The latest version was saved by David Blanco Giró on 2007-08-18 17:07:59
[SELLER/COMPANY_NAME] - RESELLER AGREEMENT [CONTRACT/CURRENT_YEAR]
This RESELLER AGREEMENT is dated as of [CONTRACT/EFFECTIVE_DATE] (the “ Effective Date ”) by and between [SELLER/COMPANY_NAME], a [SELLER/COMPANY_NATIONALITY] company, having a registered office at [SELLER/COMPANY_ADDRESS], [SELLER/COMPANY_COUNTRY] ( “ [SELLER/COMPANY_SHORTNAME] ”), and [RESELLER/COMPANY_NAME] (“ [RESELLER/COMPANY_SHORTNAME] ”), a company, having a principal place of business at [RESELLER/COMPANY_COUNTRY].
The following provisions form the basis for, and are hereby made a part of this Agreement:
WHEREAS, [SELLER/COMPANY_SHORTNAME] is engaged in [SELLER/COMPANY/MAIN_ACTIVITY_DESCRIPTION]; and
WHEREAS, Reseller is a reseller of [SELLER/COMPANY/MAIN_ACTIVITY_DESCRIPTION] and has the resources and expertise to market, sell and support [SELLER/COMPANY_SHORTNAME]’s products; and
WHEREAS , [SELLER/COMPANY_SHORTNAME] is willing to appoint Reseller as a reseller of [SELLER/COMPANY_SHORTNAME] products and Reseller is willing to accept such appointment, according to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby covenant and agree as follows:
1. Definitions .
The following terms shall have the meanings provided below:
1.1. “ Agreement ”
means this document and the exhibits, schedules and appendices attached hereto, all of which are incorporated herein together with any future written and executed amendments.
1.2. " Confidential Information ”
shall mean any data or information, disclosed by one party to the other party either prior to the Effective Date or during the term of this Agreement, that is not generally known to the public and is identified as confidential or, by its nature, or under the circumstances surrounding its disclosure, should be reasonably considered confidential. Confidential Information also includes:
- (i) any software, as either source code or object code, the technology embedded in any Product (as herein defined), delivered in any other form, including micro-processing chips, board assemblies and hardware and the technology, ideas, know how, documentation, processes, algorithms and trade secrets embodied therein;
- (ii) information about product plans, marketing strategies, finance, operations, customer relationships, customer profiles, sales estimates or the financial performance of either party; or
- (iii) the terms and conditions of this Agreement.
Confidential Information shall not include information which is:
- (a) published or otherwise available to the public other than by breach of this Agreement;
- (b) rightfully received by a Party from a third party without confidential limitations;
- (c) independently developed by a Party as evidenced by written records;
- (d) known to a Party prior to its first receipt from the disclosing Party, as evidenced by written records;
- (e) hereinafter disclosed by a Party to a third party without restriction on disclosure; or
- (f) approved for public release by written authorization of the disclosing Party .
1.3. “ Documentation ”
means any materials provided to Reseller (and thereafter to End Users) describing the use and/or functionality of the Product. Documentation may be provided, in any form, such as electronic, print or magnetic media, and includes product user manuals, reference manuals and installation guides or on-line help.
1.4. “ End User ”
means a customer of Reseller that acquires a Product for its internal use pursuant to the terms and conditions of an End User License Agreement. An End User shall have no right to sublicense the Products.
1.5. “ EULA ”
means the written end user license agreement provided by [SELLER/COMPANY_SHORTNAME] to Reseller governing the use of the Product by the End User.
1.6. “ Improvements ”
means modifications, enhancements, translations, derivative works, updates, upgrades, new versions or new releases, or other improvements to the Product.
1.7. “Major Release”
means an improvement made by [SELLER/COMPANY_SHORTNAME] to a Product which significantly changes the function of the product. A Major Release is indicated by a new version number, appearing to the left of a decimal point (i.e. 2.0)
1.8. “ Marks ”
means all trademarks, trade names, logos and symbols owned, controlled or adopted by [SELLER/COMPANY_SHORTNAME].
1.9. “ Products ”
means [SELLER/COMPANY_SHORTNAME]’s proprietary technology identified on Exhibit A hereof, in a commercially available form, and any and all intellectual property rights embodied therein, and any Improvements thereto and includes its related Documentation.
1.10. “ Support ”
means the personnel and resources necessary for providing End Users with reasonable training, instruction, assistance with the installation and operation of the Product.
1.11. “ Term ”
is defined in Section 10.1 of this Agreement.
1.12. “ Territory ”
means worldwide, unless otherwise stated in Exhibit A hereto.
2.1. [SELLER/COMPANY_SHORTNAME] hereby appoints Reseller as an authorized and non-exclusive reseller of Products within the Territory and Reseller hereby accepts such appointment.
2.2. Reseller acknowledges and agrees that [SELLER/COMPANY_SHORTNAME] has the right to appoint additional resellers in the Territory or to otherwise sell Products either directly or indirectly to any customer in the Territory, through other distributors or its own sales force.
3. RESELLER’S RESPONSIBILITIES
3.1. Reseller shall use its best efforts to market, promote and solicit sales of Products in the Territory. Reseller shall also provide related Documentation, and may, at Reseller’s option and upon execution of a Reseller Service and Maintenance Agreement, provide installation and technical support of the Products.
3.2. Reseller shall maintain the services of a sufficient number of technically qualified sales personnel and service engineers to provide an effective sales program and proper customer service support.
3.3. Reseller shall achieve the annual sales volumes for the relevant discount rate set forth on Exhibit B attached hereto.On each anniversary of the Effective Date, [SELLER/COMPANY_SHORTNAME] shall review Reseller’s annual sales volume for the previous year and may adjust Reseller’s discount rate for the current year (increase or decrease).
3.4. Reseller shall inform the public, in its sales, advertising and promotion of Products that [SELLER/COMPANY_SHORTNAME] is the manufacturer of Products.Reseller shall use [SELLER/COMPANY_SHORTNAME] trademarks and trade names associated with the Products only in a manner approved, in writing, by [SELLER/COMPANY_SHORTNAME]. Reseller shall submit samples of these marketing materials to [SELLER/COMPANY_SHORTNAME] and [SELLER/COMPANY_SHORTNAME] shall have the right to approve, in advance, all written references to [SELLER/COMPANY_SHORTNAME]. Reseller shall not otherwise use the [SELLER/COMPANY_SHORTNAME] name, or any other trade name or trademark owned or used by [SELLER/COMPANY_SHORTNAME], either directly or indirectly, in whole or in part, as part of Reseller’s corporate or business name or in connection with Reseller’s products. Reseller may, however, refer to itself as an authorized [SELLER/COMPANY_SHORTNAME] Reseller.
3.5. Reseller will develop an annual marketing or sales plan, which is subject to the approval of [SELLER/COMPANY_SHORTNAME]. The plan will include specific Products, markets, promotion plans for Products, scheduled sales activity, projected support requirements and projected annual sales volume and revenue forecasts, by month. If requested by [SELLER/COMPANY_SHORTNAME], Reseller will provide a rolling three (3) month forecast in the format indicated by [SELLER/COMPANY_SHORTNAME].
3.6. Reseller agrees not to, directly or indirectly, infringe or contest the validity of [SELLER/COMPANY_SHORTNAME]’s title to any patent, trademark, trade name, packaging design or copyright (or under which [SELLER/COMPANY_SHORTNAME] may be licensed).
3.7. Reseller shall conduct all business in its own name and as an independent contractor and independent reseller. No employment, agency or similar arrangement is in fact created or is intended to be created between [SELLER/COMPANY_SHORTNAME] and Reseller. Reseller has no right or power to act for or on behalf of [SELLER/COMPANY_SHORTNAME], nor to bind [SELLER/COMPANY_SHORTNAME] in any respect, to pledge its credit, to accept any service of process upon it, nor to receive any notices of any nature, on behalf of [SELLER/COMPANY_SHORTNAME].
4. [SELLER/COMPANY_SHORTNAME] OBLIGATIONS
4.1. [SELLER/COMPANY_SHORTNAME] will advise Reseller of the release dates of any Major Release or new Products.
4.2. [SELLER/COMPANY_SHORTNAME] will offer sales and technical support training and assistance (Reseller will be responsible for any expense relating to its employees attendance at a [SELLER/COMPANY_SHORTNAME] training session) at [SELLER/COMPANY_SHORTNAME]’s then current rates for such services.
4.3. [SELLER/COMPANY_SHORTNAME] will provide marketing and technical information relating to the Products including brochures, data sheets and white papers.
5. ACCEPTANCE OF ORDERS
5.1. No order for Products shall be binding upon [SELLER/COMPANY_SHORTNAME] until accepted by [SELLER/COMPANY_SHORTNAME]. Acceptance may be by either written acknowledgment or shipment.No orders will be accepted subject to any terms and conditions other than those contained in this Agreement and on [SELLER/COMPANY_SHORTNAME]’s written acknowledgment, notwithstanding any other terms and conditions on Reseller’s purchase order or other documentation.Failure of [SELLER/COMPANY_SHORTNAME] to object to new or conflicting provisions contained in any purchase order or other documents from Reseller (including, without limitation, penalty clauses) shall not be interpreted as a waiver of the terms and conditions of this Agreement, nor the acceptance of any new or conflicting provisions proposed by Reseller. [SELLER/COMPANY_SHORTNAME] may amend its list of Products and adjust their prices at any time. Reseller may, by written change order, change its purchase orders, but no such change order shall be binding on [SELLER/COMPANY_SHORTNAME] until accepted in writing, by [SELLER/COMPANY_SHORTNAME]. Reseller may not cancel purchase orders.
5.2. In the event Reseller reschedules any order, Reseller shall be invoiced for an administrative charge of one hundred dollars ($100. USD) or an equivalent Pound Sterling or Euro amount, plus an additional rescheduling charge, calculated, as follows:
Number of Days (Notice Given Prior to Original ) - Rescheduling Charge (Shipment Date of the Invoice/Purchase Order Total):
- Over 45 days - 0%
- 30 to 45 days - 15%
- 15 to 30 days - 25%
- Less than 15 days - Orders may not be rescheduled
All requests for rescheduling must be in writing and no such rescheduling request shall be binding on [SELLER/COMPANY_SHORTNAME] until accepted in writing by [SELLER/COMPANY_SHORTNAME]. Orders for custom products built to Reseller’s or an End User’s request or specification may not be rescheduled.
6. DELIVERY, TITLE AND RISK LOSS
6.1. Delivery . Upon execution and receipt of any purchase order from Reseller and payment of all amounts due as of the date of such purchase order, [SELLER/COMPANY_SHORTNAME] will deliver Products to Reseller at the address specified on Reseller’s purchase order. Title and risk of loss to all Products shall pass to Reseller upon delivery of the Product(s) by [SELLER/COMPANY_SHORTNAME] to Reseller’s carrier, FCA [SELLER/COMPANY_SHORTNAME] facility.
7.1. [SELLER/COMPANY_SHORTNAME] shall sell and deliver the Products to Reseller at prices set forth on Exhibit B, less any discount identified on such Exhibit. Accessories and related maintenance and installation services are not subject to a discount. [SELLER/COMPANY_SHORTNAME] will promptly supply Reseller with its price sheets (and any revisions thereto) upon publication.
7.2. [SELLER/COMPANY_SHORTNAME] shall have the right, upon sixty (60) days prior written notice, to adjust pricing of any Product. No price change shall apply to orders for Products accepted by [SELLER/COMPANY_SHORTNAME] prior to or during the sixty (60) day period and scheduled for delivery within sixty (60) days of the date of notice.
8. PAYMENT TERMS
8.1. Reseller shall pay [SELLER/COMPANY_SHORTNAME] all amounts due in accordance with Exhibit B. Provided Reseller has applied for and received credit approval, [SELLER/COMPANY_SHORTNAME] agrees to payment by invoicing. If [SELLER/COMPANY_SHORTNAME] invoices Reseller, then payment terms are net thirty (30) days from the invoice date and shall be made payable to [SELLER/COMPANY_SHORTNAME] without any deductions, including deductions for taxes (such as withholding or similar taxes), import fees, costs, refunds, rebates, or any other charge incurred by Reseller. Reseller shall pay all shipping costs and costs of documentation provided under clause 16.2.6 below. In the event Reseller has not received credit approval, Reseller shall pay by an irrevocable Letter of Credit or on a prepaid basis in U.S. Dollars, Pound Sterling or Euro, as agreed between the parties. All invoices shall be paid in full and Reseller shall not cite a disputed invoice to avoid payment of any undisputed invoice, in whole or in part.
8.2. [SELLER/COMPANY_SHORTNAME] reserves the right to charge Reseller a late fee of one and one-half percent (1.5%) per month (or, the maximum rate allowed by law) on any balance remaining unpaid for more than thirty (30) days from the payment due date and [SELLER/COMPANY_SHORTNAME] may also, at its option and without limiting its other rights hereunder, hold future shipments of Products to Reseller until all outstanding invoices have been paid.
8.3. All charges, price quotations, accepted orders and billings exclude any taxes, including excise, sales and similar taxes or any customs duties, fees or charges which may be imposed by the appropriate government authorities on the Products.Reseller shall be solely responsible for all taxes and other governmental charges levied upon the production, sale, repair or use of the Products.
8.4. Payment by Reseller for Products is non-refundable, unconditional and is not dependent upon acceptance of the Products by its End Users.
9. PRODUCT CHANGES, DISCONTINUING A PRODUCT, SUPPLY SHORTAGES
9.1. [SELLER/COMPANY_SHORTNAME] will make a reasonable effort to ship a sufficient quantity of its Product(s), as Reseller may need to meet its resale requirements.[SELLER/COMPANY_SHORTNAME] reserves the right to discontinue the manufacture and/or sale of any or all Products, and to modify, change, improve, and/or redesign any Product, without any liability to Reseller. [SELLER/COMPANY_SHORTNAME] may exercise these rights at any point in the production process. [SELLER/COMPANY_SHORTNAME] will give Reseller ninety (90) days advanced written notice of any proposed substitution or modification that affects (in the sole judgment of [SELLER/COMPANY_SHORTNAME]), the form, fit or function of a Product and Reseller shall have the right, within such ninety (90) day period to order [SELLER/COMPANY_SHORTNAME] Products without the proposed substitution or modification. Reseller must however, accept delivery of the unmodified Product within one hundred eighty (180) days of the initial written notice.
9.2. [SELLER/COMPANY_SHORTNAME] will give Reseller ninety (90) days advanced written notice of its intent to discontinue the manufacture, sale or distribution of a Product.
9.3. [SELLER/COMPANY_SHORTNAME] reserves the right, in the event of any shortage of parts or components, to allocate, in its sole discretion, its available supply of Products among its customers (including among its subsidiaries or affiliated companies that use Products).
10.1. The Term of this Agreement shall commence on its Effective Date and remain in full force and effect for a term of one (1) year and will automatically renew thereafter for successive one (1) year terms unless terminated in accordance with this Section 10.
10.2. Either Party may terminate this Agreement due to a material breach by the other Party. The non-breaching Party must provide the other party with written notice and a description of the alleged breach and if the breach can be corrected, the non-breaching Party must allow the other Party thirty (30) days to cure. Unless the breach is corrected, this Agreement will terminate at the conclusion of the cure period. Termination of the Agreement by the non-breaching party shall be in addition to any other legal or equitable right or remedy available to it. Either Party may also terminate this Agreement, effective immediately and upon written notice to the other Party, in the following circumstances:
- (i) a party makes an assignment for the benefit of creditors or files a voluntary petition in bankruptcy, or an involuntary petition is filed against a party and is not dismissed within sixty (60) days of its filing date;
- (ii) a receiver is appointed for a party;
- (iii) a party admits in writing to its inability to meet its debts as they become due;
- (iv) a Party ceases to conduct business; or
- (v) a Party is adjudged bankrupt or insolvent under the laws of any jurisdiction.
10.3. Either Party may terminate this Agreement for any or no reason upon sixty (60) days written notice to the other Party. In the event of termination in accordance with this Section 10.3, both parties shall remain responsible for their respective obligations that are incurred during the sixty (60) day notice period. For the avoidance of doubt, [SELLER/COMPANY_SHORTNAME] will be required to ship on orders accepted during said sixty (60) day notice period, and Reseller will be required to pay for Products shipped on such orders. Other than fees due and owing between the parties, neither party shall be liable to the other by reason of its termination of this Agreement, with or without cause, for compensation or damages of any kind, and each party hereby waives, to the extent permitted by law, any rights it may have to severance or termination payments under any applicable law. Termination of this Agreement by either party shall not prejudice or affect each party’s rights against the other party.
10.4. Upon the termination of this Agreement all rights and licenses granted hereunder shall cease and Reseller shall:
10.4.1. Immediately pay all outstanding sums due to [SELLER/COMPANY_SHORTNAME];
10.4.2. Cease the marketing and distribution of Products.[SELLER/COMPANY_SHORTNAME], at its discretion, may cancel all unfilled orders for Products or, in the case of special orders, may require Reseller to take delivery of and pay for such special orders;
10.4.3. Discontinue all advertising of or reference to Products and all use of [SELLER/COMPANY_SHORTNAME] trade names and trademarks associated with Products;
10.5. For six (6) months following the termination of this Agreement, Reseller may retain one (1) copy of the Products to support its End Users, unless [SELLER/COMPANY_SHORTNAME] terminated the Agreement due to a material breach by Reseller and revokes this right in its Termination Notice.
10.6. Termination of this Agreement shall not affect licenses granted to End Users prior to Termination. Unless pursuant to a termination due to material breach by Reseller, termination of this Agreement shall not terminate [SELLER/COMPANY_SHORTNAME]’s obligations under any existing valid Reseller Support and Maintenance Agreement(s), as such agreement relates to active End Users.
11.1. Reseller represents and warrants as follows. Reseller shall promptly notify [SELLER/COMPANY_SHORTNAME] of any instance in which any of the following representations and warranties are no longer valid and [SELLER/COMPANY_SHORTNAME] shall have the option of terminating this Agreement in accordance with Section 10, hereof.
11.1.1. Reseller is a corporation duly organized and in good standing under the laws of the jurisdiction of its incorporation, with full corporate power and authority to conduct its business in the manner contemplated by this Agreement.
11.1.2. Reseller is authorized to conduct business in the Territory and will remain in full compliance with all applicable laws and regulations, to the extent such laws and regulations relate to Reseller’s performance, hereunder.
11.1.3. Reseller has the facilities and resources to perform its obligations set forth in this Agreement and will use its best efforts to:
- (i) promote, market and distribute the Product in the Territory; and
- (ii) maintain an adequately staffed and trained organization suitably equipped to promote and distribute products and provide the Support to End Users.
11.1.4. Reseller will not operate its business in a manner that may cause Reseller to be deemed a franchisee, under applicable state or federal law in the U.S. or the Territory.
11.1.5. Reseller will not provide any warranties or representations on behalf of [SELLER/COMPANY_SHORTNAME] that would entitle an End User or third party to assert any rights or demand any remedies from [SELLER/COMPANY_SHORTNAME], regarding its use of or interest in the Product and will indemnify [SELLER/COMPANY_SHORTNAME] against any claim, demand, action, proceeding, investigation, loss, liability, cost and expense (including legal fees) suffered or incurred by [SELLER/COMPANY_SHORTNAME] and arising out of or related to any violation, whether intentional or unintentional, by the Reseller, for any of the warranties or covenants in this section 11.1.5. These obligations shall survive the termination or expiration of this Agreement.
11.1.6. Reseller warrants that it is familiar with and will comply in all respects with the laws, regulations and administrative requirements of the laws of Territory in which it distributes and sells Products hereunder (including without limitation, any requirement to register this Agreement with any agency or other governmental entity of any country, or subdivision thereof, in the Territory) and with the U.S. Foreign Corrupt Practices Act, the Organization for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Officials, The Anti-Terrorism, Crime and Security Act 2001, and similar laws in effect in the United States and the Territory. Reseller shall indemnify and defend [SELLER/COMPANY_SHORTNAME] and hold [SELLER/COMPANY_SHORTNAME] harmless from and against any and all claims, losses, liabilities, suits, actions, demands, damages, costs and other expenses caused by Reseller’s failure to comply with any such laws, regulations or rules.
11.2. [SELLER/COMPANY_SHORTNAME] represents and warrants, as follows:
11.2.1. [SELLER/COMPANY_SHORTNAME] is a corporate body duly organized and in good standing under the laws of the jurisdiction of its incorporation with full corporate power and authority to conduct its business in the manner contemplated by this Agreement.
11.2.2. [SELLER/COMPANY_SHORTNAME]has sufficient right, title and interest in the Product or has been authorized by the third party owners of any embedded components to provide it to Reseller in the manner contemplated by this Agreement. Reseller’s sole and exclusive remedy for any breach of this warranty is described in Section 12.4.
11.2.3. Product will, for thirty (30) days after delivery to Reseller in the case of software Products, and for fifteen (15) months after delivery to Reseller in the case of hardware Products, perform in substantial conformance with its Documentation. Reseller’s sole and exclusive remedy for the breach of this warranty is to return the Product, at its expense, to [SELLER/COMPANY_SHORTNAME] and [SELLER/COMPANY_SHORTNAME] will, at its option, repair or replace the product and return it to Reseller, at [SELLER/COMPANY_SHORTNAME]’s expense, or, if the Product is software, [SELLER/COMPANY_SHORTNAME] may direct Reseller to return or destroy its copies of the software and will authorize either the electronic download of a substitute product or deliver to Reseller a replacement copy.In the event neither of the foregoing remedies are feasible, in the sole opinion of [SELLER/COMPANY_SHORTNAME], then [SELLER/COMPANY_SHORTNAME] will credit Reseller the purchase price for the affected Product, less its depreciated value (if the Product was delivered to an end user and returned to [SELLER/COMPANY_SHORTNAME] pursuant to its warranty). Its depreciated value will be calculated using a straight line method of depreciation and based on the Product’s useful life of five (5) years. Products returned hereunder must be shipped, transportation prepaid, at Reseller’s risk, by the most economical method of shipment. Shipping costs will be credited only on Products that were not in working condition pursuant to its warranty.[ SELLER/COMPANY_SHORTNAME] will not pay for excess transportation costs resulting from the use of anything other than the most economical carrier. International shipments of Products returned to Reseller by [SELLER/COMPANY_SHORTNAME] after repair will be shipped on DDU Port of Entry (INCOTERMS).
11.2.4. Reseller and End Users sole remedies are set forth in this Section 11.2. [SELLER/COMPANY_SHORTNAME] disclaims responsibility for any costs associated with the packing, inspection, labor expenses or other incidental costs incurred in connection with the return of any Products. Prior to returning a Product for a warranty adjustment, Reseller must first contact [SELLER/COMPANY_SHORTNAME] for instructions and a Return Material Authorization number (“RMA”). Documentation accompanying the returned Product must include the RMA, original invoice number, indication of the quantity of returned Products and a description of the alleged defect.
11.2.5. Unless otherwise requested by Reseller, repaired Products or Products not subject to a warranty adjustment will be returned to Reseller, transportation collect. In all cases, [SELLER/COMPANY_SHORTNAME]’s determination as to whether or not a Product is defective and covered by warranty will be final.
11.3. [SELLER/COMPANY_SHORTNAME]’s Disclaimer .THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF TITLE, NON-INFRINGEMENT AND ANY WARRANTY OR REPRESENTATION THAT THE SOFTWARE WILL OPERATE ERROR-FREE. ANY USE OF THE PRODUCT BY RESELLER IS AT RESELLER’S OWN RISK. [SELLER/COMPANY_SHORTNAME] DOES NOT WARRANT THAT THE PRODUCT SHALL MEET RESELLER’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT SHALL BE UNINTERRUPTED OR THAT ANY ERRORS SHALL BE CORRECTED OR THAT THE PRODUCT SHALL BE COMPATIBLE WITH ANY PARTICULAR PLATFORM. IF ANY EXCLUSION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ONLY THOSE INVALID EXCLUSIONS SHALL BE STRICKEN AND ALL OTHERS WILL REMAIN IN FULL FORCE AND EFFECT.
12. INTELLECTUAL PROPERTY RIGHTS; INDEMNIFICATION
12.1. Reseller expressly acknowledges that Marks are and shall remain the exclusive property of [SELLER/COMPANY_SHORTNAME] or its affiliates. [SELLER/COMPANY_SHORTNAME]’s sale of Products does not convey any trademark license, expressed or by implication, estoppel, or otherwise. [SELLER/COMPANY_SHORTNAME] may, from time to time, permit Reseller to use [SELLER/COMPANY_SHORTNAME]’s trademarks in Reseller’s promotions and advertisements but only for the purpose of promoting the resale of [SELLER/COMPANY_SHORTNAME]’s Products and such permissions shall not be construed as a trademark license. Upon termination of this Agreement, Reseller further agrees to immediately cease use of any and all of [SELLER/COMPANY_SHORTNAME]’s Marks or copyrightable material. Reseller shall identify the Products in its advertisements only as expressly authorized in writing, by [SELLER/COMPANY_SHORTNAME], and only with the trademarks, trade names, logos and symbols used by [SELLER/COMPANY_SHORTNAME] and Reseller shall not otherwise make use of the Marks or any confusingly similar or colorable imitation thereof.
12.2. [SELLER/COMPANY_SHORTNAME] further retains all proprietary rights, including any patent rights, trade secret rights, copyrights and trademark rights in and to any data, records, processes, models, samples, software, designs, engineering details, schematics, drawings and other documentation pertaining to the Products and which are provided to the Reseller pursuant to this Agreement (the “Proprietary Information”). Reseller acknowledges and agrees that Reseller has no proprietary rights by virtue of this Agreement, except those contractual rights that are expressly set forth herein. Proprietary Information that [SELLER/COMPANY_SHORTNAME] may furnish to Reseller shall be in Reseller’s possession pursuant only to a restrictive, non-transferable, non-exclusive license under which Reseller may use such Proprietary Information solely for the purposes of operating or repairing the Products and for no other purpose. Reseller shall not, without the express written consent of [SELLER/COMPANY_SHORTNAME] provide, disclose, transfer or otherwise make available any Proprietary Information, or copies thereof to any third party. Reseller shall take appropriate action by instructions, agreement or otherwise with those of its employees and third party agents having access to any Proprietary Information, to restrict and control the use, copying, modification, disclosure, transfer, protection and security of such Proprietary Information, in accordance with these provisions. Reseller agrees to protect the Proprietary Information with at least the same standard of care that it uses to protect its own information of similar importance.
12.3. Reseller will promptly inform [SELLER/COMPANY_SHORTNAME] of any acts of unfair competition or the infringement of [SELLER/COMPANY_SHORTNAME]’s trademarks, trade secrets, patents or copyrights. [SELLER/COMPANY_SHORTNAME] shall have the exclusive right to determine whether to take any action to enforce its rights and protect its interest and will assume responsibility for all costs associated with any claim, demand or legal action (and the corresponding right to retain all awards resulting therefrom). Reseller shall provide [SELLER/COMPANY_SHORTNAME], at [SELLER/COMPANY_SHORTNAME]’s request and expense, with any assistance that [SELLER/COMPANY_SHORTNAME] may reasonably require to substantiate its claims for infringement or unfair competition.
12.4. [SELLER/COMPANY_SHORTNAME] will defend, at its expense, and indemnify Reseller, from and against any losses, costs or damages arising from any claims filed by third parties against Reseller alleging that the Product, as provided to Reseller, infringes a previously issued U.S., European Union or Canadian patent, trade secret or copyright, provided however that Reseller promptly notifies [SELLER/COMPANY_SHORTNAME], in writing, of such claim and is given full and complete authority (including settlement authority), information and assistance by Reseller for such defense. Reseller agrees to promptly notify [SELLER/COMPANY_SHORTNAME] of any unauthorized or potentially infringing use of the Product and will provide all reasonable assistance, cooperation and information as may be reasonably requested by [SELLER/COMPANY_SHORTNAME].
In the event the Product is found to infringe a third party right and its use is enjoined, or, if, in the opinion of [SELLER/COMPANY_SHORTNAME], the Product is likely to become the subject of such a claim, [SELLER/COMPANY_SHORTNAME], at its election and expense, will either:
- (i) procure for Reseller the right to continue using the Product; or
- (ii) modify or replace the Product so that it becomes non-infringing while providing substantially equivalent performance.
In the event that neither of the foregoing options, in [SELLER/COMPANY_SHORTNAME]’s sole opinion, are available using reasonable commercial efforts, then [SELLER/COMPANY_SHORTNAME] may terminate this Agreement and refund amounts Reseller paid [SELLER/COMPANY_SHORTNAME] for the Product which is subject of such claim, less its depreciated value (applying the straight line depreciation method over an estimated useful life of five years). The indemnification obligation shall not apply to infringement actions or claims to the extent that such actions or claims are based on or result from:
- (i) modifications to the Product by a party other than [SELLER/COMPANY_SHORTNAME];
- (ii) Reseller’s failure to use the most recent version of the Product, if the Product is software, or to otherwise take any corrective action directed by [SELLER/COMPANY_SHORTNAME]. THIS SECTION STATES RESELLER’S SOLE AND EXCLUSIVE REMEDY AND ’S ENTIRE LIABILITY FOR ANY CLAIM OF INFRINGEMENT.
12.5. [SELLER/COMPANY_SHORTNAME], and its third party licensors, if any, reserve all rights not expressly granted to Reseller, including any worldwide rights in or to any copyrights, patents, trade secrets, trademarks or any other intellectual property interest. [SELLER/COMPANY_SHORTNAME] retains all right, title and interest in the Products as well as any Improvements. Reseller hereby disclaims any ownership interest in any Improvement and shall require, in writing, its End Users to disclaim any interest therein, as well.
13. ADDITIONAL TERMS APPLICABLE TO SOFTWARE PRODUCTS
13.1. Subject to the terms and conditions contained herein, [SELLER/COMPANY_SHORTNAME] hereby grants to Reseller and Reseller hereby accepts, a non–transferable, non-exclusive, revocable right and license to distribute the software Products delivered to Reseller (the “Software Product”), in the manner expressly authorized by this Agreement. Software Products include any software that may be embedded in a hardware Product.
13.2. Reseller acknowledges that [SELLER/COMPANY_SHORTNAME] has expended considerable time, effort and expense developing its Software Products and retains all right, title and interests in them, including all rights to any improvements or derivative works based upon the Software Products and to any valuable trade secrets embodied therein. The license does not grant to Reseller any proprietary rights or interests in any new or enhanced software products developed by [SELLER/COMPANY_SHORTNAME], even if such new programs provide additional capability to the Products or replace existing Software Products. Any new Software Products developed by [SELLER/COMPANY_SHORTNAME] will be made available to Reseller at its current price and subject to its current terms and conditions. This license is granted as part of the consideration for Reseller’s entering into this agreement.
13.3. Products which include computer software must be distributed by Reseller with an EULA provided by [SELLER/COMPANY_SHORTNAME]
13.4. In the event that Reseller becomes aware of any breach or threatened breach of an EULA, Reseller shall promptly notify [SELLER/COMPANY_SHORTNAME] in writing of such breach.
14. CONFIDENTIAL INFORMATION AND TRADE SECRETS
14.1. Each Party agrees to hold the Confidential Information of the other party in strict confidence and to protect it from disclosure with the same degree of care that it uses to protect its own confidential information of like importance. Each party shall use the Confidential Information of the other party only as necessary to perform its duties and satisfy its obligations hereunder and shall limit the disclosure of the Confidential Information to employees who have a reasonable need to know, who are under a duty of confidentiality no less restrictive than the obligations set forth herein and have executed a non-disclosure agreement with the receiving party.Reseller agrees to treat Software Products as Confidential Information and not to disclose or distribute them, except as expressly authorized by this Agreement.
14.2. The receiving party shall promptly notify a disclosing party of any unauthorized disclosure of its Confidential Information and provide any assistance the disclosing party may reasonably require to retrieve the information and protect it from any further use or distribution.If any Confidential Information must be disclosed to a third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of the receiving party, that party shall promptly notify the disclosing party in order to permit the disclosing party (at its own expense) to seek an appropriate protective order in a timely manner.
14.3. Upon termination of this Agreement or at the request by the disclosing party, the receiving party shall return all copies of Confidential Information in its possession or certify in writing to the disclosing party that its Confidential Information has been destroyed.This Section shall survive any termination, cancellation or expiration of this Agreement.
15. LIMITATION OF LIABILITY
THE CUMULATIVE LIABILITY OF [SELLER/COMPANY_SHORTNAME] FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCTS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO [SELLER/COMPANY_SHORTNAME] BY RESELLER WITHIN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.IN NO EVENT SHALL [SELLER/COMPANY_SHORTNAME] OR ITS SUPPLIERS BE LIABLE TO RESELLER, ITS END USERS OR ANY OTHER THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS, OR THE LIKE, EVEN IF [SELLER/COMPANY_SHORTNAME] HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES.THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID OR UNENFORCEABLE.THE LIMITED WARRANTY, LIMITED REMEDIES, WARRANTY DISCLAIMER AND LIMITED LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN [SELLER/COMPANY_SHORTNAME] AND RESELLER AND [SELLER/COMPANY_SHORTNAME] WOULD NOT PROVIDE THE PRODUCTS WITHOUT SUCH LIMITATIONS AND EXCLUSIONS.
16.1. This Agreement shall be governed in all respects by the laws of England and Wales without regard to conflicts of law principles. All disputes arising under this Agreement shall be brought exclusively in the English courts and Reseller hereby submits to the personal jurisdiction of the above courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are expressly excluded from this Agreement.
16.2. The Products are subject to regulation by various United States or European Union government agencies, including, but not limited to, the U.S. Department of Commerce and its Export Administration Regulations, which prohibit export or diversion of Products and direct products thereof, to certain countries and certain persons. Products may also be subject to the laws of the Territory in which Reseller is authorized to distribute Products. Reseller hereby agrees, as follows:
16.2.1. It is the sole responsibility of the Reseller to comply with any export or import restrictions and to ensure that the necessary import or export duties are paid;
16.2.2. Reseller will not export, either directly or indirectly, any Products or direct products of the Products without first obtaining, at its expense, all necessary approval from the appropriate agencies of the applicable government and all foreign approvals required by government agencies in Reseller’s Territory (“Foreign Approvals”).
16.2.3. Reseller shall, as required by the laws of the Territory in which it operates, register this Agreement with the appropriate authorities or notify the authorities of this Agreement (as applicable) and bear any related expenses or taxes.
16.2.4. Reseller agrees to disclose its documentation or applications for Foreign Approval to [SELLER/COMPANY_SHORTNAME] and agrees further that:
- (i) [SELLER/COMPANY_SHORTNAME] and the Reseller shall jointly own all such Foreign Approvals as they relate to the certification of [SELLER/COMPANY_SHORTNAME] Products; and
- (ii) upon the termination of this Agreement, Reseller shall assign its interests in such Foreign Approvals to .
16.2.5. Reseller’s failure to obtain the required Foreign Approvals or U.S. export licenses may render this agreement, or any obligation imposed on [SELLER/COMPANY_SHORTNAME], hereunder, void or voidable by [SELLER/COMPANY_SHORTNAME] and thereby excuse [SELLER/COMPANY_SHORTNAME] from any further performance.
16.2.6. Reseller shall pay all costs incurred by [SELLER/COMPANY_SHORTNAME] in obtaining and delivering to Reseller any official documentation requested by Reseller, including but not limited to legalized / apostilled certificates of origin or extracts from commercial registers.
16.3. If the rights granted hereunder are acquired by or on behalf of a unit or agency of the United States Government, this provision applies. The Product:
- (i) was developed at private expense, is existing computer software and no part of the Product was developed with government funds;
- (ii) is a trade secret of [SELLER/COMPANY_SHORTNAME], Inc. for all purposes of the Freedom of Information Act;
- (iii) is “restricted computer software” (as defined in 48 CFR 12.212, 2.101, DFAR 227-7202-1 through 4, FAR 52.227-19(a) and (c)(2) and DFAR 252.227-7013 to 7019, as applicable) submitted with restricted rights in accordance with FAR 52.229-19 (a) though (d) of the Commercial Computer Software-Restricted Rights clause and its successors and is subject to the restrictions set forth in FAR 52.227-19(c )(1) and (2) or DFAR 252.227-7013 to 7019, as applicable;
- (iv) in all respects is proprietary data belonging solely to [SELLER/COMPANY_SHORTNAME], Inc.;
- (v) is unpublished and all rights are reserved under the copyright laws of the United States. If the Product is acquired under a GSA Schedule, the Government has agreed to refrain from changing or removing any insignia or lettering from the Product or from producing copies of documentation, manuals or media (except for backup purposes). Each copy of a software product provided to or used by a government agency (state or federal) must have the following restricted rights legend (including the applicable government contract number): “RESTRICTED RIGHTS LEGEND—USE, DUPLICATION OR DISCLOSURE OF THIS SOFTWARE BY THE GOVERNMENT IS SUBJECT TO THE RESTRICTIONS AS SET FORTH IN PARAGRAPH (C)(1) AND (2) OF FEDERAL ACQUISITION REGULATION 52.227-19, COMMERCIAL COMPUTER SOFTWARE—RESTRICTED RIGHTS IN ACCORDANCE WITH GOVERNMENT CONTRACT N0._________ (OR ANY COMPARABLE STATE LAW). Contractor/Manufacturer is [SELLER/COMPANY_SHORTNAME] , Inc., [SELLER/COMPANY/ADDRESS].
16.4. Reseller may not assign, delegate or transfer this Agreement, in whole or in part, or any of its rights or duties hereunder, including by merger (regardless of whether Reseller is the surviving entity) or acquisition, without the prior written consent of [SELLER/COMPANY_SHORTNAME]. Any attempted assignment in violation of this Agreement is void. Notwithstanding anything to the contrary herein, [SELLER/COMPANY_SHORTNAME] may assign or transfer this Agreement in whole or in part to any third party without the prior written consent of Reseller. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective successors or permitted assigns.
16.5. All notices and other communications required or permitted hereunder must be in writing and will be deemed to have been duly given, to the addresses written below:
- (i) when delivered by hand or confirmed facsimile transmission;
- (ii) one (1) day after delivery by receipted overnight delivery; or
- (iii) three (3) days after being mailed by certified or registered mail, return receipt requested, with postage prepaid to the party at the address set forth above, or to such address and/or facsimile number as either party shall furnish to the other party in writing, pursuant to this Section16.5.
16.5.1. To Reseller:
- Name: [RESELLER/CONTACT/NAME]
- Title: [RESELLER/CONTACT/TITLE]
- Email: [RESELLER/CONTACT/EMAIL]
- Fax: [RESELLER/CONTACT/FAX]
- Address: [RESELLER/CONTACT/ADDRESS]
16.5.2. To [SELLER/COMPANY_SHORTNAME]:
- Name: [SELLER/CONTACT/NAME]
- Title: [SELLER/CONTACT/TITLE]
- Email: [SELLER/CONTACT/EMAIL]
- Fax: [SELLER/CONTACT/FAX]
- Address: [SELLER/CONTACT/ADDRESS]
16.6. This Agreement, including any appendices, schedules, exhibits, attachments and any documents referred to in this Agreement or attached hereto, constitutes the entire and exclusive statement of the agreement between the parties and/or any of their respective affiliates with respect to its subject matter and supercedes all prior communications, understandings, and agreements, including prior reseller, partner or channel agreements between the parties and/or any of their respective affiliates concerning the subject matter hereof, whether written or oral.
16.7. Any technical assistance or other support services Reseller may require which is beyond the scope of services described in this Agreement will be subject to the negotiation of a separate agreement.
16.8. The terms herein may not be changed or modified except by a written instrument signed by the authorized representatives of both parties. The parties further agree that unless otherwise agreed in writing by the parties, the terms and conditions of this agreement shall prevail over the terms and conditions on any purchase order or other document prepared by Reseller. Any attempt by Reseller to substitute the terms of this Agreement with the pre-printed or additional terms on a purchase order is hereby rejected by [SELLER/COMPANY_SHORTNAME].
16.9. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure of either party to require the performance by the other party of any provisions of this Agreement, shall not be construed as a waiver of such provisions in the future, nor will it affect the ability of a party to enforce each and every provision thereafter.
16.10. If any court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part will remain in full force and effect to the extent it is not held invalid or unenforceable. The invalid or unenforceable provision shall be changed and interpreted so as to best accomplish its intent within the limits of the applicable law or court decisions.
16.11. Neither party shall be in breach of this Agreement for any failure or delay in the performance of its obligations, hereunder (except for the payment of money) as a result of a Force Majeure, such as fire, explosion, Act of Nature, strikes, war, riot, government regulation or act or any other cause beyond the reasonable control of such party, provided that the affected party gives the other party prompt written notice of the delay and uses its best efforts to cure it.
16.12. Nothing in this Agreement shall make [SELLER/COMPANY_SHORTNAME] and Reseller either partners, joint venturers, or otherwise associated in or with the business of the other.Reseller is and shall always remain an independent contractor.Neither party shall be liable for any debts or other liabilities of the other party, its agents or employees.Neither party is authorized to incur debts or other obligations of any kind on the part of or as agent for the other.
16.13. This Agreement is not a franchise agreement and does not create a franchise relationship between the parties, and if any provision of this Agreement is deemed to create a franchise between the parties, then this Agreement shall automatically terminate. Reseller shall take no action which would cause [SELLER/COMPANY_SHORTNAME] to be classified or to be considered as doing business in the Territory under the laws of the Territory or which would cause [SELLER/COMPANY_SHORTNAME] to become subject to the income tax, profit tax, receipts tax or any other tax of the Territory.Reseller shall indemnify [SELLER/COMPANY_SHORTNAME] for any losses, costs, or damages incurred by [SELLER/COMPANY_SHORTNAME], including but not limited to the tax liability of any type, kind, or nature assessed against [SELLER/COMPANY_SHORTNAME], arising from Reseller's exceeding its authority under this Agreement.
16.14. [SELLER/COMPANY_SHORTNAME] and Reseller shall each have the right to publicize to any third party that Reseller is an authorized reseller of [SELLER/COMPANY_SHORTNAME]Products. Except for the foregoing, neither party shall disclose the terms and conditions of this Agreement to any third party without the prior written consent of the other party, which consent may be withheld in the sole discretion of such party. Neither party shall release or publish any news release, advertising or other public announcement relating to this Agreement without the prior review and approval of the other party, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may make such disclosures as are required by its legal or accounting obligations or to any government authorities, after making reasonable efforts to consult, in advance, with the other party.
16.15. All rights, remedies and powers of [SELLER/COMPANY_SHORTNAME] hereunder are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers to which it may be entitled by law. Reseller acknowledges that if it breaches any obligations hereunder, [SELLER/COMPANY_SHORTNAME] may suffer immediate and irreparable harm for which monetary damages alone shall not be a sufficient remedy, and in addition to all other remedies, [SELLER/COMPANY_SHORTNAME] shall be entitled to seek injunctive relief, specific performance, equitable relief or any other remedy necessary to prevent a threatened breach by Reseller or to correct an actual breach and to enforce this Agreement. Reseller hereby waives any and all defenses and objections it may have on grounds of jurisdiction and venue, including, but not limited to, lack of personal jurisdiction and improper venue, and waives any requirement for the securing or posting of any bond in connection with such remedy.
16.16. Reseller acknowledges that its right to license to use and distribute the Products under this Agreement is non‑exclusive, and that [SELLER/COMPANY_SHORTNAME]reserves the right to license and distribute the Products to any third party anywhere in the world, and to appoint any third party to do so, without giving Reseller notice thereof and without incurring any liability to Reseller therefore.
16.17. Except as otherwise expressly set forth in this Agreement, each party shall bear its own expenses, costs and fees (including attorneys and auditors) in connection with the transactions contemplated herein, including the preparation, execution and delivery of this Agreement and compliance herewith.
16.18. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.
16.19. Products are not designed, made, or intended for use in any application where failure or inaccuracy might cause death or personal injury. Reseller agrees that [SELLER/COMPANY_SHORTNAME] shall not be liable in whole or in part, for any claims or damages arising out of or in connection with the use and performance of Products in such applications.
16.20. This Agreement may be executed by facsimile, counterparts or duplicate originals, all of which shall be regarded as one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives, as of the Effective Date.
EXHIBIT A - PRODUCTS AND TERRITORY
The Products are:
- [SELLER/COMPANY_SHORTNAME] [SELLER/PRODUCT1/NAME]
- [SELLER/COMPANY_SHORTNAME] [SELLER/PRODUCT2/NAME]
The Reseller’s authorized Territory is worldwide, unless otherwise indicated
EXHIBIT B - PRODUCT PRICE LISTS
- Reseller discount is: [RESELLER/DISCOUNT_PERCENTAGE] % on [SELLER/COMPANY_SHORTNAME] Public Price List
- Annual sales volume: NA
- Price list: NA