his Boring Lab Partner Program Agreement (“Partner Program Agreement”) is between You (“You” or “Partner”), and Boring Lab, LLC having its principal place of business at 920 N. Nash St, Bldg B, El Segundo, CA 90245 (“Boring Lab”).
1.1 “End User” means a person that will: (a) access the capabilities and functionality of the Software; or (b) consume Services. In any event, End Users will not re-distribute or re-sell Software or Services.
1.2 “Territory” means, for purposes of this Partner Program Agreement, a geographic region agreed upon by both parties.
2.1 Subject to all terms of this Partner Program Agreement, Boring Lab appoints Partner as a Solution Provider in the Territory. Partner may procure, distribute and use Services and Licenses in accordance with the express terms of this Partner Program Agreement. When selling Software or Services to an End User, Partner shall notify End User prior to the time of sale of the appropriate License Agreement(s) and terms regarding the Services that will govern such offerings (see Resale of Software Licenses and Resale of Services below).
3.1 Not-for-Resale (“NFR”) Offerings. Should Partner obtain NFR offerings for Software as specified in the Guide, Partner shall use such NFR offering subject to the terms of the License Agreement accompanying any such Software or the appropriate terms for any other offering, except as further restricted as follows: (a) NFR offerings may be used by Partner only during the term of this Partner Program Agreement solely for product demonstration or training purposes; and (b) notwithstanding any contrary provisions in any License Agreement or terms, Partner may not use such NFR offerings for its own information processing or computing or redistribution needs. Upon termination or expiration of this Partner Program Agreement for any reason, Partner shall cease using all NFR offerings and will return to Boring Lab all copies of any Software (including backup copies) in any and all media, and delete any such copies that are resident in the memory or hard disks of computers owned or controlled by Partner.
3.2 Internal Use Licenses. Partner may procure Licenses for internal use from Boring Lab. Unless otherwise agreed, Partner’s use of Software for internal use shall be subject to the terms of the License Agreement accompanying such Software.
3.3 Resale of Software Licenses. Partner may acquire Licenses from Boring Lab and resell such License to End Users in the Territory in accordance with the terms further defined in the Guide. Licenses acquired from a Boring Lab may be distributed only within the country identified as part of Partner’s order. Use of Licenses is subject to the appropriate License Agreement available at https://theboringlab.com/pages/terms-conditions.
3.4 Resale of Services. Partner may acquire Services from distributors and resell such Services to End Users in the Territory in accordance with the terms further defined in the Guide. Services acquired from a distributor may be used or distributed only within the area identified to the distributor as part of Partner’s order. Use of Subscription Services is subject to the appropriate terms of service available at https://theboringlab.com/pages/terms-conditions.
4.1 This Partner Program Agreement will commence on the Agreement Effective Date (the date this Partner Program Agreement is fully executed) and will continue for one (1) year. Thereafter, this Partner Program Agreement shall renew automatically for successive one-year terms unless terminated in accordance with the terms set forth herein.
GENERAL TERMS AND COMMERCIAL TERMS
These terms shall be known as the “General Terms and Commercial Terms”.
6.1 “Confidential Information” means information or material provided by the Discloser to the Recipient that is in tangible form and labelled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) license keys, (b) information regarding Boring Lab pricing, product roadmaps, and strategic marketing plans, (c) non-public materials relating to the Software, and (d) the terms and conditions of this Partner Program Agreement.
6.2 “Cloud Services” reserved for future use.
6.3 “Discloser” means the party providing Confidential Information.
6.4 “Guide” means the program guide applicable to a Program, as updated from time to time.
6.5 “Intellectual Property Rights” means all intellectual property rights throughout the world, including without limitation, copyrights, trademarks, service marks, trade secrets, know-how, inventions, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
6.6 “License” means the right to use a specific quantity of Software pursuant to the terms of a License Agreement.
6.7 “License Agreement” means the terms and conditions that govern the use of Software.
6.8 “Open Source Software” means software components embedded in the Software and provided under separate license terms that are approved by the Open Source Initiative or similar licenses.
6.9 “Order” means written or electronic purchase orders for Software and/or Services.
6.10 “Partner Program Agreement” means each agreement that incorporates by reference these General Terms and Commercial Terms and authorizes Partner to participate in a Program.
6.11 “Personal Information” means any information relating to an identified or identifiable individual that either party may share directly with the other party in connection with, or arising out of, the performance of the parties’ respective obligations under a Partner Program Agreement.
6.12 “Process” or “Processing” means any operation or set of operations that is performed upon Personal Information.
6.13 “Program” means the terms and conditions, requirements, and benefits governing a Boring Lab model for authorized distribution and use of Software and Services by Partner.
6.14 “Recipient” means the party receiving Confidential Information.
6.15 “Service(s)” means services then-listed on the Boring Lab price list(s) applicable to the Program, including Support Services and Cloud Services.
6.16 “Software” means the Boring Lab product(s) listed on the then-current Boring Lab price list(s) applicable to the Program.
6.17 “Support Services” means those technical assistance and update services described by Boring Lab’s then-current support policies.
6.18 “Tax” or “Taxes” means any sales, use, or other taxes (other than taxes on Boring Lab’s income), export and import fees, customs duties, value added taxes, and similar charges applicable to the transactions contemplated by a Partner Program Agreement that are imposed by any government or other authority.
6.19 “Terms of Service” means the terms and conditions that govern the use of a Service.
7.1. Orders, Payment, and Delivery.
7.1.1. Orders. Partner may initiate direct purchases of Licenses or Services from Boring Lab by submitting to Boring Lab valid Orders that reference this Partner Program Agreement. Orders need not be signed to be valid and enforceable. The terms and conditions of this Partner Program Agreement, and the applicable price list, apply to all Orders submitted under such Partner Program Agreement and supersede any different, conflicting, or additional terms on Partner’s Orders. No terms, provisions, or conditions of any Order, acknowledgement, or other business form that Partner may use in connection with the licensing of Software or acquisition of Services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Partner Program Agreement, regardless of any failure of Boring Lab to object to such terms, provisions, or conditions. Any such additional or conflicting terms and conditions on any Order, acknowledgement, or other business form are hereby rejected by Boring Lab. All Orders placed with Boring Lab are subject to Boring Lab’s written acceptance, and no Order will be binding upon Boring Lab until the earliest of (a) the date of delivery of the License entitlement, (b) the date that Boring Lab issues an invoice related to the Services included in such Order, or (c) the date that Boring Lab first provides access to the Cloud Service. When an Order from Partner has been fulfilled by Boring Lab, neither party shall have any liability for pricing in such Order that is inconsistent with the pricing set forth in the appropriate price list. Once accepted by Boring Lab, Orders may not be cancelled for any reason.
7.1.2. Price List. All Licenses and Services available to Partner shall be listed in the price list applicable for the authorized Territory and provided by Boring Lab. Boring Lab may revise the price list upon thirty (30) days prior written notice to Partner. Any revision to the price list will apply to Orders received by Boring Lab after the effective date of the revision, unless a later date is indicated by Boring Lab.
7.1.3. Fees. The fees for License and Services purchased directly from Boring Lab shall be set forth in the applicable price list(s), and may be subject to discounts applied by Boring Lab. The party purchasing Services from Boring Lab is responsible for related fees. Partner will be liable for all fees associated with Services ordered from Boring Lab for the full term for each instance. Services are not cancellable except by the end user as described in the related Terms of Service. No other termination of Services will entitle Partner to any refunds, credits, or exchanges.
7.1.4. Variable-Priced Service Invoicing. As indicated in the related price list, the fees for certain Services are subject to the billing process described in this section (e.g., the fees for some Services are based upon actual usage or other metrics measured during a billing period). To the extent that Boring Lab accepts Orders for those Services directly from Partner, then within fifteen (15) business days following the end of each billing period, Boring Lab will invoice Partner, and such invoice shall be payable in accordance with the payment terms outlined in these General Terms and Commercial Terms. The Orders (written or electronic) for monthly billings after the initial Order billing are for administrative purposes only, and all fees (including any fees related to automatic subscription renewals and extensions, metered usage components, and other add-ons) will be paid in accordance with these General Terms and Commercial Terms.
7.1.5. Currency, Payment Terms, and Taxes. All amounts payable by Partner under this Partner Program Agreement shall be paid in the currency set forth in the applicable price list. All payments are due according to the associated payment schedule. All sums not paid when due will accrue interest daily at the lesser of a monthly rate of one and one-half percent (1.5%) or the highest rate permissible by law on the unpaid balance until paid in full. All charges and fees arising out of or related to this Partner Program Agreement are exclusive of any Taxes. Partner shall pay or reimburse Boring Lab for all Taxes. Where Boring Lab is making a supply of Services, Partner confirms that Boring Lab can rely on the “bill to” name and address on the Order issued by Partner to Boring Lab as being the place of supply for VAT purposes. Unless Boring Lab receives an Order with an appropriate resale certificate or tax exemption certificate that is issued by the jurisdiction to which the Software is to be shipped by Partner, applicable sales Taxes will be charged.
7.1.6. Deducting Withholding Tax. If Partner is required under applicable law to pay its local taxing authority any withholding tax, charge, or levy in respect of any payments due to Boring Lab hereunder (“Withholding Tax”), Partner may deduct such Withholding Tax from applicable payments due to Boring Lab provided that (a) Partner cooperates with Boring Lab to minimize any such Withholding Tax, including obtaining treaty exemption certificates and filing for a tax ruling with the applicable taxing authority and (b) such withheld amounts shall be paid to the appropriate taxing authority by Partner, and Partner shall provide Boring Lab with (i) copies of all official government issued receipts issued by the said taxing authority and all such other evidence as is reasonably necessary for Boring Lab to establish that such Withholding Taxes have been paid, and (ii) a schedule showing the invoice number and gross amounts to which such receipts relate (collectively, “Payment Documentation”). Such Payment Documentation must be provided to Boring Lab by email to: firstname.lastname@example.org within forty-five (45) days of the date Partner remits payment for each applicable Boring Lab invoice. A failure to pay an invoice in full without submitting the Payment Documentation to Boring Lab will cause interest to accrue on unpaid and undocumented amounts.
7.1.7. Delivery. Licenses ordered from Boring Lab under this Partner Program Agreement, and related Software, shall be delivered electronically or shipped as specified in Boring Lab’s acceptance of Partner’s Order. Login credentials, if any, for Services shall be delivered electronically to the end user email address specified in the applicable Order. Boring Lab will use reasonable efforts to make deliveries of accepted Orders promptly. Partner will report any delay or error in Boring Lab’s fulfillment of an accepted Order to email@example.com.
7.2.1. Warranty. Any warranty for Software or Services will be provided by Boring Lab Inc. to the end user. Such warranty will be as specified in the applicable License Agreement, Service description, terms of service, or a separate mutually-executed agreement.
7.2.2. Warranty Service. To the extent Partner resells Licenses or Services pursuant to a Partner Program Agreement, Partner shall ensure that: (a) Boring Lab, LLC’s warranty terms are provided to the end user and (b) Partner complies with the warranty claims.
7.2.3. Warranty Disclaimer. EXCEPT AS PROVIDED IN THIS PARTNER PROGRAM AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BORING LAB HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS LICENSORS, ANY WARRANTIES ON THE SOFTWARE OR SERVICES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT.
7.3. Confidential Information. Each party shall keep all Confidential Information it receives to fulfill the purpose of this Partner Program Agreement confidential using the same protections that it applies to its own information of like importance, but in no event less than reasonable care, and may use such information solely for the purposes contemplated by this Partner Program Agreement or as otherwise agreed. Confidential Information may be disclosed solely to employees, contractors and consultants who have a legitimate need to know such information and are bound to the Recipient under confidentiality restrictions substantially equivalent to this Section 7.3. This paragraph will not apply to information that: (a) was rightfully in possession of the Recipient prior to receipt of such Confidential Information from the Discloser, (b) is or becomes a matter of public knowledge through no fault of the party receiving such Confidential Information hereunder, (c) is rightfully received from a third party without a duty of confidentiality, (d) is independently developed by the Recipient without breach of any confidentiality obligations, (e) is disclosed by Recipient with Discloser’s written approval, (f) the Recipient is required to disclose by applicable law or court order, or (g) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction. In addition, Recipient will be allowed to disclose (i) Discloser’s Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure, (ii) the terms and conditions of this Partner Program Agreement in confidence in connection with an actual or proposed merger, acquisition, or similar transaction. The parties acknowledge that breach of this Section 7.3 will cause irreparable damage to the disclosing party for which monetary damages will be an inadequate remedy.
7.4.1. Defense and Indemnification. Subject to the remainder of this Section 7.4, Boring Lab shall defend Partner against any third party claim that the sale or distribution by Partner solely of the Software, or the written work product delivered to Partner from services delivered pursuant to a statement of work, each as sold and distributed as contemplated by this Partner Program Agreement (each an “Indemnified Product”), infringes any patent, trademark, or copyright of such third party, or misappropriates a trade secret (but only to the extent that such misappropriation is not a result of Partner’s actions) under the laws of: (a) the United States and Canada, (b) the European Economic Area, (c) Australia, (d) New Zealand, (e) Japan, or (f) Peoples Republic of China (“Infringement Claim”) and indemnify Partner from the resulting costs and damages finally awarded against Partner to such third party by a court of competent jurisdiction or agreed to in settlement; provided that Partner: (i) promptly provides Boring Lab with notice of such Infringement Claim, (ii) allows Boring Lab sole control over the defense thereof, and related settlement negotiation (including, without limitation, full decision-making authority over any settlement or settlement amount), and any related action challenging the validity of the allegedly infringed patent, trademark, or copyright, and (iii) reasonably cooperates in response to Boring Lab requests for assistance. Partner may not settle or compromise any Infringement Claim without the prior written consent of Boring Lab.
7.4.2. Exclusions. Notwithstanding the foregoing, Boring Lab will have no obligation under this Section 7.4 or otherwise for any claim or award based on: (a) a combination of any Indemnified Product with any non-Boring Lab data, products, or business processes, (b) use by Partner or an end user for a purpose or in a manner for which the Indemnified Product was not designed, (c) use by Partner or an end user of any older version of the Indemnified Product when use of a newer Boring Lab revision would have avoided the infringement, (d) modification of the Indemnified Product made after delivery by Boring Lab, (e) open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by Boring Lab into the Indemnified Product, (f) Partner materials or technology that Partner instructs Boring Lab to develop in a specific way or to achieve a specific end result, or (g) the value of any non-Boring Lab data, product, services or business process.
7.4.3. THIS SECTION 7.4 STATES PARTNER’S SOLE AND EXCLUSIVE REMEDY AND Boring Lab’S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
7.5. Limitation of Liability.
7.5.1. Limitation. Each party’s liability for a claim of any nature arising out of this Partner Program Agreement, regardless of whether the claim is based in contract, tort, strict liability, or otherwise, shall not exceed the fees received by Boring Lab for the specific offering giving rise to such claim, and in no event shall either party’s total and cumulative liability for all claims arising out of this Partner Program Agreement (except for the liabilities identified in Section 7.5.2) exceed the lesser of: (a) the total fees received by Boring Lab under such Partner Program Agreement(s) or (b) US $200,000 (Two Hundred Thousand United States Dollars). Further, Boring Lab’s licensors shall have no liability of any kind under this Partner Program Agreement.
7.5.2. Exclusions. The limitation of liability in Section 7.5.1 shall not consider, nor apply to: (a) either party’s liability for violation of the other party’s or its licensors’ Intellectual Property Right, (b) either party’s liability for breaches of confidentiality under this Partner Program Agreement, (c) Partner’s payment obligations under Section 7.1 related to Software and Services consumed, sold, or distributed, (d) either party’s liability to pay fees, costs, and expenses pursuant to Section 7.1, (e) either party’s liability for death or personal injury caused by its negligence; (f) either party’s liability for any fraudulent pre-contractual misrepresentations made by one party on which the other party can be shown to have relied, or (g) any liability which cannot be excluded by applicable law.
7.5.3. Disclaimer of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, BUSINESS OPPORTUNITY, REVENUE, GOODWILL OR DATA, EVEN IF IT HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGE.
7.5.4. Timely Claims. Excluding claims related to Taxes, and to the extent permitted by law, no party shall bring any claim based on Software or Services provided under this Partner Program Agreement more than eighteen (18) months after the cause of action accrues.
7.6.1. Termination. Any party may terminate this Agreement (a) immediately by written notice in the event that (i) the other party commits a non-remediable material breach of this Partner Program Agreement, (ii) the other party fails to cure any remediable breach of this Partner Program Agreement within thirty (30) days of being notified in writing of such breach, or (b) upon thirty (30) days’ notice for any reason, regardless of breach.
7.6.2. Effect of Termination. Section 6, Section 7.2, Section 7.3, Section7.4, Section 7.5, Section 7.6, Section 8.2, Section 8.3, Section 8.4, and Section 8.5 of these General Terms and Commercial Terms shall survive the termination of this Partner Program Agreement, and Section 7.1 shall survive the termination of this Partner Program Agreement solely to the extent necessary for the fulfillment of any outstanding orders or for any payments of fees that are accrued. Upon termination of this Partner Program Agreement, each party shall promptly (a) return any property of the other party and (b) return or destroy any Confidential Information received from the other party and provide a certificate of destruction to the other party. For clarity, and without limiting any party’s obligations, except for any product activation codes required by Partner to fulfill any outstanding contractual commitments or Orders as of the effective date of termination, Partner shall return or destroy and provide a certificate of destruction to Boring Lab for any Software, activation devices and related materials that have not been validly purchased. Any termination of a Partner Program Agreement shall not affect or terminate the rights of end users to use Boring Lab Software or Services provided that such use is in accordance with the terms and conditions of the corresponding License Agreement, Services descriptions, and Terms of Service (as applicable).
7.6.3. Limitation of Liability upon Termination. Neither party will incur any liability for exercising any of its rights to terminate this Partner Program Agreement in accordance with its terms. OTHER THAN AS EXPRESSLY PROVIDED IN THIS PARTNER PROGRAM AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATION RELATED TO A TERMINATION OR EXPIRATION OF ANY PARTNER PROGRAM AGREEMENT IN ACCORDANCE WITH THE TERMS OF SUCH PARTNER PROGRAM AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THIS SECTION 7.6.3 HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS PARTNER PROGRAM AGREEMENT AND THAT NEITHER PARTY WOULD NOT HAVE ENTERED INTO THIS PARTNER PROGRAM AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.
8.1. Program Terms.
8.1.1. Program Participation. Partner’s participation in the Program is contingent upon Partner’s compliance with the terms of the Partner Program Agreement, including the terms of the applicable Guide(s). Boring Lab may add to or modify any Guide at its sole discretion on a non-discriminatory basis, and such additional or modified rights and obligations shall come into effect following sixty (60) days’ notice of such changes. If Partner objects to any terms and conditions in the Guide, or associated content, Partner’s sole remedy shall be to resign from the applicable Program and terminate the related Partner Program Agreement.
8.1.2. Program Logo. To the extent permitted by the terms of the related Guide, Boring Lab grants Partner the non-exclusive right to use Boring Lab’s special program logo(s) related to such Program; provided that such use conforms to Boring Lab’s then-current trademark usage guidelines.
8.2. Compliance with Code of Conduct and Laws.
8.2.1. Code of Conduct & Applicable Laws. Partner shall at all times comply with all laws applicable to any activity contemplated by this Partner Program Agreement, and shall flow through such obligations to all persons, if any, that further distribute Software, Licenses and / or Services.
8.2.2. Export Control. The Software, Licenses and Services are of United States origin and are provided subject to the U.S. Export Administration Regulations and the regulations of other jurisdictions (e.g., the European Union). Diversion contrary to applicable law is prohibited. Without limiting the foregoing, Partner warrants through the term of these General Terms and Commercial Terms that (a) it is not, and is not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States or other applicable government body has prohibited export transactions (e.g., Iran, North Korea, etc.), (b) it is not, and is not acting on behalf of, any person or entity listed on a relevant list of persons to whom export is prohibited (e.g., the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department Denied Persons List or Entity List, etc.), and (c) it will not use any Software for, and will not permit any Software to be used for, any purpose prohibited by applicable law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
8.2.3. Anti-Corruption Regulations. Partner shall comply with all applicable laws and regulations that apply from time to time to the promotion and sale of Boring Lab Software, Licenses, and Services, including, but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”) and all U.S. and international anti-bribery laws. Neither Partner nor any of its agents or employees shall offer, pay, promise, or authorize any direct or indirect payments of anything of value for the purpose of obtaining business to any official (including any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, or any official or employee of any public international organization, such as the United Nations or World Bank, or any person acting in any official capacity for or on behalf of such government, public enterprise or state-owned business), any political party or party official, any political candidate or any person or entity whom Partner knows or has reason to believe will give part of the payments to any of the previously mentioned categories of people. Should Partner have any further questions about the FCPA, Partner may visit the U.S. Department of Justice’s website at http://www.usdoj.gov/criminal/fraud/fcpa/.
8.3. Data Protection.
8.3.1. Compliance with Data Privacy Laws. Each party agrees to comply with its respective obligations under any relevant data protection legislation that may apply to the relationship contemplated under this Partner Program Agreement including, without limitation, any obligation for either Party to provide notifications regarding data, and any obligations for the protection of individuals with regard to the processing of Personal Information.
8.4. Records. During the term of each Partner Program Agreement and for the two (2) year period following termination of such Partner Program Agreement, Partner shall maintain complete, clear, and accurate records related to Boring Lab’s products and services obtained under such agreement, including, where applicable, records of the number of products and services distributed, used or consumed by Partner, by product type, customer name and location, any reports or records submitted to Partner, to Boring Lab, or to an authorized partner of Boring Lab. Not more than once per calendar year, Partner shall permit Boring Lab or its designee to audit such records to verify compliance with the Partner Program Agreement, and Partner shall provide its full cooperation in such audit. Boring Lab shall provide Partner with reasonable notice of its intent to conduct an audit and such audit shall occur during normal business hours and be conducted in a manner that uses commercially-reasonable efforts to minimize disruption to Partner’s business. Neither Boring Lab, nor its third-party auditor, shall have physical access to Partner’s computing devices in connection with any such audit without Partner’s prior written consent. Partner shall promptly pay to Boring Lab any underpayments and return unearned rebates revealed by such audit, including interest for late payments calculated from the date that payments should have been made. Partner shall also promptly reimburse Boring Lab for the cost of such audit incurred by Boring Lab if: (a) the audit reveals an underpayment by Partner of more than five percent (5%) of the amounts payable to Boring Lab for the period reviewed or (b) the audit reveals that Partner has materially failed to comply with this Section 8.4.
8.5.1. Governing Law. Each Partner Program Agreement with Boring Lab, Inc. will be governed by the laws of the State of California, USA without regard to its principles of conflicts of law, any dispute arising out of such Partner Program Agreement shall be resolved in the State or Federal courts located in Los Angeles County, California, and each party consents to the jurisdiction and exclusive venue of such forum; provided that any party may seek injunctive relief in any jurisdiction. The 1980 U.N. Convention on Contracts for the International Sale of Goods shall not apply. If any legal action is brought by a party to enforce a Partner Program Agreement, the prevailing party will be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.
8.5.2. Assignment. Partner may not assign, subcontract, or otherwise transfer, directly or by operation of law, any of its rights or obligations under a Partner Program Agreement without the prior written consent of Boring Lab, such consent not to be unreasonably withheld, delayed, or conditioned. For purposes of this Section 8.5.2, each of the following transactions shall constitute an assignment for which the prior written consent of Boring Lab is required: (a) the acquisition by any person, entity, or group directly or indirectly, of beneficial ownership of more than 50% of the total voting power of the capital stock or other securities of the Partner or (b) any merger, consolidation, or similar transaction by the Partner with or into any person or entity (even if the Partner is the surviving entity) other than in a transaction in which the holders of a majority of the outstanding voting stock prior to such transaction continue to hold majority of the outstanding voting stock of the surviving or continuing entity following such transaction. Boring Lab may assign the Partner Program Agreement, without consent, to any successor to all or substantially all its business or assets to which the Partner Program Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempt to transfer, assign, or delegate rights or obligations under a Partner Program Agreement in a prohibited manner shall be treated as a non-remedial material breach of such agreement. Subject to the foregoing, this Partner Program Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
8.5.3. Language. This Partner Program Agreement is in the English language only, which language shall be controlling in all respects, and all versions in any other language shall not be binding on the parties. All communications and notices made or given pursuant to a Partner Program Agreement shall be in the English language.
8.5.4. Notices. Notices given under a Partner Program Agreement must be sent by facsimile or email to the current business manager for the party, and confirmed promptly in writing by delivery in person, or sent by reputable air courier and / or express mail to the address set forth in the opening paragraph of this Partner Program Agreement to the attention of the General Counsel. Notwithstanding the foregoing, Boring Lab may provide notice regarding revisions to any Guide, the Partner Code of Conduct, or any product release, product list, or price list by publishing notice via Partner Central.
8.5.5. Title; Deriving Source Code; Additional License Rights. Title to the Software object code and to all Intellectual Property Rights in and to all Software shall remain with Boring Lab, LLC. Title to the physical contents of the Software packaging, including media, if any, shall pass to Partner upon delivery by Boring Lab. Except to the extent expressly permitted by applicable law, and to the extent Boring Lab is not permitted by that applicable law to exclude or limit the following rights, Partner shall not reverse engineer, de-compile, disassemble, or otherwise derive source code from Software or Services, nor will Partner use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of Software or Services or encourage others to do so. Open Source Software components provided with Software shall be distributed under the terms of the applicable Open Source Software license agreements or copyright notices accompanying the Software. The Open Source Software license agreement may contain additional rights benefiting Partner, and shall take precedence over this Partner Program Agreement to the extent that such agreement imposes greater restrictions on Partner than the applicable Open Source Software license agreement.
8.5.6. Commercial Software Notice. If Licenses are being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government’s rights in the License, related Software and accompanying documentation are only as set out in this Partner Program Agreement; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DoD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DoD acquisitions).
8.5.7. Relationship of the Parties. The relationship of the parties established by this Partner Program Agreement is that of independent contractors, and nothing therein shall constitute any party the agent of any other party, or otherwise grant any party the authority to bind any other party to any obligation, or constitute the parties as partners or joint venturers, and no party shall hold itself out as being an agent, having such authority, or being a partner or joint venturer of any other party. This Partner Program Agreement does not create any rights for any person who is not a party to it, including under the Contracts (Rights of Third Parties) Act 1999.
8.5.8. Severability. If any portion of this Partner Program Agreement is held to be unenforceable, the remainder of such agreement will continue to be valid and enforceable to the fullest extent permitted by law. Any such provision shall be deemed to be modified to reflect the original intent of the parties to the greatest extent permitted by applicable law.
8.5.9. Waiver. Any waiver of the provisions of this Partner Program Agreement or of a party’s rights or remedies under such agreement must be in writing to be effective. Failure or delay by a party to enforce the provisions of this Partner Program Agreement or its rights or remedies, will not be a waiver of such party’s rights under such agreement and will not prejudice such party’s right to take subsequent action.
8.5.10. Force Majeure. No party will incur any liability to any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Partner Program Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, natural disasters, strikes, lockouts, riots, acts of war, earthquake, fire, and explosions. Nothing in this clause shall relieve Partner of its obligations to make timely payments hereunder.
8.5.11. Counterparts. This Partner Program Agreements (a) may be executed in counterparts, each of which so executed will be deemed to be an original, and such counterparts together will constitute one and the same agreement and (b) may be executed and delivered by scanned/emailed copy or facsimile, with such execution and delivery having the same force, effect and evidentiary value as delivery of an original document with original signatures