ESET Policy Hub
Legally speaking, about your privacy using ESET.
PARTNER AGREEMENT
THIS AGREEMENT (the “Agreement”) is made and entered into as of the date you click “I Accept” (the “Effective Date”) by and between ESET Canada Inc., located at 125 Commerce Valley Drive West. Suite 601, Thornhill, ON,L3T 7W4
(hereinafter referred to as “ESET”), and the entity named on the account of Partner in the ESET Partner Portal (“EPP”) at the time of acceptance of this Agreement electronically (“Partner”) and consists of this Agreement together with the and Schedule A. Partner is a Channel Partner ("Channel Partner"), a Managed Service Provider (“MSP”), or both (for clarification, Channel Partner and MSP together or individually are referred to as “Partner”).
WHEREAS, ESET and Partner desire to enter into this Agreement to memorialize the terms under which Partner will engage in business as ESET’s non-exclusive reseller/distributor in the territory of the country of Canada (the “Territory”) and will be entitled to resell/distribute the Software Product (as defined herein) in the Territory is subject to change in which case, ESET shall give Partner a 30 day advance notice
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Agreement
1. Appointment of Partner. ESET hereby appoints Partner as Channel Partner or MSP as applicable and categorized together with ESET representative, as its non-exclusive reseller/distributor in the Territory during the term of this Agreement, and Partner hereby accepts such appointment on the terms and conditions set forth herein. Partner agrees to use best efforts to market, promote and solicit orders for ESET's software products listed in the price list located in the EPP and provided for resale to Partner ("Software Product") directly to prospective end-users located in the Territory ("End Users"), and to actively market, promote and solicit Software Product subscription renewals from existing End Users located in the Territory. Partner is not authorized to solicit orders for the Software Product through other Partner intermediaries, unless agreed to by ESET, which is cause for termination of this Agreement, as set forth herein. For purposes of this Agreement, the “Software Product” means the existing version and any future versions, releases, updates, enhancements, modifications, or derivatives of the Software Product made available by ESET. Partner shall also provide or arrange for certain technical support services with respect to the Software Product, as required by ESET and described in the EPP. If the Partner is both a Channel Partner and an MSP, the sale of a license shall only be included once in sales either as a resale of a license or sale of a service from MSP. In no instance shall one sale be counted towards both the Channel partner quarterly sales and MSP Partner monthly sales. Partner shall clearly distinguish in the Order to ESET whether such sale is a Channel Partner sale or MSP sale.
2. Term of Agreement. The initial term of this Agreement shall commence on the Effective Date hereof and shall continue thereafter in full force and effect for a period of twelve (12) months (the “Initial Term”), unless earlier terminated as provided herein in Section 2 of the Agreement. Following expiration of the Initial Term, this Agreement shall automatically renew for successive twelve (12)-month periods (each, a “Renewal Term”).Either Party may terminate this agreement for convenience providing a thirty (30) day prior written notice of termination to the other party.
3. Standard Terms and Conditions. By signing below, the parties hereby acknowledge and agree to all of the terms and conditions of this Agreement and the schedules attached hereto, including, without limitation, ESET’s Standard Terms and Conditions set forth on Schedule A. This Agreement constitutes an offer to Partner that expressly limits Partner’s acceptance to the terms and conditions of this Agreement, and any different or additional terms contained in any related purchase order, confirmation, or similar form submitted by Partner shall have no force or effect. ESET may update these terms and conditions at any time. Your acceptance to this Agreement shall constitute acceptance of any future updates or amendments of the terms of this Agreement. Should you not be willing to be bound by any future updated terms, you shall have 30 days to notify ESET in writing of your intent to terminate the Agreement with ESET. Each party represents and warrants that it has the requisite power and authority to accept this Agreement, and to perform its obligations hereunder, and that the person who accepted this Agreement is duly authorized to enter into this Agreement on behalf of such party.
By clicking “I accept” I represent that I have the binding authority on behalf of Partner and agree to be bound by the terms and conditions of this Agreement.
STANDARD TERMS AND CONDITIONS
1. LIMITED SCOPE OF APPOINTMENT. Partner is not authorized to solicit orders for the Software Products to End Users indirectly through resellers or other intermediaries, unless designated by ESET. The use of resellers or channel intermediaries is a default under this Agreement and constitutes grounds for termination in accordance with Section 8.1 (Default) and Section 8.2 (Termination).
2. BEST EFFORTS. For purposes of this Agreement, "best efforts" means, at a minimum, that Partner shall:
2.1 Territory Performance. Partner is expected to meet mutually determined performance goals for its market, as set forth in or as specified in ESET Partner Portal (EPP) for Channel Partner and for MSP. These goals will be modified as appropriate but must be met in order for this Agreement to continue pursuant to the terms and conditions of this Agreement. Initial and continuing sales goals are set out in EPP for Channel Partner and for MSP and may be updated from time to time.
2.2 Partner Program.
2.2.1 Partner Program Description and Requirements - All program requirements and description are outlined in the Partner Program Guide in the ESET Partner Portal. Partner shall be classified according to the levels outlined in the Partner Program or as ESET deems necessary.
ESET reserves the right to change, modify, revise or delete parameters described in the EPP, as it deems
necessary. Partner has full responsibility for staying apprised of and complying with all EPP requirements,
as the same may be updated from time to time.
End-User Information Reporting. Partner shall report to ESET the following information about end-users purchasing ESET Software Product: first name, last name, address and email address. For business customers, first and last name and email address of the main point of contact with whom the Partner is negotiating the sale of ESET Software Product, End User entity identification number and address. Violation of this section shall be deemed as material violation of this Agreement.
2.2.2 PARTNER PROGRAM DESCRIPTION AND REQUIREMENTS FOR MSP: MSP is expected to maintain a minimum of 25 licenses per month in ESET monthly license portal, the ESET MSP Administrator, following a six (6) month ramp-up period. Any conditions of ESET’s MSP program are found in the ESET Partner Program Guide and may be modified at any time.
ESET reserves the right to change, modify, revise or delete parameters described in the EPP, as it deems necessary. Partner has full responsibility for staying apprised of and complying with all EPP requirements, as the same may be updated from time to time.
2.2.3 MSP PARTNER SUPPORT
(a) Support - Applicable to direct MSPs: All ESET MSPs shall provide all levels of support for their end user customers. The MSP may open a case with ESET as needed, where they will be supported directly by ESET and will then be expected to resolve end user customer’s questions or issues directly with them.
(b) Support - Applicable to MSP Distributors selling to MSP entities: ESET MSP Distributors, defined as MSP Partners reselling ESET licensing to their MSP resellers. MSP resellers re-sell ESET products and/or services to end customers. MSP Distributors shall provide all levels of support for their MSP resellers.
3. PARTNER RIGHTS AND OBLIGATIONS.
Orders, Invoicing, Payment and Compensation.
3.1 Order Terms.
(a) PARTNER ORDER TERMS. Partner may solicit orders for ESET’s Software Product directly from End Users, including, subject to the additional terms and conditions of this Agreement, via the internet; provided that, all ESET Software Product may only be downloaded by End Users directly from ESET’s website(s). ESET shall establish, maintain and require, in its sole and absolute discretion, all list prices for the Software Products and associated services to End Users. Partner agrees to strictly adhere to all list pricing requirement established by ESET, the failure of which shall constitute a default and breach of this Agreement. All Software Product order from Partner accepted by ESET are final. Once an End User order is placed with Channel Partner, Channel Partner shall place an order for the Software Product with ESET, whereupon ESET will issue a serial number to activate the Software Product by the End User upon download from ESET’s website(s) and issue an invoice to Channel Partner, and Channel Partner shall, in turn, invoice their End User(s), as applicable (see Partner Program Guide).
(b) MSP ORDER TERMS. MSP may solicit orders for ESET’s Software Product directly from End Users, including, subject to the additional terms and conditions of this Agreement, via the internet; provided that, all ESET Software Product may only be licensed by MSP directly using ESET MSP Administrator. ESET shall establish, maintain and require, in its sole and absolute discretion, all list prices for the Software Product and associated services to End Users, it being understood that the MSP is acting solely in the capacity of a non- exclusive independent MSP, subject to the terms and conditions of this Agreement. Once an End User order is placed with the MSP, the MSP shall place an order for the Software Product in ESET’s monthly licensing portal, ESET MSP Administrator, whereupon ESET will update the license with new the desired quantity of licenses for deployment to MSP’s End User customer. All Software Product orders accepted by ESET are final. MSP is solely responsible for processing and collection of their End User invoices and receivables, as applicable.
All MSPs are expected to order and manage licensing on behalf of their end-customers in ESET’s monthly license portal, the ESET MSP Administrator. The MSP is responsible to pay for any purchased license when billed, based on active licenses in ESET MSP Administrator throughout the billing period, which is calendar month (example for January billing period is January 1 to January 31).
MSP Distributors All MSP distributors are expected to manage purchasing and licensing on behalf of their MSP resellers in ESET’s monthly license portal, ESET MSP Administrator. The MSP Distributor is responsible for payment of any purchased license(s) when billed, based on active licenses in ESET MSP Administrator throughout the billing period, which is calendar month (example for January billing period is defined as January 1 – 31).
3.2 Pricing. Prices for all orders of the Software Product placed by Partner with ESET shall be equal to the then-current list price less the specified Partner discount set forth in as specified in ESET Partner Portal (EPP) for Channel Partner or the ESET MSP Administrator. Pricing for OEM/Builder sale and resale of licenses is also found in the EPP. Additional terms for OEM/Builder applicable to Partner are in section 4, however no discounts or margins apply for those licenses as described in section 4. Partner agrees to strictly adhere to the Minimum Advertising Pricing Policy (MAP) established by ESET, the failure of which shall constitute a material default or breach of this Agreement. ESET reserves the right to adjust Software Product pricing. ESET shall advise Partner of Software Product pricing and pricing updates. ESET will provide a minimum of fifteen (15) days prior notice while endeavoring to provide up to sixty (60) days’ notice of price increase changes. Any price decrease is not subject to a minimum notice period. Partner may not employ unreasonable or otherwise pricing against other ESET partners.
3.2 Payment Terms. Payment will be made by credit card (or by wire transfer, or other payment method approved by ESET) against ESET’s invoice on a net thirty (30) days’ basis. All prices and payments shall be in Canadian dollars (CAN), unless otherwise designated by ESET. Late payments shall, in addition to other relief, be subject to any costs of collection (including reasonable attorneys’ fees and costs incurred or accrued by ESET) and shall bear interest at the rate of one (1) percent per month (or applicable fraction thereof for any partial month), or, if less, the maximum rate allowed by applicable law, until paid. With each payment, Partner will send to ESET the Partner’s monthly summary statement by encrypted e-email. Partner’s monthly summary statement sent by encrypted e-mail will include End User information, including email address, first name, last name, phone number, street address, Province, Postal Code, and country, and entity business number to the extent allowed by applicable law.
3.3 Expenses. Partner shall bear, and shall be solely responsible for, all out-of-pocket costs and expenses for travel (air & cab fare, lodging, auto rental, per diem, etc.), photocopying, overnight courier, long-distance telephone and other expenses incurred or accrued by it in performing its responsibilities under this Agreement, including any work described in Section 2.2.3 ( MSP Support) or any work or expenses incurred in the execution of the Partner’s marketing plans, such as advertising, or trade show activities (and any other cost related to the performance of this Agreement).
4. ADDITIONAL TERMS FOR OEM/SYSTEM BUILDER LICENSE PURCHASE, RESALE AND USE
The Following terms shall be in effect for the purchase, resale and use of OEM Serial Codes (“Serial Codes”):
- Partner may sell Serial Codes for ESET NOD32 Antivirus (EAVH-N1), ESET Smart Security (ESSH-N1), ESET Cybersecurity for Mac (ECS-N1), ESET Cybersecurity Pro for Mac (ECSP-N1), and ESET Mobile Security (EMSH-N1) (collectively, the “OEM Software”) either to end users or to Sub-Partners, as defined in letter e of this section 4 and under the terms described in letter e and the EPP.
- ESET shall fulfill orders for OEM Software by providing electronic access to the Serial Codes.
- Partner may only activate the Serial Codes by using the appropriate ESET Web form, located at www.eset.com, or via In-product activation.
- Pricing for Serial Codes is described in the EPP for OEM/System builder license. No discounts or margins are applicable to OEM pricing. Pricing is subject to change in accordance with the terms of this Agreement.
- Partner may sell Activation Codes to a Sub-Partner under the following terms:
- A Sub-Partner is any company who purchases Serial Codes from Partner and who uses said codes to preinstall ESET on a newly built PC or Mobile Device, or who will install ESET on a PC or Mobile Device serviced by their company. Sub-partners may NOT market or sell Serial codes via website, retail store or other direct method or non-service based installation. Partner warrants and represents that Sub-Partner will abide by the terms of this Agreement and its accompanying Schedules. Partner shall remain liable to ESET for any breach of this Agreement or misuse of the OEM Software and/or Activation Codes by Sub-Partner.
- Neither Partner nor Sub-Partner is permitted to advertise or sell Serial Codes as individual commercial or retail licenses, under any circumstances. Serial Codes are intended for use ONLY with purchase of new or refurbished computer or via service installation.
- Neither Partner nor Sub-Partner may resell or use Serial codes outside of Territory.
- Partner will submit a Point of Sale report to ESET every quarter, identifying each Sub-Partner and listing each Serial Code sold to that Sub-Partner. Neither Partner nor Sub-Partner is required to provide Point of Sales reporting for Serial Codes sold directly to end users.
- Any violation of these terms by either Partner or Sub-Partner will result in cancellation of all Serial Codes purchased by that Partner, immediate termination of this agreement and all rights herein, and will terminate any return or refund policies.
- Provided that neither Partner nor Sub-Partner has breached this Agreement, Partner may return a Serial Code to ESET for a full refund by providing written notice to ESET within thirty (30) days of the purchase of said Serial Code.
- Each Serial Code will expire one (1) year from the date it was issued by ESET, and will not be replaced if unused or unsold.
4.1 Taxes. Partner acknowledges and agrees that Partner shall not deduct from or otherwise offset against any amount payable to ESET under this Agreement any federal, state, provincial, local or foreign withholding or income taxes arising out of or relating to this Agreement and the transactions contemplated hereby. Unless specifically stated otherwise, any amounts payable for Software Product and associated services in respect of the supply of property or services by ESET to Partner, are exclusive of value added, sales, provincial, use or similar taxes. Partner is liable for and shall pay all value added, sales, provincial, federal, use or similar taxes to ESET in compliance with applicable law. Partner agree to charge and collect from End Users, remit and pay to the appropriate governmental authority any such taxes, levies or charges (other than ESET’s income taxes) arising out of or relating to this Agreement and the transactions contemplated hereby, including all value added, sales and use taxes collectible by the Partner on its sale of Software Product to End Users, in compliance with applicable laws. Partner agrees to indemnify and hold ESET harmless from any and all sale, use, excise, import or export, value added or similar taxes (other than ESET’s income taxes), as well as the collection or withholding thereof, and all government permit or license fees and all customs, duty, tariff and similar fees in respect of any amounts payable or remittable by Partner that were not property paid to ESET or a governmental authority, as the case may be, by the Partner, and any costs associated with the collection of payment by ESET of any of the foregoing items. . Partner promptly shall deliver to ESET, upon request, proof of payment of all such taxes, levies or charges, together with copies of all communications from or with such governmental authority with respect thereto. Unless Partner provides a certification in writing that it is a non-resident of Canada that is not registered for goods and services tax/harmonized sales tax (“GST/HST”) and/or Quebec sales tax (“QST”) purposes, Partner shall be considered to be registered for GST/HST and QST purposes.
4.2 Books and Records. Partner shall maintain in a professional and workmanlike manner such books and records as are reasonably needed to comply with its responsibilities hereunder, including, without limitation, accurate data and reports of all sales and marketing budgets, expenditures and activities, prices, payments, terms and conditions under all Software Product orders, data supporting the calculation and payment of all Software Product invoices, taxes or other amounts due or payable hereunder. ESET (or its designated agent) shall be entitled, at its own expense, to audit, review and/or inspect such books and records at least annually and upon termination of this Agreement during normal business hours after giving reasonable advance notice to Partner in accordance with Section 9.12(Notices).
4.3 Representations and Warranties.Partner represents and warrants to ESET that: (a) Partner’s obligations under this Agreement do not conflict with or violate any other agreement by which Partner is bound; and (b) this Agreement constitutes a valid and binding obligation of Partner enforceable against Partner in accordance with its terms (except as limited by applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of the creditor’s rights generally from time to time in effect). ESET represents and warrants to Partner that: (i) ESET is authorized to appoint the Partner as its Channel Partner or an MSP; (ii) ESET has the right to sell the Software Product to Partner or otherwise for license to End Users; (iii)ESET’s obligations under this Agreement do not conflict with or violate any other agreement by which ESET is bound.
4.4 No Right to Modify or Reverse Engineer Software Product. Partner shall have no right to modify the Software Product(s).
Unless Partner is specifically authorized under a writing signed by ESET to have access to source materials for the Software Product, Partner shall not reverse engineer or attempt to discover the underlying design, logic or trade secrets embodied in the Software Product, including, without limitation, the Source Code.
4.5 Insurance, Indemnity. Partner shall maintain during the term hereof reasonable levels of commercial general liability insurance and insurance coverage for its employees, contractors and agents ("Workers") and shall defend, indemnify and hold ESET harmless from and against any and all demands, claims, suits, proceedings, damages, losses and liabilities (including reasonable attorneys’ fees and expenses) relating to Partner’s Workers or attributable to the acts or omissions of Partner or its Workers.
4.6 Confidentiality.
- Confidential Information Defined. Partner hereby acknowledges that it has or may be exposed to confidential and proprietary information of ESET (or its affiliates) including, without limitation, the Software Product(s) or other technical information (including functional and technical specifications, designs, drawings, Source Code, analysis, research, processes, computer programs, algorithms, methods, ideas, "know how," and the like), business information (sales and marketing research, materials, plans, accounting and financial information, personnel records and the like, including information described in Section 5.1 (Marketing Information and Materials), and other information designated as confidential expressly or by the circumstances in which it is provided (collectively, the "Confidential Information"). Confidential Information does not include (i) information already known or independently developed by Partner outside the scope of this Agreement, as evidenced by Partner’s written records, (ii) information in the public domain through no wrongful act of Partner, or (iii) information received by Partner outside the scope of this Agreement from a third party who was or is under no obligation to maintain the confidentiality of such information. Partner will not: (1) distribute, transfer, loan, rent, or provide access to the Software Product, except as provided herein; (2) remove or add any proprietary rights notice associated with the Software Product without the express written permission of ESET, and (3 disassemble or decompile the Software Product for any purpose.
- Covenant Not to Disclose.Partner hereby agrees that during the term hereof and at all times thereafter, and except as specifically permitted herein or in a separate writing signed by ESET, it shall not use ESET’s Confidential Information, except in furtherance of its obligations under this Agreement, or commercialize or disclose ESET's Confidential Information to any person or entity, except to its own employees having a "need to know" (and who themselves are bound by similar nondisclosure restrictions), and to such other recipients as ESET may approve in writing; provided, that all such recipients shall have first executed a confidentiality agreement in a form acceptable to ESET. Partner shall not alter or remove from any Software Product or accompanying documentation any proprietary, copyright, trademark or trade secret legend. Partner shall use the same degree of care in safeguarding ESET's Confidential Information as it uses in safeguarding its own confidential information, which, in any event, shall not be less than reasonable care. Upon termination of this Agreement, or at any time upon request by ESET, and except as otherwise specifically stated herein, Partner shall return all Confidential Information of ESET in its possession or control.
- Covenant Not to Solicit. During the term of this Agreement and for one (1) year thereafter, Partner and its affiliates agree not to use ESET’s Confidential Information to, induce, solicit, or attempt to hire, directly or indirectly, the services of any employee or independent contractor of ESET (or its affiliates) to leave the employ of or engagement with ESET (or its affiliates) or otherwise engage the services of such employee or independent contractor (as an employee, consultant, independent contractor or otherwise), directly or indirectly, through Partner’s solicitation of such employees or independent contractors, without the prior written consent of ESET. Notwithstanding the foregoing to the contrary, ESET acknowledges and agrees, however, that nothing in this section shall or is intended to prevent any employee of ESET from seeking and obtaining gainful employment, so long as such employment was not procured through the prohibited solicitation activities of Partner, as restricted above.
- Injunctive Relief. Partner acknowledges and agrees that violation of the provisions of this Section 4.6 (Confidentiality) and/or Section 6 (Certain Proprietary Rights and Licenses) would cause irreparable harm to ESET not adequately compensable by monetary damages. In addition to other relief, it is agreed that preliminary and permanent injunctive relief shall be available to ESET without necessity of posting bond to prevent any actual or threatened violation of such provisions.
5. ESET RIGHTS AND OBLIGATIONS.
5.1 Marketing Information and Materials.ESET, at its discretion, shall make available to Partner pertinent sales and marketing materials and assistance as described in ESET’s Channel or MSP Partner Program Guide, as applicable, as may be modified from time to time. Unless otherwise agreed by ESET in a signed writing, all original sales and marketing research, records, information and materials of any kind created or gathered hereunder by ESET (or its employees or agents), or any derivative works thereof, whether created by ESET or Partner shall be owned exclusively by ESET and any such marketing materials created or gathered by Partner (or its employees) with respect to the Software Product shall constitute "corporate ownership" owned exclusively by ESET and, alternatively, Partner hereby irrevocably assigns all ownership or other rights it might have in such materials to ESET. Additionally, Partner hereby waives all moral rights pertaining to works made within the scope of this Agreement. Upon termination of this Agreement, Partner is not authorized to continue to possess or use for its own business purposes any such marketing information or materials, shall promptly cease all use thereof, and shall return, upon request, all such materials to ESET.
5.2 Production and Delivery of Software Product. ESET shall be responsible for production of the Software
Product and related documentation in digital format only. Hard copies of the Software Product in physical format are available from ESET upon request and subject to ESET’s prior written approval and instruction, as further described below. Partner shall not produce or distribute the software, including, without limitation, in any physical format (i.e., CDs, DVD, etc.) without the prior written approval of ESET and ESET’s prior execution and delivery of documents containing the guidelines and instructions for such production and/or distribution. Unless otherwise agreed, ESET shall be responsible for making the Software Product available and accessible for electronic delivery to the End User and Partner.
5.3 License of Software Product to End Users. Notwithstanding any other term or provision of this Agreement, all copies of the Software Product, including, without limitation, all orders for Software Product placed by Partner shall solely be licensed by ESET directly to End Users under ESET's EULA. Partner shall not be a party to any such agreement. ESET shall have exclusive authority to modify the provisions of any EULA, and Partner shall not assert or attempt to assert any authority (either in its own name or on behalf of ESET) to: (a) modify or execute any EULA (whether in original or modified form); or (b) make statements, representations or warranties concerning the Software Product or any associated services that exceed or are inconsistent with ESET-approved marketing literature or the provisions of the EULA. ESET may update these terms and conditions at any time. Your acceptance to this Agreement shall constitute acceptance of any future updates or amendments of the terms of this Agreement. Should you not be willing to be bound by any future updated terms, you shall have thirty (30) days to notify ESET in writing of your intent to terminate the Agreement with ESET.
6. CERTAIN PROPRIETARY RIGHTS AND LICENSES.
6.1 License to Channel Partner. ESET hereby grants Partner during the term hereof, and Partner hereby accepts, a limited, non-exclusive, royalty-free and revocable license, solely in Object Code form, to use the Demo Version Software Product, solely in the Territory, and solely for purposes of promoting and demonstrating the Demo Version Software Product to End Users. Partner’s rights under this license and under this Agreement are non-transferable. For purposes of this Agreement, “Object Code” means computer programming code, including all modifications, enhancements, and upgrades thereto, in machine-readable form generated by compilation of Source Code. For purposes of this Agreement, “Source Code” means computer programming code in original human-readable format and in electronic form from which the Object Code is compiled, including all comments and procedural code, plus related development documents. Notwithstanding the foregoing or any other term or provision of this Agreement to the contrary, in no event shall Partner have any rights to access, or license under, the Software Product Source Code, all of which rights are exclusively owned by, and shall remain solely vested in, ESET.
6.2 Ownership of Software Product(s). Partner acknowledges and agrees that, except for the limited license rights provided in Sections 6.1 and 6.4, nothing in this Agreement shall be deemed to grant, whether expressly, by implication, estoppel, forfeiture or otherwise, any ownership, license, entitlement or other proprietary rights under any foreign or domestic law governing inventions, patents, trademarks, service marks, trade secrets, copyrights or with respect to the Source Code, or with respect to the Software Product(s) or any accompanying documentation, or with respect to any modifications of the Software Product or derivative works or adaptations thereof or improvements thereto, all of which shall be exclusively owned by ESET.
6.3 Modifications; Derivative Works.Partner acknowledges and agrees that any modifications, enhancements, updates, corrections, translations or other changes to the Software Product or accompanying documentation performed by ESET or Partner shall belong exclusively to ESET, if performed by ESET or Partner shall belong exclusively to ESET and, if performed by Partner (or its employees or agents), shall constitute "corporate authorship" owned exclusively by ESET and alternatively, Partner hereby irrevocably assigns to ESET all ownership rights and irrevocably waives all other rights (including moral rights) it might have in such work.
6.4 Use of ESET's and ESET, spol. s r.o. Trademarks. ESET hereby authorizes and grants Partner, during the term hereof, a limited, non-exclusive, royalty-free and revocable license to reproduce ESET's and ESET, spol. s r.o.’s logos, trademarks, trade names or other identifying marks (collectively, "Marks"), solely for purposes of promoting, demonstrating, distributing and reselling the Software Product to End Users within the Territory; provided that, in each instance, use of the Marks shall be in a form specifically approved by ESET in writing. Partner’s rights under this license are non- transferable and non-sublicenseable. In no event may Partner transfer, sublicense or otherwise make ESET’s Marks available for use by any other third parties. The foregoing rights are conditioned on Partner's use of the Marks being truthful, not misleading, lawful and commercially reasonable and conditioned upon Partner taking all necessary steps to identify the Marks as the property of ESET or ESET, spol. s r.o. respectively and protect ESET's and ESET, spol. s r.o.’s exclusive ownership of the Marks. Partner agrees that it shall not attempt to register in any jurisdiction any marks similar to ESET’s Marks, and any and all use and goodwill arising in connection with Partner’s use of the Marks shall inure solely to the benefit of ESET. Partner hereby assigns all right, title and interest in and to the Marks and related goodwill arising in connection therewith to ESET, and to any and all internet domain names reflecting all or any portion of such Marks. Partner agrees to take any actions, and execute, deliver and file any additional documents or instruments, reasonably required to vest the sole and exclusive title in and to such marks and related internet domain names in ESET, and hereby further appoints ESET it’s attorney- in-fact with all necessary authority to execute, deliver and file such documents and instruments necessary to effect the same. Upon termination, Partner shall immediately cease use of the ESET Marks. Notwithstanding any term or provision of this Agreement to the contrary, the use of NOD32, ESET, or any future trademarked Software Product(s) or names, or other ESET Marks, may not be used within any Partner domain or URL without specific advance approval by ESET in writing. Any Partner with existing domain names identical or confusingly similar to ESET’s Marks must cease and disable or transfer such rights to ESET, within five (5) business days of ESET’s request.
7 WARRANTY AND LIMITATIONS OF LIABILITY; INDEMNIFICATION.
7.1 Warranty; Disclaimers. Warranties for specific Software Product(s) are set forth under the EULA. Except as set forth therein, the Software Product(s) and any associated services are provided by ESET strictly on an "AS IS" basis without any express or implied warranty, guarantee or other assurance of quality, conformity with specifications, reliability or functionality. ESET HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ALL SERVICES, SOFTWARE PRODUCTS, UPDATES, ENHANCEMENTS OR OTHER DELIVERABLES PROVIDED HEREUNDER, ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 Remedies. Partner's sole and exclusive remedies for ESET's default hereunder shall be (a) to obtain the repair, replacement or correction of the Software Product or, if ESET reasonably determines that such remedy is not economically or technically feasible, (b) to obtain a partial or full refund of compensation received by ESET with respect to the copy of the Software Product at issue. ESET shall have the full benefit of all remedies and defenses generally available to a merchant of goods and services and/or licensor software and other intangible property under the laws of the Province of Ontario and the federal laws of Canada, which include but are not limited to, the Sale of Goods Act (Ontario) and the Personal Property Security Act (Ontario).
7.3 Limitation of Liability. ESET SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING THE AMOUNT
OF COMPENSATION ACTUALLY RECEIVED BY ESET HEREUNDER. IN NO EVENT SHALL ESET BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY, PRODUCT LIABILITY, NEGLIGENCE OR OTHERWISE), FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST SAVINGS, LOST PROFITS, OR BUSINESS INTERRUPTION DAMAGES), EVEN IF ESET IS NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT.PARTNER HEREBY EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING LIMITATION HAS BEEN NEGOTIATED BY THE PARTIES AND REFLECTS A FAIR ALLOCATION OF RISK.
7.4 Indemnification. ESET will defend, indemnify and hold Partner harmless from and against any claim that Partner’s use or sale of the Software Products infringe or violate any issued Canadian patent, or Canadian copyright, and will pay any resulting costs, damages and reasonable attorney’s fees finally awarded, provided that: (i) Partner notifies ESET promptly in writing of the claim; (ii) Partner cooperates fully and timely with ESET in the defense; and (iii) ESET has sole control of the defense and all related settlement negotiations. If the Services, or Partner’s use or resale of the Software Products, or any portion thereof, is enjoined, or in Partner’s opinion is likely to be enjoined, ESET shall, either: (a) substitute a fully functionally equivalent non-infringing version of the affected portion(s) of the Software Products; (b) modify the infringing aspect of the Software Product so that it no longer infringes but remains a fully functionally equivalent item; (c) obtain for Partner (at ESET’s expense), the right to continue to use and resell the Software Product; or (d) if none of the foregoing is commercially feasible, then refund the fees paid by Partner for the affected Software Product and terminate this Agreement. This section shall survive the termination of this Agreement for a period of one (1) year.
8 DEFAULT AND TERMINATION.
8.1 Default. Either party may be declared in default of this Agreement if it breaches any material provision hereof and fails within ten (10) days after receipt of written notice of default to correct such default or to commence corrective action reasonably acceptable to the other party and proceed with due diligence to completion within thirty (30) days of receipt of said written notice of default. Either party shall be in default hereof if it becomes insolvent, makes an assignment for the benefit of creditors, a receiver is appointed or a
petition for bankruptcy is filed with respect to it and such proceeding is not dismissed within sixty (60) days. Any notice of default shall be sent in accordance with Section 9.12 (Notices) and shall identify the contract provision at issue and describe in reasonable factual detail how the other party has materially violated the provision. If timely corrective action is not forthcoming, the aggrieved party may then terminate this Agreement pursuant to Section 8.2 (Termination) and pursue all other available remedies.
8.2 Termination.This Agreement shall terminate upon one party giving written notice of termination to the other party after following the procedures in Section 8.1 (Default) (unless such default is incapable of cure, in which case the non-breaching party may terminate this Agreement immediately upon written notice to the breaching party) or Section of 2 of this Agreement. Except as otherwise specifically agreed hereunder, termination of this Agreement shall have no effect upon ESET’s continuing right to payment for all
Software Product orders accepted by ESET prior to the effective date of termination or with respect to: (a) events giving
rise to liability under Section 4.4 (No Right to Modify or Reverse Engineer Software Product), Section 4.5 (Insurance, Indemnity), and Partner’s indemnification obligations set forth therein; (b) Section 4.6 (Confidentiality); (c) Section 6.2 (Ownership of Software Product(s)); (d) Section 6.3 (Modifications; Derivative Works); (e) Section 7 (Warranty and Limitations of Liability; Indemnification ); (f) Section 9 (Miscellaneous); and (g) any EULA entered into prior to the effective date of termination hereof, all of which shall nevertheless continue in accordance with their respective terms. Notwithstanding any other term or provision of this Agreement, all licenses hereunder shall immediately terminate, and be of no further force or effect, upon termination of this Agreement for any reason.
9 MISCELLANEOUS
9.1 Disputes, Choice of Law.Except for actions brought by ESET in any court of competent jurisdiction for the collection of amounts due hereunder (including ESET’s costs of collection and attorneys’ fees and costs incurred or accrued by ESET in connection therewith, the reimbursement of which to ESET is expressly authorized hereby), and except for certain emergency judicial relief authorized under Section 4.6 (d) (Injunctive Relief), which may be brought at any time, the parties agree that all disputes between them shall first be subject to the procedures in Section 8.1 (Default) and then shall be submitted for informal resolution to their respective chief officers. Any remaining dispute shall be submitted to binding arbitration before a single arbitrator who shall be a former judge or attorney having experience in similar disputes. The proceedings shall be conducted in English pursuant to the JAMS Streamlined Arbitration Rules and Procedures and shall be held exclusively in the City of Toronto, Canada, and the parties irrevocably consent to the sole and exclusive jurisdiction thereof. The award of the arbitrator shall include a written explanation of the decision, shall be limited to remedies otherwise available in court and shall be final and binding upon the parties and enforceable in any court of competent jurisdiction. This Agreement shall be governed by and construed in accordance with the substantive, internal laws of the Province of Ontario, Canada (without resort to conflict of law provisions). The parties hereto voluntarily and expressly agree that if any action is filed to enforce the terms of this Agreement, including, without limitation, the foregoing arbitration provision hereof, all such filings, actions, suits, or proceedings shall be tried and litigated exclusively in the Province of Ontario, City of Toronto, Canada. The aforementioned choice of venue is intended by the parties’ agreement to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between the parties with respect to or arising out of this Agreement in any jurisdiction other than that specified in this paragraph. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph and stipulates to such courts' possessing the exclusive in personam jurisdiction and venue over each of them for the purpose of litigating any such action, suit, controversy or proceeding arising out of or related to this Agreement exclusively in the city of Toronto, Province of Ontario (Canada) Each party agrees and consents that all service or process upon it may be made in accordance with the notice provisions hereof. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
9.2 The parties agree that this Agreement and any agreements entered into pursuant to this Agreement shall be considered to be binding on the parties and concluded in Toronto, Ontario when approved and signed by ESET in Toronto, Ontario, Canada.
9.3 Independent Contractor Status. The parties hereto are independent contracting parties for all purposes of this Agreement in relation to the other party and with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish Partner as an agent, partner, employee of ESET, or the Partner as an agent, partner, employee of ESET, or the relationship between the parties hereto as a partnership, joint venture, association or other relationship other than that of independent contracting parties. Partner acknowledges and agrees that Partner shall be responsible for its own taxes and its employees (as self-employed persons) for filing all tax returns, tax declarations and tax schedules, and for the payment of all taxes required, when due, with respect to any and all compensation earned by Partner and its employees under this Agreement. Upon request, Partner shall provide ESET with proof of payment of all such taxes. Partner shall not withhold any taxes, levies, or charges (including but not limited to income, employment, value-added, sales, use, transfer, or other taxes, levies, or charges) from compensation it pays ESET hereunder. Partner understands and agrees that Partner (and not ESET) shall be responsible for Partner’s own tax liability that may arise as a result of the transactions contemplated by this Agreement.
9.4 Relationship to End User. This Agreement governs the relationship between ESET and Channel Partner with respect to the Software Product. The relationship of ESET, as the licensor of the Software Product to End User, and the End User, as the licensee of the Software Product (including such matters as warranties, limitation of liabilities and the like) shall be governed solely by the terms and conditions set forth in the EULA. Nothing herein shall be deemed to enlarge, diminish or otherwise change the End User's rights or responsibilities under the EULA, it being understood that End User is not a third party beneficiary of any provision herein.
9.5 Entire Agreement, Amendment, Construction. This Agreement, and any Schedules attached hereto (hereby incorporated into this Agreement by reference), constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior representations, understandings or communications, whether written or verbal, with respect to the subject matter hereof. This Agreement is expressly limited to its terms and the provisions of any purchase order, invoice or similar documentation are specifically rejected and shall have no effect. Except as otherwise provided in Schedule A (including any parameters included in the EPP, any amendment, modification or waiver of this Agreement, or any part hereof, shall be binding and effective only if set forth in a written instrument signed by authorized representative of ESET and a duly authorized officer of Partner. This Agreement may not be amended pursuant to, and neither party is obligated with respect to, any oral communications between the parties. Written waiver of any provision of this Agreement in one instance shall not preclude future enforcement of it in future situations. This Agreement shall not be strictly construed against the drafting party or parties.
9.6 Severability. If any provision hereof is determined by a tribunal of competent jurisdiction to be illegal or unenforceable, it shall automatically be deemed conformed to the minimum requirements of law and, along with all other provisions hereof, shall thereupon be given full force and effect, or, in the event such provision cannot be so conformed, such provision shall be deleted and the remaining terms and provisions of this Agreement shall continue in full force and effect as provided hereunder. Headings are for reference purposes only and have no substantive effect.
9.7 Assignment, Subcontracting. Neither this Agreement, nor any part hereof, may be transferred, assigned or delegated by Partner to or for the benefit of any third party (including any other channel intermediary or End User), without the express, prior written consent of ESET, and any attempt to the contrary shall be void and of no legal effect. This Agreement is binding upon, is enforceable by, and shall inure to the benefit of the parties and their authorized successors and permitted assigns. ESET may assign this Agreement in ESET’s sole and absolute discretion.
9.8 Force Majeure. ESET shall not be liable for delays or failure to perform as a result of causes beyond its reasonable control, including acts of god or nature (such as fire, pandemic, storm, flood, earthquake), electrical or power outages, labor disputes, civil unrest, acts of terror, war or similar circumstances, or delay or failure by Partner or any End User in the timely performance of its obligations hereunder or under any EULA.
9.9 Security, No Conflicts. Each party agrees to comply with the security requirements imposed by local government. Each party represents that its participation in this Agreement does not create any conflict of interest prohibited by the Canadian government or any other domestic or foreign government and shall promptly notify the other party if any such conflict arises during the term hereof.
9.10 Export Regulations. Partner acknowledges and agrees that the Software Product, together with any
Media in which the Software Product is contained and any products produced by the use of the Software Product or associated technical data, are subject to such Canadian laws and regulations as shall from time to time govern the licensing and delivery of technology and goods abroad by persons subject to the jurisdiction of Canada.
9.11 Publicity.Any news releases, public announcements, advertisements, or publicity to be released by either party in connection with proposals or ensuing contract awards must have the prior written approval of both parties.
9.12 Notices. Notices sent to either party shall be deemed effective on the day of delivery when delivered in
person, via "fax" machine, or via email with confirmation of successful transmission; one (1) day after being sent via federal express or similar courier; or three (3) days after being sent by first class mail postage prepaid to the address set forth above, or at such other address as the parties may from time to time give notice of in accordance with the terms of this section.
9.13 Counterparts.This Agreement may be executed in any number of original or facsimile counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument.
9.14 English Language.This Agreement has been negotiated and executed in the English language. Translations of this Agreement into other languages are for convenience only and will have no force or effect on the legal interpretation of this Agreement.