PULSE SECURE PARTNER REGISTRATION AGREEMENT AND PARTNER CODE OF CONDUCT The parties to this Agreement are Pulse Secure, LLC. ( Pulse Secure ), a Delaware limited liability company, with a place of business at 2700 Zanker Road, Suite 200, San Jose, CA 95135, and, a company, with a place of business at ( Pulse Partner ). The Effective Date of this Agreement shall be the date of the last signature of the parties hereto. 1. Definitions. Capitalized terms in this Agreement shall have the following meanings: Distributor(s) means an entity authorized by Pulse Secure to distribute and license Products and Services to Pulse Partners in the Territory. A list of Distributors is available at the URL partners.pulsesecure.net (or such other URL that Pulse identifies from time to time), and such list may be amended or updated by Pulse from time to time. Documentation means operating manuals, user instructions, technical literature and other written materials ordinarily provided by Pulse Secure with Product. End User means a customer that purchases Product and Services from Pulse Partner to operate the customers own business and not for further distribution or sale. Hardware means the physical components of Pulse s equipment delivered as part of the Products by the Distributor that Pulse Partner has ordered from. Pulse Partner means the company that is accepting this Agreement and registers with Pulse to purchase Products and/or Services from a Distributor for resale in the Territory to an End User. Pulse Affiliate means any entity that is controlled by, under common control with or controlling Pulse where "control" means the direct or indirect ownership of more than fifty percent (50%) of the voting securities of the entity, or where there are no voting securities, the direct or indirect possession of the ability to direct or manage the operations of the entity, whether by the board of directors or otherwise. Pulse Secure or Pulse means Pulse Secure LLC and any Pulse Affiliate to whom this Agreement may be assigned. As used in connection with the provision of Services, the term Pulse Secure or Pulse under this Agreement may include authorized services representatives of Pulse. Pulse Partner Center means the online partner website that may be accessed at the following URL (or such other URL that Pulse identifies from time to time): partners.pulsesecure.net. Laws means any statutes, laws, regulations, ordinances, executive orders and the like, including, but not limited to, any bribery, corruption, data protection, export or environmental laws of any country, state, municipality, or government body. Point of Sale Information means information provided by Pulse Partner at the time of order placement to Distributor containing information requested by Pulse and such Distributor, including but not limited to: (a) Pulse Partner's name and the identification number (i.e., VAR ID) assigned to Pulse Partner by Pulse upon completion of Pulse Partner s enrollment process; (b) the End User s name and ship-to address; (c) the Product code (i.e., SKUs) of Product and Services shipped to each End User; (d) the quantity of the Product sold to each End User; and (e) any other information requested by Pulse from time to time. Product(s) means the Hardware, Software and Documentation, or any part thereof, that (a) is authorized by Pulse for purchase and resale by Pulse Partner based on Pulse Partner s certification and specialization levels under the Pulse Partner program and this Agreement, excluding any product that requires special authorization, as determined by Pulse; and (b) is used for spares, demonstration, testing, or evaluation purposes. Services means maintenance and support for Products.
Software means the machine-readable object code, whether incorporated in the Hardware or delivered separately, and includes Releases. Software Release means a new production version of the Software. Special Benefits means any (i) non-standard or additional discount or net reseller price below Pulse s standard list price offered to Pulse Partner for a specific End-User deal or promotion; or (ii) promotion, program, rebate, benefit, or market development funds that are made available to Pulse Partner. Territory means the geographic location or region assigned by Pulse in an e-mail notification to Pulse Partner after completion of the Pulse Partner enrollment process. 2. Appointment of Pulse Partner; Scope of Appointment; U.S Federal Sales. 2.1 Appointment of Pulse Partner. Subject to the terms of this Agreement, Pulse hereby authorizes Pulse Partner on a non-exclusive basis to purchase Product and Services from Distributors for the purpose of marketing, selling, and distributing such Products and Services to End Users located within the Territory or for the purpose of evaluation and demonstration of the Products and Services that is designed to increase the sale of such Products and Services. Pulse Partner must notify Pulse if an End User has internal operation locations outside of the Territory and Pulse Partner must obtain prior written approval from an authorized Pulse representative before providing any Products or Services to End Users outside the Territory. Unless otherwise authorized by Pulse in writing, Pulse Partner will not purchase Products or Services from any source other than Distributors. Pulse Partner may not resell Product or Services to another reseller, agent, broker or other intermediary in the chain of distribution without Pulse s prior written consent. Pulse Partner may distribute the Products only with all warranties, disclaimers and license agreements intact as shipped from Pulse. Pulse Partner will take all steps reasonably requested by Pulse or Distributor to inform End Users of any applicable restrictions and limitations regarding the use of the Products. The appointment included herein is non-exclusive. Pulse expressly reserves the right to market and sell the Products and Services to End Users in the Territory, either directly or through other resellers, distributors, and/or channels. 2.2 Scope of Appointment. In the exercise of Pulse Partner s rights under this Agreement, Pulse Partner will always market and resell the Products in combination with substantial added value in the form of Pulse Partner products or services. Without limiting the foregoing, Pulse Partner will not make any commitments, warranties or representations with respect to Pulse or the performance of Pulse s Products or Services except as authorized in advance and in writing by Pulse or derived from and consistent in all respects with materials provided to Pulse Partner by Distributor or Pulse. 2.3 U.S Federal Sales. Pulse Partner may not sell Products or Services to the United States government either directly or indirectly through a contractor or subcontractor, unless Pulse Partner has been approved by Pulse as an authorized Pulse Federal Reseller under terms of Pulse s then-current Pulse Reseller Program and in accordance with any additional terms set by Pulse. Pulse reserves the right to modify the terms of its Federal Reseller Program and related terms at any time. 2.4 Pulse Partner s Territory. Pulse Partner shall actively and diligently promote, offer for sale, and sell the Products and Services solely to End Users within the Territory. Pulse Partner agrees not to promote, offer for sales, or sell Products and Services either directly or indirectly, outside the Territory without Pulse s prior written consent. 3. License Grants; Restrictions. 3.1 Trademark License Grant. During the term and subject to the terms of this Agreement, Pulse hereby grants to Pulse Partner, without charge, a nonexclusive, nontransferable right to use and display in the Territory the trademarks, service marks, and logos claimed by Pulse ( Marks ) solely in connection with and solely to the extent reasonably necessary for the resale of Products and/or Services to End Users. Pulse Partner will market and distribute Product only under the Marks. Pulse Partner will not remove or alter the copyright notices, trademarks or packaging found on Product and in Documentation. Pulse Partner will use the Marks in accordance with Pulse s logo usage guidelines as in effect from time to time which may be found at partners.pulsesecure.net or such other URL designated by Pulse from time to time. In addition, Pulse Partner will, if requested by Pulse, furnish to Pulse all promotional, advertising or other materials that refer to or display any Marks for Pulse s review and approval. Use of the Marks does not create in Pulse Partner s favor any right, title or interest in Marks or in continuing rights to market or distribute Product. Pulse Partner
shall not register or apply for registration of any of the Marks (or any similar trademarks, service marks or logos) for itself, Pulse, or any other party nor shall Pulse Partner use the Pulse name in Pulse Partner s company, business or entity name, or in Pulse Partner s website domain name. Pulse Partner agrees to cooperate with Pulse if Pulse seeks to proceed with any infringement action regarding such rights. All goodwill stemming from use of the Marks automatically, and without action by either party, inures solely to the benefit of Pulse. 3.2 License Grant. To the extent the Products contain or consist of Software or firmware, Pulse Partner's appointment only grants to Pulse Partner a non-exclusive license to distribute such Software or firmware to End Users and does not transfer any right, title or interest in any such Software or firmware to Pulse Partner, to any End User, or to any other party. Pulse Partner shall not, and shall not attempt to, sell, offer to sell, market or distribute any Products that contain or consist of Software or firmware as unbundled units. The Software or firmware will be licensed solely pursuant to the terms and conditions of the license agreement included or associated with each Product. Pulse is selling the Products only to the extent that the Products contain or consist of non-software items. Pulse Partner acknowledges that no title or ownership of the proprietary rights to any Software or firmware is transferred to Pulse Partner (or any other party) by virtue of this Agreement notwithstanding the use of terms such as purchase, "sell" sale or the like within this Agreement. 3.3 Restrictions. Pulse Partner may not, nor may Pulse Partner allow any third party to, (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, the Software; (ii) make unauthorized copies of the Software; (iii) distribute or market the Software and Documentation except to an End User; (iv) remove any proprietary notices, labels or Marks on or in any copy of the Software or Documentation; (v) alter or remove any warranties, disclaimers and license agreements shipped with the Products; (vi) use the Software other than as part of the Product in which the Software has been incorporated or for which the Software has been delivered, or (vii) exercise any rights with respect to the Software other than those expressly granted in this Agreement. 4. Reports, Inventory Stocking & Ordering. 4.1 Reports. Pulse Partner shall provide all required Point of Sale Information to Distributor at the time Pulse Partner places an order with the Distributor. If Pulse Partner is unable to provide Point of Sale Information at the time of purchase to Distributor, Pulse Partner must notify its Distributor and Pulse in writing and get written approval from such Distributor and Pulse on how Point of Sale Information will be provided. Pulse Partner shall comply with any other reporting requirements and report submission procedures established by Pulse or the applicable Distributor. 4.2 Inventory Stocking & Ordering. Pulse Partner may not hold inventory or issue stocking orders, meaning orders for Pulse Products that are intended to be held as inventory stock for future resell. This Section shall not apply to Products that are temporarily held by Pulse Partner for a specified End User for the purpose of providing staging and/or configuration services, and Pulse Partner understands it holds all obligations and risk for such staging and/or configuration services. Pulse Partner may only place an order on a Distributor once Pulse Partner has received a PO from an End User. 5. Warranty. 5.1 Hardware and Software Media Warranty. Pulse will include warranties to End Users with the Product. In the event of any inconsistency between this Section 5 and the warranties and disclaimers shipped with the Products, the latter shall prevail. 5.2 Limitations. No warranty will apply if the Hardware or Software (i) has been altered in any way, including but not limited to the removal or alteration of the original identification marks, except when such alterations are made by Pulse; (ii) has not been installed, operated, repaired, or maintained in accordance with the relevant Documentation; (iii) has not been imported in compliance with Laws; (iv) has been serviced by parties not trained by or on behalf of Pulse; or (v) has been subjected to unreasonable physical, thermal or electrical stress, misuse, negligence, or accident. In addition, Hardware or Software is not designed or intended for use in and Pulse disclaims any express or implied warranty of fitness for uses of the Hardware or Software in (A) the design, construction, operation or maintenance of any nuclear facility, (B) navigating or operating aircraft; or (C) operating life-support or life-critical medical equipment. Pulse is not responsible for backing up programs and data to protect against loss or corruption of such programs and data. Pulse s warranty obligations do not include installation support.
5.3 Disclaimer. ALL MATERIALS PROVIDED ON PULSE S WEBSITES ARE PROVIDED AS IS. EXCEPT AS SET FORTH IN SECTION 5.1 ABOVE, PULSE EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ABSENCE OF HIDDEN DEFECTS, OR NONINFRINGEMENT, OR ANY WARRANTY THAT MAY ARISE BY REASON OF USAGE OR TRADE OR COURSE OF DEALING. PULSE DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, LINKS OR OTHER MATERIALS INCLUDED IN ITS WEBSITES OR THAT THE SOFTWARE IS ERROR FREE OR WILL OPERATE WITHOUT PROBLEMS OR INTERRUPTION. 6. Pulse Partner Program Requirements 6.1 Qualifications. Pulse Partner will at all times maintain a sales, technical, finance, accounting, logistics and marketing organization, facilities, and other resources sufficient to provide sales services and to otherwise carry out Pulse Partner s obligations under this Agreement. Pulse offers several partner levels and certain levels require an invitation. To receive an invitation, as well as obtain and maintain a designated level in Pulse s Partner Advantage program (reseller program), Pulse Partner must continuously meet all then-current program requirements for Pulse Partner s designated level, including all the applicable certification and specialization level or other criteria as specified under Pulse s Partner Advantage program (reseller program). Failure to meet and adhere to any of these requirements or a decision made by Pulse in Pulse sole discretion may subject Pulse Partner to being deemed no longer eligible for a particular level or inclusion in the program. Pulse Partner will at all times remain in compliance with all other documents, including, but not limited to, all policies, processes, programs and promotions made available to Pulse Partner or located on Pulse s Partner Center. Pulse reserves the right to update its business reporting, policy and procedure requirements and format from time to time to meet its business needs. Pulse Partner shall (i) keep Pulse informed of industry trends and conditions that may affect the sale of Products and Services, (ii) abide by any special packaging requirements, if any, for Products as set forth by Pulse; (iii) perform other duties as are reasonably requested by Pulse or that are consistent with the purpose of this Agreement, and (iv) actively participate in Pulse s anti-corruption training programs. 6.2 Pulse s Website and Partner Center. Pulse may post Pulse Partner s name and other relevant information, including, but not limited to, Pulse Partner s contact information, address, and a link to Pulse Partner s website on Pulse s website. Pulse Partner hereby grants Pulse all rights, licenses, and authorizations necessary for such posting. In addition, subject to Pulse Partner s compliance with Pulse s website policies, Pulse Partner will have access to the Pulse Partner Center, a restricted-access website providing various tools and resources to aid Pulse Partner with its sales efforts. Pulse Partner acknowledges that Pulse may restrict, remove or condition Pulse Partner s access and use of the Pulse Partner Center website at any time and for any reason in Pulse s sole discretion. 6.3 Special Programs. Pulse Partner may be invited by Pulse to participate in special programs. If Pulse Partner does participate in any such special programs, then Pulse Partner agrees to comply with all terms, conditions, restrictions, and instructions with respect to Pulse Partner s participation in the special programs. Pulse will provide Pulse Partner with all applicable materials (including, if applicable, URL) to participate in the special programs. Pulse may cancel a special program at any time and for any reason, or no reason, upon written notice to Pulse Partner. 6.4 Demonstration and Evaluation Equipment. If Pulse Partner purchases demonstration, internal evaluation, or testing units of the Products, Pulse Partner shall use these Products solely for demonstration, internal evaluation and testing purposes. Pulse Partner shall only distribute, sell or sublicense demonstration, internal evaluation, or testing Products in accordance with the terms of the then-current demonstration/internal evaluation/test program guidelines. 6.5 Special Benefits and Loss of Discount. Pulse may, but is not obligated to, offer or make Special Benefits available to Pulse Partner, with or without conditions. Pulse Partner agrees to use the Special Benefits granted by Pulse only for the purposes or intent for which the Special Benefit is specifically granted, and for no other purpose. To receive Special Benefits, Pulse Partner must at all times be in compliance with the terms and conditions of this Agreement and all special instructions or conditions relating to the Special Benefits. Without limiting any remedy to which Pulse might otherwise be entitled to, Pulse may immediately reduce or revoke any or all Special Benefits offered or provided to Pulse Partner or terminate this Agreement if, in Pulse s sole discretion, Pulse Partner does, but not limited to, any of the following (each of the below constitute a Triggering Event ): (i) fails to satisfy Pulse s conditions or instructions for the Special Benefit; (ii)
fails to extend or otherwise provide the Special Benefit to the End User for which the Special Benefit is intended or within the applicable time period; (iii) breaches Section 2.1 (Appointment of Pulse Partner) or Section 8.3 (Compliance with Laws and Pulse Partner s Indemnity Obligations) of this Agreement; or (iv) makes any false statement to Pulse; provides any inaccurate information to Pulse (including any inaccurate books or records); engages in any gray market, fraudulent, corrupt, or negligent activity; damages or disparages Pulse s reputation or goodwill (or the reputation of Pulse s products or personnel); or otherwise harms or causes a loss of business to Pulse. Pulse will notify Pulse Partner in writing of any reduction or revocation of a Special Benefit. Pulse will also identify the Special Benefit(s) that are being reduced or revoked as a result of a Triggering Event. If a Triggering Event has occurred, but Pulse Partner has not received the applicable Special Benefit(s), then, the Special Benefit shall immediately be revoked and will not be provided to Pulse Partner. If a Triggering Event has occurred and Pulse Partner has received the applicable Special Benefit(s), then, upon request, Pulse Partner will promptly, as instructed by Pulse, either (a) reimburse Pulse the entire amount (or such other lesser amount identified by Pulse) of the Special Benefit that is being revoked or reduced as a result of the Triggering Event; or (b) reimburse Pulse the difference between the Product and/or Service list price (or such other lesser amount identified by Pulse) and the actual amount paid by Pulse Partner as a result of receiving the Special Benefit that is now being revoked or reduced as a result of the Triggering Event. If Pulse Partner fails to promptly reimburse Pulse in accordance with the reimbursement guidelines set forth herein, then Pulse may, without limiting any other rights or remedies available to Pulse, require a Distributor to add the amount that Pulse Partner is required to reimburse Pulse to any future invoice due to such Distributor by Pulse Partner or engage a collection agency to recover such amounts. Pulse Partner will, upon Pulse s request, certify in writing to Pulse that Pulse Partner has not committed a Triggering Event. Special Benefits are valid only for the time period, limited quantities, End User, and geographic locations approved by Pulse. 6.6 Maintenance of Books & Records. Pulse Partner will keep complete and accurate books and records pertaining to its receipt, handling, and sale of all Products and Services. The term books and records also includes any reports or other transactional documentation provided by Pulse Partner to either Pulse or a Distributor. All such books and records must be kept in accordance with generally accepted accounting practices (or such other applicable accounting practices, e.g., IFRS) and all applicable Laws. Pulse Partner must provide evidence to Pulse s satisfaction that the data provided for the audit was directly pulled from Pulse Partner s books and records pertaining to its receipt, handling, and sale of all Products and Services. Pulse reserves the right upon reasonable notice to inspect or audit, or to have a third party selected by Pulse inspect or audit, Pulse Partner s books, records, facilities, or inventory or to request additional information from Pulse Partner to ensure that Pulse Partner is complying with this Agreement, is properly entitled to any Special Benefits granted to Pulse Partner, and to verify that Pulse Partner continues to qualify for its applicable discount level. In addition, Pulse Partner agrees that Pulse may contact End Users directly to review and verify any information provided to Pulse by Pulse Partner relating to such End User. Without limiting any remedy to which Pulse might otherwise be entitled, Pulse may change Pulse Partner s discount level for Products or Services if Pulse determines Pulse Partner does not meet the qualifications for the currently designated discount level. Pulse Partner will allow Pulse, or the third party selected by Pulse, full and complete access during Pulse Partner s regular business hours to Pulse Partner s books, records, facilities, and inventory, wherever located, at such times as Pulse may request (but on no less than seven days prior notice) to conduct the inspection, audit, or inventory count. The period under review will be determined by Pulse in its sole discretion. Pulse Partner agrees that any such inspection or audit may be conducted during the term of this Agreement and up to three (3) years after the termination of this Agreement. Pulse Partner will cooperate, and will cause its representatives, agents, employees, consultants, and all applicable third parties identified by Pulse to cooperate, with the inspection, audit or inventory count without charge. Pulse Partner s failure to provide the requested information or allow access to Pulse Partner s site (or Pulse Partner s affiliated offices) or records is grounds for immediate termination for cause or such other remedies as Pulse determines are required. 7. Intellectual Property Indemnification. 7.1 Obligations. Pulse Secure shall defend, at its own expense, indemnify and hold Pulse Partner harmless from any suit brought against Pulse Partner based upon a claim that Product(s) infringes any third party trade name, trade secret, patent or copyright ( IP Claims ) and will pay all damages and costs that a court awards against Pulse Partner as a result of such claim, provided that Pulse Partner: (a) gives Pulse Secure written notice of such claim within thirty (30) days of becoming aware of such claim and furnishes Pulse Secure with a copy of each communication, notice or other document relating to the claim; (b) gives Pulse Secure complete control of the defense an settlement of such claim; and (c) fully cooperates with Pulse Secure in the defense or settlement of such claim.
7.2 Exclusions. Pulse Secure shall have no obligation or liability with respect to any IP Claim which is based, in whole or in part, upon: (a) the combination, operation or use of the Product(s) with any hardware, software or other device supplied by a party other than Pulse Secure and the claim would not have arisen but for such combination, operation or use; (b) any modification of the Product(s) which is not preapproved by Pulse Secure in writing; (c) any third party equipment; (d) any specifications, designs or instructions provided to Pulse Secure by or on behalf of Pulse Partner; (e) Pulse Partner s failure to promptly modify the Product(s) (e.g., install a supported release) provided by Pulse Secure, if the claim could have been avoided had Pulse Partner followed Pulse Secure s directions for the implementation of such modification; or (f) use of the Product(s) in a manner other than that for which it was designed or in a manner other than as specified by Pulse Secure. Pulse Secure shall not be obligated or responsible for any settlement entered into without Pulse Secure s prior written consent. 7.3 Sole and Entire Remedy. THE INTELLECTUAL PROPERTY INDEMNIFICATION SET FORTH IN THIS SECTION 7 STATES PULSE SECURE S ENTIRE LIABILITY AND OBLIGATION AND PULSE PARTNER S SOLE AND ENTIRE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF THIRD PARTY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS. 8. General Terms and Conditions. These terms and conditions are applicable to this Agreement and all attachments. 8.1 Confidential Information. Confidential Information means all information disclosed, directly or indirectly, to the other party (the Receiving Party ) in (i) tangible form and which is designated Confidential, Proprietary, or Trade Secret ; (ii) disclosed orally, and summarized in writing as Confidential, Proprietary or Trade Secret, and delivered to the Receiving Party within thirty (30) days of disclosure; or (iii) which by the nature of the information and the circumstances of the disclosure, the Receiving Party should reasonably infer to be confidential or proprietary. Confidential Information does not include information which: (a) is or becomes generally known through no fault of the Receiving Party; (b) is known to the Receiving Party at the time of disclosure, as evidenced by the Receiving Party s records; (c) is hereafter furnished to the Receiving Party by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by the Receiving Party without use of or reference to the disclosing party s Confidential Information. Pulse Partner agrees that Pulse s price lists, discounts and discounting practices, Special Benefits, Documentation, Software, product roadmaps, and statements of product direction are all deemed to be Confidential Information under this Agreement. The Receiving Party will use a reasonable degree of care to maintain all Confidential Information of the disclosing party in confidence, and neither party will disclose to any third party nor use Confidential Information of the disclosing party for any unauthorized purpose. The Receiving Party may only disclose Confidential Information (1) to its employees and representatives that have a need to know to accomplish the purposes of this Agreement and each of whom are bound to protect the confidentiality of the Confidential Information from unauthorized use and disclosure under the terms of a written agreement with terms as protective of the Confidential Information as those set forth in this Agreement; and (2) in response to a valid order of a court or other governmental body or as otherwise required by law to be disclosed, provided the Receiving Party gives sufficient notice to the disclosing party to enable the disclosing party to take protective measures. Except as otherwise expressly set forth in this Agreement, no rights or licenses to intellectual property in Confidential Information are granted by either party under this Agreement, whether express, implied or otherwise, to the other party. The obligations imposed on the Receiving Party shall survive until such time as the Confidential Information of the disclosing party becomes publicly available and/or made generally known through no action of the Receiving Party. All Confidential Information will be returned immediately to the disclosing party, or destroyed, after the Receiving Party s need for it has expired, or upon request of the disclosing party or termination of this Agreement. Each party agrees that any violation of these confidentiality provisions will cause irreparable injury to the other party entitling the other party to injunctive relief or other equitable relief, in addition to, and not in lieu of, any other remedies such party may be entitled to. The disclosure of Confidential Information will be governed by this Agreement, which supersedes any previous confidentiality or nondisclosure agreement executed by or on behalf of the parties. Any such Confidential Information will be treated as if it were disclosed under this Agreement (and this Agreement were in effect) as of the date of such exchange. Nothing in this Agreement shall prohibit or limit either party's use or disclosure of the U.S. Federal income tax treatment and U.S. Federal income tax structure of any transaction contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax
treatment or tax structure, except where confidentiality is necessary to comply with applicable federal or state securities laws. 8.2 Governing Language. The parties agree that this Agreement is written and accepted in English. Any translation of this Agreement from its English version is provided for convenience only. Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient redigés en langue anglaise (Translation: The parties confirm that this Agreement and all related documentation is and will be in the English language ). 8.3 Compliance With Laws and Pulse Partner s Indemnity Obligations. Pulse Partner will comply fully with all Laws applicable to (i) the Products and/or Services, (ii) the sale or distribution of the Products and/or Services, and (iii) Pulse Partner s business activities. If Pulse Partner processes personal data provided by Pulse or provides personal data to Pulse, Pulse Partner shall (a) not cause Pulse to breach any data protection law; and (b) only process personal data provided by Pulse for the purposes for which such data was provided. Pulse Partner is required to accept and comply with, and annually acknowledge that it has accepted and complied with, Pulse s Partner Code of Conduct located at partners.pulsesecure.net (or such other URL identified by Pulse from time to time). Pulse Partner must have and maintain written policies against corruption and provide appropriate training to its employees, contractors, and consultants regarding the U.S. Foreign Corrupt Practices Act and similar laws in jurisdictions where Pulse Partner conducts business activities. If Pulse determines that delivering Product, repairing or replacing Product under warranty, providing Services for Product, or paying any rebate may violate any Laws, Pulse may refuse to do so without being in breach of this Agreement. Pulse Partner (including its employees, agents and consultants) will not authorize, offer or promise to make or give any money or anything of value to any official of a public international organization, government official, political party, political official, candidate for political office ( Foreign Official ), or to any other person, while knowing or having reason to know that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to any Foreign Official or in violation of any applicable Laws. Pulse Partner will indemnify, defend and hold harmless Pulse and its directors, officers, agents and employees from and against (i) any and all claims, demands, actions, litigation, investigations and proceedings arising out of or related to any non-compliance by Pulse Partner with this section ( Noncompliance Claims ), and (ii) any and all liens, liabilities, costs and expenses (including reasonable attorneys fees) arising out of or related to any Noncompliance Claims. 8.4 Export Restrictions. Pulse Partner acknowledges and agrees that Products, Services and certain Pulse technology and Confidential Information (collectively Controlled Items ) are subject to export and import control Laws and regulations of various countries. Such Laws include, without limitation, the US Export Administration Regulations ("EAR"), regardless of where the Controlled Items were manufactured and regardless of where they are situated. For purposes of US export control laws, disclosure of Controlled Items to a foreign national is deemed an export. The EARs are reachable from http://www.bis.doc.gov. In the course of Pulse Partner s purchase, distribution, resale, support and use of Controlled Items, Pulse Partner (including its employees, agents, and consultants) shall comply strictly with all applicable export and import laws and regulations and shall not export, re-export, transfer, divert, release, or import any such Controlled Items, or any direct product thereof, to any other person or entity (nor shall Pulse Partner make any use thereof) except under license or as otherwise permitted under such Laws. Without limiting the foregoing, (i) Pulse Partner is prohibited from exporting or re-exporting, directly or indirectly, any Product or Controlled Items to any Group E country (currently Syria, Sudan, Cuba, Iran, North Korea) (Supp. 1 to EAR Part 740); (ii) many Products are classified as encryption products subject to special export license requirements and as such, Pulse Partner is prohibited from exporting or re-exporting such Products without license unless a license exception under the EAR applies; (iii) in particular, Pulse Partner is prohibited from exporting or re-exporting Product that is a restricted encryption item under the ENC license exception (EAR Part 740.17) to a government end user (as defined in EAR Part 772) outside of the countries listed in Supp. 3 of EAR Part 740; (iv) Pulse Partner is responsible for ensuring that required licenses, if any, are obtained prior to export or re-export by Pulse Partner and for complying under any such license with all applicable license conditions (including, where applicable, pre-shipment notification and pre-shipment inspection, as well as furnishing of notice of license conditions to End User, as the case may be); and (v) Pulse Partner is prohibited from resale of Services for the support of illegally exported or re-exported Product. Pulse Partner s duty to comply with all applicable export and import Laws also includes compliance with export control Laws of the Netherlands and other European Union (EU) countries from which Pulse Partner may pick up or take shipment of Product. Without limiting the foregoing, Pulse Partner shall not without first obtaining any and all required export licenses export or re-export any Product classified as ENC 5A002 or 5D002 on the EU Dual Use List shipped from or received by it at a location in the EU to any of the following countries: Cuba, Iran, North Korea, Syria, Sudan, South Sudan, Iraq, Pakistan, Lebanon, Libya, Jordan, Somalia, Myanmar or Afghanistan. Any such sales are strictly prohibited. Without limiting any remedy to which Pulse might
otherwise be entitled, Pulse may without liability and without being in breach of this Agreement (i) reject or rescind acceptance of any order for product or services if it determines that delivery of products or performance of services in fulfillment of such order may violate any applicable Laws, including any export control or other laws or regulations; and (ii) withhold products and performance of warranty or support services, including withholding the repair or replacement of Products under warranty, if it determines that any such delivery or performance may violate any applicable Laws, including any export control or other laws or regulations. Pulse Partner will, upon request, provide Pulse with all information requested by Pulse relating to Pulse Partner s import or export of the Products. 8.5 Term; Termination. 8.5.1 Term. This Agreement is effective for one year from the Effective Date, unless terminated earlier in accordance with this Agreement. This Agreement shall automatically renew for additional one (1) year periods, unless either party gives the other party at least thirty (30) days prior written notice of its intent not to renew before the end of the then current term. 8.5.2 Termination without Cause. Either party may terminate this Agreement without cause and without the need for judicial or administrative action, award or resolution, upon at least 30 days prior written notice to the other party; provided, however, that Pulse may terminate this Agreement immediately upon notice to Pulse Partner within the first 30 days of the Effective Date. 8.5.3 Termination with Cause. Either party may terminate this Agreement for a breach that is not cured within thirty (30) days after written notice by the other party or immediately upon notice of termination in the event of a breach that by its nature cannot be remedied within thirty (30) days, including, but not limited to, non-compliance to key elements of the Pulse Partner program applicable to Pulse Partner. Pulse may terminate this Agreement immediately if Pulse Partner (i) terminates its business operations; (ii) becomes insolvent; (iii) suffers the appointment of a receiver or makes an assignment for the benefit of creditor; or (iv) enters into voluntary or involuntary bankruptcy proceedings. In addition, Pulse may terminate this Agreement immediately if (a) there is a material change in ownership of Pulse Partner or a sale or transfer of substantially all of Pulse Partner s assets; (b) Pulse discovers any misrepresentation or omission made by Pulse Partner in connection with Pulse Partner s participation in the Pulse Partner program; or (c) Pulse discovers that Pulse Partner falsified any information or documentation provided to Pulse or a Distributor, including, but not limited to, information or documentation relating to special programs, special or non-standard discounts, or market development fund claims or eligibility, or with respect to any Point of Sale Information or any documentation supporting any Point of Sale Information. 8.5.4 Obligations Upon Termination. Upon termination of this Agreement: (a) All authorizations and licenses granted by Pulse will immediately terminate and all rights shall revert to Pulse. Licenses granted in this Agreement will extend to all Product and Services for which purchase orders have been accepted and for which Product and Services will be delivered posttermination and for all Services which Pulse Partner is in the process of performing, except where termination is for nonpayment. (b) Upon Pulse s request, the parties, through their authorized representatives, will meet (in person or via telephone, at Pulse s option) within thirty (30) days of the effective date of termination of this Agreement for the purpose of mutually reviewing the then existing backlog of Pulse Partner orders for Products and Service renewals, outstanding RMAs, and any other matters applicable to the termination of this Agreement. If Pulse Partner fails to meet with Pulse for the purpose of this Section within thirty (30) days following termination of this Agreement, then Pulse may, without limiting any other remedies available to Pulse, treat such failure as a cancellation of all of Pulse Partner s purchase obligations. Pulse Partner may only place orders for Products and Services after the date of notification of termination if Pulse Partner has first received written approval from Pulse. Pulse Partner may sell only Product for which purchase orders have been accepted on or before termination date. (c) If Pulse Partner was providing Services directly to End Users, Pulse will provide such services to End Users in accordance with Pulse s standard support policies or reassign the provision of Pulse s Services to another authorized reseller in the region, provided that Pulse Partner has paid Pulse or the other authorized reseller all fees paid by End User to Pulse Partner for the remainder of the Services term. (d) Each party will immediately return to the other party, or certify destruction of, all of the other s materials, documentation, data, and Confidential Information, including all related materials that
were derived from such materials, documentation, data and Confidential Information. Pulse s name, logo and any other proprietary information related to Pulse, or Pulse s Products and Services will be removed immediately from Pulse Partner s website, e-mail signature, marketing and promotional materials, offices and demonstration labs. Pulse Partner agrees that Pulse may inform a Distributor of any termination of this Agreement or of any breach of this Agreement by Pulse Partner. (e) Neither party will be liable to the other party for any claims, expenses, losses or damages of any kind, including but not limited to any compensation, reimbursement for the loss of prospective profits, anticipated sales or goodwill, arising out of termination of this Agreement in accordance with Sections 8.5.1, 8.5.2 or 8.5.3, regardless of whether such party is aware of any such claim, expense, loss of damage. However, termination will not extinguish any liability of either party arising before termination of this Agreement, including without limitation for payments due. PULSE PARTNER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS UPON TERMINATION OF THIS AGREEMENT BY OPERATION OF LAW OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT. 8.6 Survival. No termination of this Agreement will release either party from any payment or other obligations owed to the other, or affect any rights or liabilities of either party with respect to any breach of this Agreement. Sections 1, 2.2, 3.3, 5, 7 and 8 shall survive termination of this Agreement until the obligations of those Sections are completed. 8.7 Severability. If any part of this Agreement is found to be unenforceable, the remainder shall continue in full force and effect and the unenforceable provision shall be reformed so as to give maximum legal effect to the intentions of the parties as expressed herein. 8.8 Waiver. The failure of any party to enforce any of the terms and conditions of the Agreement shall not constitute a waiver of that party s right thereafter to enforce each and every term and condition of this Agreement. 8.9 Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, USA except for its choice of law rules. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement. For any disputes arising out of this Agreement, except for those relating to payments, Pulse Partner consents to the personal and exclusive jurisdiction of, and venue in, the state and federal courts within Santa Clara County, California, USA. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party s intellectual property or proprietary rights. 8.10 Assignment. Pulse Partner may not assign, sub-contract and/or delegate its rights and obligations under this Agreement without the prior written consent of Pulse. Any assignment, sub-contract and/or delegation in violation of the foregoing is void. Pulse may assign, sub-contract, and/or delegate any or all of its rights and/or obligations under this Agreement to any Pulse Affiliate without the consent of Pulse Partner upon written notice to Pulse Partner, which notice shall include the contact information and address of the Pulse Affiliate for purposes of giving notices under this Agreement pursuant to Section 8.11. 8.11 Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been given if sent via electronic mail: (a) by Pulse Partners to partners@pulsesecure.net; and (b) by Pulse, to the electronic mail address submitted by Pulse Partner during the registration process. Notices shall be deemed received one business day after being sent by electronic mail. 8.12 Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control. 8.13 Independent Contractors. The relationship established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed to: (i) give either party the power to direct and control the business activities of the other, (ii) constitute the parties as partners, joint venturers, agents, franchisor/franchisee or otherwise as participants in a joint or common undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party. All references to Partners herein are generic and do not suggest the creation or existence of a legal partnership. Each party is and remains fully independent of the other and each party is responsible for its own debts, contracts, etc.
8.14 LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, PULSE S AND ITS SUPPLIERS CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE OF THE PRODUCTS OR SERVICES SHALL BE LIMITED TO THE AMOUNT PAID BY PULSE PARTNER TO ITS DISTRIBUTOR FOR PULSE PRODUCTS (AS DEFINED ABOVE) OR PULSE SERVICES IN THE THREE MONTHS IMMEDIATELY PRECEDING THE EVENT OR SITUATION GIVING RISE TO SUCH LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL PULSE HAVE ANY LIABILITY OR OBLIGATION WHATSOEVER FOR ANY LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR UNDER THIS AGREEMENT OR ANY TRANSACTION COMTEMPLATED HEREUNDER, WHETHER ARISING BY CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM THE USE OF PRODUCT PURCHASED HEREUNDER, OR THE FAILURE OF PRODUCTS OR SERVICES TO PERFORM, OR FOR ANY OTHER REASON, EVEN IF PULSE IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OCCURING.THIS SECTION WILL NOT EXCLUDE ANY LIABILITY FOR DAMAGES THAT CANNOT BE EXCLUDED BY APPLICABLE LAW, PROVIDED THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY SUCH DAMAGES WILL BE SUBJECT TO THE TOTAL AGGREGATE LIABILITY LIMIT SET FORTH IN THIS SECTION ABOVE. PULSE PARTNER ACKNOWLEDGES AND AGREES THAT PULSE HAS ESTABLISHED ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIABILITY LIMITATIONS SET FORTH HEREIN, THAT THESE DISCLAIMERS AND LIMITATIONS REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK OF FAILURE OF THE ESSENTIAL PURPOSE OF ANY CONTRACT REMEDY AND RISK OF CONSEQUENTIAL LOSS), AND THAT THESE DISCLAIMERS AND LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 8.15 Updates on Pulse s Web Site. This Agreement, along with other materials related to Pulse s reseller program located on Pulse s web sites, may be updated or modified from time to time upon notice to Pulse Partner. Pulse Partner agrees that notice of any update or modification on Pulse s website will be deemed adequate notice for purposes of this Agreement. Pulse Partner is responsible for regularly checking Pulse s website as well as any and all references therein for such updates or modifications. Pulse reserves the right to change elements of Pulse s reseller program at its discretion. Pulse Partner is solely responsible for checking Pulse s web sites for updates and for continued compliance with all applicable program requirements. Pulse Partner s continuing participation in the Pulse reselling program constitutes acceptance of Pulse s then-current terms and conditions. 8.16 This Agreement Governs. The click-through, English language version of this Agreement shall not supersede this written and signed contract between the parties and this Agreement shall supersede all prior agreements, commitments or representations between the parties, whether oral or written, as well as any downloaded or translated version of the Agreement, whether or not such downloaded or translated version is signed by either party. IN WITNESS HEREOF, the duly authorized representatives of the parties to this Agreement have made and signed this Agreement as dated below. Pulse Secure, LLC Name: Title: Date: Name: Title: Date: