Electronics For Imaging, Inc. (“EFI”) is pleased to have You participate in the Fiery Channel Partner Programme (“Programme”) at the membership level indicated by EFI in the Programme Description. These Fiery Channel Partner Programme Terms and Conditions are an agreement between You and EFI (the “Agreement”). This Agreement consists of the below terms and conditions and the Programme Description. Please read this Agreement carefully.
By participating in the Programme, You agree to be bound by this Agreement, including any modifications made to it from time to time. If You do not agree to the terms and conditions in this Agreement, You may not participate in the Programme. In this Agreement, each of You and EFI is individually referred to as a “party” and collectively referred to as the “parties”.
For purposes of this Agreement, the following additional definitions shall apply:
Confidential Information: All confidential and proprietary information which in any way relates to the function, description, or operation of You or EFI, including without limitation, data, designs, processes, specifications, software in both source and object code and trade secrets, together with non-public information such as that relating to suppliers, service information, product programme schedules, project plans, current or future business plans, financial projections, business correspondence, this Programme and such other similar non-public information, and any information marked by a party as "Confidential".
Your or Partner: A company participating in the Programme.
Products: Software, support, training and services related to EFI’s Fiery server business.
Programme Description: A document utilized by EFI and provided to Partner that: (1) describes the Programme, including its benefits and requirements, (2) describes Partner’s responsibilities with respect to the Programme, and (3) is incorporated by reference into this Agreement, and which EFI may update periodically at EFI’s sole discretion.
II. EFI Obligations
If Partner satisfies the requirements stated in the Programme Description and abides by the terms and conditions of this Agreement, EFI shall provide Partner with the benefits described in the Programme Description. EFI reserves the right, in its sole discretion, to (1) change the membership requirements of the Programme from time to time, (2) change the benefits available to Partners or the membership level of Partners from time to time, (3) remove, add or modify Products related to the Programme, and (4) discontinue the Programme without notice.
III. Partner Obligations
A. Partner will comply with the obligations set forth in the Programme Description, which may be updated periodically by EFI.
B. Partner shall act at all times and conduct its activities in a professional and competent manner. Without limitation, Partner will (1) comply with all applicable EFI policies and procedures; (2) promote any Products in a manner that maintains EFI’s good name and reputation; (3) not engage in any illegal, false, or deceptive acts or practices.
C. Partner will not make any representations, warranties, or guarantees to any of its customers with respect to the features, or capabilities of the Products that are inconsistent with EFI’s literature, including all warranties and disclaimers in such literature.
D. Failure by Partner to continuously meet the membership requirements of this Programme or abide by the terms and conditions of this Agreement may result in suspension of Partner’s eligibility to participate in the Programme, modification of any term or condition herein, or termination of this Agreement, at EFI’s sole discretion.
IV. Incentives and Promotions
EFI will provide the incentives and promotions described in the Programme Description to eligible Partners. EFI may, in its sole discretion, modify the incentive or provide for other forms of incentives and promotions. Failure to adhere to any requirements imposed under this Agreement, including without limitation failures to adhere to the Programme Description, may constitute grounds for adjustment of Partner’s discount or promotion, at EFI’s sole discretion.
V. Confidential Information; Proprietary Rights
A. Each party agrees to safeguard all Confidential Information received or to be received from each other and will not disclose such information to any third party without the prior authorization from the other, and will further restrict circulation of Confidential Information within its organization except to the extent necessary to fulfill the purposes of this Agreement. Each party has had or shall have employees to whom Confidential Information of the other is disclosed sign a non-disclosure agreement in content substantially similar to this Agreement. Each party agrees that it shall take all reasonable efforts to avoid disclosure of Confidential Information of the other including efforts at least as great as those used to protect its own confidential information. Each party agrees to notify the other party in writing of any misuse or misappropriation of any Confidential Information of the other that may come to its attention. All Confidential Information will remain the property of the disclosing party.
B. All right, title and interest, including without limitation all intellectual property rights, in and related to the Products, and all improvements, derivative works and modifications thereof, are solely owned by and shall remain with EFI and its licensors and suppliers. You shall not, and shall not permit any third party to, copy, make copies of, translate, localize, disassemble, decompile, reverse engineer, attempt to discover the source code of, modify, create derivative works of and/or in any way change any part of the Products, including without limitation the documentation, packaging, notices and trademarks.
VI. TRADEMARK LICENSE
A. LICENSE. EFI hereby grants to You a worldwide, nonexclusive, non-transferable, non-sublicenseable, royalty-free license to use during the term of this Agreement EFI’s trademarks, service marks, names, brands and logos (collectively, “Marks”) solely in connection with Your rights, duties and obligations under this Agreement.
B. USE. Any use of Marks shall be in accordance with EFI’s trademark usage policy, with proper markings and legends, and subject to EFI’s prior written approval. EFI may withdraw any approval of any use of its Marks at any time in its sole discretion. During the period of use, You shall reasonably cooperate with EFI in facilitating EFI’s monitoring and control of the nature and quality of products and services bearing EFI’s Marks, and shall supply EFI with specimens of Your use of EFI’s Marks upon request. If EFI notifies You that Your use of EFI’s Marks is not in compliance with EFI’s trademark policies or is otherwise deficient, then You shall promptly comply with such policies or otherwise as directed by EFI. You shall not make any express or implied statement or suggestion, or use EFI’s Marks in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on EFI or its business, products or services.
C. MARK OWNERSHIP. You acknowledge that EFI’s Marks are and shall remain Marks of EFI. You shall not gain any right, title or interest with respect to EFI’s Marks by use thereof, and all rights or goodwill associated with EFI’s Marks shall inure to the benefit of EFI.
VII. Additional Terms
A. RECORDS. You shall maintain, for a period of two (2) years after the end of the year to which they pertain, complete records specifically related to the performance of Your obligations under this Agreement. Upon reasonable notice, EFI will have the right to cause an audit to be made of Your records to verify Your compliance with the terms of this Agreement. Any such audit shall be conducted by EFI’s accountants or finance department or by an independent accounting firm or other agent selected by EFI, and shall be conducted during normal business hours and in such a manner as not to unreasonably interfere with Your normal business activities.
B. TERM AND TERMINATION. This Agreement will be effective beginning on the date of EFI’s acceptance of Your application to the Programme and shall expire one (1) year thereafter, unless earlier terminated in accordance with the terms of this Agreement. This Agreement may be renewed for additional one (1) year periods by the mutual agreement of both parties. This Agreement is not an “evergreen” contract or of indefinite duration. The obligations in this Agreement with respect to Confidential Information disclosed during such period shall survive any termination of this Agreement and shall continue for a period of four (4) years following termination of this Agreement. Either party may terminate this Agreement at any time upon fourteen (14) days prior written notice to the other party.
C. LIMITATION OF LIABILITY/INDEMNIFICATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EFI MAKES NO REPRESENTATIONS OR WARRANTIES TO YOU, OR ANY PERSON OR ENTITY, RELATING TO ANY OF THE PRODUCTS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION, AND EFI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING THOSE OF SECURITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT WILL EFI BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, EFI IS NOT RESPONSIBLE FOR ANY COSTS, INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOST PROFITS OR REVENUE, LOSS OF USE OF THE PRODUCT, LOSS OF DATA, THE COST OF RECOVERING ANY DATA, THE COST OF SUBSTITUTE SOFTWARE, OR CLAIMS BY THIRD PARTIES. IN NO CASE SHALL EFI’S LIABILITY UNDER THIS AGREEMENT EXCEED THE VALUE OF THE BENEFITS PROVIDED BY EFI TO YOU UNDER THIS AGREEMENT. The remedies set forth in this Agreement will be Your sole and exclusive remedies for any claim made against EFI under or related to this Agreement. You shall defend, indemnify, and hold harmless EFI from and against any and all third party claims, demands, losses, costs, damages, suits, judgments, penalties, expenses and liabilities of any kind or nature, including reasonable attorneys’ fees and costs, arising out of or relating to the acts or omission of You, Your employees, or agents.
D. RELATIONSHIP OF THE PARTIES. (1) Both parties agree that they are independent and neither is authorized to make any commitment or representation on the other’s behalf. (2) During the term of this Agreement, both parties agree that the terms “partner” or “partnership”, used in reference to this Agreement are used to describe the cooperative marketing relationship between the parties and do not describe or express an implied legal status of partners or joint venturers. Under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose.
E. AMENDMENT. This Agreement may be amended only by a written agreement duly signed by authorized representatives of both parties.
F. SEVERABILITY. If any provision of this Agreement is found to be invalid, unlawful or unenforceable by a court of competent jurisdiction, such invalid term shall be severed from the remaining portion of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
G. ASSIGNMENT. Neither party will assign this Agreement or any rights and obligations thereunder to any third party without the express written permission of the other party, which consent shall not be unreasonably withheld provided however.
H. GOVERNING LAW AND JURISDICTION. This Agreement will be governed by and construed in all respects in accordance with the laws of the State of California, USA, without regard to its conflicts of law provisions. With respect to any disputes arising out of this Agreement, each party consents to the personal jurisdiction and venue of the state and federal courts of California.
I. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties as to the subject matter hereof and supersedes any and all prior oral or written memoranda, understandings and agreements as to such subject matter.
J. SURVIVAL. Those sections that by their nature survive expiration or termination of this Agreement will survive such expiration or termination.
K. NOTICES. Any notice to be given under this Agreement shall be delivered postage prepaid, and if to EFI to its General Counsel (i) by overnight courier, (ii) by fax, (iii) by first class mail or (iv) by email. Notice so given shall be deemed effective when first sent.