copies or other derivative works or portions thereof is being made by Partner.
5.4. Termination For Default - Upon occurrence of any of the following acts or events, Partner shall be in default and breach of this Agreement, and Caringo shall, in addition to any other remedies, which may be available to Caringo under this Agreement, in law or equity, in its sole discretion, have the right to terminate this Agreement and any or all related license(s) granted to Partner by written notice thereto, with such termination to be effective immediately:
A Partner fails to perform any of its material covenants, obligations or responsibilities under this Agreement; or
B Partner makes intentional and/or malicious misrepresentations about Caringo, the Caringo Product, Caringo storage systems, Caringo software, or this Agreement.
5.5. Obligations On Termination Under Sub-Section 5.4 - Except as expressly continued in writing by Caringo, all rights and licenses granted to Partner under this Agreement shall terminate upon termination of this Agreement under sub-section 5.4. Upon receiving notice of termination of this Agreement under sub-section 5.4, Partner shall within ten (10) business days after receiving such notice of termination:
A Cease making use of any printed material, trademark, trade name or logo identified with Caringo as pertains to this Agreement ; and
B Return or destroy any Caringo Product or Caringo software including all copies and modifications of the contents thereof made by Partner and any related materials in its possession, and certify in writing to Caringo that all such have been returned to Caringo or destroyed
5.6. Survival – Sections 1, 2, 4, 5, 6, 7, and 10 of this Agreement shall survive the termination or expiration of this Agreement.
6 WARRANTIES
6.1. EXCEPT AS EXPRESSLY STATED IN SECTION 6 OR IN CARINGO’S END USER SOFTWWARE LICENSE AGREEMENT (IF APPLICABLE), THE PROGRAM IS PROVIDED “AS IS”, CARINGO MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FIT-NESS FOR PARTICULAR PURPOSE, OR NONIN-FRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEAL-ING OR PERFORMANCE OR USAGE OF TRADE.
7 LIMITATIONS OF LIABILITY AND INDEMNITIES
7.1. Limits Of Liability - EXCEPT AS OTHERWISE PROVIDED IN SECTION 6 ABOVE, CARINGO’S TOTAL LIABILITY AND PARTNER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH ANY ITEMS OR SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY CARINGO’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED US$10.00 FOR (i) DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY, OR (ii) DAMAGE OF ANY OTHER TYPE NOT OTHERWISE EXCLUDED HEREUNDER. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SUB-SECTION 4.1, NEITHER PARTY SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE) ARISING OUT OF OR IN CONNECTION HEREWITH. EVEN IF ADVISED OF THE POSSIBILITY THEREOF. PARTNER SHALL NOT BRING ANY CLAIM ARISING UNDER THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER SUCH CLAIM HAS ACCRUED.
7.2. Partner Indemnity –
A Partner agrees to indemnify, defend, and hold harmless Caringo from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys’ fees) that such parties may incur as a result of or arising from Partner’s (or anyone using Partner’s CaringoConnect account) violation of this Agreement. Caringo reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Caringo’s defense of such claim.
8 Other agreements; software, services
8.1. Caringo may provide products (such as software) services (such as software maintenance, installation, or training) under the terms of a separate agreement between Partner and Caringo (each, an “Other Agreement”). Caringo’s obligations with respect to any product or service that it makes available to Partner under any Other Agreement shall be governed solely by the Other Agreement under which such product or service is provided and this Agreement shall not be deemed or construed to alter the terms of such Other Agreements.
8.2. For example, the use of any Caringo Product or other software provided by Caringo (“Software”) that is made available to download from the CaringoConnect site is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). You may not install any Software that is accompanied by or includes a License Agreement unless you first have agreed to the License Agreement terms. If no end user license agreement accompanies or is included with the Software, then such Software shall be deemed to be Materials hereunder and this Agreement shall govern your use of such Software.
9 USE OF LOGO(S)
9.1. Grant Of Logo License - Subject to and expressly conditioned upon compliance with the terms and conditions of this Agreement, Caringo grants Partner a personal, nonexclusive, nontransferable, royalty-free, personal right and license to use the CaringoConnect Program Logo solely for the purpose of promoting that Partner is a participant in the CaringoConnect Program, but not in connection with any specific Caringo Product. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, any right to use any other Caringo logo or trademark. Partner shall submit to Caringo for approval, prior to use, distribution or disclosure, each type of advertising, promotion or publicity in which Caringo Logos are used. Caringo shall have the right to require, the correction or deletion of any misleading, false or objectionable material from any such advertising, promotion or publicity.
10 GENERAL
10.1. Entire Agreement - The terms contained herein constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior communications and agreements, either oral or written.
10.2. Similar Products - Nothing contained herein shall be construed as preventing either party from developing, acquiring, marketing, selling, supporting or maintaining products similar to or competitive with those offered by the other party, or from entering into agreements with other products to competitors of the other party, provided that in so doing, such party does not breach its obligations under Section 4.1.
10.3. Equitable Relief - Caringo may, without limiting its other rights and remedies, be entitled to equitable relief, including but not limited to injunctive relief.
10.4. Compliance With Laws And Governing Law - Each party shall comply with all applicable export laws, orders and regulations and obtain all necessary governmental permits, licenses and clearances. This Agreement shall be governed by the laws of the State of Texas, excluding its conflict of law rules.
10.5. Notices - Except for quotes, purchase orders, acknowledgments, invoices and other usual and routine communications, all other notices or writings required or permitted hereunder, including but not limited to notices of default or breach, shall be signed by an authorized representative of the sender, sent to the other’s address as first set forth above, and, in the case of (i) Caringo, addressed to Caringo Inc., 6801 North Capital of Texas Highway, Building 2, Suite 200, Austin, TX 78731, Attn: CFO (ii) Partner, addressed to the attention of the President with copies to the Partner’s then current Business/Marketing manager at the address provided in the Program’s on-line registration form. The address and contacts for either party may be changed by written notice to the other. Such notices shall be deemed to have been received (i) when hand delivered to such individuals by a representative of the sender; (ii) three (3) days after having been sent postage prepaid, by registered or certified first class mail, return receipt requested; (iii) when sent by electronic transmission, with written confirmation by the method of transmission; or (iv) one (1) day after deposit with an overnight carrier, with written verification of delivery.
10.6. No Waiver - No modification or amendment hereto, nor any waiver of any rights herein, shall be effective unless assented to in writing by the party to be charged. The waiver of any breach or default shall not constitute a waiver of (i) any other right or remedy hereunder, or (ii) any subsequent breach or default.
10.7. Independent Contractors - The parties shall act as independent contractors for all purposes hereunder.
10.8. Separability - If any provision hereof shall be held illegal or unenforceable, such provision shall be deemed separable from, and shall in no way affect or impair the validity or enforceability of, the remaining provisions.