This Reseller Agreement is a legal agreement between the entity entering into this Agreement (“Reseller” or “You”) and Cybereason Inc., a Delaware corporation with offices located at 200 Clarendon Street, Boston, MA 02116 USA (“Cybereason” or “Company”).
BY CLICKING “I ACCEPT,” “YOU” REPRESENT THAT (i) YOU HAVE THE AUTHORITY TO LEGALLY BIND RESELLER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT , (II) YOU HAVE READ THESE TERMS AND CONDITIONS AND (III) HEREBY AGREE ON BEHALF OF THE RESELLER TO COMPLY AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. SUBJECT TO THE NOTIFICATION OF CYBEREASON EXPRESSLY APPROVING RESELLER AS AN AUTHORIZED RESELLER OF CYBEREASON, THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE RESELLER CLICKS “I ACCEPT.”
Cybereason and Reseller are sometimes collectively referred to as the “Parties” and singularly as a “Party”.
In consideration of the promises and the mutual agreements set forth herein, and intending to be legally bound, the parties hereby agree as follows:
1.1 “Anti-Corruption Laws” means: (i) the U.S. Foreign Corrupt Practice Act(ii) the UK Bribery Act 2010; and (iii) any anti-bribery or anti-corruption provisions in the criminal, anti-competition, anti-bribery, anti-money laundering and/or anti-corruption laws of the Territory and the jurisdictions in which each of the Parties to this Agreement operate, together with any amending, consolidating or successor legislation or case law which has effect from time to time in the relevant jurisdiction.
1.2 “Business Partner Code of Conduct” means the Cybereason Business Partner Code of Conduct, as may be amended from time to time, available at https://www.cybereason.com/business-partner-code-of-conduct.
1.3 “Confidential Information” means, any information, data or knowledge of any kind and in any form and however disclosed, presented or displayed, by a Party hereto and/or any of its affiliates (“Disclosing Party”) to the other Party (the “Receiving Party”) and which is not generally available to the public, including products and services (and any related documentation), computer programs, business information, trade-secrets, methodology, know-how, marketing and other commercial/financial knowledge, techniques, specifications, plans and other proprietary information. Confidential Information shall not include information which the Receiving Party or its Representatives can demonstrate (a) is in or comes into the public domain without fault on the part of the Receiving Party or any of its Representatives; (b) was lawfully known to it prior to its disclosure by the Disclosing Party; (c) is disclosed to the Receiving Party or its Representatives by a third party without breaching of any duty of confidentiality; (d) was independently developed without reference to the Confidential Information; (e) is made available to third parties by the Disclosing Party without restriction on the disclosure of such information; or (f) is approved by the Disclosing Party for release in writing.
1.4 “Delivery Date” means the requested delivery date for the Software Platform as set forth in the Purchase Order.
1.5 “Documentation” shall mean any and all documentation and material pertaining to the Software Platform, in any form, provided by Company to Reseller pursuant to this Agreement for use in conjunction with the Software Platform.
1.6 “End User” means an individual or entity that purchases a Software Platform or Service from Reseller.
1.7 “End User Agreement” means the form of Cybereason End User Agreement to be used as of date of any accepted Purchase Order is the form available at https://www.cybereason.com/license-agreement as may be amended from time to time by the Company.
1.8 “Export Controls and Economic Sanctions Laws” means all export control, economic or financial sanctions, and trade embargo laws, regulations, orders, directives and other legal requirements applicable to Company, Reseller, and/or any Targets, including but not limited to those administered and enforced from time to time by (a) the U.S. government, including the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, or the U.S. Department of Commerce, (b) the United Nations, (c) the European Union (“EU”), (d) the state of Israel, (e) HM Treasury of the United Kingdom, or (f) the government of any other country or territory in which Company, Reseller, or any Target conducts or in the past have conducted business, directly or indirectly .
1.9 “Intellectual Property Rights” means all patents, patent rights, copyrights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secrets, trade secret rights and other intellectual property rights, as may now exist or hereafter come into existence, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
1.10 “Licensor Package” shall mean the Software Platform, any Documentation and/or Confidential Information of Company.
1.11 “Prohibited Person” means any individual or entity that is (i) on the U.S. Department of Commerce’s Denied Persons List, Entity List, Unverified List or affiliated lists, (ii) on the OFAC Specially Designated Nationals and Blocked Persons List, (iii) on the U.S. Department of State’s Debarred List or Nonproliferation List, (iv) located, resident, or organized in jurisdictions subject to U.S. and/or other applicable territorial sanctions (collectively “Prohibited Jurisdictions”; as of the date of this Agreement, such jurisdictions include, without limitation, Cuba, Iran, Iraq, Lebanon, Libya, North Korea, Sudan, Syria, Venezuela, Yemen and the region of Crimea), (v) any entity, regardless of location, that is owned or controlled by a government of any Prohibited Jurisdiction, or (vi) otherwise the targets of any Export Controls and Economic Sanctions Laws such that dealings with such individual or entity by the Company, Reseller, or any Target would be prohibited.
1.12 “Purchase” or “Sale”: All references in this Agreement to the “purchase” or “sale” of the Software Platform shall mean, with respect to all parts of such Software Platform, the acquiring or granting, respectively, of a license to use such parts, and to exercise any other rights pertaining to such parts which are expressly set forth herein.
1.13 “Purchase Order” means a written order submitted by Reseller to Company pursuant to Section 7, covering the Software Platform (including specifically the information required under Section 2.2 and such other details of the property or services ordered as may be expressly agreed to by Company in its discretion; provided that, no other terms and conditions set forth in such Purchase Order, shall be binding on Company without Company’s express written consent.
1.14 "Representatives" of a Party shall mean such Party’s directors, officers, employees, consultants, agents or advisers (which shall not include a competitor of the Disclosing Party) and any other person that the Disclosing Party has authorized the Receiving Party to disclose the Confidential Information to.
1.15 “Reseller Discount” means the discount specified in Exhibit A.
1.16 “Reseller Subscription Fee” shall mean the Subscription Fee less the Reseller Discount.
1.17 “Service(s)” means those professional services specified in a Purchase Order, which may include (but are not limited to) expert research in the event of an emergency, continuous expert research or security services that may be offered by Company that are applicable to the Software Platform, such as active monitoring, advanced analysis and threat hunting.
1.18 “Software Platform” means the current edition and version of Company’s commercially available software as specified in Exhibit A. The Software Platform may include certain software installed on End User computers (i.e., computers that are not normally accessible over the network by other users) and/or servers and/or cloud based services, as well as a connection to an external cloud server. The Software Platform is licensed in object code form only, and is not sold.
1.19 “Specifications” means the functional Software Platform specifications and technical requirements provided to End User by Company.
1.20 “Subscription Fee” shall mean the applicable fees payable by the End User for use of the Software Platform during the Subscription Period, as detailed in Exhibit A, as may be amended from time to time by Company (including on a per-End User basis), or as specified in a Company-provided and approved Subscription Fee price quote with respect to a particular End User. For the avoidance of doubt, Subscription Fees do not include charges for Services.
1.21 “Subscription Period” shall mean the period of time specified in the Purchase Order in respect of which the End User has ordered and shall pay Subscription Fees in respect of its use of the Software Platform.
1.22 “Support and Maintenance” shall mean the support and maintenance services to be provided by Company to End User with respect to the Software Platform during the relevant Subscription Period pursuant to the End-User Agreement, as specified in the Purchase Order.
1.23 “Target” means any individual, partnership, corporation or other legal entity to which the Company’s products or services are promoted, marketed or planned to be marketed.
1.24 “Territory” means the countries set forth in Exhibit A.
2.1 Resale in the Territory. Subject to the terms and conditions of this Agreement, Company hereby grants to Reseller, under Company’s Intellectual Property Rights in the Software Platform and the Licensor Package, a nonexclusive, non-sublicensable, nontransferable right to market and promote the Software Platform in the Territory and submit Purchase Orders on behalf of End Users in the Territory for the Software Platform and collect the Subscription Fees payable by such End Users in respect of the Software Platform, all subject to payment by Reseller to Company of the applicable Reseller Subscription Fees. The license granted to Reseller in this Section 2.1 shall be effective immediately and the Reseller Subscription Fee (and any fee for Services purchased by such End User) shall be deemed fully earned (i) for all Subscription Periods (including any automatic renewal Subscription Periods) with respect to each End User to whom Reseller sells a Software Platform, upon acceptance by Company of a Purchase Order for such Software Platform relating to such End User, and (ii) for the agreement of Company to provide such Services as have been purchased by such End User, as the case may be, even if a Subscription Fee or other fee for Services is specified as payable in installments during a Subscription Period or pursuant to separate invoices, and such installment payment methodology and separate invoicing is only for the convenience of the End User. All amounts payable to Company by Reseller or any End User shall not be subject to deduction, offset, setoff, counterclaim or reduction, recoupment or other charge.
Company shall not be liable in any manner whatsoever in the event that an End User located within or outside the Territory, shall purchase the Software Platform or a license to use same from a reseller or any other third party that is not the Reseller, and it is clarified that Company retains the full and complete right to license, sublicense, assign, market and/or otherwise distribute, directly or indirectly through third parties, the Software Platform or any part thereof, throughout the world.
2.2 Purchase Orders. Reseller shall order the Software Platform for End Users by issuing written Purchase Orders to the Company. No Purchase Order shall provide for a Delivery Date sooner than Company’s applicable lead-time for the Software Platform ordered unless approved in writing by Company. Company shall have the right, within its sole discretion, to accept or reject Purchase Orders, including without limitation Purchase Orders for leads with respect to which Company has previously accepted or approved a completed lead intake form, and no Purchase Order shall be binding upon Company unless accepted by Company in writing. Each Purchase Order will set forth, at a minimum, the following (i) the name and address of the End User, (ii) the number or type of package of Software Platform(s) being purchased, (iii) the countries and locations where the Software Platform(s) are to be installed, (iv) the names of the persons who shall be permitted to access the Software Platform and a description of their role within the End User’s organization, (v) requested Delivery Dates, (vi) requested ship to location(s), (vii) billing address, (viii) reference to this Agreement, (ix) Subscription Fees and other fees due from the End User and (x) any other reasonable information required by Company. Purchase Orders shall constitute firm purchase obligations on behalf of Reseller subject to End User’s execution of the End User Agreement (as defined below). Each Purchase Order shall be subject to the written approval of Company and to Section 2.5.
2.3 Support and Maintenance. Company shall use commercially reasonable efforts to provide Support and Maintenance to the End User during the Subscription Period in accordance with Company’s Support and Maintenance Policies as set forth in the End User Agreement, as may be amended from time to time in accordance with the End User Agreement.
2.4 No Returns or Refunds. Except as expressly provided in this Agreement, and subject to the warranty provisions of this Agreement or the End User Agreement, as applicable, neither Reseller nor End User shall be entitled to return and/or exchange any Software Platform, nor shall they be entitled to receive any refunds with respect to any such Software Platform, irrespective of whether or how often the services that the Software Platform provides are used by the End User. Reseller acknowledges and agrees for itself, and on behalf of each End User for which Reseller has ordered a Software Platform, that any Software Platform so ordered that was previously delivered for evaluation purposes may be used in fulfilling such End User’s purchase of the Software Platform, provided that the warranties set forth herein for the Software Platform shall apply fully to such used Software Platform units.
2.5 Authority of Agreement. The terms and conditions of this Agreement shall exclusively govern the purchase and supply of the Software Platform hereunder and the provision of any Services purchased by the End User, and shall override any conflicting, amending and/or additional terms contained in Reseller’s Purchase Order or Company’s quotation and/or acceptance documents, provided that in case of any conflict or inconsistency with the End User Agreement, the End User Agreement shall govern.
2.6 End User Agreement. The Software Platform shall be licensed to the End User, and any license renewal shall be made, for the number of Endpoint installations purchased by the End User, subject and conditioned upon the End User entering into an End User Agreement with the Company. Reseller agrees with Company that each End User will execute and deliver, electronically or physically, the End User Agreement with Company, as a condition to receipt of rights to use the Software Platform. Reseller does not have the right to, and shall not, provide or grant to End Users any rights to the use of Software in excess of the rights granted by Company as set forth in, and as limited by) the End User Agreement. Reseller shall (i) obtain End User’s signature on the End User Agreement as a condition to licensing the Software Platform, (ii) use all commercially reasonable efforts to ensure End User’s compliance with the End User Agreement, (iii) promptly report to Company in writing any breach, or suspected breach, of the End User Agreement, and provide Company with a copy of the signed End User Agreement in each instance.
2.7 Demonstration License. Subject to the terms and conditions of this Agreement, Company hereby grants Reseller a nonexclusive, nonsublicensable, nontransferable license to access and use the Licensor Package, only in object code format, solely for the purpose of: (i) demonstrating the Software Platform to prospective End Users, and (ii) providing training in the use of the Software Platform to Reseller’s employees and End Users. The demonstration license may only be used once with respect to any potential End User, and shall expire with respect to each potential End User after thirty (30) days from its first use with respect to such potential End User. Furthermore, without derogating from any other provision hereof and notwithstanding anything contained in this Agreement to the contrary, the demonstration license is provided “AS IS” and Company shall not be liable for any damage and/or loss, of any kind whatsoever, arising from and/or related to the demonstration license.
2.8 Feedback. Reseller shall provide prompt written notification of any suggestions, comments, complaints or other feedback about the Software Platform or the Licensor Package that are made by End Users or Reseller’s prospective End Users, or that originate with Reseller, and of any problems with the Software Platform or its use of which Reseller becomes aware. Such written notification shall be the property of Company, and shall be considered Company’s Confidential Information hereunder. Reseller hereby grants, on behalf of itself and its End Users and prospective End Users, to Company a worldwide, irrevocable, non‑exclusive, royalty-free, fully paid, perpetual, sub-licensable and transferable license to use, disclose, reproduce, distribute, publicly display, exploit and prepare derivative works of the Feedback or any part thereof, and Reseller hereby waives on its and their behalves, any moral rights in the Feedback, to the extent permitted by law.
2.9 Product Changes. Company shall have the right to make design modifications to the Software Platform or any aspect of the Licensor Package at any time.
3.1 Prices. Reseller shall pay Company the applicable Reseller Subscription Fees in USD for the Software Platform within thirty (30) days of Company’s invoice therefor. Company shall have the right to revise the Subscription Fees and the Reseller Discount set forth in Exhibit A upon thirty (30) days written notice to Reseller. Such revised prices shall apply to all Purchase Orders submitted after the effective date of the revision. For the avoidance of any doubt it is hereby clarified that Company shall not be required to pay any fees, or other remuneration to Reseller in consideration for any of Reseller’s marketing, promotion, or other services or activities relating to the Software Platform. If the Subscription Fee applicable to an End User is payable in installments during a Subscription Period, such installment methodology is for the convenience of the End User only, and the full amount of the Reseller Subscription Fees with respect to such End User, and charges for any Services purchased by the End User for which payment is to be made by Reseller to Company, is acknowledged as fully earned by Company’s acceptance of a Purchase Order with respect to such End User and such amounts shall be payable by Reseller on the terms set forth in such accepted Purchase Order. Reseller is obligated to pay the applicable Reseller Subscription Fees by the due date regardless of whether it has received payment from the End User. Such Reseller Subscription Fees and fees for any such Services constitute the agreed consideration for Company’s grant of the license to Reseller under Section 2.1 in respect of such End User and entrance into the End User Agreement and Company’s agreement to perform such Services, respectively.
3.2 Shipping and Taxes. All prices are exclusive of shipping, insurance and installation charges, all of which are Reseller’s sole responsibility. All prices are exclusive of all sales, use, excise, value added, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the sale or license of the Software Platform. Any such taxes, duties or tariffs will be added to the price or subsequently invoiced to the Reseller. In the event Company is required to pay any such tax, duty, tariff or any such charge, Reseller will promptly reimburse Company therefor on an after-tax basis. Any taxes or levies based on the income, revenue or profits of Company will be paid by Company and will not be reimbursed by or recharged to Reseller.
3.3 Payment. Any amounts not paid when due will accrue interest at the rate of 1 1/2% per month, or the maximum amount allowed by law, if lower. Without limiting any other right or remedy available to Company, in the event that any payment is more than thirty (30) days late, Company shall have the right to suspend performance under this Agreement, upon ten days’ notice to Reseller (provided no such notice shall be required if such notice is not permitted under applicable law), until all payments are made current. Each accepted Purchase Order is a separate, independent transaction, and Reseller has no right of setoff, offset, deduction, counterclaim, reduction, recoupment or other charge against other Purchase Orders or other transactions with Company. No discounts for prepayment are authorized hereunder.
4.1 Ownership. Title to and ownership of the Licensor Package, and any improved, updated, modified or additional parts thereof, and all copyright, patent, trade secret, trademark and other Intellectual Property Rights embodied in the Licensor Package, shall at all times remain the property of Company or Company’s licensors. The use by Reseller of such rights is authorized only for the purposes herein set forth and upon termination of this Agreement for any reason, such authorization will cease. Reseller hereby undertakes to keep the Licensor Package free and clear of all claims, liens and encumbrances and not to sell, assign, transfer, encumber or dispose of in any way any such item except as explicitly permitted under this Agreement.
4.2 No Other Rights. Reseller shall not, directly or through any person or entity, in any form or manner, copy, distribute, reproduce, incorporate, use or allow access to the Software Platform or any other aspect of the Licensor Package or modify, prepare derivative works of, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or object code of the Software Platform, except as explicitly permitted under this Agreement or otherwise agreed in writing. Furthermore, Reseller shall not, directly or through any person or entity, use the Licensor Package or any part thereof as part of a service bureau, or to provide commercial timesharing rental or sharing arrangements to any third party. In making use of the Software Platform, Reseller shall comply with all applicable laws, including data protection and privacy laws, and shall not send or cause to be sent any unsolicited email (“spam”), including without limitation newsgroup postings.
Reseller shall not use, demonstrate or offer a license to the Software Platform in any application that involves risks of death, personal injury, severe property damage or critical environmental damage or in any life support applications, devices or systems, except as explicitly approved in writing by Company’s Chief Executive Officer.
4.3 Use of Trade Names. Reseller may use the product names of Company and its licensors in Reseller’s advertising and promotional media used for marketing the Software Platform, provided (i) that Reseller conspicuously indicates in all such media that such names are trademarks of Company and its licensors and (ii) that Reseller submits all such media to Company for prior approval in its reasonable discretion. ANY USE OF THE CYBEREASON TRADEMARKS (AS DEFINED IN CYBEREASON’S EXTERNAL BRAND GUIDELINES) IS SUBJECT TO CYBEREASON’S EXTERNAL BRAND GUIDELINES, LOCATED AT:https://www.cybereason.com/external-brand-guidelines . Reseller shall not remove and/or alter any copyright notices, trademark, logo or other proprietary or restrictive notice (hereinafter, collectively “Proprietary Notices”) or legend affixed to, contained or included in, the Licensor Package and Reseller shall reproduce and copy all such Proprietary Notices on all copies of the Licensor Package or any part thereof, made pursuant and subject to the terms of this Agreement. Upon termination of this Agreement for any reason, Reseller will immediately cease all use of the Software Platform names and, at Reseller’s election, destroy or deliver to Company all materials in Reseller’s control or possession which bear such names, including any sales literature. Reseller will not challenge Company’s ownership of its patents or any Intellectual Property Rights claimed by Company or its licensors in its trademarks, trade names or logos, or use any trademark, trade name or logo which might be confusingly similar to Company’s trademark, trade name or logo.
5.1 General. Reseller will, at all times, conduct its business in a professional manner which will favorably reflect upon Company. Reseller shall at all times comply with good business practices and all applicable laws and regulations relevant to this Agreement and the subject matter hereof. Reseller shall at all times maintain whatever organization and resources that are necessary for the performance of its obligations pursuant to the terms of this Agreement.
5.2 End User Operating Systems. Reseller shall ensure that each End User has in place or will obtain the appropriate operating systems, operating environment, licenses, application server licenses, web server licenses and the hardware required for the installation and operation of the Software Platform.
5.3 Sales and Marketing. Reseller shall use commercially reasonable efforts to market and promote the Software Platform in the Territory. These efforts may include without limitation the use of mailings, telemarketing programs, advertising, seminars, other customary marketing techniques and collaboration with Company. Reseller further agrees to place Company’s logo on the partner section of Reseller’s corporate Website in equal to or greater position as other vendor logos if the partner supports a corporate Website.
5.4 Leads and Forecasts. For each potential End User (or “lead”) developed by Reseller, Reseller will submit to Company a completed lead intake form, or as otherwise provided in Company’s Partner Portal. Leads are approved or denied at the sole discretion of the Company, and Company shall have the right at its discretion to refuse to accept a Purchase Order or to work with a certain lead even if Company has previously accepted or approved a completed lead intake form from Reseller with respect to such lead. Notwithstanding submission of and action on any lead, Company retains the full and complete right to license, sublicense, assign, market and/or otherwise distribute, directly or indirectly through third parties, the Software Platform or any part thereof, throughout the world.
5.5 Evaluation Units. Reseller shall ensure that potential End Users that wish to evaluate the Software Platform shall enter into Evaluation License Agreements with the Company, with Reseller’s facilitation. Reseller shall use best efforts to cause each End User that evaluates the Software Platform pursuant to the terms of the Company’s Evaluation License Agreement to complete its evaluation within a thirty (30) day period, provided that such period may be extended with Company’s prior written consent, after which time Company shall be entitled to deactivate such End User’s evaluation license to the Software Platform.
5.6 Records. Reseller shall (i) provide truthful and complete documentation supporting, in reasonable detail, the work performed and any expenses incurred in connection with this Agreement; (ii) maintain true, accurate, and complete invoices, reports, statements, books, and other records related to work performed and any expenses incurred under this Agreement; and (iii) retain such records for a period of five (5) years following the termination of this Agreement. Reseller shall maintain an accurate and complete list of all End Users to whom Reseller markets and promotes Software Products, including the names and addresses of each End User.
Company shall use commercially reasonable efforts to meet the Delivery Date for the Software Platform. The time period of delays and holds resulting from Reseller activity or inactivity shall automatically extend the Delivery Date by a like number of days but shall not affect the commencement and end dates of any Subscription Period. Should Company be unable to install or activate an End User’s license to the Software Platform by the Delivery Date, Reseller shall be informed in writing of such inability as soon as the delay is reasonably identified by Company and Reseller shall be advised of the new activation or installation date as soon as it is available. Any partial activations or installations delivered by Company may be invoiced individually. No part of any Reseller Subscription Fee or other payment to Company hereunder shall be subject to deduction, offset, setoff, counterclaim or reduction, recoupment or other charge as a result of any such delay, hold or extension.
The Software Platform shall be deemed accepted upon delivery to, or to the order of, Reseller at the location specified in the applicable Purchase Order. Reseller must provide written notice to Company within thirty (30) days of delivery in the event that the Software Platform does not conform to the Purchase Order.
8.1 Warranty. EXCEPT FOR THE WARRANTY TO THE END USER SET FORTH IN THE END USER AGREEMENT, COMPANY PROVIDES THE SOFTWARE PLATFORM AND THE LICENSOR PACKAGE AND SERVICES “AS IS” AND MAKES NO WARRANTIES WITH RESPECT TO SAME AND DISCLAIMS ALL IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE PLATFORM AND THE LICENSOR PACKAGE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, EFFECTIVENESS, USEFULNESS, RELIABILITY OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
8.2 Limitation of Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO RESELLER, END USER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, REPUTATIONAL DAMAGES, WORK STOPPAGE, BUSINESS INTERRUPTION, OR LOST SAVINGS OR REVENUES OF ANY KIND, OR FOR LOST DATA, DAMAGE TO OTHER SOFTWARE, COMPUTER FAILURE OR MALFUNCTION OR DOWNTIME. COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT, OR FOR BREACH OF THIS AGREEMENT, HOWEVER CAUSED AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL IN NO EVENT EXCEED 100% OF THE AGGREGATE AMOUNT RECEIVED BY COMPANY FROM RESELLER UNDER THIS AGREEMENT AS RESELLER SUBSCRIPTION FEES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY EVEN IF COMPANY AND ITS RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.3 Disclaimer of Other Representations. ALL REPRESENTATIONS MADE OR AGREEMENTS EXECUTED BY RESELLER TO OR WITH ANY END USER PURSUANT TO THIS AGREEMENT SHALL BE RESELLER’S SOLE RESPONSIBILITY. FURTHERMORE, EACH SUCH AGREEMENT SHALL CONTAIN AN ACKNOWLEDGMENT BY ANY THIRD PARTY THAT IT IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES MADE BY COMPANY EXCEPT FOR THOSE WARRANTIES EXPRESSLY MADE IN THE END USER AGREEMENT BETWEEN COMPANY AND END-USER.
9.1 Reseller hereby agrees on its behalf and on behalf of its owners, partners, officers, directors, employees, affiliates, and other persons acting for or on its behalf to abide and strictly comply with Company’s Business Partner Code of Conduct.
9.2 Reseller shall comply and shall at all times conduct its business in full accord with all applicable Anti-Corruption Laws.
9.3 Reseller shall notify Company in writing of any change in its ownership or in its directors or officers, or if any of its owners, partners, officer, directors, employees or other persons acting on its behalf is or becomes a Government Official within seven (7) business days of the effective date of any such change.
9.4 Company shall have the right, at any time and from time to time at its expense, to have the books, records, and accounts of the Reseller relating to its activities under this Agreement audited by its auditors or any consulting firm Company chooses in its sole discretion for the purpose of verifying compliance with this Section. Reseller shall fully cooperate in any audit conducted by or on behalf of Company. Company shall not be liable to Reseller for any claims related to its decision to audit Reseller under this Section.
9.5 Reseller represents to Company that (i) neither Reseller nor any of its owners, partners, officers, directors, employees, or any other persons acting for or on its behalf is a Prohibited Person, and (ii) Reseller shall comply with, and shall at all times conduct its business in full accord with, all additional applicable laws, decrees, ordinances and regulations, including those related to anti-boycott, import or use restrictions, the U.S., the UN and that of the Territory and the jurisdictions in which each of the Parties to this Agreement operate, together with any amending, consolidating or successor legislation or case law which has effect from time to time in the relevant jurisdiction.
9.6 Reseller agrees to comply strictly with all Export Controls and Economic Sanctions Laws and Reseller shall take no action that would cause Company to violate any U.S. or other economic sanctions laws or regulations. Reseller shall take all actions, furnish all documents, and provide all assistance reasonably requested by the Company in connection with any application by the Company for any export license that may be required under Export Control and Economic Sanctions Laws for the sale, supply, export, re-export or transfer of any of the Company's Software Platform or Services to any Target to which the Reseller has marketed and promoted such Software Platform and Services within the Territory.
9.7 Reseller expressly agrees that, without the prior written authorization of Company and the applicable Government, Reseller shall not (a) directly or indirectly acquire, export, re-export, divert, ship or transfer Company’s Software Platform or Services or any related intellectual property or direct product thereof to or for the benefit of any Prohibited Person, or (b) directly or indirectly disclose any data derived from Company’s Software Platform or Services or any related intellectual property or direct product thereof to or for the benefit of any Prohibited Person when such disclosure is restricted or prohibited by Export Controls and Economic Sanctions Laws. Reseller agrees to assist Company with reasonable requests with respect to the Parties’ compliance with Export Controls and Economic Sanctions Laws, including furnishing applicable certification and other documentation with respect to Targets.
9.8 Reseller undertakes that no Target is a Prohibited Person; and that none of the Company’s Software Platform or Services will be used for nuclear activities, chemical/biological weapons, or missile projects unless authorized by the U.S. Government.
9.9 Reseller acknowledges that from time to time during the term of this Agreement, Company may in its discretion obtain and review information regarding Reseller’s business practices and history and conduct customary background checks with respect to Reseller, and Reseller will cooperate as reasonably requested by Company with all such inquiries, including information substantiating Reseller’s compliance with this Section.
9.10 Reseller shall cause its owners, partners, officers, directors, employees, affiliates, and other persons acting for or on its behalf to, promptly complete any training required by Company, including any training relating to Anti-Bribery and Anti-Corruption and/or Export Controls and Economic Sanctions Laws. Where deemed necessary by the Company, Reseller will make its owners, partners, officers, directors, employees, affiliates, and other persons acting for or on its behalf reasonable available for training conducted by the Company.
9.11 Notwithstanding any other provision of this Agreement, Company shall not be obligated to take any action or omit to take any action under this Agreement that it believes, in good faith, would cause it to be in violation of any applicable U.S. or other law or regulation, including Anti-Corruption Laws and Export Controls and Economic Sanctions Laws. Furthermore, Company shall not provide any benefit under this contract to the extent that doing so would expose Company to any applicable economic sanctions prohibition or restriction under UN resolutions, or the trade or economic sanctions, laws or regulations of the U.S., the UK or of Israel or with any export and re-export restrictions applicable to the Software Platform or related materials.
Each party represents and warrants to the other that it has been duly registered and (if an entity rather than an individual) organized in accordance with all applicable laws, it has received all necessary governmental authorizations to enter into and perform its obligations under this Agreement, if not an individual its entry into and performance under this Agreement has been duly authorized by all necessary corporate or other entity action, its entry into and performance of this Agreement will not violate any applicable laws or any other agreements to which it is bound, and this Agreement constitutes its legal, valid and binding agreement, enforceable in accordance with its terms subject to applicable bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors generally and the application of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
Reseller shall be liable for damages or remedies as provided by law, and shall defend, indemnify and hold Company harmless from any liability, judgment, fine, loss, damage, claim or expense arising out of any breach by Reseller of any of Reseller’s representations or warranties set forth herein or relating to or arising from Reseller’s performance or its failure to comply with its obligations under this Agreement, or any changes, additions or modifications made to the Licensor Package by Reseller.
12.1 The Receiving Party will maintain the Confidential Information in strict confidence and will use at least the same degree of care and discretion it uses to protect the confidentiality of its own confidential, proprietary or trade secret information of similar nature but not less than a reasonable degree of care.
12.2 Except as expressly authorized hereunder, the Receiving Party will not disclose or use or allow others to disclose or use the Confidential Information without the prior written consent of the Disclosing Party. The Receiving Party shall only use the Confidential Information in connection with the Purpose and only disclose the Confidential Information to those of its Representatives who need to have access to same for the Purpose, provided that each of the Representatives to whom the Confidential Information is disclosed is bound by confidentiality obligations no less restrictive than those contained herein and the Receiving Party agrees to enforce any such undertaking. Notwithstanding the above, the Receiving Party acknowledges that it shall be responsible for any breach of any of the provisions of this Agreement by any of its Representatives, including after termination of their employment or engagement, as the case may be. The Receiving Party agrees to promptly notify the Disclosing Party in writing of any misuse or misappropriation of Confidential Information which may come to its attention.
12.3 If the Receiving Party or any of its Representatives receives a request or order for disclosure of Confidential Information from any court, tribunal, government department or agency or other official body, or Receiving Party believes disclosure is otherwise required under applicable law, if legally permissible, it shall promptly notify the Disclosing Party and shall cooperate with the Disclosing Party (at the Disclosing Party’s expense) in seeking a protective order or other appropriate remedy. If, in the absence of a protective order or other remedy, the Receiving Party or any of its Representatives is legally compelled to disclose Confidential Information, it may disclose only that portion of the Confidential Information which is legally required to be disclosed.
12.4 The Receiving Party shall notify the Disclosing Party immediately in writing upon becoming aware that any Confidential Information has been disclosed to an unauthorized third party and assist the Disclosing Party in remedying such unauthorized disclosure.
12.5 Reseller may from time to time provide Feedback with respect to the Licensor Package, Professional Services, Confidential Information provided by Licensor and/or other products or services of Licensor. Reseller agrees that all Feedback is and will be given entirely voluntarily. Feedback, even if designated as confidential by Licensee, will not, absent a separate written agreement, create any confidentiality obligation for or upon Licensor. Reseller reaffirms its grant of a license to Licensor relating to Feedback pursuant to Section 2.8.
13.1 Term. This Agreement is effective on the Effective Date and, unless terminated as provided in this Agreement, shall remain in effect for one (1) year and shall automatically renew for successive one (1) year terms unless terminated by either Party by providing written notice of non-renewal to the other Party at least 30 days prior to the applicable renewal date . The termination or expiration of this Agreement shall not affect the obligations of either party to the other party pursuant to any Purchase Order previously executed hereunder, and the terms and conditions of this Agreement shall continue to apply to such Purchase Order as if this Agreement had not expired or been terminated.
13.2 Termination. If either party breaches a material provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party shall have the right to terminate this Agreement at any time. Reseller’s breach of any payment obligation constitutes a default on the date the payment is due and Company shall have the right to terminate this Agreement immediately or suspend performance as provided herein. Either party may terminate this Agreement, effective immediately, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors that, in the case of an involuntary proceeding, is not dismissed within sixty (60) days. Company may terminate this Agreement or any other agreement with Reseller without any further obligation if Reseller, or its equity holders, partners, officers, directors, employees, representatives, affiliates, subcontractors, or other agents, take any action which in Company’s sole discretion potentially violates any provision of this Agreement. Company shall have the right to terminate this Agreement at its discretion by providing a 30 day advance written notice to Reseller. Company shall have the right to terminate this Agreement immediately upon Reseller’s violation or suspected violation of Section 9 hereof.
14.1 Effect of Termination. Upon the termination or expiration of this Agreement (i) Reseller shall immediately cease use of the Software Platform and shall delete the Licensor Package from Reseller’s systems and shall no longer access Company’s systems in any manner (including cloud based applications), (ii) all of Reseller’s rights hereunder, including with respect to the Software Platform and the Licensor Package, shall immediately terminate, provided that each license already granted to an End User with respect to the Software Platform shall survive in accordance with its terms, subject to termination in accordance with its terms under the applicable End User Agreement and (iii) the parties will treat all Confidential Information of the other party hereto as stated in Section 12 of this Agreement.
14.2 Limitation of Liability. In the event of termination by either party in accordance with any of the provisions of this Agreement, neither party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of either party. Termination shall not, however, relieve either party of any obligations incurred prior to the termination, including, without limitation, the obligation of Reseller to pay Company for Software Platforms or Services purchased prior to such termination. No Reseller Subscription Fees or fees for Services paid hereunder shall be subject to repayment or credit in whole or in part in connection with any such termination, nor relieve Reseller of its obligations to make all payments due hereunder to Company without deduction, offset, setoff, counterclaim or reduction, recoupment or other charge.
14.3 Survival. The provisions of Sections 1, 2.4, 2.8, 4, 5.6, 8, 9, 10, 11, 12, 14 and 15 of this Agreement, and all payment obligations incurred during the term of this Agreement, shall survive the expiration or termination of this Agreement for any reason. The provisions of Section 12 shall survive the expiration or termination of this Agreement for five (5) years. All other rights and obligations of the parties shall cease upon termination of this Agreement.
15.1 Severability. If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
15.2 Waiver. The failure of either party to exercise any right granted herein or to require any performance of any term of this Agreement or the waiver by either party of any breach of this Agreement shall not prevent a subsequent exercise or enforcement of, or be deemed a waiver of any subsequent breach of, the same or any other term of this Agreement.
15.3 No Joint Venture or Agency. Nothing in this Agreement shall constitute or create a joint venture, partnership, or any other similar arrangement between the parties. No party is authorized to act as agent for the other party hereunder except as expressly stated in this Agreement.
15.4 Notices. All notices required or permitted under this Agreement will be in writing and will be deemed received when (a) delivered personally; (b) when sent by e-mail (followed by the actual document in air mail/air courier); (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid (or six (6) days for international mail); or (d) one (1) day after deposit with a commercial express courier specifying next day delivery or, for international courier packages, two (2) days after deposit with a commercial express courier specifying 2-day delivery, with written verification of receipt.
15.5 Assignment. Reseller shall not assign or transfer this Agreement or any rights or obligations under this Agreement, without the prior written consent of Company. Company or any successor may assign or transfer, in whole or in part, any or all of its rights under this Agreement from time to time (including but not limited to assignment or transfer by way of merger, consolidation or sale of assets or shares, and assignment or transfer to a third party or to a subsidiary) without the consent of Reseller or any End User. Reseller will follow the reasonable instruction of Company with respect to payment and performance of any rights assigned By Company to any such assignees or transferees, and will deliver (and cause each End User to deliver) such documentation and confirmations and cooperate with Company as is reasonably requested in connection with the implementation of any such assignment or transfer. Any assignment or transfer of this Agreement made in contravention of the terms hereof shall be null and void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the Parties’ respective successors and permitted assigns.
15.6 Governing Law and Venue; Dispute Resolution. This Agreement is to be construed in accordance with and governed by the laws of the applicable jurisdiction, as set forth in the table below (the “Applicable Jurisdiction”) without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced only in the courts of the Applicable Jurisdiction and each Party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such legal suit, action or proceeding.
|Region in which Reseller’s Address is Located||Applicable Jurisdiction|
|Europe/Middle East and Africa (EMEA)||
|Asia/Pacific (APAC) and India (excluding Japan)||Singapore, Republic of Singapore|
|North America/Central & Latin America (NA/CALA)||New York, NY, USA|
IF RELEVANT TO THE APPLICABLE JURISDICTION, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
15.7 Force Majeure. Neither party shall be responsible for any failure to perform or delay in performance of its obligations (other than payment obligations) under the Agreement attributable in whole or in part to any cause beyond its reasonable control, including but not limited to Acts of God, government actions, pandemic (other than COVID 19), war, civil disturbance, insurrection, riots, terrorism, sabotage, labor shortages or disputes, failure or delay in delivery by suppliers or subcontractors, transportation difficulties, shortage of energy, raw materials or equipment, or the other party’s fault or negligence or any other force majeure event (“Force Majeure”).
15.8 Third Party Beneficiaries. Each of Company’s licensors of software included in the Software Package shall be entitled to enforce, on a non-exclusive basis, the rights of Company under this Agreement that are for the benefit of such licensor as if such licensor was a party to this Agreement. Company is a third-party beneficiary of, and is entitled to enforce, any limitations on rights under and use of each Software Package sold or otherwise provided by Reseller to any End User. For the avoidance of doubt, this Section does not limit or condition the rights in relation to this Agreement or any right to enforce the terms hereof, of assignees and transferees permitted under Section 15.5.
15.9 Entire Agreement and Modifications. This Agreement, (including each Purchase Order, each Company quotation document and any documents incorporated herein or therein by reference), constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior communications, transactions, and understandings, whether oral or written, with respect to the subject matter hereof and constitute the sole and entire agreement between the parties pertaining to the subject matter hereof. No modification, addition or deletion, or waiver of any of the terms and conditions of this Agreement shall be binding on either party unless made in a non-preprinted agreement clearly understood by both parties to be a modification or waiver, and signed by a duly authorized representative of each party, provided that the End User Agreement may be amended, modified or supplemented by Company as provided under Section 2.6.
15.10 Counterparts. This Agreement may be executed in one or more counterparts, each in the English language and each of which shall be deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
|Company Address for Notice:||Reseller Address for Notice:|
|E-mail: firstname.lastname@example.org||as submitted by Reseller to Company upon registration|
“Products”: Software Platform (cloud or virtual server)
“Territory”: The geographic region or territory expressly authorized by Cybereason in writing.
“Duration”: Pricing valid until agreed date
“Subscription Fee (Price List)”: Pricing as designated in the Cybereason partner portal for particular Reseller tier, which may be updated from time to time.
“Professional Services”: pricing to be provided by Company