UNITY AUTHORIZED TRAINING PARTNER AGREEMENT
Please read these terms and conditions (this “Agreement”) before you agree to acquire any Unity education products and/or services from a Unity-authorized learning services distributor and agree to become a Unity-authorized training partner. In this Agreement, Unity Technologies ApS, a Danish corporation having its principal place of business at Lovstraede 5, DK-1152 Copenhagen K, Denmark is referred to as “Unity”, you (education provider) are referred to as “ATP” and the undersigned Unity-authorized distributor from which you purchase Unity products and/or services is referred to as “Distributor”. All references herein to Unity, excluding with respect to the ownership of intellectual property, will be deemed to include Distributor in context of the Distributor’s role as Unity’s authorized manager of ATP.
Interpretation and Definitions
- Interpretation & Definitions. Unless otherwise defined in this Agreement, capitalized terms shall have meaning assigned to them in the Unity End User Terms. In this Agreement, the following terms shall have the following meanings:
- “Affiliate(s)” means any partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to companies that, directly or indirectly, control, are controlled by or are under common control with a party;
- “ATP Products” means the training, course, workshop, exam, certification and other educational content and programs as developed by ATP or licensed to ATP by any party other than Unity, which is provided to ATP’s customers. For the avoidance of doubt, unless designed by Unity in a signed writing which references this Agreement, ATP Products shall be separate and distinct from the Unity Products;
- “ATP Program” means Unity’s world-wide program for authorized training partners, which program is developed and administered by Unity or its agent and may be subject to geographic, market and/or strategic variation as determined by Unity;
- “ATP Services” means those educational services, inclusive of training facilities, systems, instructor personnel, sales, marketing and delivery functions, performed by ATP in respect of Unity’s Software, Products and Services as contemplated in this Agreement. For the avoidance of doubt, any services in respect of ATP Products or any third-party products and services will not be considered “ATP Services” for purposes of this Agreement;
- “ATP Site” means any physical facility owned or controlled by ATP which must be separately approved by Unity in writing pursuant to this Agreement and must remain in compliance with all requirements in respect of ATP Sites as set out in this Agreement;
- “ATP Site Manager” has the meaning set out in Section 8;
- “ATP Website” means any website maintained by or on behalf of ATP where the ATP Services or the Unity Offerings are promoted, sold and/or delivered;
- “Authorized System” means such system(s), including, but not limited to, the websites, platforms, facilities, hardware and processes, of Unity or its Fulfillment Partners, that enable secure delivery of Unity Products and Materials;
- “Certification” means certification in Unity’s Software as may be obtained by a Student following completion of one or more Exams pursuant to criteria as set by Unity. Certifications are delivered and administered by ATP or Fulfillment Partner where directed by Unity from time to time;
- “Confidential Information” means any and all of Unity’, its Affiliates’, Fulfillment Partners’ and licensors’ business, proprietary and technical information, data and processes, whether tangible or intangible, which is disclosed by Unity to ATP hereunder or to which ATP is exposed in connection with this Agreement or ATP’s relationship with Unity, including, without limitation, any and all techniques, discoveries, product operations, research developments, business activities and operations, current and proposed business and marketing plans, Student information or data, customer and prospect lists, budgets, projections, cost analyses, acquisition candidates, inventions, source code, engineering concepts, ideas, data, designs, patents, patent applications, copyrights, copyright applications, knowhow, trade secrets and computer programs. Confidential Information further expressly includes the terms and conditions (but not the existence of) this Agreement;
- “Distributor” means the authorized distributor of Unity products and services that is engaged by Unity to manage and administer certain aspects of the ATP Program. Unity reserves the right, with notice to ATP, to modify or remove the undersigned Distributor as a party to this Agreement;
- “Documentation” means any collateral materials, whether in physical or electronic format, provided by Unity to ATP relating to the Unity Software;
- “Exam(s)” mean any one or more Unity-authorized examinations taken by Students on use of Unity Software as delivered by ATP or Fulfillment Partner where directed by Unity;
- “Fee” means a fee in the amount designated by Unity in the applicable ATP Program Guide;
- “Fulfillment Partner” means any third-party agent of Unity authorized to provide systems, services, content and/or materials to ATP in respect of any Examination, Certification, Unity Product, Unity Service or Materials.
- “Guide(s) ” means any and all rules, requirements, practices, or procedures concerning the ATP Program and any related Unity training, courseware, workshop, examination, certification and/or other educational product or service guidelines as notified to ATP from time to time by Unity or its authorized agent, and covering such topics as (i) marketing, sale, delivery and/or administration of Unity’s Products, Services and Software and related content and materials as authorized by Unity, (ii) content and use of the ATP Site, and (iii) ATP’s access and use of testing, certification and content delivery systems of Unity or its Fulfillment Partners in connection with the ATP Products and ATP Services. For greater certainty and without limitation, such Guides may be those of a Fulfillment Partner;
- “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights (including copyright applications), trade secrets, moral rights, knowhow and any other similar rights or intangible assets recognized under any law(s) or international convention(s) in any country or jurisdiction in the world where intellectual creations to which rights of ownership accrue;
- “Materials” means any collateral materials, whether in physical or electronic format, provided by Unity or its agent(s) to ATP relating to Unity Products.
- “Personal Data” means information relating to an identified or identifiable natural person pursuant to applicable law;
- “Student” means prospective customers and active participants in or purchasers of ATP Services as contemplated in this Agreement;
- “Student Data” means a Student’s Personal Data collected or received by ATP in respect of the ATP Services during the promotion, sale, delivery and/or administration thereof. For the avoidance of doubt, Student Data is inclusive of information exchanged between ATP and any Fulfillment Partner;
- “Terms of Service” means those terms of service in respect of any Unity Software and/or Unity Products at the Unity Website. Where applicable, Terms of Service may also refer to any terms of service, end user license agreements and/or privacy policies of the Fulfillment Partners;
- “Territory” means the countries and/or regions as set out in Exhibit A, in which ATP is authorized to perform the ATP Services and provide the Unity Offerings pursuant to this Agreement;
- “Unity Certified Instructor” means an individual who has completed such Unity courseware and/or exam(s) as Unity may direct from time to time separately in agreement effective between Unity and such individual and who is confirmed by Unity to be an active participant in the Unity Certified Instructor Program;
- “Unity Offerings” means the Unity Products, Unity Services and related Materials, together with the Unity Software and related Documentation;
- “Unity Products” means the training, courseware, Exams, Certifications and other educational content and programs, as developed by Unity or its Fulfillment Partners and which may be licensed to ATP hereunder;
- “Unity Services” means the professional consultation, training expertise and other services in respect of the Unity Products and Unity Software, as offered by Unity to its authorized training partners and/or Students and which may be licensed to ATP hereunder;
- “Unity Software” means the game-development and related software, including all free and paid versions thereof, as developed by or licensed to Unity and made available to its customer base;
- “Unity Trademarks” means all present and future trademarks, trade names and logos used and/or registered by Unity and/or used and/or registered by its Affiliates. For the avoidance of doubt, the Unity Trademarks are inclusive of ‘Unity Authorized Training Center’, ‘Unity Authorized Training Partner’ and such other designations as may be referenced in this Agreement or via communication to ATP from Unity;
- “Unity Website” means unity3d.com, unity.com, and successor site(s); and
“Year” means a calendar year beginning on the Effective Date and ending on the anniversary thereof, with each successive Year occurring on the same twelve-month anniversary schedule.
Program Participation & License to Unity Products
- Participation in Program. Participation in the ATP Program requires compliance with, at all times during the Term, the terms of this Agreement and the ATP Program Guide(s). In the event of any breach of the obligations as set out in this Agreement or the ATP Program Guide(s), ATP may be removed from the ATP Program and this Agreement terminated in accordance with Section 22.1. The parties’ obligations and rights as set out in this Agreement may be supplemented by additional terms as set out in the then-current and applicable ATP Program Guide(s) published by Unity.
- ATP Site. Unless otherwise approved by Unity in a signed writing, ATP shall perform the ATP Services only at a facility that is pre-approved by Unity and has therefore been designated an “ATP Site”. ATP may not provide any ATP Services or offer, sell or deliver any Unity Offerings at any ATP facility prior to it becoming an ATP Site. Unless otherwise expressly provided by Unity in writing, approval as an ATP Site does not permit the delivery or administration of Exams and certifications, which are subject to the terms of such Guide(s) as provided to ATP by Unity or its Fulfillment Partner.
- Certified Instructors. During the Term of this Agreement ATP shall employ or have long-term contract with no less than one (1) Unity Certified Instructor at each ATP Site, which minimum count may be updated from time to time by Unity in the ATP Program Guide or other official Unity communication. Any failure by ATP to meet the requirement as set out in this Section will be considered a material breach of this Agreement. Unless agreed by Unity in writing, only Unity Certified Instructors may be utilized to deliver any Unity Products and/or Unity Services to Students.
- ATP Services. The ATP Services, including but not limited to the method of delivery of the Unity Offerings, must be performed by ATP in a thorough and professional manner, consistent with high professional and industry standards and subject to such additional quality controls and related obligations as may be set out it ATP Program Guide(s).
- Licenses. Subject to ATP’s payment of applicable fees and compliance with the terms of this Agreement and all applicable ATP Program Guides, Unity hereby grants to ATP the following:
- Unity Offerings. a limited, non-exclusive, non-transferrable, non-sublicenseable and revocable license for the Term and in the Territory to promote, offer, sell (where applicable and in such instance, ATP will be considered a value-added-reseller of Unity) and distribute to Students certain Unity Offerings as set out in Exhibit A. ATP acknowledges and agrees that all Unity Offerings promoted, offered, sold or distributed by ATP pursuant to the foregoing license will be subject to the certain End User Terms. ATP will be obligated to present all applicable End User Terms to its Students in advance of their purchase or use of any Unity Offerings. ATP shall not modify or remove any End User Terms.
- Logo and Trademarks Usage. a limited, nonexclusive, nontransferable, nonsublicenseable and revocable license to use those Unity Trademarks as specified by Unity under this Agreement (or separately in writing) solely in connection with the marketing, promoting, and/or conducting of activities hereunder at ATP Sites and on ATP Websites? provided, however, that all such uses shall be approved in advance by Unity. ATP acknowledges and agrees that use of the Unity Trademarks pursuant to the foregoing license will be subject to the following:
- ATP shall ensure that, each time one or more of the Unity Trademarks is used as authorized hereunder, the owner of the respective Unity Trademark(s) shall be identified in the manner directed by Unity. ATP shall further indicate that such Unity Trademarks are used under license by ATP. Use of any Unity Trademark by ATP shall be allowed only in accordance with Unity’s trademark policies in effect from time to time;
- ATP agrees to cooperate with Unity in facilitating Unity’s monitoring and control of the nature and quality of ATP’s use of the Unity Trademarks, and shall submit to Unity in advance and for approval in writing a copy of all materials in which ATP proposes to use any of the Unity Trademarks; and
- All uses of the Unity Trademarks and goodwill shall inure to the sole benefit of Unity, and not ATP. ATP has not paid consideration for the use of the Unity Trademarks except under the limited circumstances set out in this Agreement and, other than the right and obligation of use created pursuant to this Agreement, acquires no right, title or interest in the Unity Trademarks of any kind whatsoever
- Entitlements. In addition to the foregoing licenses, provided that ATP is in compliance with the terms of this Agreement and all applicable ATP Program Guides, for the Term of this Agreement Unity or ATP, as applicable, grant to one another the following entitlements:
- Unity Plaque and/or Certificate. Unity may provide ATP a plaque and/or certificate confirming ATP’s status as an ATP Program participant and authorized reseller of certain Unity Offerings. Any Unity plaque and/or certificate shall be subject to forfeiture by ATP in the event this Agreement expires or is terminated in accordance with Section 22.
- Site Designations. Provided an ATP facility satisfies the requirements of Sections 2.1 and 2.2 and is approved as an ATP Site, such facility may be designated by Unity as a “Unity Authorized Training Center” and ATP shall be authorized to use such designation and the designation “Unity Authorized Training Partner” at such ATP Site
From time to time Unity, at its sole discretion, may grant ATP such other entitlements as designated in the ATP Program Guide(s) or other official Unity communications. Such additional entitlements may include, by way of example and without limitation, rights to co-branding of, to receive benefits of certain Unity programs not referenced herein, and/or to issue certificates of completion to Students using Unity Trademarks.
- Unity Reserved Rights.
- Changes to Guidelines. Unity reserves the right to change or terminate any Unity program and/or Guides at any time, without prior notice to ATP. Notwithstanding the foregoing, in the event the ATP Program is cancelled and provided that ATP is not in breach of this Agreement at such time, Unity will provide ATP ten (10) days’ advance written notice and will afford ATP the reasonable opportunity to sell any remaining Unity Products or Unity Services in accordance with the procedures communicated by Unity at such time.
- Changes to Unity Software, Products and Services. Unity reserves the right to modify, suspend or terminate any Unity Offering, including any feature, functionality or component part thereof, which is licensed to ATP hereunder. Such modification may be notified to ATP via the ATP Program Guide or attachments thereto or other written notifications from Unity to the ATP Site Manager.
- Notice of Changes. Unity will use commercially reasonable efforts to provide ATP advance notice of any material modification or long-term suspension or termination contemplated in this Section 5 that directly and substantially impacts the ATP Services.
- Unity reserves the right to audit, upon reasonable prior notice and during normal business hours, any ATP Site or any ATP Website to ensure compliance with the terms of this Agreement. Upon Unity’s request, ATP shall provide Unity reasonable and sufficient access to ATP’s facilities and processes, as well as all materials that ATP provides its instructors and Students in connection with the ATP Services.
Additional ATP Obligations
- Restrictions. ATPs may not promote, offer, sell or provide any Unity Offering in any country embargoed by the United States, nor to any individual on the U.S. Treasury Department’s list of Specially Designated Nationals.
- Student Verification and Age Requirements. For any Students purchasing or receiving any Unity Offering or participating in or purchasing the ATP Services, ATP shall ensure that (i) each individual purchasing any Unity Offering is at least 18 years of age; (ii) each Student using the Unity Software, and any Unity Product or Unity Service in connection therewith, is within the age limits specified in the applicable End User Terms or has obtained parental consents, where applicable; and (iii) that each purchaser and Student is who he/she claims to be. For all Exams and such other Unity Offerings where designated by Unity, each Student must present at least one form of photo ID to ATP and ATP shall confirm the form of identification prior to such Student receiving access to log into any applicable Authorized System.
- Administration. ATP must designate one person as the primary point of contact for each ATP Site (“ATP Site Manager”) to be responsible for communications with Unity. ATP Site Managers must have Internet and email access in order to remain current with the ATP Program and to receive email communications from Unity. Each ATP Site Manager must, among other things, use best efforts to keep the ATP Site staff and instructors fully informed about then-current Unity Offerings, ATP Program news, criteria and announcements, as appropriate.
- Changes to ATP Company and Site. ATP shall notify Unity of all changes that may affect ATP’s status or rights hereunder including, without limitation, change of:
- ATP company ownership or company name (including legal entity and assumed name modifications)?
- Any ATP Site name, address, email address, telephone, or fax;
- Any ATP Site Manager name, address, email address, telephone, or fax?
- Any ATP Website URL; or
- The number of Unity Certified Instructors employed or contracted at any ATP Site.
- Marketing. ATP shall use best efforts throughout the Term and across the Territory to market and promote the ATP Services and the Unity Offerings. To that end, ATP shall cooperate with and participate in certain Unity marketing events and activities, and utilize certain marketing collateral as provided by Unity from time to time in respect of the ATP Program or the Unity Offerings.
- Current Website. ATP shall ensure the ATP Website(s) contains current information regarding the Unity Offerings and its participation in the Unity ATP Program. Unity may periodically provide suggestions on the content and formatting of the ATP Website in furtherance of ATP’s conformity with this Section.
- Privacy. ATP shall not collect, store, process, disclose or transfer (collectively “Processing”) any Student Data, other than where and to the extent necessary to perform the ATP Services or participate in the ATP Program. Unless otherwise agreed in a prior writing signed by Unity or its agent, to the extent that ATP does any Processing of Personal Data of any Student (i) such Processing shall be in compliance with applicable law; (ii) ATP shall be responsible for making appropriate disclosures and obtaining any necessary consents from Students as required under law in respect of such Processing; and (iii) unless such Processing is requested directly by Unity, ATP agrees and confirms that it does not and shall not engage in such Processing, nor purport to do so, for or on behalf of Unity. ATP acknowledges and agrees that Unity or any Fulfillment Partner may individually collect, store, process, disclose or transfer any Personal Data of Students pursuant to the policies and procedures in place at Unity or Fulfillment Partner at such time and in accordance with applicable law.
- Service Performance and Customer Satisfaction. ATP shall cause ATP’s Services, Sites, Websites and instructors to meet such performance targets, including Unity Offering sales volumes and customer satisfaction criteria, as separately set out from time to time in the ATP Program Guide(s) or other communications from Unity.
- Student Feedback. Unity may collect feedback from Students regarding the Unity Offerings and/or ATP’s performance and compliance with the ATP Program, including Students and prospective ATP customers’ opinions and observations regarding the Unity Offerings and the ATP’s Services, Sites, Websites and instructors.
- Unity may review, individually or together with ATP, any complaint that Unity receives from a Student regarding ATP or any ATP Site, ATP Website or ATP instructor. The receipt by Unity of three (3) or more complaints in respect of the ATP, its Site, Website or instructors within a Program Year, which occurrence of such complaints will be notified to ATP in advance where permissible under law or court order, may be considered a material breach by ATP of this Agreement.
- Competing Products & Services. Unless otherwise expressly set out in this Agreement or a separate signed agreement with Unity, during the Term and in the Territory, ATP shall not offer to provide or provide via the ATP Sites, ATP Websites or otherwise:
- any software, courseware, training, workshop, exam, certifications or other educational content, materials or services in respect of any other game engine provider or any software which is competitive to Unity; or
- any ATP or third-party created courseware, training, workshop, exam, certification or other educational materials or services of which the subject matter and/or presentation is substantially similar to that of the Unity Offerings licensed to ATP under this Agreement or educational products and services as currently offered by Unity to any of its customers or students or prospective customers or students.
Any violation of Sections 12 or 14 shall be considered a material breach by ATP and will cause this Agreement to be subject to immediate termination by Unity.
Fees, Expenses & Reporting
- Fees & Costs; Pricing. ATP’s license to Unity’s Software, Products and Services and participation in the ATP Program is subject to those fees and costs as set out in Exhibit A, which ATP shall pay in accordance with the terms set out therein. ATP will be responsible for setting the prices charged to Students for any Unity Offerings sold by ATP hereunder, with consideration to Unity’s suggested retail price lists or published prices in the market where ATP operates.
- Currency and Account. All payments by ATP under this Agreement shall be in the currency and made to such account as separately indicated by Unity or its Fulfillment Partner, as applicable.
- Taxes. ATP shall pay or reimburse Unity for all national, federal, state, local, or other taxes and assessments of any jurisdiction, including value added taxes and taxes as required by international tax treaties, customs or other import or export taxes, and amounts levied in lieu thereof based on charges set, services performed or payments made hereunder, as are now or hereafter may be imposed under the authority of any national, state, local or any other taxing jurisdiction.
- ATP will not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to Unity under this Agreement. ATP shall not withhold any taxes from amounts payable to Unity under the Agreement without prior written consent from Unity, which shall not be unreasonably withheld.
- Many countries offer withholding exemption treaties with Denmark and withholding may be avoided. In such cases, Unity will provide ATP on written request with documentation sufficient to substantiate reduced (if any) withholding taxes subject international tax treaties. In the event any taxes are withheld upon written consent of Unity, ATP shall furnish Unity a tax withholding report detailing amounts due less withholdings within forty-five (45) days of making payment to Unity. Any unauthorized tax withholdings or failure to provide report detailing any withholding may result in unpaid amounts and subject to terms and conditions contained in this Agreement. In the event Unity is unable to obtain a complete credit for such withholding taxes against its taxes, ATP shall reimburse Unity for the difference upon thirty (30) days’ written notice by Unity.
- Expenses. Except only as expressly otherwise provided for in this Agreement, ATP shall be solely liable for any and all expenses and costs of any kind incurred by ATP or otherwise required in connection with exercise of any rights or obligations under this Agreement.
- Reporting. ATP shall submit written reports to Unity or the Fulfillment Partner, as applicable, in respect of the number and types of Students and Unity Offerings sold or provided to ATP in a given period. Additional reporting requirements may be as set out in the Guide(s) or as designated by the Fulfillment Partners.
Term and Termination
- Term. Provided it has not been terminated in advance in accordance with Section 22, this Agreement shall continue in force from the date of last signature by ATP and Distributor until the first anniversary of such date (the “Initial Term”), and thereafter be automatically extended for individual successive annual periods (each a “Renewal Term”), unless either party shall have otherwise notified the other party in writing of non-renewal no later than three (3) months prior to the end of the then in-effect Renewal Term (collectively, the “Term”).
- Termination. This Agreement may be terminated in advance of its expiration:
- by either party immediately with notice to the other party in the case of the other party’s material breach of the terms of this Agreement;
- by Unity on ten (10) days’ written notice (i) where the ATP Program is being terminated or (ii) on termination, end of life or other wind down of all or substantially all Unity Offerings licensed to ATP hereunder;
- by Unity or ATP for no cause upon thirty (30) days’ advance notice; or
- by Unity at any time in the event of any of the following: a receiver is appointed for ATP or ATP’s property, ATP makes an assignment for the benefit of its creditors, or any proceedings are commenced by, for, or against ATP under any bankruptcy, insolvency, or debtor’s relief law for the purpose of seeking a reorganization of such party’s debts, and such proceeding is not dismissed within sixty (60) calendar days of its commencement? or ATP is liquidated or dissolved.
- Consequences of Termination.
- Amounts Subject to the remainder of this Section, upon termination of this Agreement ATP shall remit all amounts due and outstanding to Unity in respect of ATP Program participation and Unity Offerings ordered by ATP. Notwithstanding the foregoing, fees and costs may not be paid in full where this Agreement is terminated:
- by Unity for cause and ATP is in possession of Unity Software, Products and/or Services that it is required to return in accordance with Section 23.2, in which case such amounts due and outstanding may be waived by Unity; or
- by ATP for cause, in which case ATP shall be entitled to receive, upon ATP’s written notice to Unity within ten (10) days of the effective date of termination, a prorated refund of any ATP Program Fee actually paid. Any such refund to ATP will be (i) subject to Unity deduction of any withholding taxes from such payment as required by applicable law; (ii) applied to the fee for the Program Year in which termination occurs based on the number of whole calendar months remaining in that Program Year from the effective date of termination to the date when that period would have ended but for termination; and (iii) paid within ten (10) business days of ATP’s proper notice to Unity. Where the ATP Program fee is due and outstanding, the amount payable by ATP shall be similarly prorated.
- Return of Products & Materials. In the event this Agreement is terminated by Unity for cause, ATP may be required to immediately return to Unity all Unity Offerings which have not been provided to a Student. Unity may issue refund or offset against amount owed the cost of the returned Unity Software, Products and/or Services where it deems appropriate under the circumstances.
- Termination of Authorizations. All authorizations and licenses granted under this Agreement in respect of the Unity Trademarks, Unity Offerings and other benefits of the any Unity program contemplated herein will terminate immediately on termination of this Agreement.
- Delivery Up of Confidential Information & Student Data. At Unity’s election and ATP’s expense, ATP shall immediately return to Unity (or a third-party designated by Unity) all copies of the Confidential Information and Student Data under its control and shall deliver to Unity a certificate of an authorized officer of ATP attesting to any such destruction.
- Survival. Sections 12, 15, 19, 22, 24, 25.3, 27, 29, 30, 31, 32, 36, 37, 38, 40 and 41 shall survive termination of the Agreement.
- Confidential Information.
- Nondisclosure; Restrictions on Use. ATP shall maintain in strict confidence all Confidential Information. ATP shall use Confidential Information only for the specific purpose of fulfilling ATP’s obligations or exercising ATP’s rights set out in this Agreement or the ATP Guide. ATP shall not use, nor permit or purport to authorize any third party to use, any Confidential Information for any purpose not specifically authorized in this Agreement.
- Safeguards. ATP shall take the same degree of care to safeguard the Confidential Information as it takes to safeguard its own confidential information, but no event less that reasonable care.
- Employee Access. ATP shall limit the use of and access to the Confidential Information to its bona fide employees and duly authorized representatives whose use or access is required in the ordinary course of the exercise by ATP of its rights or fulfillment of its obligations under this Agreement. ATP shall take appropriate steps, by instituting or maintaining written nondisclosure agreements with any employees and duly authorized representative to maintain the confidentiality of and to protect all Confidential Information from disclosure, publication and/or unauthorized use.
- Notices. ATP shall not remove any proprietary, copyright, mask work, trade secret or other notice or legend from any form of Confidential Information.
- Irreparable Harm. The parties hereto agree and acknowledge that misuse or disclosure of the Confidential Information shall cause irreparable harm to Unity its Affiliates, Fulfillment Partners and/or licensors. Unity its Affiliates, Fulfillment Partners and/or licensors shall be entitled to seek injunctive relief in respect of any misuse or disclosure of Confidential Information.
- Exceptions. The restrictions on the use of Confidential Information contained in this Section shall not apply to information that ATP can clearly show: (i) was already known to ATP at the time of disclosure? (ii) was independently developed by ATP without use of the Confidential Information? (iii) became known to ATP from another source without confidentiality restriction on subsequent disclosure or use? (iv) is or becomes part of the public domain through no wrongful act of ATP? or (v) is disclosed pursuant to any judicial or governmental request or order, provided that ATP takes reasonable steps to give Unity its Affiliates, Fulfillment Partners and/or licensors sufficient prior notice so that it may contest or limit any such request or order.
Representation and Warranties
- Warranties of ATP. ATP represents and warrants to Unity as follows:
- ATP has all requisite right and authority to enter into this Agreement and participate in the ATP Program;
- ATP’s and its employees’ and contractors’ performance of the obligations hereunder will not conflict with any agreements with or obligations to any third party?
- ATP shall comply with all applicable international, national, state, provincial, regional and local laws and regulations in exercising its rights or fulfilling its obligations hereunder, including, without limitation, the data security, privacy and export control laws applicable to ATP or in respect of any Unity Offering or Authorized System? and
- all information provided by ATP on any application hereunder or otherwise provided to Unity in relation hereto shall be accurate and complete.
- No Unity Warranties. THE UNITY SOFTWARE, UNITY PRODUCTS, UNITY SERVICES, ATP PROGRAM AND OTHER UNITY PROGRAMS REFERENCED HEREIN ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. UNITY, AND ITS AFFILIATES, FULFILLMENT PARTNERS AND LICENSORS MAKE NO WARRANTIES, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, RELATED TO OR ARISING OUT OF THIS AGREEMENT, THE ATP PROGRAM OR ANY OTHER UNITY PROGRAM CONTEMPLATED HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
- Acknowledgement of Ownership. ATP agrees and acknowledges that all right, title and interest in and to the Unity Offerings, the Unity Trademarks, the Confidential Information and any and all other documentation, materials, or things supplied by Unity or its Fulfillment Partners to ATP in any fashion and in any media, including all trademarks identified thereupon and any and all Intellectual Property Rights therein, shall be and shall remain vested in Unity or the Fulfillment Partner, as applicable.
- Use; Restrictions. ATP shall maintain Unity’ copyright and trademark notices on the Unity Offerings and will not alter, erase, deface, or overprint any such notice on anything provided by Unity. Subject only to the express rights granted herein and otherwise by Unity, ATP shall not, nor allow any other person (including any Student) to, use, copy, modify, broadcast, transmit, reproduce or otherwise exploit any of Unity’ intellectual property or other proprietary rights in any manner whatsoever without the express prior written consent of Unity. For the avoidance of doubt, ATP may not (i) use the Unity Trademarks in such a manner as to imply that any ATP or third-party content was authored or sponsored by Unity or (ii) use the Unity name, Unity logos, or any other confusingly similar marks on any product, service, website, printed content, merchandise or any other materials. Any breach of this Section 29 shall be a material breach by ATP and will cause this Agreement to be subject to immediate termination by Unity.
Indemnification and Limited Liability
- Limitation of Liability. UNITY, AND ITS AFFILIATES’, FULFILLMENT PARTNERS’ AND LICENSORS’ TOTAL, COLLECTIVE LIABILITY TO ATP FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF THE AMOUNTS PAID BY ATP HEREUNDER WITHIN SIX (6) MONTHS OF THE DATE OF THE CLAIM OR ONE HUNDRED U.S. DOLLARS (US$100). TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL UNITY OR ITS AFFILIATES, FULFILLMENT PARTNERS OR LICENSORS BE LIABLE TO ATP FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT UNITY OR ITS AFFILIATES, FULFILLMENT PARTNERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Indemnification. Except as expressly otherwise provided in this Agreement, ATP agrees to release, indemnify, defend and hold Unity and its Affiliates, Fulfillment Partners and licensors, and their respective directors, officers, employees, agents, and assigns, and any other organizations related to the ATP Program or any other Unity program, software, product or services referenced herein or provided to ATP in connection herewith, harmless from any and all claims, injuries, damages, expenses (including reasonable legal fees), or losses to person or property and/or liabilities of any nature that in any way arise from ATP’s exercise or attempted exercise of any rights hereunder, including (a) any condition caused by events beyond Unity or its Affiliates, Fulfillment Partners’ or licensors’ control that may cause administration of the Unity Offerings or ATP Services to be disrupted? (b) ATP’s or its employees’, contractors’, and agents’ negligence or willful misconduct? and (c) any breach by ATP of this Agreement.
- Employees. During the Term and for twelve (12) months thereafter, ATP shall not, directly or indirectly, solicit, recruit, or induce the employment of any employee or consultant of Unity or its Affiliates or Fulfillment Partners for itself or for any other company or individual without the express written approval of Unity or its Affiliates or Fulfillment Partners. The parties hereto agree that the following shall not constitute a breach of this Section: general advertisements for employment? use by ATP of an employee placement service that is not specifically directed at an employee or consultant of the other party? or unsolicited applications for employment from employees or consultants of Unity or its Affiliates or Fulfillment Partners.
- All notices under this Agreement shall be deemed served (i) when hand delivered? (ii) when delivered by email (if to Unity, at email@example.com or such other address as notified by Unity? if to ATP, at the email address designated by ATP for official contract notices), unless there is reason to believe that such email was not delivered to the correct recipient? (iii) upon delivery when sent by express mail, courier, overnight mail or other recognized overnight delivery service, charges prepaid? or (iv) seven (7) business days following the date mailed when sent by regular post, postage prepaid.
- ATP may not assign this Agreement or any of ATP’s rights or obligations hereunder, whether voluntarily or by operation of law, to any other person(s) or entity(ies) without the prior written approval of Unity, which may be withheld in Unity’s sole and absolute discretion, and any attempt to do so shall be null and void. Unity shall be considered a party to this Agreement, as represented through its undersigned Distributor. In the event of any removal of Distributor as Unity’s agent with respect to the management of ATP and distribution of Unity Offerings as described herein, this Agreement shall be automatically assigned, in full and without exception to Unity or its replacement distributor, as elected by Unity with notice to ATP.
- Relationship of Parties. Each party is acting as an independent contractor and not as an agent, partner or joint venturer with the other party for any purpose. Neither party shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other. Neither party shall hold itself out, either expressly, by implication or through its conduct, to any third party as having authority to bind or act on behalf of the other party.
- Representation by Counsel. ATP hereby certifies and represents that it has been, or had the opportunity to be, represented by counsel in the negotiation and completion of this Agreement.
- Irreparable Harm ATP acknowledges that the nature of computer software generally, intellectual property, proprietary property of Unity and/or its Affiliates, Fulfillment Partners or licensors may be rapidly diminished or destroyed. ATP acknowledges and agrees that violation of ATP’s obligations hereunder respecting the intellectual property, proprietary property of Unity or its Affiliates, Fulfillment Partners or licensors shall cause irreparable harm to Unity and/or its Affiliates, Fulfillment Partners and/or licensors and shall entitle Unity and/or its Affiliates, Fulfillment Partners and/or licensors to equitable relief (including injunctive relief on an expedited basis) forthwith.
- Waiver Not to Prejudice Rights. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter? nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. No waiver on behalf of either party of the breach of any of the covenants, conditions or provisions herein contained shall be effective or binding upon such party unless the same shall be expressed in writing and signed by both parties.
- In the event any provision in this Agreement wholly contravenes any applicable legislation existing from time to time or is deemed wholly unenforceable by a court of law, the offending provision(s) shall be deemed to be severed and the remainder of the Agreement shall remain in full force and effect and no provision shall be deemed to be dependent upon any other provision unless so expressed herein. In the event that a provision of this Agreement is invalid, illegal or incapable of being enforced, it shall be deemed to be amended and modified so that it is valid, legal and capable of being enforced to the greatest extent possible to the benefit of Unity.
- Force Majeure. Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. Such acts shall include, but not be limited to, acts of God, riots, acts of war, epidemics, failure of suppliers to perform, power failures, earthquakes or other disasters.
- Governing Law and Dispute Resolution.
- This Agreement will be governed by and construed in accordance with the laws of Denmark, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
- Except as set forth below in Section 41.5, any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, shall be settled by arbitration.
- ATP and Unity agree to arbitrate all disputes by simplified arbitration arranged by The Danish Institute of Arbitration in accordance with the rules of simplified arbitration procedure adopted by The Danish Institute of Arbitration and in force at the time when such proceedings are commenced.
- ATP and Unity further agree that any arbitration shall be conducted in each’s individual capacity only and not as a class action or other representative action, and each expressly waives the right to file a class action or seek relief on a class basis. ATP and Unity agree that each may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
- Notwithstanding ATP and Unity’s agreement to resolve all disputes through arbitration, either may bring an action in court (a) to enforce its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights), including to seek injunctive relief? or (b) in cases that do not involve intellectual property rights, to seek temporary, preliminary or other expedited or provisional injunctive relief (but not money damages). If ATP and Unity have an intellectual property rights dispute, ATP and Unity agree to submit to the personal and exclusive jurisdiction of and venue in the courts located in Copenhagen, Denmark. ATP and Unity agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
- Entire Agreement. ATP agrees to be bound to the terms and conditions of this Agreement that, together with its Exhibits and any master agreement between ATP and Distributor to which this Agreement is attached, constitute the complete and entire agreement of Unity, Distributor and ATP and supersede all previous communications, oral or written, between any of Unity or Distributor and ATP relating to the subject matter hereof. No representations or statements of any kind made by either Unity, Distributor or ATP that are not expressly stated herein, or in any master agreement to which this Agreement is attached, shall be binding on such party. Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by Unity or Distributor and ATP. For the avoidance of doubt and notwithstanding anything to the contrary in the foregoing, ATP acknowledges and agrees that it may be subject to additional terms and conditions in respect of any Unity Offerings provided by a Unity distributor or Fulfillment Partner through which ATP purchases or receives the ATP Offerings. In the event of a material contradiction between any separate terms with a distributor or Fulfillment Partner, with respect to Unity’s Intellectual Property Rights and requirements for participation in the Unity ATP Program, this Agreement shall prevail.
- The parties hereto have expressly required that the present Agreement and any attachments be drawn up in the English language. In addition to the execution of this English form of Agreement, this Agreement may be translated into another language and executed by the parties hereto. However, in the event of any inconsistency between the English version hereof and the foreign translation, the English version shall prevail and govern in all respects.
- Execution in Counterparts. This Agreement may be executed in two or more counterparts (by original or facsimile signature), each of which shall be deemed to be an original but all of which together shall constitute one and the same Agreement.
ACKNOWLEDGED AND AGREED:
Subject to ATP’s full compliance with the terms of this Agreement, ATP is authorized to use the Unity Marks to in conjunction with the ATP Services to market, promote, offer, sell and distribute, as applicable, the Unity Offerings listed above in the following regions and countries (this list is exhaustive and may not be updated by ATP or any party without express written consent of Unity): _______________________________________(the “Territory”).
ATP’s method of distribution (e.g. in-person at ATP Sites, telephonically, electronically via ATP Websites or otherwise) of Unity Offerings will be as designated by Unity in writing to ATP or Distributor and subject to all applicable End User Terms.
- Pricing; Fees & Costs.
The following fees and costs in respect of Unity Offerings and participation in the Unity ATP Program will be assessed by Unity and payable in accordance with the Payment Terms below:
- ATP Program Fee. For each Program Year, ATP will be obligated to pay the annual fee as designated by Unity in separate writing (the “ATP Program Fee”) in order to participate in the ATP Program for such Program Year. Except as otherwise designated in the Agreement, the ATP Program Fee shall be non-cancellable and non-refundable.
- ATP’s Unity Software Use. Unity may provide free education versions and/or not-for-resale versions of Unity Software to ATP for use in performance of its obligations set out in this Agreement. Such education and not-for-resale versions of Unity Software shall be used by ATP’s personnel or agents only and may not be redistributed to Students.
- Unity Education Products & Costs. ATP may purchase from Unity or its Fulfillment Partner and distribute to Students certain Unity education products and related materials, inclusive of courseware, workshops, training, examination, certification and other educational products, at the prices provided separately by Unity or its Fulfilment Partners. ATP will price and sell such Unity Products and Materials to Students with consideration to Unity’s price recommendations or publicly-available retail prices.
- Unity Services & Costs. ATP may purchase from Unity or its Fulfillment Partner and sell to Students certain Unity Services as agreed by the parties in a Statement of Work or other writing. Unless otherwise specified, the Unity Services will be performed by Unity personnel, a Unity Certified Instructor, or other Unity-designated agents. Any professional services to be provided to ATP or Students by Unity, Unity Certified Instructor or other Unity agent may carry separate fees and costs which are additional to the prices ATP charges Students for the ATP Services. All Unity Services costs and end-user pricing suggestions will be as quoted separately to ATP in advance of any marketing and sale of such Unity Services to prospective ATP customers or Students.
- Payment Terms.
Unless otherwise specified in this Exhibit A, all fees in respect of Unity Offerings listed herein will be due net thirty (30) days from Unity’s issuance of an invoice to ATP. Fees will not be subject to offset or discount unless expressly designated by Unity. All contrary terms provided in any ATP purchase order or related sales or order materials is expressly disclaimed and will be considered void. Notwithstanding the foregoing, any Unity Products or Unity Services sold through a Fulfillment Partner or Unity distributor may be subject to different payment terms than those set out in this Section C.