Advocate Program Terms and Conditions

20201013

1. Definitions. Capitalized terms appearing in the Guidelines shall have the meaning defined therein. Additionally

1. Advocate means the company submitting the Deal Registration.
2. Agreement means the Advocate Agreement, the Guidelines, together with these Terms.

2. Commissions. Deltek shall pay to Advocate the Commissions as set forth in the Advocate Program Guidelines. The Commission will be less any incidental expenses (“Incidental Expenses”) “Incidental Expenses” means (a) costs attributable to sales, use, value-added, excise and other taxes, customs duties and other governmental charges; and (b) returns or credits. Advocate will be responsible for all taxes, duties, VAT charges and similar taxes and fees which are levied or imposed by reason of Commissions paid to Advocate, including but not limited to taxes on Advocate’s income.

3. Unauthorized Representations; No Authority. Advocate shall refrain from making any representations, warranties or guarantees to Referral Leads with respect to the specifications, features or capabilities of Deltek’s product offerings that are deceptive, misleading or otherwise inconsistent with the literature distributed by Deltek with respect thereto. Advocate is not the agent of Deltek and has no authority to execute contracts on Deltek’s behalf. Advocate agrees to take all commercially reasonable steps to preserve and protect the goodwill and reputation of Deltek. Advocate shall not engage in any conduct which may damage Deltek’s reputation. This Agreement is non-exclusive. The parties understand and agree that Deltek has the right to solicit Referral Leads directly and to appoint any number of additional representatives or agents to provide leads to Deltek.

4. Representations and Warranties; Disclaimer. Each party represents and warrants that in its performance of any obligations or services contemplated under this Agreement that such party shall comply with all applicable laws, rules and regulations. OTHER THAN THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY OR TO ANY PERSON OR ENTITY WITH RESPECT TO THE OTHER PARTY’S PRODUCT OFFERING OR OTHERWISE, AND EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, TITLE, NON-INFRINGEMENT, AND QUALITY OF SERVICE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, DELTEK EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, FUNCTIONALITY, OR ANY OTHER ASPECT OF THE DELTEK PRODUCT OFFERING THAT DELTEK DEVELOPS OR PROVIDES HEREUNDER.

5. Limitation of Liability. EXCEPT FOR ADVOCATE’S BREACH OF SECTION 3 (“UNAUTHORIZED REPRESENTATIONS; NO AUTHORITY”), SECTION 7 (“COMPLIANCE”) OR SECTION 8 (“CONFIDENTIALITY”), (i) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF AND (ii) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE BY THE OTHER PARTY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.

6. Term and Termination. The term of this Agreement shall begin on the Effective Date and shall continue until terminated in accordance with the Program Guidelines. Sections 2, 3, 4, 5, 6, 7, 8, and 9 shall survive the termination of this Agreement. Any referrals received and accepted by Deltek prior to the effective date of termination shall be honored and payment made pursuant to the terms of this Agreement.

7. Compliance and Screening. Advocate shall comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, the anti-corruption laws of other countries, the U.K. Modern Slavery Act and the anti-slavery laws of other countries, to the extent applicable. Advocate hereby represents and warrants that, in its performance under this Agreement Advocate has not, and will not at any time, directly or indirectly (through a subcontractor or other third party), pay, offer, give or promise to pay or give, or authorize the payment of, any monies or any other thing of value to influence the improper performance of any individual government officials and employees of state-owned enterprises. Advocate shall promptly inform Deltek in writing upon becoming aware of any violations of laws in connection with this Agreement. Advocate hereby acknowledges and agrees that any violation by Advocate of this Section will constitute a material breach of this Agreement. In the event of such a violation, Deltek will have the right to terminate this Agreement, without any liability whatsoever to Advocate, immediately upon providing written notice of termination to Advocate. Termination of this Agreement by Deltek under this section shall be in addition to, and not in lieu of, Deltek’s other legal rights and remedies. Advocate understands that its compliance practices will be reviewed periodically by Deltek and that Deltek will conduct due diligence with respect to Advocate to ensure Advocate’s eligibility to participate in the Advocate Program.

8. Confidentiality. Each party agrees that all information of a confidential nature received from the other party before, during and after the conclusion of this Agreement shall remain confidential (“Confidential Information”). Information related to pricing, discounts, referrals’ information or if designated as confidential by either of the parties will be deemed Confidential Information.

9. General Provisions.

1. Independent Contractor. The parties are independent contractors. Advocate shall not have, and shall not represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of Deltek. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
2. Advocate Code of Conduct. Advocate acknowledges that it has read and understands the expectations expressed in the Advocate Code of Conduct.
3. Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of Delaware, U.S.A., without regard to any conflicts of laws provisions. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. The parties agree that any and all disputes arising out of or in any way relating to this Agreement shall be resolved according to Delaware law and exclusively settled by final and binding arbitration in accordance with the American Arbitration Association ("AAA") Commercial Arbitration Rules. A single arbitrator appointed as provided in the AAA Commercial Arbitration Rules will be an attorney experienced in computer software, licensing, and information technology disputes. The arbitrator will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions concerning the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this Agreement to arbitrate. The arbitration proceeding shall be conducted in the English language and shall occur in the Washington, DC metropolitan area, or, with the consent of the arbitrator and parties, another mutually agreeable metropolitan area. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitrator may be entered by any court of competent jurisdiction. Notwithstanding the foregoing, in the event of a breach or alleged breach of Section 8 (“Confidentiality”) of this Agreement, Deltek shall be entitled to seek injunctive relief. The parties further agree that the prevailing party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration proceeding, will be entitled to recover its costs and attorneys’ fees, whether by in-house legal staff or outside counsel.
4. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
5. Notice. Unless otherwise specifically provided, all notices required or permitted by this Agreement may be delivered personally, faxed, email, or sent by a nationally recognized overnight courier. Such notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after confirmed email. Notices to Deltek shall be sent to Deltek at: Deltek, Inc., 2291 Wood Oak Drive, Herndon, VA 20171, Attention: General Counsel, or by email to: [email protected] and to Advocate via email to the primary registered contact with Deltek. Notices to Advocate shall be addressed to Advocate to the attention of the contact and at the address listed on the Advocate Program Agreement or by email to the email address provided on the Advocate’s most recent Deal Registration. This Agreement, including any exhibits, represents the entire agreement of the parties, and supersedes any prior or contemporaneous understandings, whether written or oral.
6. Entire Agreement. This Agreement may not be amended, waived or modified execpt as expressly provided herein or in writing by the parties. Neither party shall assign any of its rights, or delegate any of its obligations, under this Agreement, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.
7. Counterparts. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.