1.0 Certain Definitions.
1.1 “Client Software” means Company’s data protection software, in object code form only, intended for installation on personal desktop or laptop computers.
1.2 “Server Software” means Company’s data protection software, in object code form only, intended for installation on web, application, and database servers hosted by a data hosting provider managed by Company.
1.3 “Cloud Services” means the data protection services enabled by the interaction of the Client Software and the Server Software over the Internet as managed by Company.
1.4 “End-user” means those clients of Customer, as indicated on a Schedule, receiving Managed Services from Customer; or the user of the Client Software or Cloud Services for ordinary business purposes as acquired from Customer.
1.5 “Managed Services” means the management and operation of Server Software and corresponding infrastructure by the Customer for the benefit of End-users.
1.6 “Professional Services” means any technical services provided by Company to Customer to support deployment, integration, and our technical requirements as outlined by an agreed Statement of Work (“SOW”).
1.7 “Third Party” means any entity contracted by Customer for services or support that may come into contact with Client Software, Server Software or Cloud Services in the course of delivering their own product(s) or services.
1.8 “Management Suite” means the reporting and management tool as developed, and/or hosted and managed by Company for use by Customer, and, as required, for use by End-user to gather data regarding use of Cloud Services or Managed Services.
1.9 “Software and Services” means the Server Software, the Client Software, the Management Suite, the Cloud Services and the Professional Services, as applicable.
1.10 “Updates” means any corrections, bug fixes, enhancements, modifications, or new versions of the Client or Server Software, as applicable.
2.0 Term. This Agreement shall have an initial term of one (1) year from the Effective Date, and shall thereafter automatically renew for successive one (1) year periods, unless either party gives notice not less than sixty (60) days prior to the completion of the applicable term, or unless otherwise terminated in accordance with Section 9.1.
3.0 Schedules and License.
3.1 General. The parties will enter into a schedule for Software and Services in connection with entering into this Agreement, and upon mutual agreement, the parties will execute consecutively numbered schedules (each, a “Schedule”) for additional Software, Managed Services, and/or other Professional Services. Unless otherwise provided herein, if any of the terms or conditions of this Agreement conflict with any of the terms or conditions of any Schedule, the terms or conditions of this Agreement will control.
3.2 Client and Server Software. Subject to the terms and conditions of this Agreement, Company grants to Customer, for the term of this Agreement, (i) the worldwide, non-exclusive, non-transferable, revocable right to distribute the Client Software to End-users for the purpose of providing Cloud Services, Managed Services or Software to End-users; and (ii) the revocable right to access Management Suite interface and reporting systems.
3.3 Restrictions. Customer shall have no right to the source code of such Client Software, Server Software, or Management Suite. Customer shall not, and shall not permit End-user or Third Party to modify, decompile, or reverse engineer the source code from any object code supplied hereunder, or create a derivative work of any Software. Customer may not, and may not permit End-users or any Third Party engaged by Customer, to use, reproduce, sublicense, or distribute the Software, except as expressly permitted under this Agreement.
3.4 Internal Use. Customer may use the Client Software for its internal business use, provided that all such use, other than for evaluation purposes only, shall be subject to monthly reporting and use fees as set forth in Schedule B.
3.5 Demonstrations and Evaluations. Customer may demonstrate the Client Software to prospective End-users through a demonstration version provided by Company free of charge during (i) the entire period during which Customer provides services under Schedule A, and (ii) for 60 days after the launch of services provided by Customer under Schedule B, each for a period not to exceed 30 days, provided that the number of any such active demonstration versions of the Client Software shall not exceed  ten at any one time without Company’s prior written approval which will not be unreasonably withheld. Customer will either provision such demonstration versions of the Client Software under a trial partner in the Server Software or explicitly name such versions of the Client Software as trial users in the Server Software.
3.6 End-user Agreements. Each End-user will be required to agree to Company’s standard End-user license agreement during the Customer installation process as part of utilizing the Software. Customer shall maintain agreements with its End-users that are no less protective of Company’s intellectual property rights than this Agreement and that provide for, at a minimum, restrictions substantially similar to those set forth in Section 3.3 and disclaimers of warranties and limitations of liability set forth in Sections 6.5 and 8.0 of this Agreement. Customer shall be responsible for violations of its End-users in the event Customer has not fulfilled its obligations under this Section.
4.0 Fees and Payments.
4.1 Reporting. Customer will provide a “Partner Bill” billing report within 5 business days after the last day of each month. The “Partner Bill” billing report will be generated directly from the Server Software Management Suite billing tool. One report for each instance of the Server Software is required, and should be delivered via email to email@example.com. Company will invoice Customer based on these reports. Client license fees are to be paid in advance, hence for any new End-user, Customer will be charged the current monthly license fee, as well as the license fee for the forthcoming month. The first Monthly Report shall be generated following the end of the month in which the Effective Date occurs.
4.2 The Software and Services Fee rates set forth on the applicable Schedule A shall remain in effect during the Initial Term and each Renewal Term, as applicable; provided, however, that the Company may adjust such rates, beginning with the first Renewal Term, by delivering the applicable adjusted Schedule(s) to Customer not less than sixty (60) days prior to the start of the applicable Renewal Term. All monthly management fees relating to Software and Services, or any Professional Services fees relating to service activation, software implementation, systems integration or other technical services as specified within an SOW, are billed in advance.
4.3 Payments. Company will deliver an invoice for the Fees owed concurrent with delivery of Customer’s monthly “Partner Bill” billing report in Section 4.1. Payment shall be due “upon receipt” for software, and “upon receipt” of invoice for Services, per the attached fee schedules. All payments shall be in U.S. Dollars. A late payment charge equal to the lesser of one-and-a-half percent (1.5%) per month or the highest interest rate allowed by applicable law shall be charged upon all unpaid amounts due hereunder for more than thirty (30) days after the end of each invoicing period or the month the invoice was issued, whichever is later. A Returned Payment Fee of $25 will be charged for all returned payments made.
4.4 Taxes. Unless otherwise provided in a Schedule, Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all applicable Taxes, excluding only taxes based on Company’s income. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.0 Support, Training and Promotion.
5.1 5.1 Support. Company and Customer shall each provide End-user the technical support as set forth in Schedule D. Unless otherwise set forth on Schedule D, Customer shall remain solely responsible for all direct installation, maintenance and support services to the End-users directly with regard to the Software and Services.
5.2 End-user Training. Unless otherwise set forth on a Schedule, Customer shall be solely responsible for the training of End-users with regard to the Software and Services.
5.3 Customer Training. Company shall provide Customer with such background and product training with regard to the Software and Services as Company deems appropriate, as well as any other specific training set forth on an applicable Schedule.
5.4 Promotional Materials. Company shall provide Customer with such promotional materials with regard to the Software and Services as Company deems appropriate, as well as any other specific promotional materials set forth on an applicable Schedule. Customer may create additional promotional materials at its expense and upon Company’s prior approval which shall not be unreasonably withheld.
5.5 Publicity. Customer will not issue any public announcement regarding the content of this Agreement without Company’s prior written approval which shall not be unreasonably withheld. Customer agrees to participate with Company in development of mutually agreed upon case studies and press releases to be used by Company and Customer as future marketing collateral.
5.6 Branding. Customer hereby grants Company the limited right during the term of this Agreement to reproduce and display Customer’s trade and service marks associated with its products and business for the sole purpose of effecting any co-branding, or other arrangement set forth in a Schedule, and the benefit of any use of such marks shall inure to Customer and be subject to the Customer’s use guidelines and reasonable instructions, and Company grants reciprocal limited rights to Customer for its trade and service marks based upon Company’s prior written approval which shall not be unreasonably withheld. Without limiting the foregoing, any use by Customer of Company’s trade or service marks shall be in compliance with Company’s style guide, as made available to Customer.
6.0 Proprietary Rights and Confidentiality.
6.1 Proprietary Rights. Other than the license rights granted hereunder, Customer will not acquire any right, title or interest in the intellectual property of Company by virtue of the execution or performance of this Agreement.
6.2 Ownership. As between Company and Customer, Company owns all rights, including intellectual property rights, in and to the Software and Services, as well as any promotional materials it provides to Customer. All rights not expressly granted to Customer are reserved. Each party retains ownership of its respective trade and service marks.
6.3 Confidentiality. Except upon the prior written consent of the other party, each party shall at all times keep confidential the contents of this Agreement and will at all times keep confidential and will not disclose to any third party or use for any purpose other than to fulfill its obligation hereunder any non-public or proprietary information (written or oral) concerning the business or affairs of the other party communicated during the term of this Agreement, including sales manuals and pricing, personally-identifiable End-user information, or technical information regarding the Software and Services. The provisions of this Section 6.3 shall not apply to information that a party can establish by reasonable evidence was lawfully in its possession prior to receipt hereunder from the other party, that becomes publicly available other than as a result of any breach of this Agreement by a party, or that is lawfully obtained from any third party without restriction on disclosure. Nothing in this Section 6.3 shall prevent a party from disclosing confidential information when ordered to do so by law, provided that such party gives the other party notice of such disclosure requirement and uses good faith efforts to assist the other party to secure a protective order or confidential treatment of such confidential information.
6.4 Specific Remedies. A breach by a party of its obligations under this Section 6 may result in irreparable harm for which the other party may not have an adequate remedy at law.
6.5 Limited Warranty. Each party hereby represents and warrants to the other party that (i) such party has the authority to enter into this Agreement and to fully perform all its obligations hereunder; and (ii) the making of this Agreement does not violate any agreement existing between such party and any third party.
THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE EACH PARTY’S SOLE AND EXCLUSIVE WARRANTIES WITH RESPECT TO THIS AGREEMENT AND THE PRODUCTS.
EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS OF THE PRODUCTS FOR ANY PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
6.6 Company Warranty. Company hereby represents and warrants to Customer that (i) with regard to the Server Software, that for a period of thirty (30) days from setup, the Server Software will perform substantially in accordance with the specifications set forth in the published documentation accompanying the Server Software; and (ii) with regard to Cloud Services, Professional Services and any support services provided hereunder, that such services shall be performed substantially in accordance with the specifications set forth on the applicable Schedule during any period in which Fees owing have been paid in full. Unless a specific remedy is set forth on an applicable Schedule, Customer’s sole and exclusive remedy for a breach of this Section shall be, at Company’s option, to use commercially reasonable efforts to, as applicable, (a) correct any failure to conform to the above warranty discovered within the applicable warranty period, or (b) re-perform any services. If Company reasonably determines that it cannot accomplish (a) or (b) in a commercially reasonable manner, then Customer shall be entitled to terminate this Agreement and Company shall promptly provide a full refund of Fees paid pursuant to a Schedule.
7.1 Customer shall indemnify, defend and hold harmless Company, its respective officers, directors, employees, and agents from and against all losses, damages, costs or expenses (including reasonable attorneys’ fees) related to any third party claim arising from or in connection with (i) a breach of any provision of this Agreement by Customer; and (ii) the combination, operation or use of the Software and Services with any hardware, products, programs or data not supplied or otherwise approved in writing by Company, if such damages would have been avoided but for such combination, operation or use.
7.2 Company shall indemnify, defend and hold harmless Customer, its respective officers, directors, employees, and agents from and against all losses, damages, costs or expenses (including reasonable attorneys’ fees) related to any third party claim arising from or in connection with (i) a breach of any provision of this Agreement; (ii) the infringement by the Software of the intellectual property rights of any third party. If the Software and Services infringe or misappropriate, or in Company’s reasonable determination is likely to infringe or misappropriate, any third party’s intellectual property rights, Company shall, at its expense, use its best efforts to either (i) obtain from such third party the right for the continued use of the Software and Services; (ii) modify the Software and Services to avoid and eliminate such infringement or misappropriation without any functional changes, as the case may be; or (iii) if neither of the foregoing are, in Company’s judgment, commercially reasonable, Company may, upon thirty (30) days’ prior notice, terminate this Agreement and all rights and licenses hereunder and return all payments under this Agreement for the then-current monthly period and hold Customer harmless from any claims related to the Software and/or prior to the termination, which shall be Customer’s exclusive remedy in such instance. The parties shall cooperate with each other to conclude an orderly termination of their relationship, including but not limited to transfer of End-user data to Customer in the event that such transfer can be achieved with reasonable efforts, at Company’s reasonable cost and within a 30 day period. Company retains no obligations to End-users after the termination of the agreement
7.3 Notwithstanding Sections 7.1 and 7.2, no indemnifying party shall have any obligation with respect to any claim unless (i) the non-indemnifying party promptly notifies the indemnifying party of such claim, (ii) the indemnifying party has sole control of the defense and settlement of such claim, and (iii) the non-indemnifying party provides the indemnifying party with reasonable assistance in the indemnifying party’s defense and settlement of such claim. Assistance will be at indemnifying party’s expense, including reasonable out of pocket costs for transportation, lodging, and meals, and/or reasonable hourly fees for personnel time requested by the indemnifying party.
8.0 Limitation of Liability.
8.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, INCLUDING LOSS OF PROFITS OR LOSS OF DATA, UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
NEITHER PARTY’S MAXIMUM LIABILITY HEREUNDER SHALL EXCEED THE AMOUNTS PAID UNDER THIS AGREEMENT BY CUSTOMER TO COMPANY FOR THE PREVIOUS 12 MONTHS.
9.1 Termination by Parties. This Agreement may be terminated prior to the expiration of the Initial or any Renewal Term by written notice to the other party as follows: (i) by either party, in the event the other party materially breaches any of its obligations hereunder and fails to remedy such breach within thirty (30) days after receiving written demand therefore; (ii) by Company, effective immediately upon notice in the event Customer: (a) should become the subject of any voluntary or involuntary bankruptcy, receivership or other insolvency proceedings that are not terminated within ninety (90) days of initiation or make an assignment or other arrangement for the benefit of its creditors; (b) should attempt to sell or assign its rights and obligations hereunder in violation of this Agreement. This Agreement may further be terminated by the Company immediately in the event that the monthly report for Customer has reported zero (0) usage for four (4) consecutive months.
9.2 Rights of Parties Upon Termination. Upon the termination of this Agreement or any attached Schedule, the parties shall cooperate with each other to conclude an orderly termination of their relationship, including but not limited to transfer of End-user data to Customer in the event that such transfer can be achieved with reasonable efforts, at Customer’s reasonable cost and within a 30 day period. Except as the parties may otherwise mutually agree in writing, Customer shall immediately (i) cease all use and distribution of the Software and Services; and (ii) return to Company, or destroy and immediately cease all use of, confidential information then in Customer’s possession. All Software and Services licenses granted hereunder shall immediately cease upon termination. Company retains no obligations to End-users after the termination of the agreement.
9.3 Assignment. This Agreement may not be assigned, by operation of law or otherwise, in whole or in part by either party hereto without the prior written consent of the other party, except that either party may assign this Agreement to any successor in interest (whether by sale, merger, consolidation or otherwise) to all or substantially all of its assets.
9.4 Dispute Resolution and Governing Law. The validity, construction and interpretation of this Agreement shall be governed by the internal laws of the State of Washington, excluding conflict of law’s provisions. Customer hereby consents to jurisdiction of the federal or state courts located in King County, Washington. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are expressly disclaimed.
10.0 Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; fires; floods; nuclear incident; acts of God; terrorism; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. In the case of payment obligations, such obligations shall be suspended during any such event, provided that if such event continues for more than thirty (30) days, Company may terminate this Agreement and all such payment obligations shall be due and payable.
11.0 General. Customer agrees that it is solely responsible for complying with all laws and regulations related to the marketing and distribution of the Software and Services in any foreign country. This Agreement inclusive of all schedules represents the entire agreement between the parties on the subject matter hereof and supersedes all other discussions or agreement between them related thereto. No modification of, or waiver under, this Agreement will be effective unless in writing and signed by all parties. All notices hereunder shall be in writing and to the contact information set forth on the signature page hereto or as otherwise updated in writing between the parties. Notice shall be deemed to have been given (i) when received, if in writing and delivered personally or upon confirmed receipt of facsimile or email transmission, or (ii) one (1) day following deposit with a recognized overnight delivery service. The parties’ relationship is that of independent contractors and not that of employer-employee, partner, agent or otherwise. If any part of this Agreement is unenforceable, the remainder of this Agreement shall continue in full force and effect. This Agreement may be signed in any number of counterparts, each of which shall be an original.