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Reseller Information

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Reseller Agreement

MARATHON PARTNER TERMS AND CONDITIONS FOR RESELLERS ******Terms and Conditions****** IMPORTANT – PLEASE READ CAREFULLY THIS IS A LEGAL AGREEMENT (“AGREEMENT”). PLEASE READ IT CAREFULLY AS IT GOVERNS YOUR DISTRIBUTION AND USE OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION (“DOCUMENTATION”) (COLLECTIVELY, THE “SOFTWARE”). BY CLICKING ON THE “ACCEPT” OR “REGISTER” BUTTON FOLLOWING THIS AGREEMENT, BY SIGNING THE APPLICABLE RESELLER ENROLLMENT FORM, OR BY USING OR DISTRIBUTING THE PRODUCTS, YOU CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT ON BEHALF OF YOURSELF PERSONALLY OR THE ENTITY BY WHICH YOU ARE EMPLOYED AND/OR REPRESENT (“YOU” OR “RESELLER”). YOU WARRANT THAT YOU HAVE ADEQUATE LEGAL POWER AND CAPACITY TO ENTER INTO THIS AGREEMENT AND ARE AUTHORIZED TO BIND THE ENTITY BY WHICH YOU ARE EMPLOYED OR WHICH YOU REPRESENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OR DO NOT UNDERSTAND THESE TERMS YOU MUST CLICK THE “DO NOT REGISTER” BUTTON, MUST NOT SIGN THE RESELLER ENROLLMENT FORM, AND YOU MAY NOT USE OR DISTRIBUTE THE PRODUCTS. Upon acceptance of Reseller by Marathon or its Approved Distributor (as defined below), Reseller will be registered as a Marathon Partner (“Registered”) and may distribute the Licensed Software, Services (including the Technical Support Services), and Bundled Packages (packaged offerings including Licensed Software bundled with Technical Support Services) (collectively the “Products”) set forth in the most current Marathon Price List, subject to Reseller’s agreement with its distributor and this Agreement. 1. LICENSE GRANT. DISTRIBUTION LICENSE: Marathon Technologies Corporation (“Marathon”) grants to Reseller a non–exclusive, non-transferable license to distribute Products, to end users in the territory (“Territory”) and, if applicable, through Marathon’s approved distributors (“Approved Distributors”), all as identified on the approved Information Sheet or Enrollment Form, or as otherwise approved by Marathon, pursuant to the end user license and service agreements applicable to or included with such Products as described below. “Products” as used herein mean the Licensed Software, Services and Bundled Packages of Marathon and/or its licensors that Marathon has chosen to make available hereunder in its sole discretion. In no event is Reseller authorized to distribute Products for resale. The foregoing license is subject to the following: Prior to or during the installation of any Product, Reseller must ensure that all of Reseller’s end-users agree to be bound by the terms and conditions of the Marathon end-user license agreement applicable to or included with such Products (the “EULA”, the current version of which is attached or provided in conjunction with these terms and conditions), together with any third party legal terms and conditions that are provided in a similar manner. This requirement includes but is not limited to situations when Reseller or an authorized agent of Reseller is installing the Product on behalf of the end-user. Reseller may obtain a copy of Marathon’s then-current EULA at any time upon written request. DEMONSTRATION, TRAINING, SUPPORT, AND EVALUATION LICENSE(S): As a Registered Reseller you will be entitled to the following licenses. Please note that these licenses are for use only for the purposes listed below: For Reseller: • Annual Demonstration & Training License (s) to be used by Reseller only for Resellers internal training and Resellers own demonstration centers -- Not For Resale (NFR) Key(s) • Support License, if providing First-Level Support (includes use for archival and backup purposes) -- Not For Resale (NFR) Key(s) • Thirty day Evaluation License(s) for Resellers to use as a sales tool, and to supply to Reseller’s potential End-users. -- Evaluation Key(s) 2. TECHNICAL SUPPORT SERVICES. Marathon shall make available certain Technical Support Services (as defined below) to end users and Reseller, as applicable, provided the current, corresponding technical support fees are paid to Marathon. Reseller must identify to Marathon, end users’ names and all contacts who are authorized to receive telephone support from Marathon. A description of Marathon’s current technical support services program (“Technical Support Services”) can be found at: http://www.marathontechnologies.com/documents/marathon_tech_support_service_program_081202.pdf and/or provided in conjunction with these terms and conditions, and is applicable to all parties who receive Technical Support Services directly from Marathon. At its sole discretion, Marathon reserves the right to change, modify, or otherwise alter any and all services offered under its Technical Support Services including the right to no longer provide such services. Marathon’s obligations under any existing contracted terms for Technical Support Services would remain in effect until the end of such terms and any changes in Technical Support Services would apply only to new distributions of Products, and to any renewal of Technical Support Services after the effective date of the change. Reseller has the option of providing First Level Support (as described below) to end users. Should Reseller wish to provide First Level Support, each Reseller support contact must become certified and complete Marathon’s technical support training, at Reseller’s expense, for all Products on which they will be providing technical support (each, upon successful completion of training, a “Certified Technical Contact”). Reseller may change its Certified Technical Contacts (provided that any such replacement has been so trained and certified) by notifying Marathon with the updated contact information, subject to verification of such replacement’s certification by Marathon, whereupon such changes will be effective (usually 24 hours after notification to Marathon). Reseller must provide any First Level Support in accordance with the following: • Receive all first calls from authorized end users – for initial contact, resolve issues Reseller is able to handle without assistance from Marathon. If assistance with troubleshooting and/or resolution is required, Certified Technical Contacts can place calls to Marathon in the background, while continuing to work directly with their customers. • Escalate unusual circumstances. • Download and distribute software updates to customers -- per K#, and as provided for by first year support and any renewals purchased over time. • Maintain an up-to-date lab environment with Marathon products where problem determination activities can be performed. • Provide monthly updates to Marathon management outlining Priority 1 call status and other relevant data. • Aggressively pursue all annual Technical Service renewals from Reseller’s end users. 3. TRAINING. Resellers are required to obtain training and certification on all Licensed Software and/or Bundled Packages per the then-current Marathon Partner Program certification requirements, the categories of which are: Certifications a) Sales Training b) Presales Technical Training c) Certified Technical Support Training. 4. TRADEMARKS. During the term of this Agreement, Reseller shall have the right to identify itself as a “Marathon Partner Program Member,” and may refer to Products using the Marathon trademarks for such Products in compliance with any applicable Marathon Trademark Guidelines, a copy of which shall be provided upon request and which are incorporated herein by reference. Reseller shall not register or apply for registration of any trademark, service mark, business name, company name or trade name which is identical or similar in whole or in part to any mark or name belonging to Marathon. Reseller agrees that it will do all things necessary, including without limitation executing any documentation, to affect the transfer of any such trademark, service mark, business name, company name or trade name to Marathon. Except as expressly granted herein, no license regarding the use of Marathon’s copyrights, patents, marks or names is granted or will be implied. 5. CONFIDENTIALITY. Each party expressly undertakes to retain in confidence the terms and conditions of this Agreement and all information transmitted to the other that the disclosing party has identified in writing as confidential. Either party may disclose confidential information as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party prior to its disclosing to the receiving party; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; or (iii) is independently developed by the receiving party. Each party’s obligation under this Section shall survive the expiration or earlier termination of this Agreement and shall extend to such time as the information protected hereby falls into the public domain through no fault of the receiving party or earlier if agreed to in writing by the disclosing party. Reseller understands and acknowledges that the underlying source code, concepts and ideas of the Products and corresponding Documentation are the confidential information of Marathon. 6. TERM AND TERMINATION. This Agreement shall take effect on the date Reseller clicks the “ACCEPT” button following this Agreement, or signs the applicable Marathon Enrollment Form, (“Effective Date”), shall continue for a period of one (1) year from the Effective Date, and shall automatically renew on each one-year anniversary of the Effective Date for successive one-year terms, unless terminated earlier as provided herein. Either party shall have the right to terminate this Agreement at any time, without cause and without the intervention of the courts, on the giving of thirty (30) days’ prior written notice. Marathon may terminate this Agreement at any time if Reseller does not comply with the Marathon Partner Program requirements or is in breach of this Agreement. Both parties agree that the opportunities presented by this Agreement constitute adequate consideration for such termination rights. Neither party shall be responsible to the other for any costs or damages resulting from the termination of this Agreement. Upon expiration or termination of this Agreement, all rights and licenses granted by this Agreement shall revert to Marathon and Reseller shall immediately cease use of all licenses, and shall cease to represent itself as Marathon-certified, a Marathon Reseller or a Marathon Partner Program Member. 7. NEW PRODUCTS AND SERVICES. Notwithstanding any other provisions of this Agreement, Marathon may elect at any time during the term of this Agreement to announce new products or services to which the terms and conditions of this Agreement may or may not apply. Marathon may likewise elect at any time to terminate availability of Products hereunder. 8. WARRANTIES/LIMITED WARRANTIES. Marathon warrants Products on the terms set out in the end user license agreement accompanying each such Product. THESE LIMITED WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND AGAINST INFRINGEMENT, AND OF ALL OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON MARATHON’S PART EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW. 9. IP INDEMNIFICATION. Marathon shall defend, indemnify and hold Reseller harmless from and against, and shall pay any damages and reasonable, documented costs and expenses (including reasonable attorney's fees and costs) incurred by Reseller with respect to, any claims, actions or demands brought by a third party against Reseller (each, a “Claim”) alleging the infringement of any patent, copyright, trademark, trade secret or other intellectual property right of such third party by reason of the manufacture, licensing, marketing, or use of any Product (excluding any Third Party Products as defined in the EULA). Marathon’s obligations under this Section 9 are contingent upon the following: that Reseller notify Marathon in writing of such Claims promptly after Reseller receives notice thereof, Marathon have control over the defense and settlement of such Claims, Reseller provide such assistance in the defense and settlement of the Claims as Marathon may reasonably request, and Reseller comply with any settlement or court order made in connection with such Claims (including but not limited to the future use of any infringing Product). Upon threat of a Claim, Marathon may, at its sole option and expense, (i) procure the right to continue using the Product, (ii) replace the infringing Product with a non-infringing product of similar performance, (iii) modify the Product to make it non-infringing, or (iv) require Reseller to stop use and/or distribution of the Product if Marathon reasonably believes that such use or distribution may constitute infringement. Further, Marathon’s obligations under this Section 9 will not apply to any infringement to the extent arising out of any use or combination of the Product with any other products, goods, services or other items furnished by Reseller or anyone other than Marathon, to any modification or change of the Product not made or authorized by Marathon, or any use or distribution of the Product after Marathon notifies Reseller that such actions may constitute infringement. The provisions of this Section 9 state the entire liability and obligations of Marathon and the exclusive remedy of Reseller with respect to any indemnification, any implied or express warranty of noninfringement, and any alleged or actual intellectual property infringement. 10. LIMITATION OF LIABILITY. Subject to applicable law, neither Marathon nor anyone else who has been involved in the creation, production, or delivery of the Products to Reseller (each, a “Supplier”) shall be liable for any indirect, consequential or incidental damages to Reseller or to any other party (including without limitation damages for loss of business profits, business interruption, loss of business information, and the like) arising out of the use of or inability to use the Products, or provision of, or failure to provide, support, even if Marathon or such Supplier has been advised of the possibility of such damages. Because some jurisdictions do not allow the exclusion or limitation of consequential or other damages, the above limitation may not apply. In any event, except as otherwise provided by law, the liability of Marathon and its Suppliers to Reseller and to any other party, whether for negligence, breach of contract, breach of warranty, or otherwise, shall, in the aggregate, not exceed the amount paid by Reseller hereunder for the Products for the twelve (12) month period immediately preceding the date of any such claim. Further, as stated in Section 6 above, neither party shall be responsible to the other for any costs or damages resulting from the termination of this Agreement. 11. TERRITORY. Reseller’s “Territory” means the territory approved by Marathon for Reseller as defined in Section 1 above. Reseller’s Territory is non-exclusive and this Agreement does not prohibit, impair or affect the right to Marathon to market and sell Products directly in the Territory or indirectly through authorized distributors or other Marathon Partners. Reseller shall not, and shall not authorize others to, export, re-export, or transship, directly or indirectly, any Products or any technical data disclosed or provided under this Agreement, or the direct product of such technical data, to any country as to which the U.S. Government has placed an embargo against the shipment of products which is in effect during the term of this Agreement or in violation of any applicable U.S. export regulation. 12. GENERAL. 12.1. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, employer-employee, franchise or agency relationship between Marathon and Reseller, notwithstanding the use of the term “Partner” or “Marathon Partner Program” in this Agreement. Reseller agrees that it shall inform its customers that Reseller is an independent business from Marathon, and shall not hold itself out as an agent of Marathon, or attempt to bind Marathon to any third-party agreement. 12.2. Reseller shall not remove any product identification, license agreements, copyright notices or other notices or proprietary restrictions from the Products. Reseller may not unbundle or uncombine any Products ordered with multiple components or ordered as a package of Products. Reseller may not modify, reverse engineer, decompile, disassemble, translate or localize any Product licensed by Marathon. Reseller shall inform its customers in its marketing materials and through its sales process that use of Products and services is subject to the terms of the customers’ license and service agreements with Marathon. 12.3. The laws of the Commonwealth of Massachusetts, the United States of America shall govern this Agreement, without giving effect to principles governing conflicts of law. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, the application of which are expressly excluded. Reseller agrees to submit to the exclusive jurisdiction of the United States District Court for the District of Massachusetts, sitting in Boston, or if such Court does not take jurisdiction, to the Superior Court of The Commonwealth of Massachusetts, sitting in Suffolk County, for any actions, suits or proceedings arising out of or relating to this Agreement, waives the right to a jury trial with respect to any action or claim arising out of or relating to this Agreement and waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement in such courts. Either party may apply to any court of competent jurisdiction for injunctive relief without waiver or breach of this provision. The original of this Agreement has been written in English. The parties hereto waive any status, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English. 12.4. Reseller shall defend, indemnify, and hold harmless Marathon from and against all liabilities, claims, costs, fines, and damages of any type (including attorney’s fees) arising out of or in any way related to Reseller’s delivery of Reseller’s products, services and/or support to its customers (this does not extend to Reseller’s delivery of Marathon products, services and/or support to its customers), and to any representations or warranties made by Reseller to its customers about the Products that differ from those set forth in the applicable end user license or services agreement. 12.5. If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions. No waiver of any breach of any provisions of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of representative of the waving party. Except for Marathon Partner Program benefits and Trademark Guidelines, no term or provision of this Agreement may be changed, waived, discharged or terminated except by a writing signed by duly authorized representatives of the parties hereof. The terms of any other documents or electronic communications exchanged (including the terms set forth on any purchase order) shall be of no force or effect unless incorporated herein as a modification or addition to the terms of this Agreement. Notwithstanding the foregoing, the terms of any Marathon distributor or reseller agreement executed by both Reseller and Marathon covering the Products shall supersede the terms of this Agreement. The making and delivery of this Agreement have been induced by no representations, statements, warranties or agreements other than those herein expressed. This Agreement and any rights or obligations hereunder, shall not be assigned or sublicensed by Reseller, without prior written consent from Marathon. 12.6. The information Marathon requires from Reseller under this Agreement relate to commercial company entity information and usage only, such as for order processing and the provision of technical support services. Reseller shall limit the information submitted and transmitted to Marathon to commercial company information as provided herein. The parties acknowledge and agree that Marathon, its subsidiaries and affiliates may transfer, process, disclose and store Customer Data (as defined below) provided by Reseller to Marathon pursuant to this Agreement wherever Marathon does business globally including in the United States, in connection with Marathon’s processing or performance of Reseller’s orders on behalf of such end user for Marathon’s goods or services pursuant to this agreement; Reseller hereby warrants and undertakes to Marathon that it shall procure all requisite consents from its end users and provide all requisite information to an end user in respect of whom Customer Data is or may be processed, transferred or stored by Marathon and otherwise take all requisite actions to procure Reseller’s full compliance with all applicable data protection legislation in respect of the processing of such Customer Data. To the extent that Reseller is made aware that any end user objects to the proposed use or transfer of its Customer Data, Reseller shall promptly notify Marathon and provide Marathon with such assistance as it may reasonably require to give effect to such end user’s request. “Customer Data” means any personal data as defined in EU Directive 95/46/EC relating to an end user (“Customer”) or its employees, consultants and/or contractors obtained by Marathon in the course of or pursuant to this Agreement. ATTACHMENT END-USER SOFTWARE LICENSE AGREEMENT (EULA) IMPORTANT – PLEASE READ CAREFULLY THIS IS A SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). PLEASE READ IT CAREFULLY AS IT GOVERNS YOUR USE OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION (“DOCUMENTATION”) (COLLECTIVELY, THE “SOFTWARE”). BY CLICKING ON THE “ACCEPT” BUTTON, USING THE SOFTWARE, OR SIGNING A MARATHON ENROLLMENT FORM, YOU CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT ON BEHALF OF YOURSELF PERSONALLY OR THE ENTITY BY WHICH YOU ARE EMPLOYED AND/OR REPRESENT (“YOU”). YOU WARRANT THAT YOU HAVE ADEQUATE LEGAL POWER AND CAPACITY TO ENTER INTO THIS AGREEMENT AND ARE AUTHORIZED TO BIND THE ENTITY BY WHICH YOU ARE EMPLOYED OR WHICH YOU REPRESENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OR DO NOT UNDERSTAND THESE TERMS, YOU MUST CLICK THE “DO NOT ACCEPT” BUTTON, YOU MUST NOT SIGN THE PRECEDING MARATHON ENROLLMENT FORM, AND YOU MUST PROMPTLY RETURN THE SOFTWARE WITHOUT USING OR INSTALLING THE SOFTWARE (TOGETHER WITH ALL DOCUMENTATION) FOR A FULL REFUND. REFUNDS SHALL BE AVAILABLE TO YOU FOR A PERIOD OF SEVEN BUSINESS DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE (THE DATE THE SOFTWARE IS MADE AVAILABLE FOR DOWNLOADING OR THE DATE ANY SOFTWARE ON TANGIBLE MEDIA IS SHIPPED). 1. LICENSE. Subject to your payment of the applicable License Fees, Marathon grants to you, solely for your own internal business purposes, a non-exclusive, non-sublicensable license to use the Software, in object code form, in the territory as authorized by Marathon, subject to any product-specific use limitations as may be listed in the Marathon product price list, order form, or Documentation. If you are current in your payment of the License Fees, you may be entitled to the Limited Warranty set forth in Section 6 below. This Agreement will also govern any updates that may be provided to you that replace and/or supplement the original Software, unless such updates are accompanied by a separate agreement, in which case the terms of that agreement shall govern. 2. COPYRIGHT, TRADEMARK AND OWNERSHIP. The Software is owned by Marathon and its licensors and is protected by United States and Canadian copyright laws and international treaty provisions. You acknowledge and agree that except for your limited right to use the Software as granted in Section 1 above, Marathon and its licensors have and shall retain the entire right, title and interest in and to all intellectual property rights arising from or relating to the Software and all copies thereof, partial or complete, and whether or not merged into other materials. You shall not use the trademarks, service marks, logos, brand source distinctions and trade names of Marathon without Marathon’s prior written consent. 3. COPY AND OTHER RESTRICTIONS. Except to the extent permitted by applicable law, you shall not copy the Software except to make one copy of the Software exclusively for inactive backup or archival purposes. You may copy the Documentation for your own internal business purposes. You shall not modify, reverse engineer, de-compile or disassemble the Software, or create derivative works based upon the Software, including for reasons or error correction or interoperability. During the warranty period, at your request or as may be required by applicable law, Marathon will make commercially reasonable efforts to make available to you certain interface specifications to provide interoperability with the Software. You shall not use the Software in a timesharing arrangement nor encumber, rent, lease, transmit, distribute or transfer the Software (including without limitation any licenses or rights therein) to any third party for any purpose without Marathon's prior written consent. Any use or transfer of Software is subject to your compliance with all applicable export laws and restrictions, including without limitation those laws of the United States. You shall not remove any product identification, copyright notices or other notices or proprietary restrictions from the Software. Results of benchmark or other performance tests run on the Software and the object and source code of the Software shall not be disclosed by you to any third party without Marathon's prior written consent. Any license key number or “K Number” provided to you for the download or other access to the Software is for your use only, and may not be disclosed to any other party without Marathon’s written consent. Upon reasonable notice to you, Marathon shall have the right to inspect your use of the Software and audit your relevant records to verify your compliance with the terms of this Agreement. The Software contains valuable trade secrets and proprietary know-how that belongs to Marathon and its licensors and it is made available to you in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES OTHER THAN IN STRICT ACCORDANCE WITH THIS AGREEMENT IS PROHIBITED AND MAY BE ACTIONABLE AS A VIOLATION OF MARATHON’S OR ITS LICENSORS’ PROPRIETARY RIGHTS. 4. U.S. GOVERNMENT RESTRICTED RIGHTS. If you are a United States Government entity, the Software covered by this Agreement is “commercial computer software” as defined by current Federal Acquisition Regulation (“FAR”), Department of Defense Federal Acquisition Regulation Supplement (“DFAR”), or other applicable Agency regulation provisions. For “commercial computer software,” the license grant in Section 1 shall apply. If the Software is other than “commercial computer software,” then you shall receive no greater than Restricted Rights, as defined in the currently applicable version of the FAR, DFAR, or other applicable Agency regulation. In the event that alternative regulatory rights allocation provisions are available to the parties to this Agreement, the provision which provides you with the narrowest rights allocation permitted by law and regulation shall apply. The manufacturer of the Software (excluding Third Party Products) is Marathon Technologies Corporation, 295 Foster Street, Littleton, MA, 01460. 5. TERMINATION. Marathon shall have the right to terminate this Agreement and your right to use the Software and Documentation immediately upon your breach of this Agreement. Upon termination, the license in Section 1 shall terminate and you shall cease using the Software and Documentation and shall return to Marathon all copies of the Software and Documentation, however, all other provisions shall survive and continue in effect. Termination of this Agreement shall not limit Marathon from pursuing any other remedies available to it, including, but not limited to, injunctive relief, nor shall termination relieve you of your obligations to pay Marathon all License Fees and other sums accrued prior to the effective date of termination. 6. EXPRESS LIMITED WARRANTY. Marathon warrants that the Software (excluding Third Party Products), when properly installed and used, shall substantially conform in all material respects to the published specifications set forth in the Documentation for a period of ninety (90) days from the date of delivery of the Software (“Express Limited Warranty”). Your sole remedy in the event of non-conformity of the Software shall be, at Marathon's option, repair or replacement of the defective Software or a refund of the License Fees paid for the affected Software if you inform Marathon of the non-conformity within the warranty period. Marathon shall not be responsible for any defects in the Software resulting from modifications to, improper use of, or causes external to the Software, including, but not limited to, use of the Software in conjunction with another vendor’s product including, but not limited to, Third Party Products. THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE CONSTITUTES THE ONLY WARRANTY PROVIDED TO YOU BY MARATHON WITH RESPECT TO THE SOFTWARE OR ANY THIRD PARTY PRODUCTS. MARATHON MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. No Marathon agent, Supplier (as defined below) or other party is authorized to modify this Express Limited Warranty or to make any additional warranties without Marathon’s prior express written consent. 7. TECHNICAL SUPPORT SERVICES. Subject to your compliance with this Agreement and the payment of applicable service fees, additional technical support and subscription update coverage may be obtained by you for the Software in accordance with Marathon's then-current technical support plans and procedures, a description of which you may access on Marathon’s website at: http://www.marathontechnologies.com/documents/marathon_tech_support_service_program_081202.pdf 8. LIMITATION OF LIABILITY AND EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL MARATHON AND ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE TO YOU (COLLECTIVELY, THE “SUPPLIERS”) HAVE TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, ANY SOFTWARE LICENSE OR SERVICE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) IN EXCESS OF THE AMOUNT OF DAMAGES ACTUALLY INCURRED BY YOU UP TO THE AMOUNT OF THE TOTAL FEES PAID BY YOU FOR LICENSES DURING THE MOST RECENT 12 MONTH PERIOD. UNDER NO CIRCUMSTANCES SHALL MARATHON OR THE SUPPLIERS BE LIABLE TO YOU, END USERS OR ANY OTHER ENTITY OR THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR COVER DAMAGES (INCLUDING LOST PROFITS, LOST SAVINGS AND STATUTORY DAMAGES) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF MARATHON OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing limitations allocate the risks between Marathon and you and shall apply notwithstanding any failure of essential purpose of any limited remedy. 9. INDEMNIFICATION. You shall indemnify and hold Marathon and the Suppliers harmless from and against any and all claims, losses, costs, damages and expenses (including reasonable legal expenses), resulting from or arising out of: (a) your breach of this Agreement; (b) your unauthorized use of the Software; (c) your activities after Marathon has notified you that such activities may result in the infringement of the intellectual property rights of any third party; (d) your use of the Software other than as set forth in the Documentation or other written instructions supplied by Marathon with respect to the use, operation, or combination of the Software on or with third party programs, Third Party Products, data, equipment, or documentation; or (e) any claim that the Software or the use thereof infringes upon, misappropriates or violates any patents, copyrights, trade secret rights or other proprietary rights of a third party if such claim results from or relates to: (i) a modification of the Software which modification is not authorized in writing by Marathon, (ii) in whole or in part results from or relates to the combination of the Software with software, hardware or equipment not provided by Marathon if the Software alone would not be the subject of such claim; or (iii) your use of the Software other than as set forth in the Documentation or other written instructions supplied by Marathon. 10. GOVERNING LAW; COMPLETE AGREEMENT. THIS AGREEMENT CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SOFTWARE AND IS GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, UNITED STATES OF AMERICA, WITHOUT GIVING EFFECT TO PRINCIPLES GOVERNING CONFLICTS OF LAW. IT SHALL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS OR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, THE APPLICATION OF WHICH IS EXPRESSLY EXCLUDED. You agree to submit to the exclusive jurisdiction of the United States District Court for the District of Massachusetts, sitting in Boston, or if such Court does not take jurisdiction, to the Superior Court of The Commonwealth of Massachusetts, sitting in Suffolk County, for any actions, suits or proceedings arising out of or relating to this Agreement, waive the right to a jury trial with respect to any action or claim arising out of or relating to this Agreement and waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement in such courts. The original of this Agreement has been written in English. The parties hereto waive any status, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English. Except as explicitly stated in this Agreement, any fees paid for the Software and/or related services are nonrefundable. The terms of this Agreement supersede the terms of any purchase order, order letter or other document issued or signed by you to authorize your license of the Software. Any preprinted terms on or attached to any purchase order or similar document produced by you shall be null and void. Notwithstanding the foregoing, the terms of any end-user license agreement executed by both you and Marathon covering this Software shall supersede the terms of this Agreement. If any provision of this Agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. You shall not assign this Agreement nor any license granted hereunder without the prior written consent of Marathon. 11. CUSTOMER DATA. The information Marathon requires from you (“Customer”) under this Agreement relate to commercial company entity information and usage only, such as for order processing and the provision of technical support services. Customer shall limit the information submitted and transmitted to Marathon to commercial company information as provided herein. The parties acknowledge and agree that Marathon, its subsidiaries and affiliates may transfer, process, disclose and store Customer Data (as defined below) provided by Customer to Marathon pursuant to this Agreement wherever Marathon does business globally and in the United States, including without limitation in connection with Marathon’s processing or performance of Customer’s orders for Marathon’s goods or services pursuant to this Agreement.. Customer hereby warrants and undertakes to Marathon that it shall procure all requisite consents from and provide all requisite information to any party in respect of whom Customer Data is or may be processed, transferred or stored by Marathon and otherwise take all requisite actions to procure Customer’s full compliance with all applicable data protection legislation in respect of the processing of such Customer Data. To the extent that Customer is made aware that any affected party objects to the proposed use or transfer of its Customer Data, Customer shall promptly notify Marathon and provide Marathon with such assistance as it may reasonably require to give effect to such party’s request. “Customer Data” means any personal data as defined in EU Directive 95/46/EC relating to Customer or its employees, consultants, contractors, and/or customers as obtained by Marathon in the course of or pursuant to this Agreement 12. THIRD PARTY PRODUCTS. Marathon may provide third party products to you including, but not limited to, Open Source Software (collectively, “Third Party Products”). Notwithstanding any language to the contrary in this Agreement, all such Third Party Products are provided to you "AS IS" and without any warranty of any kind. Third Party Products provided by Marathon are specified in the Documentation and are licensed to you under the terms of the license agreements referenced in the Documentation and not under the terms of this Agreement. For purposes of this Agreement, “Open Source Software” means any software, programming, or other intellectual property that is subject to: (i) the GNU General Public License, GNU Lesser General Public License or any similar license, including, but not limited to, those licenses listed at www.opensource.org or (ii) any agreement with terms requiring any intellectual property owned or licensed by Marathon to be: (a) disclosed or distributed in source code or object code form; (b) licensed for the purpose of making derivative works; or (c) redistributable. ORDER INFORMATION SHEET - Complete Information on all fields is REQUIRED to place an ORDER for MARATHON Products through an Approved Distributor. Reseller Information -------------------- Reseller Company Name: Reseller’s Street Address: Reseller’s City Address: Reseller’s State Address: Reseller’s Country: Reseller’s Zip Code: Reseller’s License Contact Name: Reseller’s License Contact Email Address: Reseller’s License Contact Telephone: Who is Providing Level 1 Support to the Customer - Please circle one: Marathon or Reseller Is Reseller exempt from Sales Tax - please circle Yes or No: YES or NO ***If YES, please provide your Tax Exempt Certificate End User Customer Information ----------------------------- Customer’s Company Name Customer Street Address: Customer’s City Address: Customer’s State Address: Customer’s Country / Territory Customer’s Zip Code: Customer’s Contact Name: Customer’s Contact Email: Customer’s Contact Telephone: Deployment Information ---------------------- Software Application Name Being Protect: Vendor Name: Description: Server Hardware Make / Model: Operating System / Rev Level: *****END***** MARATHON CONFIDENTIAL

NOTICE - By selecting SUBMIT below, Reseller thereby agrees to be bound by the terms and conditions as set forth by the Distributor, and effective only upon Reseller's receipt of written notice confirming Reseller has been officially Registered.

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