KnowBe4 Managed Service Provider Agreement

MANAGED SERVICE PROVIDER AGREEMENT

THIS MANAGED SERVICE PROVIDER AGREEMENT (THE "AGREEMENT") GOVERNS MSP’S RESALE AND PROVISION OF MANAGED SERVICES FOR KNOWBE4’S SUBSCRIPTION SERVICES. “KNOWBE4” SHALL MEAN KNOWBE4, INC. AND ITS SUBSIDIARIES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. THE TERMS OF THIS AGREEMENT SHALL ONLY BECOME BINDING, AND MSP SHALL ONLY BE CONSIDERED FORMALLY ACCEPTED INTO KNOWBE4'S PARTNER PROGRAM, UPON MSP BEING GRANTED FORMAL APPROVAL BY KNOWBE4 AFTER COMPLETING THE NECESSARY PARTNER PROGRAM APPLICATION PROCESS AND RECEIVING THE COUNTERSIGNED CHANNEL ONBOARDING FORM SIGNED BY AN AUTHORIZED REPRESENTATIVE OF KNOWBE4 (THE “EFFECTIVE DATE”). UNTIL SUCH TIME AS THESE CONDITIONS ARE MET, MSP HAS NO AUTHORITY TO ACT UNDER THIS AGREEMENT, AND ANY ACTIONS TAKEN BY MSP IN RELATION TO THE RESELLING AND/OR PROVISION OF MANAGED SERVICES FOR KNOWBE4’S SUBSCRIPTION SERVICES ARE INVALID AND UNAUTHORIZED. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF AN ORGANIZATION OR LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE THE FULL POWER AND AUTHORITY TO BIND SUCH ORGANIZATION AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MSP” SHALL REFER TO SUCH ORGANIZATION AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT, AND THE RESALE AND PROVISION OF MANAGED SERVICES FOR THE SUBSCRIPTION SERVICES IS NOT AUTHORIZED. MSP and KnowBe4 may be referred to in this Agreement individually as a “party” or jointly as the “parties.” This Agreement governs all resale and provision of managed services of KnowBe4’s Subscription Services, as described herein. KnowBe4 may update or make changes to this Agreement from time to time. KnowBe4 encourages MSP to periodically review and check this Agreement for updates to stay informed about the terms that govern MSP’s resale and provision of managed services for KnowBe4’s Subscription Services. MSP’s continued resale of the Subscription Services and/or provision of managed services of KnowBe4’s Subscription Services, after KnowBe4 makes any changes, is deemed to be an acceptance of those changes. The Subscription Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, or as otherwise restricted by this Agreement. KnowBe4’s direct competitors, including any affiliates (or third party agents acting on behalf of such direct competitors, including any affiliates), are prohibited from accessing the Subscription Services.

1. DEFINITIONS. For the purposes of this Agreement:
   “Affiliate” means an entity that, directly or indirectly, through one or more entities, controls; is controlled by; or is under common control with, the specified entity. For purposes of the preceding sentence, “control”, when used with respect to an entity, means the power to direct management and policies of the entity, directly or indirectly, whether through ownership of voting securities, by contract, or otherwise. “Confidential Information” means all information or material disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, which: (a) gives either party some competitive business advantage or opportunity of obtaining some competitive business advantage, or the disclosure of which could be detrimental to the interests of the Disclosing Party; and (b) is either (i) marked “Confidential,” “Restricted,” or “Proprietary” or includes other similar markings; (ii) known by the parties to be considered confidential and proprietary; or (iii) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. The Subscription Services are deemed Confidential Information of KnowBe4.
   “Customer" means an entity to whom MSP resells Subscription Services for that entity’s own use (and that of its Users) solely in connection with that entity’s internal business operations and not for transfer or resale of any kind.
   "Customer Data" means any data or other information collected from Customers through the Subscription Services or input into the Subscription Services by Customers including, but not limited to, Personal Data and/or any customer content or materials derived, processed, or stored through the Subscription Services by Customer or on behalf of Customer
   "Data Privacy Laws" means, as the case may be, if and when applicable, the EU General Data Protection Regulation 2016/679 (“GDPR”), the implementing acts of the foregoing by the Member States of the European Union and/or Singapore’s Personal Data Protection Act of 2012, the Act on Protection of Personal Information (“APPI”) of Japan, the Lei Geral De Proteção De Dados (“LGPD”) of Brazil, the Protection of Personal Information Act (“POPIA”) of South Africa, and/or any other Applicable Law or regulation relating to the protection of Personal Data, personally identifiable information or protected health information.
   "Documentation" means KnowBe4’s then-current generally available documentation, specifications, guides, user manuals, etc., for the Subscription Services and Professional Services, located at knowbe4.zendesk.com/hc/en-us or such other URL as KnowBe4 may provide from time to time.
   "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
   “Maintenance and Support” means maintenance and support services provided by MSP to Customers and its Users to the extent necessary. Maintenance and Support shall be the sole responsibility of MSP, at MSP’s sole expertise, cost, and expense, and shall not include maintenance services or call center support for MSP customers provided by KnowBe4.
   “Managed Services” means all technical training, Customer and/or User training, system administration training, Maintenance and Support, Professional Services, or any other services provided by MSP to Customers and its Users. MSP may charge Customers for Managed Services, as MSP may determine, as long as any such charges are in line with the KnowBe4 MSP Standards of Engagement.
   "Mark(s)" means any trademark, service mark, trade name, logo, domain name, or other indicator of source, affiliation, or sponsorship, whether registered or unregistered.
   “Marketing Materials" means any advertising, promotional, or marketing materials for or relating to the Subscription Services that KnowBe4 may make available to MSP from time to time during the Term.
   “MSP Standards of Engagement" means KnowBe4’s most current document that outlines the rules of engagement for any KnowBe4 MSP, located at knowbe4.com/managed-service-provider-standards-of-engagement, or such other URL locations on KnowBe4’s website as KnowBe4 may provide from time to time.
   “Partner Code of Conduct” means the then-current KnowBe4 ethical and behavioral requirements for channel partners, located at knowbe4.com/partner-code-of-conduct, or such other URL locations on KnowBe4’s website as KnowBe4 may provide from time to time.
   “Partner Portal” means the KnowBe4 website for channel partners to access their account details, policies, and additional information relating to the KnowBe4 Partner Program, currently accessible by logging in at knowbe4.com/partners or such other URL locations KnowBe4 may provide from time to time.
   “Partner Program” means, collectively, KnowBe4’s channel partner program, including without limitation, any benefits, rights, obligations, and restrictions of KnowBe4’s channel partners as described in this Agreement, the Partner Portal documentation (including without limitation the Partner Program Guide), as well as any associated documentation, terms, guidelines and agreements as may be provided to KnowBe4’s channel partners from time to time.
   “Personal Data” means personally identifiable information as defined by applicable law. MSP will be responsible for obtaining all rights, permissions, and authorizations to provide Customer Data to KnowBe4 for use as contemplated under this Agreement.
   “Privacy Policy” means KnowBe4’s Product Privacy Notice located at knowbe4.com/product-privacy-notice, or such other URL locations KnowBe4 may provide from time to time.
   “Professional Services” means any professional services, including implementation and installation services, managed services, consultancy services, or services for the customization or branding of Training Content as would be detailed in a separately executed statement of work (“SOW”).
   “Quote” means a purchasing document, or other similar document, such as a purchase order or SOW, in connection with a purchase under this Agreement between MSP and KnowBe4.
   “Representative(s)” means with respect to a party, the party’s and its subsidiaries, Affiliates, or any of its or their respective employees, officers, directors, partners, shareholders, managers, attorneys, accountants, lenders, advisors, independent contractors, representatives, or agents.
   “Seats” means the number of Users allowed access to the Subscription Services at any given time.
   "Software" mmeans the object code version of any Software that may be licensed by a Customer for installation on the Customer’s systems, subject to the Terms of Service. To the extent KnowBe4 makes available any updates or enhancements, such updates and enhancements will be included in the definition of “Software”.
   "Subscription Services" means any Web Hosted Services, Software, Support Services, Professional Services, Training Content, and/or other services that KnowBe4 offers, and such upgrades, enhancements, new versions or releases, bug fixes, and any workarounds that KnowBe4 makes available pursuant to this Agreement, including any Documentation.
   “Terms of Service" means KnowBe4’s then-current subscription terms setting forth the terms and conditions of a Customer’s, and its End User's, permitted use of one or more Subscription Services. A copy of the latest Terms of Service is available online at knowbe4.com/terms, or such other URL locations on KnowBe4’s website as KnowBe4 may provide from time to time, which may be amended from time to time in KnowBe4’s sole discretion.
   “Territory” means the geographical area described in Schedule A. If Schedule A is left blank, then the Territory will be defined as North America, which means Canada and the United States.
   “Training Content” means digital courseware, training modules, testing and training templates, games, posters, artwork, videos, newsletters, security documents, or other content and materials provided by KnowBe4 and/or its third party licensors.
   “User(s)” means a Customer’s authorized affiliated users (i.e., Customer’s employees, independent contractors, or individual members that are a part of Customer’s organization) with an assigned unique organizational email address (i.e., an email address using domain names that Customer owns or is authorized by the domain name owner to use for the purposes contemplated herein), who may access the applicable Subscription Services.
   “Web Hosted Services” means an application and/or database services hosted by KnowBe4 or its agents and made available for remote access and use by Customers subject to the Terms of Service.

2. APPOINTMENT

   2. 2.1Non-exclusive MSP. Subject to, and conditioned on, MSP’s compliance with this Agreement, KnowBe4 hereby: (a) appoints MSP as an authorized non-exclusive managed service provider for KnowBe4’s Subscription Services in the Territory during the Term; and (b) authorizes MSP, during the Term, to describe itself in promotional, advertising, and marketing materials as an "authorized MSP" of KnowBe4’s Subscription Services.
   3. 2.2Grant of Rights. Subject to, and conditioned on, MSP’s compliance with the terms and conditions of this Agreement, and solely in connection with MSP’s appointment and for the purposes of its operation as a non-exclusive authorized MSP pursuant to this Section and in accordance with the MSP Standards of Engagement, KnowBe4 hereby grants MSP and its authorized Affiliates, the non-exclusive right and authority to purchase from KnowBe4 and subsequently market and and sell the Subscription Services with its managed services to Customers in the Territory on a per-seat, subscription basis subject to, and in accordance with, the Terms of Service during the Term of this Agreement.
   4. 2.3MSP’s User Count. The Subscription Services are licensed and provided to MSP on a per Seat basis. MSP is not permitted to interchange Seats with its Customers. MSP may only reassign Seats to a new Customer if the MSP’s contract with the previous Customer terminates. Upon first request, MSP shall provide KnowBe4 sufficient documentation in order to show compliance with this Section. All Seat or domain add-ons and changes require separate approval by KnowBe4.
   5. 2.4Data. MSP grants KnowBe4 a non-exclusive, world-wide, royalty-free license to use the data and other information input by MSP (or Customers/Users) into the Subscription Services (“Data”) in order to perform KnowBe4’s obligations under this Agreement, in compliance with applicable Data Privacy Laws. MSP shall be responsible for obtaining all rights, permissions, and authorizations to provide Data to KnowBe4. Except for the limited license granted in this Section, nothing contained in this Agreement shall be construed as granting KnowBe4 any right, title, or interest in Data. Data shall be deemed Confidential Information by both MSP and KnowBe4.
   6. 2.5Reservation of Rights. With the intent of ensuring Customer satisfaction, and for the performance of KnowBe4’s duties and obligations as a subcontractor for the provision of any Subscription Services, KnowBe4 will retain access to the Subscription Services, including any Customer or MSP accounts, consistent with this Agreement, the Terms of Service, Privacy Policy, and as may be required by law. Nothing in this Agreement in any way limits, impairs, or restricts KnowBe4’s right or ability to access the Subscription Services, contact, or work with, Customers who purchased or use KnowBe4’s Subscription Services or prospects who are interested in purchasing and using KnowBe4’s Subscription Services. KnowBe4 reserves the right to have direct communications with any parties, including prospects or Customers, that purchase and/or are provided access to the KnowBe4 Subscription Services through MSP, in accordance with the Terms of Service.
   7. 2.6Relationship of the Parties; No Franchise Relationship. The parties to this Agreement are independent contractors and nothing in this Agreement will be deemed or construed as creating a joint venture, partnership, agency relationship, business opportunity, or franchise between KnowBe4 and MSP. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. If any provisions of this Agreement are deemed to create a franchise relationship, or MSP alleges such a relationship with KnowBe4 arising out of or in connection with this Agreement, the parties may negotiate in good faith to modify this Agreement so as to reflect as closely as possible their original intent in entering into this Agreement in order that the transactions contemplated hereby be consummated pursuant to an independent contract and not a franchise relationship, or at its option, KnowBe4 may terminate this Agreement immediately. Without prejudice to the foregoing or any other provision in this Agreement, MSP hereby waives and relinquishes, to the full extent permissible under applicable law, any rights or claims under franchise or similar laws arising out of or in connection with this Agreement.
   8. 2.7No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver; estoppel; or otherwise, to MSP or any third party any Intellectual Property Rights or any other right, title or interest in or to any of the Software or Subscription Services. All uses in this Agreement of the terms "sell," "sale," "resell," "resale," "purchase," "price," and the like mean the purchase or sale of access to the Subscription Services to Customers on a per seat, subscription basis: (a) in the case of MSP, under this Agreement; and (b) in the case of Customers, under the Terms of Service. Nothing in this Agreement grants or conveys, or permits MSP to grant or convey, any ownership right in any of the Intellectual Property Rights of KnowBe4.
   9. 2.8Data Protection. MSP hereby represents and warrants that it is able to, and that it shall, comply with all applicable Data Privacy Laws in connection with the Subscription Services it provides to any of its Customers and/or Users. MSP shall ensure all necessary safeguards and agreements are in place in order to ensure the proper handling of any data subject to applicable Data Privacy Laws. The MSP shall notify KnowBe4 of any obligations KnowBe4 may have under applicable Data Privacy Laws prior to transferring or storing any such data in or in conjunction with KnowBe4’s Subscription Services and Professional Services. Each party to this Agreement hereby acknowledges that it shall comply with the obligations applicable to it under applicable Data Privacy Laws with respect to the processing of Customer Data. MSP additionally agrees that it shall:
      4. 2.8.1implement appropriate security (including both organizational and technical) measures prior to, and during, the processing of any Data to protect against, without limitation, the accidental; unlawful; or unauthorized access, use, transfer, destruction, loss, alteration, commingling, disclosure, or processing of Data and ensure a level of security appropriate to the risks presented by the processing of Data and the nature of such Data, and ensure these measures shall remain in place throughout the duration of the processing of Data or until MSP ceases to process Data (whichever is later);
      5. 2.8.2treat Data with strict confidence and take all reasonable steps to ensure that persons MSP employs and/or persons engaged at MSP’s place(s) of business who will process Data are aware of, and will comply with, this Agreement and are under a duty of confidentiality with respect to Data no less restrictive than the duties set forth herein; (c) not transfer Data to third parties except under written contracts that guarantee at least a level of data protection and information security as provided for herein; and (d) remain fully liable to KnowBe4 for any third party’s failure to so comply;
      6. 2.8.3promptly give written notice to, and fully cooperate with, KnowBe4: (a) if for any reason: (i) MSP cannot comply, or has not complied, with its Controller or Processor activities, or (ii) if MSP breaches, or if MSP’s continued processing of KnowBe4 or Data would breach, any applicable Data Privacy Law. In such cases, MSP shall take reasonable and appropriate steps to remedy any non-compliance, or cease further processing of KnowBe4 or Data, and KnowBe4 may immediately terminate the access to KnowBe4 or Data, immediately terminate the entire Agreement, or take any other reasonable action; and (b) regarding: (i) any breach of security or unauthorized access to KnowBe4 or Data that MSP detects or becomes aware of, or (ii) any complaint, inquiry, or request from a data subject or government or regulatory agency regarding KnowBe4 or Data, unless such notice is prohibited by law;
      7. 2.8.4refrain from notifying or responding to any data subject, government, regulatory agency, or other third party, for or on behalf of KnowBe4 or any KnowBe4 personnel, unless KnowBe4 specifically requests in writing that MSP do so, except as and when otherwise required by applicable Data Privacy Law. MSP agrees and acknowledges that if KnowBe4 receives a request from a government or regulatory agency, KnowBe4 may share the terms of this Agreement, any other Agreement(s) between MSP and KnowBe4, and any other information to demonstrate compliance with this Agreement or applicable Data Privacy Laws; and
      8. 2.8.5MSP acknowledges that KnowBe4 shall not be liable for any breach of security or unauthorized access to Data, including Customer Data, resulting from MSP’s failure to secure the data or otherwise from MSP’s breach of this Agreement or applicable data protection laws.

    

3. RESTRICTIONS

   3. 3.1Generally. Without limiting the foregoing, except as otherwise expressly permitted in this Agreement, MSP, including its Representatives, shall not, and will not:
      1. use any Subscription Services for MSP’s own internal business operations unless it enters into a separate agreement with KnowBe4 permitting such use;
      2. market, distribute, license, or otherwise make available any Subscription Services at any time during which MSP is not in compliance with this Agreement, KnowBe4’s Standards of Engagement, and any terms associated or acknowledged by way of the Partner Portal;
      3. use KnowBe4’s intellectual property or Confidential Information to develop a competitive offering or otherwise copy KnowBe4’s content, materials, and/or user interface for the development of similar services;
      4. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of any Subscription Service or any portion thereof;
      5. bypass, breach, or disable any security device, copy control, or other protection used by any Subscription Service, or induce or assist any individual or entity to do so;
      6. represent itself as an agent of KnowBe4, commit KnowBe4 to any contracts, or incur any obligation or liability whatsoever on behalf of KnowBe4 for any purpose;
      7. make any representations, warranties, guarantees, indemnities, claims, or other commitments: (1) actually, apparently, or impliedly made on KnowBe4’s behalf; or (2) concerning or relating to any Subscription Services that are in addition to, or inconsistent with, any then-existing representations, warranties, guarantees, indemnities, claims, or other commitments in this Agreement, the Terms of Service, the Documentation, or any written documents provided or made available by KnowBe4 to MSP that concern or relate to the Subscription Services;
      8. license, purchase, or otherwise procure the Subscription Services from any individual or entity other than KnowBe4 unless authorized in writing by KnowBe4;
      9. access or use the Subscription Services for purposes of benchmarking or competitive analysis of such Subscription Services;
      10. market, distribute, license, or otherwise make available any Subscription Services through third parties, except as expressly permitted by this Agreement;
      11. remove, delete, add to, alter, or obscure the Documentation or any warranties, disclaimers, copyright, trademark, patent, or other intellectual property, proprietary rights, or other notices, or any marks or symbols that appear on or in connection with any Subscription Services provided or directed by, or on behalf of, KnowBe4; or
      12. under, or in connection with any part of, this Agreement or its subject matter, perform any act that, or fail to perform any act that the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any individual or entity, or otherwise violate any applicable law.
   4. 3.2Notification and Mitigation of Violations. If MSP becomes aware that it, or any individual or entity (including Customers and Users), have breached, or intend to breach, any restrictions set forth herein, the MSP shall promptly notify KnowBe4 of the known, or potential, violation and shall take commercially reasonable efforts to assist KnowBe4 in enforcing compliance.
   5. 3.3No Authority to Bind to Additional Terms. Unless otherwise separately agreed to in writing between KnowBe4 and MSP, no provisions required in any customer contract or subcontract related thereto shall be a part of this Agreement, imposed on or binding on KnowBe4. This Agreement is not deemed an acceptance of any provisions that may be included or referenced in any request for quotation, purchase order, or any other document received or issued by MSP. KNOWBE4 SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A MSP-PROVIDED OR CUSTOMER-PROVIDED PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN WILL NOT BECOME PART OF THE AGREEMENT OR THE TERMS OF SERVICE AND, SPECIFICALLY, THAT THE TERMS OF THIS AGREEMENT AND THE TERMS OF SERVICE WILL SUPERSEDE AND REPLACE ANY AND ALL TERMS IN ANY PURCHASE ORDER OR SIMILAR DOCUMENT.

    

4. OBLIGATIONS OF MSP

   4. 4.1Marketing and Resale. At all times during the Term, MSP will, in accordance with the terms and conditions of this Agreement and at its own cost:
      1. resell the Subscription Services under the Terms of Service, and promptly report to KnowBe4 in writing if it becomes aware of actual or suspected non-compliance with the Terms of Service;
      2. advertise, promote, market, and resell the Subscription Services and provide its services under this Agreement in a professional, workmanlike manner to Customers using MSP’s best efforts to maximize revenues and Customer satisfaction;
      3. meet the minimum seat license, revenue, or retention thresholds set forth in the Partner Portal;
      4. maintain sufficient knowledge of the industry and services competitive with the KnowBe4 Subscription Services (including specifications, features, and benefits) so as to be able to explain in detail to the Customers the differences between the KnowBe4 Subscription Services and competing services, as well as information on standard protocols and features of each of the Subscription Services;
      5. comply with the then-current KnowBe4 Partner Code of Conduct, including KnowBe4’s advertising, promotion, and marketing policies relating to the Subscription Services;
      6. before publicly disseminating or using any MSP-created advertising, promotional, or marketing materials for any Subscription Services, supply a representative sample of such materials to KnowBe4 for prior written approval;
      7. promptly give KnowBe4 written notice of, investigate, and appropriately address any notice, complaint, or claim of which MSP becomes aware concerning any data security breach, personal injury, property damage, injury, or other damage alleged to have been caused, in whole or in part, by any act or omission of MSP under or in connection with this Agreement;
      8. promptly give notice to KnowBe4 of any and all warranty claims, suspected errors, bugs, or other problems associated with the Subscription Services of which MSP becomes aware; and
      9. conduct business in accordance with applicable law and in a manner that is consistent with good business practice and reflects favorably at all times on the Subscription Services and the good name, goodwill, and reputation of KnowBe4;
      10. maintain an Anti-Bribery and Corruption Program (“ABC Program”) that includes anti-bribery and anti-corruption policies, procedures, annual trainings, and mechanisms to measure the effectiveness of such program;
      11. in the event any of the requirements under 4.1(j) cannot be satisfied, MSP agrees to abide by KnowBe4’s Partner Anti-Corruption Policy located at knowbe4.com/anti-corruption-policy or such other URL locations on KnowBe4’s website as KnowBe4 may provide from time to time (the “KnowBe4 Partner Anti-Corruption Policy”), and agrees to cause any Representatives, whether directly or indirectly, to: acknowledge and abide by the KnowBe4 Partner Anti-Corruption Policy before the provision of any services; implement mechanisms to monitor the effectiveness of its internal ABC Program or the KnowBe4 Partner Anti-Corruption Policy, as applicable, before the provision of any services; and complete KnowBe4’s Anti-Bribery and Corruption training modules located in the KnowBe4 Partner Portal before the provision of any services, and have such Representatives complete the training modules at least on an annual basis;
      12. abide by the provisions of all applicable anti-bribery and anti-corruption laws (such as the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act of 2010) in its activities under this Agreement; and
      13. take measures to ensure non-affiliated organizations or individuals (e.g., consultants, intermediaries, public relations agencies, marketing agencies, logistics providers, customs brokers) who will be used in the activities under the Agreement substantially comply with it and in particular this Section 4.1.
   5. 4.2Audit of Compliance. KnowBe4 reserves the right to audit MSP’s compliance, and request a certification of compliance, with each of the above subsections in 4.1 and this Section 4.
   6. 4.3MSP Personnel. MSP will at all times market, distribute, maintain, support, and provide services arising from, connected with, or relating to the Subscription Services only through employees or agents of MSP or its Affiliates in the Territory who are thoroughly knowledgeable about how to use, demonstrate, promote, maintain, and support the Subscription Services and who agree to comply with this Agreement. MSP shall ensure that any personnel who will be performing activities under this Agreement, prior to such performance, have satisfactorily completed a background investigation, reasonable for the given role, and subject to applicable law. MSP acknowledges the principles set forth in KnowBe4’s Partner Code of Conduct, and MSP and each of its personnel will act consistently with those applicable toMSPs performance under this Agreement. MSP’s failure to abide by the Partner Code of Conduct shall be deemed a material breach of this Agreement.
   7. 4.4Registration of Customers. MSP shall register all Customers and their Users to receive the Subscription Services.
   8. 4.5Authority and Consent of Customers/Users. By providing the Subscription Services, MSP acknowledges that it and its Customers’ and their Users’ data shall be processed by KnowBe4 in accordance with KnowBe4’s DPA, this Agreement, and applicable Documentation. By using the Subscription Services or submitting data via the Subscription Services, MSP expressly consents to such processes. MSP represents and warrants that it has, and will maintain, all proper consents, rights, and authority to provide data about a Customer, User, or otherwise a named person or entity, and to provide the Subscription Services and Managed Services to such Customers, Users, or named persons or entities.
   9. 4.6Maintenance and Support; Training. MSP will be the principal point of contact for its Customers and will use its best efforts to assist Customers with, including but not limited to, Maintenance and Support; all technical, user, and system administration training; and any Professional Services. MSP may charge Customers for such services as MSP may determine in its sole discretion. In line with the MSP Standards of Engagement, MSP is solely and exclusively responsible and liable for the quality and adequacy of any Managed Services and the results thereof. For the avoidance of doubt, KnowBe4 agrees to provide MSP with training and other services in accordance with KnowBe4’s current Service Level Agreement (“SLA”), as it deems necessary to enable MSP to provide Managed Services to its Customers. The current version of the SLA is accessible at knowbe4.com/terms.
   10. 4.7Terms of Service. Purchases of the Subscription Services by Customers will be subject to KnowBe4’s Terms of Service. In the event MSP enters into a direct contract with Customer governing Customer’s use of KnowBe4’s Subscription Services, MSP will flow down and bind Customers to the Terms of Service and/or the same or substantially similar protections and contractual obligations, provided they are no less protective of, or no more onerous for, KnowBe4 as those established in the Terms of Service as an agreement between MSP and Customers. In any event, MSP is responsible for independently entering into and negotiating any and all pricing and payment related terms between MSP and its Customers. MSP will take commercially reasonable steps to ensure each Customer’s, and User’s, compliance with the Terms of Service and applicable law. Upon reasonable request by KnowBe4, MSP will assist with enforcing such terms and/or the Terms of Service.
   11. 4.8Certifications and Performance Requirements. At all times during the Term of this Agreement, MSP shall have and maintain all required certifications, credentials, licenses, registrations, approvals, and permits necessary to lawfully conduct business and in accordance with this Agreement. MSP additionally confirms that, as of the Effective Date, MSP meets all KnowBe4 requirements set forth in the MSP Standards of Engagement and confirms that it shall maintain such compliance, as KnowBe4 reasonably adjusts or changes its MSP Standards of Engagement from time to time.
   12. 4.9Security and Passwords. Access to, and use of, certain of the Subscription Services requires use of a username and password. Usernames and passwords may not be shared with other persons. MSP shall use best efforts to prevent the misuse of usernames and passwords issued to MSP, Customers, Users, and their respective employees and Representatives. MSP must immediately notify KnowBe4 if MSP discovers or suspects any unauthorized use of the Subscription Services, or if MSP knows of or suspects that any of the user names or passwords have been lost, been stolen, or become known to any unauthorized person, and MSP shall take immediate action to change such account login information. If KnowBe4, in its absolute discretion, considers a password to be insecure or to have been used inappropriately, then KnowBe4 may immediately cancel the password and shall provide prompt written notice to MSP. Such notice may be in paper or electronic format.

    

5. OBLIGATIONS OF KNOWBE4

   5. 5.1Data Security. Data is and will be maintained using current industry standard administrative, physical, and technical safeguards that are designed to provide for the protection of the security, confidentiality and integrity of Data. KnowBe4’s security safeguards include means for preventing access, use, modification, or disclosure of Data by unauthorized individuals. Notwithstanding the foregoing, Data access may be provided: (a) to KnowBe4 and its Representatives to provide the Subscription Services and Maintenance and Support; (b) as compelled or permitted by applicable law; (c) as set forth in the Privacy Policy; (d) as set forth in this Agreement or the Terms of Service; and/or (e) as otherwise expressly permitted by MSP.
   6. 5.2Marketing. KnowBe4 shall provide to MSP such information or Marketing Materials as MSP may reasonably request in KnowBe4’s sole discretion regarding the marketing of Subscription Services in the Territory.
   7. 5.3Training. KnowBe4 shall provide MSP training as described more specifically in the Partner Portal.

    

6. REGULATORY AND COMPLIANCE

   6. 6.1Compliance with Laws. Both parties shall at all times comply with all applicable laws and regulations relating to its performance of this Agreement. Further, MSP shall make commercially reasonable efforts to ensure Customers and its Users are using the Subscription Services in conformity with all applicable laws. Upon MSP becoming aware of any violation, MSP shall immediately report the violation to KnowBe4.
   7. 6.2AML, Anti-Bribery, Corruption, and Prohibited Payments. The MSP shall not, and shall not permit any of its Affiliates, nor its Representatives, to promise, authorize, or make any payment to, or otherwise contribute, solicit, or demand any item of value to, directly or indirectly, any government official or private party, in each case, in violation of the U.S. Foreign Corrupt Practices Act (“FCPA”), the United Kingdom Bribery Act (“UKBA”), the Canadian Corruption of Foreign Public Officials Act ("CCFPA”), or any other applicable anti-bribery or anti-corruption law applicable in the jurisdictions where KnowBe4, the MSP, or its Representatives conduct business (collectively “Anti-Bribery Laws”). The MSP shall, and shall cause each of its Affiliates to cease all of its, or their, respective activities, as well as remediate any actions taken by the MSP, its Affiliates, or any of its or their respective Representatives in violation of any Anti-Bribery Laws. The MSP shall, and shall also cause each of its Affiliates and Representatives, to maintain systems and proper internal controls (including, but not limited to, accounting systems, purchasing systems, and billing systems) to ensure accurate books, accounts, and records and to otherwise ensure compliance with Anti-Money Laundering (“AML”) laws, Anti-Bribery Laws, and anti-corruption laws. MSP further agrees it will not take action, use, or spend any funds, regardless of source, in violation of the laws of the United States or any country or countries within the scope of this Agreement, including the Territory, including but not limited to political contributions or other prohibited payments. The parties hereby acknowledge and agree that no payments, monetary transfers, or anything of value shall be made in connection with this Agreement that have the purpose or effect of unlawful inducement or bribery, or acceptance of or acquiescence in extortion, kickbacks, or other unlawful or improper means of obtaining business or improper advantage. MSP represents and warrants that all payments will be made by its legal entity, or by the legal entities of its Affiliates as authorized and identified in a Quote, purchasing document, or in this Agreement, and that MSP will not misrepresent or attempt to conceal the identity of any party paying for, or any recipient(s) of, the Subscription Services.
   8. 6.3Trade Compliance. MSP acknowledges that the Subscription Services, Professional Services, technology, and any associated technical data received from KnowBe4 in accordance with the terms hereunder are subject to economic sanctions, export controls, and other restrictive trade measures enforced by the United States and other applicable jurisdictions. In the performance of its obligations hereunder, MSP shall at all times strictly comply with all applicable laws, regulations, and orders, and agrees to commit no act which, directly or indirectly, would violate any such laws, regulations, or orders, including, without limitation: (a) the Export Administration Act of 1979, as amended (50 U.S.C. app. 2401-2420) and the Export Administration Regulations, 15 C.F.R. §§ 730-774 (“EAR”); (b) the Arms Export Control Act, 22 U.S.C. § 2778, and the corresponding International Traffic in Arms Regulations (“ITAR”); (c) the economic sanctions laws and regulations enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), 31 C.F.R. Part 500, et seq.; and (d) the anti-boycott regulations, guidelines, and reporting requirements under the EAR and Section 999 of the Internal Revenue Service Code. Additionally, MSP shall not, and shall cause each of its Affiliates and Representatives (if any) not to: (i) export, re-export, divert, or transfer KnowBe4 Subscription Services, Professional Services, or any direct product or service thereof to any destination, company, or person restricted or prohibited by the ITAR, EAR, OFAC, or other applicable export controls; or (ii) disclose any Data derived from the KnowBe4 Subscription Services, Professional Services, or any direct product or service thereof to any national of any country when such disclosure is restricted or prohibited by the ITAR, EAR, OFAC, or other applicable export controls. Additionally, MSP agrees that none of the Subscription Services, Professional Services, technology, or associated technical data, or any direct product or service thereof is or will be shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or its nationals, to any entity or individual subject to U.S. or other applicable export controls or economic sanctions programs, or for use in nuclear activities, chemical/biological weapons, or missile projects unless explicitly authorized in writing by the U.S. Government and all other governments with jurisdiction over the export. MSP agrees to comply strictly with all U.S. export and economic sanctions laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required. Certain products or services with encryption functions may be subject to additional restrictions, including restrictions on distribution to government Users outside the EU license free zone. Additionally, MSP is solely responsible for compliance with any import or use restrictions in MSP’s countries of operation. With these restrictions in mind, MSP agrees it will not provide, sell, ship, or otherwise transfer any KnowBe4 products, services, technology, or technical data to any of the following:
      
      • parties targeted for boycotts, embargoes, sanctions, or other similar measures by the United Nations Security Council;
      • parties appearing on the European Union’s Consolidated Sanctions List or the United Kingdom’s List of Consolidated Financial Sanctions Targets;
      • parties appearing on the Denied Persons List, Entity List, or Unverified List administered by the U.S. Commerce Department;
      • parties appearing on the sanctions lists administered by OFAC or the U.S. State Department;
      • countries or regions subject to U.S, E.U, U.K., and other applicable jurisdictions, embargoes or sanctions; or;
      • parties that are, directly or indirectly, at least 50 percent owned or controlled by parties subject to sanctions programs administered by OFAC, the UK, the EU and other applicable jurisdictions, whether individually or in the aggregate.
      MSP confirms that it is not subject to, owned by, nor otherwise controlled by parties that are subject to any of the restrictive trade measures discussed above. In the event that MSP becomes subject to any of these restrictive trade measures, MSP will immediately provide written notice to KnowBe4. MSP additionally agrees to abide by any territory restrictions implemented by KnowBe4. The current list of territory restrictions is located at support.knowbe4.com/hc/en-us/articles/8816685208723 or such other URL locations on KnowBe4’s website as KnowBe4 may provide from time to time. This Section shall survive the expiration or termination of this Agreement.
   9. 6.4Conflict of Interest. MSP agrees to avoid situations that could cause a conflict of interest or even an appearance of a conflict of interest. In the event such a situation arises, MSP shall immediately disclose it to KnowBe4.
   10. 6.5Fair Competition. MSP shall comply with antitrust/fair competition laws applicable to its business activities in all jurisdictions where it operates and shall not disturb or hinder legitimate competition in any unlawful manner. Accordingly, with regard to any business with KnowBe4, MSP shall not: (a) enter into any agreement with any of MSP’s competitors with regard to price, terms, or conditions of sale, production, distribution, territories, or customers; or (b) exchange or discuss with any of MSP’s competitors pricing, marketing plans, costs, or other competitive information. MSP agrees to be knowledgeable of fair competition laws in the territories in which it operates. In the event that any provision of this Agreement conflicts with applicable fair competition laws, or any other applicable laws, in the territories in which MSP operates under this Agreement, such laws shall supersede. MSP shall immediately notify KnowBe4 in the event it becomes aware of any such conflict and the parties shall work to amicably, and in good faith, determine a course of action to ensure compliance with all applicable laws in the course of its operations, or exercise its rights of termination under this Agreement to avoid a violation of law.
   11. 6.6Governmental Rights. MSP acknowledges, for sake of doing business with any U.S. government agencies, that the Software parts of the Subscription Services are commercial computer Software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf any of the Department of Defense or any component thereof, the U.S. Government shall acquire this commercial computer Software and/or commercial computer Software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3 (“Rights in Commercial Computer Software or Commercial Computer Software Documentation”). If acquired by or on behalf of any civilian agency, the U.S. Government shall acquire this commercial computer Software and/or commercial computer Software documentation subject to the terms of this Agreement as specified in FAR 12.212 (“Computer Software”).
   12. 6.7Certification of Compliance. Upon request by KnowBe4, MSP agrees that it will provide a certification of compliance with its obligations under this Section and applicable law.

    

7. PRICING, FEES, AND PAYMENT

   7. 7.1Fees. MSP is solely responsible and liable for, and shall pay to KnowBe4, all Fees and related Taxes for all Subscription Services in accordance with the applicable Quote or purchase order. “Fees” means the price paid for Subscription Services associated with the applicable Quote or purchase order. “Taxes” means the applicable federal, state, provincial, and municipal sales, use, value-added, property, excise, import, foreign, withholding, or other governmental taxes, duties, charges, levies, fees, tariffs, or assessments of any nature whatsoever, now or hereafter imposed.
   8. 7.2Invoices and Payments. KnowBe4 shall render electronic invoices for all orders. MSP shall pay the Fees in accordance with this Section and the applicable Quote or purchase order. Payment terms shall be net thirty (30) days from the date of invoice. Payments shall be in United States Dollars (USD) unless otherwise agreed upon in writing and made to the account information as specified on the applicable Quote or purchase order. MSP accepts any foreign exchange rate fluctuation (positive or negative). MSP shall pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind, whether under this Agreement, applicable law, or otherwise. MSP bears all credit risk regarding, and is solely responsible for, collecting payment for and all sales of Subscription Services. MSP’s inability or failure to collect the purchase price for any Subscription Services does not affect MSP’s obligation to pay KnowBe4 in strict accordance with this Section.
   9. 7.3Late Payments. If any amount due is not received by KnowBe4 from MSP within fifteen (15) days’ notice of late payment, KnowBe4 shall be entitled to receive the amount due, plus interest thereon at the rate of 1.5% per month (or the highest rate permissible under applicable law), on all amounts that were not paid on or before the due date. MSP shall also pay all of KnowBe4's reasonable costs of collection including, but not limited to, reasonable attorney’s fees.
   10. 7.4Invoice Disputes. KnowBe4 shall not collect interest on late payments in the event MSP provides KnowBe4 notice that MSP disputes such charges, in good faith, and provides KnowBe4 with written notice of such dispute prior to the due date and pays all undisputed charges on time and cooperates diligently to resolve the dispute.
   11. 7.5Taxes. All fees and charges referenced in this Agreement are exclusive of any and all Taxes. MSP shall be solely responsible for and shall add, charge, collect, and remit any and all Taxes (other than corporate income taxes payable by KnowBe4) associated with, based on, or due as a result of: (a) any amounts paid by MSP to KnowBe4 pursuant to this Agreement; and (b) the provision of Managed Services. If KnowBe4 pays any such Taxes (other than corporate income taxes payable by KnowBe4), MSP shall immediately indemnify and hold KnowBe4 harmless for the amount paid plus any interest, penalties, or other expenses (including legal fees and disbursements) incurred in connection therewith and interest thereon. MSP shall provide KnowBe4 with any relevant sales tax numbers or exemption certificates upon request by KnowBe4.
   12. 7.6Errors. MSP shall promptly give notice to KnowBe4 of all suspected and known errors, bugs, or other problems associated with the Subscription Services of which MSP becomes aware through KnowBe4’s support ticketing system.
   13. 7.7MSP Costs and Expenses. MSP is solely responsible for any and all costs and expenses (including all travel and other expenses incurred by its Representatives) incurred directly or indirectly by MSP or any other person arising from, connected with, or relating to MSP’s provision of Subscription Services and the performance of its obligations under this Agreement.

    

8. CONFIDENTIALITY

   8. 8.1Confidential Information. During the Term, each party may disclose to the other certain Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the Receiving Party of this Agreement; (b) was previously known to the Receiving Party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; or (d) was independently developed by a party hereto without reference to Confidential Information of the other party.
   9. 8.2Protection of Confidential Information. Except as expressly provided in this Agreement, the Receiving Party will not use or disclose any Confidential Information of the Disclosing Party without the Disclosing Party’s prior written consent, except disclosure to, and subsequent uses: (a) by the Receiving Party’s Representatives on a need-to-know basis, provided that such Representatives have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the Receiving Party’s obligations under this Section; (b) as required pursuant to a subpoena or other similar order of any court or government agency provided, however, that the party receiving such subpoena or order will promptly inform the other party in writing and provide a copy thereof (unless notice is precluded by the applicable process), and will only disclose that Confidential Information as necessary to comply with such subpoena or order. Subject to the foregoing nondisclosure and non-use obligations, the Receiving Party will use at least the same degree of care and precaution that it uses to protect the confidentiality of its own Confidential Information and trade secrets of similar nature, but in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the Disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity, or otherwise, the Disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
   10. 8.3Return and Destruction of Materials. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by the Disclosing Party to the Receiving Party, and all summaries, copies, descriptions, excerpts, or extracts thereof that are in the possession of the Receiving Party will be, and remain, the property of the Disclosing Party and will be promptly returned to the Disclosing Party. The Receiving Party will use reasonable efforts to promptly delete or destroy all summaries, copies, descriptions, excerpts, or extracts thereof in its possession upon the Disclosing Party's written request. The Receiving Party will have no obligation to delete or destroy copies that: (a) are contained in an archived computer system backup that were made in accordance with the Receiving Party's security, retention, and/or disaster recovery procedures; or (b) are kept by the Receiving Party for record-keeping, archival, or governance purposes in compliance with the Receiving Party’s document retention policies. Any such retained Confidential Information will remain subject to the terms and conditions of this Agreement for so long as it is retained. Notwithstanding the return or destruction of the Confidential Information, the Receiving Party will continue to be bound by its confidentiality and other obligations hereunder in accordance with the terms of this Agreement. At the Disclosing Party’s option, the Receiving Party will provide written certification of its compliance with this Section.

    

9. INTELLECTUAL PROPERTY RIGHTS

   9. 9.1Proprietary Rights. As between the parties, KnowBe4 owns and retains all right, title, and interest all Intellectual Property Rights in, to, and associated with the Subscription Services and all Software and technology used to provide the Subscription Services and Professional Services, related documents and information, and all derivative works based on the foregoing, including, but not limited to, modifications or derivative works created at the request of MSP, a Customer, or a User. This is not a work made-for-hire agreement. Except for the limited grant of access and license granted in this Agreement, MSP, Customers, and Users shall not acquire any right, title, or interest in or to any Software or technology provided by KnowBe4 for use by MSP as part of the Subscription Services or Professional Services.
   10. 9.2Trademark Use. Subject to, and conditioned on MSP’s compliance with the terms and conditions of this Agreement, KnowBe4 hereby grants MSP a limited, non-exclusive, non-transferable, and non-sublicensable, royalty-free license in the Territory during the Term, to use KnowBe4’s Marks and to reproduce and distribute Marketing Materials solely to market and promote the Subscription Services under this Agreement in accordance with KnowBe4’s current quality control, usage, and other Mark guidelines which may be updated by KnowBe4 from time to time. All uses of KnowBe4’s Marks, and all goodwill associated therewith, shall inure solely to the benefit of KnowBe4. Additionally, MSP agrees:
       9. 9.2.1MSP shall not advertise, promote, market, or distribute Subscription Services using any Marks other than KnowBe4’s Marks and MSP’s Marks without KnowBe4’s prior written consent.
       10. 9.2.2MSP shall not use KnowBe4’s Marks in any way that may cause confusion, mistake, or deception, or in any way that may tarnish, dilute, or otherwise diminish the KnowBe4 Marks’ distinctiveness, or jeopardize the reputation or goodwill associated with the KnowBe4 Marks, Subscription Services, or KnowBe4, or the validity or ownership of the KnowBe4 Marks or registrations therein.
       11. 9.2.3If MSP acquires any rights in any Mark that is identical or substantially similar to any of KnowBe4’s Marks, by operation of law or otherwise, MSP shall and does hereby assign, at no additional cost, all such rights to KnowBe4 and its successors, together with all associated goodwill in, and applications and registrations for, such Mark.

    

10. REPRESENTATIONS, LIMITED WARRANTY, AND DISCLAIMER

    10. 10.1Mutual Representations and Warranties. Each party represents and warrants that it has all requisite power, authority, and approvals to enter into, execute, and deliver this Agreement. MSP further represents and warrants it has all power, authority, approvals, and capability to perform the Managed Services.
    11. 10.2No Representations to Customers. MSP shall not make any representations, warranties, conditions, promises, or claims about the Subscription Services, or the use thereof, to Customers, its Users, or any person except those expressly authorized by KnowBe4 in writing. For the avoidance of doubt, the Customers and its Users are not third party beneficiaries of this Agreement. All warranties provided by KnowBe4 are for the exclusive benefit of MSP and are non-transferable.
    12. 10.3Representations of KnowBe4. The Subscription Services shall materially conform to the specifications set forth in the Documentation. In the event of a breach of the foregoing representation, KnowBe4’s sole and exclusive liability, and MSP’s sole and exclusive remedy, shall be for KnowBe4 to repair, replace, or re-perform the non-conforming portion of the Subscription Services no later than thirty (30) days after KnowBe4’s receipt of the notice of non-conformity from MSP. In the event KnowBe4 is unable to cure the non-conforming portion of the Subscription Service within the thirty (30) days following KnowBe4’s receipt of the notice of nonconformity, KnowBe4 shall provide a prorated refund for the unusable portion of the affected Subscription Services to MSP. KnowBe4 shall use commercially reasonable efforts to prevent transmission of viruses and other destructive code from the Subscription Services to the systems of MSP, its Customers, and Users.
    13. 10.4Representations of MSP. MSP warrants that: (a) the Managed Services shall be provided with promptness, due care, skill, and diligence in a professional and workmanlike manner consistent with the practices and high professional standards utilized in well-managed operations performing services similar to the Managed Services; (b) MSP shall use adequate numbers of qualified individuals with suitable training, education, experience, know-how, competence, and skill to perform the Managed Services; and (c) MSP has, or shall have, at the relevant time, the resources; capacity; expertise; and ability in terms of equipment, Software, know-how, and personnel to provide the Managed Services.
    14. 10.5DISCLAIMERS & NO OTHER WARRANTIES. EXCEPT FOR EACH PARTY’S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN HEREIN, THE SUBSCRIPTION SERVICES OF KNOWBE4 ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES OF OR RELATING TO ACCURACY, CAPACITY, COMPLETENESS, DELAYS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, NEGLIGENCE, VIRUSES OR OTHER HARMFUL COMPONENTS, ERRORS OR INTERRUPTED SERVICE, MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, RESULTS, QUALITY, TIMELINESS, TITLE, OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY DISCLAIMED BY KNOWBE4 TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KNOWBE4 DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT ITS SUBSCRIPTION SERVICES SHALL MEET THE NEEDS OF MSP, ANY CUSTOMER, USER OR BE FREE FROM ERROR, OR THAT SUBSCRIPTION SERVICES SHALL BE UNINTERRUPTED.

     

11. INDEMNIFICATION

    11. 11.1Generally. . For purposes of this Section, “Claims” means claims, counterclaims, complaints, demands, causes of action, liabilities, obligations, damages, legal fees, costs, expenses, and disbursements including, without limitation, reasonable attorneys’ fees and court costs, of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal; and “Proceedings” means actions, suits, proceedings and hearings of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal.
    12. 11.2KnowBe4 Indemnification Obligations. KnowBe4 hereby agrees to indemnify, defend, and hold MSP harmless from and against any and all third party Claims and Proceedings resulting from MSP’s authorized provision of Managed Services utilizing Subscription Services developed by KnowBe4 (i.e., excluding infringement claims relating to intellectual property provided or licensed from third parties) which infringe a United States patent, copyright, or trademark, or misappropriate the trade secret of that third party. If the Subscription Services or any part thereof becomes or, in the opinion of KnowBe4, is likely to become the subject of an indemnifiable claim, KnowBe4 may, at KnowBe4’s sole option: (a) continue to provide the Subscription Services or any part thereof to MSP; (b) replace the Subscription Services or any part thereof with a functional equivalent which is not subject to any such Claims; (c) modify the Subscription Services or any part thereof so as to be no longer subject to any such Claims; or (d) terminate this Agreement and issue a prorated refund for any prepaid, unused fees for such Subscription Services for the remainder of the applicable Term. Notwithstanding the foregoing, KnowBe4 shall have no indemnity obligation with regard to Claims arising from: (a) use or combination of the Subscription Services with any third-party intellectual property not authorized by KnowBe4; (b) modification or alteration of the Subscription Services not authorized KnowBe4 or the Documentation; (c) use of the Subscription Services in excess of the permissible uses in this Agreement or the Documentation; (d) specifications or other intellectual property provided by MSP, its Representatives, or its Customers; or (e) failure to implement updates, modifications, or replacements issued by KnowBe4 to the Subscription Services (collectively, the “Excluded Claims”). The provisions of this Section state the sole and exclusive obligations and liability of KnowBe4 and its licensors and suppliers for any Claim of intellectual property infringement arising out of or relating to the Subscription Services or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
    13. 11.3MSP Indemnification Obligations. MSP shall indemnify, defend, and hold KnowBe4 and its Representatives from and against any and all third party Claims and Proceedings arising out of, resulting from or related to: (a) the MSP’s unauthorized installation, use, sale, or servicing of the Subscription Services or Professional Services; (b) any infringement of the Intellectual Property Rights of any third person by any MSP Website or use thereof; (c) MSP’s breach of the Sections titled, “Restrictions,” “Authority and Consent of Customers/Users,” “No Authority to Bind to Additional Terms,” “Data Protection,” “Anti-Bribery, Corruption & Prohibited Payments,” and “International Trade Compliance”.
    14. 11.4Indemnity Procedure. The foregoing obligations of the indemnifying party are conditional upon the indemnified party: (a) promptly notifying the indemnifying party in writing of any such Claim or Proceeding; (b) reasonably cooperating with the indemnifying party in the defense or settlement thereof at the indemnifying party’s sole expense; and (c) allowing the indemnifying party sole control of the defense or settlement, provided that indemnifying party may not settle any such Claim unless it unconditionally releases indemnified party of all liability.

     

12. LIMITATIONS OF LIABILITY

    12. 12.1Limitation of Liability. NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE SUBSCRIPTION SERVICES, THE MANAGED SERVICES, AND ANY PROFESSIONAL SERVICES RENDERED HEREUNDER. THE TOTAL LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THIS AGREEMENT, THE SUBSCRIPTION SERVICES, THE MANAGED SERVICES, AND ANY PROFESSIONAL SERVICES RENDERED HEREUNDER FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE HEREUNDER BY MSP FOR THE PRODUCT OR SERVICE AS TO WHICH THE LIABILITY RELATES, IN THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY. The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and KnowBe4’s compensation hereunder reflects such allocations. The limitation of liability and types of damages stated in this Agreement are intended by the parties to apply regardless of the form of lawsuit or claim a party may bring, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose.
    13. 12.2Exclusions. The above limitations of liability do not apply to: (a) either party’s misappropriation or infringement of the other party’s Intellectual Property Rights; (b) either party’s indemnification obligations in this Agreement; or (c) either party’s gross negligence or willful misconduct.

     

13. TERM, TERMINATION, AND SUSPENSION

    13. 13.1Term. The initial term of this Agreement (the “Initial Term”) shall be for the period of one (1) year commencing on the Effective Date of this Agreement, unless terminated earlier by either party pursuant to this Agreement. This Agreement will automatically renew for additional one year periods (each, a “Renewal Term”), unless terminated earlier by either party in accordance with this Agreement. For purposes of this Agreement, the Initial Term and the Renewal Term are referred to, collectively, as the “Term”.
    14. 13.2Termination. Either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party. Notwithstanding any other provision of this Agreement, either party may terminate this Agreement for cause effective immediately upon written notice to the other party if the other party materially breaches this Agreement, provided in the event of a breach of warranty by KnowBe4, KnowBe4 will have thirty (30) days to cure such breach in accordance with this Agreement.
    15. 13.3Effects of Termination.
        14. 13.3.1Cessation of Usage; Payment. Immediately upon expiration or termination of this Agreement: (a) MSP will cease use of the Subscription Services and will cease from providing or attempting to provide Subscription Services (including any Professional Services or other products or services) to prospects, Customers, and Users; and (b) MSP will pay to KnowBe4 all Fees for Subscription Services or such other products or services ordered up to the date of termination without any right of deduction or offset in accordance with the Section on “Fees, Prices, and Payment”.
        15. 13.3.2Transitioning of Customers. Upon Termination of this Agreement, MSP must provide contact information (having obtained any necessary consents or authorizations) to KnowBe4 for each current Customer. KnowBe4 shall have the right to contact each Customer directly to discuss continued provisioning of the Subscription Services either from KnowBe4, directly, or through another authorized KnowBe4 channel partner so that Customers’ access to the Subscription Services is uninterrupted. MSP shall reasonably cooperate with KnowBe4 upon request as necessary to ensure a smooth transition for the Customers.
        16. 13.3.3Cessation of Displays of KnowBe4 Authorization and Mark. Immediately upon termination or expiration of this Agreement, MSP shall stop displaying (including, but not limited to, sharing and/or posting) all KnowBe4 Marks and any indication that it is a KnowBe4 authorized MSP. MSPs may display KnowBe4 Marks and only a current, valid authorization, up until the date of termination, upon which all such displays must cease immediately.
    16. 13.4Termination for Inactivity. KnowBe4 reserves the right, in its sole discretion, to terminate this Agreement with no notice if there is no activity (defined as no procuring of Subscription Services for resale in accordance with this Agreement) for a period of one hundred and eighty (180) consecutive days at any time during the Term.
    17. 13.5Suspension. Notwithstanding any other provision of this Agreement, and without limiting KnowBe4’s rights or remedies under this Agreement or otherwise, KnowBe4 may, at its option, suspend MSP’s use or access to the Subscription Services or the Partner Portal if: (a) MSP is in breach of the Agreement (including, but not limited to, failure to make timely payment); (b) KnowBe4 believes that such use or access poses a security risk to the Partner Portal, to other MSPs, the Subscription Services, or to other Customers or their Users of the Subscription Services; (c) it is necessary to prevent damage to, or degradation of, the Subscription Services or KnowBe4’s systems; (d) such use or access violates any law, regulation, court order, or other governmental request; or (e) KnowBe4 suspects fraud or abuse. Nothing in this Section limits KnowBe4’s right to terminate for cause, as outlined in this Agreement, or KnowBe4’s ability to terminate this Agreement if MSP is acting, or has acted, in a manner that violates applicable law.
    18. 13.6Survival. Notwithstanding anything herein to the contrary, any provisions that by their nature should apply beyond the Term of this Agreement or that are necessary to the interpretation or enforcement of this Agreement will survive the termination of this Agreement for any reason and remain in full force and effect.

     

14. MISCELLANEOUS

    14. 14.1Feedback. MSP may provide KnowBe4 with suggestions, comments, or other feedback (collectively, “Feedback”) with respect to the Partner Program or the Subscription Services. Feedback is voluntary. KnowBe4 is not obligated to hold any Feedback in confidence. KnowBe4 may use Feedback for any purpose without obligation of any kind. To the extent a license is required to make use of any intellectual property in any Feedback, MSP grants KnowBe4 an irrevocable, non-exclusive, perpetual, royalty-free license to use such Feedback in connection with KnowBe4’s business, including the enhancement of the Subscription Services.
    15. 14.2Partner Program and Subscription Services Analytics. Notwithstanding anything to the contrary, KnowBe4 shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Subscription Services (including, without limitation, information concerning Customer Data and data derived therefrom), and KnowBe4 may: (a) use such information and data to improve and enhance the Subscription Services and for other support, development, diagnostic, corrective purposes, or other similar purposes; and (b) publish such data solely in aggregate or other de-identified form. To the extent such data is publicly disclosed, it will only be disclosed in a generic or aggregated manner that does not identify MSP, Customer, or any individual and will exclude MSP Confidential Information, Customer Confidential Information, and Personal Data. KnowBe4 shall implement industry standard technical safeguards that prevent reidentification of data and implement industry standard business processes to prevent inadvertent release of such de-identified data.
    16. 14.3Affiliates. MSP shall ensure its Affiliates comply with the terms of this Agreement. MSP shall be jointly and severally liable with its applicable Affiliate for any breach by the Affiliate of this Agreement. No Affiliate may directly enforce any provision of this Agreement. All actions to enforce this Agreement must be brought by MSP.
    17. 14.4Force Majeure. Neither party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, pandemic, epidemic, earthquake, flood, embargo, riot, sabotage, dispute, governmental act, failure of the Internet, power failure, energy interruption or shortages, other utility interruption, or telecommunications interruption, provided that the delayed party: (a) gives the other party notice of such cause without undue delay; and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
    18. 14.5Publicity. Each party agrees that no public or private announcements, media releases, press conferences, or similar publicity relating to any aspect of this Agreement and/or any Subscription Services shall be made without the prior written consent of the other party.
    19. 14.6Joint Marketing Program. Certain KnowBe4 MSPs may be eligible to participate in the Joint Marketing Program at KnowBe4’s sole discretion. For eligibility and further details regarding the program, please visit the Joint Marketing Program Guide, as provided through the Partner Portal. KnowBe4 reserves the right to alter or discontinue the Joint Marketing Program at any time, including alteration of the Program Guide and any requirements or benefits contained therein.
    20. 14.7Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement, in whole but not in part, without the other party’s permission, to an Affiliate (provided previously purchased licenses, access rights, and seats for the Subscription Services will not be assignable or transferable without written consent from KnowBe4) or in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets, or any other similar transaction, provided, that the assignee: (a) is not a direct competitor of the non-assigning party; (b) is capable of fully performing the obligations under this Agreement; and (c) agrees to be bound by the provisions of this Agreement. This Agreement will inure to the benefit of, and be binding upon, each of the parties and their respective successors and permitted assigns. No performance of this Agreement, or any portion thereof, shall be subcontracted by MSP without the prior written consent of KnowBe4. MSP shall remain responsible to KnowBe4 for any and all performance required under this Agreement by MSP or its approved subcontractors, and no subcontractor shall bind or purport to bind KnowBe4 or excuse MSP of performance, and no assignment shall excuse MSP of continued responsibility under this Agreement.
    21. 14.8No Third Party Beneficiaries. Unless otherwise expressly provided in this Agreement, no provisions of this Agreement are intended to, or will be construed to, confer upon or give to any person or entity other than MSP and KnowBe4, and their respective successors and permitted assigns, any rights, remedies, or other benefits under or by reason of this Agreement. Without limiting the generality of the foregoing, Customers and Users shall not have any rights under this Agreement.
    22. 14.9Notices. Any notice provided pursuant to this Agreement will be in writing and will be deemed given: (a) if by hand delivery or by delivery service, upon receipt thereof; (b) if delivered by first class mail, registered mail, or certified mail, upon the earlier of actual delivery or three (3) calendar days after deposit in the mail, postage prepaid; or (c) if by email, upon the next business day. All notices will be addressed to the parties at the addresses specified below or at such other addresses as either party may in the future designate as a notice address in writing to the other party.
    23. 14.10Headings. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement.
    24. 14.11Remedies Not Exclusive; No Waiver; Amendments. Except as otherwise specifically provided herein, no remedy referred to in this Agreement is intended to be exclusive. No delay by either party in exercising any of its respective rights or remedies hereunder shall be deemed to be a waiver of such rights or remedies. No waiver by either party of any rights under this Agreement or breach by the other party hereunder shall in any way be a waiver of any such rights in the future or any future breach. Any waiver, amendment, or modification of this Agreement must be in writing and signed by the party against whom enforcement is sought.
    25. 14.12Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force and effect without being impaired or invalidated in any way. It is the intention of the parties that this Agreement would have been executed without reference to any provisions that may, for any reason, be held to be invalid or unenforceable.
    26. 14.13Governing Law; Venue. The following provisions, which include the law that will apply in the event of any dispute or lawsuit arising out of or in connection with this Agreement, the courts that have jurisdiction over any such dispute or lawsuit, and the accompanying terms depend on where the MSP is domiciled in accordance with the following table. All proceedings are to be conducted in English. The UN Convention on Contracts for the International Sale of Goods (UNCITRAL) will not apply.
        

        If the MSP is domiciled in:	Without giving effect to any choice or conflict of law provisions, rules, or principles, the governing law is the laws of:	Courts with exclusive jurisdiction are:	Additional terms included are:
        A country in North America, Central America, South America or Caribbean, other than Brazil. If MSP is domiciled in Russia, or a geographic region that does not fall into one of the designations described in this table, then MSP will fall into this category.	Florida and controlling United States federal law	Hillsborough County, Florida, U.S.A.	Notwithstanding the foregoing, the parties will have the right to seek injunctive or prejudgment relief in any court of competent jurisdiction to prevent or enjoin the misappropriation, misuse, infringement or unauthorized disclosure of its Confidential Information or intellectual property rights. No Federal Acquisition Regulations will be construed to apply to KnowBe4 without KnowBe4’s written agreement thereto. THE PARTIES HERETO WILL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT.
        A country in EMEA (Middle East, Europe and Africa) other than United Kingdom, South Africa, Germany, Austria and/or Switzerland	The Netherlands	Amsterdam
        Germany, Austria or Switzerland	Federal Republic of Germany	Berlin
        United Kingdom	England and Wales	London
        Australia, New Zealand or Oceania	Victoria, Australia	Victoria, Australia
        Japan	Japan	Tokyo District Court
        Brazil	Federative Republic of Brazil	São Paulo, State of São Paulo, Brazil	The parties agree that any subpoena or notice relating to the proceeding shall be made by registered correspondence.
        South Africa	England and Wales	London
        A country in the Asia-Pacific region, other than Japan, Australia, New Zealand or, Oceania	Singapore	Singapore

    27. 14.14Counterparts. This Agreement may be executed and delivered in one or more counterparts, which may be executed and delivered by facsimile transmission or electronic image transfer, and each counterpart when so executed and delivered will be deemed an original, and all such counterparts will together constitute one and the same document. The parties agree that the electronic signature of a party to this Agreement shall be as valid as an original signature of such party and shall be effective to bind such party to this Agreement. The parties agree that any electronically signed document (including this Agreement) shall be deemed: (a) to be “written” or “in writing,” (b) to have been signed; and (c) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files. Such paper copies or “printouts,” if introduced as evidence in any judicial, arbitral, mediation, or administrative proceeding, will be admissible as between the parties to the same extent and under the same conditions as other original business records created and maintained in documentary form. For purposes hereof, “electronic signature” means a manually-signed original signature that is then transmitted by electronic means; “transmitted by electronic means” means sent in the form of a facsimile or sent via the internet as a “.pdf” (portable document format) or other replicating image attached to an e-mail message; and, “electronically signed document” means a document transmitted by electronic means and containing, or to which there is affixed, an electronic signature.
    28. 14.15Construction and Entire Agreement. As used herein, the term “including” shall mean “including, without limitation”; the term “includes” as used herein shall mean “includes, without limitation”; and terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. In the event that MSP is presented with KnowBe4 click-wrap, the contents of this Agreement shall supersede any conflicting terms. This Agreement and the attached Schedules constitute the final expression of the agreement of the parties, and is intended as the complete and exclusive statement of the terms of the parties' agreement with regard to the subject matter hereof. This Agreement supersedes all prior and concurrent proposals, promises, representations, negotiations, discussions, and agreements that may have been made in connection with the subject matter hereof.
    29. 14.17Local Law Requirements..
        14. 14.17.1Local Law Requirements for Japan. If MSP is domiciled in Japan, then MSP represents and warrants that it, and its officers, directors, and material shareholders, are not: (a) Anti-Social Forces (defined below), and have not been for at least the last five years, and (b) involved with Anti-Social Forces, including, without limitation, involvement by management, utilization, or provision of funding or favors. KnowBe4 may immediately terminate this Agreement for cause in the event of a breach of any of these representations and warranties. For the purposes of this section "Anti-Social Forces" means, collectively, an organized crime group (bouryokudan) or a member or affiliate thereof, a corporate racketeer (soukaiya), a rogue person or group advocating a social or political movement, or any other anti-social forces.
        15. 14.17.2Local Law Requirements for Germany. With respect to MSPs domiciled in Germany, the Section titled, “12. Limitation of Liability” of this Agreement is replaced with the following:
            

            “12 Limitation of Liability for MSPs Domiciled in Germany.

            12. 12.1The parties shall be mutually liable without limitation: (a) in the event of willful misconduct or gross negligence; (b) within the scope of a guarantee taken over by the respective party; (c) in the event that a defect is maliciously concealed; (d) in case of an injury to life, body, or health; or (e) according to the German Product Liability Law.
            13. 12.2If cardinal duties are infringed due to slight negligence and if, as a consequence, the achievement of the objective of this Agreement including any applicable quote or purchase order is endangered, or in the case of a slightly negligent failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of this Agreement (including any applicable quote/purchase order), the parties’ liability is limited to foreseeable damage typical for the contract. In all other respects, any liability for damage caused by slight negligence shall be excluded.
            14. 12.3Unless the parties are liable in accordance with the “Unlimited Liability” section above, in no event shall the aggregate liability of each party, together with all of its Affiliates, arising out of or related to this Agreement exceed the total amount paid by MSP and its Affiliates hereunder for the Subscription Services giving rise to the liability in the twelve (12) months preceding the first incident out of which the liability arose. The foregoing limitation will not limit MSP’s and its Affiliates’ payment obligations.
            15. 12.4With the exception of liability in accordance with the “Unlimited Liability” section, the above limitations of liability shall apply to all claims for damages, irrespective of the legal basis including claims for tort damages. The above limitations of liability also apply in the case of claims for a party’s damages against the respective other party’s employees, agents, or bodies.
            16. 12.5Any rights arising out of or in connection with this Agreement shall expire twenty-four (24) months after the beginning of the statutory limitation period. The statutory limitation rules for intentional and grossly negligent acts, for claims due to intentional or negligent injury to life, body, or health, for fraudulent misrepresentation, and for claims under the Product Liability Act as well as sec. 548 of the German Civil Code shall remain unaffected.”