OpenText Accelerate Partner Program Master Terms

THESE MASTER TERMS (“MASTER TERMS”), TOGETHER WITH ANY SCHEDULES, PROGRAM MATERIALS, OR EXHIBITS (COLLECTIVELY, THIS “AGREEMENT”) CONTAIN THE TERMS APPLICABLE TO OPENTEXT’S ACCELERATE PARTNER PROGRAM. FOR THE AVOIDANCE OF DOUBT, THIS AGREEMENT DOES NOT APPLY TO AND DOES NOT PROVIDE ACCESS TO ANY OTHER PARTNER PROGRAMS RUN BY OPENTEXT OR ITS AFFILIATES.

UNLESS YOU HAVE RECEIVED WRITTEN NOTICE THAT THIS AGREEMENT SHALL NOT APPLY TO YOU, BY CLICKING “ACCEPT” OR A SIMILAR ACCEPTANCE BUTTON OR BY PARTICIPATING IN THE PARTNER PROGRAM (THE FIRST DATE ON WHICH ANY SUCH ACTION OCCURS, THE “EFFECTIVE DATE”), YOU AND THE APPLICABLE OPENTEXT ENTITY AS SET FORTH IN EXHIBIT A (“OPENTEXT” OR “OT”) ARE ENTERING INTO A LEGALLY BINDING CONTRACT AS OF THE EFFECTIVE DATE AND AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”, “YOUR” AND “PARTNER” AS USED HEREIN WILL REFER AND APPLY TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT PARTICIPATE IN THE PARTNER PROGRAM.

“Affiliate” means an entity controlled by, controlling or under common control with a party to this Agreement. Control exists through ownership, directly or indirectly, of a majority of the outstanding equity capital and of the voting interests of the subject entity. If any entity ceases to meet these criteria, it will cease to be an Affiliate under this Agreement.

“Applicable Taxes” means the sales, use, consumption, goods and services, and value-added taxes, including any related penalties and interest, imposed by the appropriate governments arising in connection with the activities covered by this Agreement, except taxes imposed on OT’s income.

“Beneficiary” means a third-party organization for which an MSP provides managed services for such organization’s own internal business use.

“Change of Control” means (a) the consummation of a reorganization, merger or consolidation, or sale or other disposition of substantially all of the assets of Partner, or (b) the acquisition by an individual, entity or group of beneficial ownership of more than fifty percent (50%) of either (i) the then-outstanding shares of common stock of Partner or (ii) the combined voting power of the then-outstanding voting securities of Partner entitled to vote generally in the election of directors.

“Confidential Information” means any information disclosed by one party to the other party under this Agreement, irrespective of the form of communication, that is marked or identified as confidential at disclosure or is disclosed in circumstances that would lead a reasonable person to believe such information is confidential, including, without limitation, a disclosing party’s Intellectual Property, pricing, discounts, techniques, methods, software, technology, plans, designs, and business processes.

“Covered Country” means each contracting party to The Patent Cooperation Treaty (currently published at http://www.wipo.int/pct/en/).

“Direct Partner” means a partner who has been approved by OT to participate in the applicable aspects of the Partner Program, has a valid partner agreement covering its participation in the Partner Program, and purchases directly from OT.

“End User” means any third party that obtains OT Products from Partner as authorized in this Agreement, for use in its internal business operations or to provide managed services as a Managed Service Provider through use of the OT Products, and not for resale or redistribution.

“EULA” means an end user license agreement or other terms of service which governs the use of the applicable OT Product (which may include a data processing agreement or business associate agreement to the extent applicable to the OT Product), as may be updated from time to time.

“Indirect Partner” means a partner who is purchasing OT Products from a Direct Partner.

“Infringement Claim” means claims, suits, actions or proceedings brought against Partner in a court of competent jurisdiction in a Covered Country by a third party which allege an infringement by the OT Products of the third party’s Intellectual Property.

“Intellectual Property” means all recognized intellectual property rights under applicable laws, including but not limited to trademarks, copyrights, patent rights, and trade secrets.

“Managed Services Provider” or “MSP” means a third-party that provides network, application, system, e-management services and/or other managed services through and/or in conjunction with the use of OT Products.

“Marks” means all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, product names, proprietary logos, proprietary symbols, and other indicia of origin provided by a party to the other from time to time.

“Order” means each quote or any other order documentation (including, without limitation, API calls or online orders) for the OT Products, and which may also include details such as price, quantity, and/or subscription term.

“OT Materials” means any OT marketing materials, Marks, Program Materials, proprietary documents, or other tangible or intangible OT property provided to Partner in any format.

“OT Products” means the products and/or related services OT, or its applicable Affiliate, makes available to Partner through this Agreement or as otherwise approved by OT in writing. The definition of OT Products also includes related User Documentation and product updates to the extent such updates are provided at no cost to all End Users.

“Partner Portal” means the OT website located at https://accelerate.opentext.com that provides information and resources for OT partners who participate in the Partner Program.

“Partner Program” means the benefits and obligations that OT makes available to qualified and OT approved third parties related to the use, resale and/or distribution of the OT Products through various programs that are part of the OT Accelerate Partner Program. For the avoidance of doubt, “Partner Program” as used herein does not include OT’s Global Partner Program.

“Program Materials” means the then-current version of OT program guides, handbooks and other documentation or written instructions provided by OT from time to time, including as posted on OT dedicated partner dashboards or the Partner Portal, related to the Partner Program and made available to Partner, detailing specific business requirements relevant to the areas of the Partner Program of which Partner has been approved as a member, including, but not limited to, available OT Products.

“Territory” means the geographic area or areas within which Partner is authorized by OT to conduct the business activities set out in this Agreement as specified in the Partner’s profile in the Partner Portal.

“User Documentation” means the user documentation, if any, furnished to Partner by OT relating to the use of a particular OT Product.

2.1     Governing Terms. Membership in the Partner Program is subject to the terms of this Agreement and the requirements contained in the Program Materials, which are considered a part of this Agreement. The Partner Portal or other OT communication will specify Partner’s approved partner designation(s) or type(s). Partner specific terms set forth in the applicable Schedules and the applicable Program Materials set forth the rights and obligations associated with each partner type. In the event Partner has been approved to participate in the Partner Program in more than one capacity, the applicable Schedule for each partner type shall apply while Partner is acting in such capacity.

2.2     Updating Terms. OT reserves the right to revise this Agreement or the Program Materials at any time at its sole discretion. In the event OT makes any material changes to this Agreement or the Program Materials, OT will provide Partner with notice (including, without limitation, by posting the revised Agreement or Program Materials with a banner notification on the website hosting such materials and/or by sending an email to the last email address provided by Partner to OT) at least thirty (30) days prior to the effective date of such material changes. Partner’s continued participation in the Partner Program following such notice period shall constitute Partner’s acceptance of such revised Agreement and/or Program Materials. The revised Agreement and/or Program Materials (a) automatically supersede the prior version of this Agreement and/or Program Materials, as applicable, and (b) apply prospectively only.

2.3     Product Change. OT may add new OT Products and modify, suspend, replace, or discontinue any OT Product, including any feature or functionality of an OT Product, at any time at OT’s discretion, with or without prior notice, and without incurring any liability whatsoever.

2.4     Territory.   Subject to the terms of this Agreement, Partner is only authorized to conduct sales and marketing activities as an OT Partner in the Territory. OT may modify the Territory by providing at least thirty (30) days’ prior written notice to Partner. For the avoidance of doubt, nothing in this Agreement shall restrict Partner from making passive (unsolicited) sales to End Users based in one of the member states of the European Economic Area.

2.5     Affiliate Use. This Agreement is entered into by OT and may be utilized by OT’s Affiliates in connection with the activities covered by this Agreement. Any Affiliate of OT may enter into Orders with Partner under this Agreement, and with respect to such Orders, such Affiliate becomes a party to this Agreement and references to OT in this Agreement are deemed to be references to such Affiliate. OT may approve use by Partner’s Affiliates by providing written authorization identifying the applicable Partner Affiliate, provided that in any such case: (a) Partner remains responsible for the Affiliate’s compliance with the terms of this Agreement (including without limitation any payment obligations to OT), and (b) Partner is liable for any breach of this Agreement by an Affiliate.

2.6     Communications to Partner. Partner agrees and acknowledges that communications related to Partner’s participation in the Partner Program, including but not limited to communications regarding onboarding, OT Products, Program Materials, Partner Program requirements, trainings, and enablement, are required in order to participate in the Partner Program and shall be sent from OT to Partner via e-mail to the e-mail address provided at the time of Partner’s registration or such other email addresses provided by Partner.

3.1     Term of Agreement. This Agreement will begin on the Effective Date and, subject to Sections 3.2 and 3.3, will continue until terminated in accordance with Section 3.2 or Section 3.3 (the “Term”).

 3.2     Termination for Convenience. Either party may terminate this Agreement, or any Schedule to the Agreement, for convenience by providing written notice to the other party at least thirty (30) days prior to the date of termination. For the avoidance of doubt, such termination will have no effect on any Orders existing as of the effective date of termination and shall be subject to Section 3.5.

 3.3     Termination for Cause. Either party may terminate this Agreement immediately upon written notice to the other party in the event the other party commits a material breach of this Agreement (a) where such breach is incapable of cure and (b) where such breach is capable of cure and fails to cure such breach within thirty (30) days after receiving written notice of such breach. Further, OT may terminate this Agreement immediately upon written notice to the other party in the event of any of the following: (i) Change of Control; (ii) a petition in bankruptcy being filed by or against or for the appointment of a receiver or trustee of any property of Partner; (iii) Partner making an assignment for the benefit of creditors; (iv) Partner is dissolved, liquidated, terminated or otherwise ceases its ongoing business operations; or (v) OT’s good faith belief that Partner is engaging in or has engaged in fraudulent, unethical or unfair business practices. For the avoidance of doubt, Partner’s failure to pay will constitute a material breach.

 3.4     Effect of Termination. Immediately upon expiration or termination of this Agreement for any reason, (a) except as otherwise set forth in Section 3.5, all licenses and rights granted to Partner hereunder (including NFR Licenses) shall immediately cease; (b) Partner shall stop representing itself as an OT partner and cease, and shall ensure that Indirect Partners (if applicable) cease, use and distribution of all OT Products and OT Materials, except as otherwise set forth in Section 3.5; (c) all outstanding payments will become immediately due and payable; and (d) Partner shall promptly return or destroy any OT Products or OT Materials in Partner’s possession. Upon OT request, Partner shall certify to OT in writing, signed by an officer of Partner, that it has fully complied with the requirements above. OT shall retain the right to invoice Partner for any amounts incurred prior to termination, and termination shall not relieve Partner of its payment obligations as set out in this Agreement. Any termination of this Agreement will also automatically result in termination of every Schedule to this Agreement; however, OT may terminate a Schedule without terminating the entire Agreement. Further, upon expiration or termination of this Agreement, OT may contact End Users and Partner Customers to continue such End User’s or Partner Customer’s subscription to the OT Products.

 3.5     Effect of Termination on Orders. Any Orders accepted by OT prior to the termination date of this Agreement or any applicable Schedule and for which OT has been fully paid shall remain in full force and effect for the remainder of the then-current term of the Order, but in no event will any such Order renew or continue past the term in effect as of the termination of this Agreement or such terminated Schedule. Notwithstanding the foregoing, in the event OT has terminated this Agreement pursuant to Section 3.3, OT may terminate or allow fulfillment of some or all Orders at its sole discretion.

 3.6     Deletion of End User Data. Partner acknowledges and agrees that after any non-renewal, cancellation, termination, or expiration of the OT Products, it is OT’s policy to automatically delete all data that is stored in the OT Products. Partner shall defend, indemnify, and hold harmless OT and its Affiliates from and against any and all claims, fines, penalties, liabilities, damages, costs, losses, and expenses, including, without limitation, legal expenses (“Losses”) suffered or incurred by OT or its Affiliates as a result of deletion of data, or other suspension or termination of any Partner and/or End User access to the OT Products, due to Partner’s non-payment of undisputed invoices or Partner’s failure to submit an Order to renew an End User’s subscription where required.

4.1     Ordering. The terms and conditions of this Agreement will apply to all Orders submitted to OT or its applicable Affiliate, and any different or additional terms on Partner’s purchase orders or other documents are expressly rejected and shall not apply to such Order. OT in its sole discretion may accept or reject any Order. Once accepted, Orders and renewals thereof are non-cancellable, and all payments are non-refundable unless otherwise agreed in writing.

4.2     Pricing. Pricing of the OT Products and any applicable discounts are as set out in the Program Materials. OT shall provide Partner with a notification of any change in the pricing of OT Products in writing (including, without limitation, via e-mail, on the Partner Portal, or via the electronic ordering platform), at least thirty (30) days prior to the effective date of such price change. OT reserves the right to raise existing Order pricing on the twelve-month anniversary of the commencement date of the applicable Order by the greater of CPI or five percent (5%) and on each subsequent anniversary date. OT does not dictate the price charged by Partner to End Users or other third parties (“Partner Customers”).

4.3     Excess Usage. OT may perform, at any time, an audit in order to true up actual usage or deployment of the correct number of seats, quantities or subscriptions (as applicable) of the OT Products set forth in the applicable Order (“Contracted Usage”). If use of OT Products exceeds the Contracted Usage (“Excess Usage”), Partner agrees that it will be responsible for and pay applicable Excess Usage fees and other fees owed to OT under this Agreement regardless of whether Partner receives payment from a Partner Customer or End User, as applicable.

4.4    Renewals. Except as otherwise set forth in the applicable Order or agreed to in writing between the parties, all Orders (excluding perpetual term software licenses, professional services, and other one-time fees) shall automatically renew unless Partner or the applicable End User provides written notice to OT of its intent not to renew at least ninety (90) days’ prior to the renewal date. If no renewal term is identified in the applicable Order, the renewal term shall be the same length of time as the initial term of the Order and in no case less than twelve (12) months. OT will invoice Partner for all renewals at the then-current list price less the applicable discount for which the Partner is eligible at such time or at such other renewal pricing determined by OT in its sole discretion. If Partner renews any End User or Partner Customer’s software support and maintenance more than thirty (30) days from the End User or Partner Customer’s support and maintenance expiration date, Partner’s discount shall be reduced by three percent (3%) or as otherwise determined by OT in its sole discretion.

4.5    Payments.  Partner shall pay all amounts due to OT or its Affiliates under this Agreement within thirty (30) days of the invoice date, without deduction, set-off or counterclaim. Any overdue amounts will bear interest at the rate of 1.5% per month (18% per annum) or the maximum rate allowed by law, if less, until fully paid. All payments shall be made in the currency invoiced by OT. OT reserves the right to suspend performance under this Agreement and the applicable EULA at any time or terminate access to the OT Products in the event of non-payment of undisputed invoices. If Partner’s access to the OT Products has been suspended for non-payment, access will only be reactivated upon payment, in full, of all applicable fees. Partner shall make payments to OT as set forth in the invoice, Order, or Program Materials. Nothing herein limits OT’s remedies in the event Partner fails to pay OT. Partner’s inability to collect amounts owed from End Users or Partner Customers does not affect Partner’s obligation to pay OT for any fees due under this Agreement or any Order. If OT determines that OT owes an End User a refund, Partner agrees to accept payment by OT and refund the same amount to the End User.

 4.6     Taxes. Unless explicitly stated otherwise, the fees related to this Agreement do not include any Applicable Taxes. Payment of Applicable Taxes shall be Partner’s sole responsibility, and Partner is responsible for paying the full fees due for products or services under this Agreement regardless of any Applicable Taxes Partner is required to withhold or deduct. If OT is obligated to pay Applicable Taxes on behalf of Partner, Partner will reimburse OT in full promptly following receipt of OT’s invoice. Partner is responsible for paying the gross fees due to OT regardless of any Applicable Taxes Partner or any other person is required to withhold or deduct.

5.1     Intellectual Property Ownership. Each party will retain all ownership rights to its Intellectual Property and any enhancements to such Intellectual Property. For clarity, OT’s Intellectual Property includes all OT Products, OT Materials and OT Marks. All rights in and to OT’s Intellectual Property not expressly granted to Partner in this Agreement are reserved by OT.

 5.2     Use of Marks. Subject to the terms and conditions of this Agreement, each party (“Mark Licensor”) hereby grants to the other party (“Mark Licensee”) a non-exclusive, non-transferable, non-sublicensable (except with respect to a sublicense from Partner to an Indirect Partner as expressly permitted under this Agreement), revocable license to use and reproduce its Marks for the sole purpose of marketing and distributing the OT Products in the Territory pursuant to this Agreement. Mark Licensor grants no rights in its Marks other than those expressly granted in this Section. As between the parties, Mark Licensor is the exclusive owner of its Marks. Mark Licensee (a) shall not, and Partner shall ensure that Indirect Partners (if applicable) do not, take any action inconsistent with the Mark Licensor’s ownership of its Marks and (b) shall cooperate, and Partner shall ensure that Indirect Partners (if applicable) cooperate, at Mark Licensor’s request and expense, in any action that Mark Licensor deems necessary or desirable to establish or preserve its exclusive rights in and to its Marks. Mark Licensee will not, and Partner shall ensure that Indirect Partners (if applicable) do not, adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Mark Licensor’s Marks or in such a way as to create combination marks with Mark Licensor’s Marks. For the avoidance of doubt, Partner and Indirect Partners (if applicable) will not be entitled to incorporate any OT Marks into Partner’s or Indirect Partner’s domain names without OT’s prior written approval. Mark Licensee shall use, and Partner shall ensure that Indirect Partners (if applicable) use, the Mark Licensor’s Marks in accordance with such guidelines as Mark Licensor may provide to Mark Licensee from time to time, including, without limitation, any then-effective branding guidelines accessible at: https://www.opentext.com/about/trademark-and-logo-usage. At Mark Licensor’s request, Mark Licensee will, and Partner shall ensure that Indirect Partners (if applicable) will, immediately modify or discontinue any use of the Mark Licensor’s Marks.

 5.3    Feedback.   If Partner or any of its employees, contractors or agents send or transmit any communications or materials to OT by suggesting or recommending changes to the OT Products and/or Partner Program, including without limitation, new features or functionality relating thereto, or any reports, comments, questions, suggestions, ideas or the like (“Feedback”), OT will be deemed the owner of all rights, title and interest in and to the Feedback. To the extent required to give effect to the foregoing, Partner hereby assigns to OT on its behalf, and shall cause its employees, contractors, and agents to assign, all rights, title, and interest in the Feedback, and OT is free to use, without any attribution or compensation to Partner or any third party, any ideas, know-how, concepts, techniques, or other Intellectual Property rights contained in the Feedback, for any purpose whatsoever, although OT is not required to use any Feedback. All Feedback shall be considered OT’s Confidential Information.

6.1      Confidentiality.  Confidential Information exchanged under this Agreement may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement and may only be shared with employees, agents or contractors with a need to know such information for the purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as those contained in this Agreement. Confidential Information will be protected to prevent unauthorized use, access or disclosure to the same standards as the receiving party protects its own Confidential Information of a similar nature and with no less than reasonable care during the period the information remains confidential or a trade secret. These obligations do not cover information that (a) was known or becomes known to the receiving party without obligation of confidentiality; (b) is or becomes a part of the public domain through no fault of the receiving party; (c) is independently developed by the receiving party without access to, use of, or reliance upon the disclosing party’s Confidential Information; (d) is necessary to be disclosed for the receiving party to enforce its rights under this Agreement in connection with a legal proceeding; or (e) is required to be disclosed by law, by order of a court or by a similar judicial, regulatory or administrative body, provided that the receiving party promptly notifies disclosing party (where lawfully permitted to do so) so that disclosing party may intervene to contest such disclosure requirement and/or seek a protective order or waive compliance with this Section. Each party will immediately notify the other party upon discovery of any loss or unauthorized disclosure of the other party’s Confidential Information. Neither party will communicate any information to the other party in violation of the proprietary rights of any third party. Partner acknowledges that OT Products and OT Materials constitute OT Confidential Information and may be used only as expressly permitted by the terms of this Agreement. Any authorized disclosure of OT Products, OT Materials or documentation must include proper copyright or proprietary notices.

 6.2      Equitable Remedies. Each party acknowledges and agrees that violation of this Section will cause the other party irreparable harm, and the total amount of monetary damages for any injury to such non-breaching party will be impossible to calculate and therefore an inadequate remedy. Accordingly, the non-breaching party may: (a) seek temporary and permanent injunctive relief against the other party; or (b) exercise any other rights and seek any other remedies to which such non-breaching party may be entitled at law, in equity and under this Agreement for any violation of this Section.

 6.3      Return of Confidential Information. Upon the expiration or termination of this Agreement or upon the disclosing party’s request, the receiving party will promptly destroy or return to the disclosing party all of the disclosing party’s Confidential Information in tangible form, including without limitation all copies thereof and photographs, videotapes, printouts, notes and working papers provided to it in connection therewith, including all such items, materials and information in its possession or control or in the possession or control of any person permitted access to the Confidential Information; provided, however, that the receiving party may, pursuant to the terms of this Agreement, retain the Confidential Information, or copies thereof, (a) to the extent required by applicable law or regulation, or (b) to the extent such Confidential Information is preserved pursuant to the receiving party’s automatic archiving and back-up procedures related to electronic files. Any such retained Confidential Information shall remain fully subject to the confidentiality requirements herein. Upon the disclosing party’s written request, the receiving party shall certify in a writing signed by an authorized officer or representative that it has complied with the foregoing obligations.

6.4     Privacy.

(a) Partner acknowledges that OT may process personal data from Partner in connection with Partner’s participation in the Partner Program. OT’s privacy policy is as set out at https://www.opentext.com/about/privacy, which may be updated from time to time.

(b) Partner shall ensure it has a lawful basis, made all necessary disclosures, and has all necessary rights and permissions required (including with End Users and Beneficiaries, as applicable) for the processing of personal data by OT (and its Affiliates and third-party contractors, as may exist from time to time), including for international transfers. Partner shall enter into other agreements that may be required as determined by OT. Partner shall not do anything by commission or omission that places OT, its Affiliates and third-party contractors in breach of its obligations under any applicable data protection and privacy laws.

(c) Partner shall only provide personal data to the extent reasonably required for OT’s provision of OT Products (and procure the same from its End Users and Beneficiaries), and Partner is responsible for procuring the implementation and maintenance of privacy protections and security measures for components that Partner, any End User or Beneficiary (including the Affiliates of any of these) provides or controls.

(d) To the extent that the provision of OT Products by OT involves the processing of personal data as a processor to Partner and OT has not entered into the applicable EULA directly with the End User: (i) OT shall process personal data (as between Partner as processor and OT as Partner’s sub-processor) in accordance with the OpenText Data Processing Addendum available at https://www.opentext.com/assets/documents/en-US/pdf/opentext-data-processing-addendum-en.pdf and which may be updated from time to time (the “DPA”), which is incorporated herein by reference; (ii) Partner shall serve as a single point of contact for OT and OT shall not be required to provide information or notification to End Users; and (iii) Partner shall enter into, and procure that Indirect Partners enter into (if applicable), a data processing agreement with End Users as detailed in Section 7.3.

7.1     Partner Conduct. Partner shall conduct all activities in a manner that reflects favorably on the OT Products, the Partner Program, and the good name, goodwill, and reputation of OT. Partner agrees to abide by any terms in the Program Materials, including but not limited to any applicable training or certification requirements, deal registration or reporting requirements, instructions relating to processing sales opportunities and obtaining quotations, and guidelines relating to the use of OT Materials. Partner shall, at its own expense, obtain and maintain all required certifications, credentials, licenses, authorizations, registrations, and permits necessary to conduct business and perform its obligations under this Agreement.

7.2     Sales and Marketing Efforts. Upon OT’s written request, Partner will provide OT with Partner’s plan to market and promote the OT Products in the Territory (“Marketing Plan”). Partner’s marketing and advertising efforts will be of no less quality than OT’s marketing and consistent with marketing materials made available by OT to Partner and any mutually agreed upon Marketing Plan. Partner shall include in all materials used to market and promote the OT Products all applicable copyright and trademark notices as they appear on or in the OT Products or OT Materials, or as otherwise reasonably directed by OT, subject to the limitations and requirements in Section 5.2.

7.3     End User Agreements. Use of all OT Products is subject to the applicable EULA for such OT Product. Where OT Products include third-party products or services, third-party EULAs may apply. Prior to allowing an End User to use any OT Products, Partner shall ensure that an End User enters into the appropriate EULA for OT Products: (a) for certain OT Products, OT requires that End Users enter into EULAs directly with OT or the applicable third party; and (b) in other instances, Partner shall, and if applicable shall require Indirect Partners to, through back-to-back arrangements, enter into an agreement with End Users governing the licensing and use of the OT Products, including a data processing agreement and/or business associate agreement to the extent applicable so as to enable OT and its sub-processors (as exist from time to time) to process personal data (“End User Terms”), in which case, such agreement must contain terms that are substantially similar to the applicable EULA and are at least as protective of OT and its rights as existing under the applicable EULA. If Partner fails to ensure that End User has entered into an appropriate EULA with OT (where required by OT) or where Partner is required to enter into End User Terms, Partner will be liable to OT for any unlicensed use of OT Products or breach of the applicable EULA or End User Terms by an End User, and Partner shall defend, indemnify and hold harmless OT and its Affiliates from and against any resulting Losses suffered or incurred by OT or its Affiliates. Partner will use its best efforts to assist OT and take all actions requested by OT in the protection of OT’s Intellectual Property and to enforce the terms and conditions of the EULA or End User Terms. Partner shall promptly notify OT if it becomes aware of any breach of any EULA or End User Terms or possible infringement of OT’s Intellectual Property. If Partner agrees to the EULA on behalf of an End User, Partner represents and warrants that Partner has the authority from the End User to accept such EULA on their behalf, and Partner shall be responsible for the End User’s compliance with the terms of such EULA. If OT updates a EULA, then Partner must ensure that End Users timely accept the updated EULA. In addition to any other rights or remedies that OT may be entitled to, OT may suspend or terminate access to the OT Products (at its sole discretion) in accordance with the applicable EULA or if OT believes that there has been any improper use of the OT Products by Partner or End User. OT will promptly notify Partner if OT exercises its right to suspend or terminate as set forth above. Following such notice, Partner will promptly stop providing materials or accepting orders for OT Products from the terminated End User. Suspension or termination will not affect OT’s right to invoice Partner for the Order(s), or Partner’s obligation to pay OT, and Partner will not have any claim against OT for damages or lost profits resulting from the suspension or termination.

7.4    Updates.  Unless otherwise approved by OT in writing, Partner shall distribute and/or resell (as applicable) only those versions of OT Products that are supported by OT or, as requested by OT, the most recent version of the OT Products that contain all revisions, maintenance fixes or workarounds, updates or other modifications of the OT Products provided by OT.

 7.5    Compliance with Laws. Partner shall comply with all applicable federal, state, provincial, and local laws and regulations, including, without limitation, data protection and privacy laws and regulations, in connection with its performance relating to this Agreement. Partner shall not engage in any deceptive or unethical practices that may be detrimental to OT. Partner shall comply with the Foreign Corrupt Practices Act of the U.S., the Bribery Act of the U.K., and any applicable local laws or regulations (collectively, the “Anti-Corruption Laws”) including their prohibitions regarding the direct or indirect payment or giving of anything of value to an official of a foreign government, political party or governmental or non-governmental agency for the purpose of influencing an act or decision in their official capacity or inducing the official to use their or their organization’s influence to obtain or retain business involving OT Product(s) and any other OT services. Partner shall not violate or knowingly let anyone violate the Anti-Corruption Laws with respect to the sale, licensing and use of the OT Product(s) or related services. Partner warrants that none of Partner’s principals, staff, officers, or key employees are government officials, candidates of political parties, or other persons who might assert illegal influence on OT’s behalf. OT shall have the right to (a) audit Partner’s books and records at any time in accordance with Section 12.1 of this Agreement to verify Partner’s compliance with this Section; and (b) immediately terminate this Agreement for cause if OT has reason to believe that Partner has violated its obligations under this Section. Partner agrees to maintain an effective program to comply with the Anti-Corruption Laws during the Term. Partner agrees to certify or recertify compliance within thirty (30) days of the date OT requests such action. Partner shall defend, indemnify and hold harmless OT and its Affiliates from and against any and all Losses suffered or incurred by OT or its Affiliates (i) arising from any breach by Partner of any representation, warranty, covenant, or other obligation of Partner under this Section, (ii) resulting from any unlawful act committed by Partner or any agent of Partner thereof, or (iii) resulting from any act, omission or misrepresentation of Partner or any agent thereof relating to this Section.

7.6     Use of OT Products and OT Materials. Partner shall not, and shall ensure Partner Customers do not: (a) copy, reproduce, modify, transmit, post, upload, publish, translate, adapt, alter, or create derivative works based on OT Products or OT Materials except as expressly permitted by OT in writing; (b) merge the OT Products or OT Materials with other software and services; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the OT Products; (d) use any OT Product to build a similar or competitive product or service; (e) use any device or software or take any action that damages, interferes with or disrupts the OT Products; (f) take any action that may interfere with or adversely affect OT’s rights to its Intellectual Property; (g) engage in any unfair, competitive, misleading, or deceptive practices with respect to OT, the OT Products, OT Materials or OT Intellectual Property; or (h) remove, modify, alter, obscure, resize, or relocate in any way any proprietary rights, ownership, attribution, branding, confidentiality or other notices or legends from OT Products or OT Materials, except as expressly permitted by this Agreement. Partner shall defend, indemnify, and hold OT and its Affiliates harmless from and against any and all Losses suffered or incurred by OT or its Affiliates arising from: (i) Partner’s failure to comply with this Section and (ii) any other services that Partner distributes, markets, installs, licenses or supports related to the OT Products, whether stand-alone or as incorporated with other products or services.

7.7     No Unauthorized Warranties or Representations. Partner shall not make or provide, and shall ensure that any Partner Customers do not make or provide, any unauthorized representations, warranties, conditions or guarantees regarding OT Products on behalf of, or purporting to bind OT, that is additional to, or inconsistent with, any representations, warranties, conditions, or guarantees made by OT to End Users in the EULA for the applicable OT Product. Partner shall not make any representation to any party that OT has endorsed, warranted or guaranteed any Partner products or services. OT shall have no responsibility to Partner, or to any other party, for any breach by Partner of this Section, and Partner shall defend, indemnify, and hold OT and its Affiliates harmless from and against any and all Losses suffered or incurred by OT or its Affiliates arising as a result of each such breach.

7.8     Partner Infringement Indemnity. Partner shall defend, indemnify and hold OT and its Affiliates harmless from and against any and all Losses suffered or incurred by OT or its Affiliates at any time as a result of any alleged infringement of any third party Intellectual Property right to the extent caused by software, materials or data provided by Partner to OT, or due to Partner bundling, integrating or combining OT Products or services with any products or services not authorized by OT in writing.

7.9     Government Contracting. Partner shall not include any OT Products on any government (Federal, State, Provincial, local, etc.) contract vehicle without prior written approval from OT. Unless otherwise separately agreed to in writing, no provisions required in any U.S. government contract or subcontract related thereto shall be part of this Agreement, imposed on or binding on OT, and this Agreement is not deemed acceptance of any government provisions that may be included or referenced in Partner’s request for quotation, purchase order, order form, or any other document.

7.10     Portal, API, SDK Terms.

(a) If Partner has been enabled by OT to submit Orders through an online portal or dashboard, Partner must only use such portal or dashboard through its private account, and Partner’s use shall be subject to any applicable terms of use (including any applicable privacy policies). If applicable, Partner is responsible for keeping its account credentials confidential and will be responsible for all actions taken under its account.

(b) To the extent Partner is using the Unity software development toolkit or application programming interface, Partner’s use of such toolkit or API shall be governed by the SDK and API Agreement available at https://cybersecurity.opentext.com/legal/agreements-for-cybersecurity-data-security-and-data-protection-solutions/. Such API will also be considered an OT Product for the purposes of this Agreement except in any provision that would give Partner the right to market, use, resell or distribute the API to other parties.

8.1     Mutual Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its place of incorporation or formation; (b) it has the authority to enter into this Agreement and to perform its obligations and grant the rights and any licenses provided herein; and (c) by entering into this Agreement it is not in violation of any previous agreement or obligations between it and any third party.

8.2     Warranty Disclaimer. any ot products or ot materials provided to partner in connection with this agreement are provided on an “as is” basis. EXCEPT FOR THE LIMITED EXPRESS WARRANTIES made by OT for the OT Products in its applicable EULA, ot AND ITS SUPPLIERS make no OTHER representations and disclaim any and all express, implied, or statutory warranties, written or oral, including without limitation any implied warranty of merchantibility, fitness for a particular purpose, TITLE, non-infringement, or adequacy to produce a particular result. OT DOES NOT WARRANT THAT USE OF THE OT PRODUCTS WILL BE ERROR-FREE, UNINTERRUPTED OR VIRUS-FREE OR SECURE. PARTNER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF OT TO ANY THIRD PARTY. PARTNER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.

9.1     EXCLUSION OF DAMAGES. SUBJECT TO SECTION 9.4 AND EXCEPT WITH RESPECT TO PARTNER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT AND ITS OBLIGATIONS PURSUANT TO SECTIONS 7.5 (COMPLIANCE WITH LAWS), 7.6 (USE OF OT PRODUCTS AND OT MATERIALS), 7.7 (NO UNAUTHORIZED WARRANTIES OR REPRESENTATIONS), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOSS OF USE, LOST OR CORRUPTED DATA, COSTS OF RECREATING LOST OR CORRUPTED DATA, REPROCUREMENT AMOUNT OR ANY SIMILAR DAMAGES.

9.2     LIMITATION OF LIABILITY. SUBJECT TO SECTION 9.4, OT AND ITS AFFILIATES’ AGGREGATE LIABILITY TO PARTNER IN CONNECTION WITH AN ORDER (INCLUDING THE PROVISION OF ANY OT PRODUCTS THEREUNDER AND ANY DATA PROCESSING AGREEMENT OR BUSINESS ASSOCIATE AGREEMENT RELATED THERETO TO THE EXTENT APPLICABLE) WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY PARTNER TO OT UNDER SUCH ORDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MOST RECENT EVENT THAT GAVE RISE TO SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING, IN THE EVENT AN END USER HAS ENTERED INTO A EULA DIRECTLY WITH OT, PARTNER ACKNOWLEDGES AND AGREES THAT ANY CLAIMS RELATED TO THE PROVISION OF OT PRODUCTS SHALL BE BETWEEN THE END USER AND OT, AND PARTNER WAIVES THE RIGHT TO BRING SUCH CLAIMS AGAINST OT AND ITS AFFILIATES. THE LIABILITY SET FORTH ABOVE SHALL BE THE ENTIRE LIABILITY OF OT UNDER THIS AGREEMENT AND ANY OTHER LIABILITY OF OT, WHETHER ARISING IN CONTRACT OR TORT OR OTHERWISE, SHALL BE EXPRESSLY EXCLUDED. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THIS SECTION.

9.3     LIABILITY AND DAMAGES DISCLAIMER. THE EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY SECTIONS APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, EQUITY, AT LAW, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF OT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF PARTNER’S REMEDIES FAIL IN THEIR ESSENTIAL PURPOSE.

 9.4      EXCLUSION.   NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE; (B) FRAUD; (C) VIOLATIONS OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (D) PARTNER’S OBLIGATION TO PAY ANY FEES DUE UNDER THIS AGREEMENT OR ANY ORDER; OR (E) ANY LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.

10.1     Infringement Claims. OT will defend Partner from any Infringement Claim, to the extent it arises solely as a result of Partner’s distribution of OT Products in accordance with this Agreement, and provided the alleged infringement was not caused by: (a) failure to use, reproduce or distribute the most current release of the applicable OT Product or failure to incorporate an update or upgrade to the applicable OT Product that would have avoided the alleged infringement; (b) the modification of the OT Products by any party other than OT; (c) the combination or use of the OT Products with software, hardware, firmware, equipment, data, or technology not licensed or supplied by OT or approved by OT in writing; or (d) any unauthorized use, reproduction or distribution of the OT Products.

10.2     Conditions to Defense. OT’s infringement indemnity obligations are conditioned upon: (a) Partner notifying OT in writing within ten (10) days of Partner becoming aware of an Infringement Claim; (b) Partner not making an admission against OT’s interests; (c) Partner not agreeing to any settlement of any Infringement Claim without the prior written consent of OT; (d) Partner, at the request of OT, providing all reasonable assistance to OT in connection with the defense, litigation, and settlement by OT of the Infringement Claim; and (e) OT having sole control over the selection and retainer of legal counsel, and over the defense, litigation or the settlement of each Infringement Claim. OT will indemnify Partner from any judgment finally awarded, for which all avenues of appeal have been exhausted, or any final settlement in connection with any Infringement Claims, provided all the conditions of this Section are satisfied.

10.3     Mitigation and Sole Remedy. If an OT Product becomes, or in OT’s opinion is likely to become, the subject of an Infringement Claim, OT, in its absolute discretion, may: (a) procure the right to continue distributing the OT Product; (b) replace or modify the OT Product so that it becomes non-infringing without unreasonable degradation in functionality; or (c) terminate the applicable license or subscription and refund the unused portion of any prepaid fees received by OT related to such terminated license or subscription. OT’s entire liability and Partner’s sole and exclusive remedy with respect to any Infringement Claims are limited to the remedies set out in this Section 10.

11.1     Not for Resale. 

(a) OT may allow Partner to access OT Products for non-production evaluation, testing or demonstration purposes only (“NFR Licenses”), subject to the terms in the applicable Program Materials and/or Orders.

(b) Subject to the requirements of Section 7.6, Partner may only use NFR Licenses for the non-production purposes of sales presentation and demonstration for a period of twelve (12) months or such other period set forth in the Order for the NFR License, unless earlier terminated (the “Evaluation Period”). Partner shall not resell, license, sublicense, assign, or otherwise transfer any OT Products provided under a NFR License, nor shall Partner use such OT Products to provide services to End Users, prospects, or any other entities. Partner is specifically prohibited from (i) installing demonstration versions of OT Products at prospective End User locations without prior written approval from OT; (ii) using NFR Licenses in a production environment or with production data, including, without limitation, personal data, financial or other sensitive information; and (iii) exceeding data storage limits set by OT. The Evaluation Period may be extended by OT only, in its sole discretion. Partner shall comply with all laws applicable to it with respect to its use of the NFR Licenses.

(c) OT will not provide any support services for NFR Licenses. This Section 11.1 does not give Partner any rights to any updates, upgrades, extensions, or enhancements to the OT Products provided pursuant to the NFR Licenses or any other OT Products developed by OT or its suppliers at any time in the future.

(d) Partner acknowledges that some OT Products or portions thereof that are provided pursuant to NFR Licenses may be owned or provided by third-party licensors of OT (“Third-Party Products”). Notwithstanding the rights and licenses granted in this Agreement, such Third-Party Products may be subject to the terms of additional third-party licenses, as such may be made available to Partner upon provision of the applicable NFR License. Partner agrees that its rights in and to such Third-Party Products are subject to the applicable third-party licenses, and Partner shall defend, indemnify and hold OT and its Affiliates harmless from and against any and all Losses suffered or incurred by OT or its Affiliates arising out of Partner’s breach of such third-party licenses.

(e) In the event of a breach related to the unauthorized use of NFR Licenses of OT Products, OT’s remedies shall include but not be limited to payment of the full retail license fees for the applicable OT Products.

(f) Upon termination or expiration of this Agreement or expiration of the Evaluation Period, NFR Licenses shall automatically expire and access to the OT Products may become restricted. If Partner wishes to continue to use the OT Products beyond the Evaluation Period, Partner may be required to acquire a license or subscription, as applicable, and pay the associated fees.

(g) PARTNER ACKNOWLEDGES THAT NFR LICENSES OF THE OT PRODUCTS ARE PROVIDED IN “AS IS” CONDITION AND WITHOUT SUPPORT, INDEMNIFICATION OR WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR ADEQUACY TO PRODUCE A PARTICULAR RESULT.

(h) Where provision of an NFR License involves physical or tangible OT Products, Partner hereby assumes risk of loss or damage to such OT Products from the time such OT Products are delivered to Partner, and title to such OT Products shall remain with OT.

11.2     Internal Use. Except as explicitly provided for herein, Partner may not use the OT Products for Partner’s internal business use unless Partner (a) accepts and agrees to the applicable EULA and (b) purchases appropriate subscriptions or licenses for the OT Products for internal business use (“Internal Use Licenses”), subject to the terms in the applicable Program Materials and/or Orders.

12.1     General.  Partner shall maintain proper books and records sufficient for OT to verify Partner’s compliance with its obligations under this Agreement. Upon reasonable advance notice to Partner, OT may audit Partner’s applicable books and records and compliance procedures to verify compliance. Partner agrees to provide reasonable cooperation with OT’s audit team. OT shall endeavor to avoid unreasonable interference with Partner’s business operations, and any audit conducted at Partner facilities shall be conducted during Partner’s regular business hours. Partner shall maintain all records required under this Agreement for the longer of three (3) years or such period required by applicable law, following the expiration or termination of this Agreement. If any audit reveals that Partner has not complied with any obligations to OT, Partner shall promptly remedy each such noncompliance (including payment of any applicable unpaid fees) and Partner will be liable for OT’s costs incurred to perform such audit.

13.1     Order of Precedence. In the event any terms in a Schedule to this Agreement conflict with the Master Terms, the terms in the Schedule will govern. Conflicting terms contained in the Program Materials will take precedence over the terms of this Agreement.

13.2     Governing Law. This Agreement shall be governed by the laws of Delaware excluding (a) its conflicts or choice of law rules, and (b) the United Nations Convention on Contracts for the International Sale of Goods. Except for a request by OT for injunctive or other equitable relief, any dispute arising out of this Agreement will be subject to the exclusive jurisdiction of the courts located in the state of Delaware. The Uniform Computer Information Transactions Act, or any version, adopted by any state, does not apply to this Agreement.

13.3     Injunctive Relief. Notwithstanding anything to the contrary in this Agreement, each party shall be free at all times to seek injunctive relief as such party may consider advisable to protect its Intellectual Property.

13.4     Non-exclusivity. Without limitation and notwithstanding any other provision of this Agreement, Company may, in its sole discretion, and without incurring any liability or obligation to Partner: (a) distribute the OT Products worldwide, including within the Territory; (b) appoint other entities to distribute OT Products worldwide, including within the Territory; and (c) grant other entities the right to incorporate OT Products into their product configurations and to market OT Products as part of such product configurations worldwide, including within the Territory.

13.5     Independent Contractors. The parties shall remain independent contractors at all times. This Agreement shall not create any employment, agency, franchise, joint venture, or other similar legal relationship between OT and Partner. Neither party will have any authority to act on behalf of the other party, bind the other party, act as agent of the other party, or create any obligation or liability on the part of the other party, and neither party will represent to any third party that it has such authority.

13.6     No Third Party Rights. Other than as expressly set forth in this Agreement, this Agreement benefits solely the parties to this Agreement and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

13.7     Waiver.   Any waiver of this Agreement must be in writing and signed by both parties. The waiver of any breach or default shall not constitute a waiver of any other right or remedy hereunder, or any subsequent breach or default.

13.8     Assignment.  Partner may not assign, transfer, or sublicense any portion of its interests, rights, or obligations under this Agreement by written agreement, merger, consolidation, Change of Control, operation of law, or otherwise, without the prior written consent of OT. Any attempted assignment or transfer in violation of this Section will be null and void. Except to the extent identified in this Section, this Agreement will be binding upon and inure to the benefit of the respective successors and permitted assigns of the parties.

13.9     Severability.   If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and all remaining provisions will continue in full force.

13.10     Force Majeure. Except for payment and confidentiality obligations, or protection of Intellectual Property, neither party is responsible for any delay or failure in performance of this Agreement to the extent due to causes beyond its reasonable control, including, without limitation, acts of God, riots, war, acts of terrorism, flood, fire, earthquake, extreme weather, pandemic, epidemic, explosion, government order, sanction, labor dispute, shortage of materials, Internet service provider outage, or power shortage.

13.11     Export Laws. No portion of the OT Products shall be exported or re-exported into (or to a national or resident of): (a) any country subject to United Nations (“UN”), Canada, the European Union (“EU”) or the United States (“US”) embargo; or (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals, the US Commerce Department’s Entity List, or the US Commerce Department’s Denied Parties list, EU Sanctioned Party list, or any other relevant national or international lists that would prohibit the export, re-export, import or use of OT Products. Partner represents and warrants to OT that: (i) Partner is not located in, under the control of, or a national or resident of any country described in this Section, nor a party named on any list described in this Section; and (ii) Partner shall not export, transfer, disclose or make available the OT Products to a national or resident of any country described in this Section, nor a party named on any list described in this Section. Additional export restrictions may apply to certain portions of the OT Products. Partner shall comply with all US, Canadian, EU, UN and other relevant export laws, regulations, and directives applicable to OT Products within Partner’s possession or control. Partner accepts sole responsibility for its exports, re-exports, imports and use of OT Products, and undertakes to obtain, retain and abide by all information and updates on all relevant laws, regulations and requirements governing the export, re-export, import or use of OT Products.

13.12     Legal Interpretation; Governing Language. This Agreement will not be construed in favor of or against either party by reason of authorship. The headings used in this Agreement are for convenience only. The parties confirm that this Agreement and all related documentation is and will be in the English language. Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient rédigés en langue anglaise. Unless otherwise required by applicable law, all versions of this Agreement in any other language are for accommodation only and will not be binding upon the parties. All communications and notices to be made or given pursuant to this Agreement must be in the English language.

13.13       Notices.   Except as otherwise set forth in this Agreement, any notice under this Agreement that must be given by a party in writing is deemed effective when sent: (i) via certified or registered mail, postage prepaid, or via express mail or nationally recognized courier service to: (a) Partner, at the address provided by Partner to OT and included in Partner’s account information; or (b) OT, at 275 Frank Tompa Drive, Waterloo, Ontario Canada, N2L 0A1, Attn: General Counsel; or (ii) via e-mail on the date sent by email if sent by 5:00 p.m. recipient’s local time on a business day, and otherwise on the next business day, provided that no bounce-back or delivery failure notification is received, to: (a) Partner at the Partner contact email address which has been provided by Partner; or (b) OT at SMBClegal@opentext.com. Either party may change its address by giving notice of the new address to the other party.

13.14       Subcontractors.  If applicable, Partner shall be liable for any subcontractors and agents and compliance by subcontractors and agents with this Agreement.

13.15       Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes all other related oral and written agreements and communications between the parties with respect to such subject matter. Neither party has relied upon such other agreements or communications.

If Partner is a Direct Partner that is designated as a “Distributor” partner type in the Partner Portal, the following terms and conditions (“Distributor Schedule”) govern distribution activities by Partner.

1. Definitions

Capitalized terms used in this Distributor Schedule which are defined in the Master Terms shall have the same meaning as in the Master Terms unless otherwise stated herein.

“Indirect Reseller” means a third party that purchases OT Products from Partner pursuant to a contract (as required by this Distributor Schedule) in order to resell such OT Products directly to End Users. “End User” as used in this Distributor Schedule shall exclude MSPs.

“Indirect MSP” means an MSP that purchases OT Products from Partner pursuant to a contract (as required by this Distributor Schedule) in order to provide managed services through and/or in conjunction with the use of OT Products.

2. General Terms

2.1     Distributor Appointment. Subject to the terms of the Agreement, OT hereby appoints Partner as a non-exclusive distributor of the OT Products during the Term and within the Territory, and Partner hereby accepts such appointment. During the Term, OT grants to Partner a limited, revocable, non-exclusive, non-transferrable, non-sublicensable, non-assignable right in the Territory to market and distribute the OT Products to: (a) Indirect Resellers in the Territory for the internal business use of End Users pursuant to a EULA, and (b) Indirect MSPs in the Territory to provide managed services through and/or in conjunction with the use of OT Products pursuant to a EULA. Prior to placing any orders of the OT Products, Partner shall require all Indirect Resellers and Indirect MSPs to agree to and accept terms and conditions with Partner that are substantially similar to this Agreement and are at least as protective of OT as existing under this Agreement (“Indirect Partner Terms”). In addition, Partner shall require all Indirect MSPs to agree to and accept (i) terms and conditions with Partner that are substantially similar to this Managed Services Provider Schedule and are at least as protective of OT as existing thereunder (“Indirect MSP Terms”) and (ii) the terms and conditions of the EULA for the applicable OT Product. Partner shall be fully liable for Indirect Resellers and Indirect MSPs and shall fully defend, indemnify and hold harmless OT and its Affiliates from any and all Losses suffered or incurred by OT or its Affiliates arising out of any acts or omissions of its Indirect Resellers or Indirect MSPs, including, without limitation, a failure of the Indirect Reseller or Indirect MSP to comply with the Indirect Partner Terms, Indirect MSP Terms (if applicable), or the EULA (to the extent End User has not entered into the EULA directly with OT).

2.2     Partner Obligations.

(a) Partner shall require (i) Indirect Resellers to only resell directly to End Users and not to third parties for further resale or redistribution and (ii) Indirect MSPs to only resell directly to its Beneficiaries and not to third parties for further resale or distribution.

(b) Partner may not provide Indirect Resellers or Indirect MSPs with access to any OT resources, including the Partner Portal or any other websites or documents that OT makes available to Partner unless specifically approved in writing by OT.

(c) Partner shall implement and maintain during the Term a due diligence program designed to ensure that Indirect Resellers, Indirect MSPs and their respective directors, officers and employees do not have any history of corrupt activities. In the event that responses to Partner’s due diligence indicates that (i) there has been any prior history of corruption activities or (ii) that the directors, officers or employees of an Indirect Reseller or Indirect MSP have present or past relationships with government officials or other persons that would raise any inference of an increase in a risk of future corruption activities, Partner shall not authorize such Indirect Reseller or Indirect MSP to resell OT Products.

(d) Partner shall include a provision in the Indirect Partner Terms that authorizes Partner to provide to OT on request any information obtained from the Indirect Reseller or Indirect MSP related to due diligence matters and the resale activities contemplated herein.

If Partner is a Direct Partner that is designated as a “Reseller” partner type in the Partner Portal, the following terms and conditions (“Reseller Schedule”) govern resale activities by Partner.

1.     Definitions

Capitalized terms used in this Reseller Schedule which are defined in the Master Terms shall have the same meaning as in the Master Terms unless otherwise stated herein.

“Reseller End User” means any third party that obtains OT Products from Partner as authorized in this Agreement, for use in its internal business operations, and not for resale or redistribution. For the avoidance of doubt, Reseller End User excludes MSPs.

2.     General Terms

2.1     Reseller Appointment. Subject to the terms of Agreement, OT hereby appoints Partner as a non-exclusive reseller of the OT Products during the Term and within the Territory, and Partner hereby accepts such appointment. During the Term, OT grants to Partner a limited, revocable, non-exclusive, non-transferrable, non-sublicensable, non-assignable right in the Territory to market and resell the OT Products to Reseller End Users in the Territory for the internal business use of Reseller End Users pursuant to a EULA. Partner may only resell OT Products directly to Reseller End Users, and not to third parties for further resale or redistribution.

2.2     Hybrid Designation. In the event Partner is also approved and designated as an “MSP” partner type by OT, the terms of the Managed Services Provider Schedule shall apply to Partner when Partner is acting as an MSP.

If Partner is a Direct Partner that is designated as a “Managed Services Provider” or “MSP” partner type in the Partner Portal, the following terms and conditions (“MSP Schedule”) govern managed services activities by Partner.

1.  Definitions

Capitalized terms used in this MSP Schedule which are defined in the Master Terms shall have the same meaning as in the Master Terms unless otherwise stated herein.

2.  General Terms

2.1     MSP Appointment. Subject to the terms of the Agreement, during the Term, OT hereby grants to Partner a limited, revocable, non-exclusive, non-transferrable, non-sublicensable, non-assignable right in the Territory to: (a) use and resell the OT Products solely as part of the managed services it provides to Beneficiaries for such Beneficiaries’ internal business use, (b) market and promote the OT Products, and (c) access and use the User Documentation; in each case, solely in accordance with this Agreement and the applicable EULA.  For the avoidance of doubt, Partner may not resell OT Products to third parties for further resale or redistribution.

2.2     Hybrid Designation. In the event Partner is also approved and designated as a “Reseller” partner type by OT, the terms of the Reseller Schedule shall apply to Partner when Partner is acting as a Reseller.

2.3     Partner Obligations. In addition to the obligations set forth in the Master Agreement, Partner acknowledges and agrees to the following:

(a) Prior to any use of the OT Products by Partner or its Beneficiaries, Partner shall (i) agree to and accept the terms of the applicable EULA, which shall be deemed included in each Order, and (ii) enter into End User Terms with Beneficiary that are substantially similar to the applicable EULA and are at least as protective of OT and its rights as existing under the applicable EULA. If Partner agrees to the applicable EULA on behalf of a Beneficiary, Partner represents and warrants that Partner has the authority from the Beneficiary to accept such EULA on such Beneficiary’s behalf, and Partner shall be liable for any failure by Partner or its Beneficiaries to comply with such EULA.

(b) To the extent that the provision of OT Products by OT involves the processing of personal data as a processor to Partner: (i) OT shall process personal data (as between Partner as processor and OT as Partner’s sub-processor) in accordance with the data processing agreement and/or business associate agreement made part of the applicable EULA; and (ii) Partner shall serve as a single point of contact for OT and OT shall not be required to provide information or notification to Beneficiaries.

(c) Partner shall, at its own cost and expense:

1. ensure that Partner and its Beneficiaries are running operating systems that support the OT Products;
   
   
2. have sufficient knowledge of the industry and the OT Products (including, but not limited to, specifications, features and benefits) so as to be able to inform Beneficiaries of the differences between the OT Products and similar, comparable or competing offerings and information on standard protocols and features of the OT Products;
   
   
3. ensure that an adequate number of trained, capable, certified, and qualified technical personnel with sufficient knowledge of the OT Products are available to respond on behalf of Partner to technical support requests; and
   
   
4. to the extent applicable to the OT Products purchased hereunder, operationalize and allow OT access to the OT Products deployed at the Beneficiary’s site for OT’s sole purpose of collecting anonymized usage statistics in order for OT to invoice Partner.

(d) Partner acknowledges that it may have access to Beneficiaries’ accounts and data, and Partner shall be responsible for ensuring it has the right to access such accounts and data. Partner confirms that it has implemented and shall maintain for the Term of this Agreement, industry-standard, physical, technical and administrative safeguards to protect its Beneficiaries’ accounts and data from accidental loss and unauthorized access, use, alteration, or disclosure. Partner confirms and acknowledges that it shall not access, use, alter, or disclose any Beneficiary’s account or data without the consent of such Beneficiary. Partner shall promptly notify OT of any breach of the security measures required to be put in place by law or this Agreement and shall not do anything by commission or omission that places OT in breach of its obligations under any applicable data protection and privacy laws.

(e) Partner shall provide first line support for the applicable OT Product to Beneficiaries prior to escalating support requests to OT.

 3.  MSP Indemnification. Partner shall defend, indemnify and hold OT and its Affiliates harmless from and against any and all Losses suffered or incurred by OT or its Affiliates as a result of: (a) any unlicensed use of the OT Products or breach of any applicable EULA or End User Terms by Partner’s Beneficiaries; (b) any claims by Beneficiaries relating to the managed services provided by Partner and/or combination of such managed services with OT Products; (c) Partner’s negligent acts or omissions that may interfere with or adversely affect Beneficiary’s use and/or access to OT Products, deletion and/or corruption of Beneficiary’s accounts and data.

If Partner is a Direct Partner that is designated as a “Value-Added Distributor” or “VAD” partner type in the Partner Portal, the following terms and conditions (“VAD Schedule”) govern distribution activities by Partner.

1.  Definitions

Capitalized terms used in this VAD Schedule which are defined in the Master Terms shall have the same meaning as in the Master Terms unless otherwise stated herein.

“Indirect Reseller” means a third party that purchases OT Products from Partner pursuant to a contract (as required by this VAD Schedule) in order to resell such OT Products directly to End Users. “End User” as used in this VAD Schedule shall exclude MSPs.

“Indirect MSP” means an MSP that purchases OT Products from Partner pursuant to a contract (as required by this VAD Schedule) in order to provide managed services through and/or in conjunction with the use of OT Products.

2.  General Terms

2.1     Distributor Appointment. Subject to the terms of the Agreement, OT hereby appoints Partner as a non-exclusive distributor and reseller of the OT Products during the Term and within the Territory, and Partner hereby accepts such appointment. During the Term, OT grants to Partner a limited, revocable, non-exclusive, non-transferrable, non-sublicensable, non-assignable right in the Territory to market, distribute and resell the OT Products to: (a) Indirect Resellers in the Territory for the internal business use of End Users pursuant to a EULA, and (b) Indirect MSPs in the Territory to provide managed services through and/or in conjunction with the use of OT Products pursuant to a EULA, and (c) End Users in the Territory for the internal business use of End Users pursuant to a EULA. Prior to placing any orders of the OT Products, Partner shall require all Indirect Resellers and Indirect MSPs to agree to and accept terms and conditions with Partner that are substantially similar to the Agreement and are at least as protective of OT as existing under the Agreement (“Indirect Partner Terms”). In addition, Partner shall require all Indirect MSPs to agree to and accept (i) terms and conditions with Partner that are substantially similar to this Managed Services Provider Schedule and are at least as protective of OT as existing thereunder (“Indirect MSP Terms”) and (ii) the terms and conditions of the EULA for the applicable OT Product. Partner shall be fully liable for Indirect Resellers and Indirect MSPs and shall fully defend, indemnify and hold harmless OT and its Affiliates from any and all Losses suffered or incurred by OT or its Affiliates arising out of any acts or omissions of its Indirect Resellers or Indirect MSPs, including, without limitation, a failure of the Indirect Reseller or Indirect MSP to comply with the Indirect Partner Terms, Indirect MSP Terms (if applicable), or the EULA (to the extent End User has not entered into the EULA directly with OT).

2.2     Partner Obligations.

(a) To the extent Partner is marketing or distributing the OT Products pursuant to 2.1(a) and/or 2.1(b), Partner agrees to comply with the terms of the Distributor Schedule.

(b) To the extent Partner is marketing or reselling the OT Products pursuant to 2.1(c), Partner agrees to comply with the terms of the Reseller Schedule.

(c) Partner shall provide first line support for the applicable OT Product to Indirect Resellers, MSPs and End Users prior to escalating support requests to OT.  

If Partner is an Indirect Partner, the following terms and conditions (“Indirect Partner Schedule”) govern Partner’s participation in the Partner Program but not the ordering or provision of OT Products (excluding NFR Licenses), which shall be between Partner and the authorized OT distributor from whom it purchases.

1.  Definitions

Capitalized terms used in this Indirect Partner Schedule which are defined in the Master Terms shall have the same meaning as in the Master Terms unless otherwise stated herein.

2.  General Terms

2.1     Partner Obligations.

Notwithstanding anything to the contrary set forth in this Agreement, as an Indirect Partner, Partner must purchase and place orders for OT Products (excluding NFR Licenses) through an authorized OT distributor. Except for NFR Licenses, all orders for OT Products, including pricing, order and payment terms, shall be determined by the terms of an agreement between the authorized OT distributor and Partner. OT SHALL HAVE NO LIABILITY FOR ORDERS PLACED BY PARTNER WITH AN AUTHORIZED OT DISTRIBUTOR. PARTNER ACKNOWLEDGES AND AGREES THAT OT’S OBLIGATION TO PROVIDE OT PRODUCTS SHALL BE IN ACCORDANCE WITH OT’S AGREEMENT WITH THE AUTHORIZED OT DISTRIBUTOR AND SUCH DISTRIBUTOR’S ORDER TO THE EXTENT IT HAS BEEN ACCEPTED BY OT, AND THAT PARTNER WAIVES ANY RIGHT TO BRING A CLAIM (INCLUDING INFRINGEMENT INDEMNITY CLAIMS RELATED TO OT PRODUCTS) DIRECTLY AGAINST OT OR ITS AFFILIATES REGARDING OT PRODUCTS.

3.  Limitation of Liability

 The “Limitation of Liability” section of the Master Terms is hereby replaced in its entirety with the following:

LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO PARTNER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOSS OF USE, LOST OR CORRUPTED DATA, COSTS OF RECREATING LOST OR CORRUPTED DATA, REPROCUREMENT AMOUNT OR ANY SIMILAR DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OT AND ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY TO PARTNER IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED $1,000 USD (OR THE EQUIVALENT IN LOCAL CURRENCY). THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THIS SECTION. THESE LIMITATIONS OF LIABILITY APPLY: (I) TO LIABILITY FOR NEGLIGENCE; (II) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, EQUITY, AT LAW, STRICT PRODUCT LIABILITY, OR OTHERWISE; (III) EVEN IF OT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (IV) EVEN IF PARTNER’S REMEDIES FAIL IN THEIR ESSENTIAL PURPOSE.

If Partner is accessing and making purchases via the Carbonite Safe portal (the “Safe Portal”), the following additional terms and conditions (“Carbonite Safe Schedule”) govern Partner’s purchases made via the Safe Portal.

1.  Definitions

Capitalized terms used in this Carbonite Safe Schedule which are defined in the Master Terms shall have the same meaning as in the Master Terms unless otherwise stated herein.

2.  Purchases 

2.1        Payment.   In the event Partner makes purchases via the Safe Portal, Partner hereby authorizes OT to charge its valid credit or debit card for fees related to the purchased OT Products. Partner must inform OT of any charge disputes within sixty (60) days of the date of purchase. If Partner chooses to cancel, subscription fees already paid for any subscription(s) will not be refunded, and termination shall be in accordance with Section 2.2 below. Partner’s agreement with its credit or debit card issuer governs its use of the designated credit or debit card, and Partner must refer to that agreement to determine its rights and liabilities in connection with its use of its credit or debit card. Partner agrees to immediately notify OT of any change in its billing address or the credit or debit card used for payment hereunder.

 2.2        Renewals.  Notwithstanding anything to the contrary set forth in the Master Terms, Partner agrees that any subscription(s) it purchases via the Safe Portal will automatically renew and OT will charge the then-current renewal fees to Partner’s credit or debit card unless Partner changes the autorenewal preferences in its account or cancels the subscription(s) by notifying OT in writing. The prices for renewals may be different than those previously paid. Fees are due and payable prior to the subscription renewal date. Incomplete or incorrect account information may result in cancellation of your purchase(s), inactivation of your account and deletion of all data stored on OT’s servers or on third-party cloud storage providers.

2.3          Lawful Use and Discrepancies.  It is a violation of law for Partner to misuse or fraudulently use credit and debit cards. OT will report all misuse and fraudulent use to government authorities, credit reporting services, financial institutions and credit card companies. Partner’s right to raise billing discrepancies and any associated recovery is waived unless reported to OT in accordance with the notice provision of the Agreement within sixty (60) calendar days after such discrepancy is discovered.

2.4          Third Party Provider.  OT uses third-party service providers for payment services (e.g., card acceptance, merchant settlement, and related services), and Partner’s purchases via the Safe Portal may be subject to the terms of use and privacy policies of such third-party service providers in addition to this Agreement. OT is not responsible for acts or omissions of such third-party service providers. Please review any relevant third-party terms and policies before making a purchase. By purchasing OT Products through the Safe Portal, Partner hereby consents and authorizes OT and such third-party service provider(s) to share any information and payment instructions Partner provides to the extent required to complete Partner’s transactions.

If Partner is not in any of the locations in the above table, Partner is contracting with and will be invoiced by Webroot International Limited, unless otherwise stated on your applicable Order.