Last Revised December 1, 2013

This PartnerNet Program Agreement ("Agreement") is made between the entity applying to participate in the PartnerNet Program ("Partner") and Licensor. For software licenses, subscriptions, or services that are purchased from a Novell, NetIQ, or SUSE entity, or for related activities covered by this Agreement, Licensor, means, depending on Partner's country of residence, the respective Novell, NetIQ, or SUSE entity, as identified below or in the PartnerNet Program Guide.

Signing Entity


Novell and SUSE
Country Entity (last revised February 20, 2014)
Americas and Asia Pacific, except as detailed otherwise below Novell, Inc.
Europe, the Middle-East or Africa, except as detailed otherwise below Novell Ireland Software Limited
Denmark Attachmate Group Denmark A/S
France Attachmate Group France SARL
Germany Attachmate Group Germany GmbH
India Novell Software Development (India) Private Limited
Italy Attachmate Group Italy Srl
Japan Novell Japan, Ltd.
Netherlands Attachmate Group Netherlands BV
Spain Attachmate Group Spain S.L.
Sweden Attachmate Group Sweden AB
Switzerland Attachmate Group Schweiz AG
United Kingdom Novell U.K. Limited
NetIQ
Country Entity (last revised January 29, 2013)
Americas and Asia Pacific, except as detailed otherwise below. NetIQ Corporation
Japan NetIQ K.K.
Europe, the Middle-East or Africa NetIQ Europe Limited

 

1.  Purpose. To promote End User customer satisfaction in the purchase and use of Licensor software products ("Products"), Licensor has developed and maintains the PartnerNet Program for entities that sell to or consult with End Users. This Agreement and the applicable Licensor PartnerNet Program Guide ("Program Guide") set forth the terms and conditions under which Partner is authorized to participate in the PartnerNet Program and resell Licensor's Product license and services. In the event of a conflict between this Agreement and the Program Guide or any other PartnerNet Program literature, this Agreement will prevail.
2.  Authorization. Licensor grants Partner authorization as a Silver Partner, Gold Partner, Platinum Partner, or Alliance Partner, as indicated in the authorization notice received from Licensor. The requirements to qualify for a program level are defined in the PartnerNet Program Guide. Partner's continued authorization is based on its compliance with this Agreement and the requirements of the Program Guide applicable to its level of participation. The authorization is non-exclusive, does not extend beyond Agreement termination, and is personal to Partner's legal entity or branch office that applied for the PartnerNet Program and meets the Program requirements. If Partner has business locations in different countries that wish to participate in the PartnerNet Program, each location should separately apply to PartnerNet Program and separately enter into this Agreement.
    2.1.  Term. This Agreement, and the authorization granted hereunder, are effective on the date the PartnerNet Program Application is accepted by Licensor, and remain in effect for a period of one year from that date. This Agreement may be renewed upon the mutual agreement of the parties, which may be demonstrated through Licensor's online renewal process.
3.  Program Changes. Partner agrees to review the information available on the PartnerNet website on a regular basis. Licensor may, in its discretion and without compensation to Partner, change the Program Guide, as well as any requirements, benefits or other features of the PartnerNet Program. Any such changes become effective immediately upon written notice, which may take the form of publication on the PartnerNet website. If Partner is not satisfied with any such change, Partner may terminate this Agreement and Partner's authorization under Section 13.2, Termination for Convenience. Licensor may modify the terms of this Agreement by providing Partner written notice and at least 30 days to accept the updated Agreement. If Partner chooses not to accept the revised terms within this time either party may terminate this Agreement for convenience under Section 13.
4.  Eligible Products and Customers. This Agreement authorizes Partner to acquire eligible Products from a Licensor-authorized distributor or OEM which has the contractual right to sell licenses or subscriptions to the Products in the applicable territory. All payment, credit, shipping and other direct purchase terms shall be between Partner and the authorized distributor or OEM from which Partner acquires the Products. Partner is authorized to market and resell licenses to the Products only to End User customers. "End User" means a person or entity acquiring the Products for its own internal use. End User does not include an entity that sells or resells licenses to, or rents or leases the Products to other parties in the regular course of business. Nothing in this Agreement shall oblige Licensor to sell any software products directly to Partner.
    4.1.  Training Partner. If Partner is accepted as a Training Partner, the term "Products" in this Agreement refers to Licensor-authorized educational training and course products.
    4.2.  Independent Hardware Vendors (IHV) and Independent Software Vendors (ISV). If Partner is accepted at the Alliance, Gold, or Platinum level, Partner may (a) enter a separate agreement directly with Licensor that provides for the pricing, bundling and distribution of products (e.g., OEM agreement), which shall prevail over this Agreement in the event of conflicting terms, or (b) acquire products listed on the then-current OEM Price List through Licensor authorized distributors, subject to the terms of Section 11 below. This Agreement is intended only to enable IHV/ISV Partners to participate in certain technical support, development, and co-marketing benefits/obligations as set forth in the Program Guide. Acceptance of this Agreement by Partner shall not obligate nor shall it in any way represent Partner's intent to enter into a separate agreement for the purpose of distributing or reselling Licensor products. All separate arrangements that may be in effect between Partner and any Licensor entity will remain in force according to their own terms notwithstanding this Agreement.
5.  End User Satisfaction The Products that Partner markets are technically complex and require high-quality, individualized pre-sale and post-sale support. This support is necessary to achieve and maintain high End User satisfaction. Partner agrees that high End User satisfaction is a condition of its continued authorization by Licensor. To ensure high End User satisfaction, Partner agrees not to market the Products directly or indirectly through mail order. In addition, Partner agrees to:
   
  • Ensure that each Product marketed to the End User is appropriate to the End User's requirements;
  • Report promptly to Licensor all suspected and actual problems with any Product;
  • Maintain an End User report for each Product sold/licensed (each End User report to include the name and address of the End User, date of the sale, the Product sold/licensed, and the serial number, if applicable);
  • Retain all End User reports for two years after the date of sale, and assist Licensor in tracing a Product to an End User to distribute critical product information, locate a product for safety reasons, or to discover unauthorized marketing or infringing acts;
  • Conduct business in a manner which reflects favorably at all times on Licensor's products, goodwill and reputation;
  • Avoid deceptive, misleading or unethical practices which are or might be detrimental to Licensor or its products;
  • Refrain from making any representations, warranties, or guarantees to customers or other third parties with respect to the specifications, features or capabilities of a Product that are inconsistent with Product literature distributed by Licensor or with a Licensor agreement accompanying the Product. Partner agrees to indemnify and hold Licensor harmless from any loss or damage due to a claim by a third party that results from Partner's breach of this obligation; and
  • Refrain from disclosing passwords and access codes for the PartnerNet Program to any unauthorized third party, and notify Licensor promptly of any such unauthorized use of which Partner may become aware.
6.  Trademark Usage. Partner is authorized to use the Licensor trademarks applicable to the Products marketed under this Agreement and the other Licensor Partner marks, as applicable, but only in accordance with the then current Licensor Trademark Usage Guide, which may be subject to change from time to time, and only while this Agreement is in effect. Partner is not authorized to do business under any Licensor trade names. Upon Agreement termination, Partner agrees to cease all display, advertising and use of any and all Licensor trademarks. Partner agrees not to alter, erase or overprint any notice provided by Licensor and not to attach any additional trademarks without Licensor's prior written consent or affix any Licensor trademarks to any non-Licensor product. Partner recognizes Licensor's ownership and title to the trade names and trademarks and the goodwill attaching to the trade names and trademarks. Partner agrees that any goodwill that may accrue because of Partner's use of Licensor trademarks will become Licensor property. Partner agrees not to contest Licensor's trademarks or trade names, or make application for registration of any Licensor trademarks or trade names without Licensor's prior written consent. Partner agrees not to use, employ or attempt to register any trademarks or trade names which, in Licensor's opinion, are confusingly similar to Licensor's trademarks or trade names. Partner agrees not to advertise using Licensor's trademarks or trade names in a way that could cause customers to mistakenly believe that they are contacting Licensor by contacting Partner, or that they are visiting Licensor's web site. Partner will not register or use any internet domain name which contains or is confusingly similar to Licensor's trademarks
7.  Internal Partner Use of Software. This section provides the terms under which Licensor makes available certain software products for Partner's internal use to assist Partner in familiarizing itself with Licensor software to improve its ability to promote and market such software to End Users. The software products made available under this section for internal use are those so identified in the Program Guide (“Partner Use Software”), and exclude, unless otherwise agreed by Licensor in writing, third-party products or products identified in writing by Licensor as not available under this section. The Partner Use Software products are made available “AS IS” with no warranty, Licensor may modify the Program Guide to remove a Product. Licensor is not obligated to provide any technical support to Partner for such use.
    7.1.  License. Subject to the Agreement's terms, Licensor grants Partner a terminable, non-exclusive, non-transferable and restricted license to copy and use Partner Use Software during the term of this Agreement only within Partner's company by its employees for its internal business. Such use is subject to the terms and conditions of the applicable End User License Agreement (“EULA”) provided with individual Partner Use Software. However, notwithstanding anything to the contrary in the EULA, Partner expressly agrees that its use of the Partner Use Software is subject to the following restrictions, and as to a specific product any further restrictions described in the Program Guide:
        7.1.1.  For NetIQ and Novell Products Only. Copying or use of a NetIQ or Novell Product is allowed in a development or production environment but is limited to the total number of licenses specified in the Program Guide, which in any case shall not exceed 250 users.
            7.1.1.1.  License Use Across Partner's Global Enterprise. If Partner's enterprise has an office located in a different country, the office may separately complete an application for membership to the PartnerNet Program. Each such office that is accepted by Licensor as a separate PartnerNet member may make use of the number of licenses specified for Partner Use Software in the Program Guide, provided that the total number of licenses copied or used by all Partner locations within Partner's global enterprise (including affiliates) may not exceed three times the number of licenses specified in the Program Guide. If Partner has multiple locations in different countries that have separate Partnership memberships, the different Partner locations may allocate among themselves the total number of authorized licenses, as long as the copying or use by all Partner locations within Partner's global enterprise (including affiliates) does not exceed the total number of authorized licenses.
                Example 1. If Partner has two offices or entities in different countries with separate PartnerNet agreements, between the two locations the Partner may make use of twice the number of licenses specified for Partner Use Software in the Program Guide; one of the locations may copy or use most or all of those licenses as long as the total copying or usage by the two entities does not exceed twice the number of licenses specified for Partner Use Software.
                Example 2. If Partner has three or more offices or entities in different countries with separate PartnerNet agreements, between the different locations the Partner may make use of three times the number of licenses specified for Partner Use Software in the Program Guide; a single location may copy or use most or all of those licenses as long as the total copying or usage by all such locations does not exceed three times the number of licenses specified for Partner Use Software.
        7.1.2.  For SUSE Products Only. Copying and use of a SUSE Product (including updates received through a subscription) is not limited to a specific number of copies but is restricted to only the portions of Partner's company that are dedicated to the development, support, marketing or resell, of products that are supported on SUSE Products. The purpose of this benefit is to allow employees in these portions of Partner's organization to become familiar with the SUSE Products. Partner must purchase subscriptions for any installation or other deployment of SUSE Products it wishes to use in other parts of its organization.
        7.1.3.  If the Partner Use Software is or contains a development tool, Partner shall not develop any product with the development tool or distribute any product based on any portion of the Partner Use Software. No other right to use or reproduce the Partner Use Product is granted; if the development tool is licensed under an open source license, the terms of that license apply.
        7.1.4.  Regional Restrictions. The Program Guide may identify country- or region-specific restrictions regarding the use of Partner Use Software.
        7.1.5.  Except as expressly authorized in this Agreement, Partner may not transfer, copy, modify, or disassemble or decompile the Partner Use Software, or any documentation shipped with Partner Use Software. Partner may not sublicense, resell, rent, lease, timeshare or otherwise distribute any of the Partner Use Software, or use them to provide hosting, outsourcing or other similar services to third parties.
    7.2.  Product Return. Upon Agreement termination, this license for Partner Use Software (or as to SUSE Products, the Product subscription) will terminate automatically. For non-SUSE Products, Partner must remove from its systems Partner Use Software obtained under this license and must return to Licensor any applicable software media within 15 days after termination. Licensor shall be entitled to consider Partner's failure to return Partner Use Software as an order to purchase a retail license for the Partner Use Software, and Licensor may invoice Partner for the retail price of the Partner Use Software used by Partner. Partner shall pay such invoices within 30 days. Late payments will be interest at the rate of the lesser of 1% per month or the maximum rate allowed by law. After Partner's payment in full, Partner's use of the Partner Use Software shall be governed solely by the EULA terms for use of the Product by a retail end-user.
8.  Intellectual Property Rights.
    8.1.  Ownership. Notwithstanding anything to the contrary in this Agreement, Licensor or its supplier(s) owns and retains title to and ownership of all intellectual property rights in the Products, including all software programs, documentation, media, and related materials and all modifications to and derivative works from software made by Partner or any third party. Licensor does not transfer any portion of such title and ownership, or any of the associated goodwill to Partner, and except as provided in Sections 6 and 7, this Agreement does not grant Partner any right or license.
    8.2.  Open Source. Nothing in this Agreement shall restrict, limit or otherwise affect any rights or obligations Partner may have, or conditions to which Partner may be subject, under any applicable open source licenses to any open source code contained in the Product.
    8.3.  Protection. Partner agrees to take all reasonable steps to protect the Products from unauthorized copying or use. The source code of Licensor proprietary software Agreement represents and embodies trade secrets of Licensor and/or its suppliers. The source code and embodied trade secrets are not licensed to Partner or any End User, and any modification, addition, or deletion is strictly prohibited. Partner agrees not to disassemble or decompile the Products to discover the trade secrets contained in the source code. This sub-section 8.2 does not apply to Product components distributed by Licensor under an open source license.
    8.4.  Infringement. Partner agrees to report any instances of suspected copyright and/or trademark infringement to Licensor and to give Licensor reasonable assistance, at Licensor's expense, in investigating and prosecuting those responsible for the infringing acts.
9.  Limited Warranty/Limitation of Liability. LICENSOR'S ENTIRE LIABILITY AND PARTNER'S EXCLUSIVE REMEDY FOR ANY CLAIMS CONCERNING THIS AGREEMENT AND PRODUCTS ACQUIRED PURSUANT TO THIS AGREEMENT ARE SET FORTH IN THIS SECTION.
    9.1.  Warranty to End Users. Licensor provides, to End Users only, warranties for Licensor products in the software license agreement accompanying each product. Licensor does not warrant non-Licensor products, or open source technology incorporated in, provided with, or comprising Licensor products. They are provided by Licensor on an “AS IS” basis.
    9.2.  Disclaimer of Warranties. LICENSOR MAKES NO WARRANTY EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9 AND IN THE SOFTWARE LICENSE AGREEMENT APPLICABLE TO THE PRODUCT IN QUESTION. LICENSOR DISCLAIMS AND EXCLUDES ANY AND ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT ANY OF ITS PRODUCTS SATISFY CUSTOMER REQUIREMENTS OR THAT THE PRODUCTS ARE WITHOUT DEFECT OR ERROR OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. NOTWITHSTANDING ANYTHING TO THE CONTRARY, INTERNAL USE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED.
    9.3.  Limitation of Liability.
        9.3.1.  TO THE EXTENT ALLOWED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER (WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY) FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, OR INTERRUPTION OF BUSINESS) SUSTAINED OR INCURRED IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
        9.3.2.  Aggregate Liability. For death or personal injury caused by the negligence of Licensor or its employees, Licensor's liability to Partner shall not be limited. Except in those two cases, Licensor's liability to Partner for direct damages related to or arising under this Agreement shall be limited to 1.25 times the total amount paid by Partner under this Agreement or US$5,000, whichever is higher.
    9.4.  WHERE IN ACCORDANCE WITH SECTION 14.1 THIS AGREEMENT IS GOVERNED BY THE LAWS OF A STATE OF AUSTRALIA, THEN THIS SECTION 9.4 APPLIES.

Competition and Consumer Act. WHERE ANY LEGISLATION, SUCH AS THE COMPETITION AND CONSUMER ACT, IMPLIES INTO THIS AGREEMENT ANY CONDITION OR WARRANTY AND THAT LEGISLATION AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING THE APPLICATION OF THE CONDITION OR WARRANTY, THE LIABILITY OF LICENSOR FOR ANY BREACH OF THE CONDITION OR WARRANTY IS LIMITED AT THE OPTION OF LICENSOR TO ANY ONE OR MORE OF THE FOLLOWING: A) IF THE BREACH RELATES TO GOODS, REPLACING THE GOODS OR THE PAYMENT OF THE COST OF ACQUIRING EQUIVALENT GOODS OR REPAIRING THE GOODS OR PAYMENT OF THE COST OF REPAIRING THE GOODS; B) IF THE BREACH RELATES TO SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN. NOTHING HEREIN IS INTENDED TO RESTRICT OR EXCLUDE ANY LIABILITY OF LICENSOR UNDER PART 3-5 OF THE AUSTRALIAN CONSUMER LAW (SCHEDULE 2 OF THE COMPETITION AND CONSUMER ACT 2010). SECTION 9.3 IS SUBJECT TO THE TERMS OF THIS SECTION 9.4.
    9.5. WHERE IN ACCORDANCE WITH SECTION 14.1 THIS AGREEMENT IS GOVERNED BY THE LAWS OF NEW ZEALAND, THEN THIS SECTION 9.5 APPLIES.

Fair Trading Act. WHERE ANY LEGISLATION, SUCH AS THE FAIR TRADING ACT, IMPLIES INTO THIS AGREEMENT ANY CONDITION OR WARRANTY AND THAT LEGISLATION AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING THE APPLICATION OF THE CONDITION OR WARRANTY, CUSTOMER ACKNOWLEDGES THAT, IN ENTERING INTO THIS AGREEMENT, SAVE FOR THOSE EXPRESSLY STATED HEREIN, IT HAS NOT RELIED ON ANY STATEMENT, OR REPRESENTATION OR INFORMATION SUPPLIED BY LICENSOR. FOR AVOIDANCE OF DOUBT, NOTHING IN THIS AGREEMENT (INCLUDING SECTION 9.3 ABOVE) EXCLUDES ANY LIABILITY OF A PARTY UNDER, OR LIMIT OR AFFECT THE APPLICATION OF, THE FAIR TRADING ACT.

Consumer Guarantees' Act. CUSTOMER ACKNOWLEDGES THAT IT ACQUIRES THE SERVICES FOR ITS BUSINESS PURPOSES AND ACCORDINGLY THE PROVISIONS OF THE CONSUMER GUARANTEES ACT DO NOT APPLY. SECTION 9.3 IS SUBJECT TO THE TERMS OF THIS SECTION 9.5.
    9.6. WHERE IN ACCORDANCE WITH SECTION 14.1 THIS AGREEMENT IS GOVERNED BY THE LAWS OF SINGAPORE, THEN THIS SECTION 9.6 APPLIES.

Contracts (Rights of Third Parties) Act (Cap 53B). A PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL HAVE NO RIGHT UNDER THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT (CAP 53B) TO ENFORCE ANY OF ITS TERMS.
10.  Verifications. Partner agrees that Licensor may, at its own expense, verify Partner's use of Partner Use Products as well as Partner's business activities related to the PartnerNet Program, to determine Partner's compliance or non-compliance with this Agreement and the applicable PartnerNet Program requirements including, if applicable, any related business plans or other specific arrangements between the parties. Such verifications will take the form of requests for information, documents or records, on-site visits, or both. Any on-site visit will occur during regular business hours at Partner's offices, and will not interfere unreasonably with Partner's business activities. For an on-site visit, Licensor will give Partner at least 10 days prior written notice of the date of each visit.
11.  Additional Terms for Original Equipment Manufacturers (OEM). The following additional terms apply solely to Partners at any program level who acquire, for resale to End Users, licenses or subscriptions of Licensor software products through a distributor under Licensor's OEM program and price list. Except as authorized below, such Partner must bundle Software with either Partner's own computer hardware or software products and sell the combination as a bundled unit only (“Bundled Package“). If Partner violates this restriction, the licenses Partner sells to End Users (either directly or through your approved resellers) will be an illegal license and Licensor shall be entitled to require Partner to purchase legal licenses at full list price and seek damages against Partner in a court of law. Notwithstanding the above, Partner may purchase stand-alone Upgrade licenses or Maintenance without the bundling obligation provided that the purchase is a renewal for End Users already using Software that has been bundled by Partner so that End Users can receive the upgrade of the Software. In addition, the following additional terms apply:
   
  • Partner must sell all Software licenses or subscriptions only to bona fide End Users or to Partner's authorized resellers for onward sale to End Users;
  • Partner must not disclose the individual pricing of the Software when selling it as part of a Bundled Package;
  • Partner will either a) design the Bundled Package to present the standard Licensor End User License Agreement ("EULA") and not allow use to proceed unless and until the End User manifests assent to the EULA by taking a clearly described action (e.g., striking a key); or b) include in physical packaging for the Bundled Package a hard copy of the EULA, included in such a manner that the End User will be aware of the EULA prior to use;
  • Partner must not use, copy, modify, or otherwise transfer the Software or documentation, or any copy, modification or merged portion, in whole or in part, except as expressly provided for in this Agreement;
  • For any Software that is open source software, the price includes End User access to upgrades (i.e. new versions) of the Software ("Maintenance") beginning with registration and for the time period of Maintenance purchased by End Users. Partner must inform each End User of such Maintenance access and the necessity to register on the Customer Center portal at https://secure-www.novell.com/center/regadmin/ (or such other location communicated to Partner) prior to receiving such upgrades;
  • Partner agrees not to engage in the manufacture, use, distribution, supply, marketing or promotion of any counterfeit, pirated or illegal software whether directly or indirectly and will assist to all extent reasonably requested by Licensor in the investigation of any such activities; and
  • Partner is responsible to provide all technical and other support to End Users who acquire licenses of Software as part of a Bundled Package. Notwithstanding anything to the contrary in the applicable EULA, Maintenance does not include technical or installation support from Licensor to the End User.
12.  Confidential Information. The parties agree that any Confidential Information provided under the Agreement will be held and maintained in strict confidence. Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information. "Confidential Information" means the information and materials noticed or marked by Licensor or Partner as confidential and proprietary. "Confidential Information" does not include information that (a) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (b) becomes publicly known without fault of the receiving party, (c) is independently developed by the receiving party, (d) is approved for release in writing by the disclosing party, (e) is disclosed without restriction by the disclosing party to a third party, or (f) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties. The recipient of Confidential Information retains the right to use its knowledge and experience (including processes, ideas, and techniques) learned or developed in the course of providing any services. All Confidential Information is provided "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED.
13.  Termination.
    13.1.  Termination for Cause. Either party may terminate this Agreement for the substantial breach by the other party of a material term. The terminating party will first give the other party written notice of the breach and a reasonable period of at least 14 days in which to cure the alleged breach. If a cure is not achieved during the cure period, then the non-breaching party may terminate this Agreement upon written notice.
    13.2.  Termination for Convenience. Either party may terminate this Agreement (and Partner's authorization hereunder) for convenience and without showing cause at any time upon 30 days' prior written notice to the other party.
    13.3.  Insolvency, Assignment, or Bankruptcy. Either party may terminate this Agreement upon written notice to the other party if the other party (a) is not paying its debts as such debts generally become due, (b) becomes insolvent, (c) files or has filed against it a petition (or other document) under any bankruptcy law or similar law, that is unresolved within 60 days of the filing of such petition (or document), (d) proposes any dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, (e) makes a general assignment or trust mortgage for the benefit of creditors, or (f) if a receiver, trustee, custodian or similar agent is appointed or takes possession of any of its property or business.
    13.4.  Effect of Termination. Termination of this Agreement for any reason will immediately terminate Partner's participation in the PartnerNet Program, including eligibility to the program benefits. Within 45 days after the date of the termination notice, Partner shall cease referring to itself as a Silver Partner, Gold Partner, Platinum Partner, Alliance Partner (as applicable), or any other title associated with the PartnerNet Program, and shall cease using those titles, and any Licensor or PartnerNet trademarks, logos and brands in any communication and advertising or on Partner's websites. Partner shall destroy (or return if so directed by Licensor) all materials, documents, brochures, tools and software (including any copies) that Partner may have obtained from Licensor or its fulfillment agent in connection with its participation in the PartnerNet Program. Any fees owed by Partner shall be due upon termination. Regardless of any other provision of this Agreement, no fees will be refunded and Licensor will not by reason of the termination of the Agreement be liable for compensation, reimbursement, or damages on account of the loss of prospective profits or on account of expenditures, investments, or commitments in connection with Partner's business or goodwill, or otherwise.
14.  General Provisions.
    14.1.  Choice of Law. Choice of law and jurisdiction for this Agreement shall be as follows. To the extent their exclusion is permissible, the terms of the United Nations Convention on the International Sale of Goods will not apply, even where adopted as part of the domestic law of the country whose law governs this Agreement.
        14.1.1.  For Partners located in Europe, the Middle-East or Africa (EMEA), this Agreement will be governed by the substantive laws of the country in which Partner has its principal residence, where that country is (a) a member state of the European Union, or (b) a member state of the European Free Trade Association or (c) the Republic of South Africa. For a Partner with principal residence in any other country in EMEA (except South Africa) the applicable law will be the law of England. An action at law under this Agreement may only be brought before a court of appropriate jurisdiction in the state whose law governs this Agreement under the terms of this section.
        14.1.2.  For Partners located in the Americas and Asia Pacific, unless subsection(s) (i) to (iii) applies, this Agreement shall be governed by the substantive laws of the State of Utah and applicable federal U.S. laws, without regard to any conflict of laws provisions. If either party initiates legal proceedings to enforce a term of the Agreement, the prevailing party will be entitled to recover reasonable attorneys' fees. Each party will, at its own expense, comply with any applicable law, statute, ordinance, administrative order, rule and regulation
        i. Where the Partner's country of principal residence is Singapore, Thailand, Vietnam, the Philippines, Indonesia or Pakistan, then this Agreement will be governed by the laws, excluding the private international law rules, of Singapore. All disputes arising out of or in connection with this Agreement will finally be settled under the Rules of Arbitration of the Singapore International Arbitration Centre by a single arbitrator appointed in accordance with the said Rules. The language to be used in the arbitral proceedings will be English and the place of arbitration will be Singapore. The arbitral award made and granted by the arbitrator will be final, binding and incontestable and may be used as a basis for enforcement of the award in the place of residence or business of the parties.
        ii. Where the Partner is principally resident in China (excluding Hong Kong, S.A.R.), then this Agreement will be governed by the laws of Hong Kong, SAR. All disputes arising out of or in connection with this Agreement will be settled by arbitration at the Hong Kong International Arbitration Centre ("HKIAC") in Hong Kong under the Hong Kong Arbitration Ordinance. The arbitration will be carried out before 3 arbitrators, each of the parties will appoint one arbitrator and the third will be chosen by HKIAC in accordance with HKIAC Procedures for Arbitration. The arbitration will be conducted in the English language. Any arbitral award will be final and binding on the parties. The expense of the arbitration will be borne between the parties as determined by the arbitrators.
        iii. Where the Partner is principally resident in any of the other countries in Asia Pacific, this Agreement will be governed by the substantive law, excluding the private international law rules, of the country of principal residence of the Licensor Entity and, where applicable, the state of principal residence in the country of principal residence of the Licensor Entity. An action at law hereunder may only be brought before a court of appropriate jurisdiction in the state whose law governs this Agreement.
    14.2.  Entire Agreement. This Agreement and the Program Guide comprise the whole agreement between the parties. Unless otherwise expressly provided herein, this Agreement supersedes all prior representations or agreements between the parties relating to the same subject matter. The Agreement will not be supplemented or modified by any course of dealing or usage of trade. Variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification from Partner (including but not limited to any specification of a price different than Licensor's current list price) will be of no effect.
    14.3.  Survival. The provisions of this Agreement which by their nature extend beyond termination of the Agreement, including sections 8, Intellectual Property Rights, 9, Limited Warranty/Limitation of Liability, 10, Verification, 12, Confidential Information, and 14, General Provisions, will survive termination of the Agreement.
    14.4.  Assignment. This Agreement may not be assigned by Partner, in whole or in part, without Licensor's prior written consent. Licensor will not unreasonably withhold consent to an assignment to Partner's parent company or subsidiary. Any attempted assignment without Licensor's written consent will be null and void. Licensor shall be entitled to assign its rights and obligations under this Agreement to any company that controls, is controlled by (whether directly or indirectly) or is in common control with Licensor or its parent.
    14.5.  Independent Contractors. Any use of the term "partner" in this Agreement is in the sales and marketing sense, and the parties are not (and will not represent that they are) partners under the technical legal definition of that term. Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a legal partnership between a party and the other party or the other party's employees or agents. Neither party has the authority to bind the other, to incur any liability or otherwise act on behalf of the other. Each party shall be solely responsible for payment of its employees' salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
    14.6.  Severability. If any provision of the Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been agreed with the invalid portion eliminated. The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
    14.7.  Export Restrictions. Any products or technical information provided under this Agreement may be subject to U.S. export controls and the trade laws of other countries. The parties agree to comply with all export control regulations and to obtain any required licenses or classification to export, re-export or import deliverables. The parties agree not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist countries as specified in the U.S. export laws. The parties will not use deliverables for prohibited nuclear, missile, or chemical biological weaponry end uses. Please consult the Bureau of Industry and Security web page www.bis.doc.gov before exporting Licensor products from the U.S. Please refer to www.novell.com/info/exports/ for more information on exporting Licensor software. Upon request, Licensor will provide Partner with specific information regarding applicable restrictions. However, Licensor assumes no responsibility for Partner's failure to obtain any necessary export approvals.
    14.8.  Improper Payment. Neither Partner nor its directors, employees, agents or subcontractors or shall directly or indirectly give anything of value to any political party, candidate for government office, or director, employee or agent of any government entity, to influence a decision or gain advantage for Partner or Licensor in connection with this Agreement. Provider shall immediately notify Licensor of any violation of this subsection. Partner shall hold Licensor harmless for any loss or expense arising out of such violation. If a violation occurs, Licensor may at its option and in addition to its other remedies, terminate this Agreement at any time upon written notice.