Effective Date: March 1st, 2017
This Managed Service Provider Agreement (“Agreement”) is made by and between Druva Inc., a company incorporated in Delaware (“Druva”) and the entity that has licensed from Druva products and services (“Partner”) either directly or form an authorized reseller or distributor of Druva Products (“Authorized Reseller”).
BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY UTILIZING/ACCESSING THE DRUVA PRODUCTS AND SERVICES INCLUDING THE MANAGED SERVICE PROVIDER CONSOLE (AS DEFINED BELOW), PARTNER AGREES TO THIS AGREMEENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN PARTNER AND DRUVA AND SETS FORTH THE TERMS THAT GOVERN THE LICENSE PROVIDED TO PARTNER HEREUNDER.
NOW, THEREFORE, in consideration of their agreements and obligations in this Agreement and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS: A capitalized term not otherwise defined in this Agreement shall have the following meaning:
(a) “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, and “control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
(b) “Authorized Product” shall mean the Cloud Services together with the related Documentation. Druva may change, modify or discontinue any Authorized Product from time to time with 30 days prior written notice.
(c) “Authorized Users” shall mean natural persons who are authorized by a Customer to use the Authorized Products licensed by such Customer pursuant to a Partner Customer Agreement, and who have been supplied user identification and passwords by such Customer.
(d) “Client Software” shall mean the client software agent installed on an Authorized User’s endpoint device and any feature or functionality add-ons, and any modified versions and copies of, and upgrades, updates and additions to such software, licensed by Customer pursuant to the Partner Customer Agreement.
(e) “Cloud Services” shall mean the unified data protection and governance software-as-a-service solution of Druva and its Affiliates for enterprise endpoints (inSync) and/or servers (Phoenix), and any feature or functionality add-ons, and any modified versions of, and upgrades, updates and additions to such solution.
(f) “Customer” shall mean a customer of Partner or a customer of Partner’s Affiliate (which is sourced by Partner, an Affiliate of Partner or a Reseller) that licenses the Authorized Products for its own internal business use, and not for resale, distribution, license or offering services to third parties, pursuant to and in compliance with this Agreement and the Partner Customer Agreement, and that is not a competitor of Druva or any Druva affiliated company.
(g) “Customer Data” shall mean data, information and materials of Customer and/or its Authorized Users that Customer or its Authorized Users uploads to, stores on, or accesses with, the Authorized Products.
(h) “Documentation” shall mean the published user guides, manuals, instructions and/or specifications provided or made available by Druva and its Affiliates to their customers, including Partner, with respect to the Authorized Products.
(i) “Druva Customer Agreement” shall mean the license agreement of Druva and its Affiliates pursuant to which Druva licenses the Authorized Products to its customers, as such may be modified by Druva and its Affiliates from time to time without advance notice. The terms of Druva Customer Agreement can be found at www.druva.com/MSA.
(j) “Druva Marks” shall mean the names, trademarks, trade names, service marks, service names, logos and brands, or copyright or other proprietary notices, as amended from time to time, of Druva and its Affiliates.
(k) “Druva PartnerSync Program for Managed Service Providers” shall mean the then current managed service provider and reseller qualification criteria, pricing, discount schedules, minimum license fees, minimum license requirements and deal registration requirements for the Authorized Products based upon partnership level, or any successor program. The Druva PartnerSync Program for Managed Service Providers documentation, which includes the Druva Managed Service Provider Price List and Commitments, the Druva PartnerSync Deal Registration Requirements and the Minimum License Fee Requirements. Druva may modify the Druva PartnerSync Program for Managed Service Providers from time to time without advance notice. Interpretation and application of any program criteria will be in Druva’s sole discretion.
(l) “Order Form” shall mean an order confirmation of Druva (or a distributor of Druva) or other written document (e.g., purchase order) that identifies the Authorized Products ordered by Partner or its Affiliate on behalf of a Customer, which is accepted by Druva (or a distributor of Druva) in writing, but shall exclude any pre-printed or linked terms and conditions set forth in such written document that are in addition to, inconsistent or in conflict with, or different than, this Agreement.
(m) “Reseller” shall mean a person or entity appointed by Partner or its Affiliate to resell licenses of the Authorized Products to Customers pursuant to a reseller agreement in form and substance reasonably satisfactory to Druva.
(n) “Server Software” shall mean the software installed on Customer’s enterprise servers and any feature or functionality add-ons, and any modified versions and copies of, and upgrades, updates and additions to such software, licensed by Customer pursuant to the Partner Customer Agreement.
(o) “Software” shall mean the Server Software and the Client Software.
(p) “Managed Service Provider Console” shall mean the co-branded management console delivered to the Partner to create and manage Customer accounts including trial licenses and commercial licenses from a centralized system.
2.1 Appointment. Druva appoints Partner, during the Term, to be an authorized, non-exclusive managed service provider for marketing, promoting, licensing and supporting the Authorized Products, subject to Partner’s compliance with, and in accordance with, this Agreement and the Druva PartnerSync Program for Managed Service Providers. Partner agrees to ensure that each of its Affiliates comply with the terms and conditions of this Agreement to which Partner is subject. To the extent that Partner or its Affiliate sublicenses any of the licenses set forth in Section 2.3(b) to a Reseller of Partner or Affiliate, Partner or Affiliate agrees to ensure that such Reseller complies with the applicable provisions of this Agreement, and Partner agrees to remain responsible for the performance of its Affiliates and such Reseller, as applicable. Druva reserves the right to market, promote, license, provide, distribute, support and maintain, and to appoint other persons or entities to market, promote, license, provide, resell, distribute, support and maintain, the Products on a standalone basis or bundled with third party products or services, directly or indirectly, in the Territory or anywhere else in the world, without any liability or obligation to Partner or its Affiliates. For clarity, as used in this Agreement, the terms “purchase”, “sell”, “resell” and like terms refer to purchase or sale of a license to use the Authorized Products and not to a purchase or sale of title to or ownership of any rights or other interests in the Authorized Products.
2.2 Term. Unless terminated earlier in accordance with this Agreement, the initial term of this Agreement (the “Initial Term”) will continue for a period of 12 months from the acceptance of the terms. After the Initial Term and unless earlier terminated pursuant to this Agreement and provided that Partner continues to meet the criteria set forth in the Druva PartnerSync Program for Managed Service Providers for the prior Term, this Agreement shall automatically renew for additional renewal terms of 12 consecutive months each (each, a “Renewal Term” and collectively, the Initial Term and the Renewal Term(s), the “Term”), unless either party provides the other party with written notice of termination at least 60 days prior to the end of this Agreement’s then-current term. Following each 12 month auto-renewal period, Partner will be subject to the license fee commitments agreed upon by the parties and/or Druva distributor.
2.3 Limited Licenses.
(a) Authorized Product Licenses. Subject to compliance with this Agreement and the Documentation, Druva grants to Partner a non-exclusive, non-transferable, non-sublicensable (except to Partner’s Affiliates), revocable and limited license within the Territory during the Term:
(i) to use the Authorized Products on a standalone basis solely to demonstrate, market and promote the Authorized Products to a prospective Customer located in the Territory with such demonstration licenses to be capped at 25;
(ii) to license the Authorized Products on a standalone basis directly to a Customer located and taking delivery in the Druva approved territory solely for such Customer’s own internal business use pursuant to the Partner Customer Agreement;
(iii) to provide support services for the Authorized Products to a Customer that has licensed the Authorized Products pursuant to the Partner Customer Agreement in accordance with this Agreement; and
(iv) to make copies of the Documentation for its own internal business use in connection with its performance of this Agreement and for a Customer located and taking delivery in the Territory, but no more than the amount reasonably necessary.
(b) Reseller Permission. Subject to compliance with this Agreement, Druva grants to Partner and its Affiliates a non-exclusive, non-transferable, non-sublicensable (except to Partner’s Affiliates and Resellers of Partner and its Affiliates), revocable and limited license during the Term:
(i) to use the Authorized Products on a standalone basis solely to demonstrate, market and promote the Authorized Products to a prospective Customer located and taking delivery in the Territory with such demonstration licenses to be capped at 25; and
(ii) to market, promote and resell the Authorized Products to a prospective Customer solely for such Customer’s own internal business use pursuant to the Partner Customer Agreement.
(c) Trademark Licenses. Subject to compliance with this Agreement and the Documentation, Druva grants to Partner a non-exclusive, non-transferable, non-sublicensable (except to Partner’s Affiliates and Resellers of Partner and its Affiliates), revocable and limited license within the Territory during the Term to use the Druva Marks solely in connection with the marketing, promotion, license and support of the Authorized Products pursuant to this Agreement. Partner and its Affiliates and Resellers shall not use any Druva Mark as its trade name (or part of its trade name) or in any way that would imply or suggest that Druva and such persons or entities are affiliates or are otherwise related entities. Any use of a Druva Mark must correctly attribute ownership of such Druva Mark to Druva and must be in accordance with applicable law and Druva’s then-current trademark usage guidelines. Partner and its Affiliates and Resellers will not remove or obscure any Druva Mark on or in the Authorized Products, and will not attach any additional names, trademarks, trade names, service marks, service names, logos or brands on or in the Authorized Products except as expressly authorized by Section 2.4, and will not authorize or permit a third party to do any of the foregoing. If any Druva Mark is to be used in conjunction with another trademark on or in relation to the Authorized Products, then the Druva Mark shall be presented legibly and more prominently, but nevertheless separated from the other so that each appears to be a trademark in its own right, distinct from the other mark and nevertheless in compliance with this Section. Partner acknowledges and agrees that Druva and its Affiliates own the Druva Marks and that any and all goodwill and other proprietary rights that are created by or that result from the use of the Druva Marks pursuant to this Agreement shall inure solely to the benefit of Druva and its Affiliates. Partner and its Affiliates and Resellers will at no time contest, oppose or challenge, or aid in contesting, opposing or challenging the validity or ownership of any Druva Mark or take any action in derogation of the rights of Druva and its Affiliates therein, including, without limitation, applying to register any name, trademark, trade name, service mark, service name, logo or brand that is similar to any Druva Mark.
2.4 Branding. All Authorized Products shall be branded in accordance with Druva’s then-current branding guidelines, which include that such Authorized Products shall be branded as “Druva” products and services, and shall not be branded as “white label” or Partner-branded products or services.
2.5 Customer and Reseller Agreements. (a) Customer Agreements. Each Authorized Product will be licensed by Partner or its Affiliate (but not Resellers of Partner or Partner’s Affiliates) to each Customer pursuant to Druva Customer Agreement, the terms of which can be found by following www.druva.com/MSA . Partner will promptly notify Druva in writing of any suspected or actual material breach of a Partner Customer Agreement. Partner and its Affiliates will cooperate with Druva with respect to any investigation by Druva of any suspected or actual material breach of a Druva Customer Agreement and any action by Druva to enforce a Druva Customer Agreement. Druva may suspend or terminate, as appropriate under the circumstances, any Customer’s access to the Authorized Products in the event that Partner or Druva determines that such Customer or any of its Authorized Users has breached the Druva Customer Agreement.
(b) Reseller Agreements. To the extent that Partner or its Affiliate engages a Reseller, Partner agrees to enter into an enforceable written agreement signed or accepted by such Reseller that contains terms and conditions substantively similar to the reseller obligations of Partner and its Affiliates under this Agreement, which is in form and substance reasonably satisfactory to Druva.
(c) Partner Responsibility. Partner agrees that the rights and obligations of Partner and its Affiliates, on the one hand, and Druva, on the other hand, with respect to the Authorized Products are solely as set forth in this Agreement, and that no Reseller will have any rights under this Agreement and no Customer will have any rights or obligations under this Agreement whether as a third party beneficiary or otherwise. Druva is not responsible for any alteration, compromise, corruption or loss of Customer Data that arises from any access to, sharing or use of any Partner’s, Partner’s Affiliate’s, Customer’s or Authorized User’s accounts, credentials, passwords or encryption keys, or otherwise.
(d) Customer Reporting and Records. Partner agrees (i) to maintain records of each Customer which licenses the Authorized Products and each Reseller that resells the Authorized Products, including the name and address of such Customer and Reseller (including the contact information of its lead business and billing persons), the serial number designation of the Authorized Products licensed to such Customer, the date of delivery of the licensed Authorized Products to such Customer and the license term, the number of users, devices and storage capacity ordered by such Customer, the storage locations of such Customer’s data, the Partner Customer Agreements and related sales documents therefor, and such Customer’s support issues (the “Customer Licensing Information”), and (ii) to provide Druva a summary report of the Customer Licensing Information on a quarterly basis within 14 days of the end of each quarter, with such report to be in form and substance as reasonably agreed by the parties.
(e) Inspection and Audit. During the Term and for a period of three years thereafter, Partner will maintain complete and accurate records regarding the marketing, promotion, licensing and support of the Authorized Products, including the Customer Licensing Information and the Customer Surveys. During such period, Partner will provide Druva and its authorized representatives the right, no more than once every 12 months, upon five business days’ prior notice to Partner and during regular business hours, to examine and audit the books and records of Partner and its Affiliates to confirm that Partner and its Affiliates are in compliance with this Agreement. In the event that any such audit reveals any non-compliance with this Agreement, Partner and its Affiliates, as applicable, will promptly comply with this Agreement, promptly cause the Customer at issue to comply with the Partner Customer Agreement and if there is any underpayment, make any such underpayment to Druva at Druva’s then-current Authorized Product prices with interest calculated in accordance with Section 4. Druva will bear the cost of the examination and audit, but if the amount of the underpayment is 5% or greater than the amount owing for the audited period or if any material breach of this Agreement is revealed, Partner will promptly reimburse Druva for its reasonable costs of conducting such examination and audit.
2.6 Restrictions. Partner agrees to protect Druva’s rights in and to the Authorized Products in the same manner as it uses to protect its own software, confidential or proprietary information or rights, and to comply with the following, and to require its Affiliates and Resellers to comply with the following:
(a) Proprietary Notices. Partner and its Affiliates and Resellers will not, and will not permit any third party to, remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on or in the Authorized Products or the Documentation, or add any other markings or notices to the Authorized Products or the Documentation, except as expressly permitted by Section 2.4.
(b) Use Obligations. Partner and its Affiliates and Resellers (i) will access and use the Authorized Products in accordance with this Agreement and the applicable Documentation, (ii) will not use the Authorized Products or permit the Authorized Products to be used to perform any file storage or other services for any third party, except by a Customer for its own internal business use pursuant to a Partner Customer Agreement, (iii) will not upload or permit the Authorized Products to be used to upload any data that (A) infringes the intellectual property rights or other proprietary rights of any third party, (B) is unlawful or objectionable material or (C) contains software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots, (iv) will not use or permit the use of any software, hardware, application or process that (A) interferes with the Authorized Products, (B) interferes with or disrupts servers, systems or networks connected to the Authorized Products, or violates the regulations, policies or procedures of such servers, systems or networks, (C) accesses or attempts to access another customer’s accounts, servers, systems or networks without authorization, or (D) harasses or interferes with another customer’s use and enjoyment of the Authorized Products, and (v) will not tamper with or breach the security of the Authorized Products.
(c) No Modifications. Partner and its Affiliates and Resellers will not, and will not permit any third party to, modify, port, adapt, translate or create any derivative work based upon, the Authorized Products or the Documentation.
(d) No Reverse Engineering. Partner and its Affiliates and Resellers will not, and will not permit any third party to, reverse engineer, decompile, disassemble or otherwise derive or attempt to derive the source code of the Authorized Products, except for any non-waivable right to decompile any software expressly permitted by applicable mandatory law.
(e) No Transfer. Except by a Customer to exercise its limited licenses for its own internal business use pursuant to a Druva Customer Agreement or by a Reseller, Partner and its Affiliates and Resellers will not, and will not permit any third party to, copy, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, use or offer the Authorized Products on a service bureau basis, deliver or otherwise transfer the Products, in whole or in part.
(f) No Hazardous or Regulated Use. Partner acknowledges that the Authorized Products are not designed, intended or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance. Partner and its Affiliates and Resellers will not use the Authorized Products or permit the Authorized Products to be used for activities where use or failure of the Authorized Products could lead to environmental damage, property damage, death or personal injury.
3. Partner Obligations
3.1 Resources and Knowledge. Partner and its Affiliates and Resellers and their respective personnel will be conversant with the technical language conventional to the Authorized Products and similar products in general, and will develop sufficient knowledge of the industry in which Druva competes, the Authorized Products, and the products and services competitive with the Authorized Products (including specifications, functionality, features and capabilities) so as to be able to explain in detail to actual and prospective Customers the differences between the Authorized Products and competitive products and services.
3.2 Business Practices. Partner and its Affiliates will (a) conduct business in a manner that reflects favorably at all times on Druva, including its Affiliates, and the Authorized Products, and the good name, goodwill and reputation of Druva and its Affiliates, (b) avoid any deceptive, misleading or unethical practices that are or might be detrimental to Druva, including its Affiliates, and/or the Authorized Products, (c) not make any false or misleading representations with regard to Druva, including its Affiliates, and/or the Authorized Products, (d) not make representations, warranties or guarantees of any kind to prospective or actual Customers with respect to the specifications, functionality, features or capabilities of the Authorized Products that are inconsistent with the Documentation.
3.3 Druva PartnerSync Program for Managed Service Providers. Partner agrees to comply with the Druva PartnerSync Program for Managed Service Providers including the Druva PartnerSync Deal Registration Requirements set forth in the Druva PartnerSync Program for Managed Service Providers. In addition, Partner agrees to require its Affiliates and Resellers to comply with the applicable provisions of the Druva PartnerSync Program for Managed Service Providers, which shall include the Druva PartnerSync Deal Registration Requirements.
3.4 Non-Competition. Partner acknowledges that during the course of the engagement of Partner and its Affiliates pursuant to this Agreement, Partner and its Affiliates shall obtain knowledge of trade secrets, confidential information, proprietary information and technologies of Druva and its Affiliates. Partner understands that Druva’s interests in protecting the investments, goodwill, trade secrets, confidential information, proprietary information and technologies of Druva and its Affiliates make it fair, reasonable and necessary for Partner and its Affiliates to agree that they shall not compete with Druva and its Affiliates during the course of their engagement pursuant to this Agreement and for a reasonable period after the expiration or termination of their engagement for any reason. Accordingly, and understanding that Druva’s business is global in scope. Partner will not, and will cause its Affiliates to not, market, promote, license, sell, provide, distribute, support and maintain any products or services that compete with the Authorized Products anywhere in the world during the Term and for a period of 12 months thereafter. Partner and its Affiliates acknowledge and agree that the restrictions on competition in this Section, including the subject matter, scope of activity, geographical coverage and duration, are fair, reasonable and necessary in light of, and are not greater than necessary to protect, the legitimate business interests of Druva and its Affiliates, including the protection of the investments, goodwill, trade secrets, confidential information, proprietary information and technologies of Druva and its Affiliates.
3.5 Compliance with Laws. Partner will comply, and will require its Affiliates and Resellers to comply, with all applicable laws, rules and regulations, including any applicable anti-corruption (e.g., the United States Foreign Corrupt Practices Act of 1977, as amended), data protection, data security, privacy and export control laws, in performing this Agreement and in its dealings with respect to the Authorized Products and its Customers. Without limiting the generality of the foregoing, Partner understands that the Authorized Products or any part thereof, the use of the Authorized Products, and the export and re-export of data via the Authorized Products may be controlled by applicable export control and other national security-related laws of one or more countries governing technology use and transfer, including U.S. Export Administration Regulations. Partner will not, and will require its Affiliates and Resellers not to, engage in any activities in violation of such laws, including the export or release of the Authorized Products to any party involved in sensitive or unsafeguarded nuclear activities, or activities related to chemical or biological weapons or missiles, or to any prohibited country blacklisted under such laws or any national of such prohibited country. In addition, Partner represents and warrants that neither this Agreement (or any term hereof) nor the performance of or exercise of rights under this Agreement, is restricted by, contrary to, in conflict with, ineffective under, requires registration or approval or tax withholding under, or affects Druva’s proprietary rights (or the duration thereof) under, or will require any termination payment or compulsory licensing under, any law or regulation of any organization, country, group of countries or political or governmental entity located within or including all or a portion of the Territory.
3.6 Costs and Expenses. Except as expressly set forth in this Agreement or agreed in writing by the parties, Partner will pay all costs and expenses incurred in connection with the performance of this Agreement by Partner and its Affiliates.
4. Fees; Ordering; Payments
4.1 Program Fees. If applicable, partner agrees to pay the program fees, which fees cover program administration, training expenses, and product updates and upgrades.
4.2 License Fees. Any licenses of the Authorized Products including the Minimum License Fee Requirements are due and payable by Partner Net 30 days from Druva’s invoice date or in accordance with the distributor payment terms. The Program Fees, the minimum license fees outlined in the Druva Managed Service Provider Price List and Commitments, the Authorized Products’ license fees and any other fees payable direct to Druva or through a distributor pursuant to this Agreement (collectively, the “Fees”) are based on the Authorized Products licensed and not on actual license to or usage by Customers. All payment obligations are non-cancellable, and all Fees paid to Druva (directly or through a distributor) are non-refundable except as expressly set forth in this Agreement, and refer to the amounts received by Druva.
4.3 Credit Establishment. Druva may require Partner to provide company, financial and credit information, and any other reasonable information Druva may request to allow Druva to establish credit for Partner. Druva may cancel or suspend credit to Partner at any time, in its sole discretion.
4.4 Prices and Price Changes. Partner and its Affiliates may license the Authorized Products, obtain support and maintenance from Druva and obtain professional services from Druva, in each case solely for a Customer’s own internal business use pursuant to the Partner Customer Agreement, at the prices with the discounts that are set forth in the then current Druva Managed Service Provider Price List. Druva may modify prices, discounts and any other terms of the Druva Managed Service Provider Price List from time to time without advance notice. If Druva increases its list prices, all Authorized Products delivered on or after the effective date of such increase will be at the new higher price, except that Druva will honor all accepted Order Forms that were received prior to notice of the price increase at the prices in effect at the time the order was received. Druva will protect Partner and its Affiliates from price increases for outstanding Customer price quotations for up to 30 days provided that Partner or its Affiliate, as applicable, gives written notification of such quotes (including a copy of the Customer quotation) within 10 days after the effective date of the new price. If Druva decreases its list prices, equitable price protection mechanisms will be implemented in accordance with the Druva PartnerSync Program for Managed Service Providers. Each of Partner and its Affiliates are free to establish the pricing it charges its Customers and the Resellers for the Authorized Products.
4.5 Ordering. Partner and its Affiliates may order Authorized Products for licensing by its Customers by submitting an Order Form to Druva or their distributor. Each Order Form must (a) reference this Agreement, (b) specify (i) the Authorized Products being ordered, including for each Authorized Product, the product name, description and quantity, (ii) the price of each Authorized Product, and any additional charges and costs, (iii) the name and principal location of the Customer for which the Authorized Products are being ordered, (iv) the billing address, (v) the requested delivery date(s) and (vi) any other information reasonably required by Druva, and (c) be signed by an authorized representative of Partner. Any terms and conditions contained in any order that are in addition to, inconsistent or in conflict with, or different than, this Agreement will be deemed stricken from such order. The provisions of the form of purchase order or other business forms of Partner or its Affiliates will not apply to any order notwithstanding Druva’s acknowledgment or acceptance of such order.
4.6 Acceptance. No order will be deemed accepted by Druva unless and until Druva accepts the applicable Order Form. Druva shall acknowledge clean purchase orders from Partner and its Affiliates within seven days after receipt. A “clean purchase order” is such order that (a) complies with the order requirements set forth in Section 4.6 and (b) contains payment advice from Partner. Druva’s acknowledgment shall detail any exceptions, if any, along with the expected delivery date(s). If an order is placed through the Managed Service Provider Console, Partner deems the order accepted. Such order shall become a non-cancelable commitment upon Druva’s receipt and return email confirmation.
4.7 Invoicing and Payment. Partner agrees to pay Druva directly or through the distributor all Fees for products and services ordered by Partner and its Affiliates in United States dollars or such other currency approved by Druva in writing. Unless otherwise set forth in this Agreement, all Fees are due and payable Net 30 days after the date of Druva’s invoice. Partner shall at all times remain obligated to make payments to Druva regardless as to if or when Partner or its Affiliate receives payment from the applicable Customer. Unless otherwise agreed by Druva in writing, Partner will pay all Fees by (a) wire transfer to a bank account designated by Druva, (b) letter of credit payment wherein Partner shall cause to be issued by a bank acceptable to Druva, and confirmed by a bank designated by Druva, one or more irrevocable letters of credit to be equal to the Fees and to provide for payment at sight upon presentation of Druva’s invoices and documents evidencing delivery of the invoiced Authorized Products, or (c) a check drawn upon a United States bank or a foreign branch of a United States bank; provided, however, that if any such check tendered by Partner is returned for insufficient funds or dishonored in any way for any reason, even without fault of Partner, upon written notice to Partner, Druva may require that payment be made by wire transfer or letter of credit. In addition, all invoices that are not paid within 30 days shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the invoice is not paid or the account is delinquent. Druva may accept payment in any amount without prejudice to its right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction. Partner will reimburse Druva for all reasonable costs (including bank charges, collection agency fees and reasonable attorneys’ fees) incurred by Druva in connection with collecting any overdue amounts.
4.8 Taxes. The Fees do not include any taxes, duties, fees or other amounts or withholdings assessed or imposed by any government authority. Partner and its Affiliates are responsible for collecting and paying all such taxes, duties, fees and other amounts or withholdings, as well as all penalties and interest, with respect to the Authorized Products, other than taxes imposed on Druva’s income. If Partner or any Partner Affiliate is required by law to make any withholding or deduction in respect of any payments to Druva under this Agreement, additional amounts shall be simultaneously payable by Partner such that Druva receives (after that withholding and deduction) those amounts which Druva would have received if no withholding or deduction had been required. Upon request, to the satisfaction of Druva, Partner will supply to Druva evidence (e.g. official withholding tax receipts) that Partner or Partner’s Affiliate, as applicable, has accounted to the relevant government authority for the amount withheld or deducted, or valid resale or exemption certificates, or pay or reimburse Druva for all such amounts on demand.
4.9 Delivery. Druva will use commercially reasonable efforts to deliver the Authorized Products on the delivery date(s) specified in each Order Form accepted by Druva pursuant to this Agreement.
4.10 No Set-Off. Partner will not setoff or offset the Fees with amounts that Partner or any Partner Affiliate claims are due it. Partner and its Affiliates will bring any claims or causes of action it may have in a separate action and waives any right they may have to offset, setoff or withhold payment for the Authorized Products pursuant to this Agreement.
5. Limited Warranty
5.1 Authority. Each of Druva and Partner represents and warrants that (a) this Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against such party in accordance with its terms, (b) no authorization or approval from any third party is required in connection with such party’s entering into or performance of this Agreement and (c) the entering into and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
5.2 Limited Warranty. Druva warrants to Partner and its Affiliates that the Authorized Products will perform substantially in accordance with the applicable published specifications when used in accordance with this Agreement, the Partner Customer Agreement and the Documentation for the period during which a Customer has paid for support services in connection with such Customer’s license of the Authorized Products pursuant to such Customer’s Partner Customer Agreement. Non-substantial variations of performance from the published specifications or Documentation do not establish a warranty right. This limited warranty is void if failure of the Authorized Products has resulted from installation, deployment, use, maintenance or support not in accordance with this Agreement, the Partner Customer Agreement or the Documentation, modification by a third party not authorized by Druva, force majeure, any breach of this Agreement by Partner or its Affiliate or any breach of a Partner Customer Agreement. In the event of a warranty claim, the sole and exclusive remedy of Partner and its Affiliates, and Druva’s entire obligation and liability to Partner and its Affiliates shall be, at Druva’s sole option, to either (i) provide a correction, update or upgrade of the Authorized Products, (ii) correct or replace the Authorized Products or (iii) subject to Partner terminating the applicable Partner Customer Agreement(s), refund to Partner (which Partner then agrees to promptly refund to the applicable Customer) a pro-rated amount of the applicable Fees pre-paid by Partner covering the whole months that would have remained, absent such early termination, in the term of the applicable Partner Customer Agreement(s) following the effective date of such early termination. Any corrected, upgraded or updated version of the Authorized Products will be warranted for the remainder of the warranty period. All warranty claims must be made to Druva in writing within such warranty period.
5.3 General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.2, THE AUTHORIZED PRODUCTS ARE PROVIDED “AS IS” AND (i) DRUVA SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (ii) DRUVA DOES NOT WARRANT THAT THE AUTHORIZED PRODUCTS OR ANY PART THEREOF, OR USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, UNBREACHABLE OR VIRUS FREE, OR WILL MEET PARTNER’S, PARTNER’S AFFILIATE’S OR ANY CUSTOMER’S QUALITY AND PERFORMANCE REQUIREMENTS. DRUVA IS NOT RESPONSIBLE FOR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF DATA OF PARTNER, PARTNER’S AFFILIATES OR CUSTOMERS, NOTWITHSTANDING ANY SECURITY OR OTHER MEASURE IN THE AUTHORIZED PRODUCTS.
5.4 Partner Warranty. Partner and its Affiliates and Resellers will make no warranty, guarantee or representation, whether written or oral, with respect to the Authorized Products, including any security measures, privacy measures or service levels that are different from those set forth in the Documentation on behalf of Druva or its Affiliates.
6.1 Definition. The parties may have access to each other’s Confidential Information. “Confidential Information” means any confidential, proprietary and/or non-public information or materials of the disclosing party disclosed to the receiving party, provided that when in tangible form, Confidential Information shall be marked “confidential” or with a similar legend at the time of disclosure and when in intangible form, Confidential Information shall be identified as “confidential” at the time of disclosure, and shall be summarized in writing, marked “confidential” and delivered to the receiving party within 30 days of its initial disclosure. Notwithstanding the foregoing, Druva’s Confidential Information shall include, without limitation, the Products, any software whether in source or executable code, the products and services development plans of Druva and its Affiliates, the evaluation and testing data of the Products, the Products’ pricing and discounts, the business plans of Druva and its Affiliates, the performance of Druva and its Affiliates against service levels, the specific terms and pricing set forth in this Agreement, and this Agreement. The Customer Data is not the Confidential Information of Partner or Druva.
6.2 Exclusions. Confidential Information shall not include information that: (a) is now or hereafter becomes part of the public domain through no act or failure to act of the receiving party, (b) is information that the receiving party had rightfully in its possession without restriction as to use or disclosure before receiving such information from the disclosing party, (c) is hereafter rightfully obtained by the receiving party from a third party without restriction as to use or disclosure, provided that such third party is not known by the receiving party to be bound by a confidentiality agreement with respect to such information or (d) is information that the receiving party independently developed without access to or use of any Confidential Information of the disclosing party.
6.3 Confidentiality Obligations. Each party agrees (a) to use its reasonable efforts to protect Confidential Information of the disclosing party, and in no event, will either party use a standard of care that is lower than it uses for the protection of its own Confidential Information but in any event, not less than reasonable care, (b) not to disclose Confidential Information to any third parties other than as expressly provided in this Agreement and (c) not to use any Confidential Information for any purpose except to perform this Agreement. The receiving party may disclose Confidential Information of the disclosing party to its and its Affiliate’s directors, employees, consultants, accountants and attorneys who are subject to obligations to maintain the confidentiality of the Confidential Information at least as restrictive as those contained in this Agreement and who have a bona fide need to know the Confidential Information to perform this Agreement. In addition, Druva may disclose Partner’s Confidential Information to the directors, employees, consultants, advisors, accountants and attorneys of Druva and Druva’s affiliated companies, who are subject to obligations to maintain the confidentiality of the Confidential Information at least as restrictive as those contained in this Agreement and who have a bona fide need to know the Confidential Information. The receiving party agrees to notify the disclosing party in writing of any misuse or misappropriation of Confidential Information of the disclosing party that may come to its attention.
6.4 Compelled Disclosure. If the receiving party receives notice of a request by any court or governmental authority for production of Confidential Information of the disclosing party, the receiving party shall promptly notify the disclosing party, shall use reasonable efforts to limit disclosure and to obtain a protective order at the disclosing party’s expense, and, if permitted by applicable law, shall enable the disclosing party to participate in limiting the disclosure and seeking a protective order. If the receiving party is legally compelled to disclose Confidential Information, the receiving party shall furnish only that portion of Confidential Information that the receiving party is advised by legal counsel is legally required and shall exercise its reasonable efforts to obtain confidential treatment for such Confidential Information.6.5 Term. All confidentiality obligations created by this Section shall remain in force and effect for the Term, including any renewal term, plus five years.
7. Intellectual Property Rights
All Confidential Information remains the sole and exclusive property of the disclosing party. The Authorized Products, the Documentation, and any corrections, derivatives, enhancements, modifications, updates and upgrades to the Authorized Products and the Documentation, including all intellectual property and other proprietary rights therein (the “Druva IP”), are the intellectual property of and are owned by Druva and its Affiliates, and their licensors. As between Druva and Partner, Druva retains title to and ownership of all right, title and interest in the Druva IP, and except for the limited licenses expressly granted by Druva to Partner in Section 2.3, Partner does not have any right, title or interest in the Druva IP. All rights not expressly granted in this Agreement are reserved by Druva and its Affiliates and their licensors.
8. Partner Indemnity
Partner, if notified promptly in writing and given authority, control, information and assistance at Partner’s expense for defense and settlement of same, agrees to defend, indemnify and hold Druva and its Affiliates harmless from and against all claims, damages, liabilities, losses and expenses, including reasonable attorneys’ and experts’ fees, as a result of or arising out of (a) any action, claim, suit or proceeding brought by or on behalf of a Customer with respect to any breach of the security, privacy or confidentiality obligations of Partner or its Affiliate to such Customer, or (b) any representation, warranty or guarantee with respect to the specifications, features or functionality of the Authorized Products by Partner, its Affiliate or its Reseller that is inconsistent with the Documentation.
Partner’s relationship with Druva during the Term is that of an independent contractor. Each party does not have, and will not represent that it has, any power, right or authority to bind the other party or the other party’s Affiliates, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or the other party’s Affiliates.
10.1 Termination for Convenience. Either party may terminate this Agreement for convenience upon 60 days advance written notice.
10.2 Termination for Cause. This Agreement may be terminated by a party upon written notice to the other party (a) if the other party breaches a material term of this Agreement that is uncured within 30 days (or, in the case of non-payment, five days) after delivery of written notice of such breach, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not dismissed within 30 days, admits in writing its inability to pay its debts as they mature, ceases to function as a going concern or ceases to conduct its operations in the normal course of business.
10.3 Fees. Upon expiration of this Agreement, Partner will pay Druva directly or through the distributor any unpaid amounts that are owed to Druva. Upon termination of this Agreement based upon a breach of Partner or an Affiliate of Partner (following any applicable cure period), Partner will pay Druva any unpaid amounts that are owed to Druva and that would have been paid to Druva for the remainder of the then-current term of this Agreement absent early termination of this Agreement, without limiting Druva’s other rights and remedies. Upon termination of this Agreement based upon Druva’s breach (following any applicable cure period pursuant to Section 11.2), Druva will refund Partner and its Affiliates any amounts pre-paid by Partner or its Affiliates to Druva for use of the Authorized Products after the effective date of this Agreement’s termination under a Partner Customer Agreement that is terminated upon the termination of this Agreement.
10.4 Effect. The parties agree that the rights of Customers to use the Authorized Products in accordance with the Partner Customer Agreements entered into prior to the expiration or termination of this Agreement shall not be affected by such expiration or termination. Immediately upon expiration or termination of this Agreement, (a) (i) the license rights granted by Druva to Partner pursuant to this Agreement and any license rights sublicensed by Partner to its Affiliates and Resellers will cease and (ii) the right of Partner and its Affiliates and Resellers to use the Authorized Products and the Documentation pursuant to this Agreement will terminate, (b) Partner and its Affiliates and Resellers will cease marketing and promoting the Authorized Products, (c) Partner and its Affiliates and Resellers will cease using the Druva Marks, (d) each party will promptly return to the other party all of the other party’s Confidential Information within the possession or control of such party and its Affiliates and Resellers, (e) Partner will return to Druva all marketing and promotional materials for the Authorized Products in the possession or control of Partner and its Affiliates and Resellers within five days of the expiration or termination of this Agreement, and (f) each party will certify in writing that it has complied with such obligations; provided, however, that if agreed in writing by Druva, Partner and its Affiliates shall have the rights set forth in clauses (a)(i), (a)(ii) and (c) above and shall not be required to destroy or return the materials set forth in clause (d) above to the extent necessary for Partner and its Affiliates to service and support Customers following such expiration or termination in accordance with the Partner Customer Agreements entered into prior to such expiration or termination until such service and support are transferred pursuant to Section 11.5.
10.5 Post-Expiration or Termination Customer Service and Support. Partner and its Affiliates will, at their respective expense, cooperate with Druva and take such actions as reasonably requested by Druva to ensure a smooth and efficient transfer of Customers and the related business, including the transfer of the Partner Customer Agreements and the ongoing service and support of Customers, to Druva, an affiliate of Druva or a designee that Druva selects, and to notify Customers in writing regarding such transfer, including the requirement to pay license fees for the Authorized Products directly to Druva, an affiliate of Druva or a designee that Druva selects. As soon as practicable but no later than five days following expiration or termination of this Agreement, Partner will provide Druva in writing: (a) the Customer Licensing Information, and (b) any open support issues regarding the Authorized Products. Additionally, Partner will make the primary sales and support personnel of Partner and its Affiliates available to meet with Druva representatives at Partner’s and/or Druva’s facilities, and in connection therewith, Partner and its Affiliates shall instruct such personnel to fully cooperate in good faith with Druva’s representatives at such meetings, and to fully and accurately answer all questions relevant to effecting a smooth and efficient transfer of Customers and the related business.
10.6 No Damages For Expiration or Termination. PARTNER WAIVES ON BEHALF OF ITSELF AND ITS AFFILIATES AND RESELLERS ANY RIGHT ANY OF THEM MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON EXPIRATION OR TERMINATION OF THIS AGREEMENT UNDER ANY APPLICABLE LAW, CUSTOM, TRADE USAGE, COURSE OF DEALING OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EXCEPT FOR A TERMINATION OF THIS AGREEMENT BY PARTNER DUE TO AN UNCURED BREACH BY DRUVA. Notwithstanding anything in this Agreement to the contrary, Druva will not be liable to Partner or its Affiliates or Resellers on account of expiration or termination of this Agreement for reimbursement or damages for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by Partner or its Affiliates or Resellers or for any other reason whatsoever based upon or growing out of such expiration or termination. Partner acknowledges that (a) each of Partner and its Affiliates and Resellers has no expectation and has received no assurances that any investment in the marketing, promotion, licensing and provision of the Authorized Products will be recovered or recouped or that such person or entity will obtain any anticipated amount of profits by virtue of this Agreement, and (b) Partner and its Affiliates and Resellers will not have or acquire by virtue of this Agreement or otherwise any vested, proprietary or other right in the marketing, promotion, licensing and provision of the Authorized Products or in the “goodwill” created by its efforts hereunder. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR DRUVA TO ENTER INTO THIS AGREEMENT AND THAT DRUVA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS SET FORTH IN THIS SECTION.
10.7 Survival. Sections 2.6, 3.2, 3.5, 4, 5.3, 6, 7, 8, 9, 10, 11, 12 and 13 will survive any expiration or termination of this Agreement.
11. Force Majeure Druva shall not be liable for its inadequate performance under this Agreement caused by any condition beyond the reasonable control of Druva or its suppliers, including accidents, acts of God or nature, government acts, civil unrest, acts of war or terrorism, strikes or other labor problems, failures in computer, hardware, telecommunications, internet service provider or hosting facilities, power shortages and denial of service attacks.
12. Limitations of Liability
EXCEPT FOR PARTNER’S INDEMNIFICATION OBLIGATIONS IN SECTION 9, EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS TO THE OTHER PARTY, AND PARTNER’S OR PARTNER’S AFFILIATES’ MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF BUSINESS, GOODWILL, REVENUE, USE OR OTHER ECONOMIC ADVANTAGE, OR ANY ALTERATION, COMPROMISE, CORRUPTION OR LOSS OF DATA) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE AUTHORIZED PRODUCTS, THE DOCUMENTATION OR USE THEREOF OR THIS AGREEMENT OR THE PARTNER CUSTOMER AGREEMENTS, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXCLUSIONS SET FORTH IN THE PRECEDING SENTENCE, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY PARTNER TO DRUVA HEREUNDER FOR THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. FOR CLARITY, THE ABOVE LIMITATIONS SHALL NOT LIMIT PARTNER’S PAYMENT OBLIGATIONS UNDER SECTION 4. No claim against Druva may be brought more than one year after the facts giving rise to such claim has arisen. The limitations of liability and exclusions of damages in this Section form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.
13.1 Entire Agreement; Amendment; Waiver. This Agreement is the parties’ entire agreement with respect to its subject matter, and supersedes any prior communications, discussions, understandings or agreements. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived with the written consent of duly authorized representatives of the parties.
13.2 Severability. If any provision of this Agreement is held to be unenforceable, the unenforceable provision shall be replaced by an enforceable provision that comes closest to the parties’ intentions underlying the unenforceable provision, and the remaining provisions of this Agreement shall remain in full force and effect. The unenforceability of any provision in any jurisdiction shall not affect the enforceability of such provision in any other jurisdiction.
13.3 Subcontracts; Assignment. Neither Partner nor Druva shall assign, delegate or transfer this Agreement or any of its rights granted by or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, that (a) Druva may assign or transfer this Agreement, in whole or in part, to any Affiliate or in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of its assets or other business combination, or by operation of law without Partner’s consent and without providing notice, and (b) Partner may assign this Agreement, along with all rights and obligations hereunder, to any Affiliate with prior written notice to Druva but without Druva’s prior written consent, provided that Partner directly or indirectly controls such company through the ownership of fifty percent (50%) or more of its voting power. Notwithstanding the foregoing, Druva may subcontract any data center hosting and related services required for delivery of the Authorized Products without Partner’s consent and without providing notice, provided that Druva remains responsible for its subcontractor’s performance. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and permitted assigns.
13.4 Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto (and Druva’s Affiliates and the licensors of Druva and its Affiliates) or their respective successors and permitted assigns any rights or obligations, and if this Agreement is governed by Singapore law, a person who is not a party to this Agreement (other than Druva’s affiliates and the licensors of Druva and its affiliates) has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore, to enforce any term or condition of this Agreement.
13.5 Governing Law. This Agreement shall be governed by the laws of: (a) Singapore, if pursuant to the preamble of this Agreement, Druva means Druva Technologies Pte. Ltd., (b) India, if pursuant to the preamble of this Agreement, Druva means Druva Data Solutions Private Limited, (c) England, if pursuant to the preamble of this Agreement, Druva means Druva Europe Limited, or (d) California, United States, if pursuant to the preamble of this Agreement, Druva means Druva Inc. This Agreement shall not be governed by the conflict of law rules of any jurisdiction, the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which is expressly excluded.
13.6 Dispute Resolution. In the event of a dispute between the parties (a “Dispute”), each party will provide the other party with written notice of the Dispute as soon as practicable, and the parties agree to exercise commercially reasonable efforts to resolve the Dispute amicably through their designated officers. A Dispute that cannot be resolved within 30 days following the discussions contemplated by the prior sentence will, upon written demand of either party, be resolved exclusively by final and binding arbitration. Arbitration will be conducted exclusively in: (a) Singapore by the Singapore International Arbitration Centre pursuant to its rules of arbitration then in effect when Singapore law applies, (b) Mumbai, India by arbitrators appointed pursuant to this Section pursuant to the Arbitration and Conciliation Act, 1996 then in effect when India law applies, (c) England by the International Chamber of Commerce pursuant to its rules of arbitration then in effect when England law applies, or (d) Santa Clara County, California, United States by the Judicial Arbitration and Mediation Service (“JAMS”) pursuant to the United States Arbitration Act, 9 U.S.C., Section 1 et seq, and the Comprehensive Arbitration Rules and Procedures of JAMS then in effect when California law applies. The arbitration will be conducted and all evidence will be submitted in the English language. Each party shall bear its own costs and expenses, and the two parties will share equally the fees and costs of the arbitrators. Each party will choose one independent arbitrator, and the two arbitrators so chosen shall jointly select the arbitrator for the Dispute. The award rendered in the arbitration will be final and binding and may be enforced in any court of competent jurisdiction. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY.
13.7 Equitable Relief; Attorney’s Fees. Notwithstanding anything in this Agreement to the contrary, Druva shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction in order to protect its proprietary or confidential information and to enforce or obtain compliance with the licenses granted under this Agreement without first submitting such matter to arbitration, which remedy will be cumulative and not exclusive. If any action is pursued to enforce or obtain compliance with this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs, in addition to any other relief to which such party may be entitled.
13.8 English Language. The English language version of this Agreement shall be definitive and shall control over any prior or subsequent translation.