YOU AGREE THAT THIS INDIRECT RESELLER AGREEMENT (“AGREEMENT”) IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU AS AN AUTHORIZED REPRESENTATIVE OF THE RESELLER. IF YOU DO NOT AGREE, DO NOT CLICK THE “I AGREE” BUTTON. BY CLICKING THE “I AGREE” BUTTON, YOU AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT IS MADE AND ENTERED INTO AS OF THE TIME AND DATE OF CLICK THRU ACTION (“EFFECTIVE DATE”) BY AN AUTHORIZED REPRESENTATIVE OF THE PARTY ENTERING INTO THIS AGREEMENT, ON BEHALF OF ITSELF AND ITS AFFILIATED COMPANIES TRANSACTING BUSINESS WITH FIREMON AS AN INDIRECT PARTNER (“RESELLER”) AND FIREMON, LLC, (“FIREMON”) A MISSOURI LIMITED LIABILITY COMPANY HEADQUARTERED IN THE STATE OF KANSAS.
“Intellectual Property Rights” means the intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual or intangible proprietary rights, in each case, on a worldwide basis and including all goodwill associated therewith.
“End User” means any individual, entity, partnership (whether general, limited, limited liability or otherwise), limited liability company, corporation, association or other unincorporated association who licenses and uses the Products.
1. INTRODUCTION. FireMon maintains direct arrangements with its distributors whereby such distributors may utilize a network of indirect resellers to sell and distribute FireMon products, software, hardware, support or services (collectively, “Products”) to End Users or prospective customers of FireMon.
2. NON-EXCLUSIVE APPOINTMENT AND TERM. Subject to the terms and conditions of this Agreement, FireMon hereby appoints Reseller, and Reseller accepts such appointment, as a non-exclusive, independent reseller to market and sell licenses to customers or prospective customers during the term of this Agreement within the country in which the Reseller is located (“Territory”). This Agreement shall commence on the effective date and shall endure indefinitely subject to the right of either party to terminate this agreement upon giving to the other party thirty (30) days of written notice to that effect. Accordingly, this Agreement may be terminated at any time by either party for any or no reason upon providing thirty (30) days written notice pursuant to Section 11 below.
3. MARKETING, BRAND, AND INTELLECTUAL PROPERTY RIGHTS. Subject to the terms and conditions of this Agreement, FireMon hereby grants to Reseller the limited, non-exclusive, non-transferable rights within the Territory: (a) to promote and demonstrate Products to current and potential End Users and to reproduce or copy FireMon’s promotional literature, brochures, pamphlets and other marketing materials describing the Products that are provided to Reseller by FireMon in order to market Products (the “Marketing Materials“); and (b) to utilize FireMon’s trademarks and trade names used in connection with the Products in conjunction with the Marketing Materials as necessary and for the sole purpose of promoting, marketing and reselling or licensing the Products pursuant to this Agreement. The Marketing Materials, including all copies and reproductions made by Reseller, shall remain the property of FireMon (except insofar as they are distributed by Reseller in the course of the performance of its obligations). and all trademarks and trade names which FireMon uses in connection with the Products are and remain the exclusive property of FireMon. This Agreement gives the Reseller no right therein except a limited right and license to reproduce FireMon’s trademarks and trade names used in connection with the Products in conjunction with the Marketing Materials as necessary and for the sole purpose of allowing Reseller to fully promote, market and resell or license Products pursuant to the terms of this Agreement. All goodwill and other benefits created through Reseller’s use of FireMon’s trademarks shall inure solely to the benefit of FireMon. Reseller’s use of FireMon’s trademarks and trade names on materials other than the Marketing Materials or as otherwise provided by FireMon must be approved in advance by FireMon. FireMon shall have and retain sole ownership of all its Intellectual Property Rights relating to the Products or otherwise, including all goodwill pertaining thereto. Any materials incorporating such Intellectual Property Rights provided to Reseller, including all copies and reproductions made by Reseller, shall remain the property of FireMon, and shall be promptly returned to FireMon upon the expiration or termination of this Agreement. Reseller shall promptly notify FireMon of: (a) any claims, allegations, or other notifications that its marketing, licensing, support or delivery of the Products may or will infringe the Intellectual Property Rights of any other person or entity; and (b) any determination, discovery, or notification that any person or entity is or may be infringing the Intellectual Property Rights of FireMon. Reseller shall not take any legal action relating to the protection or defense of any Intellectual Property Rights pertaining to the Products without the prior written approval of FireMon. 4. RESELLER’S OBLIGATIONS. Reseller shall use commercially reasonable efforts to promote the Products to and solicit orders for the Products from its current customers and other prospective End Users on a continuing basis during the term of this Agreement. Any discounts to FireMon’s Products are set forth in the FireMon Partner Brochure, which may change from time to time at FireMon’s sole discretion. Promotional activities shall include identifying prospective End Users and informing each prospective End User of the benefits and advantages of the Products. Reseller consents to its logo and name to be included in any listing of FireMon’s partners. Further, FireMon may reasonably request the Reseller’s active participation and cooperation in ongoing promotional and marketing activity with respect to the Products (such as case studies, quotes, End User prospect references and potential analyst references). Reseller shall include references to FireMon and the Products in its partner listings. Reseller and its employees and other representatives shall not make any representation or warranty regarding the Products on behalf of FireMon and shall not assume or create any obligation or responsibility, express or implied, on behalf of or in the name of FireMon. Reseller shall (a) make no false or misleading representations with regard to FireMon or the Products; (b) refrain from making any representations, warranties or guarantees to End Users or potential End Users that are inconsistent with the policies of FireMon, any literature distributed by FireMon, FireMon’s End User License Agreement(s) or this Agreement; (c) comply with any and all laws and regulations applicable to its performance under this Agreement; and (d) perform any marketing, promotion, sales or other activities pursuant to this Agreement or otherwise in conjunction with End Users in a professional and workmanlike manner, promptly and courteously respond to End Users’ and potential End Users’ questions, concerns, complaints and requests, and otherwise generally deal with End Users and potential End Users in a professional manner that shall not detract from the good reputation of Reseller or FireMon. Reseller shall have full and sole responsibility for the acts and/or omissions of its employees, agents, representatives and permitted subcontractors, and for all matters relating to their conditions of employment or retention, and shall indemnify and hold FireMon harmless from and against any claims or allegations and costs arising from such acts, omissions or matters including, but not limited to, all attorneys’ fees and costs related thereto. The foregoing includes, without limitation: (a) any act or omission contrary to applicable law or violative of the rights of any third parties; (b) responsibility for compensation including, without limitation, all payroll matters, withholdings and related tax matters; (c) workplace matters including, without limitation, discrimination in employment and harassment; (d) job-related injury or illness including, without limitation, all worker’s compensation insurance and claims handling matters; and (e) any representations, warranties or guarantees made by such employees, agents, representatives and subcontractors, whether in violation of this Agreement or otherwise.
5. RESTRICTIONS ON USE AND WARRANTIES
5.1 Restrictions on Use
Reseller agrees: (a) not to reverse engineer, disassemble, decompile or otherwise attempt to create or recreate the source code, internal structure, functionality or organization of any Products or any part thereof from any such Product, object code or other information that may be made available to it, or to aid, assist or otherwise permit any other party to do so; (b) to promote the Products utilizing only FireMon’s current trademarks, using the Marketing Materials, according to FireMon’s trademark usage guidelines as communicated to Reseller from time to time, and for FireMon’s sole benefit; (c) to reproduce and include all trademark, copyright and other proprietary notices of FireMon on all Products and Documentation and not to remove any Product identifications, any proprietary notices or any restrictions from the Products or any materials provided by FireMon under this Agreement or otherwise; (d) not to modify, alter or copy any Product, create or develop any derivative works based upon or incorporating any Product, or otherwise include any portion of any Product in any other hardware or software except as otherwise approved in writing by FireMon; (e) not to provide use of the Products in a computer service business, rental or commercial timesharing arrangement; (f) not to develop any other products containing any of the concepts or ideas contained in the Confidential Information; (g) not to develop methods to enable unauthorized parties to use, recreate or infringe upon the Products; and (h) that it will not contest or challenge the ownership or validity of, or adopt, apply for, register or otherwise seek to legally protect any of FireMon’s Intellectual Property Rights or anything confusingly similar thereto, or aid or abet others in doing so, either during the term of this Agreement or at any time thereafter, in any jurisdiction throughout the world
5.2 Limited Warranty
FireMon warrants Products will perform substantially in accordance with the specifications and Documentation for a period of thirty (30) days after delivery date. FireMon does not warrant any third party hardware or software furnished with or in conjunction with Products, and any such third party hardware or software shall be the sole responsibility of the manufacturer.
THE FOREGOING WARRANTIES ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY FIREMON. WITH THE EXCEPTION OF THE FOREGOING WARRANTIES, THE SOFTWARE IS PROVIDED “AS IS.” FIREMON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, INTEGRATION AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FIREMON DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SOFTWARE WILL MEET ANY END USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE AND/OR ITS USE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE, IF ANY, WILL BE CORRECTED.
6. LIMITATION OF LIABILITY
EACH PARTY EXCLUDES LIABILITY FOR ALL INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOSS, AND FOR ALL LOSS OF PROFITS OR LOSS OF DATA, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS AND LOSS OF OPPORTUNITY INCLUDING COSTS OF PROCURING SUBSTITUTE GOODS, SOFTWARE OR SUPPORT SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWSOEVER CAUSED AND WHETHER OR NOT FORESEEABLE. EACH PARTY’S MAXIMUM LIABILITY WHETHER FOR BREACH OF THIS AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR MISREPRESENTATION OR FOR ANY OTHER COMMON LAW OR STATUTORY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) IS LIMITED IN THE AGGREGATE TO THE VALUE OF THE FEES PAYABLE BY THE END USER FOR THE PRODUCTS GIVING RISE TO THE LIABILITY DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY TO ANY LIABILITIES OR OBLIGATIONS UNDER SECTIONS 7 AND 8 OF THIS AGREEMENT AND RESELLER’S LIABILITY RESULTING FROM ITS UNLAWFUL OR WILLFUL ACTS OR OMISSIONS.
7. INDEMNITY. Reseller shall indemnify, defend and hold FireMon, and its officers, directors, employees, members, agents and affiliates harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party relating to: (a) a breach or alleged breach by Reseller of any of its representations, warranties, covenants or obligations hereunder or pursuant to any of its agreements with an End User; (b) infringement or misappropriation of any Intellectual Property Rights by Reseller; (c) any negligence or willful misconduct of Reseller or its representatives; or (d) any other claim related to Reseller’s performance under this Agreement.
8. CONFIDENTIALITY AND ACCESS TO SYSTEMS. During the course of performance of this Agreement, FireMon may disclose certain Confidential Information to Reseller solely to permit Reseller to perform its obligations under this Agreement. Reseller shall take the necessary precautions to maintain the confidentiality of Confidential Information pertaining to or disclosed in connection with this Agreement by using at least the same degree of care as Reseller employs with respect to its own Confidential Information of a like-kind or nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. Reseller shall not use or disclose any Confidential Information to any other person, or otherwise exploit any Confidential Information for any purpose, not specifically authorized by FireMon in this Agreement. Reseller shall only make Confidential Information available to its employees on a need to know basis, and Reseller certifies that such employees have previously agreed in writing, either as a condition to employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those of this Agreement, including, without limitation, terms and conditions restricting the use and disclosure of Confidential Information. All files, lists, records, documents, drawings, specifications, equipment and computer programs that incorporate or refer to any Confidential Information shall be returned, deleted or destroyed by Reseller promptly upon termination or expiration of this Agreement.
FireMon permits Reseller access to the FireMon Partner Portal solely for the purpose of submitting Product orders and accessing FireMon Data for approved purposes.. The terms of this Section apply with respect to any information (“FireMon Data”) that FireMon employees, representatives, customers, distributors or other business partners make available to Reseller in the context of the business relationship with FireMon or an End User (including, without limitation all data accessible through the Portal). FireMon may suspend Reseller’s access to any FireMon system at any time for any reason or no reason. Reseller may not access, collect, store, retain, transfer, use or otherwise process in any manner any FireMon Data, except (a) in the interest and on behalf of FireMon, and (b) as directed by authorized personnel of FireMon in writing. Without limiting the generality of the foregoing, Reseller may not make FireMon Data accessible to any subcontractors or relocate FireMon Data to new locations, except as set forth in written agreements with or from FireMon. Reseller shall, at the request of FireMon for any reason whatsoever, immediately return and/or destroy FireMon Data held by Reseller.
9. EXPORT CONTROL. Unless authorized by United States regulation or export license, Reseller will not, in connection with the activities contemplated by this Agreement, export or re-export, directly or indirectly, any technical data, computer software, or any product (or any part of a product), process, or service that is the direct product of any technical data or computer software (hereinafter referred to collectively or individually without distinction as “Export Controlled Products”) to: (i) any end user, person, or entity located in or nationals of a country in Country Group E:1 (currently Iran, Syria, Cuba, Sudan, or North Korea) of the Export Administration Regulations (“EAR”) administered by the US Department of Commerce’s Bureau of Industry and Security; (ii) any end user, person, or entity subject to sanctions administered by the Office of Foreign Assets Control, or the export administration regulations (EAR) administered by the US Department of Commerce’s Bureau of Industry and Security (BIS); (iii) any end user, person or entity that are identified as being engaged in proliferation or as a restricted party on any of the lists maintained by the U.S. Government including but not limited to the Denied Persons List, Unverified List, Entity List, Specially Designated Nationals List, Debarred List, Non-proliferation Sanctions and General Order 3 to Part 736.; (iv) any non-civil (i.e. military) end users or for any non-civil end uses in any country in Country Group D:1 of the EAR; or (v) any end user, person, or entity located in the Crimea region of the Ukraine. The Parties understand that countries other than the United States may restrict the import or use of encryption products or other items and may restrict exports. The Parties agree to comply with any import or other restrictions, and Reseller will use commercially reasonable efforts to cooperate with and assist FireMon in connection therewith and in connection with the EAR restrictions. Reseller represents, warrants and covenants that it is not currently debarred, suspended or otherwise prohibited or restricted from exporting, re-exporting, receiving, purchasing, processing or otherwise obtaining any item, product, article, commodity, software or technology regulated by any agency of the United States, and that it will immediately notify FireMon in the event that any of the foregoing occurs.
10. ANTI-CORRUPTION. Reseller agrees and warrants that it shall: (i) comply with all applicable laws, including without limitation all applicable federal, state, local, national and regional laws, in performing its duties hereunder and in any of its dealings with the Products, including, but not limited to all applicable data protection laws and all applicable foreign or domestic anti-bribery and/or anti-corruption laws, regulations and legislative and/or regulatory requirements, as amended from time to time, including the the US Foreign Corrupt Practices Act 1977 and any laws intended to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“Anti-Corruption Laws”); (ii) refrain from engaging in any illegal, unfair or deceptive trade practices, unethical business practices, and making any representation inconsistent with the specifications provided by FireMon; (iii) not directly or indirectly, pay, offer, promise to pay or authorize the payment of, any monies or financial or other advantage in violation of Anti-Corruption Laws; and (iv) keep full and accurate books and records of all payments made in respect of any Products supplied by FireMon, and to make all such books and records available to FireMon’s duly authorized representatives as deemed necessary by FireMon to verify the Reseller’s compliance with Anti-Corruption Laws and this Agreement.
11. GENERAL PROVISIONS. Any waiver by either party of any condition, part, term, or provision of this Agreement shall not be construed as a waiver of any other condition, part, term or provision or a waiver of any future event or circumstance. Notices to FireMon shall be sent to the attention of the General Counsel via email at [email protected] This Agreement, and any rights or obligations hereunder shall not be assignable or delegated by Reseller by contract or by operation of law, and any attempt to do so shall be null and void. FireMon may assign, novate, sub-license, sub-contract or transfer this Agreement or any of its rights and/or obligations hereunder at any time. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the remainder of this Agreement shall nonetheless remain in full force and effect. FireMon and Reseller are independent contractors dealing at arm’s length and nothing in this Agreement shall constitute the parties as joint venturers, co-owners, or constitute either party as the agent, employee or representative of the other. This Agreement shall be executed and construed in the English language. There are no intended third party beneficiaries to this Agreement. The terms of this Agreement related to Confidential Information, limitations of liability, intellectual property rights, indemnification obligations, dispute resolution, intellectual property rights belonging to FireMon or its suppliers, and any other terms which are either expressed to survive expiry or termination of the Agreement or from their nature or context it is contemplated that they are to survive such termination, shall survive expiration or termination of this Agreement and remain in full force and effect. This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the state of Kansas, without reference to its conflicts or choice of law principles. The parties agree that the sole and exclusive jurisdiction and venue for any and all disputes related to this Agreement shall be in any state or federal court located in or serving Johnson County, Kansas. The United Nations Convention on Contracts for the International Sale of Goods or the Uniform Commercial Code or similar statutes shall not apply with respect to this Agreement. This Agreement constitutes the complete and exclusive statement of the understanding between the parties and supersedes all prior or contemporaneous proposals, oral or written, and all other communications between the parties relating to the specific subject matter of this Agreement.