Master Partner Agreement (MPA)
This MASTER PARTNER AGREEMENT (this “Agreement”) is made available by Claroty Ltd., or one of its affiliates, (“Claroty”) and governs your participation in the Claroty’s Partner Program (the “Partner Program”) and any Sale of Claroty Products (as defined herein), as applicable.
By joining the Partner Program or purchasing any Products from Claroty without a separate signed agreement governing an applicable transaction in place, Partner agrees to be bound by the terms set forth herein. Partner’s acceptance of this Agreement may be indicated by: (i) submitting an application to the Partner Program, (ii) clicking to accept or otherwise agreeing to this Agreement where such an option is made available by Claroty, (iii) placing an Order for Products, in which case this Agreement will govern solely for the purposes of the applicable Order; or (iv) otherwise participating in the Partner Program.
In the Parties have executed a separate agreement intended to govern a particular transaction (an “Existing Agreement”), the terms of the Existing Agreement shall govern to the extent applicable to such a transaction. This Agreement shall be deemed incorporated by reference into any relevant Order Form between Claroty and Partner, regardless of whether a hyperlink to this Agreement is included in therein.
1. PARTNER AUTHORIZATION. Subject to the terms and conditions of this Agreement or an applicable Order, Claroty authorizes Partner and its Affiliates, to conduct, as applicable, the following activities on a non-exclusive basis in the Territory designated above:
1.1. Indirect Reseller. If designated as an Indirect Reseller, Partner may purchase the Products from a Claroty-authorized distributor to Sell, distribute, and offer to Sell the Products to Customers located and taking delivery in the Territory. Unless authorized in an Order, Partner may not sell Products to any third party for purposes of further resale by such third party.
1.2. Direct Reseller. If designated as Direct Reseller, Partner may purchase the Products from Claroty to Sell, distribute, and offer to Sell the Products to Customers located and taking delivery in the Territory. Unless authorized in an Order, Partner may not sell Products to any third party for purposes of further resale by such third party.
1.3. Distributor. If designated as a Distributor, Partner may purchase the Products from Claroty to Sell, distribute, and offer to Sell the Products to resellers or other intermediaries that will subsequently resell the Products to a Customer.
1.4. MSSP Partner. If designated as a Managed Security Services Partner (an, “MSSP Partner”), Partner may purchase and use the Products from Claroty or a Claroty-authorized distributor, for the purpose of providing Managed Security Services to Customers in the Territory, which may be (a) in connection with a Sale; or (b) may be used to provide Managed Security Services without transferring Product licenses to the Customer. Any use of the Products by Partner is governed by the terms set forth in the EULA. In the event Partner does not Sell the Products in connection with Managed Security Services, Partner will be the sole User. In the event Partner Sells the Products in connection with the Managed Security Services, Partner will also be deemed either an Indirect Reseller or Direct Reseller, Partner and Customer will both be considered Users.
1.5. Provide Services Related to the Products. Partner may, as agreed by Claroty and Partner, provide Product installation, deployment, post-sale services, and any Partner Services in relation to the Products and Managed Security Services.
1.6. Promote the Products. In connection with the appointments set forth herein, Partner shall use its own direct sales personnel to identify, register and support Customers, and to promote the Products and Managed Security Services. Partner shall notify Claroty by email or in another manner agreed by the Parties any potential Customer and will notify Claroty by email, in a form provided by Claroty, upon the finalization of each Sale or sale of the Managed Security Services. Partner will notify Claroty of any inquiries it receives regarding the Products from outside the Territory. Nothing herein shall restrict Claroty or another authorized party from selling Products to Customers.
1.7. Use the Products for Training and Customer Demonstrations. Claroty may provide Partner with not-for-resale Products ("NFR Products") for use by Partner to provide training to Partner’s employees, conduct demonstrations and proof of concepts for Customers. Under no circumstances shall Partner Sell or transfer the NFR Product or use the NFR Product to provide training to Customers or third parties or to perform competitive analysis or benchmark testing without Claroty’s prior written consent. The NFR Software shall remain the sole property of Claroty. An NFR Product license may be revoked by Claroty at any time in Claroty's sole discretion.
1.8. Use Claroty’s Trademark(s) and Trade Name(s). During the Term, Partner may display the trademarks and trade names of Claroty for marketing, advertising, and support purposes as well as on promotion of the Products in accordance with the marketing guidelines in the Claroty Partner Program Portal, as may be amended from time to time. All trademarks and trade names which Claroty uses in connection with its Products are and remain the exclusive property of Claroty and/or its affiliates. Nothing contained in this Agreement shall be deemed to give Partner any right, title or interest in any trademark or trade name of Claroty relating to the Products.
2. PRICES, ORDERS, DELIVERY, INVOICES AND PAYMENT
2.1. Prices. The list price for the Products is as set forth in the Price List and is subject to the specific trade conditions specified in Claroty’s Partner Portal, or as otherwise agreed in writing by Partner and Claroty (the “Prices”). Prices exclude all sales, use, value added, import/export, customs or other taxes, withholding taxes, fees, levies, duties and other governmental charges (with the exception of taxes imposed on the income of Claroty), all of which will be borne exclusively by Partner. In the event Claroty is required to pay any such taxes or duties, Partner will promptly reimburse Claroty. Claroty reserves the right, in its sole discretion, to change, alter or amend such Prices by issuing an amended Price List which shall take effect at least thirty (30) days after the release of the amended Price List. The new Prices will apply to all Orders confirmed after the effective date of the change, apart from Products for which firm price quotations were given by Partner to Customers within the one-month period preceding the effective date of the change. The prices at which Partner offers the Products to Customers will be determined in Partner's sole discretion. Partner shall promptly provide Claroty with a resale certificate or notice that Partner does not have one.
2.2. Orders. Claroty may, in its sole discretion: (i) require Partner to purchase the Products from a Distributor; or (ii) allow a Partner to purchase the Products from Claroty. Partner is solely responsible for the collection of amounts owed to Partner for the Products and the failure to collect sums owed by Customer or Customer’s termination of Managed Security Services or does not excuse Partner’s performance to pay Claroty the amounts set forth in an Order.
(a) Partner Orders with Claroty. If Partner purchases Products directly from Claroty, an Order will be accepted upon the earlier of receipt of: (i) an Order Form executed by Partner; or (ii) Partner’s purchase order referencing the terms in an Order Form. Each Order shall at minimum include the applicable Customer name and address, the Products being purchased, and the Price for such Products. The placing by Partner of an Order and Claroty's acceptance thereof under and in accordance with this Agreement will create a contract of sale between Claroty and Partner on the terms of such Order this Agreement. Claroty will use commercially reasonable efforts to fill all Orders accepted by Claroty. Any additional or conflicting terms or conditions included in a purchase order provided by Partner will be null and void.
(b) Partner Orders with Distributors. If Partner purchases Products from a Distributor, all pricing and payment terms shall be governed by the agreement authorizing such purchase between Partner and the Distributor. Claroty shall have no liability in connection with Partner’s purchases (including any obligations or terms therein) placed with Distributors. Claroty’s obligation to provide Products shall be in accordance with Claroty’s agreement with the Distributor and the Distributor’s corresponding order accepted by Claroty.
2.3. Pass-Through Terms; Order Confirmation. Each Sale of Products must be accompanied by a Purchase Agreement in which Customer agrees to comply with the terms of the EULA and any other terms and conditions specified in an Order Form or otherwise made available to Partner to be flowed down to the Customer, including if selling through an intermediary (collectively, “Flow Down Terms”). Upon request by Claroty, Partner will promptly provide Claroty with a copy of all Purchase Agreements with Customers. Partner may not negotiate the terms of the Flow Down Terms with any prospective Customer, or agree to any conflicting, different or additional terms in excess of those set forth in the Flow Down Terms, without Claroty's prior written consent. Partner shall use commercially reasonable efforts to assist Claroty’s efforts to enforce the Flow Down Terms and shall promptly report to Claroty in writing any breach or suspected breach by the Customer of the EULA upon Partner having knowledge of the same. For the purpose of clarification, if acting as a Distributor, Partner shall ensure that all sales of Products to intermediaries include terms requiring compliance with the applicable Flow Down Terms.
2.4. Suspension of Performance. If Partner breaches the terms of this Agreement, including by failing to pay fees owed to a Claroty or a Distributor, as applicable, Claroty may suspend or terminate its performance under this Agreement. Nothing herein limits Claroty’s remedies in the event of a Partner’s failure to pay, nor shall Claroty have an obligation to cease provision of the Products to any Customer.
2.5. Records. Partner shall keep detailed records with regard to Partner's use or Sale of the Products to enable Claroty to verify Partner's compliance with this Agreement. Such records shall at the minimum include all Customer names and addresses, the serial number (S/N) of the Products sold to each Customer, the date and identifying information of each license key provided to the Customer. The Partner will provide a copy of such records to Claroty at Claroty's request, throughout the Term, and upon termination of this Agreement, shall provide Claroty with a complete copy of such records. The Partner will maintain a copy of such records in its possession for at least two (2) years from delivery to Claroty.
2.6. Audit. Claroty shall have the right, no more than twice during any calendar year, either by itself or through an independent certified public accountant, to inspect the relevant records of Partner to verify Partner's compliance with this Agreement. Such inspection shall be conducted during regular business hours on at least ten (10) business days’ prior notice. The fees and expenses of such audit shall be borne by Claroty unless the auditor determines that Claroty has been underpaid by five percent (5%) or more, in which case Partner shall bear such fees and expenses.
3. SERVICES. Claroty is responsible for providing technical support in accordance with the level of support selected or purchased in accordance with an applicable Order and Claroty’s then-current Support Policy. If Partner intends to offer its own support services to Customers, Partner is exclusively responsible and liable to Customer for such support and must provide such support in accordance with the Support Policy and any other requirements included in the Partner Portal, if applicable, including obtaining certain training level certifications, as required by Claroty. Furthermore, in no event will Partner prevent Customers from contacting Claroty for support.
4. CONFIDENTIALITY AND PROPRIETARY RIGHTS
4.1. Confidentiality. Each Party may have access to certain non-public and/or proprietary information of the other Party, in any form or media, including (without limitation) confidential trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, whether written or oral, and any other information that a reasonable person or entity should have a reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). 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. Neither Party shall use or disclose the Confidential Information of the other Party except as expressly permitted under this Agreement or by applicable law. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
4.2. Publicity. Partner agrees that Claroty may identify Partner as a partner and user of the Products and use Partner's trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) on Claroty's website, including a link to Partner's website for promotional purposes.
4.3. Proprietary Rights. Partner acknowledges and agrees that ownership of all applicable copyrights, trade secrets, patents and other intellectual property rights in the Products, including any new version releases, updates, enhancements, modifications or improvements made thereto, and in the Confidential Information of Claroty, are and shall remain vested in Claroty. In addition, all other aspects of the Products, including without limitation, programs, methods of processing, design and structure of individual programs and their interaction and programming techniques employed therein shall remain the sole and exclusive property of Claroty and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by Partner to any person, company or institution whatsoever other than as expressly set forth herein. Partner shall provide prompt written notification of any feedback data (e.g., questions, comments, suggestions or the like) from Customers regarding the Products (collectively, "Feedback"). Such Feedback shall be deemed non-confidential, and Claroty shall have a non-exclusive, worldwide royalty-free and perpetual license to use or incorporate such Feedback into the Products and/or other current or future products or services of Claroty (without Partner's or any Customer's' approval and without further compensation). Partner agrees (i) not to modify or create any derivative work of the Products or any portion thereof; (ii) not to delete, alter, add to any copy of the Products and media the name of the Products and any copyright, trademark or other notices or legends appearing in or on, or provided with, any copy, media or master or package materials provided by Claroty or which may be required by Claroty at any time; and (iii) not to reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure or organization) from the Products. Partner shall make Customers aware of this clause, and any Purchase Agreement shall include restrictions not less strict than this Section.
4.4. Protection of Rights. Partner shall cooperate fully with Claroty in protecting the rights of Claroty in the Products and the Confidential Information of Claroty. Without limiting the foregoing, Partner agrees to notify Claroty promptly in the event that Partner becomes aware of any infringement of such rights. Claroty shall exclusively have the right, in its sole discretion, to prosecute lawsuits against any party for infringement of the rights of Claroty in the Products and its Confidential Information. The Partner agrees to fully cooperate with Claroty, at the expense of Claroty, in the prosecution of any such suit. Any Purchase Agreement shall include restrictions not less strict than this Section.
5. REPRESENTATIONS; WARRANTIES
5.1. Representations. Each Party represents and warrants to the other Party that (a) it has full corporate power and authority to execute or otherwise accept, deliver and perform this Agreement; (b) this Agreement, when accepted, will constitute a valid and legally binding obligation of such Party, enforceable against it in accordance with its terms, subject to applicable laws relating to bankruptcy, moratorium and the availability of equitable remedies and legal and public policy restrictions on the enforcement of provisions providing for indemnification; and (iii) the execution, delivery and performance by such Party of this Agreement will not constitute a breach of, or otherwise conflict with, any of its respective corporate documents or any other agreement, instrument or commitment to which it is subject or by which it is bound.
5.2. Product Warranty. Partner acknowledges that the EULA and Order Form if applicable, specifies the Product warranties, if any, provided by Claroty to any User. Partner undertakes that it will not enter into any agreement with, or give any undertaking to, any Customer to extend the term of such warranties unless expressly authorized in writing by Claroty to do so.
5.3. Claroty Services. Claroty shall only be responsible for providing any Services to an applicable User, as specified in an Order Form or other services description provided by Claroty to Partner. Claroty shall provide any such Services in a professional and workmanlike manner. Any Support Services will be carried out and provided to a User in accordance with Claroty’s then-current Support Policy. Claroty shall have no obligation to provide Support Services to a Managed Security Services Customer, unless such a Customer has purchased the Products in relation to a Sale; in the event a Sale has not occurred, Claroty will provide such Support Services directly to Partner.
5.4. Partner Services. Any Partner Services Partner provides to a Customer shall be provided in a professional and workmanlike manner. Partner is solely and exclusively responsible and liable to Customer for such services.
5.5. Disclaimer of Warranties. EXCEPT FOR THE REPRESENTATIONS SET FORTH IN SECTIONS 5.1, 5.2, AND 5.3, CLAROTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO PARTNER, CUSTOMER OR TO ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE PRODUCTS OR ANY SERVICES OR LICENSES AND DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY AND INDEMNIFICATION.
6.1. Limitation of Liability. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, CLAROTY, ITS AFFILIATES AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS OF THE LOWER OF: (A) THE AMOUNTS ACTUALLY PAID TO CLAROTY BY THE PARTNER PURSUANT TO THIS AGREEMENT IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY OR (B) IF THE EVENT GIVING RISE TO THE LIABILITY IS RELATED TO A SPECIFIC PRODUCT SOLD TO A SPECIFIC CUSTOMER, THE AMOUNTS ACTUALLY PAID TO CLAROTY BY THE PARTNER IN THE ONE-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY RELATIVE TO SUCH PRODUCT AND CUSTOMER; OR (II) FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST DATA, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (III) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (IV) FOR LOSS OR CORRUPTION OF DATA OR INTERRUPTION OF USE. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OF A PERSON.
6.2. Claroty Indemnification.
(a) Claroty undertakes to defend Partner from and against any claim or action that the Software or the use of the Software by Partner infringes the intellectual property rights of a third party and shall fully indemnify and hold harmless Partner from and against all direct losses, damages, costs (including all reasonable legal fees) and expenses awarded against Partner as a result of any such claim or action. Partner agrees as a precondition to Claroty’s obligations hereunder that: (i) it shall promptly notify Claroty in writing upon becoming aware of any such claim or action; (ii) it shall not make any admission as to liability or compromise or agree to any settlement of any such claim or action without the prior written consent of Claroty; and (iii) Claroty shall, at its own expense, be entitled to exclusively conduct or settle all negotiations and litigation arising from any such claim or action and Partner shall, at Claroty’s request and expense, give Claroty all reasonable assistance in connection with those negotiations and such litigation.
(b) If Partner’s use of any of the Products hereunder is, or in Claroty 's opinion is likely to be, enjoined due to the type of infringement specified in the paragraph above, Claroty may, at its sole option and expense: (i) procure for Partner the right to continue using such Software under the terms of this Agreement; (ii) replace or modify such Software so that it is non-infringing and substantially equivalent in function to the enjoined Software; or (iii) if options (i) and (ii) above cannot be accomplished despite Claroty's reasonable efforts, then Claroty may, at its expense, recall the applicable Software and, if applicable, terminate the license therefor. Partner will cooperate with Claroty in any such recall.
(c) Notwithstanding the terms above, Claroty will have no liability for any infringement claim of any kind to the extent it results from: (i) modification of the Products by any party other than Claroty; (ii) the combination, operation or use of any Products supplied hereunder with equipment, devices or software not supplied by Claroty to the extent such a claim would have been avoided if the Products were not used in such combination; or (iii) failure of Partner to use or distribute updated or modified Products provided by Claroty to avoid infringement.
(d) THIS SUBSECTION SETS FORTH CLAROTY’S SOLE AND EXCLUSIVE OBLIGATIONS, AND PARTNER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OR THREATS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
6.3. Partner Indemnification. Partner shall indemnify, defend and hold Claroty harmless from any claims, demands, liabilities or expenses, including reasonable attorney fees, incurred by Claroty as a result of the acts or omissions of Partner, its directors, officer, employees or agents, including without limitation a breach of Partner's obligations specified in Section 4.3 above and any claims brought by a Customer to the extent arising out of Partner's provision of Partner Services, except to the extent any such claims arise solely from operation or use of the Products. Claroty agrees that: (i) it shall, as soon as reasonably practicable, notify Partner in writing of any claim for which it intends to seek indemnification hereunder promptly after becoming aware of such claim; (ii) it shall not make any admission as to liability or compromise or agree to any settlement of any such claim without the prior written consent of Partner which consent shall not be unreasonably withheld or delayed; and (iii) Partner shall, at its own expense, be entitled to control or settle all negotiations and litigation arising from any such claim and Claroty shall, at Partner's request and expense, give Partner all reasonable assistance in connection with those negotiations and such litigation.
7. PARTNER RESPONSIBILITIES
7.1. Marketing Efforts, Partner Obligations and Cooperation. Partner agrees and undertakes (i) tto market the Products in accordance with the terms of this Agreement, (ii) to cooperate with Claroty in matters relating to the marketing, sales and support of Claroty Products, (iii) to comply with good business practices and all laws and regulations relevant to this Agreement, the Products and services, and (iv) to conduct its business in a manner that favorably reflects upon the Products. In its marketing and distribution efforts, Partner will use the then-current Product. Partner will not provide sales and marketing material nor make any representations about Claroty or the Products that are in any way inconsistent with the Documentation for the Products as supplied to Partner by Claroty from time to time. To that end, Partner agrees to permit Claroty to review Partner's promotional and advertising material for the Products prior to use. Partner shall not use and shall withdraw and retract any promotion or advertising that Claroty finds unsuitable, or in breach of the terms of this Agreement.
7.2. Partner Program Compliance. Partner may receive discounts or other trade benefits based on Partner's participation in Claroty's Partner Program, including by complying with any deal registration guidelines, participating in training made available to Partner, and by participating in any other incentives offered in the Partner Program. Partner shall participate in the Claroty deal registration program to register Sales or MSSP opportunities as set forth in the deal registration guidelines in Claroty’s Partner Portal.
7.3. Prohibited Practices. Partner may not make any contracts or commitments on behalf of Claroty, nor make any warranties or other representations regarding the Products, other than those authorized herein, in an Order, or a separate writing agreed by the Parties.
7.4. Responsibility for Intermediaries. To the extent applicable, Partner shall ensure that any resellers or other intermediaries engaged in a Sale are informed of and comply with the obligations set forth in this Agreement. Partner shall be responsible for any breach of this Agreement by an intermediary as if such breach were committed by Partner.
7.5. Managed Security Services and Partner Services. If providing Managed Security Services or otherwise providing services to a Customer (collectively, “Partner Services”), Partner shall provide any Partner Services in a professional and workmanlike manner. Partner shall be responsible for providing maintenance and support for the Products and/or the Managed Security Services.
7.6. Additional Warranties. Partner represents and warrants that: (i) Partner or Customer, owns or has a right of use from a third party, and controls, directly or indirectly, all of the software, hardware and computer systems (collectively, “Systems”) where the Products will be installed or used, (ii) it has, on behalf of itself and the Customer, as applicable, authorized Claroty to transmit data through the Products to the extent necessary to provide the Products to a User, (iii) it has a lawful basis to process any User data, including personal data; and (iv) it has made all necessary disclosures, obtained all necessary consents, and obtained all necessary authorizations required under applicable, law to permit the processing and transfer of any User data.
7.7. Insurance. Partner shall maintain for the terms of this Agreement all insurance policies (and in such amounts) as required by applicable law and customary industry practices.
8. TERM AND TERMINATION
8.1. Term. This Agreement shall commence as of the Effective Date and shall continue until terminated by either Party effective after the lapse of thirty (30) days from the date of delivery of a written termination notice by the terminating Part to the other Party (the “Term”). Partner understands that after lawful termination of this Agreement, it shall have no right whatsoever to continue to distribute the Products and that it will be entitled to no compensation in connection with such termination.
8.2. Termination for Cause. This Agreement may be terminated by either Party for cause with immediate effect by sending written notice of termination to the other Party, upon the occurrence of any of the following events:
(a) in case of material breach of the other Party that has not been cured within thirty (30) days following a written notice thereof from the non-breaching Party; or
(b) upon giving written notice to the other Party in the event the other Party should become insolvent, or upon the filing by or against the other Party of a petition in bankruptcy or reorganization, or upon the filing of a request for the appointment of a trustee, liquidator or receiver for such Party, or upon an assignment for the benefit of creditors by such Party, or such similar action, should said event continue for a period of sixty (60) days.
1.3. Effect of Termination. Upon termination of this Agreement, (i) Partner shall immediately discontinue all marketing, promotional and resale activities hereunder, and shall have no right to order or receive any additional copies of the Products and all of Partner's rights and licenses granted hereunder shall immediately terminate, except that (a) licenses granted to Customers in accordance with this Agreement and the terms of the EULA with such Customers will remain in effect in accordance with the terms of the applicable EULA, and (b) other than in the event of termination by Claroty in accordance with the provisions of Section 8.2 above, Claroty shall fulfill any Orders received prior to the date of termination, and will, without limitation, provide any Services for the entire period paid for under such orders, or will terminate all or part of such Orders and will refund a pro rata portion of any amounts pre-paid in relation to any terminated Orders; and (ii) Partner shall promptly pay any then outstanding amounts owing to Claroty by the due dates in accordance with any Order; and (iii) each Party will, within thirty (30) days following termination, return to the other Party all the other Party's Confidential Information, Documentation, catalogues and literature in its possession, custody or control in whichever form held (including all copies or embodiments thereof) and Partner will cease using any trademarks, trade names, service marks and other designations of Claroty.
1.4. Neither Party shall incur any liability or compensation obligation whatsoever for any damage (including, without limitation, damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any lawful termination of this Agreement by such Party that complies with the terms of the Agreement whether or not such Party is aware of any such damage, loss or expenses.
1.5. Survival. Sections 2.1, 4, 6.1, 8 and 9, and the obligation of Partner to pay fees for Products pursuant to any outstanding Orders not terminated by Claroty, shall survive termination or expiration of this Agreement for any reason.
1.6. Customer Transition. Upon termination of this Agreement for any reason, Partner will refer all Customers to Claroty for purchase of Products including all Customer and potential customer inquiries.
9. GENERAL
9.1. Partner Compliance with Laws. Partner represents, warrants and covenants to comply at all times with all applicable laws, rules and regulations relevant to this Agreement (including without limitation, those related to anti bribery, export control, and data privacy, the Products, their distribution and the services it provides hereunder. Without limiting the foregoing, Partner shall not engage in any deceptive, misleading or unethical practices that are or might be detrimental to Claroty, shall not provide any benefit, financial or otherwise, to any Customer or other end user or any of their personnel, in connection with their purchase of Products, and shall comply with all applicable export, re-export and import requirements set forth in applicable export control laws and regulations, all applicable privacy and data protection laws and all applicable anti-bribery and anti-kickback laws. Partner shall maintain appropriate technical and organizational measures to protect data (including data that personally identifies an individual) that it collects, accesses or processes, against unauthorized or unlawful processing or transfer, and against unauthorized access, loss or destruction.
9.2. Independent Contractors. It is expressly agreed that Claroty and Partner are acting hereunder as independent contractors and under no circumstances shall Partner, or any of the directors, officers, employees or agents of Partner, be deemed the employees of Claroty for any purpose. This Agreement shall not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except to the extent and for the purposes provided for herein.
9.3. Governing Law and Legal Actions. The laws of the State of New York shall govern the construction and interpretation of this Agreement, without regard to its principles of conflicts of law. The Parties hereto agree that the courts of the State of New York and the United States District Court for the Southern District of New York, as well as all courts to which an appeal may be taken from such courts, shall have exclusive jurisdiction over any matters concerning or arising out of this Agreement or incidental to it.
9.4. Entire Agreement. This Agreement supersedes all past and contemporaneous proposals (oral or written), negotiations, conversations, or discussions between or among the Parties relating to the subject matter of this Agreement and all past dealing or industry custom.
9.5. Amendment and Waiver. Except as otherwise expressly provided herein or an Order, any provision of this Agreement may be amended and the observance of any provision of this Agreement may be waived (either generally or in any particular instance and either retroactively or prospectively) only with the written consent of the Parties.
9.6. Assignment. This Agreement is not assignable by one Party without the written consent of the other Party, provided that any merger, sale of assets, stock or other equity, or other transaction resulting in a change of control of Claroty (or which causes the business of Claroty to which this Agreement relates to be assumed or acquired by another party) and an assignment of this Agreement in the framework thereof will not require such consent of Partner. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors.
9.7. Force Majeure. Claroty will not be liable to Partner or any of its customers for any loss, expense or damage due to delays in delivery of Products caused by or resulting from any act of God, riot, fire, explosion, accident, flood, sabotage, war, inability to obtain fuel, power, raw materials or parts, embargo, or governmental laws, regulations, or orders, lockouts, strike or labor trouble, actions, or inaction of Partner, or any customer thereof, or any cause of occurrence which is beyond the reasonable control of Claroty.
9.8. Severability. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
9.9. Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
9.10. Notices. Any notice required or permitted to be given by either Party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight mail service (e.g., Federal Express), or by first class mail (certified or registered), or by facsimile confirmed by first class mail (registered or certified), to the other Party addressed as set forth below. Notices will be deemed effective (i) three (3) working days after deposit, postage prepaid, if mailed, (ii) the next day if sent by overnight mail, or (iii) the same day if sent by facsimile and confirmed as set forth above.
BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASIS OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
APPENDIX 1- DEFINITIONS
"Affiliate“ means an entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party, where “control” means ownership or control of more than fifty percent (50%) of the voting power of securities or interests in the entity controlled.
“Customer” means either: (a) a customer that purchases a license to the Products from Partner or, if applicable, an intermediary; or (b), if applicable, a customer that purchases Managed Security Services provided by Partner.
“Documentation” means the user guide, release notes, installation notes, and other materials describing Product functionality delivered by Claroty for use with the Products.
“EULA” means Claroty's End User License Agreement located at www.claroty.com/eula, which governs any User's use of the Products, and which may be updated by Claroty from time to time.
"Hardware" means any hardware components included in the Products.
“License Key” means, if applicable, a document (in physical or electronic format) provided by Claroty which lists: (i) the Products, including the version number, if applicable, sold to Partner; and (ii) the code or password that must be input to activate and use the Products or to increase the number of endpoints.
"Order” means an agreement by Partner to purchase Products, which occurs upon either: (i) the execution of an Order Form by Claroty and Partner; (ii) Partner’s provision to Claroty of a purchase order referencing and consistent with an Order Form; or (iii) Partner’s agreement with a distributor designated by Claroty to purchase the Products.
“Order Form” means a quotation, order form, or other ordering instrument provided by Claroty or, as applicable, a Distributor, to Partner, which establishes the terms of sale of Products to Partner.
"Managed Security Services" means, among other things, services provided by Partner to a Customer using the Products, which may include providing solution integration, monitoring, proactive and reactive support, alerting, compliance monitoring.
"Partner Portal" means Claroty’s Partner Program portal, which includes the Price list, Product details, program guidelines, training resources, and other information intended to promote and facilitate participation in Claroty’s Partner Program.
“Price List” means Claroty’s list of Products authorized for sale to Claroty partners. The Price Listis included in the Partner Portal and includes the Claroty’s suggested retail price for the Products.
“Products” means the Software, Hardware, Claroty Services, and all Documentation, packaging, updates, upgrades, versions and modifications thereto.
“Purchase Agreement” means a purchase agreement, purchase quotation, purchase terms and conditions or another similar document regardless of its title that Partner enters into with Customers which contains terms and conditions that apply to a Sale.
“Sale” when used in reference to the Products, means the sale of a license to use the Products to a Customer, and the variations “Sold,” and “Sell” shall be construed accordingly.
“Claroty Services” means any services provided by Claroty relating to the Products, including Support Services, implementation services, or other services offerings provided by Claroty in connection with the Software and Hardware.
“Software" means the Claroty software products set forth in the then current Price List, as may be amended from time to time, regardless of method of delivery and all Documentation, packaging, updates, upgrades, versions and modifications thereto.
“Support Services” means support and maintenance services offered in accordance with Claroty’s Support Policy (the “Support Policy”) located at www.claroty.com/support-policy.
"User" means, as applicable, any end user of the Products, which may include Partner or a Customer.
