This PARTNER AGREEMENT and the PARTNER FORM (collectively, the “Agreement”) is made as of the Effective Date (as set out in the Partner Form) (“Effective Date”) by and between OTORIO (as specified in the Partner Form) ”OTORIO”, and the Partner (as specified in the Partner Form) “Partner”. OTORIO and Partner each shall be referred to as a “Party” and together as the “Parties”.
WHEREAS, OTORIO is the owner, developer and provider of the OTORIO Platform, OTORIO Services and Professional Services; and
WHEREAS, Partner wishes to acquire a non-exclusive right to partner with OTORIO in accordance with this Agreement, and represents and warrants that it has the knowledge, experience, ability and financial capability to assume and perform the obligations herein.
NOW THEREFORE, in consideration of the mutual representations, warranties, promises, covenants and agreements hereinafter made, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
NOW THEREFORE, the Parties agree as follows:
For the purposes of this Agreement, the following definitions shall apply:
1.1. “End User Customer” means any third-party customer that (a) purchases the OTORIO Platform and/or Professional Services for its own personal or internal use; or (b) is provided with or accesses results from the OTORIO Platform and/or Professional Services via a Partner; and (c) accepts the Subscription Terms and Conditions.
1.2 "Documentation" means any then-current user documentation, on any media, provided by OTORIO for use with the OTORIO Platform.
1.3 “Hardware” means the Edge devices, or any other device listed in OTORIO’s then current price list.
1.4 “Intellectual Property Rights” means any and all rights, titles, and interests in and to inventions, discoveries, works of authorship, software, technology, know-how, designs, ideas, algorithms, databases, records, and other intellectual property, in whatever form and whether or not protectable or registrable, including without limitation patents, copyrights, trade secret rights, design rights, trademarks and similar branding rights, as well as all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of, and goodwill associated with, the foregoing rights.
1.5 “MSSP” means a managed security service provider that purchases the OTORIO Platform and/or Professional Services as part of its chargeable services packages offered to their End User Customers.
1.6 “MSSP Services” means any service provided by the Partner to an End User Customer that makes the functionality of the OTORIO Platform and/or Professional Services available as part of the MSSP’s service package to End User Customers.
1.7 “OTORIO Marks’ means OTORIO’s trademarks, trade names, logos, design marks, service marks, service names, trade dress and brand names.
1.8 “OTORIO Platform” means OTORIO’s proprietary OT cyber security software together with any Hardware that the Partner is licensed to sell, and any associated Documentation.
1.9 “OTORIO Services” means any services provided by OTORIO to Partner under the SLA.
1.10 “Professional Services” means any professional services (including without limitation, penetration testing) provided by OTORIO to End User Customers.
1.11 “Reseller” means a Partner who has been appointed by OTORIO to resell the OTORIO Platform and/or Professional Services to End User Customers.
1.12 “SLA” means OTORIO’s then current Service Level Agreement found at https://www.otorio.com/sla/
1.13 “Subscription Terms and Conditions” means OTORIO’s standard Subscription Terms and Conditions (including, without limitation, the Hardware Terms), which are located at https://www.otorio.com/subscription-tandc and governs each End User Customer’s right to use the OTORIO Platform and Professional Services.
1.14 “System Integrator” means a Partner who has: (a) completed the relevant Training and Certification; and (b) been authorised by OTORIO; and (c) appointed by OTORIO (or a Reseller, as the case may be) to implement and integrate the OTORIO Platform in End User Customers’ environments.
1.15 “Territory” means the territory set forth in the Partner Form.
1.16 “Training and Certification” has the meaning given to that term in Section 4 (‘Training and Certification’) below.
2.1 Reseller License. Where Partner is a Reseller (if specified in the Partner Form), subject to the terms of this Agreement, during the Term (defined below), OTORIO hereby grants Reseller a non-exclusive, non-transferable, revocable and limited license, solely in the Territory, to: (a) market and sell licenses the OTORIO Platform and Professional Services to potential End User Customers; (b) use OTORIO Marks solely in performance of the foregoing activities, including for the purpose of Reseller identifying itself as an authorized Reseller of the OTORIO Platform and Professional Services; and (c) subject to this Agreement and the SLA, provide support services with respect to the foregoing in accordance with the SLA, solely to End User Customers located in the Territory.
2.2 MSSP License.
Where Partner is an MSSP (if specified in the Partner Form), subject to the terms of this Agreement, during the Term (defined below):
2.2.1 OTORIO hereby appoints Partner as a non-exclusive MSSP in the Territory and Partner hereby accepts such appointment.
2.2.2 OTORIO hereby grants MSSP, a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable, limited right to market the OTORIO Platform and Professional Services as part of, and in order to provider the MSSP Services, in the Territory. MSSP shall use its own personnel to identify and register potential End User Customers, to market the OTORIO Platform and Professional Services, and to promote and sell subscriptions to the MSSP Services.
2.2.3 OTORIO hereby grants Partner a non-exclusive, non-transferable, revocable license in the Territory to: (i) demonstrate the OTORIO Platform for a limited time (not exceeding thirty (30) days for each End User Customer, for the sole purpose of promoting the MSSP Services; and (ii) provide the OTORIO Platform and Professional Services, solely as integrated with the MSSP Services, directly to End User Customers whereby the End User Customer, as beneficiary of the OTORIO Platform and/or Professional Services, pays MSSP for the provision of the MSSP Services; and (iii) to access and use the OTORIO Platform solely for its own internal purposes, in order to test the performance of the OTORIO Platform in MSSP’s labs.
2.3 System Integrator.
2.3.1 Where Partner is a System Integrator (if specified in the Partner Form), subject to the terms of this Agreement, during the Term (defined below), OTORIO hereby appoints System Integrator (on a non-exclusive basis) to provide implementation and integration services necessary for End User Customers to access and use the OTORIO Platform.
2.3.2 The System Integrator shall not perform any implementation and/or integration services for or on behalf of any MSSP, Reseller or any other third party without receiving the relevant Training and Certification (as determined by OTORIO). Once OTORIO has provided System Integrator with written notice that it has completed the relevant Training and Certification, System Integrator shall be authorised to either: (a) act as a subcontractor for or on behalf of a Reseller/MSSP to perform implementation and integration services on an End User Customer’s environment; and/or (b) act as a subcontractor for or on behalf of a OTORIO to perform implementation and integration services on an End User Customer’s environment.
2.3.3 MSSP and Resellers may only engage System Integrators who have completed the relevant Training and Certification and who are authorised by OTORIO to perform the implementation and integration services.
2.3.4 If MSSP or Reseller subcontracts any implementation and integration services to a System Integrator hereunder, MSSP and/or Reseller shall ensure that an agreement is in place with such System Integrator that includes terms that impose (at a minimum) the restrictions set out in Section 3 (‘Restrictions’) below and OTORIO’s limitation of liability set forth hereunder.
2.3.5 If OTORIO engages a System Integrator to perform implementation and integration services for a particular End User Customer, the parties shall enter into a separate subcontracting agreement, which shall be incorporated into this agreement by reference.
2.4 Documentation. Where Partner is a Reseller and/or MSSP (if specified in the Partner Form), during the Term, and subject to the terms of this Agreement, OTORIO hereby grants Reseller and/or MSSP, 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 Partner’s marketing of the OTORIO Platform.
Unless expressly permitted hereunder, Partner shall not, and shall not permit its employees or any third party to (and shall cause its End User Customers not to): (a) give, sell, rent, lease, timeshare, sublicense, disclose, publish, assign, market, sell, display, transmit, broadcast, transfer or distribute any portion of the OTORIO Platform, Documentation or Professional Services to any third party, or use and of the foregoing in any service bureau arrangement; (b) circumvent, disable or otherwise interfere with security-related features of the OTORIO Platform; (c) reverse engineer, decompile or disassemble, decrypt or attempt to derive the source code of, the OTORIO Platform or any components thereof; (iv) copy, modify, translate, patch, improve, alter, change or create any derivative works of the OTORIO Platform, Documentation or Professional Services or any part thereof; (v) use any robot, spider, scraper or other automated means to access or monitor the OTORIO Platform for any purpose; (vi) take any action that imposes or may impose (at OTORIO's sole discretion) an unreasonable or disproportionately large load on the OTORIO's infrastructure which supports the OTORIO Platform; (vii) interfere or attempt to interfere with the integrity or proper working of the OTORIO Platform, or any related activities; (viii) use the OTORIO Platform, Documentation or Professional Services in breach of third party rights, applicable law or for any harmful, irresponsible or inappropriate purpose, or in breach of this Agreement; and/or (ix) remove any identification or proprietary or copyright restrictions from the OTORIO Platform or Documentation. Partner shall notify OTORIO in writing immediately upon any actual or suspected breach of this Section.
Prior to the Effective Date, Partner shall identify a core team of its personnel (as mutually agreed to by both Parties) to receive training and certification provided by OTORIO with respect to the OTORIO Platform (“Training and Certification”). At OTORIO’s sole discretion and subject to Partner’s payment of the relevant fees for Training and Certification (if any), OTORIO may provide Training and Certification (as determined by OTORIO). All Partner personnel will be the sole responsibility of the Partner, and the Partner will be responsible for the payment of all compensation due to such personnel and any related payments, including without limitation all income taxes, social security, unemployment compensation, workers compensation and insurance coverage.
During the Term, Partner shall:
5.1 use its best efforts, at its own expense, to market and promote the OTORIO Platform and Professional Services to potential End User Customers. Partner will ensure that such marketing and promotion activities comply with: (a) all applicable laws; and (b) any written instructions and procedures provided or made available by OTORIO from time to time;
5.2 act in furtherance of OTORIO’s best interests and not do any act or publish or make any statement (or otherwise cause or permit the foregoing to be done), which may be detrimental to the best interests and/or business reputation of OTORIO, nor will the Partner make any false or misleading representations, warranties, guarantees, conditions or statements with respect to the OTORIO Platform, Professional Services, OTORIO Services, any other products or services provided to End User Customers and/or OTORIO;
5.3 where applicable, and subject to: (a) agreement in the relevant Partner Form or otherwise agreed to by the Parties; and (b) Partner obtaining the relevant Training and Certification, during the Term and thereafter, provide support to its End User Customers with respect to the OTORIO Platform as set out in the SLA;
5.4 not make any promises or representations, or give any warranties, guarantees or indemnities in respect of the OTORIO Platform (including, without limitation any Hardware), Professional Services or any other products or services provided to End User Customers hereunder, except such as are contained in the relevant Subscription Terms and Conditions;
5.5 not hold itself out as having any authority to agree any changes to the Subscription Terms and Conditions;
5.6 be: (i) solely responsible and shall have full discretion to determine the prices to be offered by it to the End User Customers, and (ii) solely responsible for the collection of any of its fees from the End User Customers;;
5.7 use the OTORIO Marks solely as permitted hereunder or as approved by OTORIO in writing. Partner shall not: (a) use the OTORIO Marks in connection with any other products or services or otherwise relating to Partner; and/or (b) alter, obscure, remove, interfere with or add to any of the trademarks, trade names, markings or notices affixed to, or contained in, the OTORIO Platform or Documentation delivered to the Partner;
5.8 not duplicate or reproduce in any way any OTORIO copyright material without OTORIO’s prior written consent;
5.9 deal with any complaints, problems or other technical queries regarding the OTORIO Platform from End User Customers before making use of OTORIO’s telephone helpdesk in accordance with the SLA;
5.10 ensure that any and all emails sent by Partner with regard to OTORIO’s products and services are sent in accordance with all applicable privacy and data security regulations and laws. Partner hereby acknowledges and agrees that sending marketing communications with regard to OTORIO’s products and services in a manner which is not in compliance with the privacy and data security regulations and laws is expressly prohibited and that breach of this clause may be considered cause for termination of this Agreement;
5.11 not use the OTORIO Platform to compete with OTORIO, including without limitation the gathering of competitive intelligence;
5.12 provide OTORIO with the required level of detail on all Purchase Orders, including without limitation complete and accurate End User Customer identification information as set forth in Section 7.1 below;
5.13 comply with section 8 (‘Subscription Terms and Conditions’) below; and
5.14 comply with all applicable laws, statutes and regulations relating to the Partner’s performance of this Agreement.
PARTNER ACKNOWLEDGES AND AGREES THAT IF IT IS IN BREACH OF ANY OF ITS OBLIGATIONS SET OUT ABOVE IN THIS SECTION, OTORIO MAY, AT ITS SOLE DISCRETION AND WITHOUT LIMITING ANY OTHER REMEDIES AVAILABLE TO IT UNDER APPLICABLE LAW, UPON NOTICE TO PARTNER: (i) TERMINATE THIS AGREEMENT; OR (ii) CEASE TO PERFORM ITS OBLIGATIONS HEREUNDER AND/OR REDUCE OR REMOVE PARTNER’S STATUS.
During the Term, OTORIO shall:
6.1 at its sole discretion and upon the request of the Partner, provide assistance in marketing the OTORIO Platform, including the provision of sales promotion aids other than the marketing materials;
6.2 at its sole discretion, provide Reseller or MSSP with one (1) copy of the OTORIO Platform for internal use only for the purpose of providing internal training to Reseller’s or MSSP’’s employees and demonstrations and proof of concepts with potential End User Customers. Under no circumstances, shall Reseller or MSSP sell or transfer or use the OTORIO Platform to perform competitive analysis or benchmark testing;
6.3 subject to the payment of applicable Fees (if any), provide the Training and Certification to Partner, as necessary; and
6.4 subject to the payment of applicable Fees (if any), provide the maintenance and support to Partner to the extent set forth in the SLA.
7.1 Purchase Orders. The Partner shall order the OTORIO Platform and/or Professional Services by issuing to the Company signed purchase orders (“Purchase Order(s)”). Each Purchase Order issued will: (a) state the name, address and account information of the relevant End User Customer; (b) clearly state the specific features and versions of the OTORIO Platform to be licensed, the installation and deployment model, and the quantities therefor; (c) specify the license or subscription basis; (d) specify a requested availability date for the OTORIO Platform and/or Professional Services (which dates will fall during the Term); and (e) be subject to acceptance in writing by OTORIO, and will not be binding until the earlier of such acceptance or availability. OTORIO reserves the right (in its sole and absolute discretion) to reject any Purchase Order in respect of a specific prospective End User Customer, in which case Partner will not enter into any Subscription Terms and Conditions with any such prospective End User Customer. Partner will not purchase licenses to the OTORIO Platform from any person or entity, other than OTORIO. Purchase Orders will be deemed to incorporate this Agreement. No Purchase Order will vary, add to, or amend any of the terms or conditions of this Agreement, and any inconsistent terms (including those pre-printed) on the Purchase Order will be inapplicable and deemed struck therefrom. Purchase Orders may be issued electronically. OTORIO reserves the right to cancel, suspend, refuse or delay any Purchase Orders, or to terminate the access and right to use the OTORIO Platform or Professional Services granted to an End User Customer, if Partner (a) fails to make any payment in accordance with this Agreement, or (b) otherwise fails to comply with any of the terms and conditions of this Agreement.
7.2 Delivery. OTORIO will transfer the OTORIO Platform to Partner by providing Partner with a copy of the object code for the Partner’s use with respect to each Purchase Order.
7.3 Installation. Partner acknowledges and agrees that this Agreement does not authorize Partner to provide or perform any delivery, implementation, installation, configuration, support, maintenance, or similar activities with respect to the OTORIO Platform, unless and until Partner becomes certified by OTORIO for such services. Any such services will be provided by the Partner only once agreed in writing by both Parties. Reseller and MSSP may engage a certified System Integrator to perform the foregoing, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement, each End User Customer who obtains a license to the OTORIO Platform or Professional Services shall execute or otherwise accept the Subscription Terms and Agreement. As a condition to the End User Customer accessing or using the OTORIO Platform or Professional Services, the Partner shall cause each End User Customer to become aware of and sign a copy of the Subscription Terms and Conditions, as amended by OTORIO from time to time and provide a signed copy to OTORIO. In addition, any Partner accessing or using the OTORIO Platform hereby agrees to the Subscription Terms and Conditions.
9.1 Payment Terms. OTORIO shall issue an invoice to the Partner following OTORIO’s acceptance of Partner’s Purchase Order. Except as otherwise agreed by the Parties under an applicable Purchase Order, Partner will pay invoices net thirty (30) days from the date of such invoice. For clarity, any extensions of credit by OTORIO shall not obligate it to extend credit in any amount at any time thereafter. Partner will pay OTORIO in accordance with the foregoing, irrespective of whether Partner has received payment from the corresponding End User Customer. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full, at the lesser of: (i) the rate of 1.5% per month; or (ii) the highest amount permitted by applicable law.
9.2 Taxes. All payments under this Agreement are exclusive of applicable taxes (including, without limitation, any applicable value added taxes and withholding taxes), duties and tariffs, all of which will be Partner’s responsibility (other than taxes that are based on OTORIO’s net income). If Partner is required by law to make any deduction or to withhold from any sum payable to OTORIO, then the sum payable by the Partner, upon which the deduction or withholding is based, will be increased to the extent necessary to ensure that, after all deduction and withholding, OTORIO receives and retains, free from liability for any deduction or withholding, a net amount equal to the amount OTORIO would have received and retained in the absence of the required deduction or withholding.
9.3 Audit Rights. During the Term and for a period of one (1) year thereafter, Partner shall keep true and accurate books of accounts and records for determining the amounts payable to OTORIO hereunder, and for ensuring compliance with Section 8 (‘Subscription Terms and Conditions’) above. During business hours, OTORIO will have the right, at its expense and upon reasonable prior written notice, to audit such books and records for the aforementioned purposes. Such audit may be conducted by OTORIO or by its authorized representatives, will not unreasonably interfere with Partner’s business activities, and will be conducted no more often than once per calendar year, unless a previous audit disclosed a material discrepancy. If any audit shows that Partner has underpaid amounts owing to OTORIO, Partner will immediately pay all such amounts.
If OTORIO provides any Hardware to Partner and/or any End User Customer, all Hardware shall be subject to OTORIO’s Hardware Terms and Conditions.
11.1 Title and Ownership. Except for the limited rights granted to Partner in this Agreement, as between the Parties, OTORIO is and will remain the sole and exclusive owner of all Intellectual Property Rights in and to the OTORIO Platform (including, without limitation all Hardware), Professional Services, OTORIO Services, Feedback, Documentation, Analytic Data, Improvements, and OTORIO’s Marks. Any right not expressly granted to Partner in this Agreement is hereby reserved by OTORIO. Nothing herein constitutes a waiver of OTORIO’s Intellectual Property Rights under any law. Any goodwill or other benefit derived by Partner as a result of its use of OTORIO’s Marks shall solely benefit OTORIO.
11.2 Feedback. If Partner contacts OTORIO with feedback (whether orally or in writing) (e.g., questions, comments, feedback data, reports, suggestions, or the like) regarding the OTORIO Platform, OTORIO Services or Documentation (“Feedback”), such Feedback shall be deemed the exclusive property of OTORIO. Partner hereby irrevocably and unconditionally transfers and assigns to OTORIO all intellectual property rights and associated rights in and to the Feedback and waives any and all rights (including, without limitation, moral rights) that Partner may have with respect thereto. Partner shall execute, acknowledge, and deliver all such further instruments reasonably requested by OTORIO to perfect OTORIO’s ownership of such Intellectual Property Rights. All improvements made by OTORIO or on its behalf, based on the Feedback, shall be owned exclusively by OTORIO. The use of any Feedback (if any) may be made by OTORIO at its sole discretion, and OTORIO is not obliged to make use of any Feedback.
11.3 OTORIO Marks. Partner shall not, at any time during or after the Term: (a) claim any right, title or interest in or to, attempt to register in any jurisdiction, or do anything that may adversely affect the validity or enforceability of, any of COTORIO’s Marks; and/or (b) adopt, register or use in any manner whatsoever, without OTORIO’s prior express written consent, any name, mark, logo, title, expression, word, symbol or combination thereof, which in any way imitates, resembles, dilutes, or is similar to any of OTORIO’s Marks.
The OTORIO Platform may use or include third party open-source software, files, libraries, or components that may be distributed to Partner and End User Customers and are subject to third party open-source license terms. If there is a conflict between any open-source license and the terms of this Agreement, then the open-source license terms shall prevail, but solely in connection with the related third-party open-source software. OTORIO makes no warranty or indemnity hereunder with respect to any third-party open-source software.
Each Party hereby represents and warrants that it is: (a) duly organized and validly existing under the Laws of its jurisdiction of formation and has the full power and authority to enter into this Agreement, grant the rights and licenses and assume the obligations stated herein; and (b) not bound by any agreement, obligation or restriction that would interfere with its obligations under this Agreement. The Reseller further represents and warrants that it has obtained, and shall maintain throughout the Term, all legal and governmental rights, licenses, permits, certificates and authorizations to conduct its activities and perform its obligations under this Agreement.
14.1 DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT TO THE EXTENT EXPLICITLY STATED OTHERWISE IN THIS AGREEMENT: (I) THE OTORIO PLATFORM, PROFESSIONAL SERVICES, OTORIO SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OTORIO (AND ANY IMPROVEMENTS THERETO) ARE PROVIDED “AS IS”, AND OTORIO DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER (WHETHER EXPRESS, IMPLIED OR STATUTORY), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, QUALITY OF SERVICE, AND NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED; AND (II) OTORIO MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION: (A) THAT THE OTORIO PLATFORM, PROFESSIONAL SERVICES, OTORIO SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OTORIO OR ANY COMPONENT THEREOF WILL OPERATE IN THE COMBINATIONS WHICH PARTNER OR ANY END USER CUSTOMER MAY SELECT FOR USE; (B) REGARDING THE CONTENT, EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, ACCURACY OR COMPLETENESS OF THE OTORIO PLATFORM, PROFESSIONAL SERVICES, OTORIO SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OTORIO OR ANY COMPONENT THEREOF; (C) THAT USE OF THE OTORIO PLATFORM, PROFESSIONAL SERVICES, OTORIO SERVICES AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OTORIO WILL MEET ANY REQUIREMENTS OR EXPECTATIONS, OR WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (D) THAT ANY ERROR CONDITIONS WILL BE CORRECTED.
14.2 Limitation of Liability. EXCEPT FOR EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, EACH PARTY’S INDEMNIFICATION OBLIGATIONS, EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, DATA, OR DATA USE, OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES; AND (B) OTORIO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID OR PAYABLE TO OTORIO BY PARTNER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
Partner will indemnify and hold harmless, OTORIO, its affiliates, and their respective employees, officers, directors, suppliers and successors, from and against any third party claim, demand, action, suit, proceeding, damages, losses and/or liability arising from or related to: (a) Partner’s breach of any provision of this Agreement; and/or (b) Partner’s interaction and/or relationship with any End User Customer (including, without limitation, any sale, marketing or promotion of the OTORIO Platform, Professional Services, OTORIO Services or any other products or services provided to an End User Customer) in a manner not authorized under this Agreement and/or arising from or relating to Partner’s statements or representations about the OTORIO Platform, Professional Services, OTORIO Services or any other products or services provided to an End User Customer which exceed those provided by OTORIO.
16.1 Term. This Agreement will commence on the Effective Date (as set out in the Partner Form) and remain in effect for a period of one (1) year (the “Initial Term”). Thereafter, the Agreement will automatically renew for successive periods as the Initial Term (each, a “Renewal Term”), unless either Party notifies the other Party in writing of its intent not to renew at least thirty (30) days prior to the end of the then-current term. The Initial Term together with any Renewal Term is referred to herein as the “Term”.
16.2 Termination. Each Party may terminate this Agreement immediately upon written notice to the other Party: (i) if the other Party materially breaches this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach; and/or (ii) if the other Party is declared bankrupt by a judicial decision, or, in the event an involuntary bankruptcy action is filed against such other Party, it has not taken, within sixty (60) days from service of such action to such Party, any possible action under applicable law for such filed action to be dismissed. OTORIO may terminate this Agreement immediately upon written notice to the Partner if there is any indictment of Partner or any of Partner’s personnel for any crime or violation of law involving dishonesty, theft, fraud, breach of trust, or misconduct, or adversely reflecting upon the ability of Partner to continue to effectively market the OTORIO Platform, Professional Services, or any other products or services provided to an End User Customer. In the event that the Partner is fourteen (14) days or more overdue on any of its payments under this Agreement, OTORIO may terminate this Agreement immediately upon written notice to the Partner.
16.3 Effect of Termination; Survival. Upon the effective date of termination of this Agreement for any reason:
16.3.1 Partner will: (a) immediately discontinue all marketing, promotional and resale activities hereunder and all related licenses and appointment as an MSSP or Reseller hereunder, shall immediately terminate, provided that in the event of termination for convenience by the OTORIO, OTORIO will continue to fulfill (subject to the terms and conditions of this Agreement) all Purchase Orders accepted by OTORIO prior to the effective date of termination (for clarity, upon termination of this Agreement for any other reason, OTORIO will not be obligated to fulfill any Purchase Orders accepted by OTORIO prior to the effective date of such termination); and (b) promptly pay any then-outstanding amounts owing to OTORIO.
16.3.2 OTORIO will have no liability to Partner on account of termination of this Agreement, and Partner hereby waives any rights it may have under applicable law to damages or other sums payable under such circumstances.
16.3.4 Termination of this Agreement for any reason will not affect the rights and obligations of End User Customers under valid and existing Subscription Terms and Conditions, for so long as such rights and obligations remain valid and existing.
16.3.5 Any provision of this Agreement that, in order to fulfill the purpose(s) of such provision, needs to survive the termination of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purpose(s). Furthermore, Sections 1 (Definitions), 3 (Restrictions), 9.2 (Taxes), 9.4 (Audit Rights), 10 (Hardware), 11 (Intellectual Property), 13 (Third Party Software), 14 (Disclaimer and Limitation of Liability), 15 (‘Indemnification’), 16.3 (Effect of Termination; Survival), 17 (Confidentiality), 18, (Privacy and Analytic Information) and 19 (General) shall survive the termination of this Agreement.
Each Party may have access to certain non-public information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, customers or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). The OTORIO Platform, Documentation, and the OTORIO Services shall remain OTORIO’s Confidential Information at all times. Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving Party’s obligations under this Section, with respect to any Confidential Information of the disclosing Party, shall not apply to information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving Party shall only permit access to the disclosing Party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors ("Representatives") having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving Party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving Party at least as restrictive as the terms set forth herein. The receiving Party shall remain responsible and liable for any unauthorized disclosure or use of Confidential Information by its Representatives. The receiving Party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
18.2 Analytic Data. Partner agrees that OTORIO may process or have access to analytic data (that does not personally identify the Partner or its End User Customers), derived from the use of the OTORIO Platform in order to deliver, enhance, improve, customize, support, and/or analyze the OTORIO Platform and OTORIO Services (“Analytic Data”). Analytic Data shall be OTORIO’s exclusive property.
19.1 Publicity. OTORIO may reference and use Partner’s name and trademarks in OTORIO’s marketing and promotional materials and website. Otherwise, and except as expressly provided herein, neither Party may use the trade names, trademarks, service marks, or logos of the other Party without express written consent.
19.2 Change or discontinuation. OTORIO shall have the right, in its sole discretion, without liability to Partner, to change the products and services provided hereunder or discontinue developing, producing, providing or distributing any of the products or services covered by this Agreement or add new products and services, provided that Partner is given no fewer than thirty (30) days’ prior written notice of any material discontinuance.
19.3 Amendment. This Agreement cannot be varied, modified, waived or amended except in a written instrument executed by both Parties.
19.4 Assignment. OTORIO may assign this Agreement and the rights and obligations under it to any other entity at any time. Partner may not assign its rights under this Agreement in whole or in part. Any purported assignment of rights in violation of this subsection shall be null and void.
19.5 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in PDF format or by facsimile shall be sufficient to bind the parties to the terms and conditions of this Agreement.
19.6 Entire Agreement. This Agreement, including the Annexures hereto, constitute the entire agreement between the Parties and supersede all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof.
19.7 Force Majeure. Neither Party shall be deemed in default of this Agreement (except with respect to its payment obligation) to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of a Force Majeure Event (as defined below); provided that such Party gives the other party written notice thereof within a reasonable time after discovery thereof and uses commercially reasonable efforts to continue to so perform or cure. In the event of a Force Majeure Event, the time for performance or cure will be extended for a period equal to the duration of such event. As used herein, “Force Majeure Event” shall mean: (i) fire, flood, earthquake, explosion or other similar or dissimilar act of God; (ii) strikes, lockouts, picketing and other labor disturbances not the fault of the Party claiming the benefit of such event; (iii) war (declared or undeclared) or other matter beyond the reasonable control of the Party claiming the benefit of such event; (iv) an act of any relevant governmental or quasi-governmental authority or political subdivision, department, or agency thereof; or (v) regulations or restrictions of law or of a court of competent jurisdiction.
19.8 Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without giving effect to the principles of conflict of laws. Both Parties hereby consent to the exclusive jurisdiction of, and venue in, the state courts in Tel Aviv, Israel in connection with any dispute related to this Agreement. Notwithstanding the foregoing, OTORIO may seek injunctive relief or specific performance in any court worldwide that has competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby disclaimed.
19.9 Headings. The sections and other headings contained in this Agreement are for reference purposes only and shall not control or affect the construction of this Agreement or the interpretation hereof in any respect.
19.10 Independent Contractors. Each Party is an independent contractor. This Agreement shall not constitute an appointment of one Party as the legal representative or agent of the other Party, nor shall either Party have any right or authority to assume, create or incur any obligation or other liability of any kind, express or implied, against, in the name or on behalf of, the other Party. Nothing herein or in the transactions contemplated by this Agreement shall be construed as, or deemed to be, the formation of a partnership, association, joint venture or similar entity by or among the Parties. Neither Party shall make any warranties or representations in the name or on behalf of the other.
19.11 Notice. All notices or other communications hereunder shall be in writing and shall be given in person, by courier, by registered mail, or by facsimile or electronic transmission (provided that written confirmation of receipt is provided) addressed as set forth in the heading of this Agreement or such other address as any Party may designate to the other in accordance with this procedure. All communications delivered in person or by courier service shall be deemed to have been received upon delivery, those given by facsimile or electronic transmission shall be deemed to have been received on the business day following transmission and, if applicable, electronic confirmation of receipt, and all notices and other communications sent by registered mail shall be deemed to have been received within three (3) business days after posting.
19.12 Severability. If any provision of this Agreement is held by a competent court to be invalid or unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event, this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction.
19.13 Waiver. No failure or delay on the part of any Party hereto in exercising any right, power or remedy thereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted thereunder must be in writing and shall be valid only in the specific instance in which given.
19.14 Export Compliance. Partner acknowledges that the OTORIO Platform is subject to international and local country laws governing import, export, distribution and use. The OTORIO Platform is subject to export control laws of the State of Israel and the United States and/or may be subject to additional export control laws applicable to Partner or in Partner’s jurisdiction, including, without limitation, the United States. Partner will not ship, transfer, or export the OTORIO Platform into any country, or make available or use the OTORIO Platform or any other products or services provided by OTORIO in any manner, prohibited by law. Partner understands and acknowledges that upon entry of the OTORIO Platform into the United States, it becomes subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries. Any and all of Partner’s obligations with respect to the OTORIO Platform shall be subject in all respects to such United States laws and regulations as shall from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, and Bureau of Export Administration. Partner warrants that it will comply in all respects with the export and re-export restrictions applicable to the OTORIO Platform and will otherwise comply with the EAR or other United States laws and regulations in effect from time to time. Partner warrants and agrees that it is not: (i) located in, under the control of, or a national or resident of Cuba, North Korea, Iran, Syria, Lebanon, Sudan the Crimea, the Luhansk People’s Republic (LNR), or the Donetsk People’s Republic (DNR) regions of Ukraine, or any other country or region to which the United States and/or Israel have prohibited export transactions, or (ii) on the U.S Treasury Department list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
19.15 Anti-Corruption and Non-Bribery Laws. Partner represents and warrants that it is fully aware of any applicable anti-corruption and non-bribery laws and regulations of any country exercising jurisdiction over the contemplated activities hereunder and further, in the performance of any activity under this Agreement. Partner will comply with all applicable legal and regulatory requirements related to Partner fulfilling of its undertakings under this Agreement, including all anti-corruption laws, treaties, and security regulations of the Government of United States and in accordance with the provisions of the OECD convention (convention on Combating Bribery of Foreign Public Officials in International Business Transactions in 1977) and similar laws.