Cockroach Labs Reseller Agreement

This Reseller Agreement (together with any attachments hereto and other terms and conditions incorporated herein by reference, the “Agreement”), is entered into by and between the Cockroach Labs entity (“Cockroach Labs”) and the person or entity (“Partner”), each as set forth in an applicable Cockroach Labs ordering document referencing this Agreement and executed by Cockroach Labs and Partner for resale by Partner to the end customer specified in such ordering document for such end customer’s internal business use (such end customer, the “Customer,” and such ordering document, the “Order”). Partner and Cockroach Labs may be referred to herein together as the “Parties” or individually as a “Party.” For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Partner and Cockroach Labs agree as follows:

1. AGREEMENT. This Agreement establishes the terms under which the Parties will cooperate in a strategic business relationship with respect to CockroachDB software (“Software”), Cockroach Labs’ provision of technical support (“Support”), or Cockroach Lab’s provision of technical/professional services (“Technical Services,” and together with Support, the “Services,” and together with Software, the “Cockroach Labs Offerings”) and prospective customers of the Cockroach Labs Offerings (“Prospects”). For clarity, “Services” excludes Cockroach Labs’s CockroachDB database software as a service offering(s).
2. RESALE ENGAGEMENT.
   
   1. Reseller Appointment. Subject to Partner’s ongoing compliance with the terms and conditions of the Agreement, Cockroach Labs hereby grants to Partner the non-exclusive right to market the Cockroach Labs Offerings set forth in the Order to Customer. Partner agrees that, prior to executing the Order, Partner will bind Customer to the applicable Cockroach Labs terms and conditions, the current version of which is available at https://www.cockroachlabs.com/cockroachdb-master-agreement/ (as amended from time to time) or such other Customer agreement specified by Cockroach Labs in the Order (the “Customer Agreement”); provided, however, that any fee and payment terms within the Customer Agreement shall not apply, and Customer’s fee and payment terms will be solely as agreed between Partner and Customer. For clarity, other than the fee and payment terms, all terms regarding the delivery of the Cockroach Labs Offerings to Customer will be governed by the Customer Agreement.
   2. Order. The Order shall include the following information: Partner contact information (including name, address, and email) and billing details; Customer contact information (including name, address, and email); the Cockroach Labs Offerings and applicable quantities (in the case of Software, measured in vCPUs) being ordered; applicable fees to be paid by Partner for the Cockroach Labs Offerings; and subscription term start and end dates. If the subscription term start and end dates are not specified on the Order, the Parties agree that the subscription term for the Software shall commence on the date the Order is executed by both Parties and last for a period of one (1) year. Any additional terms or changes to the terms of this Agreement within the Order will apply only to Partner’s right to market the Cockroach Labs Offerings to Customer within the scope of, and for the term of, the Order.
   3. Support and Training. Except as expressly set forth in the Order, Cockroach Labs shall be solely responsible for all front-line Customer support for the Software in accordance with the support plan purchased by Customer as further described in the corresponding Support Policy attached to the Customer Agreement, available at https://www.cockroachlabs.com/terms-and-conditions/cockroachdb-support-policy/ (as amended from time to time), or such other support policy specified by Cockroach Labs in the Order. Partner will not provide direct support to Customer for the Software without Cockroach Labs’ express prior written consent. Cockroach Labs may provide training regarding the Software for Partner personnel in technical, support, and sales areas, subject to mutually agreed upon terms regarding times and fees.
3. PAYMENT; TAXES; AUDIT.
   
   1. Customer Pricing. Partner is free to determine the prices that Partner will charge Customer for the Cockroach Labs Offerings. Cockroach Labs’ current price list may show suggested Customer prices, but such prices are suggestions only.
   2. Payment. Cockroach Labs will bill Partner the amounts due under this Agreement, including the fees set forth in the Order (such amounts, the “Fees”) in accordance with the payment terms set forth in the Order and Partner will pay such Fees within thirty (30) days from the date of Cockroach Labs’ invoice, regardless of whether or not Customer has made timely payment to Partner. Fees are due in advance upon the commencement of the Order unless expressly specified otherwise in the Order. Payment will be made without any right of set-off or deduction. Fees will be accrued and paid in U.S. dollars and are nonrefundable. Partner will promptly provide Cockroach Labs with information and tax forms it reasonably requires to complete the payment review process. Partner is responsible for providing complete and accurate billing and contact information to Cockroach Labs and notifying Cockroach Labs promptly of any changes to such information.
   3. Late Payment. Amounts not paid when due will accrue interest at the rate of one and one-half percent (1.5%) per month or at the highest amount permitted by applicable law (if lower) and any costs of collection incurred by Cockroach Labs. For payments that are late, without limiting Cockroach Labs’ other rights and remedies, Cockroach Labs may, at its sole discretion, inform the applicable Customer of such non-payment and require such Customer to, within fifteen (15) days thereof, cease using the applicable Cockroach Labs Offerings until Partner has made the applicable payment in full.
   4. Taxes. Except and solely to the extent as otherwise indicated by Cockroach Labs, Fees are exclusive of applicable local, state, federal and international sales, value added, withholding and other taxes and duties of any kind. Partner shall be responsible for payment of such taxes and duties of any kind, whether foreign or domestic, other than taxes based on Cockroach Labs’ net income. Without limitation, Partner will be responsible for all applicable sales taxes unless it first claims a sales tax exemption by providing Cockroach Labs with an exemption certificate acceptable to the applicable authorities. Partner shall indemnify Cockroach Labs for any liabilities related to the non-payment or underpayment of applicable taxes, duties, assessments, fees, or other charges for which Partner is responsible to pay as set forth under this Section 3.
   5. Audit. Partner must accurately track its resale of Software to Customer to ensure it stays within the prescribed limits during the term of the Order and maintain complete and accurate records of such monitoring for a trailing period of no less than three (3) years. Upon request, Partner will provide Cockroach Labs copies of such records and a reasonably detailed explanation of the methodologies used for tracking its resale of Software. If Partner fails to maintain or provide such records, in addition to any other rights and remedies hereunder, Cockroach Labs may audit Partner’s applicable systems and records to confirm Partner’s actual resale of Software. The audit will be conducted with advance notice and during normal business hours in a manner designed to not unreasonably interfere with Partner’s normal business operations. Each Party will bear its own costs associated with the audit; provided that Partner will reimburse Cockroach Labs’ audit-related costs in the event the audit reveals underpayment by Partner. If Partner’s records or an audit uncovers underpayment by Partner, then Partner will immediately pay for such additional resale at Cockroach Labs’ then-current rates plus interest accruing at the rate of one and one-half percent (1.5%) per month or at the highest amount permitted by applicable law (if lower) from the date such additional resale would have otherwise been owed. Any repeated, willful, or intentional failure to proactively report and pay Cockroach Labs for additional resale is a material breach of this Agreement.
4. TERM AND TERMINATION.
   
   1. Term. This Agreement will be effective from the date it is entered into and will continue for the duration of the Order (the “Term”).
   2. Termination. Either Party may terminate this Agreement if: (a) the other Party materially breaches this Agreement and does not remedy such breach within thirty (30) days after receipt of notice of such breach or (b) the other Party has made an assignment for the benefit of creditors or similar disposition of assets or has become the subject of any bankruptcy, liquidation, reorganization, dissolution, or similar proceeding. Cockroach Labs may terminate this Agreement, for any reason or no reason, upon thirty (30) days’ notice to Partner.
   3. Effect of Termination. Upon termination of this Agreement: (a) all outstanding amounts owed by Partner under this Agreement will become immediately due and payable; (b) all rights granted to Partner hereunder shall immediately terminate, and Partner shall immediately cease all marketing and sale of the Cockroach Labs Offerings; and (c) upon request, Partner shall return or confirm in writing that it has destroyed all Cockroach Labs Confidential Information and any documentation containing Cockroach Labs Confidential Information. The Order and the Customer Agreement will survive any termination or expiration of this Agreement until the Order or Customer Agreement is expired or terminated in accordance with its terms or pursuant to Section 4.2 (Termination), as applicable. Upon termination or expiration of this Agreement, Cockroach Labs may, at its sole discretion and option, require Partner to assist in transitioning any services that Partner provides to Customer to Cockroach Labs or a third party designated by Cockroach Labs. Notwithstanding termination of this Agreement, any provisions of this Agreement that by their nature are intended to survive, will survive termination.
5. PROPRIETARY RIGHTS.
   
   1. Cockroach Labs Ownership. Except for the rights, permissions, and licenses explicitly granted pursuant to this Agreement, all rights, title, and interests in and to the intellectual property and proprietary rights of whatever nature in the Cockroach Labs Offerings, including their interfaces, extensions, Documentation, and derivative works are and will remain the exclusive property of Cockroach Labs and/or its suppliers. Cockroach Labs and its suppliers reserve all rights not expressly granted in this Agreement. “Documentation” means, with respect to a Cockroach Labs Offering, the official technical documentation made available by Cockroach Labs regarding the proper use and available functionality of such product or service, currently made available at https://www.cockroachlabs.com/docs.
   2. Partner Ownership. Except for the rights, permissions, and licenses explicitly granted pursuant to this Agreement, all rights, title, and interests in and to the intellectual property and proprietary rights of whatever nature in Partner’s own product or service offerings to Prospects or Customer, including their interfaces, extensions, documentation, and derivative works are and will remain the exclusive property of Partner and/or its suppliers. Partner and its suppliers reserve all rights not expressly granted in this Agreement.
   3. Feedback. Partner is not required to give Cockroach Labs any requests, suggestions, enhancement ideas, specifications, or other feedback regarding the Cockroach Labs Offerings or any other Cockroach Labs’ software, products, or services (“Feedback”). If Partner does provide Feedback, Partner grants Cockroach Labs and its Affiliates a worldwide, perpetual, irrevocable, fully paid and royalty-free right to fully exploit, use, and incorporate into Cockroach Labs’ products, services or software any such Feedback. “Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is owned or controlled by, or is under common control with, such party, where “ownership” means the beneficial ownership of more than fifty percent (50%) of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
   4. Publicity. Cockroach Labs shall have the right to list Partner as a “partner” within its respective web sites and marketing materials.
6. CONFIDENTIALITY.
   
   1. Definition. The term “Confidential Information” means, to the extent previously or subsequently disclosed by or for each Party or its Affiliates (“Discloser”) to the other Party or its Affiliates (“Recipient”), all financial, business, legal, and technical information of Discloser or any of its Affiliates, suppliers, customers, and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, inventions, processes, materials, algorithms, software, specifications, data, strategies, plans, prospects, and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential, or that by its nature would be understood by a reasonable person to be confidential. Confidential Information does not include any information that: (a) was rightfully known to Recipient without restriction before receipt from Discloser, (b) is rightfully disclosed to Recipient without restriction by a third party, (c) is or becomes generally known to the public without violation of this Agreement, or (d) is independently developed by Recipient or its employees without access to or reliance on such information. Discloser represents and warrants to Recipient that it is authorized to disclose any and all Confidential Information made available to Recipient under this Agreement.
   2. Restrictions. As to the Discloser’s Confidential Information, Recipient agrees: (a) to use the Confidential Information only for the purposes set forth in this Agreement, and not for any other purpose, (b) to maintain the Confidential Information as confidential, and exercise reasonable precautions to prevent any unauthorized access, use, or disclosure including, but not necessarily limited to, such precautions it takes to protect its own confidential information, (c) not to disclose the Confidential Information to any third party other than Recipient’s own, and its Affiliates’, employees and agents (“Representatives”) who have a need to know for the purposes of this Agreement and who are bound by obligations of confidentiality and use with respect to the Confidential Information no less restrictive than the terms of this Agreement, (d) not to decompile, disassemble, or otherwise reverse engineer any Confidential Information, or use any similar means to discover its underlying composition, structure, source code, or trade secrets, and (f) not to use any Confidential Information in violation of applicable laws or regulations. The terms and conditions of any transaction or possible transaction between the Parties, the fact that disclosures or discussions are taking place, and the status and results thereof must be held in confidence by both Parties and must be treated by each Recipient as the Discloser’s Confidential Information for purposes of any disclosure to any third party. The Recipient will be responsible for any breach of its confidentiality obligations by its respective Representatives.
   3. Compelled Disclosures. These restrictions will not prevent the Recipient from complying with any law, regulation, court order or other legal requirement that compels disclosure of any Confidential Information. Recipient will, to the extent legally permitted, promptly notify Discloser upon learning of any such legal requirement and reasonably cooperate with Discloser, at Discloser’s expense, to protect the confidentiality of the Confidential Information before any tribunal or governmental agency.
7. REPRESENTATIONS AND WARRANTIES.
   
   1. Mutual Representations and Warranties. Each Party represents and warrants to the other that: (a) it will comply with the laws, rules, and regulations; in each case, as applicable, of the United States and of any other applicable legal authority in its performance hereunder; and (b) it has the right to enter into this Agreement and to fully perform its obligations hereunder.
   2. Partner Representations, Warranties, and Covenants. Partner hereby represents, warrants, and covenants:
      
      1. To provide Cockroach Labs with reasonable advance written notice if Customer will not renew its subscriptions to the Cockroach Labs Offerings (such notice to be provided no later than ninety (90) days before the expiration date of the Order);
      2. To comply with all applicable laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act (regarding, among other things, payments to government officials) and the UK Bribery Act, and equivalent laws in the European Union, India, and any other applicable jurisdictions; applicable economic sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control; export regulations administered by the U.S. Commerce Department’s Bureau of Industry and Security; and EU sanctions directives. Partner represents and warrants that none of: (a) Partner, Partner’s employees, or any party that owns or controls Partner; (b) Customer, Customer’s employees, or any party that owns or controls Customer; or (c) any other third party that Partner enables to access the Cockroach Labs Offerings, is subject to sanctions or designated on any list of prohibited or restricted parties, including those maintained by the UN Security Council, the U.S. Government (including Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders Lists), the European Union, or other applicable government authority. Partner shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to sale of the Cockroach Labs Offerings to a Customer outside the U.S., in compliance with all applicable laws and regulations prior to delivery by Cockroach Labs;
      3. To not, directly or indirectly: (a) offer, give, or authorize any improper benefit or thing of value to any person, including any government official or employee of a state-owned enterprise, to obtain or retain business or secure an improper advantage or (b) make any payments, donations, or gifts in connection with this Agreement that would violate applicable law. Upon request, Partner will confirm its compliance in writing and cooperate with Cockroach Labs in good faith to address any compliance concerns;
      4. To conduct its business in a manner that reflects favorably on the Cockroach Labs Offerings; and
      5. To make no representations or warranties on behalf of Cockroach Labs and to indemnify, defend, and hold harmless Cockroach Labs, its directors, officers, agents, and Affiliates against any liability, loss, costs, or damages arising out of or related to claims that Partner assumed or created any obligation, expressed or implied, on behalf of Cockroach Labs, in contract or otherwise, other than those obligations expressly undertaken by Cockroach Labs pursuant to this Agreement.
   3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, CORRECTNESS, RELIABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.
8. LIMITATION OF LIABILITY.
   
   1. Exclusions. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING ANY LOST PROFIT, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. Aggregate Liability. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, OTHER THAN WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INTENTIONAL BREACH, THE AGGREGATE LIABILITY OF EACH PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID TO COCKROACH LABS BY PARTNER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO WHEN THE CAUSE OF ACTION FIRST AROSE.
9. MISCELLANEOUS.
   
   1. Governing Law; Jurisdiction; Venue. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of New York, without applying conflicts of law rules and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act as may be enacted in any applicable jurisdiction. THE JURISDICTION AND VENUE FOR ALL DISPUTES HEREUNDER WILL BE THE STATE AND FEDERAL COURTS IN THE COUNTY AND STATE OF NEW YORK, AND THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
   2. Severability. If any provision of the Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
   3. Notices. All notices under this Agreement must be in English and in writing. Each Party may notify the other Party by email or by certified or registered mail, return receipt requested, sent to such Party’s notice email or address given herein or at such other address or email designated by such Party.
   4. Assignment. Neither Party may assign this Agreement or its rights or obligations under this Agreement to any person or party, whether by operation of law or otherwise, without the other Party’s prior written consent, except that this Agreement may be assigned without consent to a person or entity who acquires all or substantially all of the assigning party’s assets, stock, or business, or by Cockroach Labs to its Affiliate.
   5. No Waiver. Failure by either Party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy.
   6. Relationship of Parties. No agency, franchise, partnership, joint venture, sales representation, legal representation, or employment relationship is created as a result of this Agreement and neither Party shall have any authority of any kind to bind the other. Neither Party will represent itself as the other Party’s agent. The relationship of the Parties hereunder is solely that of independent contractors. PARTNER HAS NO AUTHORITY TO ASSUME OR CREATE ANY OBLIGATION ON COCKROACH LABS’ BEHALF, EXPRESS OR IMPLIED, WITH RESPECT TO COCKROACH LABS’ PRODUCTS, SOFTWARE, SERVICES, OR OTHERWISE. Each Party agrees not to make any representation, guarantee, or warranty on the other Party’s behalf. Nothing contained in this Agreement is to be construed as a limitation or restriction upon either Party in the sale or other disposition of any of its respective product or service offerings to any person, firm, or corporation.
   7. Force Majeure. Except for performance of a payment obligation, neither Party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other Party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, epidemics or pandemics, or any causes beyond the reasonable control of that Party.
   8. Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof, and any and all written or oral agreements heretofore existing between the Parties hereto are expressly canceled. Any terms and conditions of any instrument issued by Partner (including any purchase order, confirmation, or other similar document) in connection with this Agreement will be of no force or effect unless signed by Cockroach Labs. Any modifications or waivers of this Agreement must be in writing and signed by both Parties hereto; provided that Cockroach Labs may amend this Agreement (including any applicable web pages incorporated herein by reference) by posting an updated version of this Agreement and informing Partner of the changes at least thirty (30) days prior to the updates taking effect, except such changes that are required to comply with applicable law, rule, or regulation or where prior notice is not reasonably practicable.