Data Services Agreement

Last Updated: November 2024

THIS DATA SERVICES AGREEMENT (“DSA”), TOGETHER WITH ANY APPLICABLE ORDER (COLLECTIVELY, THE “AGREEMENT”) CONTAINS THE TERMS GOVERNING OPENTEXT™ THREAT INTELLIGENCE.

IF AN INDIVIDUAL IS DOWNLOADING, INSTALLING, OR CONFIGURING OPENTEXT™ THREAT INTELLIGENCE ON BEHALF OF PARTNER, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT HE OR SHE IS AT LEAST 18 YEARS OLD AND HAS THE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF PARTNER, THAT THE AGREEMENT HAS BEEN AUTHORIZED BY PARTNER, AND THAT THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID, AND BINDING OBLIGATION OF PARTNER, ENFORCEABLE AGAINST PARTNER IN ACCORDANCE WITH ITS TERMS.

THE AGREEMENT IS EFFECTIVE ON THE EFFECTIVE DATE OF THE INITIAL ORDER. BY ENTERING INTO AN ORDER OR BY OTHERWISE MANIFESTING ASSENT TO THE TERMS AND CONDITIONS OF THE AGREEMENT, PARTNER ACKNOWLEDGES THAT IT HAS READ THE AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF PARTNER DOES NOT AGREE, PARTNER IS NOT AUTHORIZED TO USE OPENTEXT™ THREAT INTELLIGENCE FOR ANY PURPOSE.

1. Defined Terms. All defined terms in the Agreement have the meanings given to them in this Section 1 or in the Section in which such terms are first defined. Definitions denoting the singular have a comparable meaning when used in the plural, and vice versa.    
   • 1.1. “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, a Party; where “control” means ownership of 50% or more of the outstanding voting securities (but only as long as such entity meets these requirements).
   • 1.2. “API” means Company’s application programming interface that may be called or invoked to receive Classifications.
   • 1.3. “Channel Partner” means an authorized distributor or reseller of Partner that, pursuant to a written agreement with Partner, has the limited right to distribute or resell Integrated Product.
   • 1.4. “Classification” means Company’s classification, categorization, or scoring of a Data Type, or statistical or contextual information relating to a Data Type.
   • 1.5. “Company” means the signing entity identified on one or more Orders that is providing OpenText™ Threat Intelligence on behalf of itself or one or more of its Affiliates.
   • 1.6. “Company Indemnitees” means Company, its Affiliates, and its and their officers, directors, employees, shareholders, and permitted successors and assigns.
   • 1.7. “Company Properties” means OpenText™ Threat Intelligence.
   • 1.8. “Confidential Information” means non-public information that is exchanged between Partner or its Affiliates and Company or its Affiliates, provided that such information: (a) is identified as confidential at the time of disclosure by the disclosing Party (“Discloser”); or (b) should reasonably be understood by the Party receiving such information (“Recipient”) to be confidential to Discloser based on the nature of the information or the circumstances of its disclosure, except that in the case of Company, all non-public aspects of OpenText™ Threat Intelligence are Company’s Confidential Information, and in the case of Partner, all non-public aspects of Partner Products are Partner’s Confidential Information, regardless of how disclosed. Confidential Information does not include information that Recipient can demonstrate: (w) was rightfully known to Recipient without restriction on use or disclosure prior to such information being disclosed or made available to Recipient in connection with the Agreement; (x) was or becomes generally known by the public other than through the fault of Recipient, including Recipient’s breach of the Agreement; (y) was or is received by Recipient on a non-confidential basis from a third party that, to Recipient’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (z) was or is independently developed by Recipient or its Representatives without reference to the Discloser’s Confidential Information.
   • 1.9. “Data Type" means a category of threat intelligence information identified in an Order. A Data Type may consist of IP addresses, URLs, apps, files, or other data types.
   • 1.10. “Delivery Mechanism” means the API, SDK, Local Database, or some combination of the foregoing, depending on Partner’s subscription to OpenText™ Threat Intelligence.
   • 1.11. “Documentation” means the written or electronic user documentation pertaining to use of OpenText™ Threat Intelligence that is provided by Company to Partner.
   • 1.12. “Effective Date” means the effective date set forth in an Order or, if no effective date is specified in an Order, the date of the last signature to such Order.
   • 1.13. “End User” means an end user customer of an Integrated Product who is granted a right to use an Integrated Product for its internal purposes, and not for resale, pursuant to an End User Agreement.
   • 1.14. “End User Agreement” means an enforceable written agreement between Partner and an End User governing the End User’s access to or use of the Integrated Product and Company Properties that is consistent with the requirements of the Agreement.
   • 1.15. “Feedback” means any input, comments, suggestions, reports, requests, recommendations, or other ideas provided by Partner or any End User relating to OpenText™ Threat Intelligence.
   • 1.16. “Fees” means those fees and charges set forth in an Order.
   • 1.17. “Integrated Product” means a Partner Product that is adapted to access Classifications of certain Data Types.
   • 1.18. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property right laws, and all similar or equivalent rights or forms of protection, in any part of the world.
   • 1.19. “Local Database” means a local copy of a database that contains Classifications of certain Data Types, and which is downloaded by Partner via the SDK.
   • 1.20. “OpenText™ Threat Intelligence” means Company’s hosted threat intelligence service that is offered on a subscription basis and includes: (a) the Delivery Mechanism(s) through which the service is accessed; (b) the resulting Classifications of one or more Data Types; and (c) any applicable Documentation.
   • 1.21. “Order” means any written order or quote, in electronic or paper form, executed by Partner and Company that (a) references this DSA, and (b) describes Partner’s subscription to OpenText™ Threat Intelligence and the Fees owed in connection therewith.
   • 1.22. “Partner” means the signing entity identified on one or more Orders that is purchasing OpenText™ Threat Intelligence on behalf of itself or one or more of its Affiliates.
   • 1.23. “Partner Indemnitees” means Partner, its Affiliates, and its and their officers, directors, employees, shareholders, and permitted successors and assigns.
   • 1.24. “Partner Product” means the Partner product or service that is identified on an Order.
   • 1.25. “Party” means Company or Partner, as appropriate, and “Parties” means Company and Partner.
   • 1.26. “Representative” means, as to a Party or its Affiliates, any of that Party’s or its Affiliates’ directors, officers, employees, contractors, consultants, agents and advisors.
   • 1.27. “SDK” means Company’s software development kit that may be provided to Partner, as identified on an Order. The term “SDK” also includes the code that governs and controls: (a) the access and caching of Classifications; and (b) updates to the Local Database, each as configured and implemented by Partner.
   • 1.28. “Subscription Term” means the amount of time set forth on an Order that Partner is authorized to exercise its rights under the Agreement.
2. Orders. PARTNER MAY SUBSCRIBE TO OPENTEXT™ THREAT INTELLIGENCE AND MAY SELECT DATA TYPES VIA AN ORDER. ACCEPTANCE OF AN ORDER IS EXPRESSLY LIMITED TO, AND CONDITIONED ON, THE TERMS CONTAINED IN THE ORDER, INCLUDING ANY REFERENCE TO THIS DSA THEREIN. COMPANY AND PARTNER EACH REJECT ANY TERMS THAT ARE ADDITIONAL TO OR DIFFERENT FROM THE TERMS OF THIS DSA AND THE APPLICABLE ORDER. IN THE EVENT OF A CONFLICT BETWEEN AN ORDER AND THIS DSA, THE ORDER WILL CONTROL.
3. Grant of Rights. Subject to Partner’s compliance with the terms of the Agreement, Company, to the extent applicable to an Order, hereby grants Partner a revocable, non-exclusive, non-sublicensable (except as expressly set forth below), non-transferable right and license during the Subscription Term to: (a) use, copy, or modify, as applicable, the SDK, as necessary, for the sole purpose of creating Integrated Product, which may include copying and embedding the Local Database in Partner Products to create Integrated Product; (b) allow Integrated Product to obtain Classifications from the Local Database; (c) call OpenText™ Threat Intelligence through the API from Integrated Product to obtain Classifications; (d) distribute Integrated Product to End Users directly or through Channel Partners; in any case, solely (i) for use by End Users without any right of redistribution and (ii) pursuant to an End User Agreement between each End User and Partner; and (e) sublicense to End Users the right to use Integrated Product for internal business purposes only. For the avoidance of doubt, Company does not grant Partner a right to modify, adapt, translate, publicly display, publish, create derivative works of, or distribute the Documentation.
4. Restrictions on Use. Except to the extent expressly set forth in the Agreement, it is a condition to the rights and licenses granted in Section 3 (Grant of Rights) that Partner must not, nor permit any third party to: (a) access or use OpenText™ Threat Intelligence in a manner not specifically permitted by the Agreement and Documentation; (b) circumvent any license restrictions or mechanisms intended to limit use of OpenText™ Threat Intelligence; (c) reverse engineer or ascertain the algorithms or logic underlying one or more Classifications, including via training any software using machine learning techniques; (d) create derivative works from OpenText™ Threat Intelligence (or any feature or portion thereof) beyond the rights already granted in Section 3 (Grant of Rights); (e) reverse engineer, disassemble, or decompile OpenText™ Threat Intelligence (or any feature or portion thereof), or attempt to derive the source code of any feature or portion of OpenText™ Threat Intelligence (other than the SDK), except to the extent the foregoing restrictions are prohibited by law; (f) access or use OpenText™ Threat Intelligence for purposes of competitive analysis of OpenText™ Threat Intelligence, or for benchmarking or stress testing of OpenText™ Threat Intelligence; (g) publish, publicly display, or disclose any results produced by OpenText™ Threat Intelligence, outside of the context of any Integrated Product; (h) place any Classifications or Data Types in a data feed (including RSS); (i) use OpenText™ Threat Intelligence in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any person or entity; (j) use OpenText™ Threat Intelligence in violation of any applicable law, regulation, or order; (k) use any aspect of OpenText™ Threat Intelligence (including via caching, storing or using any Classification, or calling/invoking one or more APIs), to develop, market, or sell any product or service that competes with or offers functionality similar to OpenText™ Threat Intelligence; or (l) include in the Integrated Product any Open Source Software that requires, as a condition of use, modification and/or distribution of such software, that other software incorporated into, derived from or distributed with such software be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge.
5. End User Requirements. Partner may not grant any rights to an End User in any Company Properties that exceed the licenses granted in the Agreement. Additionally, each End User Agreement shall prohibit End Users from: (a) reproducing, modifying, renting, leasing, distributing, reselling, publishing, subleasing, sublicensing, or transferring any Integrated Product or Company Properties; (b) creating derivative works, or making, having made, selling, or distributing any derivative works, based on any Integrated Product or Company Properties; (c) reverse engineering, disassembling, decompiling, or attempting to access the source code for any Integrated Product or Company Properties; and (d) disabling or attempting to disable any security features of any Integrated Product or Company Properties. Partner is solely responsible for each End User’s use or inability to use an Integrated Product (or any portion thereof) or the Company Properties.
6. Integrated Product Requirements. Partner must ensure that each Integrated Product complies with the following prior to distributing each such Integrated Product: (a) each Partner Product must contribute substantial functionality to the resulting Integrated Product (as compared to the Classifications); (b) Classifications may not be accessed on a standalone basis but only through Integrated Product; and (c) Classifications must be refreshed in accordance with the Documentation or Company’s published guidelines. At least 10 days prior to the general availability of Integrated Product, upon Company’s written request, Partner will give Company access to each such Integrated Product to review the architecture of each such Integrated Product and for purposes of ensuring the interoperability of OpenText™ Threat Intelligence with each such Integrated Product. Company has no right to cancel or unreasonably delay the release of Integrated Product.
7. Channel Partners. Partner may distribute Integrated Product through Channel Partners. Partner will contractually require that each Channel Partner does not: (a) modify Integrated Product; (b) use Integrated Product to provide services; or (c) integrate Integrated Product with any other products or services or otherwise itself license Integrated Product as an original equipment manufacturer or a value-added reseller. Partner must enter into written agreements with Channel Partners containing restrictions substantially similar to those set forth in this Section 7. Partner shall be liable for its Channel Partners’ compliance with such restrictions.
8. Trademarks and Marketing.
   • 8.1 Trademarks. During the Subscription Term, and subject to the terms of the Agreement, each Party (“Licensor”) hereby grants to the other Party(“Licensee”) a revocable, non-exclusive, non-transferable, non-sublicensable license to use and reproduce Licensor’s trademarks, trade names, and logos (collectively, the “Marks”) solely in connection with and in accordance with the terms of the Agreement. Licensee will conform its use of the Marks to Licensor’s standards that have been provided to Licensee in advance. For the avoidance of doubt, Licensee may in its marketing materials and on its websites disclose Licensor as a technology partner of Licensee and use the Marks in connection therewith. All goodwill arising from the use of the Marks will vest in and inure to the benefit of Licensor and, to the extent Licensee gains any rights in such goodwill, such goodwill is hereby assigned by Licensee to Licensor. Licensee acknowledges that: (a) as between Licensor and Licensee, the Marks are the sole and exclusive property of Licensor; and (b) Licensor retains all right, title, and interest in and to the Marks, including all improvements, modifications, adaptations, copies, or derivative works of the Marks. Licensee agrees not to take any action inconsistent with Licensor’s exclusive ownership of the Marks. Licensee will cease using the Marks upon the expiration or termination of the Agreement.
   • 8.2 Marketing. Upon Company’s written request: (a) the Parties may develop and complete a mutually agreed-upon marketing plan within six months of the Effective Date, pursuant to which Partner may promote and market Integrated Product; (b) subject to the Parties’ mutual agreement (which may be withheld in a Party’s reasonable discretion), Partner may use reasonable commercial efforts in the issuance of a joint press release (“Press Release”) regarding the Parties and Integrated Product on a mutually agreed-upon date, and each Party will have the right to approve the Press Release in writing in advance, but any such approval may not be unreasonably delayed or withheld; and (c) subject to Partner’s consent, which consent may be reasonably withheld, Partner may be the subject of a video and/or written Partner case study produced by Company, which may focus on the mutual success of the partnership, and Partner may be able to approve the case study material before publication, but any such approval may not be unreasonably delayed or withheld.
9. Changes to OpenText™ Threat Intelligence. Company may at any time without notice discontinue or modify any aspect of OpenText™ Threat Intelligence, so long as the functionality of OpenText™ Threat Intelligence is not substantially decreased during the Subscription Term. Furthermore, Company reserves the right to end-of-life (“EOL”) any aspect or version of OpenText™ Threat Intelligence by providing 120-day prior written notice to Partner. If Partner has prepaid fees for OpenText™ Threat Intelligence and is impacted by such EOL decision, then Company will use commercially reasonable efforts to transition Partner to a substantially similar version of OpenText™ Threat Intelligence.
10. Partner’s Obligations.
    • 10.1. No Representations. Partner will not make any representations, guarantees, or warranties of any type: (a) with respect to the specifications, features, capabilities or otherwise concerning OpenText™ Threat Intelligence that are in addition to or inconsistent with those set forth in the Documentation delivered by Company to Partner hereunder; or (b) on Company’s behalf. Partner shall not engage in any acts or omissions that will diminish the reputation or goodwill of Company or OpenText™ Threat Intelligence.
    • 10.2. Compliance with Laws.
    • (a) General. Partner shall, and shall cause its Channel Partners to, comply with all applicable federal, state, local, and foreign laws, rules, and regulations (including laws related to data protection and privacy) while integrating, distributing, marketing, licensing, and supporting Integrated Product.
    • (b) FCPA. With regard to its obligations under the Agreement, Partner: (a) shall comply with the United States Foreign Corrupt Practices Act; and (b) shall not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any foreign government or any agency or instrumentality thereof.
    • (c) Export. OpenText™ Threat Intelligence is subject to U.S. export control laws and regulations and may be subject to foreign export or import laws or regulations. Partner shall strictly comply with all such applicable laws and regulations and shall not use or transfer OpenText™ Threat Intelligence (or any feature or component thereof) for any use relating to missile technology or nuclear, chemical, or biological weapons.
    • 10.3. Enforcement. Partner shall use commercially reasonable efforts to assist Company in the enforcement of Company’s rights, including where Company has determined that an End User or Channel Partner is using OpenText™ Threat Intelligence in a manner not expressly permitted under the Agreement.
    • 10.4. Records and Audit. Company or its agents may, at its expense and no more often than annually, upon 30 days written notice and during Partner’s normal business hours, inspect and audit any portion of Partner’s books and records that are relevant for the purpose of verifying Partner’s compliance with the Agreement and the accuracy of any reports, information or payments provided by Partner under the Agreement. In the event any material understatement (5% or more) of payments due hereunder is found, Partner shall, in addition to paying the understated amounts, pay Company’s reasonable costs of the audit. Partner shall maintain all records required under the Agreement for at least three years following the expiration or termination of the Agreement.
11. Account Password and Security. OpenText™ Threat Intelligence requires authentication credentials or license keys (the “Credentials”). Partner is solely responsible for maintaining the confidentiality of Partner’s Credentials and is fully responsible for all use of such Credentials, whether by Partner or other third parties. Partner agrees to promptly notify Company if Partner becomes aware of any unauthorized use of Partner’s Credentials or any other breach of security relating to Partner’s account. Partner hereby forever releases Company and its Affiliates from all liabilities, damages, losses, and costs incurred by Partner arising from or relating to the unauthorized disclosure of Partner’s Credentials.
12. Confidential Information. During the Subscription Term and for three years following the Subscription Term, Recipient must: (a) not access or use Confidential Information of Discloser other than as necessary to exercise its rights or perform its obligations under the Agreement; (b) disclose Confidential Information of Discloser only to those Representatives of Recipient who have a need to know such Confidential Information for purposes of the Agreement and who are bound by confidentiality obligations no less stringent than those of this Section 12; (c) safeguard the Confidential Information of Discloser from unauthorized use, access, and disclosure using at least the degree of care Recipient uses to protect its own Confidential Information and in no event less than a reasonable degree of care; and (d) promptly notify Discloser in writing of any unauthorized use or disclosure of Confidential Information of Discloser and take all reasonable steps to prevent further unauthorized use or disclosure. Recipient may disclose Confidential Information of Discloser as required to comply with the binding orders of courts or regulatory bodies that have jurisdiction over it, provided that Recipient: (x) promptly notifies Discloser (where lawfully permitted to do so), so that Discloser may intervene to contest such disclosure requirement and/or seek a protective order or waive compliance with this Section 12; (y) discloses only such Confidential Information as is required by the court or by a regulatory body; and (z) uses commercially reasonable efforts to obtain confidential treatment for any such Confidential Information disclosed. Each Recipient is responsible for any actions of its Representatives in breach of this Section 12.
13. Ownership; Feedback.
    • 13.1. OpenText™ Threat Intelligence and Feedback. Company owns all right, title, and interest, including all related Intellectual Property Rights, in and to OpenText™ Threat Intelligence, Feedback, and Automatic Feedback (as defined below), including any derivative works thereof, and Company reserves all rights to use, modify, and allow others to use such materials. Company and its licensors also reserve all other rights not expressly granted to Partner in the Agreement. Partner agrees that Partner provision of Feedback does not give Partner any Intellectual Property Rights or any other right, title, or interest in or to any aspects of the foregoing materials, even if such Feedback leads Company to create new products or services. Partner agrees to provide Company any assistance reasonably required to document, perfect, and maintain Company’s rights in and to such materials. Partner may not remove Company’s copyright or other proprietary notices from any part of OpenText™ Threat Intelligence. Company reserves all rights to OpenText™ Threat Intelligence not expressly granted to Partner in the Agreement. Further, Partner acknowledges and consents that OpenText™ Threat Intelligence may be designed to provide certain feedback that may include the IP address of the End User device and/or Integrated Product that accesses OpenText™ Threat Intelligence, End User Credentials, Partner Credentials, and the time, type, and content of any request sent to OpenText™ Threat Intelligence (collectively, “Automatic Feedback”) to Company regarding Partner’s use of OpenText™ Threat Intelligence. If necessary, Partner shall cause its applicable privacy policy to disclose such collection and use to each applicable End User.
    • 13.2. SDK. Notwithstanding anything to the contrary in Section 13.1 (OpenText™ Threat Intelligence and Feedback) above, to the extent Partner makes any derivative works of the SDK, Partner hereby grants Company and its Affiliates a non-exclusive, perpetual, irrevocable, transferable, sublicensable, royalty-free license under all of Partner’s Intellectual Property Rights to use, distribute, copy, create derivative works of, publicly perform, publicly display, make, have made, sell, offer for sale, import, and otherwise fully exploit such modifications and derivative works without restriction. For the avoidance of doubt, if Company makes any modifications to, or derivative works of, the SDK, whether or not upon the suggestion or request of Partner, Company and its licensors will own and retain all right, title, and interest in and to any such modifications or derivative works, including all Intellectual Property Rights therein.
    • 13.3. Classifications and Partner Products. Partner acknowledges that Classifications are protected by U.S. copyright laws and also comprise and contain the trade secrets of Company. As between the Parties, Partner and its licensors own and will retain all right, title, and interest in and to Partner Products, and all modifications and derivative works to Partner Products, including all Intellectual Property Rights therein.
14. Support. Subject to the last sentence of this Section 14, and payment of Fees, Company will provide Partner with support for OpenText™ Threat Intelligence in accordance with the terms of Exhibit A (Backline Support Terms) attached hereto. For the avoidance of doubt, all such support is backline support to Partner only, and Partner is solely responsible for providing all support directly to End Users. Once the SDK is modified and compiled by Partner within an applicable Integrated Product, Partner is solely responsible for all support of each such Integrated Product, including the SDK.
15. Fees and Payment.
    • 15.1. Fees. Partner is responsible for paying Company the Fees without setoff or deduction. Unless otherwise stated in the applicable Order, Company will invoice Partner in advance for the Subscription Term. All Fees are guaranteed and non-refundable.
    • 15.2. Invoices. Unless otherwise set forth in an Order, Partner must make all payments to Company in USD within 30 calendar days of the date of Company’s applicable invoice.
    • 15.3. End User Pricing. Partner will independently determine the pricing at which Partner offers Integrated Product to Channel Partners and End Users. Partner will be solely responsible for collecting all fees from Channel Partners and End Users. Partner is not relieved of Partner’s obligation to pay Fees owed to Company due to any Channel Partner’s or End User’s non-payment.
    • 15.4. Taxes. The Fees exclude any taxes. Partner will be responsible for payment of all taxes applicable to OpenText™ Threat Intelligence, including all federal, state, and local sales, use, excise, and value-added taxes, with the exception of those taxes based solely on Company’s net income. Partner will make all payments of Fees to Company free and clear of, and without reduction for, any withholding taxes. Partner must reimburse Company for any interest or penalties assessed on Company as a result of Partner’s failure to pay taxes in accordance with this Section 15.4.
    • 15.5. Interest. All late payments will bear interest at the rate of 1.5% per month (or the maximum amount allowed by law, if less), calculated daily and compounded monthly. Partner must reimburse Company for all of its reasonable fees and costs actually incurred in collecting any late payments, including attorneys’ fees and court costs.
16. Term. The Agreement is effective on the Effective Date and continues for so long as any Subscription Term remains in effect.
17. Termination.
    • 17.1. Termination for Cause. Company may, at its option, terminate the Agreement and/or Partner’s access to OpenText™ Threat Intelligence immediately upon written notice to Partner in the event: (a) Partner materially breaches any of Partner’s obligations in Sections 4 (Restrictions on Use), 10.2 (Compliance with Laws), 12 (Confidential Information) or 13 (Ownership; Feedback) of the DSA; (b) Partner develops any products or services that are competitive with OpenText™ Threat Intelligence; (c) Partner materially breaches any other provision of the Agreement not set out in this Section 17.1(a), and does not cure the breach within 30 days after receiving written notice of such breach; (d) Partner becomes insolvent or unable to pay its debts when due; (e) Partner files a petition in bankruptcy, reorganization or similar proceeding, or if filed against Partner, such petition is not removed within 90 days after such filing; (f) Partner discontinues its business; or (g) a receiver is appointed or there is an assignment for the benefit of Partner’s creditors. Partner may terminate the Agreement immediately upon written notice to Company in the event Company materially breaches any provision of the Agreement and fails to cure such breach within 30 days after receiving written notice of such breach.
    • 17.2. Suspension. In addition to all other remedies and rights available to Company at law, in equity, or otherwise, Company may, at any time and in its sole discretion, suspend Partner’s access to all or any part of OpenText™ Threat Intelligence for, including but not limited to, the following reasons: (a) a threat to the security or integrity of OpenText™ Threat Intelligence; (b) Partner has materially breached the Agreement; (c) any amount due hereunder remains unpaid after 10 days after the due date; or (d) if Partner uses OpenText™ Threat Intelligence in any manner (such as automated testing) that will cause a sudden and unplanned spike in usage without an advance notice to Company of such usage. Company shall use commercially reasonable efforts to: (i) provide Partner with prior notice of any suspension; and (ii) resume providing access to OpenText™ Threat Intelligence as soon as reasonably possible after the event giving rise to the suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Partner may incur as a result of a suspension.
    • 17.3. Effect of Termination. If the Agreement is terminated for one of the reasons set forth in Section 17.1 (Termination for Cause), then on the effective date of termination: (a) all rights and licenses granted to Partner will immediately terminate, and Partner must stop using OpenText™ Threat Intelligence and must permanently erase all of Company’s Confidential Information from devices and systems under Partner’s control; provided however that the foregoing obligation to erase, subject to the terms and conditions set forth in the Agreement, shall not apply to: (i) any Classification that has been incorporated into a Partner Product or Integrated Product; (ii) any copies of Confidential Information required to be retained by applicable law, regulation, and/or audit requirements; or (iii) any copies created in the ordinary course of business pursuant to Partner’s standard policies with respect to automated archiving or back-up procedures, so long as such copies cannot be deleted using commercially reasonable efforts; and (b) all Fees and other payments then outstanding will become immediately due and payable.
    • 17.4. Effect of Expiration. If the Agreement expires, then on the effective date of expiration (the “Expiration Date”), Partner’s right to distribute Integrated Product will terminate, provided that Partner may allow End Users for which Company has received prepaid subscription fees to continue to access Classifications, subject to the terms of the applicable End User Agreement, for the remainder of the term associated with such End User’s purchase of the applicable Integrated Product, provided that such term may not exceed one year from the Expiration Date (the “Transitional Term”). On the Expiration Date, all payments then outstanding will become immediately due and payable. On the expiration of the Transitional Term: (a) all rights to Partner under the Agreement, including the right to sublicense to End Users the right to use Integrated Product, will terminate; and (b) Partner must permanently erase all of Company’s Confidential Information from devices and systems under Partner’s control; provided however that the foregoing obligation to erase, subject to the terms and conditions set forth in the Agreement, shall not apply to: (i) any Classification that has been incorporated into a Partner Product or Integrated Product; (ii) any copies of Confidential Information required to be retained by applicable law, regulation, and/or audit requirements; or (iii) any copies created in the ordinary course of business pursuant to Partner’s standard policies with respect to automated archiving or back-up procedures, so long as such copies cannot be deleted using commercially reasonable efforts.
    • 17.5. Survival. Sections 1 (Defined Terms), 4 (Restrictions on Use), 10.3 (Enforcement), 10.4 (Records and Audit), 12 (Confidential Information), 13 (Ownership; Feedback), 15 (Fees and Payment), 17.3 (Effect of Termination), 17.4 (Effect of Expiration), 17.5 (Survival), 18.3 (Disclaimers), 20 (Limitation of Liability), 21 (Open Source Software and Third-Party Software), 22 (Equitable Relief), 23 (Governing Law), 24 (Notice), 25 (Miscellaneous) and any other provisions that by their nature will survive expiration or termination of the Agreement for any reason.
18. Limited Warranty and Disclaimer of Warranties.
    • 18.1. Limited Warranty. Company warrants to Partner that OpenText™ Threat Intelligence will, during the Subscription Term, operate in material conformity with Company’s applicable Documentation. Company does not warrant that the use of OpenText™ Threat Intelligence will be uninterrupted or error-free or protect against unauthorized access, loss, or alteration of data. Company’s sole and exclusive liability (and Partner’s sole and exclusive remedy) for any breach of this warranty will be, in Company’s sole discretion: (a) to use commercially reasonable efforts to provide an error-correction or work-around that corrects the reported non-conformity, or (b) if Company determines such remedy to be impractical within a reasonable period of time, to refund any Fees (as designated in the applicable Order) prepaid by Partner to Company for OpenText™ Threat Intelligence that are allocable to the period during which OpenText™ Threat Intelligence was not in conformity with this warranty. Company will have no obligation with respect to a warranty claim unless notified of such claim in writing within the Subscription Term.
    • 18.2. Exclusions. The above warranty does not apply if a warranty issue arises as a result of: (a) the use of a Partner Product or any third-party hardware or software with OpenText™ Threat Intelligence; (b) modifications made to OpenText™ Threat Intelligence by Partner or any third party; (c) accident, abuse, or improper use of OpenText™ Threat Intelligence; (d) Partner code or other third-party code contained within, or delivered with, any Integrated Product or (e) Partner’s breach of obligations in Sections 3 (Grant of Rights) and 4 (Restrictions on Use).
    • 18.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 18, OPENTEXT™ THREAT INTELLIGENCE IS PROVIDED “AS IS” AND COMPANY AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. COMPANY DOES NOT AND CANNOT WARRANT THAT ANY CLASSIFICATION IS COMPLETE, ACCURATE, OR CURRENT. IN ADDITION, THE COMPONENTS, ALGORITHMS, AND MACHINE LEARNING UNDERLYING AND CONSTITUTING THE BASIS FOR ANY CLASSIFICATION ARE FREQUENTLY CHANGING, AND COMPANY DOES NOT WARRANT THAT ANY CLASSIFICATIONS ARE CORRECT OR COMPLETE. COMPANY DOES NOT WARRANT THAT ACCESS TO OPENTEXT™ THREAT INTELLIGENCE WILL BE CONTINUOUS OR UNINTERRUPTED, MEET PARTNER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OR BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, INFORMATION, MATERIALS, OR OTHER MATTER (INCLUDING ANY SOFTWARE, HARDWARE, FIRMWARE, SYSTEM, OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. ALL OPEN-SOURCE SOFTWARE AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN PARTNER AND THE APPLICABLE THIRD-PARTY COPYRIGHT OWNER(S) OF SUCH OPEN- SOURCE SOFTWARE OR OTHER THIRD-PARTY MATERIALS.
19. Indemnification.
    • 19.1. Company’s Obligation. Provided Partner is not in material breach of the Agreement and is current with payment obligations, Company shall indemnify, hold harmless, and defend each of Partner Indemnitees against any and all losses, liabilities, judgments, damages, and costs (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of any suit, action, proceeding, or claim initiated by an End User or another third party (“Claim”) that relates to an allegation that Partner’s use of OpenText™ Threat Intelligence in accordance with the provisions of the Agreement infringes or misappropriates the Intellectual Property Rights of any third party, but excluding any Claim to the extent it alleges that any Partner Product alone infringes or misappropriates such Intellectual Property Rights.
    • 19.2. Partner’s Obligation. Partner shall indemnify, hold harmless, and defend each of Company Indemnitees against any and all Losses arising out of any Claim that relates to: (a) an allegation alleging that any Integrated Product infringes or misappropriates the Intellectual Property Rights of any third party, but excluding any Claim solely to the extent it alleges that Partner’s use of OpenText™ Threat Intelligence in accordance with the provisions of the Agreement alone infringes or misappropriates such Intellectual Property Rights; (b) Partner’s breach of the Agreement; (c) any warranties, claims, or assurances Partner makes, or its Channel Partners make, to third parties beyond the scope of the Documentation; or (d) any breach of Sections 4 (Restrictions on Use), 5 (End User Requirements) or 10.2 (Compliance with Laws).
    • 19.3. Conditions. Each Party’s obligations in Sections 19.1 (Company’s Obligation) and 19.2 (Partner’s Obligation), respectively, are conditioned on the Party seeking indemnification (the “Indemnified Party”): (a) notifying the other Party (the “Indemnifying Party”) in writing of any such Claim for which it seeks indemnification hereunder promptly after becoming aware of such Claim; (b) giving the Indemnifying Party the right to control the defense of such Claim and any related settlement; provided, however, that (i) the Indemnifying Party may not settle any such Claim against the Indemnified Party without the Indemnified Party's consent, unless such settlement or compromise is solely for monetary damages that are fully payable by the Indemnifying Party, does not involve any admission, finding or determination of wrongdoing or violation of law by the Indemnified Party and provides for a full, unconditional and irrevocable release of the Indemnified Party from all liability in connection with such Claim; and (ii) the Indemnified Party may, at its option and expense, participate in any such defense using counsel of its choice; (c) cooperating and, at the Indemnifying Party's reasonable request and expense, assisting in the defense of such Claim; and (d) receiving regular updates regarding such Claim.
    • 19.4. Mitigation. Upon the occurrence of a Claim for which defense is or may be due under Section 19.1 (Company’s Obligation), or in the event that Company believes that such a Claim is likely, Company may, at its option: (a) appropriately modify OpenText™ Threat Intelligence, or any feature or component of OpenText™ Threat Intelligence, so that it or its applicable features or components become non-infringing, or substitute functionally equivalent subscription services to Partner; (b) obtain a license to the applicable third-party intellectual property rights so that Partner may continue to use OpenText™ Threat Intelligence; or (c) terminate Partner’s subscription to OpenText™ Threat Intelligence on written notice to Partner and refund to Partner that portion of the Fees prepaid hereunder for the infringing portion of OpenText™ Threat Intelligence, pro-rated for the remainder of the Subscription Term set forth on Partner’s most recent Order.
    • 19.5. Limitations and Exclusions. Company has no obligation under Section 19.1 (Company’s Obligation) or otherwise with respect to any Claim if: (a) OpenText™ Threat Intelligence is modified by Partner or any third party, but solely to the extent the alleged infringement is caused by such modification; (b) the infringement arises from OpenText™ Threat Intelligence being combined with a Partner Product or any software, hardware, firmware, data, or technology not provided by Company under the Agreement, but solely to the extent the alleged infringement is caused by such combination; (c) the infringement is caused by any unauthorized use of OpenText™ Threat Intelligence; or (d) the infringement results from any Partner code or other third-party code contained within, or delivered with, any Integrated Product. If an infringement Claim against Company is based on any of the exceptions, Partner will defend such Claim at Partner’s own expense and will pay all damages and costs awarded against Company in connection with such Claim or agreed to in any monetary settlement thereof.
    • 19.6. Sole Remedy. THIS SECTION 19 SETS FORTH PARTNER’S SOLE REMEDY AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS SUBJECT TO DEFENSE OR INDEMNIFICATION OBLIGATIONS. COMPANY HAS NO DEFENSE OR INDEMNIFICATION OBLIGATIONS TO PARTNER EXCEPT AS SET FORTH IN THIS SECTION 19.
20. Limitation of Liability.
    • 20.1. EXCLUSION OF DAMAGES. EXCEPT AS SET FORTH IN SECTION 20.3 (EXCEPTIONS), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE UNDER THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (B) LOSS OF GOODWILL OR REPUTATION; (C) LOSS, INTERRUPTION, OR DELAY OF OPENTEXT™ THREAT INTELLIGENCE; (D) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (E) COST OF REPLACEMENT GOODS OR SERVICES; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    • 20.2. CAP. EXCEPT AS SET FORTH IN SECTION 20.3 (EXCEPTIONS), IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF THE AGREEMENT, WHETHER ARISING UNDER OR RELATING TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL OF THE FEES PAID TO COMPANY UNDER THE AGREEMENT FOR THE APPLICABLE ORDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    • 20.3. EXCEPTIONS. THE LIMITATIONS IN SECTIONS 20.1 (EXCLUSION OF DAMAGES) AND 20.2 (CAP) WILL NOT APPLY TO: (A) ONE OR MORE OF A PARTY’S OBLIGATIONS UNDER SECTION 15 (FEES AND PAYMENT) OR SECTION 19 (INDEMNIFICATION); (B) ONE OR MORE BREACHES OF SECTION 4 (RESTRICTIONS ON USE) OR SECTION 10.2 (COMPLIANCE WITH LAWS); (C) EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (D) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
21. Open Source Software and Third-Party Software. The SDK may contain or be provided with components subject to the terms and conditions of third-party proprietary licenses (“Third-Party Software”) or free/libre and open source software licenses (“Open Source Software”). All Open Source Software that is distributed as part of the SDK is disclosed in the SDK’s source code. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of the Agreement with respect to such Open Source Software itself, including any provisions governing access to source code, modification, or reverse engineering. Partner acknowledges that Partner’s use of each Open Source Software component is subject to the open source license applicable to such component. Company makes no representations or warranties with regard to such Open Source Software and assumes no liability that may arise from the use of Open Source Software. With respect to data licensed by Company regarding geographic information and other data associated with an IP address or URL (“GeoIP Databases”), Partner acknowledges that the limitations and disclaimers set forth in the Agreement apply to such GeoIP Databases and that the licensor of such GeoIP Databases has no liability in connection with the Agreement or Partner’s use of OpenText™ Threat Intelligence.
22. Equitable Relief. Each Party acknowledges that breach by it of one or more of its obligations under Sections 4 (Restrictions on Use) or 12 (Confidential Information) will cause the other Party to suffer immediate and irreparable harm for which money damages would be an inadequate remedy. Therefore, each Party agrees that if it breaches one or more of its obligations under Sections 4 (Restrictions on Use) or 12 (Confidential Information), the other Party will be entitled to equitable relief as well as any additional relief that may be appropriate.
23. Governing Law. Unless otherwise agreed in an Order, the Agreement shall be governed by the laws of the state of Delaware excluding (a) its conflicts or choice of law rules, and (b) the United Nations Convention on Contracts for the International Sale of Goods. The Parties agree that the Uniform Computer Information Transaction Act, or any version thereof, adopted by any state located in the United States, in any form (the “UCITA”), will not apply to the Agreement.
24. Notice. All of a Party’s notices required under the Agreement must be in writing and are considered effective: (a) one business day after a Party sends an email to: (i) the other Party’s email address as listed on the applicable Order; and (ii) with respect to Company, SMBCLegal@opentext.com, each with proof of receipt; or (b) five days after mailing, when sent via certified mail, return receipt requested or postage prepaid to the applicable Party’s address set forth on an Order, and with respect to Company, with a copy to 385 Interlocken Crescent, Suite 800, Broomfield, Colorado 80021 (Attention: Legal Department), if such address is not set forth on such Order. By providing Partner’s email address on an Order, Partner agrees to receive all required notices from Company electronically to that email address. Either Party may update its email address or, with respect to Company, street address, for notices by providing the other Party with notice of any such change as set forth herein. It is Partner’s responsibility to change or update Partner’s email address in accordance with the notice provisions of this Section 24.
25. Miscellaneous.
    • 25.1. High Risk Activity. Partner acknowledges and agrees that OpenText™ Threat Intelligence is not intended for use with any high risk or strict liability activity, including air or space travel, technical building or structural design, power plant design or operation, or life support or emergency medical operations or uses, and Company makes no warranty regarding, and will have no liability arising from, any use of OpenText™ Threat Intelligence in connection with any high risk or strict liability activity.
    • 25.2. Force Majeure. Neither Party will be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay Fees) if the delay or failure is due to events which are beyond the reasonable control of such Party, including any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
    • 25.3. Relationship. The Parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
    • 25.4. English Language. Partner acknowledges that any translation of the English language version of the Agreement provided by Company to Partner is provided for Partner’s convenience only, and that the English language version of the Agreement will take precedence over the translation in the event of any contradiction arising from translation.
    • 25.5. Interpretation. The words “include,” “includes,” and “including” means “include,” “includes,” or “including,” in each case, “without limitation.”
    • 25.6. Severability. If any provision of the Agreement is held unenforceable, that provision will be enforced to the extent permissible by law and the remaining provisions will remain in full force.
    • 25.7. Assignment; Change of Control. There are no third-party beneficiaries to the Agreement. Partner may not assign or otherwise transfer any of its rights or obligations under the Agreement, in whole or in part, without the prior written consent of Company. Any assignment in breach of this Section 25.7 is null and void. Except to the extent identified in this Section 25.7, the Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the Parties.
    • 25.8. Waiver. No provision of the Agreement will be deemed waived unless the wavier is in writing and signed by Company.
    • 25.9. Modifications. The Agreement may only be modified or amended pursuant to a writing signed by Company.
    • 25.10. Entire Agreement. The Agreement sets forth the entire, complete, and final understanding and agreement between Company and Partner with regard to the subject matter of the Agreement and supersedes any prior oral or written agreements or understandings between Partner and Company with regard to such subject matter.

Exhibit A Backline Support Terms