DISTIL RESELLER PROGRAM END USER MASTER SERVICES AGREEMENT
THIS END USER MASTER SERVICES AGREEMENT (“MSA”) GOVERNS THE ACCESS, USE AND PROVISIONING OF THE DISTIL SERVICES PURCHASED BY YOU FROM AN AUTHORIZED RESELLER OF DISTIL’S SERVICES, AND IS ENTERED INTO BY AND BETWEEN CLIENT (AS SUCH TERM IS DEFINED BELOW) AND DISTIL (AS SUCH TERM IS DEFINED BELOW). BY AGREEING TO PURCHASE DISTIL’S SERVICES FROM AN AUTHORIZED RESELLER OR ACCESSING OR USING THE SERVICES, CLIENT AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THE TERM “Client” REFERS TO YOU, UNLESS YOU ARE ENTERING INTO THIS AGREEMENT BY OR ON BEHALF OF AN ENTITY (e.g., A COMMERCIAL ENTITY OR A GOVERNMENT AGENCY), IN WHICH CASE THE TERM “Client” REFERS TO THAT ENTITY. IF YOU PURCHASED OR ARE ACCESSING OR USING THE SERVICES ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. CLIENT AND DISTIL MAY EACH BE INDIVIDUALLY REFERRED TO AS A “Party” AND COLLECTIVELY AS THE “Parties”.
This MSA governs the access, use and provisioning of Distil services purchased by Client from an authorized reseller of Distil services. If Client has not purchased or is not otherwise accessing or using Distil’s services under Distil’s Reseller Program, then Client may not use Distil’s services except as otherwise set forth in a separate written agreement entered into by and between the Parties.
- “Acceptable Use Policy” or “AUP” means Distil’s Acceptable Use Policy, a copy of which can be found at https://www.imperva.com/legal/distil-terms-of-use and provided upon request.
- “Agreement” means the Acceptable Use Policy, this MSA, and each of the Specific Terms, collectively.
- “Client Content” means any and all content that Client or its Representatives uploads to Distil’s systems or networks via Distil’s application program interface, in connection with Client’s use of the Services.
- “Claims” means any and all claims, suits, action, or proceeding, and accompanying losses, liabilities, costs, or expenses, including reasonable attorneys’ fees, brought by or owing to any third party.
- “Distil” means Distil Networks, Inc., a Delaware corporation with a mailing address of 4501 North Fairfax Drive, Suite 120, Arlington, VA 22203
- “Effective Date” means the date on which Client accepts the terms of this Agreement in accordance with the above (i.e., by purchasing Distil services from an authorized reseller thereof or by accessing and using Distil’s services, whichever occurs first.).
- “Feedback” means information Client provides Distil regarding the Services including suggestions, critiques, ideas, or comments.
- “Include” and “including”, as such terms are used throughout the Agreement, shall not be interpreted as having a limiting effect, but rather as introducing a non-exhaustive example or list in the same fashion as “including without limitation” and “including, but not limited to”.
- “Order” means a written agreement for the purchase of Services entered into by and between Client and the applicable Reseller.
- “Representatives” means either party’s affiliates, employees, independent contractors, agents or other representatives.
- “Reseller” means an authorized reseller of Distil services.
- “Services” means the Distil services purchased under an Order, which are more fully described in the applicable Specific Terms. For the avoidance of doubt, the Services include any hardware, software, equipment and technical support provided by Distil in connection with its provisioning of the Services.
- “Specific Terms” refers to each of the Specific Terms and Conditions, copies of which can be found at https://www.imperva.com/legal/distil-terms-of-use and provided upon request.
SERVICES, CLIENT CONTENT & FEEDBACK
- The Services. Subject to the terms and conditions of this Agreement, Distil grants Client, throughout the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable limited right to access and use the Services solely for Client’s internal business purposes. Other than the preceding, limited right to access and use the Services, Client receives no other rights, title or interest in or to the Services. Distil retains all right, title and interest in and to the Services, and all intellectual property and proprietary rights related to the same, including, without limitation, all copyright, trademarks, patent and moral rights.
- Client Content. Client retains all right, title and interest in and to the Client Content, and all intellectual property and proprietary rights related to the same, including, without limitation, all copyright, trademarks, patent and moral rights. Solely to the extent necessary to provide the Services, Client hereby grants Distil a world-wide, nonexclusive, limited, royalty-free and nontransferable license, throughout the term of this Agreement, to copy, host, index, publish, distribute, reroute and otherwise use such Client Content to the extent necessary to provide the Services.
- Feedback. From time to time, Client may provide Distil with Feedback. Client hereby grants Distil a world-wide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, transferrable, sub-licensable license to use, sell, copy, modify, make derivative works of, distribute, disclose and otherwise exploit any Feedback for any purpose.
- Confidential Information. In connection with this Agreement, there may be a desire or need for Confidential Information to be disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”); although neither Party is under any obligation to disclose its Confidential Information. “Confidential Information” means any information or material of a Disclosing Party designated in writing as confidential or that the Receiving Party should reasonably believe to be confidential based on its content and/or context unless such information or material is: (a) at the time of its disclosure, previously known by or in the possession of the Receiving Party; (b) in the public domain or becomes generally known or published through no fault of the Receiving Party; (c) lawfully disclosed to the receiving party by a third party free to disclose such information; (d) independently developed or owned by the Receiving Party with out use or reference to the Confidential Information at issue; or (e) required to be disclosed pursuant to applicable law.
- Use & Disclosure. A Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under this Agreement, and shall not disclose Confidential Information to any other party other than to its Representatives whom are bound by a duty of confidentiality that is no less protective than the terms of this Section 4 (Confidentiality). Notwithstanding the foregoing, a Receiving Party may disclose Confidential Information to the extent required by law. The Receiving Party shall take reasonable precautions to protect the Disclosing Party’s Confidential Information from unauthorized uses or disclosure, but in no event shall such precautions be less protective than those used by the Receiving Party to protect its own information of similar import.
- Equitable Relief. The Parties agree that money damages will not be an adequate remedy for any breach of this Section 4 (Confidentiality), and that a Disclosing Party shall be entitled to equitable relief, including an injunction and specific performance, in the event of any breach or threatened breach of this Section 4 (Confidentiality), in addition to any other remedies available to the Disclosing Party, whether at law or in equity.
- Term of Agreement. The Term of this Agreement shall commence upon the Effective Date and terminate upon the earlier of (i) the expiration or termination of the Order (or if Client entered into multiple Orders with a Reseller, upon the termination or expiration of the last of the outstanding Order), or (ii) this Agreement has been terminated in accordance with the terms hereof.
- Termination for Breach. Should a Party materially breach this Agreement and fails to cure the breach within thirty (30) days of receiving written notice from the other Party, then the non-breaching Party may terminate this Agreement immediately by providing the breaching Party written notice of such termination. In addition, Distil may immediately terminate this Agreement in the event of a breach of the terms of the AUP or in the event that Client fails to timely pay any amounts due to Reseller.
- Suspension. Distil may immediately suspend the Services without notice if: (i) Client fails to pay any amounts owed owed to Reseller in relation to the Services when due, or (ii) Distil, in its sole discretion, determines that Client’s or its Representatives’ use of Services violates the AUP or negatively affects Distil or its systems or networks.
- Effect of Termination. The rights granted to Client under this Agreement shall end, and Client shall immediately cease using the Services, upon the termination or expiration of this Agreement, whichever occurs first. In the event that Distil suspends the Services or terminates an Order for cause, Distil may repossess any of its hardware, software or equipment in Client’s possession or control, and impose a reconnection fee if Client requests restored access to the Services. Additionally, Client will reimburse Distil for any collection or legal costs incurred by Distil in connection with the the repossession of its hardware, software and/or equipment, and in connection with the collection of any service fees owed by Client under this Agreement. Except as otherwise set forth in this Agreement, the Parties’ respective rights and remedies under this Section 5 (Term, Termination) shall be in addition to any other rights or remedies the Parties may have.
- Mutual Warranties. Each Party represents and warrants the following: (i) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (ii) that it has the full power and authority to consent to and enter into this Agreement; and (iii) this Agreement has been duly and validly executed and constitutes a legal, valid and binding contract, enforceable against such party in accordance with its terms.
- Client Warranties. Client represents and warrants that Client will not, and will not permit others to, violate: (i) any applicable law, rule or regulation in connection with this Agreement, including its use of the Services, or (ii) the AUP.
- General Disclaimer. EXCEPT AS EXPRESLLY SET FORTH IN THIS AGREEMENT, THE SERVICES, INCLUDING ALL SERVERS AND OTHER EQUIPMENT PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DISTIL DOES NOT GAURANTEE THE ACCURACY OF THE SERVICES OR THAT THE SERVICES WILL BE SECURE OR FREE FROM ANY DEFECTS, FAULTS OR PERIODS OF UNAVAILABILITY OR ACHIEVE ANY PARTICULAR RESULTS.
- Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISTIL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALINGS OR USAGE OF TRADE.
LIMITIATION OF LIABILITIES
- Limitation of Specific Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISTIL SHALL NOT BE LIABLE FOR ANY LOST DATA, PROFITS, REVENUES, OR OPPORTUNITIES OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT.
- General Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DISTIL’S TOTAL LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE AMOUNT CLIENT ACTUALLY PAID RESELLER FOR THE SERVICES UNDER THE APPLICABLE ORDER(S) IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST CLAIM STARTED TO ACCRUE.
- Limitation of Remedies. DISTIL’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR A FAILURE TO PROVIDE THE SERVICES (INCLUDING, BUT NOT LIMITED TO, A FAILURE TO MEET ANY SERVICE LEVEL SET FORTH IN THE SPECIFIC TERMS AND A FAILURE TO OF THE SERVICES TO CONFORM TO THE DESCRIPTIONS SET FORTH IN THIS AGREEMENT) SHALL BE LIMITED TO THE PROVISIONING OF CREDITS AND ABILITY TO TERMINATE THE APPLICABLE ORDER IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
- Miscellaneous. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LIMITATIONS SET FORTH IN THIS SECTION 8 (LIMITATION OF LIABILTY) SHALL APPLY EVEN IF CLIENT’S REMEDIES UNDER THIS AGREEMENT FAIL THEIR ESSENTIAL PURPOSE. CLIENT ACKNOWLEDGES AND AGREES THAT THIS SECTION 8 (LIMITATION OF LIABILITY) REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT, IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
- Client Idemnification. Client agrees to defend, indemnify and hold Distil, its Representatives and their respective affiliates, heirs and assigns harmless from any Claim brought by or owing to a third party in relation to a breach of the warranties set forth in Section 6 (Warranties).
- Distil Idemnification. Except as provided below, Distil will defend, indemnify and hold Client harmless against any and all Claims brought by or owing to a third party alleging that the Services infringe or violate such third party’s U.S. patent, copyright or trademark rights (“Infringement Claims”). This Section 9 (Indemnification) provides Distil’s sole liability and Client’s sole and exclusive remedy for any Infringement Claim.
- Exclusions. Notwithstanding the foregoing, Distil shall have no obligations under Section 9.2 (Distil Indemnification) and shall not be liable for any claim alleging that the Services infringe or misappropriate any third-party intellectual property rights if such claim relates to any: (i) use of the Services in a manner other than as that is not expressly authorized in this Agreement, (ii) breach of this Agreement by Client or its Representatives, (iii) modification of the Services by any party other than Distil; or, (iv) combination of the Services with any other service, product, data, or software not provided by Distil.
- Additional Options. In the event of a claim alleging that any of the Services infringe upon or misappropriates any third-party intellectual property rights, Distil may, in its sole discretion and at no cost to Client, (i) modify the Services so that they no longer infringe or misappropriate such third-party intellectual property rights, (ii) procure the right for Client to continue its use of the Services as intended under this Agreement, or (iii) terminate this Agreement. In the event that Distil terminates an Order in accordance with this Section 9.4 (Additional Options), Distil will issue a refund of any fees paid by Client for Services not rendered as of the date of such termination.
- Conditions to Idemnification. Each Party’s duty to indemnify the other Party in accordance with this Section 9 (Indemnification) is subject to the indemnified Party providing the indemnifying Party with: (i) prompt written notice of the claim, except that any failure to give prompt notice shall only relieve the indemnifying Party of its indemnification obligations hereunder to the extent such failure materially prejudices such Party; (ii) reasonable assistance with the claim, at the indemnifying Party’s expense; and (iii) sole control over the defense and settlement of the claim.
- Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, whether oral or written. Without limiting the generality of the foregoing, any terms and conditions contained in any purchase order, vender/supplier registration form, questionnaire or any other form or document that Client may provide to Distil in connection with this Agreement are hereby null and void, regardless of whether such forms were provided prior to or after the execution of this Agreement, and such terms and conditions shall have no force or effect regardless of Distil’s failure to object to such terms. With the exception of the AUP, which Distil may amend in accordance with the terms thereof, this Agreement may only be amended, modified or supplemented by the written agreement of the Parties.
- Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, Distil may assign its rights and obligations under this Agreement in connection with a merger or acquisition, including a sale of substantially all of its assets. This Agreement shall be binding upon and inure to the benefit of the Parties and their permitted successors, heirs and assigns. Any assignment or transfer made in violation of this Section 10.2 (Assignment) shall be null and void.
- Force Majeure. Each Party will be excused from delays in performing or from failing to perform its obligations under this Agreement or any Order to the extent the delays or failures result from causes beyond the reasonable control of such Party including without limitation, an act of God, government, war or terrorism (including cyber terrorism), flood, fire, earthquake, strike, internet service provider failure or delay, or an application over which the Party has no control.
- To Distil. Notices that are required to be sent to Distil under this Agreement must be sent either by personal delivery, overnight courier or registered or certified mail to Distil Networks, 49 Stevenson Street, San Francisco, CA 94105.To Client. To Client: Notices that are required to be sent to Client under this Agreement must be sent either by email to a contact associated with Client’s account, unless the notice relates to a Claim under Section 9 (Indemnification), in which case such notice must be sent by personal delivery, overnight courier or registered or certified mail to the Client address that Distil has on file at the time the notice is sent.
- Choice of Law & Venue. This Agreement shall be governed by the laws of the State of Virginia, excluding its body of law relating to conflicts of law. The Parties hereby agree that the United Nations Convention on International Contracts for the Sale of Goods shall not apply to this Agreement or any other agreement related hereto. The Parties hereby irrevocably submit to the exclusive venue and jurisdiction of any state or federal courts located in Arlington County, Virginia.
- No Third Party Beneficiaries. Nothing in this Agreement grants any rights or remedies to any person or entity that is not a party to this Agreement. There shall be no third party beneficiaries to this Agreement.
- Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to give effect to the original intent of the parties to the maximum extent permitted by law. If such construction is not possible, then the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.
- Survival. Those provisions of this Agreement which, by their nature, are ordinarily deemed to survive any termination or expiration, including Sections 3 (Services, Client Content & Feedback ), 4 (Confidentiality), 5.4 (Effect of Termination), 7 (Disclaimers), 8 (Limitation of Liability), 9 (Indemnification) and 10 (General), shall survive any expiration or termination of this Agreement.
- Order of Precedence. In the event of a conflict between the Acceptable Use Policy, this MSA, an Order and/or the Specific Terms, such conflict shall be resolved in the following order (ranked from most controlling (Orders) to least controlling (the AUP)): (1) Orders, (2) Specific Terms, (3) this MSA and (4) the AUP.
- Export Compliance. The Services, and any derivatives thereof, may be subject to import and export control laws of the United States and other jurisdictions. Client represents that it is not named on any U.S. government denied-party list. Client shall not, and shall not permit others, to access or use the Services in a U.S. embargoed country or in violation of any U.S. or other applicable import or export control laws, rules or regulations.