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EUROPE, MIDDLE EAST, AFRICA Region
If Partner’s principal place of business is located in Austria, Belgium, Denmark, France, Germany, Ireland, Italy, Netherlands, Norway, Spain, Sweden, Switzerland or the United Kingdom, then the laws of such country shall apply to and govern this Agreement in relation to any disputes or claims arising hereunder. If Partner’s principal place of business is located in any other country in Europe, the Middle East or Africa, then the laws of England shall apply instead for such purposes. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the courts of the country whose laws apply to this Agreement. Each party hereby agrees to submit to the jurisdiction of such courts.
For this region the definition of "Provider" shall be Quest Software International Limited, with its principal place of business at City Gate Park, Mahon, Cork, Ireland.
The following shall apply as a new provision:
"Territory"
- (a) If Partner’s focus Territory (as defined in Section 1(g)) is within the European Economic Area (“EEA”), Partner hereby agrees not to actively market and sell to any party located outside the EEA or, subject to Sub-section (d) below, within the Restricted Territories (as defined in Sub-Section (c) below.
- (b) If Partner’s focus Territory is outside the EEA, Partner hereby agrees not to actively market and sell to any party located outside the Territory.
- (c) Notwithstanding the nature and scope of this Agreement, Provider currently has certain exclusive arrangements in place with certain third parties and is required (amongst other things) to prevent the sale of the Products, Maintenance Services and Professional Services in following countries within (1) Europe: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Greece, Hungary, Kosovo, Latvia, Lithuania, Macedonia, Malta, Montenegro, Poland, Romania, Serbia, Slovakia, Slovenia; (2) Middle East: Afghanistan, Bahrain, Iraq, Jordan, Kuwait, Lebanon, Oman, Pakistan, Qatar, Saudi Arabia, Turkey, United Arab Emirates, Yemen; and (3) Africa: Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Congo, Cote d’Ivoire, Democratic Republic of Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Nigeria, Rwanda, Sa Tome & Principe, Senegal, Sierra Leone, Somalia, South Africa, South Sudan, Swaziland, Tanzania (United Republic of), Togo, Tunisia, Uganda, Zambia, Zimbabwe (collectively the "Restricted Territories").
- (d) For the avoidance of doubt, any passive sales activities within Europe, Middle East and Africa, i.e. sales activities which were initiated by End-Customers and not by Partner shall not be covered by the above restrictions, however, Partner may be required to place orders for End-Customers located in the Restricted Territories with Provider's exclusive partners under a separate agreement with such exclusive partner”.
Country Specific Terms
The following terms shall apply when Partner’s principal place of business is one of the following countries:
- "(a) Austria or Germany:The following replaces clause “Limitation of Liability” in its entirety: (i) The parties accept unlimited liability for acts or omissions based on willful misconduct or gross negligence. (ii) In case of slight negligence, the parties are only liable in case of a violation of essential contractual duties in a manner that endangers the Partner Order’s purpose or in case of a violation of duties that are indispensable for the proper execution of the Partner Order. Liability for slight negligence is then limited to contract-typical, foreseeable damages. (iii) For claims according to the preceding clause (ii) liability is further limited to the fees paid and/or owed (as applicable) by Partner for the Products, Maintenance Services or Professional Services that are the subject of the claim; for Maintenance Services or a Product subject to recurring fees, liability is further limited to the amount paid and/or owed (as applicable) for such Maintenance Service or Product during the twelve (12) months preceding. (iv) This provision applies to all claims for damages independent of their legal basis, including tort claims. (v) The following claims remain unaffected from the preceding limitations of liability: claims based on (1) the product liability act; (2) a breach of an express guarantee; (3) personal injury, or death; (4) willful misconduct or fraud; (5) any breach of the Trademarks, Reservation of Rights and Ownership, and Export Sections of this Agreement; (6) a party’s express obligations under the Infringement Indemnity Section of this Agreement; (7) any breach of Partner’s payment obligations; (8) Partner’s violation of the scope of activities authorized by this Agreement; and (9) any liability to the extent liability may not be excluded or limited as a matter of applicable law. (vi) These limitations of liability analogous to claims against Provider's Affiliates and suppliers and disbursements.
- (b) France:In addition to other rights and remedies for non-payment of invoices as specified in Section Payment, automatic collection fees, amounting to €40, may also be applied by Provider."
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AMERICAS Region
If Partner’s principal place of business located in the United States of America or any other region or country not otherwise determined elsewhere by this Appendix A, then this Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the County of Orange, State of California, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts.
For this region, the Provider entity shall be the one named in Section 1 (Definitions).
The following specific terms shall apply whenever Partner is subject to the governing law of California.
The following shall replace the existing Section 11 entirely:
"Limitation of Liability".EXCEPT FOR (A) ANY BREACHES OF THE TRADEMARKS, RESERVATION OF RIGHTS AND OWNERSHIP, AND CONFIDENTIAL INFORMATION SECTIONS OF THIS AGREEMENT; (B) AMOUNTS CONTAINED IN JUDGMENTS OR SETTLEMENTS WHICH A PARTY IS LIABLE TO PAY ON BEHALF OF THE OTHER PARTY UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT; OR (C) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, IN NO EVENT SHALL PROVIDER, ITS AFFILIATES, OR SUPPLIERS, OR RESELLER BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, IN EACH CASE HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE.
EXCEPT FOR (A) ANY BREACH OF RESELLER’S PAYMENT OBLIGATIONS; (B) ANY BREACHES OF THE TRADEMARKS, RESERVATION OF RIGHTS AND OWNERSHIP, CONFIDENTIAL INFORMATION, AND EXPORT SECTIONS OF THIS AGREEMENT; (C) A PARTY’S EXPRESS OBLIGATIONS UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT; (D) RESELLER’S VIOLATION OF THE SCOPE OF ACTIVITIES AUTHORIZED BY THIS AGREEMENT, OR (E) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF PROVIDER, ITS AFFILIATES AND SUPPLIERS, AND RESELLER UNDER THIS AGREEMENT, WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID AND/OR OWED (AS APPLICABLE) BY RESELLER OR ITS AFFILIATES FOR THE PRODUCTS OR MAINTENANCE SERVICES THAT ARE THE SUBJECT OF THE CLAIM. FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, THE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR SUCH MAINTENANCE SERVICE OR PRODUCT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
Provider’s Affiliates and suppliers shall be beneficiaries of this Section; otherwise, no third party beneficiaries exist under this Agreement."
The following shall replace the existing Section 18(b) entirely:
"Assignment.Partner shall not, in whole or part, assign or transfer any part of this Agreement or any rights hereunder without the prior written consent of Provider. Any attempted transfer or assignment by Partner that is not permitted by this Agreement shall be null and void."
The following shall apply as a new provision:
"Resale To Government Agency. In the event that Partner is permitted under this Agreement to provide Products to federal, state, or local government agency, or to a prime contractor or subcontractor that distributes to any such agency, Partner does so at its own option and risk. No provision required in any government contract or subcontract related hereto shall be deemed a part of this Agreement, or be imposed upon or binding upon Provider, and this Agreement will not be deemed an acceptance of any government provisions that may be included or referred to in any Partner Order or other purchasing document. Partner shall be solely and exclusively responsible for compliance with all statutes, regulations and clauses governing sales to such agencies. Provider makes no representations, certifications, or warranties whatsoever with respect to the ability of its Software Products or Maintenance Services to satisfy such statutes, regulations or clauses."
The following shall apply as a new provision:
"Equal OpportunityQuest Software Inc. is a federal contractor and Affirmative Action employer (M/F/D/V) as required by the Equal Opportunity clause C.F.R. § 60-741.5(a)."
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CANADA Region
If Partner's principal place of business located in Canada, then this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada, without giving effect to any conflict of laws principles that would require the application of laws of a different province. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the courts located in the Province of Ontario, Canada. Each party hereby agrees to submit to the jurisdiction of such courts.
For this region the definition of "Provider" shall be Quest Software Canada Inc., with its principal place of business at 10 Roybridge Gate, Ste. 100, Woodbridge, ON L4H 3M8.
The following shall replace the existing Section 11 entirely:
"Limitation of Liability.EXCEPT FOR (A) ANY BREACHES OF THE TRADEMARKS, RESERVATION OF RIGHTS AND OWNERSHIP, AND CONFIDENTIAL INFORMATION SECTIONS OF THIS AGREEMENT; (B) AMOUNTS CONTAINED IN JUDGMENTS OR SETTLEMENTS WHICH A PARTY IS LIABLE TO PAY ON BEHALF OF THE OTHER PARTY UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT; OR (C) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, IN NO EVENT SHALL PROVIDER, ITS AFFILIATES, OR SUPPLIERS, OR RESELLER BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, IN EACH CASE HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE.
EXCEPT FOR (A) ANY BREACH OF RESELLER’S PAYMENT OBLIGATIONS; (B) ANY BREACHES OF THE TRADEMARKS, RESERVATION OF RIGHTS AND OWNERSHIP, CONFIDENTIAL INFORMATION, AND EXPORT SECTIONS OF THIS AGREEMENT; (C) A PARTY’S EXPRESS OBLIGATIONS UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT; (D) RESELLER’S VIOLATION OF THE SCOPE OF ACTIVITIES AUTHORIZED BY THIS AGREEMENT, OR (E) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF PROVIDER, ITS AFFILIATES AND SUPPLIERS, AND RESELLER UNDER THIS AGREEMENT, WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID AND/OR OWED (AS APPLICABLE) BY RESELLER OR ITS AFFILIATES FOR THE PRODUCTS OR MAINTENANCE SERVICES THAT ARE THE SUBJECT OF THE CLAIM. FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, THE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR SUCH MAINTENANCE SERVICE OR PRODUCT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
Provider's Affiliates and suppliers shall be beneficiares of this Section; otherwise, no third party beneficiaries exist under this Agreement."
The following shall replace the existing Section 18(b) entirely:
"Assignment.Partner shall not, in whole or part, assign or transfer any part of this Agreement or any rights hereunder without the prior written consent of Provider. Any attempted transfer or assignment by Partner that is not permitted by this Agreement shall be null and void."
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MEXICO Region
If Partner’s principal place of business is located in Mexico this Agreement shall be governed by and construed in accordance with the Federal laws of Mexico City, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the courts located in Mexico City. Each party hereby agrees to submit to the jurisdiction of such courts.
For this region the definition of "Provider" shall mean Quest Software Mx, S. de R.L. de C.V., with its principal place of business at Av. Patriotismo 229 Pisos 7 y 8, Col. San Pedro de los Pinos, Ciudad de México, 03800 Mexico.
The following shall replace the existing Section 11 entirely:
"Limitation of Liability.EXCEPT FOR (A) ANY BREACHES OF THE TRADEMARKS, RESERVATION OF RIGHTS AND OWNERSHIP, AND CONFIDENTIAL INFORMATION SECTIONS OF THIS AGREEMENT; (B) AMOUNTS CONTAINED IN JUDGMENTS OR SETTLEMENTS WHICH A PARTY IS LIABLE TO PAY ON BEHALF OF THE OTHER PARTY UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT; OR (C) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, IN NO EVENT SHALL PROVIDER, ITS AFFILIATES, OR SUPPLIERS, OR RESELLER BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, IN EACH CASE HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE.
EXCEPT FOR (A) ANY BREACH OF RESELLER’S PAYMENT OBLIGATIONS; (B) ANY BREACHES OF THE TRADEMARKS, RESERVATION OF RIGHTS AND OWNERSHIP, CONFIDENTIAL INFORMATION, AND EXPORT SECTIONS OF THIS AGREEMENT; (C) A PARTY’S EXPRESS OBLIGATIONS UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT; (D) RESELLER’S VIOLATION OF THE SCOPE OF ACTIVITIES AUTHORIZED BY THIS AGREEMENT, OR (E) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF PROVIDER, ITS AFFILIATES AND SUPPLIERS, AND RESELLER UNDER THIS AGREEMENT, WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID AND/OR OWED (AS APPLICABLE) BY RESELLER OR ITS AFFILIATES FOR THE PRODUCTS OR MAINTENANCE SERVICES THAT ARE THE SUBJECT OF THE CLAIM. FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, THE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR SUCH MAINTENANCE SERVICE OR PRODUCT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
Provider’s Affiliates and suppliers shall be beneficiaries of this Section; otherwise, no third party beneficiaries exist under this Agreement."
The following shall replace the existing Setion 18(b) entirely:
"Assignment.Partner shall not, in whole or part, assign or transfer any part of this Agreement or any rights hereunder without the prior written consent of Provider. Any attempted transfer or assignment by Partner that is not permitted by this Agreement shall be null and void."
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BRAZIL Region
If Partner’s principal place of business is located in Brazil this Agreement shall be governed by and construed in accordance with the laws of Brazil and subject to the exclusive jurisdiction of the Courts of Brazil. The parties elect the venue of the city of Sao Paulo, state of Sao Paulo, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the courts located in Mexico City. Each party hereby agrees to submit to the jurisdiction of such courts.
For this region the definition of "Provider" shall mean Quest Software Ltda., with its principal place of business at Avenida das Naçoes Unidas, 14.171 - 15o andar, Marble Tower, Morumbi 04794-00 City of São Paulo, State of São Paulo.
The following shall apply as a new provision
Withholding tax. If any government requires Partner to withhold taxes on payments to Provider under this agreement, Partner may deduct these taxes from the amount owed or part to Provider if Partner (i) provides to Provider within 90 days of payment to Provider an official receipt for the taxes withheld or other documents necessary to enable Provider to claim a foreign tax credit and (ii) promptly pays the withheld taxes to the appropriate tax authority. Partner must minimize taxes withheld to the extent possible under applicable law. This section applies to withholding taxes on payments to Provider only. It does not apply to any withholding taxes on payments made to Partner by its resellers.
The following shall apply as a new provision.
LGPDThe parties (by themselves, their associated parties, their directors, employees and service providers involved in this Agreement) acknowledge and agree to also comply with the Brazilian Data Protection Law (“LGPD”) (as amended by Law No. 13.853/2019) and subsequent laws and regulations that may be enacted regarding Personal Protection Data in Brazil.
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ASIA PACIFIC JAPAN Region
APJ Region:
If Partner’s principal place of business is located in Australia, New Zealand, Singapore, People’s Republic of China, Japan, Hong Kong S.A.R. and Macau S.A.R of China, or any other country in Asia this Agreement shall be governed by and construed in accordance with the laws of Singapore, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the courts located in Singapore. Each party hereby agrees to submit to the jurisdiction of such courts.
For this region the definition of “Provider” means either Quest Software International Limited, with its principal place of business at City Gate Park, Mahon, Cork, Ireland, or if you purchased the Products in People’s Republic of China (excluding Hong Kong, S.A.R., Macau S.A.R. and Taiwan), Quest Software (Beijing) Company Limited with its principal place of business at Room 607, Regus Business Center, 6 Floor, Zhong Yu Building, No. 6 Gongti North Road, Chaoyang District, Beijing, 100011, China, or if you purchased the Products in Japan, Quest Software Japan Ltd with its principal place of business at Nittochi Nishi Shinjuku Building 13F 6-10-1 Nishi-Shinjuku, Shinjuku-ku, Tokyo 160-0023 Japan.