(Rev. May 2012)
For good and valuable consideration, the sufficiency of which is acknowledged, MSC and Company agree as follows:
- “Agreement” means the Technology Partner Agreement by and between MSC and Company, together with these Program Terms.
- “Company” the entity entering into the Agreement with MSC.
- “MSC” means MSC.Software Corporation.
- “Program” means the MSC Technology Partner Program.
- “Program Terms” means these Technology Partner Program Terms and Conditions.
Additional terms with specific meanings are defined near where they first appear below.
- PROGRAM PARTICIPATION. Subject to the terms and conditions of the Agreement, Company may participate in the Program during the term of this Agreement.
- PROGRAM FEES. The Annual Program Fee to be paid by Company to MSC for participation in the Program shall be as set forth in this Agreement. Fees are exclusive of all applicable sales, use and other taxes, and Company will be responsible for payment of all such taxes (other than taxes based on MSC's net income), payable in connection with the Program Fees and this Agreement. Annual Program Fees are non-refundable.
- MARKETING CROSS-REFERENCES. MSC may include Company's name and corporate logo, a short description of the Company's business, a link to the Company's website, and/or Company contact information on MSC's and its subsidiaries' website(s) and/or program member directories. Upon MSC's request, Company will promptly provide MSC with color artwork of Company's name and/or logo in the form and on the media specified by MSC for such purposes. Company will acknowledge, in an appropriate position on the Company's website, Company's membership in the Program, using the Program's logo (if provided by MSC) to link to the MSC website. Use of the other party's name or logo shall not create any right, title or interest in or to the same; all such use and goodwill associated with such name and logo will inure to the benefit of respective owner of such name or logo. Each party agrees to comply with reasonable use instructions provided by the other from time to time in connection with such usage.
- SOFTWARE No software is licensed under this Agreement. The licensing of software is outside the scope of this Agreement. Software (including any updates and upgrades thereto, and any related technical support and documentation) provided by MSC to Company, if any, shall be subject to and governed by the terms and conditions of the applicable MSC software license agreement(s) entered into by the parties. Nothing herein shall be deemed to amend, alter or otherwise effect the terms of any such software license agreement(s).
- PROGRAM CHANGES. MSC reserves the right, in its sole discretion, to make changes to the requirements and/or benefits under the Program, or to discontinue the Program. Additional rules, terms, conditions and/or restrictions may apply to benefits available under this Program. Company will review the MSC Technology Partner website (http://partners.mscsoftware.com or successor site) on a regular basis for the latest benefits and requirements of the Program.
- PUBLICITY. Company may not issue a press release or other public announcement relating to this Agreement or the relationship resulting from this Agreement, without the prior written consent of MSC. Company shall not disclose the terms of the Technology Partner Agreement to third parties.
- RECIPROCITY. At MSC's request, Company will, to the extent available, grant MSC membership in Company's own partner program and provide similar benefits under mutually agreed-to terms.
- RELATIONSHIP OF THE PARTIES. Company acknowledges and agrees that the relationship with MSC arising from this Agreement does not constitute or create a legal partnership, general agency, joint venture, employee relationship or franchise between them. The parties' relationship is at all times that of non-exclusive independent contractors. Neither party will be liable for the debts, obligations or responsibilities of the other party, and neither party will have the right or authority to assume or create any obligation or responsibility for the other, whether expressed or implied, on behalf of or in the name of the other party or to bind the other party in any manner.
- LIMITATION OF LIABILITY. IN NO EVENT WILL MSC OR ITS SUBSIDIARIES BE LIABLE TO COMPANY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST DATA, SAVINGS, PROFITS OR REVENUES) ARISING FROM OR RELATED TO THIS AGREEMENT OR BENEFITS PROVIDED HEREUNDER, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MSC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR CLAIM. MSC AND ITS SUBSIDIARIES' ENTIRE CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY COMPANY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUED.
- Either party may terminate this Agreement upon ten (10) days' advance written notice to the other party if the other party materially breaches any term or condition of this Agreement and fails to cure such breach within the ten (10) day notice period. Either party may terminate this Agreement for convenience at any time upon thirty (30) days' prior written notice to the other party. Additionally, MSC may terminate this Agreement immediately upon notice in the event this Program is discontinued.
- All rights granted to Company under with this Agreement shall immediately and automatically terminate upon expiration or termination of this Agreement. The provisions of Sections 7, 9, 10, 11, 12 and any other provisions which by their nature should survive shall survive and continue after termination of this Agreement in accordance with their terms. Termination of this Agreement shall not relieve Company of any obligations accrued prior to termination.
- GENERAL TERMS.
- Entire Agreement. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof (i.e., Company's participation in the Program) and supersedes any prior communications, discussions, negotiations, proposals or agreements on the subject matter. Any modification or amendment to this Agreement will be effective only if in writing and signed by authorized representatives of both parties. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and MSC's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
- Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, United States, excluding its choice of law rules.
- Construction. Ambiguities, inconsistencies, or conflicts in this Agreement will not be strictly construed against the drafter of this Agreement; rather, they will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting. Titles and headings of sections of this Agreement are for convenience of reference only and shall not control or alter the construction of any provision of this Agreement.
- Notices. Except as otherwise permitted hereunder, all notices under this Agreement will be in writing and shall be delivered personally (including courier service), or by confirmed facsimile or email transmission. MSC may notify Company of changes to the benefits and requirements of the Program by posting such changes on the MSC Technology Partner website (http://partners.mscsoftware.com or successor site).
- Benefit and Assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Company shall not have the right to assign, delegate or otherwise transfer its right or obligations under this Agreement, except with the prior written consent of MSC, which MSC may withhold in its sole discretion. Any prohibited assignment or transfer shall be null and void. MSC may in its discretion assign this Agreement in the event of a merger, acquisition, reorganization, or sales of substantially all of its assets.
- Severability. In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement and the parties further agree to substitute a valid provision for the invalid provision, which most closely approximates the intent and economic effect of the invalid provision.
- Excusable Delays. Neither party will be held liable or responsible for delay or failure to perform any of such party's obligations under this Agreement occasioned by any cause beyond its reasonable control. The affected party will resume full performance of interrupted obligations as soon as practical upon cessation of intervening causes.
- Counterparts; Copies. This Agreement may be signed in two counterparts which together will form a single agreement as if both parties had executed the same document. Signed copies of this Agreement provided via facsimile or other reliable means will be deemed binding to the same extent as original documents.