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Reseller Participation Agreement
Intel® Enabled Server Acceleration Alliance Program

This Intel® Enabled Server Acceleration Alliance Agreement is entered into by and between Intel Corporation ("Intel") and the Participant ("Participant", "You," "Your," or "Yourself"), identified in Section 1, participating in the Intel® Enterprise Server Acceleration Alliance Program ("Program").

RECITALS

WHEREAS, Intel designs and manufactures products for use in enterprise-class servers and solutions;

WHEREAS, Intel would like to enhance the certification process for enterprise-class server adoption and facilitate the design and development and sale by others of enterprise-class servers based on Intel server building blocks ;

WHEREAS, Participant is an independent Intel channel member or a regional server original equipment manufacturer that designs, manufactures, sells, and distributes products for use with or consisting of enterprise-class servers based on Intel server building blocks;

NOW, THEREFORE, for and in consideration of the mutual covenants and promises contained in this Participation Agreement and its Exhibits ("Agreement"), Participant and Intel agree as follows:

This Agreement is mandatory and required in order to allow You to use and affix the Licensed Logo (as defined below) subject to the Usage Guidelines specified in Exhibit B. Use by any person or entity of the Licensed Logo is not authorized and constitutes an infringement of Intel's exclusive rights in Intel Trademarks unless You have accepted and acknowledged the terms below and have provided the required contact information. This Agreement is not valid unless and until You receive notification from Intel. You may print out a copy of this Agreement for Your records.



1. Information About Participant's Business. Provide Your name, address, telephone number, fax number, and email address (collectively, the "Information") in the space provided below.



If any of the Information provided in Sections 1.1 through 1.14 changes for any reason, You must update such Information. Your Information may be updated by editing your Profile.

2.0 Definitions:

2.1 "Certify," "Certified," and "Certification" mean, with respect to a Participant IHV or ISV's product(s), that the Participant has validated and confirmed that the Participant's product(s) meets or exceeds the Participant's minimum requirements or standards for product performance, reliability, and functionality when used with specific Intel server building block components as specified in a Recipe and thus have become Recipe Product(s).
2.2 "Collaboration Activities" means the activities and undertakings agreed by You and Intel specific to Your participation in the Program. Collaboration Activities are set forth in Exhibit C.
2.3 "ESAA Website" means the Program website generally available to Participant(s) via user ID's and passwords provided by Intel upon Participant's execution of the Agreement and Intel's acceptance of Participant in the Program.
2.4 "Intel Products" means any Intel products, including but not limited to, Intel server building blocks, the Intel® Xeon® processor MP, Itanium® 2 product family, and Intel® server processor blade designs.
2.5 "Intel Trademarks" means the INTEL®, INTEL® XEON®, ITANIUM®, ITANIUM® 2 word marks and logos, the Licensed Logo and any other Intel owned trademark.
2.6 "Licensed Logo" means the Intel® Enabled Server Acceleration Alliance Program logo depicted in Exhibit A and licensed to Participant under the terms of this Agreement.
2.7 "Licensed Materials" means any advertising, promotional, and/or merchandising materials and artwork, if any, prepared by Intel and provided to Participant. Licensed Materials may or may not display the Licensed Logo, and may or may not be provided to Participant by Intel, in Intel's sole discretion.
2.8 "Program" means the Intel® Enabled Server Acceleration Alliance Program, into which Participant may be accepted by Intel upon execution of this Agreement.
2.9 "Recipe" shall mean Intel's document detailing specific hardware and/or software configurations, and any other design requirements for an Intel-based enterprise-class server supported in the Program. Recipes will be made available to Participants through the ESAA Website.
2.10 "Recipe Product" means (a) an Intel-based enterprise-class server built to the exact specifications of a Recipe and (b) the hardware or software products of a Participant IHV or ISV that have been validated and certified by such a Participant as meeting or exceeding the Participant's minimum requirements or standards for product performance, reliability, and functionality when used with specific Intel server building block components as specified in a Recipe.
2.11 "Usage Guidelines" means the Intel® Enabled Server Acceleration Alliance Member Mark Usage Guidelines set forth in Exhibit B, providing for the proper usage of the Licensed Logo.
3. Program Overview. The Program has been implemented by Intel as a convenience to and free of charge for Participants. The Program is intended to facilitate the certification and sale of Recipe Products, including Intel-based enterprise-class servers related Participant products. Under this Program, Intel works directly with IHV and ISV Participants to facilitate the certification by such Participants of their respective software or hardware products in connection with specific Intel server building block configuration. Once an IHV or ISV Participant has certified the use of its product(s) with Intel server building block configuration, Intel will work with the certifying Participant to prepare and make available a configuration and design-specific Recipe that OEM Participants may utilize, and thereby leverage such validation and certification without need for duplicative efforts. Participants may obtain certain benefits as defined herein and may be licensed to use the Licensed Logo and Licensed Materials in accordance with this Agreement. You agree to collaborate with Intel to carry out the Collaboration Activities set forth on Exhibit C. Requests for modification of a Recipe may be sent to esaamail@intel.com for consideration by Intel and the affected Participants. Failure by Intel to reply to a request for a modification of the Recipe shall not constitute acceptance of the proposed modification. Recipes cannot be modified by Participant without prior written approval from Intel's Program account manager. Participation in the ESAA program is conditioned upon a Participant joining and maintaining a membership in TSANet (tsanet.org) for purposes of multi-vendor support, at Participant's sole expense.
4. Confidential Information. The parties may from time to time disclose confidential information. Disclosure of confidential information shall be subject to the terms and conditions of the Corporate Nondisclosure Agreement ("CNDA") or other applicable nondisclosure agreement in effect between the parties. You may not disclose the contents of this Agreement without prior written approval from Intel.
5. Licenses and Rights.
5.1. License Grant: Subject to and conditioned upon Your acceptance by Intel into the Program and Your full compliance with this Agreement, including without limitation Sections 6, 7 and 8, and Exhibit B (Usage Guidelines), Intel hereby grants and You accept a limited, worldwide, nonexclusive, non-transferable, royalty-free, revocable license to use the Licensed Logo and Licensed Materials for the Program solely to market, promote, advertise, and sell Your Recipe Products and to indicate Your support of the Intel server building block component configuration(s) specifically related thereto. No other right, title, or license is granted hereunder.
5.2Permission to Use Participant's Logo. You hereby grant to Intel permission to display Your name and/or logo on the ESAA Website and/or Program marketing materials to indicate Your participation in the Program. Intel agrees to use Your name and/or logo in the exact form as provided by You, and subject to reasonable usage guidelines that you provide to Intel's Program account manager.
6. Quality of Products and Services.
6.1You may use the Licensed Logo and Licensed Materials only in connection with the promotion, marketing, advertisement, and sale of Your Recipe Products that (a) are commensurate with Your overall reputation for high-quality products; (b) meet the quality and performance standards customary in the enterprise-class server industry; and (c) are otherwise in compliance with Section 10 below.
6.2You represent and warrant that Your products with which you use the Licensed Logo meet the requirements and specifications detailed in an applicable Recipe. You further warrant and represent that You shall use the Licensed Logo and Licensed Materials only in connection with Your Recipe Products.
7. Proper Usage.
7.1 Participants agree to comply with the Usage Guidelines for the Licensed Logo as set forth in Exhibit B. Intel may, in its sole discretion, revise and update the Usage Guidelines from time to time and with thirty (30) days notice to You.
7.2Participant further agrees that it shall not alter the Licensed Logo or any other trademarks owned by Intel in any way or integrate any Licensed Logo or Intel Marks into its own trademarks, logos or designs. You may proportionally resize the Licensed Logo in accordance with the guidelines provided in Exhibit B. Intel reserves the right to modify the Licensed Logo from time to time in its sole discretion. Within thirty (30) days of receiving notice from Intel of any modification to the Licensed Logo, You agree to adopt and use the Licensed Logo as modified by Intel and to promptly phase out and discontinue all use of any prior version of the Licensed Logo.
7.3 Participant is expressly prohibited from using the Licensed Logo on products and product packaging.
7.4 In all manners of use and display of the Licensed Logo, Your name and brand shall always be displayed in a manner that is larger and more prominently displayed than the Licensed Logo. You agree that You shall not use the Licensed Logo in any manner that creates confusion that Intel is the source of, or sponsor of, the Recipe Products, or that in any way indicates to the public that You are a division or affiliate of Intel or otherwise related to Intel.
7.5 You shall display the Licensed Logo only in a positive manner. You will not use the Licensed Logo or Intel Trademarks in any way that disparages Intel, its products or services, or in any manner which would diminish or otherwise damage Intel's goodwill, including, but not limited to, uses which could be deemed to be obscene, pornographic, excessively violent, or otherwise in poor taste or unlawful, or which purpose is to encourage unlawful activities.
7.6 Licensed Materials are for use solely by You. Transfer or copying of Licensed Materials is expressly prohibited.
7.7 You shall attribute to Intel ownership of all Intel Trademarks by using the TM or ® symbol after each trademark as appropriate and by using the following trademark attribution in the shipping documents, user manuals, and promotional materials for all Recipe Products, and in all other materials bearing the Licensed Logo: "Intel® is a trademark or registered trademark of Intel Corporation or its subsidiaries in the United States and other countries."
7.8 This license covers only the applicable Licensed Logo depicted in Exhibit A and the artwork and graphic files which will be provided to You by Intel. Use of any artwork or graphic files from any other source is prohibited. You may not use any other trademark owned by Intel in any advertising or promotional materials prepared by You or any third party, except as agreed separately in writing by Intel. However, the limitations in this Section 7.8 do not prohibit textual use of Intel product names (e.g., Intel® Xeon® processor) to accurately refer to Intel products that You are selling, so long as such product names are used properly as trademarks with the appropriate trademark symbol and attribution legend as required by the Usage Guidelines and Section 7.7 of this Agreement.
8. Right to Review and Inspect. With ten (10) day advance notice to You, Intel shall have the right to inspect Your Recipe Products, associated collateral, advertising and promotional materials, and manufacturing and sales premises, to ensure that You are in full compliance with Your obligations under this Agreement, and to ensure the quality of the Recipe Products and to determine whether they meet the definition of Recipe Products under this Agreement. You agree to cooperate fully with any such inspection by Intel and provide Intel with reasonable access to sales and manufacturing premises and to any requested materials in order to allow Intel to exercise the right to inspect.
9. Protection of Interest.
9.1 Acknowledgment of Rights: You acknowledge Intel's exclusive rights in the Intel Trademarks and Licensed Materials, and all goodwill associated with the Intel Trademarks. You further acknowledge that any and all use of the Intel Trademarks and Licensed Materials by You inures solely to the benefit of Intel. You shall not challenge Intel's exclusive rights in and to the Intel Trademarks and Licensed Materials. You shall not do anything that might harm the reputation or goodwill of Intel or the Intel Trademarks. You shall take no action inconsistent with Intel's rights in the Intel Trademarks and Licensed Materials. You shall not adopt, use, or register any corporate name, trade name, trademark, service mark, or other designation confusingly similar to the Intel Trademarks or that incorporates in any way the Intel Trademarks. If at any time You acquire any rights in, or registration(s) or application(s) for, the Intel Trademarks or Licensed Materials by operation of law or otherwise, You will immediately and at no expense to Intel assign such rights, registrations, or applications to Intel, along with any and all associated goodwill.
9.2 Enforcement. In the event You become aware of any unauthorized use of the Licensed Materials or the Licensed Logo by a third party, You shall promptly notify Intel in writing, and shall cooperate fully, at Intel's expense, in any enforcement of Intel's rights against such third party. The right to enforce Intel's rights in the Licensed Materials and the Licensed Logo rests entirely with Intel and shall be exercised in Intel's sole discretion; You shall not commence any action or claim to enforce Intel's rights in the Licensed Materials and Licensed Logo.
10.Conduct of Business. You agree that in connection with your status as a Participant to: (a) conduct business and provide services in a manner which reflects favorably at all times on the products, services, goodwill and reputation of Intel and any affected Participant(s); (b) conduct business and provide products and services in compliance with applicable laws; (c) not to engage in deceptive, misleading, or unethical practices; (d) not to make any statements, representations, warranties or guarantees with respect to Intel products or on behalf of other Participants and/or their Recipe Products; (e) to provide support and services that meet the quality and performance standards customary in the industry; and (f) to maintain the requirements for sustained membership in the Program as set forth herein and to immediately notify Intel in the event of a change in circumstances as relates to Your continuing membership in the Program. Notwithstanding anything in this Agreement to the contrary, Intel retains the right to revoke, not to grant, or not to renew Your participation status and or Your license to use the Licensed Logo if Intel determines in its sole discretion that Your participation status or use of the corresponding Licensed Logo may adversely affect Intel in any way.
11. Indemnity. You agree to indemnify, defend, and hold Intel harmless from all loss, cost, liability, and expense incurred by Intel and any of its subsidiaries or affiliated entities which arise out of a claim concerning Your use of the Licensed Marks or Licensed Materials in violation of this Agreement or Your design, manufacture, use, certification, marketing, advertising, sale, or provision of Your Recipe Products. Intel agrees to provide You prompt notice of any such claim and shall provide You with reasonable assistance (at Your expense) in the defense or settlement of such claims.
12. Disclaimer by Intel. THE LICENSED LOGO, THE LICENSED MATERIALS, AND THE RECIPES ARE PROVIDED "AS-IS" AND WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OF THE VALIDITY OF INTEL'S RIGHTS IN THE LICENSED LOGO AND/OR LICENSED MATERIALS IN ANY COUNTRY. INTEL DISCLAIMS ANY AND ALL WARRANTIES THAT MIGHT BE IMPLIED BY APPLICABLE LAW. PARTICIPANTS PARTICIPATE IN THE PROGRAM AND USE RECIPES ENTIRELY AT THEIR OWN AND SOLE RISK.
13. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA AND THE LIKE) ARISING OUT OF THIS AGREEMENT, THE PROGRAM, AND/OR THE USE OR INABILITY TO USE THE PROGRAM AND/OR ANY RECIPE, EVEN IF INTEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INTEL SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF THE PARTICIPATION OR ACTIVITIES OF ANY PARTICIPANT.
14. Term and Termination.
14.1 Term: This Agreement shall remain in effect until its expiration or termination as provided herein.
14.2 Termination: Either party may terminate this Agreement with or without cause upon thirty (30) days advance written notice. Either party may immediately terminate this Agreement for breach by the other party upon written notice. Opportunity to cure the breach may be given, but is not required under this Agreement. In addition to any rights it may have under this Agreement, or in law, equity or otherwise, Intel may terminate this Agreement immediately (including Your use of the Licensed Logo) upon the occurrence of any one or more of the following events: (a) You fail to produce Recipe Products built to the specifications listed in a Recipe; (b) You otherwise fail to perform any of Your obligations under this Agreement, including without limitation, Collaboration Activities and the terms related to use of the Licensed Logo and Licensed Material; (c) You discontinue providing services and support for Intel Products or Your Recipe Products; or (d) a government agency or court finds that products or services provided by You in connection with the Intel Products or the Program fail to comply with applicable laws or regulations, or are defective or improper in any way, manner or form.
14.3 Expiration: This agreement will expire in the event that any party ceases to do business for any reason. In the event that any party discontinues business, becomes insolvent, has a receiver appointed, goes into liquidation, or becomes party to any action relating to the bankruptcy or insolvency which is instituted and not dismissed within thirty (30) days, or the party's trustee in bankruptcy or debtor in possession fails to assume this Agreement within thirty (30) days after filing of a bankruptcy petition, the solvent party shall have the option to either (a) cancel the Agreement or (b) continue this Agreement without waiving any rights or remedies it may otherwise have.
14.4 Effect of Expiration or Termination: Upon any termination or expiration of this Agreement, Participant shall immediately: (i) cease all use and display of the Licensed Logo, even if Participant continues to receive materials from Intel after termination or expiration, and (ii) within thirty (30) days after the date of such termination, will return to Intel all materials, badges or other collateral containing or displaying the Licensed Logo to Intel.
14.5 Continuing Obligations: Upon termination, obligations of the parties under the provisions of Sections 2, 4, 9, 11, 12, 13, 14.4, 14.5, 15, 16, 17, 19, 20, 21, and 22 shall remain in force notwithstanding the termination or expiration of this Agreement.
15. Assignment. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties hereto. The rights granted to Participant hereunder are personal, and Participant may not assign this Agreement or any right or obligation hereunder, whether in conjunction with a change in ownership, merger, acquisition, the sale or transfer of all, or substantially all or any part of Your business or assets, or otherwise, either voluntarily, by operation of law, or otherwise, without the prior written consent of Intel, which Intel may give or withhold in its sole discretion. Any such purported assignment or transfer shall be deemed a material breach of this Agreement and shall be null and void.
16. Choice of Law and Jurisdiction; Language.
16.1 In the U.S., this Agreement and all actions for the breach thereof, will be governed by the laws of the State of Delaware, without regard or application to choice of law rules or principles. The parties further acknowledge and agree that any non-contractual cause of action that either party may assert, including but not limited to trademark infringement, trademark dilution, passing off, false designation of origin, unfair competition and other non-contractual causes of action, will be governed by U.S. federal law and the law of the State of California. Any dispute arising out of this Agreement shall be brought in, and the parties consent to personal and exclusive jurisdiction of and venue in the Federal District Court in San Jose, California.
16.2 For Participants located in the Russian Federation, the validity, construction and performance of this Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of laws principles. Any dispute and controversies that may arise out of or in relation to this Agreement shall be subject to consideration, to the exclusion of the courts of law, by the Arbitration Court in Stockholm, Sweden, in accordance with the rules of procedure of the arbitration Institute of the Stockholm Chamber of Commerce. The Court's award shall be final and binding on the parties.
16.3 For Participants located in Europe, the Middle East or Africa (except Russia), the validity, construction and performance of this Agreement shall be governed by the laws of England, without reference to conflict of laws principles. Any dispute arising out of this Agreement shall be brought in and the parties consent to personal and exclusive jurisdiction of the London, England courts. Notwithstanding the foregoing, if in Intel's sole judgment, Intel needs to protect and/or enforce its intellectual property rights, Intel shall have the right (a) to bring action for breach of this Agreement in Participant's home country and/or (b) to pursue all civil and criminal legal remedies, including preliminary and permanent injunctive relief, to protect and enforce Intel's intellectual property rights in Participant's home country.
16.4 For Participants located in Latin America, the validity, construction and performance of this Agreement shall be governed by the laws of the State of Delaware and the United States of America, without reference to conflict of laws principles. Any dispute arising out of this Agreement shall be brought in, and the parties consent to personal and exclusive jurisdiction of and venue in, the state and federal courts within Santa Clara County, California. Notwithstanding the foregoing, if in Intel's sole judgment, Intel needs to protect and/or enforce its intellectual property rights, Intel shall have the right (a) to bring action for breach of this Agreement in Participant's home country and/or (b) to pursue all civil and criminal legal remedies, including preliminary and permanent injunctive relief, to protect and enforce Intel's intellectual property rights in Participant's home country.
16.5 For Participants located in the Asia Pacific Region (except the Philippines), the validity, construction and performance of this Agreement shall be governed by the laws of Hong Kong, without reference to conflict of laws principles. Any dispute arising out of this Agreement may be brought in, and the parties consent to the non-exclusive jurisdiction of and venue in, the Hong Kong courts. Notwithstanding the foregoing, if in Intel's sole judgment, Intel needs to protect and/or enforce its intellectual property rights, Intel shall have the right (a) to bring action for breach of this Agreement in Participant's home country and/or (b) to pursue all civil and criminal legal remedies, including preliminary and permanent injunctive relief, to protect and enforce Intel's intellectual property rights in Participant's home country.
16.6 For Participants located in the Philippines, the validity, construction and performance of this Agreement shall be governed by the laws of the Philippines, without reference to conflict of laws principles. Any dispute arising out of this Agreement may be brought in, and the parties consent to the non-exclusive jurisdiction of and venue in, the Philippine courts.
16.7 All performance under this Agreement shall be in English.
17.Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination shall not affect the validity of the remaining provisions unless Intel determines in its discretion that the court's determination causes this Agreement to fail in any of its essential purposes.
18. Waiver. The failure of any party to enforce at any time the provisions of this Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of any party to enforce each and every such provision thereafter.
19. Equitable Relief. Participant recognizes and acknowledges that its breach of any of the covenants, agreements, or undertakings hereunder will cause Intel irreparable damage, which cannot be readily remedied by monetary damages in an action at law, and may, in addition thereto, constitute an infringement of Intel's trademark/service mark rights and rights under the laws of unfair competition. Accordingly, in the event of any default or breach by Participant, including any action by it which could cause some loss or dilution of Intel's goodwill, reputation, or rights in the Licensed Logo or Licensed Materials, Intel shall be entitled to an immediate injunction in addition to any other remedies available, to stop or prevent such irreparable harm, loss, or dilution.
20. Relationship of the Parties. No agency, partnership, joint venture, franchise, or employment relationship is created between Intel and Participant as a result of this Agreement or Your participation in the Program. Intel and You are independent contractors and You agree that You will not represent Yourself as an agent, franchisee or legal representative of Intel. Neither party has any express or implied right or authority to assume or create any obligations on behalf of the other party.
21. No Endorsement. Participant acknowledges that Intel makes no claims on behalf of Participant as to the quality of the products or services that Participant offers. Participant shall make no claims that Intel endorses Participant's products or services.
22. Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversations, and/or discussions between the parties relating to this Agreement and all past courses of dealing or industry customs.
23. Order of Precedence. Intel's implementation and administration of this Program may vary from country to country. The sale of Intel Products shall be governed exclusively by the terms and conditions of Intel's standard terms and conditions of sale.
24. Modifications. This Agreement may not be modified by You except in a writing signed by authorized representatives of both parties. Notwithstanding the foregoing, Intel reserves the right to alter, revise, amend or cancel the Program and this Agreement at its sole discretion and such changes shall be effective upon notification to You. Your continuing participation in the Program constitutes Your acceptance of the then current Agreement.
By checking this box, I hereby accept the terms and conditions of this Agreement.