Reseller Agreement
This reseller agreement (this “Agreement”) sets forth the legally binding terms for the resale of Products and/or Professional Services (each as defined herein). This Agreement is by and between Ping Identity Corporation (“Ping Identity”) and the reseller entity on whose behalf you are executing this Agreement (“Reseller”). You represent that you have the authority to bind Reseller to the terms of this Agreement. By agreeing to the terms of this Agreement or by reselling any Products and/or Professional Services, Reseller expressly agrees to and consents to be bound by all of the terms of this Agreement. If Reseller does not agree to any of the terms of this Agreement, Reseller is prohibited from reselling any Products or Professional Services. The effective date of this Agreement is the date set forth on an Order Form that references these terms or, if earlier, the date on which Reseller resells any Products or Professional Services (the “Effective Date”).
1. Appointment/Territory.
1.1 Enrollment in Partner Program. By accepting this Agreement, Reseller is enrolling in the Partner Program. Reseller’s participation in the Partner Program and all grants herein shall be subject to Reseller compliance with the Agreement and the Partner Program Guide, including any applicable Mandatory Training requirements. Ping Identity offers varying tiers of membership to the Partner Program and each tier offers benefits to support Reseller’s growth. Ping Identity, in its sole discretion, will determine Reseller’s Program tier (as referenced in the Partner Program Guide) for the calendar year. Ping Identity will provide Reseller with email notice of its Partner Program tier, and any subsequent changes thereto, in accordance with its standard Partner Program practices. Reseller agrees it shall only represent itself as a member of the Partner Program tier designated and sanctioned by Ping Identity.
1.2 Changes to the Partner Program. Ping Identity reserves the right to change the terms of the Partner Program Guide upon publishing amended Partner Program documents or notice of the changes. Ping Identity also may modify or cancel benefits as described in the Partner Program Guide.
1.3 Appointment as Reseller. Subject to the terms and conditions of this Agreement, Ping Identity hereby appoints Reseller and Reseller accepts the appointment as Ping Identity’s non-exclusive reseller of the Products and Professional Services. Reseller does not have the right to distribute any other Ping Identity products or services not set forth in an Order does not have the right to appoint or authorize any third party to act as a dealer, agent, or reseller for the distribution of Products or Professional Services without Ping Identity’s prior written consent.
1.4 Territory. As used in this Agreement the term “Territory” means the country or jurisdiction set forth on an executed Order as the location of the Customer. Reseller shall not solicit Customers for the Products or Professional Services outside the Territory, unless otherwise agreed to in writing by Ping Identity. Ping Identity may refuse orders for Products or Professional Services to be delivered outside the Territory. Nothing in this Agreement shall prohibit or otherwise restrict Ping Identity from selling or licensing Products or Professional Services, directly or indirectly, to Customers within or outside the Territory.
1.5 Affiliates. Affiliates of Reseller may enter into Orders with Ping Identity subject to the terms and conditions of this Agreement, and in such instances shall be considered “Reseller” hereunder. Reseller will ensure that any such Affiliates have received a copy of and comply with the terms of this Agreement and shall be liable to Ping Identity for the actions and omissions of its Affiliates as if such actions and omissions were those of Reseller hereunder. Ping Identity may perform some or all its obligations under this Agreement through Affiliates, provided, however, that Ping Identity shall remain responsible and be guarantor of the performance by its Affiliates and shall cause its Affiliates to comply with the provisions of this Agreement in connection with such performance.
2. Mutual Responsibilities. In the interest of promoting the Products in the Territory, Ping Identity and Reseller agree to:
2.1 Furnish each other with appropriate technical information for support and planning purposes; provided, however, that each party reserves the right, at its sole discretion, to determine the scope and content of such information.
2.2 Share mutually agreed categories of personally identifiable information of customers or potential customers and related personally identifiable information (collectively, “Customer Information”) with each other, subject to the disclosing party’s compliance with all privacy laws and its privacy policies and any relevant agreements between the disclosing party and its customer. Each party warrants that Customer Information shall not contain any personal health information, credit card data, personal financial data or other sensitive data (as defined under applicable data privacy laws) that may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards.
(a) The party receiving such Customer Information may use the Customer Information provided to it by the other party only (i) in accordance with the purpose for which it was provided; and (ii) in compliance with global privacy laws. Each party will maintain and comply with its own privacy policy regarding the collection, storage and transfer of its Customer Information. Each party shall provide prompt written notification to the other in the event that an individual who has provided Customer Information subsequently opts-out or requests deletion of his/her personal data.
(b) Neither party may use any Customer Information that is provided to it by the other party (i) for any purpose other than as described in this Agreement; or (ii) to materially affect the employment of any individual employed by either party. Neither party is obligated to or will share data if the disclosure of such data would be in violation of the disclosing party’s own privacy policy or applicable data privacy laws.
(c) Reseller shall maintain complete and accurate records and information necessary to demonstrate its compliance with data protection legislation and Reseller's obligations under this Section 2.2. Reseller shall (i) make such records and information available to Ping Identity upon request and (ii) allow for and contribute to audits, including inspections, conducted by Ping Identity or another auditor mandated by Ping Identity with the purpose of monitoring and ensuring compliance by Reseller with global privacy laws.
2.3 Assist each other to develop appropriate educational and promotional materials and provide each other with copies of appropriate promotional documentation that each party’s sales organization may use for the purposes of this Agreement. Use of all such materials, however, to the extent they concern the other party’s products, shall be subject to prior approval by such other party.
2.4 Coordinate prospective customer calls in cases of joint product demonstrations or similar cooperative marketing or technical support efforts.
2.5 Offer training courses to Customers as required by the market. Ping Identity shall permit Reseller and its Customers to attend regularly scheduled Ping Identity courses at Ping Identity training facilities for a fee equivalent to Ping Identity’s then prevailing prices.
2.6 Participate in the marketing and training activities set forth in Exhibit B. The parties will conduct periodic meetings to monitor and review the Reseller’s marketing plan and its implementation to assist in the successful marketing and promotion of the Products.
3. Obligations. Reseller agrees, at its own expense, to:
3.1 Use its best efforts to introduce and promote the distribution of Products to Customers in the Territory, including the solicitation of orders for Products from Customers, and conduct its activities in an ethical manner and in a way that reflects favorably on Ping Identity.
3.2 With respect to the Products and Professional Services, resell such products solely under the standard subscription agreement terms and conditions available at https://www.pingidentity.com/en/legal/subscription-agreement.html (the “Ping Subscription Agreement”). In the event that a Customer does not agree to accept the Ping Subscription Agreement provided by Reseller, Reseller must notify Ping Identity prior to entering into an Order and Ping Identity may choose to negotiate a custom subscription agreement with the Customer, or such other form of agreement, as agreed between Ping Identity and the Customer (a “Customer Subscription Agreement”). In this instance, the Customer Subscription Agreement will govern Customer’s use of the Products or receipt of Professional Services. Whether a Customer’s use of the Products and receipt of Professional Services is governed by the Ping Subscription Agreement or Customer Subscription Agreement, for purposes of this Agreement, such governing agreement shall be referred to as the “Ping Identity EULA”. In no event will Reseller enter into its own licensing, subscription or similar agreement with a Customer with respect to Ping Identity Products or Professional Services, all such agreements shall be between Ping Identity and the Customer.
3.3 Furnish Ping Identity with written activity reports and sales forecasts as reasonably and mutually agreed, and provide reasonable and appropriate technical support for demonstrations and general sales promotion, as well as for exhibitions and promotional seminars addressed to Customers.
3.4 Distribute or publish Ping Identity’s approved advertising or promotional materials and only make references to, or claims about, Ping Identity or the Products that are set out in Ping Identity’s current sales literature. Reseller will not distribute or publish any advertising or promotional materials developed by Reseller relating to Products without Ping Identity’s prior written approval. Reseller may use previously approved materials without further authorization.
3.5 Notify Ping Identity of (i) any breach by any Customer of any terms contained in the Ping Identity EULA of which Reseller becomes aware, and (ii) any infringement or alleged infringement of the patents, copyrights, trade secrets, trademarks or other proprietary rights of Ping Identity or its Products of which Reseller becomes aware. Reseller shall provide all assistance as reasonably required by Ping Identity to assist in the enforcement of any and all terms contained in the Ping Identity EULA including, but not limited to, any assistance needed with respect to any claims of infringement and/or violation of any of Ping Identity’s proprietary rights related to the Products.
4. General Provisions for Purchase and Distribution of Products.
4.1 The Products and Professional Services eligible for purchase for resale under this Agreement are set out in an Order and/or Quote as set forth in Section 4.2 below, and Reseller’s discounts for such Products and Professional Services are specified in the Partner Program Guide. Pricing information shall be furnished by the Ping Identity and is subject to change upon thirty (30) days’ prior notice. In the event that Reseller issues a binding price quotation to a Customer and there is a subsequent price increase, Ping Identity shall allow Reseller to make a one-time purchase at the price applicable prior to the price increase provided that Reseller and Ping Identity enter into such Order within ninety (90) days of the notice of price change.
4.2 Reseller shall order Products or Professional Services hereunder by executing Orders with Ping Identity. To enter into an Order for resale of the Products and Professional Services, Reseller may request a written quote from Ping Identity (a “Quote”) that specifies, at a minimum: (i) the Customer’s full legal name and delivery address (which Reseller shall provide to Ping Identity upon request for a Quote); (ii) the applicable Products and/or Professional Services being resold; (iii) the subscription entitlements and/or restrictions for such Products or Professional Services (such as quantity limitations) (the “Entitlements”); (iv) any necessary definitions that correspond with the Entitlements on the Quote; (v) the subscription term dates for the Products, (vi) additional terms required to be accepted by Customer for such particular transaction that are not contained in the Ping Identity EULA, if any; (vii) the price to be paid to Ping Identity for such Order; (viii) Ping Identity’s Quote number; and (ix) special invoicing terms, if any (collectively, the “Order Details”). Upon execution of such Quote by Ping Identity and Reseller, such Quote will become a binding Order. If Professional Services are purchased for resale or for Reseller’s use, a statement of work, description of services, or similar document (an “SOW”) may be attached to the Quote and Order. Notwithstanding anything to the contrary contained in a Reseller purchase order, any terms or conditions contained on or referenced in such purchase order are specifically rejected by Ping Identity and shall have no force or effect.
4.3 Ping Identity hereby grants Reseller a personal, non-exclusive, non-transferable right to distribute the Products solely under the terms and conditions of this Agreement and the Ping Identity EULA as set forth in Section 3.2. Reseller shall not be permitted to distribute any Products beyond the maximum Entitlements, and any other restrictions, if and as applicable, purchased for each Customer as itemized in the applicable Order. Reseller warrants that prior to executing an Order, Reseller will obtain Customer’s acceptance of (a) each of the Order Details in items (i) – (vi) in Section 4.2 above (the “Customer Order Terms”), (b) any applicable SOW, and (c) the Ping Identity EULA.
4.4 Support Services will be included in the subscription to the Products, as indicated on the applicable Order. Unless otherwise agreed to by the Reseller and Ping Identity in writing, Ping Identity shall provide all Support Services directly to Customers. Ping Identity shall not be responsible to Customers for any support and maintenance services for non-Ping Identity products sold by Reseller. To the extent that a Customer’s Support Services policy entitles them to any service credit, and Customer submits a valid claim therefor, Ping Identity will provide the applicable service credit to Reseller and Reseller shall then remit it to the Customer. Reseller acknowledges and agrees that Ping Identity is not responsible for providing the service directly to the Customer. All service credits will be calculated based on the Fees charged under the relevant Order executed between Ping Identity and Reseller. Reseller agrees to pass the full amount of any such service credit to the Customer and Reseller agrees to be responsible for the additional amount, if any, if the service credit issued by Ping Identity results in a shortage based on fees charged by Reseller to Customer.
4.5 Reseller shall pay all fees specified in Orders (“Fees”). Unless otherwise agreed to by Ping Identity in an Order, Fees will be invoiced to Reseller upon execution of an Order, and payment of Fees shall be made by Reseller within thirty (30) days of receipt of Ping Identity’s invoice. Except as otherwise expressly specified herein or in an Order, Orders and related payment obligations are non-cancelable, and fees paid are non-refundable. Reseller’s payments to Ping Identity shall be made without deduction for taxes, imposts, customs, levies or other withholding (“Tax”) or shall be grossed‑up to provide Ping Identity the same amount after such Tax as it would have received without the imposition of such Tax, together with tax receipts or similar evidence of payment by Reseller. Reseller is responsible for collecting and remitting any and all Value-Added Tax (VAT) or other taxes due from the Customer. Any overdue payments shall bear interest payable to Ping Identity at the rate of one and a half percent (1.5%) per month, compounded monthly, or if such rate violates applicable law, then the maximum amount of interest chargeable under applicable law. Unless otherwise stated, all Fees in Orders are exclusive of Taxes. Payment obligations are not contingent upon Reseller’s receipt of any payments from Customer.
4.6 In addition to the fees set forth in the applicable Order, Ping Identity’s multi-factor authentication products and capabilities allow a Customer to utilize integrated third-party provider(s) to enable SMS and voice call authentication features for multi-factor authentication. Customers are not required to utilize this functionality, but in the event that a Customer elects to utilize any SMS or voice call features in Ping Identity’s multi-factor authentication products, Reseller will be responsible for all charges incurred by Ping Identity for Customer’s use, and Ping Identity will bill Reseller in arrears and all fees are due and payable as set forth in Section 4.5 above. Reseller is solely responsible for determining with Customer whether Customer will reimburse Reseller for such charges.
4.7 All Software shall be deemed to be accepted upon delivery by electronic download unless otherwise set forth in the Ping Identity EULA. Registration for the Service is accomplished through Ping Identity’s website. Reseller shall be responsible, at its own expense, for obtaining all necessary import permits and certificates (or any other documentation required by the government, with the exception that Ping Identity shall procure U.S. export licenses with Reseller’s cooperation, if applicable) and for the payment of any and all taxes and duties imposed on the delivery of the Products and Demo Products as set forth in the Order.
4.8 All right, title and interest to all Products, any related Documentation, and any Demo Products, including any enhancements, modifications or derivatives thereof, including any software development performed by Ping Identity, supplied to Reseller remains with Ping Identity (or, if applicable, Ping Identity’s third party licensor), including all intellectual property rights embodied in the foregoing, and shall not pass to Reseller or any Customer, or other third party.
5. Demo Products and Requirements.
5.1 In the event that Ping Identity provides Reseller with license keys and access to any Software, then subject to the terms of this Agreement, Ping Identity grants Reseller a personal, non‑exclusive, non‑transferable, non-sublicenseable license to use the Software solely for training and demonstration purposes (“Demo Software”), solely on and in connection with Reseller’s computers in non-production environment(s). Ping Identity shall have no obligation to provide Support Services for Demo Software. Reseller shall ensure that Demo Software does not become part of Reseller’s inventory. Subject to the terms of this Agreement, Ping Identity may also agree to provide Reseller with a no-charge subscription to the Service, in which case it may be utilized solely for demonstration and training purposes only during the term of this Agreement (“Demo Service” and together with the Demo Software, the “Demo Products”). Ping Identity may terminate any of the foregoing licenses or subscriptions to the Demo Products at any time upon written notice, or temporarily suspend access to the Demo Service if deemed necessary in Ping Identity’s reasonable discretion. Certain items of software included with the Demo Products are subject to the “open source” or “free software” licenses, which may be owned by third parties. Nothing in this document limits Reseller’s rights or obligations under the terms and conditions of any applicable end user license for such open source software. Reseller shall comply with all applicable laws, including without limitation export control laws, in its use of the Demo Products.
5.2 Reseller shall not utilize any rights to the Demo Products provided to Reseller hereunder except as permitted by Section 5.1, and Reseller represents and warrants that it will not utilize the Demo Products to process any personally identifiable information of actual persons, and will only operate the Demo Products in a non-production environment. Except as expressly set forth herein, Reseller will not, and will not allow any third party to: (i) license, sublicense, operate as a service bureau or managed service, or otherwise commercially exploit or make the Products or Demo Products available to any third party, other than to Customers as set forth herein or as otherwise contemplated by this Agreement; (ii) use the Products or Demo Products for Reseller’s own business use unless pursuant to a separate executed agreement between Ping Identity and Reseller; (iii) modify, copy, adapt, alter, translate or create derivative works of the Products or Demo Products; (iv) frame or mirror any content forming part of the Service or Demo Service, other than on Customer’s own intranets or otherwise for a Customer’s own internal business purposes; (v) reverse engineer, decompile or disassemble the Products or Demo Products (or otherwise attempt to derive the source code for the Products or Demo Products or underlying ideas or algorithms of the Products or Demo Products); (vi) take any action that would cause the Products or Demo Products (or any license or registration keys) to be placed in the public domain; (vii) remove, alter, or obscure any proprietary notices of Ping Identity, its licensors or supplier included in the Products or Demo Products; (viii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws through the Service or Demo Service; (ix) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (x) send or store any malicious code through or in the Service or Demo Service; (xi) interfere with or disrupt the integrity or performance of the Service, Demo Service or the data contained therein, including conducting any load or penetration testing on the Service or Demo Service; (xii) access the Products or Demo Products in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Products or Demo Products; (xiii) attempt to gain unauthorized access to the Service or Demo Service or its related systems or networks; or (xiv) publish or disclose to any third party any opinions relating to, or test results, benchmarking or comparative study involving any Product or Demo Product without the prior written consent of Ping Identity. In addition, except as expressly permitted hereunder with respect to Customers, Reseller shall keep the Products and Demo Products strictly confidential and shall not provide them or otherwise make them or any part thereof available to any third party.
5.3 Subject to the terms of the Agreement, Ping Identity will defend at its own expense any action against Reseller brought by a third party alleging that the Products or Demo Products, in each case, as delivered, infringe any patents issued as of the Effective Date or any copyrights or misappropriate any trade secrets, in each case, controlled by such third party in the U.S., Canada, the EU or any other jurisdiction set forth in an applicable Order, and Ping Identity will indemnify Reseller against those costs and damages finally awarded against Reseller in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Reseller: (i) notifying Ping Identity promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim; (ii) giving Ping Identity sole control of the defense thereof and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of Ping Identity to defend the claim; and (iii) cooperating and, at Ping Identity’s request and expense, assisting in such defense. If the Products or Demo Products become, or in Ping Identity’s sole opinion are likely to become, the subject of an infringement claim, Ping Identity may, at its option and expense, either: (a) procure for Reseller the right to continue to distributed the Products hereunder; (b) replace or modify the Products or Demo Products so that they become non-infringing; or (c) terminate this Agreement. Notwithstanding the foregoing, Ping Identity will have no obligation under this Section 5.3 or otherwise with respect to any infringement claim based upon: (w) any use or distribution of the Products or Demo Products not in accordance with this Agreement; (x) any use or distribution of the Products or Demo Products in combination with products, equipment, software, or data not supplied or approved in writing by Ping Identity if such infringement would have been avoided but for the combination with other products, equipment, software or data; (y) any use of a prior release of the Software or Demo Software after a more current release has been made available to Reseller; or (z) any modification of the Products or Demo Products by any person other than Ping Identity. This Section 5.3 states Ping Identity’s entire liability and Reseller’s exclusive remedy for any claims of infringement.
5.4 Reseller shall indemnify, defend and hold Ping Identity harmless from and against any claim, suit, or proceeding brought against Ping Identity based on (i) any acts or omissions on the part of Reseller in marketing or distributing the Products; (ii) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Reseller relating to the Products other than as authorized by Ping Identity in writing or made in Documentation, (iii) any breach by Reseller of Sections 2.2 or 4.3. The foregoing obligations are conditioned on Ping Identity: (a) notifying Reseller promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim; (b) giving Reseller sole control of the defense thereof and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of Reseller to defend the claim; and (c) cooperating and, at Reseller’s request and expense, assisting in such defense.
5.5 Reseller and Ping Identity agree to notify each other promptly in writing regarding possible infringement, unauthorized use or misappropriation of each other’s respective patents, trade secrets, trade names, trademarks and copyrights and agree to cooperate in each other’s actions, if any, with respect to the alleged infringement, unauthorized use or misappropriation of such intellectual property rights.
6. Warranty.
6.1 Software. Ping Identity warrants that for a period of ninety (90) days after applicable license keys have been made available to Reseller (the “Warranty Period”), the Software provided hereunder, when used as permitted under the Ping Identity EULA and in accordance with the instructions in the Documentation, will substantially conform to the specifications set forth in the Documentation. Ping Identity does not warrant that use of the Software will be error-free or uninterrupted. Reseller must notify Ping Identity in writing within the Warranty Period of any substantial non-conformity of the Software with the Documentation. Ping Identity’s sole obligation and Reseller’s exclusive remedy under this warranty is, at Ping Identity’s option, either (i) to use commercially reasonable efforts to correct such reproducible non-conformity in a manner determined by Ping Identity, (ii) to replace the Software containing the reproducible non-conformity, or (iii) refund the prepaid, unused license fees received by Ping Identity for the non-conforming Software, to be utilized for the satisfaction of similar warranty obligations of Ping Identity to Customer under the Ping Identity EULA.
6.2 Services. Ping Identity warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Ping Identity’s sole obligation and Reseller’s exclusive remedy under this warranty is, at Ping Identity’s option, either (i) correct the non-conformity with the above warranty, or (ii) refund the prepaid, unused subscription fees received by Ping Identity for the applicable Service, to be utilized for the satisfaction of similar warranty obligations of Ping Identity to Customer under the Ping Identity EULA.
6.3 Except for the express warranties set forth in this Agreement, Ping Identity disclaims all other warranties, express, implied or statutory, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement of third-party rights, with regard to any and all Products and Professional Services which may be sold, licensed or provided pursuant to this Agreement. All Demo Products are provided entirely “as is” and Ping Identity shall have no liability to Reseller in connection with its use of the Demo Products, notwithstanding anything to the contrary contained in this Agreement.
7. Limitation of Liability. Except in connection with a breach of Sections 3.2, 4.3, 5.2, 5.4, 8 or 12, or the obligations in Sections 5.3 and 5.4, neither party to this Agreement shall be liable to the other for (i) special, indirect, incidental or consequential damages, (ii) cost of procurement of substitute goods, services, rights, or technology, (iii) loss of revenues and loss of profits, or (iv) aggregate liability for all claims of any kind exceeding the amount paid or payable by Reseller to Ping Identity for the Products and Professional Services in the twelve (12) months prior to the claim, in each case arising from or relating to this Agreement, however caused and, whether in contract, tort or under any other theory of liability, even if the other party has been advised of the possibility of such damages.
8. Confidentiality of Documentation and Information. All documents and information supplied to a party (the “Receiving Party”) hereunder that is marked confidential, restricted, or otherwise subject to limited access, or would be reasonably understood to be confidential based on the nature of the information or the circumstances surrounding the disclosure (“Confidential Information”), are proprietary in nature and confidential to the party disclosing such information (the “Disclosing Party”). The Receiving Party agrees to maintain such documents and information in confidence, and not to disclose such information to a third party, or use such documents or information for any purpose other than the fulfillment of the mutual business purposes of the parties under this Agreement. The Receiving Party will disclose Confidential Information only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. To the extent Confidential Information of Ping Identity must be disclosed by Reseller to Customers, Reseller shall include in contracts with its Customers a clause notifying Customers of Ping Identity’s proprietary rights and requiring Customers to comply with the requirements imposed by this provision. The Receiving Party shall be liable to the Disclosing Party for the compliance with the terms of this section by any third parties to whom the Receiving Party provides Confidential Information of the Disclosing Party, as if such third party was the Receiving Party hereunder. This section shall survive any termination of this Agreement, and notwithstanding the above, nothing contained in this section shall restrict Ping Identity from entering into a direct contact or other contractual arrangements with Customers or prospective Customers.
9. Partner Training; Partner Professional Services.
9.1 Training. In order to maintain a given partner level as defined in the Partner Program Guide, Reseller must maintain the minimum number of trained staff based in the Territory. Minimum training must be attained within any given calendar year to retain or achieve partner tier status.
9.2 Ping Training Courses. Reseller may execute an Order for the purchase training credits or training subscriptions to access Ping Training courses and training for use by Reseller personnel. Reseller understands and agrees that access and use of the Ping Training courses is subject to supplemental terms available at http://www.pingidentity.com/product-terms (or its successor site) and such terms are incorporated herein solely with respect to such Ping Training courses.
9.3 Professional Services. Reseller and Ping Identity may enter into Orders that describe the specific Professional Services to be performed by Ping Identity for the benefit of the Reseller. If applicable, while on Reseller premises for the performance of Professional Services, Ping Identity personnel shall comply with reasonable Reseller rules and regulations regarding safety and conduct made known in writing to Ping Identity, and will, at Reseller’s reasonable request, promptly remove from the project any Ping Identity personnel not following such rules and regulations. Professional Services are limited solely to technical consultation or mentoring assistance regarding the Products.
9.4 Expenses. Unless otherwise specified in the applicable Order, upon invoice from Ping Identity, Ping Identity will reimburse Ping Identity for all pre-approved, reasonable expenses incurred by Ping Identity while performing the Professional Services, including without limitation, transportation services, lodging, and meal and out-of-pocket expenses related to the provision of the Professional Services. Ping Identity will include reasonably detailed documentation of all such expenses with each related invoice.
10. Use of Ping Identity’s Trade Name and Trademarks.
10.1 Ping Identity hereby authorizes and requires Reseller to retain on the Products any Ping Identity markings, logos, colors or other insignia which are affixed to the Products. All Reseller advertising and other promotional material for Products shall identify Ping Identity as originator of the Products, comply with Ping Identity’s policies on use of its name and marks, and be submitted to Ping Identity review and approval prior to release by Reseller. Additionally, Reseller has the limited right to use Ping Identity’s name and trademarks on its website, provided that all uses of the Ping Identity brand name is consistent with its branding policies and other content or usage guidelines.
10.2 Except as expressly provided in this Section 10, Ping Identity prohibits any other direct or indirect use, registration of, reference to, or other employment of its name, trademarks or trade names, or of any name, trademark or trade name owned or exclusively licensed by Ping Identity or any name, trademarks or trade names confusingly similar thereto, except as may be authorized in writing by Ping Identity. Reseller affirms and agrees that it and its agents have not and will not register any Ping Identity or Product trademarks or trade names or any forms thereof for use in connection with any business entity, offering, sale and/or support of computer equipment, software or services without the prior written approval of Ping Identity.
11. Term and Termination; Effects of Termination.
11.1 Term and Termination. The Agreement shall remain in effect until terminated in accordance with the following. Either party may terminate this Agreement in the event of a material breach of the terms of this Agreement that is not cured within thirty (30) days of written notice of such breach. In additional, either party may terminate this Agreement for convenience upon sixty (60) days prior written notice to the other party. Either party may terminate this Agreement immediately in the event of (i) a breach of Section 12 of the other party, or (ii) fifty percent (50%) or greater of the stock or assets of the other party is transferred to a third party, or if the other party otherwise comes under the control of a third party. Either party may terminate this Agreement upon ten (10) days’ written notice in the event that the other party files a petition in bankruptcy or has such a petition filed against it (which petition is not discharged within thirty (30) days after filing) or makes an assignment for the benefit of creditors, or if a receiver, trustee, custodian, or similar agent is appointed or takes possession of its assets, or if it generally ceases doing business in the ordinary course. Termination of this Agreement by either party shall not be deemed an election of remedies or waiver of any claims relating to the other party.
11.2 Effects of Termination. Upon termination of this Agreement, all rights and licenses to resell and distribute the Products, and utilize the Demo Products (except rights granted to a Customer under a Ping Identity EULA prior to such termination) shall immediately cease to exist. In addition, Reseller agrees it shall immediately cease to describe itself as a Ping Identity reseller and shall pay to Ping Identity, in full within thirty (30) days of such termination or expiration, all amounts owed to Ping Identity hereunder. Reseller shall cease using the Demo Products and either return to Ping Identity or destroy, at Ping Identity’s direction, any and all Demo Software, Documentation and Confidential Information, and certify it has returned or destroyed all originals and copies, in any form, of such materials. Termination of this Agreement shall not affect outstanding Orders for the benefit of Customers or any obligations thereunder, and this Agreement shall survive with respect to such Orders until their expiration or earlier termination. Reseller shall immediately discontinue the use of Ping Identity’s name or any Ping Identity markings, colors or other insignia authorized herein.
11.3 Survival. Any provisions that are by their nature intended to survive termination of this Agreement will continue to survive following termination.
12. Compliance with Laws.
12.1 Reseller represents and warrants that (i) it is not identified on the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”)’s Specially Designated Nationals and Blocked Persons (“SDN”) list and (ii) that it is not involved in business arrangements or otherwise engaged in transactions with or involving sanctioned countries or SDNs in violation of the regulations maintained by OFAC. Reseller agrees that it will notify Ping Identity promptly upon the occurrence of any event that would render this representation and warranty incorrect.
12.2 Reseller warrants that it shall not sell any Products or engage in any other transaction in, to, or with (i) any of the following countries: Cuba, Iran, Sudan, North Korea, Burma/Myanmar, Ivory Coast, Syria or the Crimean region of the Ukraine, or any other country that becomes subject to sanctions imposed by the U.S. Government, or (ii) any individual or entity that is listed in the following: (a) the SDN list; (b) List of Debarred Parties, Directorate of Defense Trade Controls, U.S. State Department; (c) Denied Persons List, Bureau of Industry and Security, U.S. Department of Commerce; (d) Entity List, Bureau of Industry and Security, U.S. Department of Commerce; (e) Unverified List, Bureau of Industry and Security, U.S. Department of Commerce; or (f) the Palestinian Legislative Counsel (PLC) List, Office of Foreign Assets Control, U.S. Treasury Department.
12.3 Reseller warrants that (i) it shall, in its performance of this Agreement, comply with all applicable laws, including the U.S. Foreign Corrupt Practices Act (15 U.S.C. Section 78dd-1, et seq.) as amended (the “FCPA”) and all other applicable Anti-Corruption Laws and U.S. Export Control Laws and (ii) it shall take no action that would cause Ping Identity to be in violation of the FCPA or any other applicable Anti-Corruption Laws. Reseller agrees that it will provide all information and cooperation reasonably requested by Ping Identity which relate to Reseller’s activities under this Agreement, so that Ping Identity may ensure compliance with this Section 12.3.
12.4 Reseller represents and warrants that it and its employees and agents have not, and will not, directly or indirectly through third parties, pay, promise or offer to pay, or authorize the payment of, any money or give any promise or offer to give, or authorize the giving of anything of value, to a Public Official or Entity for purposes of corruptly obtaining or retaining business for or with, or directing business to, any individual, corporation, partnership, limited liability company, trust, or any other entity, including, without limitation, Ping Identity or Reseller, by (i) influencing any official act, decision or omission of such Public Official or Entity; (ii) inducing such Public Official or Entity to do or omit to do any act in violation of the lawful duty of such Public Official or Entity; (iii) securing any improper advantage; or (iv) inducing such Public Official or Entity to affect or influence any act or decision of another Public Official or Entity. A “Public Official or Entity” means (i) any officer, employee, agent, representative, department, agency, de facto official, corporate entity, instrumentality or subdivision of any government, military or international organization, including, but not limited to, any state-owned or affiliated supplier or hospital, or (ii) any candidate for political office, any political party or any official of a political party.
12.5 Reseller represents and warrants that it and its employees and agents have not and will not directly or indirectly promise, offer or provide any corrupt payment, gratuity, emolument, bribe, kickback, excessive gift or hospitality or other illegal or unethical benefit to a Customer or to a Public Official or Entity, nor will it allow any payment, commission, reimbursement or fee paid by Ping Identity pursuant to this Agreement to be used in such a manner.
12.6 Reseller shall immediately notify Ping Identity if Reseller has any information or suspicion that there may be a violation of any Anti-Corruption Law in connection with the performance of this Agreement. Reseller shall keep full, true, and accurate records and accounts, in accordance with generally-accepted accounting principles, of each Product purchased and deployed, resold, or distributed, including information regarding compliance with export and transfer. Reseller shall make these records available for audit by or on behalf of Ping Identity upon thirty (30) days’ prior written notice, during regular business hours, at Reseller’s principal place of business or such other of Reseller’s locations where Reseller may maintain relevant records. In the event Ping Identity requires information from a Customer to which Reseller asserts it has resold Products, Reseller agrees to use all reasonable efforts to assist Ping Identity to obtain such information. Reseller additionally acknowledges that from time to time Ping Identity or its independent auditors may conduct additional specific audits with the purpose of monitoring and ensuring compliance by Reseller with Ping Identity’s policies and applicable laws. Such audits may include, without limitation, investigations in order to prevent the acquisition, use, promotion or resale of unauthorized or non-genuine products or adherence with this Section 12. When requested, Reseller shall co-operate with Ping Identity or its appointed auditors or investigators, and provide them with accurate and truthful information. In all cases, Reseller agrees to bear, and/or promptly repay to Ping Identity, all costs, fees and expenses, incurred by Ping Identity in the performance of any audit and/or investigation that discloses any breach of this Agreement by Reseller.
12.7 Reseller represents that no owner, shareholder (direct or beneficial), officer, director, employee, third-party representative, agent, or other individual with any direct or indirect beneficial interest in Reseller or any immediate family relation of any such person (collectively, “Interested Persons”), is a Public Official or Entity. Reseller shall notify Ping Identity immediately if, during the term of this Agreement, (i) any Interested Person becomes a Public Official or Entity, or (ii) any Public Official or Entity acquires a legal or beneficial interest in Reseller.
12.8 Reseller understands and acknowledges that the Products are subject to restrictions upon export from the United States and upon resale after export. Reseller agrees that it must not act or refrain from acting in any way which will violate any applicable import and/or export control laws or regulations, including U.S. Export Control Laws, and no party shall be required hereunder to act or omit to act in any way which it believes in good faith will violate any such laws or regulations. Reseller, if requested by Ping Identity, shall execute and deliver to Ping Identity a letter of written assurance concerning technical data and U.S. Export Administration Regulations.
12.9 Reseller warrants that it will comply with Ping Identity’s Anti-Corruption Policy available at https://www.pingidentity.com/en/legal/anticorruption.html.
12.10 Reseller makes all of the above representations, warranties and commitments in this Section 12 on behalf of itself, its Affiliates, and its distributors.
13. Definitions.
13.1 “Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
13.2 “Anti-Corruption Laws” mean all applicable laws, regulations, orders, judicial decisions, conventions and international financial institution rules regarding corruption, bribery, ethical business conduct, money laundering, political contributions, gifts and gratuities, or lawful expenses to public officials and private persons, agency relationships, commissions, lobbying, books and records, and financial controls, including without limitation the FCPA and UK Bribery Act 2010.
13.3 “Bid Document” means RFI, RFQ, RFP or other request for bid document.
13.4 “Customer” means each third party end user customer specified on the applicable Order to whom Reseller (or a distributor) resells the Products for internal business use by such Customer and not for redistribution or resale.
13.5 “Documentation” means Ping Identity’s then current on-line administrator user’s manuals for the Products made generally available by Ping Identity on its website.
13.6 “Mandatory Training” means the training requirement(s) that a Ping Identity partner is required to maintain during the Term according to the partner level, as outlined in the Partner Program Guide.
13.7 “Order” means any ordering document, including any product specific terms, supplements, or addenda thereto, for Reseller’s purchase of Products and Professional Services from Ping Identity that is executed by both Parties. Each Order is incorporated into the terms of this Agreement.
13.8 “Partner Program” means, collectively, the program benefits, rights and obligations of Partner and Ping Identity that are further described in the Partner Program Guide.
13.9 “Partner Program Guide” means then-current version of the Ping Nexus Partner Program Guide, which is available on the Ping Identity Partner Portal.
13.10 “Products” means the Software and the Service(s) that are permitted by Ping Identity to be resold hereunder from time to time as evidenced by an Order.
13.11 “Professional Services” means Ping Identity’s training courses or professional services that Reseller is eligible to resell hereunder from time to time as evidenced by an Order provided by Ping Identity to Reseller.
13.12 “Service(s)” means the web-based or mobile applications provided by Ping Identity that Reseller is eligible to resell hereunder.
13.13 “Software” means Ping Identity’s computer programs in machine readable form that Reseller is eligible to resell hereunder.
13.14 “Support Services” means those maintenance and support services provided by Ping Identity to Customer with respect to the Products.
13.15 “U.S. Export Control Laws” means all applicable U.S. laws and regulations relating to the export or re-export of commodities, technologies, or services, including, but not limited to, the Export Administration Act of 1979, 24 U.S.C. §§ 2401-2420, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706, the Trading with the Enemy Act, 50 U.S.C. §§ 1 et. seq., the Arms Export Control Act, 22 U.S.C. §§ 2778 and 2779, and the International Boycott Provisions of Section 999 of the U.S. Internal Revenue Code of 1986.
14. General.
14.1 This Agreement is the exclusive statement of the agreement between the parties with respect to its subject matter as of its date, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral. There are no third-party beneficiaries to this Agreement. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
14.2 Reseller acknowledges that both parties are independent contractors and that Reseller will, on its own behalf, solicit orders for Products and identify itself only as an independent contractor and not represent itself as a partner or joint‑venturer, or as an employee or general representative or agent of Ping Identity with the authority to obligate Ping Identity contractually.
14.3 Ping Identity and Reseller shall not be liable for any failure or delay in fulfilling the terms of this Agreement due to fire, strike, war, civil unrest, terrorist action, government regulations, acts of nature, or other causes which are unavoidable and beyond the reasonable control of the party claiming force majeure. This provision shall not be construed as relieving either party from its obligation to pay any sums due the other party.
14.4 Any notices provided for under this Agreement shall be deemed given upon delivery to the address listed in the first paragraph of this Agreement, or to such different address as either party may designate from time to time to the other pursuant to this Section, by a nationally recognized courier that provides confirmation of delivery. Notices to Ping Identity must always be accompanied by a copy of such notice delivered to legalnotice@pingidentity.com.
14.5 This Agreement may not be assigned, transferred, or delegated, in whole or part, by Reseller for any reason whatsoever without Ping Identity’s prior written consent. Ping Identity shall have the right to assign this Agreement or any Order or specific rights and duties hereunder to any subsidiary or Affiliate of Ping Identity. Any attempted assignment or transfer in violation hereof shall be null and void.
14.6 Reseller and Ping Identity agree that the validity, construction and performance of this Agreement shall be governed by the laws of the State of Colorado, excluding its conflict of law rule and the parties’ consent to the exclusive jurisdiction and venue of the state and federal courts located within the State of Colorado. The parties agree that the Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The governing language for this Agreement and for negotiation and resolution of any disputes related to this Agreement is the English language. Each party waives any right it may have under any law in any state or country to have the Agreement written in any language other than English.
14.7 If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in force and effect.
14.8 Headings used in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of each section. The parties acknowledge that they have been advised by counsel of their own choosing, or had the opportunity to seek such counsel, and that its terms will be interpreted without any bias against one party as drafter.
14.9 Any Orders may be executed by PDF or other electronic means, and in one or more counterparts, which taken together shall form one legal instrument.
Exhibit A
Co-Selling Schedule
1. Appointment of Co-Sell Partner. Subject to Reseller’s compliance with the terms and conditions of the Agreement, Ping Identity appoints Reseller, and Reseller accepts such appointment, as a nonexclusive, independent co-sell partner. In connection with any co-selling opportunity, Reseller shall ensure that: (i) Ping Identity is fully briefed about the opportunity; and (ii) Ping Identity has a reasonable amount of time to review any and approve documents which are intended to be submitted in response to the Bid Document.
2. Invitation and Response to Joint Opportunities. If either party is invited to participate by the other party in a joint bid on a particular client opportunity, such party shall provide the other party with a response on a timetable as mutually agreed upon by the parties in writing (which may be communicated via email) on a case-by-case basis. Any joint bid invitation extended by either party hereunder to the other party shall be in writing and shall set forth the bid parameters, including, but not limited to response time and exclusivity, governing such invitation, in each case, consistent with the requirements of the applicable bid.
3. Resales. Reseller will receive the applicable discounts off of Ping Identity’s list prices for the Products (excepting Professional Services and pass-through fees, which shall not be discounted) that are set forth in the Partner Program Guide The discounts scale depending on Reseller’s partnership tier as well as its role in the resale, such as:
· Reseller is acting as a fulfilment agent;
· Reseller did not source and register the opportunity with Ping Identity as set forth below; and
· Reseller sourced the opportunity and Ping Identity previously accepted Reseller’s registration of the resale as set forth below.
For renewals of previous resales, Reseller will receive the same discount that Reseller was entitled to on the original resale; provided that Ping Identity reserves the right to apply an annual uplift to the renewal.
4. Resale or Lead Registration. In order to obtain a discount for Reseller-registered opportunities, Reseller must register the resale or lead, as applicable, in Ping Identity’s partner portal, to enable Ping Identity to qualify the opportunity (each, a “Registration). At a minimum, the Registration shall include the following: (a) name of prospective Customer, (b) prospective Customer’s representative name, title, telephone number and/or email address, (c) the name of the Partner representative who contacted the prospective Customer, (d) estimated budget of the prospective Customer, (e) estimated timeframe for the prospective Customer ’s purchasing decision, (f) a short description of the opportunity including the estimated number of licenses, and (g) if the Registration is in response to a Bid Document, Partner shall include a copy of the Bid Document. Ping Identity will have three (3) business days to accept such registration. Ping Identity, in its sole discretion, may refuse to accept the registration for any reason. If Ping Identity does not communicate its acceptance in writing then it will be presumed that such registration is not accepted by Ping Identity. Reseller shall not make Products available to anyone without prior written approval from Ping Identity. Pricing offered to Partner for each registered opportunity shall be deemed Ping Identity Confidential Information pursuant to the terms of the Agreement. Nothing herein shall be deemed to create any exclusivity for any account or opportunity.
5. Competing Products. Ping Identity acknowledges that Reseller may have agreements in place with third parties that sell products and services that offer a similar solution as the solution offered by the Products (“Competing Product(s)”). Notwithstanding the foregoing, during the Term, Reseller agrees that it will not offer both a Competing Product and the Products to any potential Customer for the same opportunity. Ping Identity, in its reasonable discretion, will determine whether a product or service is a Competing Product. If Reseller offers a Competing Product in violation of this section, (i) Reseller will automatically forfeit any resale discount due to Reseller for any Customer lead or resale (as applicable) where Reseller also offered a Competing Product to such Customer and (ii) Ping Identity shall have the right to terminate this Agreement immediately upon notice to Reseller.
Exhibit B
Marketing and Publicity Requirements/Training Policies
1. Marketing and Publicity
1.1. Opt-in to Marketing. Reseller’s participation in the Partner Program will serve as an opt-in to receive Ping Identity’s marketing communications. Partner will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any Reseller employees or contractors who are signed up to the Partner Program on Reseller’s behalf. Reseller may elect to opt-out from receiving Ping Identity’s marketing materials by contacting Ping Identity directly.
1.2. Press Release. The parties shall issue a mutually agreeable joint press release, including a quote from a C-level executive of Reseller regarding how Reseller’s business is improved by the relationship with Ping Identity.
1.3. Joint Marketing. Reseller shall permit Ping Identity to list Reseller’s name and logo, identifying them as a Reseller of Ping Identity, on Ping Identity’s website and in printed promotional materials of Ping Identity. Reseller agrees to list Ping Identity on its website’s list of business associates (if applicable).
1.4. Co-participation. Reseller and Ping Identity shall mutually agree on joint participation at events, trade shows, web seminars or other venues.
1.5. Partner Programs. If Reseller has its own “partner program,” Ping Identity shall have the option, but not the obligation, to participate in the entry level of such program at no charge.
This reseller agreement (this “Agreement”) sets forth the legally binding terms for the resale of Products and/or Professional Services (each as defined herein). This Agreement is by and between Ping Identity Limited (“Ping Identity”) and the reseller entity on whose behalf you are executing this Agreement (“Reseller”). You represent that you have the authority to bind Reseller to the terms of this Agreement. By agreeing to the terms of this Agreement or by reselling any Products and/or Professional Services, Reseller expressly agrees to and consents to be bound by all of the terms of this Agreement. If Reseller does not agree to any of the terms of this Agreement, Reseller is prohibited from reselling any Products or Professional Services. The effective date of this Agreement is the date set forth on an Order Form that references these terms or, if earlier, the date on which Reseller resells any Products or Professional Services (the “Effective Date”).
1. Appointment/Territory.
1.1 Enrollment in Partner Program. By acceping this Agreement, Reseller is enrolling in the Partner Program. Reseller’s participation in the Partner Program and all grants herein shall be subject to Reseller compliance with the Agreement and the Partner Program Guide, including any applicable Mandatory Training requirements. Ping Identity offers varying tiers of membership to the Partner Program and each tier offers benefits to support Reseller’s growth. Ping Identity, in its sole discretion, will determine Reseller’s Program tier (as referenced in the Partner Program Guide) for the calendar year. Ping Identity will provide Reseller with email notice of its Partner Program tier, and any subsequent changes thereto, in accordance with its standard Partner Program practices. Reseller agrees it shall only represent itself as a member of the Partner Program tier designated and sanctioned by Ping Identity.
1.2 Changes to the Partner Program. Ping Identity reserves the right to change the terms of the Partner Program Guide upon publishing amended Partner Program documents or notice of the changes. Ping Identity also may modify or cancel benefits as described in the Partner Program Guide.
1.3 Appointment as Reseller. Subject to the terms and conditions of this Agreement, Ping Identity hereby appoints Reseller and Reseller accepts the appointment as Ping Identity’s non-exclusive reseller of the Products and Professional Services. Reseller does not have the right to distribute any other Ping Identity products or services not set forth in an Order does not have the right to appoint or authorize any third party to act as a dealer, agent, or reseller for the distribution of Products or Professional Services without Ping Identity’s prior written consent.
1.4 Territory. As used in this Agreement the term “Territory” means the country or jurisdiction set forth on an executed Order as the location of the Customer. Reseller shall not solicit Customers for the Products or Professional Services outside the Territory, unless otherwise agreed to in writing by Ping Identity. Ping Identity may refuse orders for Products or Professional Services to be delivered outside the Territory. Nothing in this Agreement shall prohibit or otherwise restrict Ping Identity from selling or licensing Products or Professional Services, directly or indirectly, to Customers within or outside the Territory.
1.5 Affiliates. Affiliates of Reseller may enter into Orders with Ping Identity subject to the terms and conditions of this Agreement, and in such instances shall be considered “Reseller” hereunder. Reseller will ensure that any such Affiliates have received a copy of and comply with the terms of this Agreement, and shall be liable to Ping Identity for the actions and omissions of its Affiliates as if such actions and omissions were those of Reseller hereunder. Ping Identity may perform some or all its obligations under this Agreement through Affiliates, provided, however, that Ping Identity shall remain responsible and be guarantor of the performance by its Affiliates and shall cause its Affiliates to comply with the provisions of this Agreement in connection with such performance.
2. Mutual Responsibilities. In the interest of promoting the Products in the Territory, Ping Identity and Reseller agree to:
2.1 Furnish each other with appropriate technical information for support and planning purposes; provided, however, that each party reserves the right, at its sole discretion, to determine the scope and content of such information.
2.2 Share mutually agreed categories of personally identifiable information of customers or potential customers and related personally identifiable information (collectively, “Customer Information”) with each other, subject to the disclosing party’s compliance with its privacy policies and any relevant agreements between the disclosing party and its customer. Each party warrants that Customer Information shall not contain any personal health information, credit card data, personal financial data or other sensitive data (as defined under applicable data privacy laws) that may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards.
(a) The party receiving such Customer Information may use the Customer Information provided to it by the other party only (i) in accordance with the purpose for which it was provided; and (ii) in compliance with global privacy laws. Each party will maintain and comply with its own privacy policy regarding the collection, storage and transfer of its Customer Information. Each party shall provide prompt written notification to the other in the event that an individual who has provided Customer Information subsequently opts-out or requests deletion of his/her personal data.
(b) Neither party may use any Customer Information that is provided to it by the other party (i) for any purpose other than as described in this Agreement; or (ii) to materially affect the employment of any individual employed by either party. Neither party is obligated to or will share data if the disclosure of such data would be in violation of the disclosing party’s own privacy policy.
(c) Reseller shall maintain complete and accurate records and information necessary to demonstrate its compliance with data protection legislation and Reseller's obligations under this Section 2.2. Reseller shall (i) make such records and information available to Ping Identity upon request and (ii) allow for and contribute to audits, including inspections, conducted by Ping Identity or another auditor mandated by Ping Identity with the purpose of monitoring and ensuring compliance by Reseller with global privacy laws.
2.3 Assist each other to develop appropriate educational and promotional materials and provide each other with copies of appropriate promotional documentation that each party’s sales organization may use for the purposes of this Agreement. Use of all such materials, however, to the extent they concern the other party’s products, shall be subject to prior approval by such other party.
2.4 Coordinate prospective customer calls in cases of joint product demonstrations or similar cooperative marketing or technical support efforts.
2.5 Offer training courses to Customers as required by the market. Ping Identity shall permit Reseller and its Customers to attend regularly scheduled Ping Identity courses at Ping Identity training facilities for a fee equivalent to Ping Identity’s then prevailing prices.
2.6 Participate in the marketing and training activities set forth in Exhibit B. The parties will conduct periodic meetings to monitor and review the Reseller’s marketing plan and its implementation to assist in the successful marketing and promotion of the Products.
3. Obligations. Reseller agrees, at its own expense, to:
3.1 Use its best efforts to introduce and promote the distribution of Products to Customers in the Territory, including the solicitation of orders for Products from Customers, and conduct its activities in an ethical manner and in a way that reflects favorably on Ping Identity.
3.2 With respect to the Products and Professional Services, resell such products solely under the standard subscription agreement terms and conditions available at https://www.pingidentity.com/en/legal/subscription-agreement.html (the “Ping Subscription Agreement”). In the event that a Customer does not agree to accept the Ping Subscription Agreement provided by Reseller, Reseller must notify Ping Identity prior to entering into an Order and Ping Identity may choose to negotiate a custom subscription agreement with the Customer, or such other form of agreement, as agreed between Ping Identity and the Customer (a “Customer Subscription Agreement”). In this instance, the Customer Subscription Agreement will govern Customer’s use of the Products or receipt of Professional Services. Whether a Customer’s use of the Products and receipt of Professional Services is governed by the Ping Subscription Agreement or Customer Subscription Agreement, for purposes of this Agreement, such governing agreement shall be referred to as the “Ping Identity EULA”. In no event will Reseller enter into its own licensing, subscription or similar agreement with a Customer with respect to Ping Identity Products or Professional Services, all such agreements shall be between Ping Identity and the Customer.
3.3 Furnish Ping Identity with written activity reports and sales forecasts as reasonably and mutually agreed, and provide reasonable and appropriate technical support for demonstrations and general sales promotion, as well as for exhibitions and promotional seminars addressed to Customers.
3.4 Distribute or publish Ping Identity’s approved advertising or promotional materials and only make references to, or claims about, Ping Identity or the Products that are set out in Ping Identity’s current sales literature. Reseller will not distribute or publish any advertising or promotional materials developed by Reseller relating to Products without Ping Identity’s prior written approval. Reseller may use previously approved materials without further authorization.
3.5 Notify Ping Identity of (i) any breach by any Customer of any terms contained in the Ping Identity EULA of which Reseller becomes aware, and (ii) any infringement or alleged infringement of the patents, copyrights, trade secrets, trademarks or other proprietary rights of Ping Identity or its Products of which Reseller becomes aware. Reseller shall provide all assistance as reasonably required by Ping Identity to assist in the enforcement of any and all terms contained in the Ping Identity EULA including, but not limited to, any assistance needed with respect to any claims of infringement and/or violation of any of Ping Identity’s proprietary rights related to the Products.
4. General Provisions for Purchase and Distribution of Products.
4.1 The Products and Professional Services eligible for purchase for resale under this Agreement are set out in an Order and/or Quote as set forth in Section 4.2 below, and Reseller’s discounts for such Products and Professional Services are specified in the Partner Program Guide. Pricing information shall be furnished by the Ping Identity and is subject to change upon thirty (30) days’ prior notice. In the event that Reseller issues a binding price quotation to a Customer and there is a subsequent price increase, Ping Identity shall allow Reseller to make a one-time purchase at the price applicable prior to the price increase provided that Reseller and Ping Identity enter into such Order within ninety (90) days of the notice of price change.
4.2 Reseller shall order Products or Professional Services hereunder by executing order forms with Ping Identity. To enter into an Order for resale of the Products and Professional Services, Reseller may request a written quote from Ping Identity (a “Quote”) that specifies, at a minimum: (i) the Customer’s full legal name and delivery address (which Reseller shall provide to Ping Identity upon request for a Quote); (ii) the applicable Products and/or Professional Services being resold; (iii) the subscription entitlements and/or restrictions for such Products or Professional Services (such as quantity limitations) (the “Entitlements”); (iv) any necessary definitions that correspond with the Entitlements on the Quote; (v) the subscription term dates for the Products, (vi) additional terms required to be accepted by Customer for such particular transaction that are not contained in the Ping Identity EULA, if any; (vii) the price to be paid to Ping Identity for such Order; (viii) Ping Identity’s Quote number; and (ix) special invoicing terms, if any (collectively, the “Order Details”). Upon execution of such Quote by Ping Identity and Reseller, such Quote will become a binding Order. If Professional Services are purchased for resale or for Reseller’s use, a statement of work, description of services, or similar document (an “SOW”) may be attached to the Quote and Order. Notwithstanding anything to the contrary contained in a Reseller purchase order, any terms or conditions contained on or referenced in such purchase order are specifically rejected by Ping Identity and shall have no force or effect.
4.3 Ping Identity hereby grants Reseller a personal, non-exclusive, non-transferable right to distribute the Products solely under the terms and conditions of this Agreement and the Ping Identity EULA as set forth in Section 3.2. Reseller shall not be permitted to distribute any Products beyond the maximum Entitlements, and any other restrictions, if and as applicable, purchased for each Customer as itemized in the applicable Order. Reseller warrants that prior to executing an Order, Reseller will obtain Customer’s acceptance of (a) each of the Order Details in items (i) – (vi) in Section 4.2 above (the “Customer Order Terms”), (b) any applicable SOW, and (c) the Ping Identity EULA.
4.4 Support Services will be included in the subscription to the Products, as indicated on the applicable Order. Unless otherwise agreed to by the Reseller and Ping Identity in writing, Ping Identity shall provide all Support Services directly to Customers. Ping Identity shall not be responsible to Customers for any support and maintenance services for non-Ping Identity products sold by Reseller. To the extent that a Customer’s Support Services policy entitles them to any service credit, and Customer submits a valid claim therefor, Ping Identity will provide the applicable service credit to Reseller and Reseller shall then remit it to the Customer. Reseller acknowledges and agrees that Ping Identity is not responsible for providing the service directly to the Customer. All service credits will be calculated based on the Fees charged under the relevant Order Form executed between Ping Identity and Reseller. Reseller agrees to pass the full amount of any such service credit to the Customer and Reseller agrees to be responsible for the additional amount, if any, if the service credit issued by Ping Identity results in a shortage based on fees charged by Reseller to Customer.
4.5 Reseller shall pay all fees specified in Orders (“Fees”). Unless otherwise agreed to by Ping Identity in an Order, Fees will be invoiced to Reseller upon execution of an Order, and payment of Fees shall be made by Reseller within thirty (30) days of receipt of Ping Identity’s invoice. Except as otherwise expressly specified herein or in an Order, Orders and related payment obligations are non-cancelable, and fees paid are non-refundable. Reseller’s payments to Ping Identity shall be made without deduction for taxes, imposts, customs, levies or other withholding (“Tax”) or shall be grossed‑up to provide Ping Identity the same amount after such Tax as it would have received without the imposition of such Tax, together with tax receipts or similar evidence of payment by Reseller. Reseller is responsible for collecting and remitting any and all Value-Added Tax (VAT) or other taxes due from the Customer. Any overdue payments shall bear interest payable to Ping Identity at the rate of one and a half percent (1.5%) per month, compounded monthly, or if such rate violates applicable law, then the maximum amount of interest chargeable under applicable law. Unless otherwise stated, all Fees in Orders are exclusive of Taxes. Payment obligations are not contingent upon Reseller’s receipt of any payments from Customer.
4.6 In addition to the fees set forth in the applicable Order, Ping Identity’s multi-factor authentication products and capabilities allow a Customer to utilize integrated third-party provider(s) to enable SMS and voice call authentication features for multi-factor authentication. Customers are not required to utilize this functionality, but in the event that a Customer elects to utilize any SMS or voice call features in Ping Identity’s multi-factor authentication products, Reseller will be responsible for all charges incurred by Ping Identity for Customer’s use, and Ping Identity will bill Reseller in arrears and all fees are due and payable as set forth in Section 4.5 above. Reseller is solely responsible for determining with Customer whether Customer will reimburse Reseller for such charges.
4.7 All Software shall be deemed to be accepted upon delivery by electronic download unless otherwise set forth in the Ping Identity EULA. Registration for the Service is accomplished through Ping Identity’s website. Reseller shall be responsible, at its own expense, for obtaining all necessary import permits and certificates (or any other documentation required by the government, with the exception that Ping Identity shall procure U.S. export licenses with Reseller’s cooperation, if applicable) and for the payment of any and all taxes and duties imposed on the delivery of the Products and Demo Products as set forth in the Order.
4.8 All right, title and interest to all Products, any related Documentation, and any Demo Products, including any enhancements, modifications or derivatives thereof, including any software development performed by Ping Identity, supplied to Reseller remains with Ping Identity (or, if applicable, Ping Identity’s third party licensor), including all intellectual property rights embodied in the foregoing, and shall not pass to Reseller or any Customer, or other third party.
5. Demo Products and Requirements.
5.1 In the event that Ping Identity provides Reseller with license keys and access to any Software, then subject to the terms of this Agreement, Ping Identity grants Reseller a personal, non‑exclusive, non‑transferable, non-sublicenseable license to use the Software solely for training and demonstration purposes (“Demo Software”), solely on and in connection with Reseller’s computers in non-production environment(s). Ping Identity shall have no obligation to provide Support Services for Demo Software. Reseller shall ensure that Demo Software does not become part of Reseller’s inventory. Subject to the terms of this Agreement, Ping Identity may also agree to provide Reseller with a no-charge subscription to the Service, in which case it may be utilized solely for demonstration and training purposes only during the term of this Agreement (“Demo Service” and together with the Demo Software, the “Demo Products”). Ping Identity may terminate any of the foregoing licenses or subscriptions to the Demo Products at any time upon written notice, or temporarily suspend access to the Demo Service if deemed necessary in Ping Identity’s reasonable discretion. Certain items of software included with the Demo Products are subject to the “open source” or “free software” licenses, which may be owned by third parties. Nothing in this document limits Reseller’s rights or obligations under the terms and conditions of any applicable end user license for such open source software. Reseller shall comply with all applicable laws, including without limitation export control laws, in its use of the Demo Products.
5.2 Reseller shall not utilize any rights to the Demo Products provided to Reseller hereunder except as permitted by Section 5.1, and Reseller represents and warrants that it will not utilize the Demo Products to process any personally identifiable information of actual persons, and will only operate the Demo Products in a non-production environment. Except as expressly set forth herein, Reseller will not, and will not allow any third party to: (i) license, sublicense, operate as a service bureau or managed service, or otherwise commercially exploit or make the Products or Demo Products available to any third party, other than to Customers as set forth herein or as otherwise contemplated by this Agreement; (ii) use the Products or Demo Products for Reseller’s own business use unless pursuant to a separate executed agreement between Ping Identity and Reseller; (iii) modify, copy, adapt, alter, translate or create derivative works of the Products or Demo Products; (iv) frame or mirror any content forming part of the Service or Demo Service, other than on Customer’s own intranets or otherwise for a Customer’s own internal business purposes; (v) reverse engineer, decompile or disassemble the Products or Demo Products (or otherwise attempt to derive the source code for the Products or Demo Products or underlying ideas or algorithms of the Products or Demo Products); (vi) take any action that would cause the Products or Demo Products (or any license or registration keys) to be placed in the public domain; (vii) remove, alter, or obscure any proprietary notices of Ping Identity, its licensors or supplier included in the Products or Demo Products; (viii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws through the Service or Demo Service; (ix) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (x) send or store any malicious code through or in the Service or Demo Service; (xi) interfere with or disrupt the integrity or performance of the Service, Demo Service or the data contained therein, including conducting any load or penetration testing on the Service or Demo Service; (xii) access the Products or Demo Products in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Products or Demo Products; (xiii) attempt to gain unauthorized access to the Service or Demo Service or its related systems or networks; or (xiv) publish or disclose to any third party any opinions relating to, or test results, benchmarking or comparative study involving any Product or Demo Product without the prior written consent of Ping Identity. In addition, except as expressly permitted hereunder with respect to Customers, Reseller shall keep the Products and Demo Products strictly confidential and shall not provide them or otherwise make them or any part thereof available to any third party.
5.3 Subject to the terms of the Agreement, Ping Identity will defend at its own expense any action against Reseller brought by a third party alleging that the Products or Demo Products, in each case, as delivered, infringe any patents issued as of the Effective Date or any copyrights or misappropriate any trade secrets, in each case, controlled by such third party in the U.S., Canada, the EU or any other jurisdiction set forth in an applicable Order, and Ping Identity will indemnify Reseller against those costs and damages finally awarded against Reseller in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Reseller: (i) notifying Ping Identity promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim; (ii) giving Ping Identity sole control of the defense thereof and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of Ping Identity to defend the claim; and (iii) cooperating and, at Ping Identity’s request and expense, assisting in such defense. If the Products or Demo Products become, or in Ping Identity’s sole opinion are likely to become, the subject of an infringement claim, Ping Identity may, at its option and expense, either: (a) procure for Reseller the right to continue to distributed the Products hereunder; (b) replace or modify the Products or Demo Products so that they become non-infringing; or (c) terminate this Agreement. Notwithstanding the foregoing, Ping Identity will have no obligation under this Section 5.3 or otherwise with respect to any infringement claim based upon: (w) any use or distribution of the Products or Demo Products not in accordance with this Agreement; (x) any use or distribution of the Products or Demo Products in combination with products, equipment, software, or data not supplied or approved in writing by Ping Identity if such infringement would have been avoided but for the combination with other products, equipment, software or data; (y) any use of a prior release of the Software or Demo Software after a more current release has been made available to Reseller; or (z) any modification of the Products or Demo Products by any person other than Ping Identity. This Section 5.3 states Ping Identity’s entire liability and reseller’s exclusive remedy for any claims of infringement.
5.4 Reseller shall indemnify, defend and hold Ping Identity harmless from and against any claim, suit, or proceeding brought against Ping Identity based on (i) any acts or omissions on the part of Reseller in marketing or distributing the Products; (ii) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Reseller relating to the Products other than as authorized by Ping Identity in writing or made in Documentation, (iii) any breach by Reseller of Sections 2.2 or 4.3. The foregoing obligations are conditioned on Ping Identity: (a) notifying Reseller promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim; (b) giving Reseller sole control of the defense thereof and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of Reseller to defend the claim; and (c) cooperating and, at Reseller’s request and expense, assisting in such defense.
5.5 Reseller and Ping Identity agree to notify each other promptly in writing regarding possible infringement, unauthorized use or misappropriation of each other’s respective patents, trade secrets, trade names, trademarks and copyrights and agree to cooperate in each other’s actions, if any, with respect to the alleged infringement, unauthorized use or misappropriation of such intellectual property rights.
6. Warranty.
6.1 Software. Ping Identity warrants that for a period of ninety (90) days after applicable license keys have been made available to Reseller (the “Warranty Period”), the Software provided hereunder, when used as permitted under the Ping Identity EULA and in accordance with the instructions in the Documentation, will substantially conform to the specifications set forth in the Documentation. Ping Identity does not warrant that use of the Software will be error-free or uninterrupted. Reseller must notify Ping Identity in writing within the Warranty Period of any substantial non-conformity of the Software with the Documentation. Ping Identity’s sole obligation and Reseller’s exclusive remedy under this warranty is, at Ping Identity’s option, either (i) to use commercially reasonable efforts to correct such reproducible non-conformity in a manner determined by Ping Identity, (ii) to replace the Software containing the reproducible non-conformity, or (iii) refund the prepaid, unused license fees received by Ping Identity for the non-conforming Software, to be utilized for the satisfaction of similar warranty obligations of Ping Identity to Customer under the Ping Identity EULA.
6.2 Services. Supplier warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof, and that the functionality of the Services will not be materially decreased during a subscription term. Ping Identity’s sole obligation and Reseller’s exclusive remedy under this warranty is, at Ping Identity’s option, either (i) correct the non-conformity with the above warranty, or (ii) refund the prepaid, unused subscription fees received by Ping Identity for the applicable Service, to be utilized for the satisfaction of similar warranty obligations of Ping Identity to Customer under the Ping Identity EULA.
6.3 Except for the express warranties set forth in this Agreement, Ping Identity disclaims all other warranties, express, implied, or statutory, including but not limited to the implied warranties of merchantability, products and professional services, which may be sold, licensed or provided pursuant to this Agreement. All Demo Products are provided entirely “as is” and Ping Identity shall have no liability to Reseller in connection with its use of the Demo Products, notwithstanding anything to the contrary contained in this Agreement.
7. Limitation of Liability.
7.1 Limitation on Damages. To the extent not prohibited by law, except as set forth in Section 7.3, in no event shall either party’s aggregate liability for all claims, whether in contract, tort (including negligence and strict liability) or under any other theory of liability, exceed the amount paid or payable by Reseller to Ping Identity for the Products and Professional Services in the twelve (12) months prior to the claim. The foregoing shall not limit Reseller’s payment obligations.
7.2 Exclusions of Consequential Damages. In no event shall either party be liable to the other for (i) special, indirect, incidental, or consequential damages of any kind, (ii) cost of procurement of substitute goods, services, rights, or technology; or (iii) loss of revenues and loss of profits, however caused, even if the other party has been advised of the possibility of such damages.
7.3 Exclusion from Limitation. The limitations of liability under Section 7.1 shall not apply to (a) death or personal injury caused by either party’s negligence; (b) for breach of any condition as to title or quiet enjoyment implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; (c) for fraud or fraudulent misrepresentation; (d) in connection with a breach of Sections 3.2, 4.3, 5.2, 5.4, 8 or 12; (e) in connection with the obligations in Sections 5.3 and 5.4; or (f) for any other liability that cannot be excluded or limited under English law.
8. Confidentiality of Documentation and Information. All documents and information supplied to a party (the “Receiving Party”) hereunder that is marked confidential, restricted, or otherwise subject to limited access, or would be reasonably understood to be confidential based on the nature of the information or the circumstances surrounding the disclosure (“Confidential Information”), are proprietary in nature and confidential to the party disclosing such information (the “Disclosing Party”). The Receiving Party agrees to maintain such documents and information in confidence, and not to disclose such information to a third party, or use such documents or information for any purpose other than the fulfillment of the mutual business purposes of the parties under this Agreement. The Receiving Party will disclose Confidential Information only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. To the extent Confidential Information of Ping Identity must be disclosed by Reseller to Customers, Reseller shall include in contracts with its Customers a clause notifying Customers of Ping Identity’s proprietary rights and requiring Customers to comply with the requirements imposed by this provision. The Receiving Party shall be liable to the Disclosing Party for the compliance with the terms of this section by any third parties to whom the Receiving Party provides Confidential Information of the Disclosing Party, as if such third party was the Receiving Party hereunder. This section shall survive any termination of this Agreement, and notwithstanding the above, nothing contained in this section shall restrict Ping Identity from entering into a direct contact or other contractual arrangements with Customers or prospective Customers.
9. PARTNER TRAINING; PARTNER PROFESSIONAL SERVICES
9.1. Training. In order to maintain a given partner level as defined in the Partner Program Guide, Reseller must maintain the minimum number of trained staff based in the Territory. Minimum training must be attained within any given calendar year to retain or achieve partner tier status.
9.2. Ping Training Courses. Reseller may execute an Order for the purchase training credits or training subscriptions to access Ping Training courses and training for use by Reseller personnel. Reseller understands and agrees that access and use of the Ping Training courses is subject to supplemental terms available at http://www.pingidentity.com/product-terms (or its successor site) and such terms are incorporated herein solely with respect to such Ping Training courses.
9.3. Professional Services. Reseller and Ping Identity may enter into Orders that describe the specific Professional Services to be performed by Ping Identity for the benefit of the Reseller. If applicable, while on Reseller premises for the performance of Professional Services, Ping Identity personnel shall comply with reasonable Reseller rules and regulations regarding safety and conduct made known in writing to Ping Identity, and will, at Reseller’s reasonable request, promptly remove from the project any Ping Identity personnel not following such rules and regulations. Professional Services are limited solely to technical consultation or mentoring assistance regarding the Products.
9.4. Expenses. Unless otherwise specified in the applicable Order, upon invoice from Ping Identity, Ping Identity will reimburse Ping Identity for all pre-approved, reasonable expenses incurred by Ping Identity while performing the Professional Services, including without limitation, transportation services, lodging, and meal and out-of-pocket expenses related to the provision of the Professional Services. Ping Identity will include reasonably detailed documentation of all such expenses with each related invoice.
10. Use of Ping Identity’s Trade Name and Trademarks.
10.1 Ping Identity hereby authorizes and requires Reseller to retain on the Products any Ping Identity markings, logos, colors or other insignia which are affixed to the Products. All Reseller advertising and other promotional material for Products shall identify Ping Identity as originator of the Products, comply with Ping Identity’s policies on use of its name and marks, and be submitted to Ping Identity review and approval prior to release by Reseller. Additionally, Reseller has the limited right to use Ping Identity’s name and trademarks on its website, provided that all uses of the Ping Identity brand name is consistent with its branding policies and other content or usage guidelines.
10.2 Except as expressly provided in this Section 9, Ping Identity prohibits any other direct or indirect use, registration of, reference to, or other employment of its name, trademarks or trade names, or of any name, trademark or trade name owned or exclusively licensed by Ping Identity or any name, trademarks or trade names confusingly similar thereto, except as may be authorized in writing by Ping Identity. Reseller affirms and agrees that it and its agents have not and will not register any Ping Identity or Product trademarks or trade names or any forms thereof for use in connection with any business entity, offering, sale and/or support of computer equipment, software or services without the prior written approval of Ping Identity.
11. Term and Termination; Effects of Termination.
11.1 Term and Termination. The Agreement shall remain in effect until terminated in accordance with the following. Either party may terminate this Agreement in the event of a material breach of the terms of this Agreement that is not cured within thirty (30) days of written notice of such breach. In additional, either party may terminate this Agreement for convenience upon sixty (60) days prior written notice to the other party. Either party may terminate this Agreement immediately in the event of (i) a breach of Section 11 of the other party, or (ii) fifty percent (50%) or greater of the stock or assets of the other party is transferred to a third party, or if the other party otherwise comes under the control of a third party. Either party may terminate this Agreement upon ten (10) days’ written notice in the event that the other party files a petition in bankruptcy or has such a petition filed against it (which petition is not discharged within thirty (30) days after filing) or makes an assignment for the benefit of creditors, or if a receiver, trustee, custodian, or similar agent is appointed or takes possession of its assets, or if it generally ceases doing business in the ordinary course. Termination of this Agreement by either party shall not be deemed an election of remedies or waiver of any claims relating to the other party.
11.2 Effects of Termination. Upon termination of this Agreement, all rights and licenses to resell and distribute the Products, and utilize the Demo Products (except rights granted to a Customer under a Ping Identity EULA prior to such termination) shall immediately cease to exist. In addition, Reseller agrees it shall immediately cease to describe itself as a Ping Identity reseller and shall pay to Ping Identity, in full within thirty (30) days of such termination or expiration, all amounts owed to Ping Identity hereunder. Reseller shall cease using the Demo Products and either return to Ping Identity or destroy, at Ping Identity’s direction, any and all Demo Software, Documentation and Confidential Information, and certify it has returned or destroyed all originals and copies, in any form, of such materials. Termination of this Agreement shall not affect outstanding Orders for the benefit of Customers or any obligations thereunder, and this Agreement shall survive with respect to such Orders until their expiration or earlier termination. Reseller shall immediately discontinue the use of Ping Identity’s name or any Ping Identity markings, colors or other insignia authorized herein.
11.3 Survival. Any provisions that are by their nature intended to survive termination of this Agreement will continue to survive following termination.
12. Compliance with Laws.
12.1 Reseller represents and warrants that (i) it is not identified on the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”)’s Specially Designated Nationals and Blocked Persons (“SDN”) list and (ii) that it is not involved in business arrangements or otherwise engaged in transactions with or involving sanctioned countries or SDNs in violation of the regulations maintained by OFAC. Reseller agrees that it will notify Ping Identity promptly upon the occurrence of any event that would render this representation and warranty incorrect.
12.2 Reseller warrants that it shall not sell any Products or engage in any other transaction in, to, or with (i) any of the following countries: Cuba, Iran, Sudan, North Korea, Burma/Myanmar, Ivory Coast, Syria or the Crimean region of the Ukraine, or any other country that becomes subject to sanctions imposed by the U.S. Government, or (ii) any individual or entity that is listed in the following: (a) the SDN list; (b) List of Debarred Parties, Directorate of Defense Trade Controls, U.S. State Department; (c) Denied Persons List, Bureau of Industry and Security, U.S. Department of Commerce; (d) Entity List, Bureau of Industry and Security, U.S. Department of Commerce; (e) Unverified List, Bureau of Industry and Security, U.S. Department of Commerce; or (f) the Palestinian Legislative Counsel (PLC) List, Office of Foreign Assets Control, U.S. Treasury Department.
12.3 Reseller warrants that (i) it shall, in its performance of this Agreement, comply with all applicable laws, including the Bribery Act 2010 as amended and all other applicable Anti-Corruption Laws and US Export Control Laws and (ii) it shall take no action that would cause Ping Identity to be in violation of the FCPA or any other applicable Anti-Corruption Laws. Reseller agrees that it will provide all information and cooperation reasonably requested by Ping Identity which relate to Reseller’s activities under this Agreement, so that Ping Identity may ensure compliance with this Section 11.3.
12.4 Reseller represents and warrants that it and its employees and agents have not, and will not, directly or indirectly through third parties, pay, promise or offer to pay, or authorize the payment of, any money or give any promise or offer to give, or authorize the giving of anything of value, to a Public Official or Entity for purposes of corruptly obtaining or retaining business for or with, or directing business to, any individual, corporation, partnership, limited liability company, trust, or any other entity, including, without limitation, Ping Identity or Reseller, by (i) influencing any official act, decision or omission of such Public Official or Entity; (ii) inducing such Public Official or Entity to do or omit to do any act in violation of the lawful duty of such Public Official or Entity; (iii) securing any improper advantage; or (iv) inducing such Public Official or Entity to affect or influence any act or decision of another Public Official or Entity. A “Public Official or Entity” means (i) any officer, employee, agent, representative, department, agency, de facto official, corporate entity, instrumentality or subdivision of any government, military or international organization, including, but not limited to, any state-owned or affiliated supplier or hospital, or (ii) any candidate for political office, any political party or any official of a political party.
12.5 Reseller represents and warrants that it and its employees and agents have not and will not directly or indirectly promise, offer or provide any corrupt payment, gratuity, emolument, bribe, kickback, excessive gift or hospitality or other illegal or unethical benefit to a Customer or to a Public Official or Entity, nor will it allow any payment, commission, reimbursement or fee paid by Ping Identity pursuant to this Agreement to be used in such a manner.
12.6 Reseller shall immediately notify Ping Identity if Reseller has any information or suspicion that there may be a violation of any Anti-Corruption Law in connection with the performance of this Agreement. Reseller shall keep full, true, and accurate records and accounts, in accordance with generally-accepted accounting principles, of each Product purchased and deployed, resold, or distributed, including information regarding compliance with export and transfer. Reseller shall make these records available for audit by or on behalf of Ping Identity upon thirty (30) days’ prior written notice, during regular business hours, at Reseller’s principal place of business or such other of Reseller’s locations where Reseller may maintain relevant records. In the event Ping Identity requires information from a Customer to which Reseller asserts it has resold Products, Reseller agrees to use all reasonable efforts to assist Ping Identity to obtain such information. Reseller additionally acknowledges that from time to time Ping Identity or its independent auditors may conduct additional specific audits with the purpose of monitoring and ensuring compliance by Reseller with Ping Identity’s policies and applicable laws. Such audits may include, without limitation, investigations in order to prevent the acquisition, use, promotion or resale of unauthorized or non-genuine products or adherence with this Section 12. When requested, Reseller shall co-operate with Ping Identity or its appointed auditors or investigators, and provide them with accurate and truthful information. In all cases, Reseller agrees to bear, and/or promptly repay to Ping Identity, all costs, fees and expenses, incurred by Ping Identity in the performance of any audit and/or investigation that discloses any breach of this Agreement by Reseller.
12.7 Reseller represents that no owner, shareholder (direct or beneficial), officer, director, employee, third-party representative, agent, or other individual with any direct or indirect beneficial interest in Reseller or any immediate family relation of any such person (collectively, “Interested Persons”), is a Public Official or Entity. Reseller shall notify Ping Identity immediately if, during the term of this Agreement, (i) any Interested Person becomes a Public Official or Entity, or (ii) any Public Official or Entity acquires a legal or beneficial interest in Reseller.
12.8 Reseller understands and acknowledges that the Products are subject to restrictions upon export from the United States and upon resale after export. Reseller agrees that it must not act or refrain from acting in any way which will violate any applicable import and/or export control laws or regulations, including U.S. Export Control Laws, and no party shall be required hereunder to act or omit to act in any way which it believes in good faith will violate any such laws or regulations. Reseller, if requested by Ping Identity, shall execute and deliver to Ping Identity a letter of written assurance concerning technical data and U.S. Export Administration Regulations.
12.9 Reseller warrants that it will comply with Ping Identity’s Anti-Corruption Policy available at https://www.pingidentity.com/en/legal/anticorruption.html.
12.10 Reseller makes all of the above representations, warranties and commitments in this Section 12 on behalf of itself, its Affiliates, and its distributors.
13. Definitions.
13.1 “Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
13.2 “Anti-Corruption Laws” mean all applicable laws, regulations, orders, judicial decisions, conventions and international financial institution rules regarding corruption, bribery, ethical business conduct, money laundering, political contributions, gifts and gratuities, or lawful expenses to public officials and private persons, agency relationships, commissions, lobbying, books and records, and financial controls, including without limitation the FCPA and UK Bribery Act 2010.
13.3 “Bid Document” means RFI, RFQ, RFP or other request for bid document.
13.4 “Customer” means each third party end user customer specified on the applicable Order to whom Reseller (or a distributor) resells the Products for internal business use by such Customer and not for redistribution or resale.
13.5 “Documentation” means Ping Identity’s then current on-line administrator user’s manuals for the Products made generally available by Ping Identity on its website.
13.6 “Mandatory Training” means the training requirement(s) that a Ping Identity partner is required to maintain during the Term according to the partner level, as outlined in the Partner Program Guide.
13.7 “Order” means any ordering document, including any product specific terms, supplements, or addenda thereto, for Reseller’s purchase of Products and Professional Services from Ping Identity that is executed by both Parties. Each Order is incorporated into the terms of this Agreement.
13.8 “Partner Program” means, collectively, the program benefits, rights and obligations of Partner and Ping Identity that are further described in the Partner Program Guide.
13.9 “Partner Program Guide” means then-current version of the Ping Nexus Partner Program Guide, which is available on the Ping Identity Partner Portal.
13.10 “Products” means the Software and the Service(s) that are permitted by Ping Identity to be resold hereunder from time to time as evidenced by an Order.
13.11 “Professional Services” means Ping Identity’s training courses or professional services that Reseller is eligible to resell hereunder from time to time as evidenced by an Order provided by Ping Identity to Reseller.
13.12 “Service(s)” means the web-based or mobile applications provided by Ping Identity that Reseller is eligible to resell hereunder.
13.13 “Software” means Ping Identity’s computer programs in machine readable form that Reseller is eligible to resell hereunder.
13.14 “Support Services” means those maintenance and support services provided by Ping Identity to Customer with respect to the Products.
13.15 “U.S. Export Control Laws” means all applicable U.S. laws and regulations relating to the export or re-export of commodities, technologies, or services, including, but not limited to, the Export Administration Act of 1979, 24 U.S.C. §§ 2401-2420, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706, the Trading with the Enemy Act, 50 U.S.C. §§ 1 et. seq., the Arms Export Control Act, 22 U.S.C. §§ 2778 and 2779, and the International Boycott Provisions of Section 999 of the U.S. Internal Revenue Code of 1986.
14. General.
14.1 This Agreement is the exclusive statement of the agreement between the parties with respect to its subject matter as of its date, and supersedes all prior agreements, negotiations, representations, and proposals, written or oral. There are no third-party beneficiaries to this Agreement. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
14.2 Reseller acknowledges that both parties are independent contractors and that Reseller will, on its own behalf, solicit orders for Products and identify itself only as an independent contractor and not represent itself as a partner or joint‑venturer, or as an employee or general representative or agent of Ping Identity with the authority to obligate Ping Identity contractually.
14.3 Ping Identity and Reseller shall not be liable for any failure or delay in fulfilling the terms of this Agreement due to fire, strike, war, civil unrest, terrorist action, government regulations, acts of nature, or other causes which are unavoidable and beyond the reasonable control of the party claiming force majeure. This provision shall not be construed as relieving either party from its obligation to pay any sums due the other party.
14.4 Any notices provided for under this Agreement shall be deemed given upon delivery to the address listed in the first paragraph of this Agreement, or to such different address as either party may designate from time to time to the other pursuant to this Section, by a nationally recognized courier that provides confirmation of delivery. Notices to Ping Identity must always be accompanied by a copy of such notice delivered to legalnotice@pingidentity.com.
14.5 This Agreement may not be assigned, transferred, or delegated, in whole or part, by Reseller for any reason whatsoever without Ping Identity’s prior written consent. Ping Identity shall have the right to assign this Agreement or any Order or specific rights and duties hereunder to any subsidiary or Affiliate of Ping Identity. Any attempted assignment or transfer in violation hereof shall be null and void.
14.6 Reseller and Ping Identity agree that the validity, construction, and performance of this Agreement shall be governed by the laws of England and Wales, excluding its conflict of law rule and the parties’ consent to the exclusive jurisdiction and venue of the appropriate court located in London, England. The parties agree that the Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The governing language for this Agreement and for negotiation and resolution of any disputes related to this Agreement is the English language. Each party waives any right it may have under any law in any state or country to have the Agreement written in any language other than English. The substantially prevailing party will be entitled to reasonable costs and reasonable legal fees.
14.7 If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in force and effect.
14.8 Headings used in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of each section. The parties acknowledge that they have been advised by counsel of their own choosing, or had the opportunity to seek such counsel, and that its terms will be interpreted without any bias against one party as drafter.
14.9 Any Orders may be executed by PDF or other electronic means, and in one or more counterparts, which taken together shall form one legal instrument.
Exhibit A
Co-Selling Schedule
1. Appointment of Co-Sell Partner. Subject to Reseller’s compliance with the terms and conditions of the Agreement, Ping Identity appoints Reseller, and Reseller accepts such appointment, as a nonexclusive, independent co-sell partner. In connection with any co-selling opportunity, Reseller shall ensure that: (i) Ping Identity is fully briefed about the opportunity; and (ii) Ping Identity has a reasonable amount of time to review any and approve documents which are intended to be submitted in response to the Bid Document.
2. Invitation and Response to Joint Opportunities. If either party is invited to participate by the other party in a joint bid on a particular client opportunity, such party shall provide the other party with a response on a timetable as mutually agreed upon by the parties in writing (which may be communicated via email) on a case-by-case basis. Any joint bid invitation extended by either party hereunder to the other party shall be in writing and shall set forth the bid parameters, including, but not limited to response time and exclusivity, governing such invitation, in each case, consistent with the requirements of the applicable bid.
3. Resales. Reseller will receive the applicable discounts off of Ping Identity’s list prices for the Products (excepting Professional Services and pass-through fees, which shall not be discounted) that are set forth in the Partner Program Guide The discounts scale depending on Reseller’s partnership tier as well as its role in the resale, such as:
For renewals of previous resales, Reseller will receive the same discount that Reseller was entitled to on the original resale; provided that Ping Identity reserves the right to apply an annual uplift to the renewal.
4. Resale or Lead Registration. In order to obtain a discount for Reseller-registered opportunities, Reseller must register the resale or lead, as applicable, in Ping Identity’s partner portal, to enable Ping Identity to qualify the opportunity (each, a “Registration). At a minimum, the Registration shall include the following: (a) name of prospective Customer, (b) prospective Customer’s representative name, title, telephone number and/or email address, (c) the name of the Partner representative who contacted the prospective Customer, (d) estimated budget of the prospective Customer, (e) estimated timeframe for the prospective Customer ’s purchasing decision, (f) a short description of the opportunity including the estimated number of licenses, and (g) if the Registration is in response to a Bid Document, Partner shall include a copy of the Bid Document. Ping Identity will have three (3) business days to accept such registration. Ping Identity, in its sole discretion, may refuse to accept the registration for any reason. If Ping Identity does not communicate its acceptance in writing then it will be presumed that such registration is not accepted by Ping Identity. Reseller shall not make Products available to anyone without prior written approval from Ping Identity. Pricing offered to Partner for each registered opportunity shall be deemed Ping Identity Confidential Information pursuant to the terms of the Agreement. Nothing herein shall be deemed to create any exclusivity for any account or opportunity.
5. Competing Products. Ping Identity acknowledges that Reseller may have agreements in place with third parties that sell products and services that offer a similar solution as the solution offered by the Products (“Competing Product(s)”). Notwithstanding the foregoing, during the Term, Reseller agrees that it will not offer both a Competing Product and the Products to any potential Customer for the same opportunity. Ping Identity, in its reasonable discretion, will determine whether a product or service is a Competing Product. If Reseller offers a Competing Product in violation of this section, (i) Reseller will automatically forfeit any resale discount due to Reseller for any Customer lead or resale (as applicable) where Reseller also offered a Competing Product to such Customer and (ii) Ping Identity shall have the right to terminate this Agreement immediately upon notice to Reseller.
Exhibit B
Marketing and Publicity Requirements/Training Policies
1. Marking and Publicity
1.1. Opt-in to Marketing. Reseller’s participation in the Partner Program will serve as an opt-in to receive Ping Identity’s marketing communications. Partner will be presumed to have provided appropriate notices and have obtained appropriate consents, if required, from any Reseller employees or contractors who are signed up to the Partner Program on Reseller’s behalf. Reseller may elect to opt-out from receiving Ping Identity’s marketing materials by contacting Ping Identity directly.
1.2. Press Release. The parties shall issue a mutually agreeable joint press release, including a quote from a C-level executive of Reseller regarding how Reseller’s business is improved by the relationship with Ping Identity.
1.3. Joint Marketing. Reseller shall permit Ping Identity to list Reseller’s name and logo, identifying them as a Reseller of Ping Identity, on Ping Identity’s website and in printed promotional materials of Ping Identity. Reseller agrees to list Ping Identity on its website’s list of business associates (if applicable).
1.4. Co-participation. Reseller and Ping Identity shall mutually agree on joint participation at events, trade shows, web seminars or other venues.
1.5. Partner Programs. If Reseller has its own “partner program,” Ping Identity shall have the option, but not the obligation, to participate in the entry level of such program at no charge.