DRAGOS PARTNER PROGRAM TERMS AND CONDITIONS
(a) Section 1. Introduction and Definitions
The terms and conditions of this document (these “Terms”), together with the applicable Dragos Partner Agreements (as defined in the Authorization Letter), form a binding agreement between the Partner identified in the Authorization Letter (“Partner”) and Dragos, Inc. (“Dragos”). For clarity, Partner will have no rights to participate in the Program or receive any Program benefits or rewards unless it has executed an Authorization Letter with Dragos, and such Authorization Letter remains in effect.
(b) As used in these Terms, the following terms will have the following meanings (such meanings to be applicable to the singular and plural forms of the terms defined). Capitalized terms used but not defined in these Terms will have the meanings given to such terms in the Authorization Letter.
“Addendum” means the document providing details of Partner’s membership designation as attached to the Authorization Letter.
“Affiliate” means, with respect to any party, any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where, “control” (including the correlative terms “controlling”, “controlled by” and “under common control with”) means, with respect to any entity, the possession, directly or indirectly, of the power in fact or in law to direct or cause the direction of management policies of such entity, whether through ownership of voting securities, by contract or otherwise.
“Agreement” means the most recent Authorization Letter executed by Dragos and Partner together with the Dragos Partner Agreements as set forth in the Authorization Letter (including the Addendum, the Guide, and these Terms).
“Authorization Letter” means the Dragos Partner Program Authorization Letter entered into between Partner and Dragos that authorizes Partner to participate in the Program.
“Customer” means an end-customer or client of Partner that purchases any Dragos Products for its own internal use.
“Confidential Information” means as set forth in Section 12 (Confidential Information).
“Dragos Products” means Dragos’s services and products, as may be further described in the Guide.
“End User Terms & Conditions” means the terms and conditions that govern the Customer’s use of and access to Dragos Products, and includes, but is not limited to, terms covering licensing and support of Dragos software and/or provision of Dragos professional services.
“Personnel” means, with respect to any entity, any employee, contractor, agent or other personnel of such entity.
“Program” means the Dragos Partner Program as described in further detail in the Guide.
“Referral Partner” is the Membership Designation given to Partners who only provide customer referrals to Dragos rather than reselling Dragos Products. Referral Partner terms are set forth in the Partner Authorization Letter provided to Referral Partners.
Section 2. Compliance and Conduct
(a) Partner will comply with, and ensure that its Affiliates and its and their respective Personnel understand and comply with, the terms and conditions of the Agreement, and will be fully and directly responsible to Dragos for any act or omission of such Affiliate or Personnel, including, without limitation, any such act or omission that would constitute a breach of the Agreement if such act or omission were by Partner.
(b) Partner will promote, demonstrate, service and market Dragos Products, and otherwise perform all activities in connection with the Program, in compliance with the Agreement, all applicable laws, rules, regulations and industry standards (including, without limitation, those relating to consumer protection, anti-corruption, anti-money laundering and anti-bribery, sanctions and export controls, data protection and privacy, and labor and employment), and in a manner that upholds the reputation, quality, goodwill and credibility of Dragos and Dragos Products. If Dragos determines, in its sole discretion, that Partner’s actions have negatively impacted, or are reasonably likely to negatively impact, the reputation or goodwill of Dragos or Dragos Products, Dragos may terminate the Agreement pursuant to Section 14(b), together with Partner’s participation in the Program.
(c) Partner will not provide technical support and maintenance for Dragos Products to its Customers. Any support and maintenance for Dragos Products shall be provided directly by Dragos to the Customers pursuant to the applicable End User Terms & Conditions, and Partner shall promptly forward any applicable support requests or inquiries to Dragos. Dragos will provide to Partner technical support documentation and telephone support during the hours of 9:00 AM to 5:00 PM (US Eastern time) when reasonably required. Details about technical support and maintenance are provided in the Guide.
(d) Partner will comply with all applicable export control and sanctions laws of the United States and any other applicable governmental authority, including the U.S. Export Administration Regulations and U.S. sanctions regulations (“Export Control and Sanctions Laws”). Partner will not, directly or indirectly, export, re-export, or otherwise transfer Dragos Products or related technology, or use or allow use of Dragos Products or related technology: (i) to or by any individual, entity, or country prohibited by Export Control and Sanctions Laws, including the prohibition against exports (A) into, or to a national or resident of, any country subject to U.S. sanctions or similar export restrictions (i.e., Cuba, Iran, Sudan, Syria, North Korea and Crimea), or (B) to or by anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, Sectoral Sanctions Identifications List or Foreign Sanctions Evader’s list, the U.S. Department of Commerce’s Denied Persons List, Unverified List or Entity List, or other export control lists; or (ii) for any purpose prohibited by Export Control and Sanctions Laws, including nuclear, chemical, or biological weapons proliferation or development of missile technology. Partner will notify any Customers of the need to comply with such laws and regulations and shall promptly notify Dragos if Partner becomes aware of a potential or actual violation of the terms of this provision.
Section 3. Prices, Payment, And Ordering
(a) Prices. Dragos’s prices (“Dragos List Price”) for the Dragos Products are set forth in the price list provided upon request. Partner discounts shall be applied to the Dragos List Price of the Dragos Products as set forth in the Authorization Letter Addendum and the Guide. Dragos reserves the right to change the List Price of any Product at any time by providing 30 days prior written notice to Partner. Dragos may quote a different price and/or discount applicable to a specific transaction by providing Partner with a written quote (“Quote”) that sets forth such price and/or discount. Partner shall have the right, in its sole discretion, to determine the prices for Dragos Products sold by Partner to Customers.
(b) Payment. Partner shall pay for all Dragos Products that Partner purchases from Dragos pursuant to Dragos’s form of purchase order (“Purchase Order”) within 30 days of the date of Dragos’s invoice. All payments made under this Agreement to Dragos will be made in U.S. dollars by wire transfer or ACH of immediately available funds to an account designated by Dragos, or such other payment method mutually agreed by the Parties. Dragos will send Partner an invoice upon providing the Customer with access to the Dragos Products, and upon each one-year anniversary of that date, unless notified in writing by Partner within 30 days of the anniversary that the renewal should be cancelled. Partner shall be responsible for all collection efforts related to payments from Customers to Partner and shall pay Dragos regardless of whether Customers pay Partner. Dragos reserves the right to refuse, cancel, terminate, withhold or delay fulfillment of a Purchase Order in the event Partner fails to make timely payment in accordance with this Agreement, and Partner agrees that Dragos shall have no liability to Partner or its Customers for exercising such right.
(c) Order Procedure. Orders for Dragos Products (“Orders”) may be placed by Partner’s execution of a Quote or by submission of a Purchase Order. All Purchase Orders must be sent to Dragos Sales Operations at firstname.lastname@example.org or sent in accordance with Dragos’s instructions. A Purchase Order is binding on Dragos when Dragos accepts such Purchase Order in writing or via e-mail or otherwise fulfills the Order set forth on such Purchase Order. Purchase Orders to Dragos will contain the following information: Dragos List Price, the discount off of Dragos List Price computed in accordance with Exhibit B, and the net amount (Dragos List Price minus the applicable discount off of Dragos List Price) due and payable by Partner to Dragos. The terms and conditions of any Purchase Order, acceptance, notice, or other documentation issued by Partner or in a Quote executed by Partner that are in addition to or inconsistent with the terms and conditions of this Agreement or the Quote as provided by Dragos are hereby objected to and rejected and will not be binding on Dragos notwithstanding any statement to the contrary therein.
(d) Product Change & Obsolescence. Dragos reserves the right to change its offering of Dragos Products, and to update, change or discontinue any Product, at any time; provided, however, that Dragos shall provide Partner with at least 30 days prior written notice of such update, change or discontinuation.
Section 4. Representations and Warranties
Partner hereby represents and warrants to Dragos that:
(a) Partner is duly organized and validly existing under the laws of its place of incorporation, and has full corporate or other power and authority to enter into the Agreement and to carry out the provisions hereof;
(b) Partner is duly authorized to execute and deliver the Agreement and to perform its obligations hereunder, and the persons executing the Agreement on its behalf have been duly authorized to do so by all requisite corporate or partnership action;
(c) the Agreement is legally binding upon Partner, enforceable in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it;
(d) in connection with its collection, storage, transfer (including without limitation, any transfer across national borders) and/or use of any personally identifiable information from any individuals, including, without limitation, any Customers, employees and/or other third parties (collectively, “Personal Information”); Partner is and has been in compliance with all applicable laws in all relevant jurisdictions, its own privacy policies, and the requirements of any contract or codes of conduct to which the Partner is legally bound; and
(e) Partner has commercially reasonable physical, technical, organizational and administrative security measures and policies in place to protect all Confidential Information (including Personal Information) collected by it or on its behalf from and against unauthorized access, use and/or disclosure. Partner is and has complied in all material respects with all laws relating to data loss, theft, and breach of security notification obligations.
Section 5. End User Terms & Conditions and Flow Down Requirements
Partner shall enter into agreements directly with Customers for the sale of Dragos Products, provided however, that all such agreements shall incorporate by reference and be subject to the Dragos End User Terms & Conditions. Partner will pass-through to each Customer the End User Terms & Conditions provided by Dragos without modification of any kind. Dragos may, at its discretion, update the End User Terms and Conditions from time to time, which can be viewed at www.dragos.com/end-user-terms-conditions. Professional services will be set forth in one or more Statements of Work entered into by Dragos and Customers. Nothing in this Agreement shall limit any agreements separately entered into between Dragos and Customers with respect to Dragos Products.
Section 6. Disclaimer of Warranties
DRAGOS MAKES NO WARRANTIES OR REPRESENTATIONS TO PARTNER OR TO ANY OTHER PARTY REGARDING ANY DRAGOS PRODUCTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, DRAGOS DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. PARTNER WILL NOT MAKE ANY WARRANTIES OR REPRESENTATIONS IN DRAGOS’S NAME OR ON DRAGOS’S BEHALF.
Section 7. Limitation of Liability
EXCEPT WITH RESPECT TO LIABILITY ARISING FROM (I) FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL MISCONDUCT, (II) A VIOLATION OF LAWS, (III) A BREACH OF SECTION 3(B) (PAYMENT), (IV) OBLIGATIONS UNDER SECTION 8 (INDEMNITY), OR (V) A BREACH OF SECTION 12 (CONFIDENTIAL INFORMATION), IN NO EVENT WILL EITHER PARTY OR ITS SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE AGREEMENT OR THE USE OR PERFORMANCE OF ANY DRAGOS PRODUCTS: (A) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, LOST PROFITS OR REVENUE, LOSS OF USE, LOST BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL), OR FOR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS; OR (B) IN EXCESS OF THE GREATER OF ONE HUNDRED THOUSAND DOLLARS ($100,000.00) OR THE AMOUNTS RECEIVED BY OR OWED TO DRAGOS BY PARTNER DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 7. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Section 8. Indemnity
(a) Partner General Indemnity. Partner will indemnify, defend and hold harmless Dragos and its directors, officers, employees, and Affiliates (each a “Dragos Indemnitee”) from all third-party claims and related liabilities, damages, and costs, including reasonable attorneys’ fees (collectively, “Claims”) arising from: (i) fraud, gross negligence, or intentional misconduct; (ii) actual or alleged unfair or deceptive business practices; (iii) representations or warranties regarding Dragos Products or business terms, including pricing, to actual or prospective Customers not authorized in writing by Dragos; (iv) a breach of the representations and warranties in Section 4; (v) a breach of Section 5; or (vi) violations of laws applicable to the performance of Partner’s obligations under this Agreement.
(b) Dragos General Indemnity. Dragos will indemnify, defend and hold harmless Partner and its directors, officers, employees, and Affiliates (each a “Partner Indemnitee”) from all third-party claims and related liabilities, damages, and costs, including reasonable attorneys’ fees (collectively, “Claims”) arising from: (i) fraud, gross negligence, or intentional misconduct; (ii) the performance of this Agreement and arising from personal injury, death, or damage to tangible personal property that is alleged to have resulted from the negligence or willful misconduct of Dragos or its subcontractors, directors, officers, employees or authorized agents; (iii) actual or alleged unfair or deceptive business practices; (iv) violations of laws applicable to the performance of Dragos’s obligations under this Agreement except laws concerning data security or privacy; or (v) representations or warranties regarding Dragos Products authorized in writing by Dragos.
(c) IP Indemnity. Dragos shall at its cost and expense (i) defend or settle any claim brought against a Partner Indemnitee by an unaffiliated third party alleging that the Dragos Products infringes a valid patent, trademark or copyright or misappropriates a third party trade secret (collectively, “Claims”), and (ii) pay, indemnify and hold Partner Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
(d) If a claim under Section 8(b) occurs or in Dragos’s opinion is reasonably likely to occur, Dragos may, at its sole option: (i) procure the right for Partner to continue reselling the Dragos Products; (ii) modify, alter, or adjust the relevant Dragos Products to no longer be infringing, or (iii) replace the Dragos Products with a non-infringing alternative that is functionally equivalent. If the foregoing remedies are not available to Dragos on commercially reasonable terms, then Dragos may suspend or terminate Partner’s rights to resell the Dragos Products and refund prepaid, unused fees for terminated Dragos Products.
(e) Dragos shall have no obligations under Section 8(c) if the claim is based upon or arises out of: (i) any modification to the applicable Dragos Products not made by or at the direction of Dragos; (ii) any combination or use of the applicable Dragos Products with any third-party equipment, products or systems, to the extent that such claim is based on such combination or use; (iii) Pursuant to Section (d) above, Partner Indemnitee’s continued use or resale of the allegedly infringing technology after being notified of the infringement claim; (iv) Partner Indemnitee’s failure to use or resell updates made available by Dragos, to the extent that such claim would have been avoided by using or reselling such updates; and/or (v) use of the Dragos Products other than in accordance with this Agreement. Section 8 constitutes Partner Indemnitee’s sole and exclusive remedies, and Dragos’s entire liability, with respect to infringement of third party intellectual property rights.
(f) As a condition of the obligations under (a), (b), or (c) above, the indemnified party must promptly notify the indemnifying party upon learning of a Claim for which the Indemnified Party is seeking indemnification pursuant to this Section 8, and the indemnified party must provide the indemnifying party with sole control and authority over the defense and/or settlement of the Claim, subject to the provision of reasonable assistance at the request of the indemnifying party and provided the indemnitor shall not settle any claim in a manner that requires the indemnified party to admit liability or pay money without the indemnified party’s prior written consent. The indemnifying party agrees to pay, subject to the limitations set forth herein, any final judgment entered against the Indemnified Party or settlement of any such Claim. THE FOREGOING STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO THE INDEMNIFIED PARTY AND THE EXCLUSIVE REMEDY AGAINST THE INDEMNIFYING PARTY WITH RESPECT TO ANY CLAIMS UNDER THIS SECTION 8.
Section 9. Insurance
(a) Partner agrees to maintain (and provide evidence thereof to Dragos upon request), during the term of the Agreement, the following insurance (such insurance coverages are independent of the indemnity provisions of this Agreement, and are not designed solely to guarantee payment of Partner’s indemnity obligations under Section 8 (Indemnity)):Worker’s Compensation and Employers’ Liability Insurance, as prescribed by applicable law. Such insurance will, to the fullest extent permitted by applicable law, contain a waiver of the right of subrogation against Dragos and (if applicable) an assignment of statutory lien;
(b) Commercial General Liability Insurance (with coverage no more restrictive than that provided for by standard ISO Form CG 00 01 with standard exclusions “a” through “o.”) with a minimum limit of $1,000,000 per occurrence and in the aggregate for bodily injury and property damages, and with Products and Completed Operations and Contractual Liability coverages; and
(c) Automobile Liability Insurance, covering all owned, non-owned, hired and leased vehicles with a minimum combined single limit for Bodily Injury and Property Damage of $1,000,000 per accident, with Contractual Liability coverage.
(d) Professional Liability Insurance, providing not less than $1,000,000 coverage. The policy will include a three (3) year extended reporting period.
The insurance specified in Subparagraph (b) above and (if Partner uses vehicles in the performance of its obligations under the Agreement) Subparagraph (c) will, to the fullest extent permitted by applicable law, include an endorsement naming Dragos as an additional insured with respect to liability arising out of services, with such insurance being primary to and not in excess of any other insurance available to Dragos. The limits specified in Subparagraphs (b), (c) and (d) above may be satisfied with a combination of primary and Umbrella/Excess Insurance. Partner is responsible for ensuring compliance by its subcontractors with the above-described insurance requirements. Acceptance of any insurance certificate hereunder will not constitute acceptance of the adequacy of coverage or an amendment to the Agreement.
Section 10. Data Security
Partner will establish, maintain and implement an information security program, including appropriate administrative, technical and physical safeguards, that is designed to (i) ensure the security and confidentiality of Confidential Information, (ii) protect against any reasonably anticipated threats or hazards to the security or integrity of such Confidential Information, (iii) protect against unauthorized access to or use of such Confidential Information that could result in substantial harm or inconvenience to Dragos or a Customer, and (iv) ensure the proper disposal of such Confidential Information.
Section 11. Data Privacy
Partner acknowledges and agrees that any applicable data privacy laws and any other obligations of the Parties to maintain the confidentiality of any personal information relating to employees in accordance with applicable law shall govern the disclosure of Information relating to employees among the Parties under this Agreement. Partner shall maintain appropriate technical and organizational security measures to protect the personal data of Dragos employees pursuant to Section 10 (Data Security) above. Additionally, Partner agrees to timely execute any documentation as may be required to comply with applicable data privacy Laws.
Section 12. Confidential Information
(a) Each party will keep, maintain and safeguard the strict confidentiality of all non-public, proprietary or other confidential information received from or through the other party or otherwise obtained in connection with the Program or the Agreement (“Confidential Information”), and will use no less than industry standard and reasonable precautions in order to do so. Without limiting the generality of the foregoing, Confidential Information includes the terms and existence of the Agreement, Dragos Products (including all software, hardware and other components, features and aspects thereof), all information and materials relating to Dragos Products (including any applicable documentation, specifications, features, marketing materials and pricing), financial information, personal information, and product, sales and marketing plans. The receiving party will only use Confidential Information as necessary to perform its activities contemplated in the Agreement, and will not disclose Confidential Information other than to its Personnel who need to know such Confidential Information to carry out the purposes of the Agreement and have agreed in writing to maintain the confidentiality of such Confidential Information on terms substantially similar to these Terms.
(b) The obligations of this Section 12 do not apply to the extent any information (i) is or becomes publicly known through no fault or action of the receiving party (its Affiliates or their respective Personnel), (ii) is received from a third-party without violation of any confidentiality or non-use restriction; or (iii) is independently developed without violation of any restriction or reference to any Confidential Information received from the other party or Dragos Materials (as defined below).
(c) Upon expiration or termination of the Agreement or upon the written request of the disclosing party, the receiving party will return or destroy, at the option of the disclosing party, all Confidential Information (including any notes or materials containing or derived from such Confidential Information) in its, its Affiliates’, or their respective Personnel’s possession, custody or control.
Section 13. Intellectual Property
(a) As between the parties, Dragos will solely own and retain all right, title and interest (including, without limitation, all intellectual property rights) in and to the Dragos Marks (as defined below), Dragos Products and any documentation or marketing materials relating to the Dragos Products, together with all improvements, modifications and derivative works of any of the foregoing (collectively, the “Dragos Materials”). To the extent that ownership of any right, title, or interest in any Dragos Materials vests in Partner, such right, title and interest is hereby automatically and irrevocably assigned by Partner to Dragos. Partner will take all actions and execute all documents, at Dragos’s reasonable request and expense to give effect to this Section 13(a).
(b) Subject to Partner’s compliance with the terms and conditions of the Agreement, Dragos grants to Partner a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use the trade names, trademarks, logos and designations in or associated with the Dragos Products as designated by Dragos in writing from time to time (collectively, “Dragos Marks”), during the term of the Agreement, solely for the purpose of carrying out its contemplated marketing and sales activities with respect to the Dragos Products in connection with the Program. Any such use of a Dragos Mark by Partner must attribute ownership to Dragos and must be in accordance with applicable law, Dragos’s then-current trademark usage guidelines (available here: www.dragos.com/trademark-usage), and any other standards as may be prescribed by Dragos from time-to-time, including, without limitation, as to the quality, design, identity, size, position, appearance, marking and color of the Dragos Marks, and the manner, disposition and use of the Dragos Marks and accompanying designations, on any Dragos Products (or associated packaging) or any document or other media including, any advertising or promotional materials. Partner will not remove or obscure any Dragos Marks on or in the Dragos Materials as delivered to Partner, and will not attach any additional trademarks, logos or trade designations on or to the Dragos Products. Upon notice from Dragos that Dragos objects to any use of any Dragos Mark by Partner, Partner will promptly cease such use as soon as possible, including by removing any such use from existing materials, signage or displays to the extent possible. Partner acknowledges and agrees that Dragos owns the Dragos Marks and that any and all goodwill and other proprietary rights that are created by or that result from Partner’s use of a Dragos Mark hereunder inure solely to the benefit of Dragos. Partner will at no time contest or aid in contesting the validity or ownership of any Dragos Mark or take any action in derogation of Dragos’s rights therein, including applying to register any trademark, trade name, design, company name, URL, domain name other designation that is similar to, or comprises, any Dragos Mark.
(c) Partner will not (and will not direct or solicit any other person or entity to) engage in any form of conduct or make any statements or representations that disparage, criticize or otherwise impair the reputation of the Dragos Products or Dragos and its Affiliates and their respective officers, directors, stockholders, partners, members, agents and Personnel.
(d) Partner hereby grants Dragos a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use Partner’s trade names, logos, service marks and trademarks (“Partner Marks”) during the term of the Agreement solely for the purpose of naming and promoting Partner as a participant in the Program, including by naming Partner on its website and marketing materials for the Dragos Products. In using the Partner Marks, Dragos will comply with any branding or trademark usage guidelines provided by Partner to Dragos with sufficient advance written notice. Upon notice from Partner that Partner objects to any use of any Partner Mark by Dragos, Dragos will promptly cease such use as soon as possible, including by removing any such use from existing materials, signage or displays to the extent possible. Dragos acknowledges and agrees that Partner owns the Partner Marks and that any and all goodwill and other proprietary rights that are created by or that result from Dragos’s use of a Partner Mark hereunder inure solely to the benefit of Partner.
(e) The Parties agree that a breach or threatened breach of Section 12 (Confidential Information) or Section 13 (Intellectual Property) would cause irreparable harm and significant damage for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the Parties will have the right to seek and obtain immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Section 14. Term and Termination
(a) The term of the Agreement will be as set forth in the Authorization Letter.
(b) Without limiting any other right or remedy in the Agreement, at law or in equity, the Agreement may be terminated as follows:
(i) by Dragos upon any breach by Partner of any term of the Agreement; all active deal registrations and opportunities will be forfeited by Partner as of the date of termination with no further compensation paid.
(ii) by either party if the other party becomes insolvent or files or has filed against it a petition under bankruptcy or insolvency law which is not dismissed within sixty (60) days, makes an assignment for the benefit of creditors or takes any similar action under applicable bankruptcy or insolvency law; all active deal registrations and opportunities will be forfeited by Partner as of the date of termination with no further compensation paid.
(iii) by either party for any reason, upon thirty (30) days’ prior written notice to the other party. If the termination is by Dragos, then all active deal registrations will be honored until expiration of the approved timeframe of the deal registration (180 days from date of approval) or until the deal is closed prior to the deal registration timeframe. If terminated by Partner, then all deal registrations and active opportunities are forfeited with no further compensation paid.
(c) On expiry or termination of the Agreement, all licenses and rights granted to Partner hereunder will terminate completely.
(d) PARTNER WAIVES ANY RIGHTS IT MAY HAVE TO RECEIVE ANY COMPENSATION UPON TERMINATION OR EXPIRATION OF THE AGREEMENT, OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT WITH RESPECT TO PROGRAM BENEFITS PROPERLY ACCRUED BY PARTNER PRIOR TO THE EFFECTIVE DATE OF SUCH TERMINATION. Partner acknowledges that it has no expectation and has received no assurances that any investment by Partner in the promotion of the Dragos Products will be recovered or recouped or that Partner will obtain any anticipated amount of profits by virtue of the Agreement.
The rights and obligations of the parties under Section 6 (Disclaimer of Warranties), Section 7 (Limitation of Liability), Section 8 (Indemnity), Section 12 (Confidential Information), Section 13 (Intellectual Property), Subsections 14 (d) and 14(e), and Section 15 (General Provisions) will survive the termination or expiration of the Agreement for any reason whatsoever
Section 15. General Provisions
(a) Entire Agreement. These Terms together with the Authorization Letter and any other Dragos Program Agreements referenced therein, constitute the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, whether written or oral, relating to its subject matter.
(b) Amendment and Waiver. Except with respect to Dragos’s right to modify these Terms or the Guide or Program under Subsection 15(c) (Modifications), no amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(c) Modifications. Dragos may make modifications to these Terms, the Program and/or the Guide in one of two ways, as follows:
(i) Based on an annual review, any modifications will become effective as of January 1 of each calendar year when posted on the Dragos Partner Portal without further notice to Partner.
(ii) At any other time during the year, modifications may be made upon no less than thirty (30) day prior notice to Partner. Partner will implement or comply with any such modification as soon as possible, and in any event no later than thirty (30) days from the date Dragos notifies Partner of such modification.
In the case of item (i) and (ii), modifications will not affect any compensation or benefits previously accrued to Partner. If Partner does not wish to accept any modification under item (i) or (ii) above, then its sole remedy and recourse will be to terminate the Agreement upon advance written notice to Dragos. Notice of modifications will be communicated by Dragos via the Dragos Partner Portal at https://portal.dragos.com/#/login and deemed tendered and binding when posted.
(d) Severability. If any provision of the Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
(e) Governing Law. The Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The parties agree the United Nations Convention on Contracts for the International Sale of Goods is expressly and entirely excluded. Any legal action or proceeding arising under the Agreement will be brought exclusively in the federal or state courts located in the State of Delaware and the parties irrevocably consent to the personal jurisdiction and venue therein.
(f) Assignment. Partner may not assign or transfer the Agreement, or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Dragos. Dragos may freely assign the Agreement, in whole or in part, to any Affiliate or to an acquirer or successor in interest in connection with a merger, acquisition or sale of all or substantially all of its assets. Any attempt to assign or transfer the Agreement without such consent will be void.
(g) Force Majeure. Neither party will be responsible for any failure or delay in the performance of its obligations under the Agreement due to causes beyond its reasonable control, which may include, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
(h) Relationship of the Parties. Nothing in the Agreement will be construed to create a partnership, joint venture, agency, employment, fiduciary, franchise, affiliate or other similar relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
(i) No Third-Party Beneficiaries. Except as expressly set forth in Section 8 (Indemnity), no provision of the Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person or entity other than the parties and their respective permitted successors and assigns.
(j) Non-Exclusivity. Nothing in the Agreement is or will be construed to preclude or limit in any way the rights of Dragos to provide products or services of any kind or nature whatsoever to any person or entity.