MANAGED SERVICES PROVIDER LICENSING AGREEMENT
FIREMON, LLC (HEREINAFTER “FIREMON) PROVIDES THE SOFTWARE AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS MANAGED SERVICES LICENSE AGREEMENT (THE “AGREEMENT”) AND ON THE CONDITION THAT THE MANAGED SERVICES PROVIDER (“MSP”) ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING, ACCESSING OR OTHERWISE USING THE SOFTWARE, MSP HEREBY (A) ACCEPTS THIS AGREEMENT AND AGREES THAT THE MSP IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT MSP HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF MSP AND BIND MSP TO ITS TERMS. IF MSP DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, FIREMON WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO MSP AND MSP MUST NOT INSTALL OR USE THE SOFTWARE.
FIREMON MAY REVISE THESE TERMS AND CONDITIONS TO REFLECT CHANGES IN THE LAW OR TO THE MANAGED SERVICES. FIREMON WILL POST THE REVISED TERMS ON THE SITE WITH A “LAST UPDATED” DATE. PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF MSP CONTINUES TO USE THE MANAGED SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. MSP AGREES THAT FIREMON SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY MODIFICATION OF THE TERMS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR MSP’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT MSP DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF FIREMON’S SOFTWARE.
a. “Advisory Services” means any professional service offerings under which MSP uses the Licensed Programs to perform periodic short-term assessments on their customers’ network and security devices (e.g. firewalls, routers, load balancers, security management devices).
b. “Business Development Services” means MSP use of the Licensed Programs to perform a one-time assessment on a limited number of security devices (e.g. firewalls, routers, load balancers, security management devices) for a prospective customers’ strictly in connection with sales and marketing efforts of MSP and at no charge to the prospective customer.
c. “Client Feedback” means feedback or ideas related to the Licensed Programs from the End Client.
d. “EULA” means a written agreement between MSP and End Client which contain terms or conditions for use of the Licensed Programs in connection with Managed Services that (i) are consistent with this Agreement; (ii) are at least as restrictive as this Agreement; and (iii) disclaims any and all liability of FireMon to the End Client in connection with the Managed Services in accordance with Section 9.5.
e. “End Client(s)” means subscribers of Managed Services.
f. “Licensed Programs” means the software and maintenance subscription identified in a Purchase Order.
g. “License Keys” means unique software code necessary and operation of certain Licensed Programs.
h. “Managed Services” means one or more professional service offerings under which MSP uses the Licensed Programs to manage, monitor and support corporate network(s) and/or security devices (e.g. firewalls, routers, load balancers, security management devices) for an End Client regardless of who owns the network and /or security devices (e.g. firewalls, routers, load balancers, security management devices).
i. “Partner Platform” means MSP’s platform which the Licensed Programs are integrated with other software and or services platform of third parties to provide Managed Services to End Clients.
j. “Purchase Order” means a sales order or other ordering document from MSP based on a written quote from FireMon which is submitted by MSP and accepted by FireMon for the applicable Licensed Program.
k. “Updates” means maintenance releases, upgrades, additions, modifications, patches, and bug fixes for of the Licensed Programs, if any, which are made generally available by FireMon as part of Maintenance Services. Updates do not include new versions or functionality of the Licensed Program, when and if available, that FireMon considers to be a separate product or for which FireMon charges its customers extra or separately.
l. “Usage Fees” means the fees set forth in the applicable Purchase Order for the Licensed Programs.
m. “Territory” means worldwide other than any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country.
2.1. Licensed Programs and Trademark License. In consideration for MSP’s payment obligations herein, FireMon hereby grants MSP a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable (except in accordance with this Agreement) license and right during the Term, solely within the Territory (i) to use FireMon’s trademarks, trade names, logos and other branding materials (collectively, “FireMon Marks”) only in accordance with this Agreement, and (ii) to reproduce and use the Licensed Programs and License Key provided hereunder for internal support, training and demonstration purposes, (iii) host the Licensed Programs on the Partner Platform and install the Licensed Programs on the networks of End Clients receiving Managed Services, and (iv) use License Keys provided by FireMon hereunder to deliver Managed Services to its End Clients.
2.2 End Clients. FireMon hereby authorizes MSP to sublicense to End Clients the limited rights in and to the Licensed Programs pursuant to a EULA, solely as installed within the Partner Platform and then only as necessary for such End Clients to receive Managed Services from the MSP. Each device being serviced by MSP will require a separate license. MSP will be solely responsible for any and all acts, omissions and/or liability of each End Client sublicensed pursuant to this Section 2. Notwithstanding Section 2.1(iv) above, MSP shall not (i) use License Keys to deliver Managed Services to its End Clients until the End Client has agreed to be contractually bound by the EULA for the duration of receiving the Managed Services from MSP or (ii) reallocate or rotate licenses between an End Client’s production devices in order to avoid additional fees.
2.3 Reassignment of License Keys. In the event an End Client ceases to be a customer of MSP and MSP is no longer providing any services to such End Client, any License Keys assigned to such End Client may be reassigned by MSP to a different End Client by providing written notice to FireMon. A License Key may not be reassigned to a new End Client more than once in any calendar year.
2.4. Limitations on License. Other than as expressly permitted herein, MSP shall not, and shall use its best efforts to ensure End Clients shall not (a) modify, disassemble, reverse engineer, make error corrections, create derivative works of or decompile the Licensed Programs or License Keys, or attempt to do any of the foregoing; (b) attempt to access or use portions of the program code, Licensed Programs or License Keys for which MSP has not acquired a license, (c) circumvent or disable any features or technological protection measures in the Licensed Programs or License Keys; (d) except as specifically authorized herein, distribute or transfer the Licensed Programs or License Keys; (e) host, offer or otherwise use the Licensed Programs except on the Partner Platform; (f) except as specifically authorized by FireMon in a Purchase Order, host, offer or otherwise use the Licensed Programs for Advisory Services or Business Development Services; (g) transfer, reallocate or share License Keys among or between End Clients; (h) deactivate and reactive licenses on the same device in order to avoid fees; (i) rotate or reallocate licenses between production devices of an End Client in order to avoid additional fees; (j) post or publish any portion of the Licensed Program onto any public (i.e. nonprivate) software code sharing web sites or similar, including, but not limited to, the following: GitHub, BitBucket, Google Code, Pastebin, Codeplex, LaunchPad, Unfuddle, JSFiddle, JSBin; or (k) permit or assist any third party to do any of (a) through (i).
2.5 Existing Licenses. MSP hereby acknowledges and agrees that any Licensed Programs or License Keys which an End Client has licensed directly from FireMon may not be transferred and/or used by MSP under this Agreement without the advanced written agreement of FireMon.
2.5 Enforcement. MSP shall use best efforts to monitor uses of FireMon’s intellectual property as licensed herein and shall notify FireMon if it becomes aware of any failure of (i) an End Client to abide by the EULA or (ii) any other violation of FireMon’s intellectual property rights by an End Client. In the event MSP violates any provision of this Section 2 or fails to timely pay any Usage Fees by their due date, in addition to any other legal rights or remedies of FireMon, FireMon may suspend the Licensed Programs, in whole or in part, including but not limited to deactivation of License Keys or suspension of Maintenance Services.
3. OWNERSHIP. The Licensed Programs, License Keys and FireMon Marks (“FireMon Intellectual Property”) are licensed, not sold, by FireMon to MSP, and nothing herein will be interpreted or construed as a sale or purchase of the FireMon Intellectual Property. MSP will not have any rights in or to the FireMon Intellectual Property except as expressly granted in this Agreement. FireMon and/or its licensors reserve to itself all rights to the FireMon Intellectual Property not specifically granted to MSP under this Agreement. FireMon and/or its licensors retain all copyright, trademark, patent, and other intellectual property rights in and to FireMon Intellectual Property. As between the parties, MSP acknowledges that the FireMon Intellectual Property and all copies, derivative works, compilations, and collective works thereof, and any know-how, intellectual property rights, and trade secrets rights arising our out or relating to the FireMon Intellectual Property are the sole and exclusive property of FireMon. To the extent that MSP, and/or an End Client obtains any ownership rights in any of the foregoing, MSP hereby assigns, and shall cause its End Client to assign, all such rights to FireMon and agrees to perform any further acts necessary to secure FireMon’s and its licensors’ ownership rights. All goodwill and other rights arising from the use of FireMon Intellectual Property shall inure to FireMon and, to the extent MSP accrues goodwill in the FireMon Intellectual Property, MSP hereby assigns all such rights in the FireMon Intellectual Property to FireMon.
4. CONFIDENTIALITY AND PROPERTY RIGHTS
4.1. Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information will include, but not be limited to, each party’s proprietary software and customer information, and in the case of FireMon will include, without limitation, the FireMon Intellectual Property, information about the functions and features of the Licensed Programs and related technology, and all non-public information that either party provides to the other party or to which the other party obtains or has access by reason of this Agreement. The disclosing party’s Confidential Information will be used only as needed for performance of the receiving party’s obligations under this Agreement. Each party agrees that it will not use in any way, for its own account or the account of any third party nor disclose to any third party (except as expressly permitted by this Agreement, as required by law, regulation or judicial order (provided that the receiving party is so required to disclose the disclosing party’s Confidential Information, the receiving party will, to the extent legally permissible, give the disclosing party prior written notice and the opportunity to contest the requirement and, if such disclosure is so required, the receiving party shall limit the disclosure to only the specifically required Confidential Information) or to the receiving party’s attorneys, accountants and other advisors as reasonably necessary if such third parties are bound by confidentiality and non-use obligations at least as strict as this Agreement), any of the disclosing party’s Confidential Information and will take precautions commensurate with those it uses to protect its own confidential information, but not less than reasonable precautions, to protect the confidentiality of such information. The duties and obligations to protect Confidential Information will survive expiration or termination of this Agreement for a period of three (3) years thereafter.
4.2. Exceptions. Information will not be deemed Confidential Information hereunder if such information: (a) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (b) becomes known (independently of disclosure by the disclosing party or as a result of this Agreement) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) is or becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party without access, indirect or direct, or reference to the Confidential Information provided by the disclosing party and such independent development can be proven through documentary evidence.
4.3. FireMon Property Rights. MSP and FireMon each acknowledge that FireMon may disclose to MSP certain Confidential Information relating specifically to the Licensed Programs, including, without limitation, the reports and information about the current and/or future functions/features of the Licensed Programs and related technology. MSP hereby acknowledges and agrees that all business information, software, technology, processes, know how, FireMon’s Confidential Information and all other materials and techniques supplied and/or utilized by FireMon constitute and contain valuable proprietary products and trade secrets of FireMon and its licensors (collectively, “FireMon Property”), embodying substantial creative efforts and confidential information, ideas, and expressions. Accordingly, MSP agrees to treat (and take precautions to ensure that their employees, agents and contractors treat) all FireMon Property as Confidential Information, subject to the exceptions in Section 4.2. All FireMon Property is the exclusive property of FireMon and its licensors including all reports, all copyrights, patents, derivative works, compilations, collective works, trademarks, trade secret and other intellectual property rights therein. MSP shall not, and shall ensure that its employees, agents and contractors shall not, remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership, proprietary rights, or confidentiality from any originals or copies of Confidential Information or FireMon Marks. No license or other rights to the FireMon Property or any intellectual property rights therein are granted to MSP except for those expressly set forth in this Agreement.
4.4 Equitable Relief. If either party breaches any of its obligations set forth in Section 2, Section 3 or this Section 4, the disclosing party shall be entitled to seek equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief, without the posting of a bond.
5. CHARGES AND PAYMENTS
5.1 Fees. Usage Fees are defined and set forth in the applicable Purchase Order for each applicable Licensed Program.
5.1.1 Annual Minimum Commitment. MSP shall meet the Annual Minimum Commitment for each Licensed Program as identified in the applicable Purchase Order. MSP hereby agrees its Annual Minimum Commitment obligations are non-cancelable
5.1.2 Quarterly Payments. MSP agrees and acknowledges that (a) the Annual Minimum Commitment is payable quarterly in advance; (c) Usage Fees are based on the actual monthly usage and paid quarterly in arrears to the extent they exceed the prepayment pursuant to 5.1.2(a).
5.2 Payment Terms. FireMon shall issue the invoice for the quarterly portion of the Annual Minimum Commitment, if any and any additional Usage Fee for the previous quarter invoices within five (5) business days following the first day of each quarterly billing period. MSP agrees to pay FireMon within thirty (30) days from invoice date . MSP shall be responsible for invoicing End Clients and collecting invoiced amounts from End Clients, and MSP’s obligation to pay FireMon shall not be dependent or contingent upon MSP’s receipt of payment from End Clients.
5.3 Late Payment. Delinquent amounts shall bear interest at a rate equal to the lesser of one and one-half percent (1.5%) per month (eighteen percent 18% per year) or the maximum rate permitted by law, whichever is less. In addition to all other rights that FireMon may have under the law or at equity, in the event that MSP fails to pay FireMon any undisputed Usage Fees within five (5) business days of delivery by FireMon of written notice of non-payment, (i) FireMon may terminate this Agreement and/or cease to perform its obligations under this Agreement, including any Maintenance Services and (ii) MSP and End Clients will immediately cease using the Licensed Programs.
5.4 Taxes and other Fees. Except as otherwise stated in this Agreement, all amounts under this Agreement are non-refundable and are stated and are to be paid in U.S. dollars and are excusive of value-added taxes or other indirect taxes. If FireMon is required to pay any sales, value-added, use, goods and services, or other taxes in connection with and applicable to its provision of Licensed Programs and/or services to MSP under this Agreement, other than taxes based on FireMon’s income, gross receipts, franchise and privilege taxes, property or employees, such taxes will be billed by FireMon as a separate line item to MSP and paid by MSP to FireMon. FireMon shall pay all collected taxes to the appropriate taxing authority. If MSP has tax-exempt status, MSP shall provide written evidence of such status to FireMon to sustain exemption from such taxes.
5.5 Price Increases. FireMon may modify the Usage Fees, provided that (a) FireMon shall not raise prices during the initial twelve (12) month term of this Agreement and, thereafter, only once per calendar year giving MSP at least ninety (90) days prior written notice of any fee increase; and (b) no such increase shall apply to MSP quotes (good for 30 days or less) submitted to a potential End Client and Purchase Orders placed by MSP and accepted by FireMon prior to delivery by FireMon of a notice of a price increase
6. MAINTENANCE SERVICES
6.1. During the term of the Agreement, as part of the Licensed Program, FireMon shall provide to MSP the maintenance and support service as set forth in the applicable Purchase Order (“Maintenance Services”).
6.2. MSP shall complete a form provided by FireMon to designate (a) a primary and alternate business contact responsible for the administration and oversight of this Agreement, and (b) a maximum of four (4) authorized individuals of MSP (“Support Representatives”) to request Maintenance Services from FireMon and to whom FireMon will provide notification of the availability of Updates. Written notification of any changes of these Support Representatives shall be provided to FireMon via email to [email protected]
6.3 Maintenance Services are available for the most recent release of the software included in the Licensed Programs. It is MSP’s responsibility to stay current with all Updates to ensure continued Maintenance Services.
6.4 FireMon will provide the Maintenance Services only to Support Representatives and will not be responsible to provide any maintenance or support services to End Clients or any other third parties. MSP shall prohibit End Clients from contacting FireMon directly.
7. WARRANTY AND DISCLAIMER OF WARRANTIES
7.1. FireMon and MSP each warrant (i) that it has full authority and sufficient rights to perform all of its obligations under this Agreement; (ii) that execution of this Agreement does not breach any other agreement or obligation to which it is or was a party; and (iii) that it shall comply with all applicable laws, rules and regulations within the Territory with respect to its performance of this Agreement. FireMon further warrants that the provision of the Licensed Programs, FireMon Marks, and Maintenance Services do not breach any other agreement or obligation to which FireMon is or was a party; and FireMon is under no obligation or restriction that does or will prevent its performance of the provision of Licensed Programs, FireMon Marks, and/or Maintenance Services under this Agreement. MSP represents and warrants that it will not make any representation or warranty (which is not authorized by FireMon in writing), whether written or oral, to any third party, including but not limited to an End Client, relating to the Licensed Programs, FireMon Marks, and/or Maintenance Services.
7.2 FireMon warrants for a period of thirty (30) days from the date a Licensed Program is first delivered to MSP (the “Warranty Period”):
(i) the operation of the Licensed Program software shall be free from defects in material and workmanship under normal use and materially perform in accordance with the documentation accompanying the Licensed Program; and
(ii) the Licensed Program software as delivered by FireMon shall not contain any type of software routine or other element which is intentionally designed to permit unauthorized (a) access to or intrusion upon or (b erasure of any hardware, software, data, or peripheral equipment.
The foregoing warranties shall not apply to the extent the Licensed Program has been modified without the prior written approval of FireMon or non-conformities in the Licensed Program are caused by third party products or services that are not provided or authorized by FireMon. FireMon’ s exclusive obligation in connection with a breach of this Section 7.2 shall be for FireMon to use commercially reasonable efforts to remedy material defects in the Licensed Program identified by MSP in writing during the Warranty Period and to replace the Licensed Program with a version that conforms with the documentation. In the event FireMon fails to remedy such material defects in the Licensed Program which are identified by MSP in writing during the Warranty Period by replacing the Licensed Program with a version that conforms with the documentation, MSP’s sole and exclusive remedy (and FireMon’s limited liability) shall be for MSP to terminate this Agreement within ten (10) days of being notified by FireMon that
is cannot remedy the nonconformance and thereafter receive a refund of the entire Usage Fees paid for the non-conforming Licensed Programs.
7.3 The warranties set forth in Section 7 do not apply to the extent the Licensed Programs (a) have been altered, by any party other than FireMon, or (b) have not been installed, operated, repaired, or maintained in accordance with written instructions supplied by FireMon to MSP.
7.4 Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY FIREMON OR ITS LICENSORS INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, IN CONNECTION WITH THE LICENSED PROGRAMS, FIREMON MARKS AND/OR MAINTENANCE SERVICES.
8.1 Indemnification by MSP. MSP shall, at its expense, indemnify, defend and hold harmless FireMon and affiliates, and each of their respective directors, officers, and employees from and against any losses, claims, demands, or causes of action arising from, relating to, or in connection with (a) any loss of or damage to any real property or injury or death of any person caused by MSP or any End Client, directors, officers, and employees, agents or representatives of MSP (collectively, the “MSP Parties”) (b) negligent act or omission or willful misconduct of any of the MSP Parties, (c) use of the Licensed Programs by MSP Parties except in accordance with (1) this Agreement and (2) with respect to the End Client, the EULA or (d) any breach or alleged breach of Section 15.4 or 15.5. MSP shall, at its expense, indemnify, defend, and hold harmless FireMon and affiliates, and each of their respective directors, officers, and employees from and against any losses, claims, demands, or causes of action made by one or more End Clients arising from, relating to, or in connection with the Managed Services. With respect to any such claims or causes of action, MSP shall have control over defense and/or settlement thereof, subject to the following: (i) FireMon shall have the right to participate in any such claims or causes of action as its option and its own expense and (ii) MSP shall not settle any such claim or cause of action without FireMon’s written consent if such settlement includes (directly or indirectly) any admission of or stipulation to any guilt, fault, or wrongdoing by FireMon, or impose any obligation (monetary or otherwise) on FireMon,.
8.2. Indemnification by FireMon. FireMon shall, at its expense, indemnify, defend, and hold harmless MSP, its directors, officers, and employees (collectively, the “MSP Indemnified Parties”) from and against any third party (specifically excluding End Client(s)) losses, claims, demands, or causes of action incurred/suffered by MSP Indemnified Parties arising from or in connection with (a) any action brought against any MSP Indemnified Party based upon a claim that any Licensed Program or FireMon Mark infringes any patent, copyright, trademark, or any other intellectual property or proprietary right of any third party within the United States; and/or (b) any negligent act or omission or willful misconduct of FireMon. MSP acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, End Clients will not have the right to seek any indemnification directly from FireMon, and only MSP may make indemnification claims against FireMon pursuant to this Agreement. With respect to any such claims or causes of action, FireMon shall have control over defense and/or settlement thereof, subject to the following: (i) MSP shall have the right to participate in any such claims or causes of action as its option and its own expense and (ii) FireMon shall not settle any such claim or cause of action without MSP’s written consent if such settlement imposes any liability on MSP specifically. The foregoing obligations of FireMon shall not apply to the extent such third party claims arise out of, relate to or result from (i) a breach of any term or condition of this Agreement by MSP or any of its directors, officers, or employees or End Clients or (ii) any grossly negligent act or omission or willful misconduct of MSP or any of its directors, officers, or employees or End Clients.
8.3 Process. The indemnifying party’s obligations under this section shall be contingent upon (a) the indemnified party promptly notifying the indemnifying party in writing of any notice of claim or of threatened or actual suit, (b) the indemnifying party having sole control over defense and/or settlement of any such action, provided that the indemnifying party may not settle any claim or admit liability on the part of the indemnified party without the indemnified party’s prior written consent, which consent must not be unreasonably withheld, and provided that the indemnified party has the right to participate in the defense of such claim at its expense and through counsel of its choosing, and (c) at the indemnifying party’s request and expense, the indemnified party providing reasonable cooperation and assistance in the defense of the claim.
8.4 Remedies. In addition to its obligations under this section, FireMon may, at its option, upon having knowledge that the Licensed Program and FireMon Marks actually or may infringe or misappropriate any person’s intellectual property right or following notice of a claim or of a threatened or actual suit, procure for MSP the right to continue to use the Licensed Programs as furnished or may replace or modify the same to make it non-infringing, at FireMon’s expense. If the foregoing options are unavailable, FireMon may, upon at least thirty (30) days prior written notice to MSP, terminate this Agreement, without cause or liability, by providing written notice to MSP. Upon termination, MSP shall return and FireMon shall accept the return of the infringing Licensed Program and FireMon shall promptly refund to MSP (i) any Usage Fees for the infringing Licensed Program paid to FireMon within the 12 months prior to the effective date of termination and (ii) the remaining unused portion of any prepayment of Maintenance Services for the infringing Licensed Program. This Section 8 sets forth MSP’s sole and exclusive remedy, and FireMon’s sole and exclusive liability, under this Agreement related to intellectual property infringement claims against MSP.
9. LIMITATION OF LIABILITY
9.1. Disclaimer. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST REVENUE, PROFIT, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE POSSIBILITY OF DAMAGES WAS DISCLOSED TO THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH PARTY;
9.2. Monetary Cap. IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF USAGE FEES PAID AND PAYABLE BY MSP TO FIREMON FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO A CLAIM FOR LIABILITY.
9.3 THE FOREGOING LIMITATION OF LIABILITY SET FORTH IN 9.1 AND 9.2 ABOVE SHALL NOT APPLY TO (a) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (b) BREACH OF THE OBLIGATIONS OF SECTIONS 2, 3, 4, 12 OR 14.4 BY A PARTY; (c) ANY CLAIM OR LOSS RESULTING FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF LAW OF OR BY A PARTY, ITS EMPLOYEES, AGENTS, OR CONTRACTORS; (d) ANY CLAIM OR LOSS RELATED TO PROPERTY DAMAGE, PERSONAL INJURY OR DEATH; OR (e) PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
9.4 The limitations of liability reflect the allocation of risk between the parties. The limitations specified in this Section 9 will survive and apply even if any limited remedy specified herein is found to have failed of its essential purpose.
9.5 IN NO EVENT SHALL EITHER FIREMON BE LIABLE TO ANY END CLIENT FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, (INCLUDING BUT NOT LIMITED TO THOSE ARISING FROM LOST REVENUE, LOST PROFITS, BUSINESS INTERUPTION AND/OR DATA LOSS) WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE POSSIBILITY OF DAMAGES WAS DISCLOSED TO FIREMON OR COULD HAVE BEEN REASONABLY FORESEEN BY FIREMON.
10. TERM AND TERMINATION
10.1. Term. This Agreement will take effect on the Effective Date of this Agreement and shall have a term of three (3) years (the “Initial Term” and, together with the Renewal Term (each, if applicable, and as defined below) the “Term”) unless terminated earlier in accordance with this Agreement. For the avoidance of doubt, neither party shall be entitled to terminate this Agreement for convenience during the Initial Term. This Agreement shall automatically renew for two additional two-year terms, unless either party provides written notice of non-renewal to the other at least sixty (60) days prior to the end of the then current term (the “Renewal Term”). Except as expressly provided in the applicable Purchase Order, renewal of promotional or one-time priced subscriptions will be at FireMon’ s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which the volume of Licensed Programs has decreased from the prior term will result in re-pricing at renewal at FireMon’ s applicable list price in effect at the time of the applicable renewal without regard to the prior term’s pricing
10.2.1 Without prejudice to any rights or remedies that may have accrued under this Agreement, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) The other party fails to pay any undisputed amount due under this Agreement on the due date for payment and fails to cure any such delinquent undisputed payment within five (5) business days of receipt of written notice.
(b) The other party commits a material breach of any term of this Agreement (other than failure to pay) and, if such breach is curable, fails to cure such breach within a period of twenty (20) business days after receipt of written notice of such material breach; or
(c) the other party, its creditors or a court institute insolvency, receivership or bankruptcy proceedings or any other proceeding for the settlement of such party’s debts, (2) either party makes an assignment for the benefit of creditors, or (3) either party dissolves or ceases to do business.
10.2.2 If MSP terminates this Agreement due to FireMon’s uncured material breach, FireMon shall, as its sole and exclusive remedy, promptly refund to MSP (i) any Usage Fees for the Licensed Program paid to FireMon within the 12 months prior to the effective date of termination and (ii) the remaining unused portion of any prepayment of Maintenance Services for the infringing Licensed Program.
10.3 Effect of Termination. Following expiration or termination of this Agreement, (a) all rights granted to MSP under this Agreement immediately revert to FireMon; (b) MSP shall immediately cease all use of the FireMon Intellectual Property, including providing the Licensed Programs to End Clients, (c) MSP shall destroy or return to FireMon all copies of the Licensed Programs License Keys and all Confidential Information in their possession or control, and provide FireMon written confirmation thereof, within not more than 10 days; (d) FireMon shall destroy or return to MSP all MSP Confidential Information in its possession or control; and (e) MSP shall remit payment to FireMon within fifteen (15) days of the expiration or termination date for any undisputed unpaid Usage Fees associated with the applicable Initial Term or Renewal Term, as the case may be.
10.4. Survival of Obligations. The following will survive expiration or termination of this Agreement for any reason: (a) obligations relating to nondisclosure of confidential information; (b) obligations relating to indemnification and limitation of liability; (c) obligations to make payments of all undisputed amounts due; (d) obligations related to audits after the Term; (e) all obligations relating to the ownership of intellectual property and (f) all other rights and obligations which by their nature survive this Agreement. Termination or expiration of this Agreement will not relieve either party of any obligations arising out of this Agreement prior to or upon the date of such termination or expiration.
11. MARKETING AND BRANDING
11.1. Use of Name. MSP shall include FireMon Marks as well as FireMon’s company name and logo on its website and in promotions and presentations (provided that FireMon shall have the right to approve of any such use and such FireMon approval shall not be unreasonably delayed, denied, or conditioned). In addition, MSP and FireMon shall publicize the execution of this Agreement and MSP’s use of the Licensed Programs upon prior written approval by either MSP or FireMon, as the case may be (provided that neither party shall unreasonably delay, deny or condition such approval). All uses of FireMon Marks shall comply with the requirements for such marking set forth in Section 11.2.
11.2. Partner Platform Branding. Notwithstanding Section 4.3, MSP may re-brand the Licensed Programs as bundled with MSP’s offerings with MSP’s own or any other party’s brands, logos, trade names and trademarks (collectively, “Third Party Offerings”) provided that (a) FireMon shall have the right to review and approve of any such use (b) no Third Party Offerings may be confusingly similar to the FireMon Marks and (c) if MSP exercises its rights under this Section 11.2, then (1) the portions of the Partner Platform that feature, are associated with or utilize the Licensed Programs shall clearly and prominently include the words “Powered by FireMon” with FireMon Marks, (2) such marking shall appear to End Clients at or near the top of their screens such that End Clients may see the marking without scrolling, (3) such marking shall not appear in proximity with Third Party Offerings except the Partner Platform brand name, if applicable.
11.3 Branding Requirements. Notwithstanding any of the foregoing, all uses of the FireMon Marks by MSP, including the “Powered by FireMon” marking, must be in compliance with the FireMon branding guidelines that FireMon provides to MSP in writing and which FireMon may amend at any time in writing.
11.4 Publicity. FireMon may publicly identify MSP and End Client as subscribers of the Licensed Program and as customers of FireMon, including, without limitation in a press release announcing the execution of this Agreements.
12. EXPORT. MSP agrees to, and shall cause End Clients to comply strictly with all applicable law, including, but not limited to all export control laws and regulations applicable to it. MSP will not request or make any regulatory certifications or applications on behalf of FireMon.
13. FIREMON OBLIGATIONS
13.1 License Key Generation. Provided MSP is in full compliance with the terms of this Agreement, FireMon will generate all necessary License Keys for each Purchase Order for an End Client submitted by MSP and accepted by FireMon.
13.2 Not for Resale License. FireMon will provide MSP with one, non-transferable License Key to the Licensed Programs for internal training and demonstration purposes only and for the purposes mentioned in Section2.1(ii).
13.3 Manner of Performance. FireMon shall (a) conduct business in a professional manner; (b) avoid deceptive, misleading, or unethical practices that are or might be detrimental to MSP or to the public in general. If FireMon uses any subcontractor, FireMon shall be and remain responsible and liable for (i) all acts, errors, and omissions of any such subcontractor and (ii) compliance by any such subcontractor with the terms of this Agreement. All Documentation and support services will be provided in English only.
13.4 Insurance. FireMon shall maintain workers compensation insurance as required by law; employer’s liability, commercial general liability and automobile liability insurance each with coverage of $1 million per occurrence and in the aggregate; and professional liability insurance with coverage of $1 million; and upon request will furnish insurance certificates to MSP.
14. MSP OBLIGATIONS
14.1 FireMon Certified Technical Staff. At least two engineers/architects responsible for the Managed Services will attend an instructor-led on-line class covering the use and administration of the Licensed Products at no cost to MSP. All additional technical training by FireMon shall be at MSP’s sole cost and expense in accordance with FireMon’s then current price list.
14.2 MSP Client Support. Support Representatives shall provide tier 1 and 2 technical support, training, and other professional services to the End Clients.
14.3 License Key Administration. MSP shall administer License Keys to facilitate such access by each of their End Clients. All communications with End Clients regarding License Keys (e.g., passwords) will be conducted by MSP, as applicable.
14.4 End Client Sublicense. MSP shall ensure each End Client receiving services from MSP in connection with the Licensed Program under this Agreement, is subject to a EULA and shall provide a copy of such executed EULA to FireMon upon request.
14.5 Quarterly Reporting. On or before the 10th business day following each calendar quarter, MSP will submit to FireMon a written or electronic report regarding uses of each Licensed Program during the preceding calendar quarter, listing the End Clients name and country, and the associated subscription term for each as well as any License Keys which have been reassigned to a new End Client pursuant to Section 2.3 of this Agreement
14.6 Manner of Performance. MSP shall (a) conduct business in a competent and professional manner; (b) avoid deceptive, misleading, or unethical practices that are or might be detrimental to FireMon, its licensors, and/or the
Licensed Program, or to the public in general; (c) not make any false or misleading representations, warranties, or guarantees with regard to FireMon, its licensors or the Licensed Program; (d) use the Licensed Program in accordance with the then published documentation and specification in this Agreement and (e) not disparage, criticize, or otherwise call into question the Licensed Program, or FireMon and its licensors. If MSP uses any subcontractor for purposes of fulfilling their obligations under this Agreement, MSP shall be and remain responsible and liable for (i) all acts, errors, and omissions of any such subcontractor and (ii) compliance by any such subcontractor with the terms of this Agreement.
14.7 Audit. During the Term of this Agreement and for three (3) years thereafter, MSP shall retain all records that contain data reasonably required to verify MSP’s compliance with this Agreement. FireMon shall (at its own cost) have the right to inspect and audit such records of MSP during normal business hours no more than once quarterly and with reasonable notice. If material discrepancies are identified due to MSP’s breach of its obligations under this agreement, MSP shall pay any underpayments identified and FireMon’s costs and expenses of the audit within fifteen (15) days of being so notified. In addition to and not in limitation of the foregoing, FireMon or its designee may conduct one audit at any time after termination or expiration of this Agreement to confirm compliance, including regarding post-termination obligations, provided that such audit will be conducted in accordance with the preceding terms of this Section 14.7.
14.8 Insurance. MSP shall maintain workers compensation insurance as required by law; employer’s liability, commercial general liability and automobile liability insurance each with coverage of $1 million per occurrence and in the aggregate; and professional liability insurance with coverage of $1 million; and upon request will furnish insurance certificates to FireMon.;.
14.9 Permits. MSP will obtain all necessary licenses and permits required by applicable law or regulation in connection with their promotion, marketing, and sub-licensing of Licensed Programs.
14.10 Client Feedback. MSP hereby assigns to FireMon all of its rights in Client Feedback.
15. GENERAL TERMS
15.1. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party indicated on the signature page of this Agreement, or at such other address as may hereafter be furnished in writing by either party hereto to the other. Notices will be deemed given when delivered to the other party.
15.2. Assignment. MSP shall not assign, subcontract, delegate or otherwise transfer, directly or by operation of law, any of its rights or obligations under this Agreement without the prior written consent of FireMon, such consent not to be unreasonably withheld, delayed or conditioned. For purposes of this section, each of the following transactions shall constitute an assignment for which the prior written consent of FireMon is required: (a) the acquisition by any person, entity or group directly or indirectly, of beneficial ownership of more than 50% of the total voting power of the capital stock or other securities of the MSP; or (b) any merger, consolidation or similar transaction by the MSP with or into any person or entity (even if the MSP is the surviving entity) other than in a transaction in which the holders of a majority of the outstanding voting stock prior to such transaction continue to hold majority of the outstanding voting stock of the surviving or continuing entity following such transaction. FireMon may assign the Agreement, without consent, to any successor to all or substantially all its business or assets to which the Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise; or (c) delegation of any of the MSP’s rights and/or obligations hereunder to a subsidiary or affiliate of MSP. Any attempt to transfer, assign or delegate rights or obligations under this Agreement in a prohibited manner shall be treated as (i) a non-remedial material breach of this Agreement and (ii) void without effect. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
15.3. Waiver. The failure of a party to prosecute its rights with respect to a default or breach hereunder shall not constitute a waiver of the right to enforce its rights with respect to the same or any other breach. No waiver of any provision of this Agreement, or any rights or obligations of either party under this Agreement, will be effective, except pursuant to a written instrument signed by the party waiving compliance, and any such waiver will be effective only in the specific instance and for the specific purpose stated in such writing.
15.4. Anti-Bribery. MSP represents and warrants that (a) it is aware of, understands and will comply with the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA”) and the U.K. Bribery Act, as applicable (collectively, the “Acts”); (b) it will not take any action that might be a violation of either of these Acts or other applicable anti-corruption laws that prohibit the same type of conduct (including, but not limited to, the making of corrupt payments); (c) it has, and will have, policies in place sufficient to ensure compliance with the provisions of the FCPA and U.K. Bribery Act, as applicable; (d) MSP, in the exercise of its rights and the performance of their obligations under this Agreement, or in connection with any transaction contemplated or authorized by this Agreement, have not, and shall not, pay or give, offer or promise to pay or give, or authorize any third party to pay or give, any money or any other thing of value directly or indirectly for the purpose of unfairly obtaining or retaining any business or securing any other unfair advantage to: (i) any government official or government employee (including any official or employee of a state-owned commercial enterprise or public international organization; (ii) any political party or officer or employee of any political party; (iii) any candidate for political office; (iv) any officer or employee of any customer or potential customer; or (v) any other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any of the foregoing persons or entities; (e) any and all amounts paid to MSP by FireMon hereunder, including, but not limited to, any discounts or credits furnished by FireMon, if any, shall not be paid or given to any other person, firm, corporation or other entity, except in payment for a bona fide business purposes authorized by this Agreement and incurred in connection with the performance of services hereunder in accordance with applicable law. MSP acknowledges that any violation of this Section 15.4, or any formal allegation brought by a government agency charged with enforcement of anti-corruption laws that MSP is involved in a violation of any applicable anti-corruption law involving or related to this Agreement, would be a non-remedial material breach of this Agreement, giving FireMon the right to terminate the Agreement immediately upon written notice to MSP without any liability owed by FireMon.
15.5. Trade Compliance. MSP understands that Licensed Program are subject to import, export, re-export, economic sanctions, foreign trade control, antiboycott, and anti-corruption laws and regulations of the United States and other applicable jurisdictions (collectively, “International Trade Laws”), which may include but not be limited to the Export Administration Regulations (“EAR”), the International Traffic in Arms Regulations (“ITAR”), sanctions regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Controls (“OFAC”), U.S. Arms Export Control Act, U.S. Export Administration Act, regulations relating to imports administered or enforced by U.S. Customs and Border Protection, and the U.S. Foreign Corrupt Practices Act. MSP agrees, warrants, and represents that (i) MSP, its shareholders, subsidiaries, affiliates, and their respective directors, officers, employees do not appear on or are subject to any Restricted Party List of an agency of the U.S. Government, an applicable non-U.S. Government, or international organization; and (ii) MSP will not export, re-export, transfer, or offer the Licensed Programs and/or technology subject of this Agreement to any prospective customer or End Client in violation of applicable International Trade Laws. Prior to providing any prospective customer or End Client with access to the Licensed Programs and/or technology subject to this Agreement, MSP shall conduct trade compliance screening of each entity to ensure compliance with the provisions of this Section 15.5. MSP acknowledges that any violation of this Section 15.5, or any formal allegation brought by a government agency charged with that MSP is involved in a violation of any applicable International Trade Law involving or related to this Agreement, would be a non-remedial material breach of this Agreement, giving FireMon the right to terminate the Agreement immediately upon written notice to MSP without any liability owed by FireMon
15.6 Governing Law. This Agreement will be governed under the laws of the State of Kansas, USA, as such laws are applied to agreements between two Kansas residents entered into and to be wholly performed within Kansas. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
15.7. Force Majeure. Neither party shall be responsible for any reasonable delay in its performance, for instance due to acts of God, war, insurrection, extreme weather, fire, flood or other similar causes, provided that the non-performing party gives prompt written notice of such condition and resumes its performance as soon as possible. Notwithstanding the foregoing, this Section 15.7 shall not apply to requirements to make payments under this Agreement.
15.8. Severability. If any of the provisions of this Agreement are held to be void or unenforceable, the parties agree that such determination will not result in the nullity or unenforceability of the remaining portions of this Agreement. The parties further agree to replace such void or unenforceable provisions of this Agreement with valid and enforceable provisions, which will achieve, to the extent legally permissible, the economic, business and other purposes of the void or unenforceable provisions.
15.9. Ambiguities. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.
15.10. Remedies Cumulative. Except as otherwise set forth in this Agreement (a) the rights and remedies of the parties under this Agreement are cumulative and not exclusive of any rights or remedies to which the parties are entitled by law and (b) the exercise by either party of any right or remedy under this Agreement or under applicable law will not preclude such party from exercising any other right or remedy under this Agreement or to which such party is entitled by law.
15.11. Independent Contractors. The parties agree that nothing in this Agreement shall in any way be construed to create a partnership, joint venture or employer-employee relationship between FireMon and MSP.
15.12. Venue. Any legal action, suit or proceeding arising out of or with respect to the Agreement shall be brought solely and exclusively in the courts of the State of Kansas or of the United States District Court for Kansas, and, by execution and delivery of the Agreement, each party hereby irrevocably accepts the exclusive jurisdiction of the aforesaid courts.
15.13. Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous discussions, representations, purchase orders, quotations and proposals, written or oral, with respect to the subject matters discussed herein. MSP acknowledges that it has not entered into this Agreement in reliance on any warranty, representation or statement, other than those expressly set out in this Agreement and that the only remedy available to it in respect of such warranty, representation or statement shall be for breach of contract under this Agreement, provided that nothing in this section will limit or exclude any liability for fraud. No modification of this Agreement will be effective unless contained in a writing executed by an authorized representative of each party.
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LAST UPDATED: 01DEC2020