pivotal-partner-agreement.md

Pivotal Partner Program Agreement

BY ELECTRONICALLY SIGNING THIS DOCUMENT, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT, THE PROGRAM RULES, ANY ADDENDA, AND PROGRAM SITE, ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THIS AGREEMENT (COLLECTIVELY, THE "AGREEMENT"). THE AGREEMENT SHALL GOVERN YOUR ENROLLMENT AND PARTICIPATION IN THE PIVOTAL PARTNER PROGRAM). YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THIS AGREEMENT. YOU MUST ACCEPT THIS AGREEMENT BEFORE YOU CAN PARTICIPATE IN THE PROGRAM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU," OR "YOUR," SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT SELECT SIGN AND MAY NOT ENROLL OR PARTICIPATE IN THE PROGRAM. THE "EFFECTIVE DATE" OF THIS AGREEMENT SHALL BE THE DATE OF YOUR SIGNATURE OF THE AGREEMENT.

This Agreement is entered into between Pivotal Software, Inc., a Delaware corporation with offices at 3495 Deer Creek Road, Palo Alto, CA 94304 (“Pivotal”) and the Partner identified below ( “Partner”). Pivotal and the Partner are from time to time each referred to herein as a “Party” and collectively as the “Parties”. Unless otherwise set forth herein, defined terms shall have the meanings set forth in Section 1 of the Agreement.

PURPOSE

Pivotal is engaged in the business of creating, developing, marketing and licensing the Pivotal Products and Services. This Agreement defines the terms and conditions for Partner to participate in the Pivotal Partner Program (the “Program”). The Program is an ecosystem of third party technology products and services that complement and extend Pivotal Products and Services and applications. Partner will define, deliver and maintain an end user solution that is interoperable with a minimum of one Pivotal Product or Service.

Pivotal and Partner have entered into this Agreement in accordance with the terms and conditions set forth in this Agreement, which consists of the attached Terms and Conditions,, Program Rules, and any Addenda. The Program Rules are subject to change by Pivotal from time to time in its sole discretion. In case of any inconsistency between this Agreement and the Program Rules, the then-current Program Rules will prevail. Pivotal agrees to use commercially reasonable efforts to provide Partner notice of any material changes to the Program Rules.

RELATIONSHIP

The relationship between the Parties is that of independent contractors. The term “partner” is used in this Agreement in its familiar sense rather than as a legal term of art. Nothing in this Agreement will constitute or be deemed to constitute a partnership, joint venture, employment relationship or an agency. Neither Party will have any authority to act on behalf of the other Party in any matter whatsoever, nor to bind the other Party in any way without the other Party’s prior written consent.

TERRITORY

Worldwide unless otherwise noted herein.

1. DEFINITIONS

“Affiliate” means any entity which controls, is controlled by, or is under common control with a Party, where “control” means the legal, beneficial or equitable ownership of at least a majority of the aggregate of all voting equity interests in such entity.

“Customer Data” means the name, contact information (including, contact names, telephone numbers, email addresses, city, state/region, country and zip/postal code) of Customers, sales data, usage data, account numbers, or other information regarding the sale or use of Authorized Pivotal or Partner products, transmitted to Partner in any format – whether tangible or intangible – by Pivotal.

“Customer Configuration/Usage Data” means information stored in Pivotal systems about customers’ configuration and usage of Pivotal Products and Services.

“End User” means a third party that has licensed, or has an interest in or potential business need for, the Pivotal Products and Services or the Partner Products.

“Partner Portal” means Pivotal’s official website for partners currently located at https://partners.pivotal.io.

“Pivotal Products and Services” means certain proprietary and/or open source software products, services and projects developed and owned by Pivotal, its Affiliates and their licensors, as the same may be modified by Pivotal, its Affiliates and their licensors from time to time.

“Pivotal’s Trademark Guidelines” means the current version of the guidelines for the use of the visual aspects and trademarks of the Pivotal Products as set out in the Partner Portal and which may be amended by Pivotal from time to time. Pivotal’s Trademark Guidelines can be accessed at: http://www.pivotal.io/trademark-guidelines.

“Program Rules” means the then-current guidelines, rules, regulations, procedures and policies published by Pivotal and its Affiliates from time to time governing the administration, operation and management of Pivotal’s partner program(s) (the “Partner Program”), as modified by Pivotal and its Affiliates from time to time in their sole discretion.

“Partner Products” means Partner’s proprietary products and/or services.

“Territory” means the geographic area(s) and/or market(s) as set out on the signature page of this Agreement.

2. GRANT

2.1 Pivotal hereby grants Partner a non-exclusive right to market, promote and demonstrate the Pivotal Products to End Users. Partner hereby grants Pivotal a non-exclusive right to market and promote the Partner Products. Neither Party shall, however, make any offer to or enter into any agreement with a potential End User with respect to the other Party’s products, but will refer potential End Users to the other Party. Each Party shall have access to and is entitled to provide a potential End User with official marketing material regarding the other Party’s products.

2.2 Each Party shall use reasonable efforts to keep the other Party generally informed of its marketing and promotion activities relating to the other Party’s products. The Parties may only use marketing and promotional material provided by the other Party when performing marketing and promotion activities relating to the other Party’s products. The Parties are aware of the fact that: (a) each Party is marketing and promoting their respective products on a worldwide basis; and (b) each Party has engaged or may in the future engage other partners in any territory to perform the same or similar services as set out in this Agreement. Each Party shall exercise its rights under this Agreement in accordance with the terms and conditions contained herein, and shall conduct itself with the skill and care of a reputable firm or independent contractor within the Party’s field of business. Each Party will make no representations or warranties on behalf of the other Party, represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party, or represent that the other Party is responsible, in contract or otherwise, beyond those obligations specifically undertaken by the other Party in this Agreement.

2.3 Each Party hereby grants to the other Party the right during the term of this Agreement to post its trademark and/or logo identifying the Party and/or Pivotal Partner Program on the other Party’s partner page of its website and in marketing and sales materials only in accordance with Pivotal’s Trademark Guidelines and any guidelines provided by Partner to Pivotal. Each Party will comply with the trademark usage guidelines of the other Party as shall be notified in writing from time to time, which shall include Pivotal’s Trademark Guidelines. Upon termination of this Agreement or upon any violation of the trademark usage guidelines or other misuse of a Party’s logo, the right to post the trademark and/or logo shall terminate. All goodwill accruing from such use of the trademark and/or logo shall inure to the benefit of the relevant trademark owner.

3. LICENSE

3.1 Subject to the terms and conditions of this Agreement, Partner hereby grants Pivotal a non-exclusive, non-transferable, royalty free, revocable license during the Term of this Agreement to use a reasonable number of copies of the Partner Products to be made available to Pivotal by Partner, in Partner’s discretion, solely for the purpose of evaluating, testing, certifying, marketing, promoting and demonstrating the Partner Products solely in conjunction with the Pivotal Products. Neither Party will use the other Party’s products to process any data in a production environment or otherwise make commercial use or offer to make commercial use of the other party’s products.

3.2 Partner shall retain ownership to the Partner Products and derivative works thereof and Pivotal shall retain ownership of the Pivotal Products and derivative works thereof. Nothing in this Agreement shall confer any rights in either Party’s intellectual property except as expressly provided for herein. Neither Party shall: (a) copy or manufacture the other Party’s products or any portion thereof; (b) translate, modify, adapt, enhance, extend, decompile, dissemble or reverse engineer the other Party’s products; (c) sublicense or transfer the other Party’s products to any third party; (d) use the other Party’s products to provide any facility management or bureau service or otherwise use the other Party’s products to process the data of any third party, except as specifically provided herein; (e) export the other Party’s products in contravention of any applicable export regulations; (f) create, develop, license, acquire, use, or deploy any third party software or services to attempt to disable license keys in the other Party’s products; or (g) disclose the results of any benchmark test of the other Party’s products to any third party without the other Party’s prior written approval.

3.3 To enable each Party to exercise the rights granted in this Agreement, each Party shall make available to the other Party access to such Party’s partner website or portal as is necessary to fulfill this Agreement.

3.4 Each Party shall make commercially reasonable efforts to provide maintenance and support solely for the interoperability of their respective products in accordance with such Party’s then-current maintenance and support policy; however no support for any third party, including but not limited to customers and partners, shall be provided under this Agreement.

3.5 The products of each Party may contain or be provided with certain third-party proprietary or open source code. Such third-party or open source code is licensed under the terms of the applicable license conditions and/or copyright notices that can be found in the license file, the related documentation or other materials accompanying the products and or applicable open source license file and/or terms publicly available, including at http://www.pivotal.io/open-source. Each Party represents that it will comply fully with the terms and conditions of the applicable third party or open source license terms.

4. CONFIDENTIALITY

4.1 As used in this Agreement, the term "Proprietary Information" shall mean any information disclosed by the disclosing Party, obtained by the receiving Party, or to which the receiving Party has access, whether in written, oral, graphic, machine-readable or other form, including but not limited to that which relates to benchmarks, performance data or test results, computer software (including but not limited to source and object code), computer hardware, algorithms, names and expertise of employees and consultants, know-how, formulae, processes, ideas, inventions (whether patentable or not), schematics, processes, data, designs, drawings, hardware configuration, research, development, and other technical, business, financial, customer, marketing, and product development plans, forecasts, strategies, agreements with third parties, information or data obtained from third parties, and such other information disclosed by the disclosing Party which: (a) if disclosed in writing, is labeled as confidential or proprietary; (b) if disclosed orally, is identified at the time of disclosure as being of a confidential or proprietary nature; or (c) by the nature of the information is of a type that is reasonably considered to be confidential and/or proprietary. The receiving Party recognizes and acknowledges that the disclosing Party's Proprietary Information (and the confidential nature thereof) is critical to the disclosing Party's business and that the disclosing Party would not enter into this Agreement without assurance that its Proprietary Information and its value will be protected as provided in this section and elsewhere in this Agreement.

4.2 The receiving Party shall use the disclosing Party's Proprietary Information only for the purpose of fulfilling the obligations of this Agreement, and the disclosing Party's Proprietary Information shall not be used for any other purpose without the prior written consent of the disclosing Party. The receiving Party shall hold in confidence, and shall not disclose any Proprietary Information of the disclosing Party. The receiving Party shall use at least the same degree of care in handling the disclosing Party's Proprietary Information as it uses to protect its own Proprietary Information, but no less than a reasonable standard of care. The receiving Party will notify the disclosing Party in writing immediately upon becoming aware of the occurrence of any unauthorized use or release of the disclosing Party's Proprietary Information.

4.3 The obligations of the receiving Party shall not apply, and the receiving Party shall have no further obligations, with respect to any of the disclosing Party's Proprietary Information to the extent that such Proprietary Information is: (a) generally known to the public at the time of disclosure or becomes generally known through no wrongful act on the part of the receiving Party; (b) in the receiving Party's possession at the time of disclosure otherwise than as a result of the receiving Party’s breach of any legal obligation; (c) known to the receiving Party through disclosure by a source other than the disclosing Party that, to the knowledge of the receiving Party, has the legal right to disclose such Proprietary Information; (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party's Proprietary Information; or (e) required to be disclosed by the receiving Party to comply with a court order or applicable laws or governmental regulations, provided that the receiving Party gives prompt written notice of such disclosure to the disclosing Party to enable it to seek a protective order or other appropriate remedy, and takes commercially reasonable and lawful actions to avoid and/or minimize the extent of such disclosure and to obtain confidential treatment of any such disclosure. Each party may disclose the Proprietary Information of the other Party to its employees who have a need to know and who are bound by confidentiality obligations at least as restrictive as those of this Section 4. Each party shall be liable for all violations of this Section 4 by its employees.

4.4 The Parties shall have access to and are entitled to provide a prospective End User with official marketing material regarding the other’s Party’s products. However, the Parties shall not be entitled to provide a prospective End User with any other material relating to the other Party’s products, including but not limited to price lists. Further, the Parties are not entitled to discuss prices, negotiate nor make any offer to or enter into any agreement whatsoever with a prospective End User concerning the other Party’s products, but shall merely refer all prospective End Users to the relevant Party.

5. LIMITATION OF LIABILITY

5.1 To the maximum extent permitted by applicable law, the liability of each Party arising in any way out of products or services, their use or disposition, or otherwise under this Agreement, whether based upon warranty, contract, tort, strict liability, or otherwise, shall not exceed $50,000. To the maximum extent permitted by applicable law, neither Party will be liable, under any contract, tort, strict liability, or other theory, for any special, punitive, multiple, incidental, consequential, or other indirect damages, or for loss of or damage to data, cost of procurement of substitute goods, services, or technology, loss of anticipated revenue or profits, work stoppage, or impairment of other assets, whether or not such damages are foreseeable and whether or not such Party has been advised of the possibility of such damages. The foregoing limitations, exclusions and disclaimers are an allocation of the risk between the parties and will apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.

5.2 The limitation of liability stated in this Section shall not apply to liability arising under Section 4 (Confidentiality), Section 6.2 (indemnification), or to liability arising from physical damage to: (a) property, personal injury or death caused by the negligence of a Party, (b) gross negligence, or (c) willful misconduct.

6. DISCLAIMER AND INDEMNIFICATION

6.1 Each Party disclaims, in connection with this Agreement and its respective products, technologies, or services furnished under this Agreement (including, as applicable, the Pivotal Products or Partner Products), all warranties of any kind (whether express or implied and whether oral or written, including, without limitation, any warranty of merchantability, absence of hidden defects, fitness for a particular usage or the other Party’s requirements) other than Partner’s warranty of non-infringement of any intellectual property right of any third party (the “Third Party Rights”). Each Party represents and warrants that to its knowledge as of the date of initial licensing its products do not infringe an intellectual property right of a third party. Partner shall be solely responsible for the quality, warranty and functionality of its own products and services.

6.2 Notwithstanding any other provision of this Agreement, Partner shall indemnify, defend, and hold harmless Pivotal (the “Indemnified Party”) from and against any claims, suits, proceedings, losses, liabilities, damages, costs and expenses (inclusive of Pivotal’s reasonable attorney's fees) (collectively, “Damages”) brought by a third party alleging that the products, materials and information that Partner provides under this Agreement infringes any Third Party Right belonging to such third party (a “Claim”), provided that Pivotal (i) promptly notifies Partner in writing of the Claim, (ii) allows Partner, at its own expense, to control the defense or settlement of the Claim, and (iii) gives Partner information and assistance necessary to defend the Claim (for which Partner will pay Pivotal’s reasonable, out-of-pocket expenses).

6.3 In response to a Claim, Partner may, at its sole option and expense: (i) obtain for Pivotal the right to continue using the products, materials and information that Partner provides under this Agreement to Pivotal, or (ii) replace or modify the products, materials and information Partner provides under this Agreement to Pivotal to make it non-infringing.

6.4 Partner shall have no liability for any Claim to the extent that it results from: (a) any modification by Pivotal not previously authorized by it to the products, materials and information Partner provides under this Agreement; (b) Partner’s compliance with Pivotal’s written designs, written specification or written instructions; (c) its use or combination with non-Partner software, equipment, or data, other than as specified in the product documentation or otherwise approved by Partner in writing, (d) unauthorized use of the products, materials or information; or (e) use or distribution of other than the Partner product's current release, if the infringement would have been avoided by use of the current release and if the infringement occurs more than 90 days after Partner notifies Pivotal that a previous release may infringe and makes available the non-infringing current release to it.

6.5 Partner’s obligations under this Section 6 constitute Pivotal’s sole and exclusive remedy for any claim of infringement of third party intellectual property rights (including breach of the warranty of non-infringement specified above) with respect to the products, materials and information that Partner provides to Pivotal under this Agreement.

7. PIVOTAL CUSTOMER DATA AND PARTNER CUSTOMER CONFIGURATION/USAGE DATA

7.1 To the extent Partner or Partner’s Products transmit Pivotal Customer Data outside Pivotal’s systems, Partner represents and warrants that Partner has notified all users who have access to Pivotal Customer Data, or will notify them prior to their use of Partner Products, that their data will be transmitted outside Pivotal’s systems and to that extent Pivotal is not responsible for the privacy, security or integrity of such data. Partner further represents and warrants that to the extent Partner or Partner Products store, process or transmit Pivotal’s Customer Data, neither Partner nor Partner Products will, without appropriate prior user consent or except to the extent required by applicable law, (1) modify the content of Pivotal Customer Data in a manner that adversely affects the integrity of Pivotal Customer Data, (2) disclose Pivotal Customer Data to any third party, or (3) use Pivotal Customer Data for any purpose other than providing Partner Product functionality to users of Partner Products. Partner shall also maintain and handle all of Pivotal Customer Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable privacy laws and regulations. A modification or disclosure of Pivotal Customer Data does not violate either of the two preceding sentences to the extent it results from an activity of the applicable customer using Partner Product and a reasonable customer would expect that modification or disclosure of its data to occur as a result of that activity.

7.2 To the extent Partner receives access to Partner Customer Configuration/Usage Data in or from Pivotal systems, Partner represents and warrants that Partner has notified all of Partner users who are subjects of Partner Customer Configuration/Usage Data, or will notify them prior to their use of Partner Products, that Partner may receive such data from Pivotal, and to that extent Pivotal is not responsible for the privacy, security or integrity of Partner Customer Configuration/Usage Data. Partner further represents and warrants that to the extent Partner or Partner Products store, process, collect or transmit Partner Customer Configuration/Usage Data, neither Partner nor Partner Products will, without appropriate prior user consent or except to the extent required by applicable law, (1) modify the content of Partner Customer Configuration/Usage Data in a manner that makes it inaccurate or misleading, (2) disclose Partner Customer Configuration/Usage Data to any third party other than Partner ‘s applicable customer, or (3) use Partner Customer Configuration/Usage Data except in connection with Partner’s relationship with Partner’s applicable customer. Partner shall also maintain and handle all of Partner Customer Configuration/Usage Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable privacy laws and regulations. Notwithstanding the foregoing, this paragraph does not restrict Partner’s use or disclosure of aggregated data containing Partner Customer Configuration/Usage Data, provided none of Pivotal customers are identified or identifiable through such aggregated data or through Partner’s use of such aggregated data.

8. TERM AND TERMINATION

8.1 Unless sooner terminated pursuant to Sections 8.2, 8.3 or 8.4 below, the initial term of this Agreement will commence on the Effective Date and will continue thereafter for a period of one (1) year (“Term”). Following the expiration of the initial one-year Term, unless sooner terminated pursuant to Sections 8.2, 8.3 or 8.4 below, this Agreement will continue to renew for consecutive one-year periods unless terminated by either Party (for any or no reason) effective December 31st of the then-current calendar year, provided that the terminating Party provides written notice of termination to the other Party on or before November 30th of such calendar year.

8.2 Either Party may terminate this Agreement, effective immediately upon written notice to the other Party for convenience and without cause by giving the other Party not less than thirty (30) days written notice. Either Party may terminate this Agreement for cause if: (a) the other Party materially breaches this Agreement and such Party fails to cure such breach for a period of thirty (30) days following written notice thereof; provided, however, that each Party may terminate this Agreement immediately if the other Party’s products are claimed to infringe a third party right; (b) an order is made or a resolution is passed for the winding-up of the other Party or an order is made for the appointment of an administrator to manage the affairs, business and property of the other Party or such an administrator is appointed or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by the other Party or its directors or by a qualifying floating charge holder or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party's assets or undertakings or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt; or (c) the other Party has repeatedly and materially breached this Agreement, regardless as to whether a Party has provided notice of such other Party’s alleged breach under Section 8.2(a) above, and regardless if such other Party has cured such breach in accordance with Section 8.2 (a) above.

8.3 Either Party may terminate this Agreement by giving to the other Party not less than thirty (30) days notice in writing if any change of control of the relevant Party whether by merger, sale of equity interests, or otherwise arises, including but not limited to if the ownership or the management of one Party is changed in a way that results in a competitor gaining control of the relevant Party.

8.4 Within the 30-day period following notice from Pivotal of a material change to the Pivotal Partner Program Rules applicable to the Partner, the Partner may terminate this Agreement effective upon written notice to Pivotal.

8.5 All marketing materials and other materials and licenses provided hereunder, including but not limited to the Confidential Information, will remain the property of the providing Party, and upon termination or expiration of this Agreement, such materials will be returned to the providing Party within thirty (30) days. Effective upon termination or expiration of this Agreement, each Party will cease to use the trademarks of the other Party.

8.6 Any termination or expiration of this Agreement (in whatever way occasioned) will not affect any accrued rights, remedies or liabilities of either Party.

9. GENERAL TERMS

9.1 This Agreement is non-exclusive. Either Party is free to enter into agreements, similar or otherwise, with others and to conduct its business without restriction.

9.2 No delay or omission by either Party in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver given on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion. No waiver shall be effective unless it is in writing and signed by the Party giving the waiver.

9.3 Except as set forth in this Section, neither Party shall assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations to a third party without the other Party's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. Either Party may assign, without such consent, its rights and obligations under this Agreement to: (a) an Affiliate; or (b) any entity which acquires all or substantially all of its voting equity securities or assets through purchase, merger, consolidation, or otherwise, provided that such entity is not a direct competitor of the other Party. Any assignment in violation of the foregoing shall be void. The provisions of this Agreement shall be binding and inure to the benefit of the Parties, their successors, and permitted assigns.

9.4 All notices and other communications required or permitted under this Agreement shall be in writing and in the English language. Notices shall be effective upon delivery. Notices under this Agreement shall be sufficient only if personally delivered, delivered by a major commercial rapid delivery courier service with tracking capabilities, or mailed by certified or registered mail, return receipt requested, to a Party at the address set forth in this Agreement or as amended by notice pursuant to this Section.

9.5 This Agreement shall in all respects, including all matters of construction, validity and performance, be governed by the laws of the State of California, provided that in each case, the foregoing shall exclude any conflict of law rules, and the U.N. Convention on Contracts for the International Sale of Goods shall not apply.

9.6 The Parties agree to comply with all applicable laws, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and any other applicable anticorruption laws or regulations. The Parties agree to comply fully with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), as amended from time to time (collectively, the “Export Control Laws”). The Parties agree not to export or reexport their respective products to any parties located in Iran, Cuba, North Korea, Syria, Sudan or any other countries prohibited under U.S. embargoes or sanctions programs maintained by the OFAC or otherwise prohibited under the Export Control Laws.

9.7 In the event that any fees or payments are due from Partner under this Agreement or the applicable Pivotal Partner Program Rules, Partner agrees that the invoice for any such amounts may be provided by applicable local Affiliate of Pivotal (based upon the jurisdiction where Partner is located) and Partner shall remit such amounts to such Pivotal Affiliate.

9.8 The following provisions shall survive the termination of this Agreement: Sections 4 (Confidentiality), 5 (Limitation of Liability), 6 (Indemnification), 8 (Term and Termination) and 9 (General Terms).

9.9 In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable as written, that provision shall be reformed so as to give effect to the intentions of the Parties, and the other provisions of this Agreement will remain in full force and effect.

9.10 Neither Party shall be responsible for any delay or failure in its performance of any obligation hereunder (other than payment obligations) due to causes beyond its reasonable control, provided that the Party invoking this Section: (a) provides prompt notice to the other Party, and (b) resumes performance promptly when conditions allow it to do so.

9.11 This Agreement (including any Program Rules, Addendum/Addenda relating to a particular tier of the Pivotal Partner Program) sets forth the complete and exclusive agreement between the Parties relating to the subject matter contained herein and supersedes all prior oral and written agreements, understandings, and communications. Any modifications to this Agreement, other than the Program Rules which Pivotal reserves the right to change or modify at any time, must be in writing and signed by duly authorized representatives of both Parties.

9.12 This Agreement may be executed electronically, by facsimile and/or in counterparts, which together shall be deemed the entire agreement.