MICROSTRATEGY OEM TERMS AND CONDITIONS
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the applicable agreement(s) referencing these MicroStrategy OEM Terms and Conditions (the “OEM Terms”).
1. TERMS APPLICABLE TO THE RESALE AND SUBLICENSING OF ALL PRODUCTS AS PART OF OEM SOLUTION
1.1 Order Fulfillment. Each Order placed pursuant to these OEM Terms will include the following documents: (i) an executed copy of an ordering document in a form provided by us and (ii) an executed copy of the Exhibit A generated from our automated quote generation system (or another form of price quotation provided by us).
(a) Documentation. For each Product, we grant you the right to create derivative works of the Documentation associated with the Product, limited to instructions and guidance on the use of such Product as part of an OEM application. Service Partner acknowledges that the portions of all such derivative works that include or are based on such Documentation or any portion thereof constitute copyrighted materials of MicroStrategy and will only be disclosed to Customers that have agreed in writing to treat such derivative works as Confidential Information. You acquire no rights in any portion of such derivative works that include or are based on the Documentation or any portion thereof, and any such portion of such derivative works will be clearly identified as MicroStrategy copyrighted material. We reserve the right to review and approve any derivative works of the Documentation created by you. "Documentation" means, with respect to a Product, the MicroStrategy user manual(s) on installation and/or use of the Product that are normally distributed with the Product.
1.2 OEM Branding. All OEM solutions will include a tagline referencing the appropriate Product as specified by us. If you deploy the Products as part of an extranet application, you agree to display "Powered by MicroStrategy" or such other designation specified by us, subject to any restrictions we may otherwise place upon your use of MicroStrategy trademarks.
2. TERMS APPLICABLE TO SUBLICENSING OF BI SOFTWARE PRODUCTS AS PART OF OEM SOLUTION
(a) "BI OEM Solution" means any customized solution or application combining the Service Partner Software with the BI OEM User Products and any associated BI Software Documentation, as specifically described on an Opportunity Registration Form.
(b) "BI OEM Solution License Agreement" means a license agreement between you and a Customer that prescribes terms and conditions governing the use of a BI OEM Solution by such the Customer and includes the provisions set forth in Section 2.5 below.
(c) "BI OEM User Product" means any BI Software Product, excluding all client-server based development BI Software Products.
(d) "BI Software Products" means an unmodified, generally available MicroStrategy business intelligence software program listed on the MicroStrategy standard price list and identified on an Order accepted by us ("BI Software"); the Documentation provided with the BI Software; tools included with the BI Software; and any and all updates delivered to you (or, as applicable, to a Customer).
(e) "Service Partner Software" means the software developed by you with which the BI OEM User Products and any associated BI Software Documentation will be combined.
2.2 Right to Create, Sublicense and Distribute BI OEM Solution. We grant you a non-exclusive, non-transferable right, during the Term, to use BI Software Products (as listed on an Order placed pursuant to this Agreement) to (a) create, develop and test BI OEM Solutions and (b) sublicense and distribute such BI Software Products to Customers as part of a BI OEM Solution directly in connection with an Approved Opportunity by either (i) installing the BI OEM Solution at a Customer's location or (ii) installing the BI OEM Solution on OEM's servers and hosting the BI OEM Solution on behalf of Customers in a hosted environment.
2.3 Technical Support Services.
(a) Order Requirements. For each Order for perpetual BI OEM User Product licenses accepted by us, you will purchase from us a one-year subscription to standard Technical Support Services for all perpetual BI OEM User Product licenses included in the Order (each, a "First Year Support Subscription") at the price set forth on the applicable Order for such BI OEM User Product licenses. Such Standard Technical Support Services will commence on the date the BI OEM User Product licenses on the applicable Order are shipped by us.
(b) Provision of Technical Support Services. You will provide technical support for a BI OEM Solution directly to its Customers, including telephone- and internet-based support. You will not place your Customers in direct contact with us for any Technical Support Services except that you are permitted to request for your Customers access to our Knowledge Base. Such access will be obtained by e-mail request from you to our technical support desk. We will provide the level of Technical Support Services specified on the applicable Order to you only.
(c) Renewal of Technical Support Services. You will renew Standard Technical Support Services on BI OEM User Product licenses sublicensed to a Customer for the period during which the Customer uses such BI OEM User Product licenses.
(a) MicroStrategy Warranties. We warrant that:
(i) for a period of six (6) months from the date of delivery of the BI Software to you in connection with your initial Order for BI Software Product licenses to be used to create, develop and test a BI OEM Solution (the "Warranty Period"), the BI Software listed on such Order and updates delivered for such BI Software during the Warranty Period will perform in substantial conformance with the technical specifications set forth in the BI Software Documentation; for any breach of this warranty, your exclusive remedy, and our entire liability, will be (1) the correction of BI Software errors that caused the breach of the warranty, (2) replacement of the BI Software, or (3) if neither of the foregoing can be reasonably effected by us, return of the fees paid to us for the license of such BI Software, provided that such BI Software is returned to us; and
(ii) prior to release, we scan each version of the BI Software using a nationally recognized virus scanning program; and
(iii) we will not materially decrease the level of Technical Support Services provided during an active subscription to such Technical Support Services.
(b) Service Partner Warranties. You warrant that:
(i) every sale or distribution of the Service Partner Software (as defined herein) will include the BI OEM User Products; and
(ii) you will enforce each BI OEM Solution License Agreement with the applicable Customer and will inform us of any known or suspected breach of any BI OEM Solution License Agreement; and
(iii) you will (i) secure the rights from each Customer to export certain personal data outside the European Union to any country in the European Union and/or the United States, (ii) process and export such personal data in compliance with applicable law relating to data protection, and (iii) notify each such Customer in writing that the Customer has the right to consult, amend, cancel or oppose the processing and/or export of the Customer's personal data.
2.5 Sublicensing Requirements. You will sublicense and distribute a BI OEM Solution solely through a BI OEM Solution License Agreement that includes, at a minimum, contractual provisions that: (a) acknowledge that the BI OEM Solution contains copyrighted and proprietary products and materials of ours, which are obtained under a license from us; (b) restrict the use of the BI OEM User Products solely for use in combination with the Service Partner Software as a BI OEM Solution and to the license type (e.g., named user license) and quantity purchased; (c) prohibit the Customer from materially changing or expanding the data models provided by you as part of the BI OEM Solution and limit the Customer to accessing data only from the data models provided by you as part of the BI OEM Solution; (d) prohibit the reverse engineering, disassembly or decompilation of the BI OEM Solution; (e) prohibit title to the BI OEM Solution from passing to the Customer; (f) state that the Customer acknowledges that the BI OEM Solution and other technical data may be subject to export controls imposed by the U.S. Department of Commerce, under the Export Administration Regulations and any other such applicable regulations, and that if Customer exports the BI OEM Solution, Customer will only export or re-export the BI OEM Solution in compliance with all export laws and regulations of the United States and the country in which Customer is located; and (g) state that the Customer will not use the BI OEM Solution in any manner that violates any individual's privacy or data protection right set forth by statute, rule, regulation or case law. We reserve the right to amend the foregoing list of provisions upon sixty (60) days advance, written notice; provided, however, that such amended provisions will apply only to BI OEM Solution License Agreements executed by you subsequent to the expiration of the sixty (60) day notice period.
3. TERMS APPLICABLE TO RESALE OF CLOUD ENTERPRISE SERVICES AS PART OF OEM SOLUTION
3.1 Right to Create Pre-Built Metadata and Sell with Cloud Enterprise Services as Cloud Enterprise OEM Solution. We grant you a non-exclusive, non-transferable right, during the Term, to (a) create MicroStrategy metadata objects for data models, reports, dashboards and mobile applications ("Pre-Built Metadata") and install such Pre-Built Metadata in our cloud environment and (b) resell such Pre-Built Metadata together with subscriptions to Cloud Enterprise Services (as listed on an Order placed pursuant to this Agreement) as an integrated solution ("Cloud Enterprise OEM Solution") to any Customer directly in connection with an Approved Opportunity.
3.2 Terms Governing Use of Cloud Enterprise OEM Solution. You and your Customers' use of the Cloud Enterprise OEM Solution will be governed by the terms of the Agreement and the terms of the then-current Cloud Intelligence Master Subscription Agreement posted at www.microstrategy.com/licensing.
4. TERMS APPLICABLE TO RESALE OF EXPRESS AS PART OF OEM SOLUTION
4.1 Right to Create Pre-Built Visualizations and Sell With Express as Express OEM Solution. We grant you a non-exclusive, non-transferable right, during the Term, to (a) create MicroStrategy visualizations using Express ("Pre-Built Visualizations") and install such Pre-Built Visualizations in our cloud environment and (b) resell such Pre-Built Visualizations together with subscriptions to Express (as listed on an Order placed pursuant to this Agreement) as an integrated solution ("Express OEM Solution") to any Customer directly in connection with an Approved Opportunity.
4.2 Terms Governing Use of Express OEM Solution. Your and your Customers' use of the Express OEM Solution will be governed by the terms of this Agreement and the terms of the then-current Express Master Subscription Agreement posted at www.microstrategy.com/licensing.
5. TERMS APPLICABLE TO RESALE OF NETWORK APPLICATIONS AS PART OF OEM SOLUTION
(a) “Platform Policies” means all terms and conditions of use established from time to time for or by platforms that are utilized in providing any NA OEM Solution (such as Facebook and Apple).
(b) “NA OEM Solution” means any customized solution or application combining a Network Application and your technology, branding or other intellectual property.
(c) “NA OEM Solution License Agreement” means an agreement between you and a Customer that prescribes terms and conditions governing access to and use of an NA OEM Solution by such Customer.
(e) “NA OEM Solution User” means any individual end user of an NA OEM Solution or elements thereof, including individuals that receive access to an NA OEM Solution via an application made available by a Customer.
(f) “Network Applications” mean the Alert Products, Usher Products, and all other Products identified as Network Applications and listed at www.microstrategy.com/CSPA-products.
5.2 Right to Create NA OEM Solutions. We grant you a non-exclusive, non-transferable right, during the Term, to (a) create with our assistance, develop and test NA OEM Solutions and (b) sublicense and/or sell access to the NA OEM Solutions to any Customer directly in connection with an Approved Opportunity by (i) installing the NA OEM Solution at a Customer’s location; (ii) installing the NA OEM Solution on your servers and hosting the NA OEM Solution on behalf of Customers; or (iii) granting a Customer access to the NA OEM Solution hosted in our cloud environment.
5.3 Terms Governing Use of NA OEM Solution. Your use of each Network Application in connection with an NA OEM Solution will be governed by the terms of this Agreement and the terms and conditions for such Network Application located at www.microstrategy.com/CSPA-products.
6.1 These OEM Terms may be modified by us from time to time. We will provide advance notice of such modifications by email to you unless such modifications are in response to changes in laws and it is not practicable for us to provide advance notice. All such notices will be deemed delivered upon being posted or sent as indicated above and will become effective on the applicable date specified in such notice. Orders accepted by us prior to a notice of modification will not be subject to such modified terms unless we and you agree otherwise in writing.