Websense offers Channel Partner the opportunity to use the Channel Partner Portal and participate in the Channel Partner programs only on the condition that Channel Partner agrees to BE BOUND BY THE terms and conditions in this Websense Channel Partner Program Agreement (“Agreement”) BETWEEN CHANNEL PARTNER AND WEBSENSE. By accepting this Agreement or by using the Channel Partner Portal, Channel Partner acknowledges that it has read, understands and agrees to be bound by this Agreement.

1.  Definitions.
“Channel Partner” means the individual or company that Websense acknowledges has a non-exclusive right to market and distribute Products, obtained from Websense or an authorized Websense distributor, in any countries other than the United States, Canada and Japan, directly to Subscribers.
“Database Updates” means changes to the content of the Databases.
“Databases” means Websense-owned proprietary databases of URL addresses, software applications or other content.
“End User” means the ultimate user of the Products.
 “Hardware” means Websense proprietary computer hardware.
“Malware” means computer software or program code that is designed to damage or reduce the performance or security of a computer program or data.
“Order” means a purchase commitment mutually agreed upon between (1) Websense and Channel Partner, or (2) a Websense authorized distributor and Channel Partner.
“Products” means Hardware, Subscription to the Software, and the right to receive Database Updates, Software Upgrades, together with applicable documentation and media.
“Software” means Websense proprietary software applications, in object or binary code and not source code.
“Software Upgrades” means certain modifications or revisions to the Software.
“Subscription” means a non-exclusive, non-transferable right to use the Products in accordance with a Subscription Agreement between Websense and a Subscriber and the Order.
“Subscription Fees” means the agreed upon fees in an Order.
“Subscription Key” means an encrypted access code that allows Subscribers to access the Databases and use the Software.
“Subscription Term” means the agreed upon time period in an Order. 
“Territory” means any countries other than the United States, Canada and Japan.
“Websense” means Websense International Technology Limited, with a principal place of business at Minerva House, Simmonscourt Road, Dublin 4, Ireland.

2. Resale Rights. Subject to the terms and conditions of this Agreement, Websense grants Channel Partner the non-exclusive right to market and resell Products. The Products must be obtained by Channel Partner from an authorized Websense distributor, or upon approval by Websense directly from Websense, and may only be resold in the Territory, directly to End Users.  Channel Partner will not modify or copy any Product; however, Channel Partner may bundle the Products along with Channel Partner’s hardware or software and distribute such bundled products to Subscribers provided that such Products may only be used as part of a Subscription to one or more of the Databases.  Channel Partner is free to set its own prices for the Products.

3. Channel Partner Obligations. Channel Partner may not resell the Products to End Users who intend to filter, screen, manage or censor Internet content for consumers without permission from the affected consumers and Websense’s express prior written approval which may be withheld in Websense’s sole discretion.  Channel Partners will not sublicense the Products, and End Users are subject to the terms of the then-current Subscription Agreement included with the Products. Channel Partner must comply with the then-current terms of the Websense partner programs, at www.channel.websense.com.  Channel Partner’s use of the Channel Partner Portal is subject to the then-current terms of use set forth at http://www.websense.com/global/en/LegalInfo.php and the then-current Privacy Policy set forth at http://www.websense.com/global/en/PrivacyPolicy.php.

4. Invoices and Payments. If Channel Partner obtains approval to obtain Products directly from Websense, Channel Partner will pay Websense the Subscription Fees for each Subscription provided under this Agreement. Subscription Fees are nonrefundable. Channel Partner will make payment to Websense net thirty (30) days from invoice date without right of off-set, and any outstanding balances owed by Channel Partner are subject to one and one half percent (1.5%) interest per month or the highest amount allowed by law, whichever is less.  Invoices will be sent to Channel Partner at its current address on file with Websense, or as otherwise directed by Channel Partner in writing. From time-to-time Websense may obtain credit reports on Channel Partner to ascertain its credit worthiness.  In the event Websense determines, in its sole discretion, Channel Partner’s credit is not worthy of the payment terms allowed for hereunder, Websense may change those terms in order to meet its assessment of the relative risk.

5. Keys. Upon receipt of an Order including agreed-upon payment terms, Websense will issue a Subscription Key to the End User.

6. Limited Warranty. For the Subscription Term, Websense warrants that the Products will operate in substantial conformance with the then-current Websense published documentation under normal use. Websense does not warrant that: (A) the Products will (i) be free of defects, (ii) satisfy Channel Partner’s or Subscriber’s requirements, (iii) operate without interruption or error, (iv) always locate or block access to or transmission of all desired addresses, emails, Malware, applications and/or files, or (v) identify every transmission or file that should potentially be located or blocked; or (B) data contained in the Databases will be (i) appropriately categorized or (ii) that the algorithms used in the Products will be complete or accurate.  Websense’s sole obligation and any Channel Partner and/or Subscriber’s sole remedy is for Websense to correct any significant deviation from the specifications in a manner determined by Websense. 

EXCEPT AS EXPLICITLY STATED AND TO THE EXTENT ALLOWED BY LAW, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS. 

Channel Partner may not make any representations or warranties with respect to the Products other than the limited warranties made by Websense in this Agreement.

7. Limitation of Liability. WEBSENSE, ITS AFFILIATES, ITS LICENSORS OR RESELLERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TERMINATION OF THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO CLAIMS FOR LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, PRIVACY, ACCESS TO OR USE OF ANY ADDRESSES, EXECUTABLES OR FILES THAT SHOULD HAVE BEEN LOCATED OR BLOCKED, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF WEBSENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL WEBSENSE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CHANNEL PARTNER TO WEBSENSE FOR THE APPLICABLE PRODUCTS OVER THE ONE YEAR PERIOD PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE PRODUCTS THAT DIRECTLY CAUSED THE LIABILITY.

8. Confidential Information. Each party (the “Disclosing Party”) may disclose to the other (the “Receiving Party”) certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential.  "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including without limitation documents, prototypes, equipment, technical data, trade secrets and know-how, product plans, Products, services, suppliers, customer lists and customer information, prices and costs, markets, software, databases, developments, inventions,  processes, formulas, technology, employee information, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets and other business information), which is designated as "Confidential," "Proprietary" or some similar designation at or prior to the time of disclosure, or which should otherwise reasonably be considered confidential by the Receiving Party. Confidential Information may also include information disclosed to a Disclosing Party by third parties.  Confidential Information shall not, however, include any information which the Receiving Party can document  (i) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party or an authorized third party; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party in violation of any obligation of confidentiality; (iii) is already in the possession of the Receiving Party at the time of disclosure; (iv) is lawfully obtained by the Receiving Party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.

9.  Proprietary Rights. The Products and all related intellectual property rights are the exclusive property of Websense or its licensors.   All right, title and interest in and to the Products, any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the Products remain exclusively with Websense or its licensors.  The Products are valuable, proprietary, and unique, and Channel Partner agrees to be bound by and observe the proprietary nature of the Products.  The Products contain material that is protected by patent, copyright and trade secret law, and by international treaty provisions.  Channel Partner may not remove any proprietary notice of Websense or any third party.  The Products include software products licensed from third parties.  Such third parties have no obligations or liability to Channel Partner under this Agreement but are third party beneficiaries of this Agreement.  All rights not granted to Channel Partner in this Agreement are reserved to Websense.   No ownership of the Products passes to Channel Partner.  Websense may make changes to the Products at any time without notice. Except as otherwise expressly provided, Websense grants no express or implied right under Websense patents, copyrights, trademarks, or other intellectual property rights. 

10. Right to Use Trademark and Trade Name. Any and all trademarks and trade names which Websense uses in connection with the rights granted hereunder are and remain the exclusive property of Websense.  This Agreement gives the Channel Partner no right therein except a limited right to reproduce trademarks and trade names as necessary for the sole purpose of allowing Channel Partner to fully promote and market Websense Products pursuant to the terms of this Agreement. Websense’s artwork may be requested and used by Channel Partner for the duration of this Agreement.  Channel Partner will abide by the logo and usage guidelines as outlined on the artwork portion of the Websense web site (www.channel.websense.com).

11. Term and Termination. The initial term of this Agreement is 12 months and will thereafter automatically be renewed for additional periods of 12 months unless either party provides the other with 30 days written notice of its intent to not renew. This Agreement may be terminated immediately by written notice from Websense in the case of (1) any material breach by Channel Partner, or (2) Channel Partner being declared insolvent or bankrupt. This Agreement may be terminated for convenience by Websense upon 30 days written notice to Channel Partner. 

The obligations under Sections 3, 4, 6, 7, 8, 9, 11, 12, 13 and 14 shall survive termination of this Agreement.

12. Indemnification. Channel Partner agrees to defend, indemnify and hold Websense harmless from and against any and all damages, liabilities, costs and expenses (including but not limited to attorneys' fees) arising out of, related to or incurred by Websense in connection with or as a result of any claim or proceeding made or brought against Websense with respect to any allegation that (i) any  product(s) other than the Products infringes upon any intellectual property right, (ii) any product(s) other than the Products fails to perform, (iii) the combination of the Products with any other products infringes upon any intellectual property right; (iv) Channel Partner’s sales and marketing efforts and activities, or (v) there is any material breach or default by Channel Partner in the performance of its obligations under agreements with Websense, its distributors or Subscribers.

13. Laws; Export; Government Restricted Rights. Channel Partner will comply with all applicable laws and regulations, including those of other jurisdictions that may apply to Channel Partner including, without limitation, (i) the Foreign Corrupt Practices Act of 1977 or any similar laws. The Products are subject to export controls of the United States and other countries (“Export Controls”).  Export or diversion contrary to U.S. law is prohibited.  U.S. law prohibits export or re-export of the software or technology to specified countries or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”).  It also prohibits export or re-export of the software or technology to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”).  U.S. law also prohibits use of the software or technology with chemical, biological or nuclear weapons, or with missiles (“Prohibited Uses”).  Channel Partner represents and warrants that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; that it will not use the software or technology for any Prohibited Uses; and that it will comply with Export Controls. The Products are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR 52.227-14 and DFAR 252.227-7013 et seq. or its successor. Use of the Products by the U.S. Government constitutes acknowledgment of Websense’s proprietary rights therein. Contractor or Manufacturer is Websense.

14. General. Websense and Channel Partner are independent contractors.  No agency or franchisee relationship between Channel Partner and Websense is created by this Agreement.  Neither party shall have any right or authority to act on behalf of the other or represent that it has such right or authority. For the purposes of customer service, technical support, and as a means of facilitating interactions, Websense may periodically send Channel Partner messages of an informational or advertising nature via email, and provide account information to related third-parties.  Channel Partner may choose to “opt-out” of receiving these messages or information sharing by sending an email to optoutlegal@websense.com requesting the opt-out.  Channel Partner acknowledges and agrees that by sending such email and “opting out” it will not receive emails containing messages concerning upgrades and enhancements to Products.  However, Websense may still send emails of a technical nature.  Channel Partner acknowledges that Websense may use Channel Partner's company name only in a general list of Websense customers.  Channel Partner may not assign this Agreement to another person or entity, without first obtaining prior written approval from Websense.  Notices sent to Websense shall be sent to the address for Websense, with a carbon copy to the attention of the General Counsel at Websense, Inc., 10240 Sorrento Valley Road, San Diego, CA 92121 USA.  Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by the laws of Ireland.  Both parties hereby consent to the exclusive jurisdiction of the courts in Dublin, Ireland.  Both parties expressly waive any objections or defense based upon lack of personal jurisdiction or venue.  Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, fire, flood, acts of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, disturbances to the Internet, and inability to secure materials or transportation facilities.  This Agreement constitutes the entire agreement between the parties regarding the subject matter herein and the parties have not relied on any promise, representation, or warranty, express or implied, that is not in this Agreement. Any waiver or modification of this Agreement is only effective if it is in writing and signed by both parties or posted by Websense at http://www.websense.com/legal.  If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as reasonably to affect the intention of the parties.  Websense is not obligated under any other agreements unless they are in writing and signed by an authorized representative of Websense.