Terms Applicable to MSP
1. Applicability. If You are using the Services as an MSP, the provisions of this Exhibit 1 apply to You. To the extent of any conflict between the provisions of this Exhibit 1 and the Terms, the provisions in this Exhibit 1 shall prevail. You are referred to as “MSP” under this Exhibit 1.
2. Defined Terms. All defined terms in this Exhibit 1 have the meanings given to them in the Terms, or in the section in which such terms are first defined.
3. Grant of Rights. For so long as MSP complies with the terms of the Agreement, during the Subscription Term, OT hereby grants to MSP a limited, revocable, non-exclusive, non-transferrable, non-sublicensable, non-assignable right to: (a) use and resell the Services solely as part of the managed services it provides to Beneficiaries for such Beneficiaries’ internal business use, (b) market and promote the Services, and (c) access and use the Service Documentation; in each case, solely in accordance with this Agreement and this Exhibit 1. For the avoidance of doubt, MSP may not resell the Services to third parties for further resale or redistribution.
4. Conditions on Use. In addition to the applicable conditions set forth in the terms of the Agreement, as a condition to MSP’s use of the Services, MSP must not: (a) knowingly permit any Beneficiaries to take any action or to refrain from taking any action that would result in a breach of any of the conditions of the Agreement; or (b) use the Services for the provision of any services, other than the managed services, for the benefit of any third party. Further, prior to any use of the Services by MSP or its Beneficiaries, MSP shall enter into terms with the Beneficiary that are substantially similar to the Terms, including a data processing agreement and/or business associate agreement to the extent applicable so as to enable OT and its sub-processors (as exist from time to time) to process personal data, and are at least as protective of OT and its rights existing under this Agreement. MSP is jointly and severally liable to OT for any breach of the Agreement resulting from the MSP’s acts and omissions or the act and omissions of its Beneficiaries and their End Users.
5. Partner Obligations. MSP shall: (a) provide first line support for the Services to Beneficiaries prior to escalating support request to OT; (b) at its own cost and expense, (i) ensure that MSP and its Beneficiaries are running operating systems that support the Services; (ii) have sufficient knowledge of the industry and the Services (including, but not limited to, specifications, features and benefits) so as to be able to inform Beneficiaries of the differences between the Services and similar, comparable or competing offerings and information on standard protocols and features of the Services; (iii) ensure that an adequate number of trained, capable, certified, and qualified technical personnel with sufficient knowledge of the Services are available to respond on behalf of MSP to technical support requests; and (iv) to the extent applicable to the Services purchased hereunder, operationalize and allow OT access to the Services deployed at the Beneficiary’s site for OT’s sole purpose of collecting anonymized usage statistics in order for OT to invoice MSP.
6. Trademark License. Subject to the terms and conditions of the Agreement, each party (“Mark Licensor”) hereby grants to the other party (“Mark Licensee”) a non-exclusive, non-transferable, non-sublicensable, revocable license to use and reproduce its Marks for the sole purpose of marketing and distributing the Services in the Territory. Mark Licensor grants no rights in its Marks other than those expressly granted in this Section. As between the parties, Mark Licensor is the exclusive owner of its Marks. Mark Licensee (a) shall not take any action inconsistent with the Mark Licensor’s ownership of its Marks and (b) shall cooperate, at Mark Licensor’s request and expense, in any action that Mark Licensor deems necessary or desirable to establish or preserve its exclusive rights in and to its Marks. Mark Licensee will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Mark Licensor’s Marks or in such a way as to create combination marks with Mark Licensor’s Marks. For the avoidance of doubt, MSP will not be entitled to incorporate any Marks of OT and its affiliates into MSP’s domain names without OT’s prior written approval. Mark Licensee shall use the Mark Licensor’s Marks only in accordance with such guidelines as Mark Licensor may provide to Mark Licensee from time to time. At Mark Licensor’s request, Mark Licensee will immediately modify or discontinue any use of the Mark Licensor’s Marks.
7. Marketing Activities. MSP will use the Marks provided to it by OT to identify the Services, the managed services, and in all materials used to market and promote the managed services in a manner acceptable to OT and subject to the limitations and requirements in this Agreement and any guidelines provided to MSP by OT. MSP will at all times conduct business in a manner that reflects favorably on the Services, the managed services, and the good name, goodwill, and reputation of OT.
8. Compliance with Laws. MSP must at all times comply with all applicable laws and regulations in providing the managed services. MSP shall not engage in any deceptive or unethical practices that may be detrimental to OT. MSP shall comply with the Foreign Corrupt Practices Act of the U.S., the Bribery Act of the U.K., and any applicable local laws or regulations (collectively, the “Anti-Corruption Laws”) including their prohibitions regarding the direct or indirect payment or giving of anything of value to an official of a foreign government, political party or governmental or non-governmental agency for the purpose of influencing an act or decision in their official capacity or inducing the official to use their or their organization’s influence to obtain or retain business involving the Services. MSP shall not violate or knowingly let anyone violate the Anti-Corruption Laws with respect to the sale, licensing, and use of the Services. MSP warrants that none of MSP’s principals, staff, officers, or key employees are government officials, candidates of political parties, or other persons who might assert illegal influence on OT’s behalf. OT shall have the right to (a) audit MSP’s books and records at any time to verify MSP’s compliance with this Section; and (b) immediately terminate this Agreement for cause if OT has reason to believe that MSP has violated its obligations under this Section. MSP agrees to maintain an effective program to comply with the Anti-Corruption Laws during the Subscription Term. MSP agrees to certify or recertify compliance within thirty (30) days of the date OT requests such action.
9. Privacy. MSP acknowledges that in the course of providing managed services, MSP may have access to Beneficiaries’ accounts and data, including personal data, and MSP shall be responsible for ensuring it has the right to access such accounts and data. MSP shall ensure it has a lawful basis, made all necessary disclosures, and has all necessary rights and permissions required (including with Beneficiaries and their End Users) for the processing of personal data by OT (and its affiliates and third-party contracts, as may exist from time to time), including for international transfers. MSP shall not do anything by commission or omission that places OT, its affiliates and third-part contractors in breach of its obligations under any applicable data protection and privacy laws. MSP shall only provide personal data to the extent reasonably required for OT’s provision of the Services (and procure the same from its Beneficiaries), and MSP is responsible for procuring the implementation and maintenance of privacy protections and security measures for components that MSP or Beneficiary (including the affiliates of any of these) provides or controls. To the extent that the provision of the Services by OT involves the processing of personal data as a processor to MSP: (a) OT shall process personal data (as between MSP as processor and OT as MSP’s sub-processor) in accordance with the data processing addendum and/or business associate agreement made part of this Agreement; and (b) MSP shall serve as a single point of contact for OT and OT shall not be required to provide information or notification to Beneficiaries.
10. Security. MSP confirms that it has implemented and shall maintain during the Subscription Term, industry-standard, physical, technical and administrative safeguards to protect its Beneficiaries’ accounts and data from accidental loss and unauthorized access, use, alteration, or disclosure. MSP confirms and acknowledges that it shall not access, use, alter, or disclose any Beneficiary’s account or data without the consent of such Beneficiary. MSP shall promptly notify OT of any breach of the security measures required to be put in place by law or this Agreement.
11. Warranties By MSP. MSP will not make or publish any representations, warranties, or guarantees concerning the Services that are inconsistent with any warranties made by OT in this Agreement. MSP shall not make any representation to any party that OT has endorsed, warranted or guaranteed any MSP products or services.
12. Indemnification By MSP. MSP will indemnify and hold harmless OT and its affiliates and their respective directors and employees from and against all losses, damages, liabilities, deficiencies, judgments, interest, awards, penalties, fines, costs or expenses, including attorneys’ fees and costs (collectively “Losses”) that arise out of or relate to: (a) any breach by MSP of any representation, warranty, covenant or other obligation of MSP in Sections 4 (Conditions on Use), 8 (Compliance with Laws), 9 (Privacy), 10 (Security) or 11 (Warranties By MSP) of this Exhibit 1; (b) any other services that MSP distributes, markets, installs, licenses or supports separately or in combination with the Services; (c) suspension or termination of MSP’s and/or its Beneficiaries’ access to the Services and deletion of any stored data in accordance with this Agreement; (d) any negligent acts or omissions of MSP or its Beneficiaries that may interfere with or adversely affect (i) any of OT’s intellectual property rights to the Services or the Marks, or (ii) a Beneficiary’s use and/or access to the Services or result in deletion and/or corruption of Beneficiary’s accounts or data. MSP shall reimburse OT or its affiliates for any Losses within a reasonable period of time following notice from OT regarding such Losses.
13. Indemnification By Mark Licensor. Mark Licensor will indemnify and hold harmless Mark Licensee from and against all Losses suffered by Mark Licensee as a result of a third-party claim against Mark Licensee alleging that Mark Licensor’s Marks infringed that third party’s United States trademark rights existing as of the Effective Date. If Mark Licensor’s Marks become, or in Mark Licensor’s opinion are likely to become, the subject of an infringement claim, Mark Licensor will, at its option and expense, either: (a) procure for Mark Licensee the right to continue exercising the rights licensed to Mark Licensee in this Agreement; (b) replace or modify Mark Licensor’s Mark so that it becomes non-infringing; or (c) terminate the Mark Licensee’s license granted under Section 6 of this Exhibit 1 by written notice to Mark Licensee. THIS PARAGRAPH STATES MARK LICENSOR’S ENTIRE LIABILITY AND MARK LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR SUCH INFRINGEMENT CLAIMS AND ACTIONS.