Worldwide Reseller Agreement v 2.0
READ THIS RESELLER CLICK-THROUGH AGREEMENT BEFORE REGISTERING AS A RESELLER WITH MALWAREBYTES. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS CONTAINED HEREIN, THEN DO NOT REGISTER AS A RESELLER WITH MALWAREBYTES. BY REGISTERING WITH MALWAREBYTES, YOU (AS “RESELLER” AND AS A REPRESENTATIVE AUTHORIZED TO BIND THE RESELLER ENTITY) CONSENT AND AGREE, ON BEHALF OF YOURSELF AND THE RESELLER ENTITY, TO BE BOUND BY THIS AGREEMENT. FURTHER, RESELLER REPRESENTS THAT IT IS A SOPHISTICATED ENTITY, THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND HAS HAD SUFFICIENT OPPORTUNITY TO CONSULT WITH COUNSEL, PRIOR TO AGREEING TO THE TERMS HEREIN AND SUBMITTING ITS REGISTRATION. IF RESELLER HAS ANY QUESTIONS OR CONCERNS, OR DESIRES TO SUGGEST ANY MODIFICATIONS TO THIS AGREEMENT, PLEASE CONTACT THE LOCAL MALWAREBYTES SALES REPRESENTATIVE TO BE REFERRED TO MALWAREBYTES LEGAL.
The parties to this agreement are Reseller and (i) where the Reseller is applying within the United States or Canada, Malwarebytes, Inc., or (ii) where the Reseller is applying outside of the United States or Canada, Malwarebytes LTD (each referred to herein as “Malwarebytes”). The effective date of this Agreement shall commence upon Reseller’s acceptance of this Agreement and completion of the Reseller Program registration process. Upon Malwarebytes’s acceptance of Reseller’s registration, Reseller will be appointed a nonexclusive marketer and reseller of Malwarebytes Products, in the Territory specified by Malwarebytes.
1. DEFINITIONS: The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the Agreement.
1.1. “Confidential Information” shall mean all proprietary or confidential information disclosed by one party to the other party including, without limitation: (i) proprietary product, software or services information, or related design, technology, ideas and algorithms (note the design, technology, ideas, and algorithms in Malwarebytes’s Products and Services, and Software and components therein and related thereto, shall be deemed Malwarebytes “Confidential Information”); (ii) trade secrets; (iii) either party’s technical, business or financial information and plans; (iv) the terms of this Agreement; and (v) any item marked as confidential by the disclosing party. Confidential Information shall not include information that the receiving party can show (a) is or becomes generally known or publicly available through no fault of the receiving party; (b) is known by, or is in the possession of, the receiving party prior to its disclosure, as evidenced by business records, and is not subject to restriction; (c) is lawfully obtained without restriction from a third party who has the right to make such disclosure, or (e) is independently developed by the receiving party, without use of, or reference to, the disclosing party’s Confidential Information.
1.2. “Documentation” means any then-current user documentation, on any media, provided by Malwarebytes for use with the Products and/or Services, available at https://www.malwarebytes.com/partners/.
1.3. “Effective Date” shall mean the date that Malwarebytes accepts Reseller’s application.
1.4. “End User” shall mean any person or entity that purchases a Product or Products for its own personal or internal use.
1.5. “Reseller” shall mean the legal entity and its representative that accepts this Agreement and registers with Malwarebytes to purchase Products and Services from a Malwarebytes Authorized Distributor for resale to End Users.
1.6. “Malwarebytes Authorized Distributor” shall mean any distributor expressly authorized by Malwarebytes in a written agreement to distribute Products to Resellers.
1.7. “Reseller Program” or “MPP” shall mean Malwarebytes’s Partner Program, which shall include all requirements, guidelines and benefits thereof, as further specified in MPP materials (as they may be changed from time to time by Malwarebytes in its sole discretion), available after the registration process at the Malwarebytes Partner Portal, which are incorporated herein by reference.
1.8 “Malwarebytes Partner Portal” shall mean the Reseller website currently located at https://www.malwarebytes.com/partners/or another location designated by Malwarebytes, which website may be updated by Malwarebytes from time to time in its discretion. The Malwarebytes Partner Portal shall contain information, updates and guidelines pertaining to the Reseller Program.
1.10. “Product(s)” shall mean any Software product or cloud based services which Reseller is licensed to sell.
1.11. “Service(s)” means services provided in connection with the Software, which shall be provided solely pursuant to Malwarebytes’s then-current policies.
1.12. “Software” shall mean the Malwarebytes machine-readable object code, whether incorporated in the Hardware or delivered separately, identified in the applicable then-current price list as “available to Reseller,” including any error corrections and bug fixes provided by Malwarebytes.
1.13. “Territory” shall mean the geographic area where Reseller focuses its sales efforts and where Reseller expects to procure and resell at least 90% of its total business volume with Malwarebytes. The Territory, within which the license granted hereunder shall be operative, will be communicated to Reseller upon completion of the Reseller registration process.
2. OWNERSHIP AND RETENTION OF RIGHTS
Reseller hereby agrees and acknowledges that Malwarebytes, its suppliers, and its licensors (if any), own and shall retain all right, title and interest in and to, and Reseller shall have no right, title or interest in and to the following other than the limited license rights expressly set forth in Section 3 of this Agreement: (i) the Products, Software and Services, (ii) the manufacture and/or production of Product (including all copies and derivative works of the Product, by whomever produced), and associated Documentation, including all intellectual property rights embodied therein, including, among others, all patent and trade secret and trademark rights and all copyrights; (iii) all of the service marks, trademarks, trade names or any other designations, and (iv) all copyrights, patent rights, trade secret rights, and other proprietary rights in the Products, Software and Services.
Subject to the terms of this Agreement and solely for the term of this Agreement, Malwarebytes hereby grants to Reseller a non-exclusive, non-transferable, revocable, limited license, actively in the Territory, to market, sell, and distribute properly purchased Product, Services and associated Documentation, and provide properly purchased support Services in accordance with Malwarebytes’s policies and the MPP, only to End Users in the Territory (collectively “Licensed Activities”).
Where Reseller has been assigned the status of an MSSP and complies with program requirements for such an assignment, Reseller is granted a license to use products for the provision of services as described in section 1.13 and in accordance with Malwarebytes’s End User License Agreement, located at https://www.malwarebytes.com/eula/.
Additionally, Malwarebytes hereby grants Reseller, solely for the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Documentation and to make a reasonable number of copies of the Documentation solely for its own business purposes and any pre-sales activities to support Reseller’s marketing of the Product and Services, provided that Reseller must reproduce and include the original Documentation copyright notice and any other notices upon any copies made by Reseller regardless of type of media.
Except as expressly stated in this Section 3, Reseller shall have no license rights under this Agreement.
4. RESTRICTIONS ON USE
Reseller hereby agrees not to: (i) create or copy or attempt to create or copy by reverse engineering, disassembly, decompilation or otherwise, the source code, internal structure, hardware design or organization of the Product, or any part thereof, or to aid or to permit others to do so, except and only to the extent expressly permitted by applicable law; (ii) remove any Product identification or notices of any proprietary or copyright restrictions from any Product or any Product support material; (iii) copy the software, modify, translate or, unless otherwise agreed, develop any derivative works thereof or include any portion of the Software in any other software program; and (iv) separate the Product into component parts for distribution or transfer to a third party.
5. RESELLER RESPONSIBILITIES
5.1. Qualifications. In addition to the responsibilities set forth elsewhere in this Agreement, Reseller agrees to comply with the policies and criteria (corresponding to its assigned partner level) established by Malwarebytes for the Reseller Program, as set forth at Malwarebytes webpage located at: https://www.malwarebytes.com/partners/. Malwarebytes may change such policies and criteria from time to time as it sees fit. It shall be the sole responsibility of Reseller to check this site for updates and to follow and abide by all requirements.
5.2. Sales Efforts. Reseller shall use its diligent efforts to: (i) market, advertise, and otherwise promote and sell the Products and related Services contracts in the Territory, (ii) unless prohibited by law, prevent the export of the Products and Services from the Territory for resale outside the Territory, (iii) perform its obligations under this Agreement, and (iv) further preserve the goodwill and reputation of Malwarebytes and the Products and Services. As part of these efforts, within thirty (30) days of the Effective Date, Reseller shall put a Malwarebytes logo on Reseller’s web site according the relevant specifications in Malwarebytes’s latest Reseller guidelines available at the Malwarebytes Partner Portal and according to Malwarebytes’s applicable policies and guidelines. For clarity, notwithstanding anything to the contrary, Reseller is solely responsible to sell any Products and Services that it purchases from Malwarebytes, and Malwarebytes has no responsibility to assist with that sale and in no way assumes any responsibility to assist with that sale or to ensure any sale is consummated. Reseller is free to set the prices it charges in its discretion, provided it is responsible to ensure full compliance with all laws.
5.3. Not for Resale. Nor for resale Product will only be used for Resellers internal demonstration. Such Products shall not be offered for resale unless otherwise agreed to in writing signed by an authorized representative of Malwarebytes.
5.4. Internet Auction Sales Restriction. Reseller hereby acknowledges and agrees that, due to the complexity of Malwarebytes’s Products, online auction sales do not provide adequate presales support. Therefore, Reseller hereby agrees and warrants that it shall not sell or otherwise make available Products via any online auction websites on the world wide web (for example but not limited to e-Bay), service, or similar bidding medium throughout the duration of this Agreement. For the avoidance of doubt, where a corporate end user utilizes the Internet for an online based tender bidding-system this provision shall not apply. In addition, Reseller acknowledges and agrees that because inadequate presales support reflects poorly upon and tarnishes the Malwarebytes name a breach of this Section 5.4 is a material breach of this Agreement.
5.5. Reseller Support. Reseller, either directly or through its designated support providers, shall provide support to its customers for support Services purchased from Malwarebytes for the Malwarebytes Products distributed and sold hereunder in accordance with the support and maintenance guidelines listed for its MPP level at the Malwarebytes Partner Portal. Reseller shall ensure that all questions regarding the use or operation of the Malwarebytes Products are addressed to and answered by Reseller, and Reseller shall not represent to any third party that Malwarebytes is available to directly answer any Customer questions. Malwarebytes may refer any support questions relating to the Licensed Software distributed hereunder to Reseller. Reseller is responsible to continue to provide support after termination of this Agreement for any reason, in accordance with support contracts purchased by Reseller and pursuant to Malwarebytes’s support policies and is responsible to ensure effective and professional support even after termination of this Agreement. Reseller agrees that in no event will it provide any Services, whether support or otherwise, related to Products except pursuant to Services contracts that Reseller has properly purchased from Malwarebytes for each individual Product and that have been registered with Malwarebytes. In no event will Reseller provide support Services for a particular individual Product utilizing a support contract purchased in relation to a different individual Product. Reseller agrees that it will flow down the responsibility in the immediately preceding sentence to its Customers, including its resellers, and will require its resellers to flow down the responsibility to any of their resellers.
5.6. Condition on Service Agreement Sales. Each purchase of a Malwarebytes Services contract is valid only for the time period designated on Malwarebytes’s invoice to the Malwarebytes Authorized Distributor and must be timely and properly registered at Malwarebytes’s support website https://www.malwarebytes.com/partners/ in relation to a specific Product, and Reseller understand and agrees that the support and warranty terms are as stated at https://www.malwarebytes.com/partners/ or such other website or as otherwise designated by Malwarebytes, and the support and warranty periods will automatically start and run according to Malwarebytes’s policies.
5.6.1. Duty to Pass Down Notice and Terms. Reseller is responsible to ensure that it obtains and documents the date of the initial shipment from Malwarebytes from the Authorized Distributor at the time of purchasing Product and/ or a Service contract. In addition, prior to re-selling a Product and/or a Services contract, the Reseller must clearly explain to any End User and clearly document that it has explained, the following: (i) the date of the initial shipment from Malwarebytes, and (ii) that the term for all Services and warranties will be governed by Malwarebytes’s policies, as currently stated at https://www.malwarebytes.com/eula/ or such other website or as otherwise designated by Malwarebytes. Reseller is responsible to contractually bind End Users to the terms stated in this Section, and Reseller agrees to indemnify Malwarebytes for any failure to comply with this provision.
5.6.2. Failure to Comply with this Section. If a Reseller sells a Services contract or Product with a warranty, for which the service or warranty period starts prior to registration, or if it fails to comply with the aforementioned pass-down requirements, it shall be subject to remedial action, including but not limited to, the cost of a new Services contract, the cost of a Services or warranty extension, and/or termination of its partner status. Both parties to this Agreement agree that failure to comply with the section shall be considered a material breach of this Agreement.
5.7. End User License Agreement, Warranties. Reseller may distribute the Products and Services only with all warranties, disclaimers, license agreements, including Malwarebytes’s then-current End User License Agreement, or EULA, and Documentation as shipped from Malwarebytes, and Reseller is responsible to ensure all End Users are provided such End User License Agreement and Documentation and are subject to such terms and agreements. Reseller shall take all steps reasonably requested by Malwarebytes to inform End Users of all applicable restrictions and limitations regarding the use of Products and Services. Any guaranties, warranties, promises or commitments given or made by the Reseller which go beyond the Malwarebytes standard license terms provided by Malwarebytes with the Product are not binding for Malwarebytes and are at the sole responsibility of Reseller, and Reseller hereby agrees to indemnify and hold harmless in full Malwarebytes related to any such guaranties, warranties, promise or commitments.
5.8. Maintenance of Qualified Individuals. Reseller hereby represents and warrants it possesses the experience, skills and resources required to perform its obligations under this Agreement. Consistent with this Agreement and the MPP Guidelines, Reseller shall, at its expense, retain adequate numbers of qualified individuals to: (i) provide pre and post sales support services to Customers in line with the requirements of Malwarebytes’s support policies, as amended from time to time in Malwarebytes’s sole and absolute discretion and (ii) perform any upgrades and/or updates to Malwarebytes’s Products and Services as may become necessary once such Products have come within Reseller’s possession, custody or control.
5.9. Records and Reports; Audit Rights. Reseller shall maintain accurate and complete records of its marketing, sales, support, and maintenance Services activities under this Agreement and/or related to sales of Malwarebytes Products and Services. Reseller shall maintain accurate and complete records relating to import and export compliance for the number of years required by each Territory, and in no event less than 5 years. During the term of this Agreement, Reseller shall provide information as reasonably requested by Malwarebytes to ensure compliance by Reseller with the terms of this Agreement and the MPP guidelines, and Malwarebytes or its representatives may, upon reasonable notice to Reseller and during normal working hours, inspect the business records of Reseller as reasonable to verify Reseller’s compliance. Reseller shall promptly provide Malwarebytes full access to any records requested by Malwarebytes.
5.10. Indemnification by Reseller. Reseller shall indemnify and hold Malwarebytes harmless from and against any and all claims, liabilities, losses, damages or judgments, including all reasonable legal fees and expenses related thereto that arise from or are related to: (i) Reseller’s modification, use or distribution of the Product and Services not in strict accordance with this Agreement and the MPP guidelines; (ii) any misrepresentation or any breach of any warranty, covenant or agreement of Reseller; (iii) any infringement or misappropriation of any of Malwarebytes’s intellectual property rights, including, among others, patents, copyrights, and trade secrets, or (iv) any action against Malwarebytes for injuries or damage to persons or property caused or claimed to have been caused by the negligent or intentional acts or omissions of Reseller personnel while in the course of performing work under this Agreement. Reseller’s obligations under this Section are contingent upon Malwarebytes: (a) giving prompt written notice to Reseller of any such claim; (b) allowing Reseller to control the defense and any related settlement of any such claim; and (c) furnishing Reseller with reasonable assistance in the defense of any such claim, so long as Reseller pays Malwarebytes’s out-of- pocket expenses.
5.11. Ethical Business Practices. Reseller will ensure compliance in full by all of its employees and contractors with the entirety of all of the provisions of this Section 11 below. Reseller will conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of Malwarebytes.
6. MALWAREBYTES RESPONSIBILITIES
6.1. Malwarebytes Support. Malwarebytes shall provide support Services according to the obligations in a properly purchased, registered and fully paid End User, as pursuant to its policies and procedures and as reasonably necessary for Reseller to support its Customers in accordance with the then current guidelines posted at the Malwarebytes Partner Portal. Malwarebytes shall provide support, maintenance and updates only if the Reseller or the End User has purchased a valid, fully paid up and correctly registered support contract, and, notwithstanding anything to the contrary, Malwarebytes shall have no support, maintenance or update responsibility unless Malwarebytes has been fully paid and unless pursuant to the terms of a Malwarebytes support contract, appropriately registered and entered into with Malwarebytes. Furthermore, Malwarebytes shall have no support obligations related to Product purchased or shipped in breach of any of the terms in this Agreement.
6.2. Collateral. Malwarebytes or Malwarebytes Authorized Distributors will make available to Reseller various marketing materials and training in the installation, use, operation and support of the Products and Services in accordance with Malwarebytes’s then-current guidelines and policies.
7. TERM AND TERMINATION
7.1. Term. This Agreement shall become effective as of the Effective Date and shall remain in effect until terminated in accordance with this Agreement.
7.2. Termination at Will. This Agreement may be terminated by either party at will, for any reason or for no reason, upon no less than thirty (30) calendar days’ prior written notice to the other party hereto. The parties acknowledge and agree that, due the complex nature of their commercial relationship and each party’s need to manage its supplier/partner relationships, this Section 7.2 is a material inducement for each party to enter into this Agreement, and this provision shall be enforceable by the other party in all circumstances.
7.3. Termination for Cause. Either party may terminate this Agreement for material breach with immediate effect if such a breach has not been cured within fifteen (15) calendar days after written notice by the non-defaulting party to the defaulting party or immediately upon notice of termination in the event of a material breach that by its nature cannot be remedied within fifteen (15) calendar days.
7.4. Termination for Insolvency. Either party may terminate this Agreement, without notice, upon learning the following information in good faith: (i) the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other party’s debts, (ii) the other party’s making an assignment for the benefit of creditors, or (iii) the other party’s dissolution or ceasing to do business.
7.5. Effects of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, all licenses to Reseller shall immediately terminate and Reseller shall immediately (i) cease all use of Product and Documentation; (ii) discontinue any use of the name, logo, Trademarks, servicemarks or slogans of Malwarebytes and the trade names of any Product; (iii) discontinue all representation or statements from which it might be inferred that any relationship exists between Reseller and Malwarebytes; (iv) cease to promote, solicit orders for or procure orders for Product (but Reseller shall not act in any way to damage the reputation or goodwill of Malwarebytes or any Product); and (v) promptly return or destroy all Confidential Information of Malwarebytes and related materials. Notwithstanding anything to the contrary, all sales are final and, in no event will termination of this Agreement result in rights of Reseller to return Product to Malwarebytes or to the Malwarebytes Authorized Distributor or to any refund.
7.6. Survival of Terms. The terms contained within the following sections shall survive any expiration or termination of this Agreement: Section 2, relating to Ownership and Retention of Rights; Section 4, relating to Restrictions on Use; Section 5.5, Reseller Support; Section 5.11, Indemnification by Resel; Section 7, relating to Term and Termination; Section 8, relating to Confidential Information; Section 9, relating to Trademarks, Servicemarks and Domain Names; Section 10, relating to Warranty and Liability Disclaimers; and Section 12, relating to General Provisions.
8. CONFIDENTIAL INFORMATION
8.1. Protection of Confidential Information. Each party shall protect the other’s Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information. Neither party shall disclose to third parties the other’s Confidential Information without the prior written consent of the other party. Neither party shall use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Each employee or agent of Reseller, performing duties hereunder, shall be made aware of this Agreement and shall execute a document that binds said employee or agent of Reseller to the same level of confidentiality contained herein.
8.2. Disposition Upon Termination. Upon the termination of this Agreement for any reason whatsoever, or in the event that Malwarebytes reasonably determines that Reseller no longer requires access to the Confidential Information in order to perform its obligations, Reseller shall return to Malwarebytes, or shall destroy, as Malwarebytes shall specify, all copies of all the Confidential Information in Reseller’s possession. Within five (5) calendar days thereafter, Reseller shall provide Malwarebytes with a certificate, executed by an officer of Reseller, confirming that all copies of all such Confidential Information have been returned to Malwarebytes or destroyed, as the case may be.
8.3. Permitted Disclosure. Notwithstanding any provision in this Agreement to the contrary, each party may disclose portions of the other’s Confidential Information (i) to its lawyers and accountants who have a need to know such information and who are under the same protection and use obligations as in Section 8.1 above and (ii) pursuant to an order of a governmental agency or court of competent jurisdiction compelling disclosure, provided that the owner of the Confidential Information shall be given reasonable advance notice of such intended disclosure.
8.4. No Publicity. Reseller will not release information about the existence of this Agreement, its value, or its terms and conditions, through any media including but not limited to, the issuance of any news release, announcement, denial, or confirmation. Reseller shall not refer to Malwarebytes in connection with any product or service, offering, advertising, promotion, web site, press release or publication of Reseller or a third party on behalf of either, except with the prior express written authorization of Malwarebytes. Reseller must obtain prior written authorization from the Malwarebytes corporate communications department for any exceptions to this Section. Nothing in this Agreement implies that Malwarebytes will agree to any publicity.
9.TRADEMARKS; SERVICEMARKS AND DOMAIN NAMES
9.1. Trademark Ownership and Authorized Use. Reseller acknowledges and agrees that Malwarebytes owns all Malwarebytes trademarks, servicemarks and logos (“Marks”), including, but not limited to, those listed at www.malwarebytes.com/privacy and that any and all goodwill derived from the use of the Marks by Reseller hereunder inures solely to the benefit of Malwarebytes. During the Term, Malwarebytes grants Reseller a nonexclusive, nontransferable limited right to use and display Marks claimed or provided by Malwarebytes solely in connection with and to the extent reasonably necessary for the resale, marketing, and distribution of Malwarebytes Products. Reseller’s use of the Marks shall be subject to the terms and conditions contained in Malwarebytes’s trademark guidelines to which Reseller hereby agrees to be bound. Malwarebytes’s trademark guidelines are available at the Malwarebytes Partner Portal and may be modified from time to time by Malwarebytes, in its sole discretion. Reseller may not remove or alter copyright notices, Marks or packaging found on Product or in Documentation. Use of the Marks does not create in Reseller’s favor any right, title or interest in the Marks or in continuing rights to market or distribute the Product.
9.2. Domain Names. Reseller agrees and acknowledges that it may not use or register or attempt to register the name “Malwarebytes” or any of Malwarebytes’s other Marks, or any derivative thereof, for any Internet domain name, without Malwarebytes’s express prior written consent, which Malwarebytes may withhold in its sole and absolute discretion. Reseller further agrees not to: (i) register a domain name or URL that contains any of the Malwarebytes Marks (for example, Malwarebytes.com, Malwarebytes.fr or MBAM.com); or (ii) register a domain name or URL that contains a misspelled version of any of any Malwarebytes Marks, or a domain name that is confusingly similar to any of Malwarebytes’s Marks (e.g., Malwarebytes.com). To the extent Reseller has registered, or in the future registers, a domain name or URL which contains any Malwarebytes Marks, or any term that is confusingly similar to any Malwarebytes Marks, Reseller agrees to assign and hereby assigns and transfers all rights in, and title to, such domain name to Malwarebytes without further consideration, and, upon request by Malwarebytes, Reseller shall cease its use of such domain name. In such event, Reseller shall cooperate, at its cost, to effect such assignment and transfer to Malwarebytes
10. WARRANTY AND LIABILITY DISCLAIMERS
10.1. Disclaimer. EXCEPT FOR ANY APPLICABLE EXPRESS WRITTEN WARRANTY SET FORTH IN MALWAREBYTES’S THEN-CURRENT END USER LICENSE AGREEMENT AS PROVIDED BY MALWAREBYTES WITH MALWAREBYTES’S PRODUCT, WHICH MAY BE FORFEITED IF NOT REGISTERED IN A TIMELY FASHION AND WHICH MAY NOT BE APPLICABLE, MALWAREBYTES PROVIDES ITS PRODUCTS AND SERVICES “AS IS” AND MAKES NO WARRANTIES WITH RESPECT TO ANY PRODUCT, LICENSE OR SERVICE AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, EFFECTIVENESS, USEFULNESS, RELIABILITY OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND ANY WARRANTIES OF NONINFRINGEMENT. AS BETWEEN MALWAREBYTES AND RESELLER, ALL SALES ARE FINAL AND IN NO EVENT WILL RESELLER BE ENTITLED TO ANY RETURN RIGHT, REFUND, OR CANCELLATION RIGHT VERSUS MALWAREBYTES.
10.2. Limitation of Liability. EXCEPT FOR RESELLER’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT AND INFRINGEMENT OR MISAPPROPRIATION BY RESELLER OF MALWAREBYTES INTELLECTUAL PROPERTY OR CONFIDENTIAL INFORMATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR RELATED TO THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, INDEMNIFICATION, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED; OR (II) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. IN NO EVENT SHALL MALWAREBYTES’S TOTAL LIABILITY UNDER THIS AGREEMENT OR RELATED TO THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, INDEMNIFICATION, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNT ACTUALLY RECEIVED BY MALWAREBYTES AS A RESULT OF ORDERS PLACED BY RESELLER DURING THE THREE (3) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH MALWAREBYTES LIABILITY.
11. COMPLIANCE WITH APPLICABLE LAWS
11.1. Compliance with Laws. Reseller will comply with, and shall be solely responsible for complying with, all applicable laws and regulations, including but not limited to environmental laws and regulations, applicable in the Territory, or any nation, or political subdivision thereof, in which it engages in business while performing its responsibilities hereunder as well as those applicable to the distribution and sale of the Product, or performance of services by Reseller. Reseller shall bear all expenses and costs related to compliance with any laws and/or regulations.
11.2. Export and Import Controls. Reseller acknowledges and agrees that Malwarebytes is a US-headquartered company, and that the Product, Software, Documentation, Confidential Information, technical data, and performance of the Services are subject to export and import control laws and regulations of various countries. Such laws and regulations include, without limitation U.S. Export Administration Regulations, and in the performance of its obligations, Reseller shall at all times strictly comply with, and shall cause its agents, end-users, customers, representatives and suppliers to comply with, all laws, regulations and orders, and agrees to commit no act which, directly or indirectly, would violate any law, regulation or order, including, without limitation, tax, export and foreign exchange laws, import controls, export controls, anti-boycott, banking or ITAR regulations. Reseller expressly agrees that Reseller shall not, and shall cause its representatives, agents, end-users, and customers (if any) not to (a) export, re-export, divert or transfer Malwarebytes’s Product or any direct product thereof to any destination, company or person restricted or prohibited by the United States export controls, or (b) disclose any data derived from Malwarebytes’s Product or any direct product thereof to any national of any country when such disclosure is restricted or prohibited by the United States or host country’s export controls, and shall obtain required U.S and foreign export and import licenses, as applicable. As part of its compliance efforts, Reseller agrees to include provisions at least as restrictive as the provisions in this Section in any of its contracts with partners, agents, suppliers, end-users, customers, or representatives. Additionally, Reseller agrees that none of the Products, Software, Services, Documentation, Malwarebytes technology, materials, tools or technical data is being, or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to any US or foreign proscribed or embargoed or terrorist countries or their nationals, nor be used for nuclear activities, chemical/biological weapons, or missile projects unless Reseller has received authorization by the US Government and/or the appropriate foreign government. Reseller further agrees not to process or incorporate Malwarebytes’s products and technology into secondary products which contribute to the design, development, production, stockpiling or use of nuclear, chemical/biological weapons or missiles. Proscribed countries are set forth in the U.S. Export Administration Regulations and any appropriate foreign regulations. Reseller hereby certifies that it and its Customers and End-Users are not on the U.S. Department of Commerce’s Denied Persons List, Entity List or affiliated lists or on the U.S. Department of Treasury’s Specially Designated Nationals List and are not otherwise prohibited from receiving the Products or Service. Reseller agrees to comply strictly with all U.S. and host country import/export laws and assumes sole responsibility for obtaining licenses to import, export or re-export as may be required. Certain product with encryption functions may be subject to additional restrictions, including restrictions on distribution to government end-users outside the License Exception ENC Favorable Treatment Countries (Supplement No. 3 to Part 740 of the U.S. Export Administration Regulations). This provision shall survive the expiration or termination of this Agreement. Upon request by Malwarebytes, Reseller shall provide certificates signed by an authorized representative of Reseller, certifying compliance with applicable laws in general and with specific laws, as requested by Malwarebytes. The Reseller agrees that Reseller is responsible to pass down the requirements of this Section to any of its reseller partners, Integrators, MSSP’s, and end users, or other entities to which Reseller sells any Malwarebytes Products or Services and that Malwarebytes is not responsible for Reseller’s export or import into the applicable Territory. Furthermore, Reseller hereby agrees that, for any orders that Reseller places with Malwarebytes whereby any unique legal or regulatory requirements may apply to Malwarebytes (such as any requirements related to the International Traffic in Arms Regulations “ITAR”, or Buy American Act “BAA”, or any requirements related to the Trade Agreements Act “TAA”), Reseller is responsible to clearly describe in detail any of those requirements in writing on the Purchase Order submitted to Malwarebytes.
11.3. Anti-Corruption Practices. Reseller hereby agrees that it and its employees, consultants, agents and representatives will fully comply with, and fully abide by, the U.S. Foreign Corrupt Practices Act and United States and applicable local country or other anti-corruption and anti-bribery laws and regulations. Reseller hereby represents and warrants to Malwarebytes and agrees that it will not, either directly or indirectly, offer any payment or other gift or promise, or authorize the giving of anything of value, for the purpose of influencing an act or decision of an official of any Government or of an employee of any company in order to assist Malwarebytes or Reseller in obtaining, retaining, or directing any business or any sale. Reseller represents and warrants to Malwarebytes that neither it nor any of its employees, officers or other agents is an official, employee, agent or active member of the armed services of the Territory government or active member or affiliate of a governmental entity, an official of the Territory government or other governmental entity, an official of a political party, or a candidate for political office. Reseller covenants that it will promptly notify Malwarebytes in the event any of its employees, officers or other agents assumes the position of government official during the term of this Agreement. Reseller represents and warrants to Malwarebytes that neither it, nor any of its employees or representatives, has been charged with, convicted of, or pleaded guilty to an offense involving fraud, corruption, moral turpitude, and that it is not now listed by any government agency as debarred, suspended, proposed for suspension or debarment, or otherwise is ineligible for government procurement programs. In carrying out its obligations under this Section, Reseller warrants that it will, among other things, exercise diligence in selecting any employees or agents, provide appropriate training to them, and monitor their activities to ensure compliance. Reseller hereby agrees to give prompt written notice to Malwarebytes in the event that Reseller has failed to comply with or has breached any of Reseller’s representations, warranties, covenants or agreements herein, or in the event of any allegations of improper payments in connection with, or related to, this Agreement or the business contemplated hereunder. Reseller shall retain books and records to evidence its compliance with this Section 11.3, including, among others, a full record of all expenses incurred in connection with any business in connection with Malwarebytes and written, detailed invoices to support all payments to third parties in connection therewith, and, upon reasonable notice by Malwarebytes, will permit Malwarebytes review or audit all of the books and records of Reseller related to the activities of Reseller under this Agreement. Reseller will fully assist Malwarebytes in investigating any allegations of improper payments or other violations of the provisions of this Section, and will fully assist Malwarebytes in investigating such allegations and remedying any such violations. Reseller agrees and is responsible to pass down the requirements of this Section to any resellers or other partners or entities through which Reseller sells Malwarebytes Products or Services.
11.4. Conflicts of Interest; Gifts. Reseller certifies that, to the best of Reseller’s knowledge and belief, after conducting a reasonable and appropriate review, no economic, ownership, beneficial interest, employment or managerial relationship exists, directly or indirectly, between Reseller and any employee or officer of Malwarebytes or member of the Board of Directors of Malwarebytes, or between Reseller and any relative of any such Malwarebytes employee, officer or Board member. For reference to help Reseller make the above certification, Malwarebytes’s Board members and officers are listed on Malwarebytes’s website at www.Malwarebytes.com. Reseller hereby certifies and agrees that, except for customary offerings that are appropriate under applicable laws and that are, in the aggregate, nominal in value and not in exchange for business, Reseller and its employees, agents and representatives have not and will not, directly or indirectly, offer, provide, or participate in providing, to Malwarebytes or any Malwarebytes employee, agent or representative any money (except for the proper payment by Reseller to Malwarebytes through its finance department for Reseller’s purchase of Malwarebytes’s products and services as contemplated by this Agreement), gift item, personal service, entertainment, reimbursement of expenses or payment of expenses, such as travel costs, unusual hospitality or other items of value. Reseller certifies that it and its employees, agents and representatives have not, directly or indirectly, offered, provided or participated in providing, and will not, directly or indirectly, offer, provide or participate in providing, any Malwarebytes employee, agent, or representative, any money, improper payments, “kick-backs,” improper profit sharing, or other improper items of value, and Reseller further certifies that it has not received, and will not accept, any of the foregoing from any Malwarebytes employee, agent or representative, in exchange for entering into this Agreement or in connection with business under this Agreement. Further Reseller shall notify Malwarebytes immediately in writing if it becomes aware that any of its officers, employees, representatives, or other agents has engaged in any conduct in violation of the above clauses or in violation of applicable laws. Any violation of the provisions of this Section constitutes a material breach of this Agreement.
12. GENERAL PROVISIONS
12.1. Governing Law; Venue; Settlement of Controversies. Any action arising from or related to this Agreement will be governed by California law, excluding any choice of law rules (including the United Nations Convention on the Sale of Goods) that would require the application of laws other than those of California. Any controversy or claim arising out of or relating to this Agreement shall be determined by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution. The arbitration shall take place in Santa Clara County, California, the proceedings will be conducted in English and the arbitral award shall be final and binding on the parties. The parties hereby agree that any such arbitral award shall be automatically binding on the parties and automatically enforceable, and deemed enforced, in court in California and in any other jurisdiction, including jurisdictions outside of the United States. For any required enforcement of any such arbitral award, the parties hereby agree to exclusive jurisdiction in the courts in Santa Clara County, California. In the event, the a court of competent jurisdiction find the agreement to arbitrate as provided for in this Sub-section 12.1 to be unenforceable, the parties hereby agree to the exclusive jurisdiction in the courts in Santa Clara County, California and agree to waive any right to a trial by jury they may have.
12.2. English Language and Interpretation. This Agreement is in the English language only, and English shall be the controlling language in all respects. Any versions of this Agreement in any other language will be for accommodation purposes only and will not be binding upon either party. All communications and documentation for the Products and Services to be furnished under this Agreement shall be in the English language. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting Party
12.3. Taxes. Reseller shall bear and be responsible for the payment of all taxes, fees, or duties, (excluding taxes based on Malwarebytes’s income) in the Territory, however designated, associated with the purchase or license of any Product and Services or Documentation based upon this agreement.
12.4. Orders, Payment and Delivery. All orders for the Products and Services, delivery of the Products and Services, payment for the Products and Services, and terms governing each shall be negotiated between Reseller and Reseller’s Malwarebytes Authorized Distributor, and shall be governed by the definitive agreement(s) entered into by and between them.
12.5. Independent Contractors. The relationship between Malwarebytes and Reseller established by this Agreement is that of independent contractors. Nothing contained in this Agreement or in a party’s performance thereof shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
12.6. Assignment. Reseller may not assign, delegate, sub-contract or otherwise transfer this Agreement or any of its rights and obligations, whether voluntarily, by operation of law or otherwise, without Malwarebytes’s prior written approval. Notwithstanding anything to the contrary, Malwarebytes may, without consent, assign, delegate, sub-contract or otherwise transfer this Agreement or any of its obligations hereunder to any successor, assignee or surviving entity in the event of a merger, acquisition or purchase of at least fifty percent (50%) of Malwarebytes’s assets, or to any subsidiary or affiliate of Malwarebytes.
12.7. No Waiver; Severability. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
12.8. Notices. All notices or other communications required or permitted hereunder shall be in the English language, in writing, and shall be deemed to have been given if sent via electronic mail: (i) by Reseller, in hard copy writing mailed by registered air mail postage prepaid, to the attention of Malwarebytes’s General Counsel, with a second copy sent separately by Reseller to Malwarebytes’s Legal Department, at 3979 Freedom Circle, 12th Floor, Santa Clara, 95054 USA, or to such other address as provided in writing by an authorized representative of Malwarebytes, (ii) by Malwarebytes to the e-mail address submitted by Reseller during the MPP registration process, or (iii) by Malwarebytes if placed on it’s Partner Portal webpages. Notices by Malwarebytes shall be deemed received one (1) business day after being sent by electronic mail. Notwithstanding anything to the contrary, the hypertext links referred to in this Agreement may be changed by Malwarebytes at any time in its sole and absolute discretion, without notice.
12.9. Force Majeure. Except for the obligation to make payments, neither party will be responsible for any failure to perform due to causes beyond its reasonable control (i.e., strike, fire, floods, government acts, orders or restrictions, failure of suppliers) nor due to negligence of the non-performing party. In the event of non-performance due to Force Majeure, the defaulting party shall have ninety (90) calendar days to cure the default, after which the non-defaulting party may elect to terminate this agreement and or cancel or suspend any Purchase Orders under the Agreement by written notice to the defaulting party.
12.10. Government Use. Software and Documentation delivered to an agency or instrumentality of the United States Government shall identify the Software and Documentation as “commercial computer software” and “commercial computer software documentation” and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable, and shall restrict the Government’s rights to use, reproduce or disclose such Software and accompanying Documentation in accordance with, and no more broad than, any licensing granted herein.
12.11. No Other Rights Conferred. Nothing contained in this Agreement shall be construed as conferring by implication, estoppel or otherwise upon either party hereunder any license or other right except the licenses, rights and uses expressly granted hereunder to a party hereto.
12.12. Click-through Version Governs. The click-through version of this agreement (which appears during the MPP registration process), or a version approved by Malwarebytes Legal and signed by an authorized representative of Malwarebytes, must be accepted by Reseller in order to complete the registration process and shall supersede all prior agreements, commitments or representations between the parties with respect to the subject matter herein, whether oral or written, as well as any downloaded version of the agreement, whether or not such downloaded version is signed by either party.
12.13. Counterparts; Section Headings. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument. The section headings contained herein are for convenience of reference only and shall not be considered as substantive parts of this Agreement.
12.14. Updates on Malwarebytes Web Site. Notwithstanding anything to the contrary, this Agreement, along with other Reseller Program materials on the Malwarebytes Website or Malwarebytes’s Partner Portal, may be updated by Malwarebytes from time to time in its discretion, and Reseller shall be bound by such updates. Malwarebytes reserves the right to modify this Agreement in its sole discretion by providing no less than thirty (30) calendar days notice of such changes. Notice shall be sent through Malwarebytes’s formal channel alerts and posted on Malwarebytes’s Partner Portal. Reseller shall be solely responsible to monitor the Partner Portal for updates and changes. Orders for the purchase of Malwarebytes Products placed by Reseller subsequent to notification period shall constitute acceptance of the updated or modified Agreement. Any purported changes to this Agreement that are not entered into by, or not issued by, an actual authorized representative of Malwarebytes and that are not posted on the Partner Portal, shall be null and void and shall not be binding on Malwarebytes. For clarity, notwithstanding anything to the contrary, in no event shall any sales executive, sales representative or other sales or systems or sales engineer employee of Malwarebytes be authorized to bind Malwarebytes, and any purported agreement by any such representative or employee, or any Malwarebytes representative not in fact authorized to bind Malwarebytes, shall be null and void and shall not be binding on Malwarebytes.
12.15. Representation of Authority and Voluntary Nature of Agreement. By submitting this Registration Agreement and thereby agreeing to its terms, the submitting individual represents that he or she is authorized to bind Reseller in full to the terms in this Agreement. Reseller acknowledges and agrees that it has carefully read this Agreement and fully understands and agrees to its contents, including but not limited to the termination provisions in Section 7, the warranty disclaimer and limitations on Malwarebytes’s liability in Sections 10.1 and 10.2, and the consent to arbitrate and waiver of its right to a jury trial in Section 12.1. Reseller hereby acknowledges and agrees that it has had the opportunity to negotiate the terms of this Agreement and request modifications. Further, each party represents that it has entered into this Agreement without undue influence or unequal bargaining power, that each party is sophisticated and accepts responsibility for entering this Agreement, and that each party is sophisticated in commercial matters and has had the opportunity to seek the advice of counsel prior to executing this Agreement.
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