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Bitdefender and Partner are sometimes referred to herein as “Parties”, as the case may be.
WHEREAS, Partner is aware that the Portal and Bitdefender business consists of highly confidential information, including, but not limited to, customer contracts, customer lists, sales information, price lists, processes, procedures, technologies, and technical and development plans, which are trade secrets of considerable and unique value to the customers and the business of Bitdefender.
WHEREAS, the nature of the information available on the Portal and the communications of Bitdefender will necessarily result in access to trade secrets and other confidential information acquired and developed, and to be acquired and developed, by Bitdefender at considerable expense of time and money, which trade and technical secrets and information, of necessity, due to the competitive nature of the industry in which Bitdefender is engaged, are highly confidential and remain the exclusive property of the provider of the confidential information, meaning Bitdefender;
WHEREAS, the disclosure to others of the trade secrets and other confidential information of Bitdefender, including, but not limited to customer contracts, customer lists, price lists, processes, marketing proposals, marketing concepts and procedures would result in irreparable damage to the business and customer relations of Bitdefender.
NOW, THEREFORE, for adequate and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. These terms, when used in this Agreement, shall be defined as follows:
(a)Affiliate”means, with respect to a given entity, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, the given entity.
(b) “Confidential Information” means, but is not limited to, any information not in the public domain relating to the names and addresses of customers, sales and marketing strategy, other sales information, corporate information, shareholders information, processes, marketing strategies, marketing proposals, operational procedures, technologies, formulas, research, ideas, inventions, discoveries, improvements, equipment, methods of service, costs or prices or uses of the products or services of Bitdefender, any financial information, business plans of Bitdefender, customer and supplier information, credit information, personnel information, and other confidential information or trade secrets, including, but not limited to, customer contracts, customer lists, price lists, marketing concepts, processes and procedures, whether contained in any written documents and whether belonging to Bitdefender (for this purpose, Bitdefender is to include any of the affiliated or subsidiary corporations of Bitdefender) or in the possession of Bitdefender pursuant to obligations of secrecy to others, which are communicated to, acquired by, developed by, or learned by the Partner as a result of communications with Bitdefender (whether or not such information is labelled or designated as “confidential”); Notwithstanding the above, information, which by the nature of its disclosure, could reasonably be construed as confidential shall be considered Confidential Information and shall be subject to the restrictions contained in this Agreement
(c) “BITDEFENDER’s Business” shall mean the marketing, production, sale, services and support of computer virus protection or other software and related products and all related fields; and
(d) “Documents” shall include, but is not limited to, any and all information available on the Portal and correspondence, memoranda, notes, guides, guidelines, records, letters, summaries of personal conversations or interviews, minutes or records, or notes of meetings, conferences or phone conversations, opinions or reports of consultants, accountants or auditors, projections, statistical statements, feasibility studies, financial projections, contracts, agreements, purchase orders, confirmations, telegrams, telexes, books, notes, reports, logs, diaries, calendars, tape recordings, e-mail, fax or telecopy, photographs, audio or visual tapes, charts, photographs, notebooks, interoffice communications, articles, magazines, newspapers, maps, drawings, plans, proposals, plates, deeds, mortgages, promissory notes, leases, rental agreements, purchase and sales agreements, filings with government agencies at any level of government (whether required by law or filed voluntarily), and any other writings, working papers, and drafts of writings of whatever description, including, but not limited to, any information contained in any computer or peripheral equipment (including software, hard disks, floppy disks, tapes or other recording devices), whether or not printed out.
(e) Portal” shall mean a webpage, form, or other means by which Bitdefender makes available information about the Partner Advantage Network and ordering system for reselling of the Bitdefender Products.
2. CONFIDENTIALITY AND NON-DISCLOSURE. The Partner acknowledges that it will have access to and become acquainted with Confidential Information which is regularly used or contemplated to be used in Bitdefender's Business. The Partner hereby acknowledges that all information regarding Bitdefender’s Business and its affiliated and subsidiary corporations, available on the Portal or compiled or obtained by, or furnished to, either, while this Agreement is in full force and effect, is Confidential Information and is the exclusive property of Bitdefender. The information on this Portal is protected by copyright. Except as specifically permitted, no portion of this Portal may be distributed or reproduced by any means, or in any form, without Bitdefender prior written permission.
The Partner will not, directly or indirectly, either disclose any Document or Confidential Information, except as approved, in writing, by Bitdefender, or use any Document or Confidential Information for the benefit or profit of Partner or for the benefit of any other person, firm, corporation, limited liability company, partnership, proprietorship, association or other business entity, or at any time. All Documents of any kind relating to the Business of Bitdefender which come into the possession of the Partner shall remain the sole property of Bitdefender and may only be used by the Partner to evaluate the possibility of, and/or perform under, future agreements entered into by the Parties for the mutual benefit of the Parties. The Partner will return all such Documents, and all copies, to Bitdefender upon the termination, for any reason, of communications with, or upon demand of Bitdefender. Bitdefender and the Partner further agree that the covenants set forth herein with respect to Confidential Information and Documents shall continue in full force and effect notwithstanding the termination of any other provision of this Agreement.
With the exception of credit card numbers for the purchase of Bitdefender’s products and services, Bitdefender does not want to receive confidential or proprietary information through its Portal, therefore any information sent to Bitdefender, with the exception of credit card numbers, will be deemed NOT CONFIDENTIAL. You grant Bitdefender an unrestricted, irrevocable license to display, use, modify, perform, reproduce, transmit, and distribute any information you send to Bitdefender, for any and all commercial and non-commercial purposes. You are prohibited from posting or transmitting to or from this Portal any obscene, defamatory, pornographic, or other materials that would violate any laws. However, if such communications do occur, Bitdefender will have no liability related to the content of any such communications.
3. PARTNER’S OBLIGATIONS
Any Bitdefender Partner (direct or indirect) is entitled to use the name “Bitdefender” as a trademark only for the Reselling of the Products, but it is not allowed to register any company or commercial name, trademark or domain names that consists of or contains the name “Bitdefender” or any similar name or other Bitdefender Trademarks. If this obligation is breached, Bitdefender will consider this a material breach and Partner shall immediately transfer or assign the rights to any such registration to Bitdefender and pay the damages caused to Bitdefender. The Partner will not reproduce, copy, and duplicate the Product or trademarks owned by Bitdefender without the written consent of Bitdefender, except as necessary in the ordinary course of performing Partner’s obligations under this Agreement. The Partner shall not reverse engineer, reverse compile or otherwise alter the Product. The Partner shall resell the Product under the conditions agreed with Bitdefender or its distributors and only under the trademark established by Bitdefender. This obligation shall apply to any other product that may be sold by Partner according to its agreement with Bitdefender or its distributor.
Bitdefender authorizes the Partner to use Partner’s own trademark for the reselling of the Bitdefender Products along with the trade mark(s) established by Bitdefender.
All graphic elements and materials used by the Partner in selling and promoting the Products, advertising images, images used for fairs and exhibitions as well as any other graphic elements mentioned in its agreement, must abide Bitdefender’s currently guidelines and the Partner shall submitted to Bitdefender for prior approval which shall not be unreasonable withheld. Notwithstanding this provision, the logo and the logotype of the product are not to be modified under any circumstances.
Bitdefender owns all intellectual property and other rights to the Products and hereby grants Partner a limited, non-exclusive right to resell the Products as necessary for fulfillment of Partner’s obligations under this Agreement. Partner shall have no rights other than those expressly set forth in this Agreement. Bitdefender shall retain all rights, titles, interests and goodwill arisen in connection with the Product and to any modifications or improvements or translations of the Products made by the Partner thereto, and all the materials related to the Product. Partner will not obtain any rights in the Product as a result of its responsibilities hereunder. Partner acknowledges Bitdefender’s rights in the Product. Partner shall not at any time during or after the Effective date of the Agreement, dispute or contest, directly or indirectly, Bitdefender’s rights and titles to the Products or their validity thereof.
The Partner shall not sell or market Products outside the Territory agreed. Partner shall not accept any order from a client from outside the Territory in which Partner is entitled to sell, according to its agreement.
The Partner shall not damage the Product and Bitdefender’s Company image. If the Product and Bitdefender’s Company image are damaged by Partner’s action, the Partner shall financially compensate Bitdefender for all the damages.
The Partner has the right to propose improvements regarding Products or other materials made available by Bitdefender. Bitdefender will analyze the Partner’s proposals and in Bitdefender’s sole and exclusive discretion, Bitdefender may apply them. Upon submission of any suggested change or improvement, it shall become the sole and exclusive property of Bitdefender. By such submission, Partner waives any right in any such suggestion Partner may have, and irrevocably consents to Bitdefender’s unrestricted use thereof.
The Partner shall notify Bitdefender of any infringement of Bitdefender’s copyright or trade mark rights within 2 days of the date Partner learns of the infringement or has reason to believe infringement has occurred or is likely to occur.
The Partner shall not use Bitdefender’s Trademarks in any online search engine marketing campaigns, without Bitdefender written approval.
Bitdefender reserves the right to change these guidelines at any time and such changes will be communicated to the Partner in writing.
Partner shall ensure compliance with all applicable laws and regulations in the Territory. The Partner declares and warrants that the license terms granted by Bitdefender are in compliance with the applicable legislation in Territory.
Partner shall cooperate promptly with Bitdefender to assist Bitdefender in complying with all applicable laws in the Territory, including but not limited to, laws and regulations relating to the control of exports or the transfer of technology.
The Partners are obliged to comply with the PAN conditions applicable and PAN Guide for them and their partner’s network.
If the resellers of the Distributor, registered in PAN, are entitled to receive MDF according to its applicable PAN conditions, then Distributor shall intermediate the payments agreed by Bitdefender to its resellers.
4. WARRANTIES AND INDEMNITIES
The warranty with respect to the Reselling of Products is as described in EULA provided with each Product. Bitdefender does not extend to Partner any additional warranties, express or implied, and Partner expressly waives any and all claims to damages. Bitdefender’s liability is limited to replacement of Product. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT or EULA, BITDEFENDER MAKES NO WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, ACCURACY OF DATA, OF INFORMATIONAL CONTENT, NON-INFRINGEMENT OF THE THIRD PARTIES COPYRIGHT OR OF THIRD PARTY RIGHTS of privacy and publicity by filtering, disabling, or removing such third party’s software, spyware, adware, programming, cookies, emails, advertisements or the like, WHETHER ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE, OR TRADE USAGE. IN NO EVENT SHALL BITDEFENDER BE LIABLE FOR DAMAGES, DIRECT OR INDIRECT, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES SUFFERED BY THE PARTNER, AUTHORIZED RETAILER, END PARTNER, OR OTHER THIRD PARTY ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL GROUND OF ACTION.
Partner shall be solely liable for any representations or warranties made by it or its sales representatives in its advertising, brochures, manuals, or by its agents, employees, or representatives, whether in writing or orally with respect to each Product which are not in accordance with the Bitdefender EULA.
Partner agrees to defend, indemnify, and hold Bitdefender, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against Bitdefender based on Partner’s actions or inactions.
If the Partner breaches the territoriality limitation of the Products, the destination of the Products or any terms of this Agreement, Bitdefender will have the right to cancel the key licenses of the Products sold and receive monetary damages from the Partner.. The Partner is the only party responsible for the end-Partner claims resulting from the cancelation of the Bitdefender key licenses.
In no event shall Bitdefender be liable for any damages of any kind, including, without limitation, direct or indirect damages arising out of the use, performance, or delivery of Bitdefender, even if Bitdefender has been advised of the existence or possibility of such damages. We strongly recommend that You back up Your data frequently. You shall at all times be under a duty to mitigate Your loss.
THIS PORTAL COULD INCLUDE INACCURACIES. CHANGES ARE PERIODICALLY MADE TO THE INFORMATION PRESENTED HEREIN. HOWEVER, BITDEFENDER MAKES NO COMMITMENT TO UPDATE MATERIALS ON THIS PORTAL. Bitdefender is acting on behalf of its suppliers and marketing partners for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
The disclaimers and limitations set forth above will apply regardless of whether you accept to use, evaluate, test or sales of Bitdefender Products.
Bitdefender makes no representation that information on this Portal are appropriate or available for use in all countries, and prohibits accessing materials from territories where contents are illegal. Those who access this site do so, on their own initiative and are responsible for compliance with all applicable laws.
Partner acknowledges and agrees to comply with all applicable export control laws. You are also representing that you are not under the control of, located in, or a resident or national of any prohibited country, and are not a prohibited person or entity. This notice is not intended to be a comprehensive summary of the export laws that govern the products and services. It is your responsibility to consult with a legal advisor to ensure compliance with applicable laws
Partner shall not allow any third party to make use of its access rights to the Portal. Such action would constitute a material breach of this Agreement and entitle Bitdefender to immediately terminate this Agreement. Partner agrees to use the Portal for internal use. Partner represents and warrants that it will ensure that it and its employees, agents or affiliates, accessing or using the Portal will not do anything that negatively affects or impacts the operations of the Portal or other computer, database, or network systems of Bitdefender (such actions would include but are not limited to hacking; reverse engineering; transmitting viruses, Trojan horses or other disruptive programs whether intentionally or unintentionally; or using tracking software).
Partner hereby agrees to follow Bitdefender’s policies as posted on the Portal, and all guidelines provided to Partner (including guidelines provided by Bitdefender on its websites). Bitdefender may update policies from time to time in its sole discretion.
Upon termination of the Agreement, Partner shall a) cease making orders, b) using the Portal in any way, or d) using its Access Rights in any manner.
5. REMEDIES. BITDEFENDER and Partner expressly agree and understand that the remedy at law for any breach of the provisions of this Agreement by the Partner will be inadequate and that the damages flowing from any such breach may not be readily susceptible to being measured in monetary terms. Accordingly, BITDEFENDER and Partner acknowledge that upon adequate proof of a violation by the Partner of any of the provisions of this Agreement, Bitdefender shall be entitled to a temporary restraining order and/or preliminary injunction against any threatened or future breach hereof. Any such breach shall toll the running of the time period from the date of such breach, until such breach shall cease. The Partner expressly acknowledges that Partner has carefully considered the nature and extent of the restrictions and the rights and remedies of Bitdefender under this Agreement. The Partner expressly acknowledges and agrees that the restrictions are reasonable and are fully required to protect the legitimate interests of Bitdefender.
6. SEVERABLE PROVISIONS. The provisions of this Agreement are severable, and if any one or more provisions is determined to be illegal or otherwise unenforceable in whole or in part, the remaining provisions, and any partially enforceable provision, shall be binding and enforceable to the extent enforceable in any jurisdiction.
7. BINDING EFFECT. The rights of Bitdefender under this Agreement shall inure to the benefit of Bitdefender and its successors and assigns. The Partner’s obligations under this Agreement shall be binding upon Partner and Partner’s successors, assigns, agents, heirs, personal representatives, and estate.
8. WAIVER; CUMULATIVE REMEDIES. The failure of Bitdefender to enforce any provision or provisions of the Agreement shall not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent Bitdefender thereafter from enforcing each and every other provision of this Agreement. The rights granted herein are cumulative and the waiver of any single remedy shall not constitute a waiver of the right of Bitdefender to assert all other legal remedies available to it under the circumstances. The Partner acknowledges that Bitdefender has other remedies at law and that Bitdefender is entitled to assert all of those remedies concurrent with those granted under this Agreement.
9. GOVERNING LAW AND CONSTRUCTION. The present contract is governed by the Romania Laws. In case any of the clauses of the present contract will be declared void, the other clauses will not be affected and will continue to be valid and applicable within the limits of the Florida Laws. The venue is at the competent courts from Bucharest. The prevailing party in any bad debts dispute shall be entitled to recover costs and expenses associated with resolving such dispute, including reasonable attorney fees.
10. ACKNOWLEDGMENT. Both Parties to this Agreement expressly acknowledge that nothing contained herein shall be deemed to create a partnership or other association between the Parties hereto except as otherwise expressly agreed in writing. Both Parties to this Agreement also expressly acknowledge the authority of the individual(s) signing this Agreement to execute same on its behalf. This agreement does not limit the rights of the parties to negotiate a relationship and sign an agreement with another party in case of failure of negotiations between Bitdefender and Partner.
11. TERM AND SURVIVAL
This Agreement shall be in force from the date the parties sign it and shall be valid for a period of 5 years, after the termination of the business relations between the Parties.
Upon termination of the business relations between the Parties, if so requested by Bitdefender, the Partner shall return all Confidential Information to Bitdefender or certify to the destruction of same.
Upon termination of the business relations between the Parties, Partner shall (i) cease to be an authorized reseller and have no right to market, distribute the Bitdefender Products, (ii) cease use of and destroy any and all copies of the Bitdefender Materials and Confidential Information, and (iii) immediately pay Bitdefender any amounts then due and outstanding, less a reasonable amount, to cover potential amounts due Partner for offsets and returns.