Citrix Solution Advisor Agreement
1. CSA undertakings.
CSA undertakes to carry out with all its obligations in accordance with the technical, administrative and financial terms specified in this Agreement (including Exhibit A).
Citrix Solution Advisor has read the Citrix Solution Advisor Program Overview(s) applicable to the Products and Services it wishes to distribute attached as Exhibit A or located at www.citrix.com/mycitrix and agrees to comply with the obligations and requirements set forth therein. Each Citrix Product and Service has training and/or certification requirements that Citrix Solution Advisor must meet in order to be able to distribute that Product or Service. Completion of training and/or certification requirements for one Product or Service does not satisfy training or certification requirements for other Products or Services that may be described in the same or another Program Overview. Citrix Solution Advisor shall retain the applicable number of full time employees who have attained the certification set forth in the Citrix Solution Advisor Program Overview.
2. Citrix Responsibilities.
2.1. Grant of License. Subject to Citrix’ final approval, CSA is hereby granted a non-exclusive, non-transferable license to distribute Citrix Products and Services for which it has met the requirements identified in Exhibit A to end users in the Territory pursuant to the end-user license and/or service agreements included with such products or services. Territory shall mean that geographic area forming the CSA’s prime area of responsibility for the marketing and distribution of Products. “Citrix Products and Services” as used herein mean those Citrix products and services that Citrix has chosen to make available hereunder in its sole discretion. All Citrix Products may only be purchased from a Citrix Authorized Distributor. Nothing under this agreement shall oblige Citrix to sell any products directly to CSA.
2.2. Benefits. Citrix grants to the CSA the benefits as defined in the Agreement (including Exhibit A). Citrix Solution Advisor shall receive the benefits set forth in the Citrix Solution Advisor Program Overview for the applicable Citrix Solution Advisor level which benefits may be modified from time to time in Citrix’s sole discretion.
3. Trademarks.
During the term of this Agreement, Citrix and Citrix Solution Advisor shall have the right to identify itself Citrix Solution Advisor as a “Citrix Solution Advisor” and further, Citrix Solution Advisor may refer to Citrix Products using the Citrix Product trademarks in compliance with the applicable Citrix Trademark Guidelines located at www.citrix.com, which are incorporated herein by reference. Citrix Solution Advisor shall obtain Citrix’ written approval prior to the commencement of any other use of a Citrix trademark, service mark or trade name. Citrix Solution Advisor shall not register or apply for registration of any trademark service mark, business name, company name or trade name, which is identical or similar in whole part to any mark, or name belonging to Citrix. Citrix Solution Advisor agrees that it will do all things necessary, including without limitations executing any documentation, to effect the transfer of any such trade mark, service mark, business name, company name or trade name to Citrix. Except as expressly granted herein, no license regarding the use of Citrix’ copyrights, patents, trademarks or trade names is granted or will be implied. CSA may not incorporate Citrix’s trademarks in any domain name or in any Meta tag or other hidden text in a Web page.
4. Use of CSA Logo or Title.
During the term of this Agreement, CSA shall have the right to identify itself as a “Citrix Solution Advisor”. This designation may be used only in pre-sale marketing materials, such as advertisements, company brochures, catalogues, and other promotional materials (collectively “Marketing Materials”). “Citrix Solution Advisor” may also be displayed on CSA’s business cards and letterhead, in equal prominence with other similar designations. Other designation than Citrix’s ones may not be displayed on software, labels, packaging or documentation or on any materials used with Citrix Products and Services at or after the point of sale. Any materials on which “Citrix Solution Advisor” may be displayed must also prominently display the CSA’s own name and logo, with the CSA’s name and logo appearing in a size and manner that is substantially larger and more prominent. CSA shall obtain Citrix’ written approval prior to the commencement of any other use of the CSA logo or title. CSA has to stay in compliance with the Citrix Brand Protection guideline for third parties posted on www.citrix.com.
5. Advertising.
A CSA may refer to Citrix Products and Services using the appropriate Citrix Product or Services Trademarks to the extent: (i) a trademark license would not be necessary; (ii) the reference is in compliance with local laws and customs concerning the protection of trademarks; (iii) the reference will not be likely to cause confusion, or to cause mistake or to deceive; and (iv) the reference does not indicate or imply Citrix’ endorsement, testing, or approval of any other product or of any service offered by CSA. The appropriate trademark symbol (either “?” [standard trademark] or ® [registered trademark] in a superscript following the Citrix software name) will be used whenever any Citrix software name is mentioned in any Marketing Materials or published in any form whatsoever by a CSA. The appropriate trademark symbol will be used in conjunction with at least the first reference to each Citrix product in all CSA’s publications. All copyright and other rights in any advertising and promotional materials prepared by or for CSA in connection with the Citrix Products and Services shall be owned by Citrix (and CSA hereby assigns such rights to Citrix accordingly). CSA shall ensure that any third party concerned in preparing such matters on CSA’s behalf enters into an appropriate written assignment of such rights to CSA or Citrix.
5.1. Citrix reserves the right to amend, remove or replace any Citrix Trademark. Upon notice, CSA agrees to ensure that its use of any such Trademark is amended accordingly.
5.2. CSA shall cooperate on Citrix request for the registration or protection of trademarks by and for exclusive ownership by Citrix. CSA shall not apply to register the Trademark(s) or any marks similar thereto in its own or in any third party’s name. Any challenge by CSA, either directly or indirectly, as to the validity or the exclusive rights of Citrix in any Trademark shall be grounds for the immediate termination of this Agreement by Citrix. CSA shall not register any Citrix Trademarks or marks confusingly similar to Citrix’ Trademarks in any jurisdiction.
6. Confidentiality.
The Parties expressly undertake to retain in confidence, except as required by governmental or judicial order, the terms and conditions of this Agreement and all information that it receives that indicates that it is confidential material. In the event one of the party is required to disclose otherwise confidential information pursuant to a governmental or judicial order, this party agrees to provide the other party with prompt written notice prior to such disclosure and to comply with any protective order (or equivalent) imposed on such disclosure.
6.1. The receiving party shall not be required to maintain the confidentiality of information that (i) if received rightfully from a third party prior to its receipt from the other party; (ii) the party has received from a third party without any obligation to maintain it in confidence; or (iii) is independently developed by receiving party. The obligation under this Section shall survive the expiration or earlier termination of this Agreement and shall extend to the earlier of such time as the information protected hereby falls into the public domain through no fault of the disclosing party or five (5) years following termination or expiration of this Agreement.
6.2. CSA shall not, and shall not authorize others to, export, re export, or transship, directly or indirectly, any Citrix products or any technical data disclosed or provided under this Agreement, or the direct product of such technical data, to any country as to which the U.S. Government has placed an embargo against the shipment of products which is in effect during the term of this Agreement or in violation of any applicable U.S. export regulation.
7. Term and Termination.
This Agreement shall take effect on the date of its acceptance by Citrix subject to CSA meeting all criteria required for participation in the Citrix Solution Advisor program and unless terminated earlier as provided herein, shall continue for a period of twelve (12) months. This Agreement shall terminate prior to such expiration in the event CSA ceases to comply with its terms. This Agreement may also be terminated by either party at any time, with or without cause, on giving thirty (30) days prior written notice. Upon expiration or termination of this Agreement, all rights and licenses granted by this Agreement shall revert to Citrix and CSA shall immediately cease use of all licenses and the Citrix Solution Advisor logo, and shall cease to represent itself as Citrix Solutions Advisor. CSA shall also cease use and release of any advertising and promotional materials prepared by or for CSA in connection with the Citrix Products and Services. Neither party shall be responsible to the other for any costs or damages resulting from termination of this Agreement.
8. New Products and Services.
Notwithstanding any other provisions of this Agreement, Citrix may elect at any time during the term of this Agreement to announce new Citrix products or services to which the terms and conditions of this Agreement may or may not apply. Citrix may likewise elect to terminate availability of Citrix Products or Services hereunder pursuant to its then current end-of-life policy located at www.citrix.com.
9. Relationship of the Parties.
Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, employer-employee, franchise or agency relationship between Citrix and any CSA.
10. Warranties/Limited Warranties.
Citrix warrants its Citrix Products and Services to end-users the terms set out in the license and/or service agreements applicable to such Products and Services. THESE LIMITED WARRANTIES ARE THE EXCLUSIVE WARRANTY IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND AGAINST INFRINGEMENT AND OF ALL OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON CITRIX’ PART EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW. CITRIX PRODUCTS AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR DISTRIBUTION OR USE WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
CSA is obliged to inform the end user about the end user license and/or service agreement prior to the purchase. CSA must further advice end user that Citrix Products and/or Services are purchasable only if end user agrees to the end user license and/or service agreement. If CSA grants to the end user any additional rights or claims over and above the end user license and/or service agreement, CSA alone is responsible and liable, and not Citrix.
11. Limitation of Liability.
11.1. Subject to applicable law, neither Citrix nor anyone else who has been involved in the creation, production, or delivery of the Products or Services that are the subject of this Agreement shall be liable for any indirect, consequential or incidental damages (including damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use of or inability to use the Citrix products, or provision of, or failure to provide, support, even if Citrix has been advised of the possibility of such damages. Because some jurisdictions do not allow the exclusion or limitation of consequential or other damages, the above limitation may not apply. In any event, except as otherwise provided by law, the liability of Citrix or its suppliers, whether for negligence, breach of contract, breach of warranty, or otherwise, shall, in the aggregate, not exceed the amount paid to Citrix by CSA Member hereunder.
11.2. Citrix may add a reference or link to the CSA Website on www.citrix.com or otherwise. Citrix shall not be responsible for the contents of the CSA Website. CSA member shall defend, indemnify, and hold harmless Citrix from and against all liabilities, claims, costs, fines, and damages of any type (including attorneys’ fees) arising out of or in any way related to third party claims relating to the contents of the CSA Website.
12. Data Protection.
CSA agrees to process personal data which it receives from or passes to Citrix, Citrix’ subsidiaries or business partners in accordance with European data protection and privacy laws (including but not limited to the Directive 95/46/EC) and with the applicable national data protection and privacy laws.
13. General.
Except as expressly granted herein, no license regarding the use of Citrix’ copyrights, patents, trademarks or trade names is granted or will be implied. CSA is an independent business and agrees that it shall not make any representation that might indicate to any third party that such CSA has authority to act on Citrix’ behalf or to bind Citrix to any representation, warranty, or agreement. CSA shall defend, indemnify, and hold harmless Citrix from and against all liabilities, claims, costs, fines, and damages of any type (including attorneys’ fees) arising out of or in any way related to such CSA’s delivery of services and/or representations made by CSA to its customers. In performing this Agreement CSA agrees that it will comply with all applicable laws, rules, regulations and policies and will render Citrix harmless and indemnify Citrix from the failure of CSA to do so. If a particular provision of the Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions. No waiver of any breach of any provisions of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
No term or provision of this Agreement may be changed, discharged or terminated except by a writing signed by duly authorized officers of the parties hereof. The terms of any other documents or electronic communications exchanged (including the terms set forth on any purchase order) shall be of no force or effect unless incorporated herein as a modification or addition to the terms of this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications including all prior and current Citrix Solution Advisor agreement. It shall not be modified except by a written agreement dated subsequent to the Effective Date of the Agreement and signed on behalf of CSA Member and Citrix by their respective duly authorized representatives.
This agreement and any dispute arising out of or in connection with this Agreement will be governed by the Laws of Switzerland, without reference to Conflict of Law principles, excluding the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or in connection with this Agreement that cannot be settled amicably shall be submitted to the exclusive jurisdiction of the competent courts in Canton of Zurich, and CSA hereby consents to the jurisdiction of such courts. Notwithstanding the foregoing, either party may seek injunctive relief in any court of competent jurisdiction to protect its intellectual property rights.