TECHNOLOGY REseller AGREEMENT
This Agreement is made and entered into as of ______, 20__(the “Effective Date”) by and between ______, a ______corporation, with offices at ______(“Reseller”) and ______, a ______corporation, with offices at ______(together with its affiliates[mf1], “Licensor”).
In consideration of the mutual promises and covenants contained herein, and other good and valid consideration, the receipt and sufficiency of which is hereby acknowledged, THE PARTIES AGREE AS FOLLOWS:
1.Definitions.
1.1“Client Access License or “CAL” means the per-unit measurement utilized by Licensor as of the Effective date Date for the purpose of determining (a) the extent of a Customer’s license rights with respect to the Mobile Client Software under an Order, and (b) the amount of software license fees payable by Reseller to Licensor for such license rights.
1.2“Customer” meansan individual or entity that has (a) purchased from Reseller pursuant to this Agreement a license to use any Licensor Software and/or a right to receive Support and Maintenance and/or anyProfessional Services, and (b) accepted all applicable Customer Terms.
1.3“Customer Terms” means any of Licensor’s standard form written or electronic software license agreements and/or any service terms and conditions applicable to the Licensor Software, Support and Maintenance and/or theProfessional Servicesto which a Customer must explicitly agree prior to and as a continuing condition of use of such software or services.Licensormay revise the Customer Terms, without notice to Reseller. Offer and acceptance of Customer Terms constitutes a separate and distinct license between Customer and Licensor.
1.4“Fees” is defined in Section 5.1 below.
1.5“Licensor Offerings” means the Licensor Software, Support and Maintenance and Professional Services (each sold separately)and any other products or services that Licensor designates in writing as permissible for Reseller to market and resell to Customers under this Agreement.Licensor may revise the Licensor Offerings, without notice to Reseller.
1.6“Licensor Software” means the object code version of the Licensor for Enterprise™ software, which, as of the Effective Date,is comprised of a client software component that is installed on a Customer-designated end user’s mobile smartphone handset or any other Licensor-supported device (“Mobile Client Software”) that interoperates with a server software component that resides behind the Customer’s enterprise firewall (“Mobile Server Software”).
1.7“Professional Services” means the services provided by Licensor and/or its authorized consultants to assist a Customer with the installation and deployment of the Licensor Software, including on-site and/or remote training, as more particularly specified on Licensor’s website at the following address:
1.8“Order” means the submission by Reseller to Licensor of a written order for Licensor Offerings under this Agreement, utilizingLicensor’s standard sales order form or any other mutually agreeable form.
1.9“Sales Term” means the time period specified in Exhibit A to this Agreement, during which Reseller is authorized to resell the Licensor Offerings to Customers under this Agreement.
1.10“Server License” means the per-unit measurement utilized by Licensor as of the Effective Date for the purpose of determining (a) the extent of a Customer’s license rights with respect to the Mobile Server Software under an Order, and the (b) amount of license fees payable by Reseller to Licensor for such license rights.
1.11“Support and Maintenance” means the technical support and maintenance program offered by Licensor with respect to the Licensor Software, as specified on Licensor’s website at the following address:
1.12“Territory” means the geographic territory in which Reseller is authorized to market and resell the Licensor Offerings under this Agreement, as specified on Exhibit A.
2.Reseller Rights and Obligations.
2.1Appointment. Subject to the terms of this Agreement and Reseller’s timely payment of all Fees hereunder, Licensor hereby appoints Reseller during the Sales Term, as a non-exclusive,direct reseller of the Licensor Offeringswithin the Territory. Nothing in this Agreement shall be construed as restricting in any manner Licensor’s marketing, sales or distribution activities or Licensor’s appointment of other resellers, dealers, distributors, licensees or agents in any territory or marketplace.
2.12.2Distribution and Use License. Licensor hereby grants to Reseller a non-transferable, non-exclusive, right to (1) resell the Offerings to Customers for their own use within the Territory;, provided that each Licensor Software sale is preceded by, or contemporaneous with, the execution by Customer of the Customer Terms; and (2) to use the Licensor Software as may be necessary on behalf of the Customer to administer Reseller’s Authorized Solution[mf2].
2.22.3Customer Terms. Reseller shall notify each prospective Customer, prior to selling them any Licensor Offerings, that the use of such Licensor Offeringsis subject to such prospective Customer’s agreement to all applicable Customer Terms.
3.Confidential Information. This Agreement and the LicensorSoftware are confidential and proprietary information of Licensor and/or its licensors ("Confidential Information[mf3]"). Reseller shall not disclose Confidential Information and shall use it only for the purposes specifically permitted by, and related to, this Agreement. The foregoing will not modify or limit any other confidential information disclosure agreement between the parties.
4.Ordering Process; Fulfillment.
4.1 Procedure. Reseller shall order Licensor Offerings for delivery by Licensor to Customers by submitting an Order to Licensor in accordance with the terms and conditions of this Agreement, and the then-current Order processing procedures established by Licensor. Such Orders shall reference this Agreement and specify the type and amount Licensor Offerings ordered, the Fees payable by Reseller with respect to the Order and any information regarding the Customer specified by Licensor.
4.24.2 Acceptance of Orders. All Orders submitted by Reseller to Licensor shall be subject to acceptance by Licensor at its corporate offices in Redwood City, California, USA and shall not be binding on Licensor until the earlier of written confirmation or delivery of applicable Licensor Offerings by Licensor. Reseller shall have no right of rescission in connection with Orders. Licensor reserves the right to reject specific Orders in its sole discretion or accept Orders directly from a Customer at any time should that Customer wish to deal directly with Licensor or any of its other authorized third-party resellers
4.3 Controlling Terms. All Licensor Offeringsresold by Reseller to Customers shall be subject to the terms and conditions of this Agreement, including, without limitation, the Customer Terms. Except as provided in any published documentation associated with the Licensor Offerings and Licensor Software (the “Documentation”), Reseller shall make no warranties or representations concerning the Licensor Offerings on behalf of Licensor. Any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, or confirmation that are different from or in addition to those required hereunder shall not be binding on the parties, even if signed and returned, unless both parties hereto agree in a separate writing to be bound by such different or additional terms and conditions.
4.44.14.4 Cancellation or Postponement by Licensor. Licensor may cancel or postpone any Order placed with and accepted by Licensor if Reseller fails to make any payment as provided herein or otherwise fails to materially comply with the terms and conditions of this Agreement.[mf4]
4.54.24.5 Fulfillment of Orders. Upon acceptance of an Order, Licensor shall use commercially reasonable efforts to deliver the Licensor Offerings to the applicable Customer in accordance with the mutually agreeable timing specified in the Order. Upon receipt, Reseller shall notmay distribute and install any Licensor Software to any Customer or any other third party under this Agreement without Licensor’s prior written consent. in its discretion in connection with Reseller’s solution offerings.[mf5]
5.Fees &Payment; Terms of Resale.
5.1Software License and Service Fees. In consideration of the distribution license and access rights granted to Reseller hereunder, Reseller shall pay Tthe license and services fees payable by Reseller to Licensor for each unit of Licensor Offerings [mf6]resold by Reseller to Customers under this Agreement (“Fees”) are as set forth in Exhibit A. Licensor reserves the right to change the Fees and/or Reseller’s discount upon sixty (60)ninety (90) days’written notice [mf7]to Reseller.
5.2Payment Terms. With respect to each Order, Licensor shall issue an invoice to Reseller in either electronic or hard copy format. Invoices are due net thirty (30)sixty (60) days from the date of invoice. Reseller will pay all charges, including without limitation shipping charges and shall be responsible for all taxes (except Licensor’s income taxes) in connection with the subject matter of this Agreement, duties and other governmental assessments. No deductions shall be made for withholding or other taxes on any amounts payable to Licensor by Reseller under this Agreement. If Reseller is required by law to deduct or withhold any taxes from any amount payable hereunder, then the amount payable hereunder shall be increased so that after making all required deductions and/or withholdings (including deductions and withholdings applicable to any additional amounts payable under this section), Licensor receives an amount equal to the amount it would have received had no such deductions or withholdings been made, and Reseller shall, after making full payment of any such tax, provide Licensor copies of tax receipts evidencing payment of such taxes. All payments hereunder shall be made in U.S. dollars in the United States. All unpaid fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all costs of collection.
5.3Terms of Resale. Reseller is freeto determine the prices that it will charge Customer for the Licensor Offerings. Licensor may provide suggested retail pricing, but this is merely a guide and is in no way binding on Reseller. Reseller acknowledges and agrees that its obligation to pay Fees is not dependent on collection of any amounts from Customers.
5.4Term and Termination. This Agreement will begin on the Effective Date and continue until the expiration of the Sales Term specified in Exhibit A, unless terminated sooner as permitted below. Either Party may terminate this Agreement for convenience at any time upon sixty (60)ninety (90) days' prior written notice.Upon termination of this Agreement by either party (i)all rights and licenses granted to Reseller herein shall immediately terminate, and (ii)Reseller will immediately cease to market, promote and/or resell the Licensor Offerings. Notwithstanding the foregoing, all licenses granted to any Customer pursuant to any then -binding Customer Terms shall survive the expiration or termination of this Agreement and continue in full force and effect in accordance with the terms hereof and the Customer Terms. , (iii)Reseller will return to Licensor any Licensor Software, to the extent it was provided to Reseller pursuant to this Agreement, and (iv) Reseller will pay in full all unpaid Fees accrued through the date of termination. Any termination or expiration of this Agreement shall not release any party from any liability whichthat at such time had already accrued The provisions of Sections 3, 4.1, 5, 6, 7, 8, 9 and 10[mf8]of this Agreement shall survive its expiration or termination, howsoever occurring.
6.Limitations of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO LICENSOR BY RESELLER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE FILING OF THE CAUSE OF ACTION, (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III)FOR ANY LOSS OF PROFITS, INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV)FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; (V) FOR ANY CLAIMS ARISING FROM OR RELATED TO USE OF THE LICENSOR OFFERINGS BY CUSTOMERS OR ANY OTHER END USERS.
(a)IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES (WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE), INCLUDING LOSS OR DAMAGES COMPRISING, OR RESULTING FROM, LOSS OF GOODWILL, PROSPECTIVE PROFITS, ANTICIPATED ORDERS, LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OF DATA OR LOSS OF INFORMATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) In no event, including without limitation any breach of a fundamental term of this Agreement, shall either party’s aggregate liability arising out of this Agreement exceed the total amounts paid by Reseller to Licensor hereunder in respect of the Licensor Offerings giving rise to the liability during the 12 -month period immediately preceding the event giving rise to the claim.
(c)The limitations contained in this Section 7 shall apply notwithstanding any failure of essential purpose of any limited remedy. The parties acknowledge that these limitations of liability are an essential basis of the bargain between them.
7.Reseller Representations and Warranties; Indemnification. Reseller represents, warrants and agrees: (i) not to combine the Licensor Software with any other software or services not specifically authorized in writing by Licensor; (ii) not to directly or indirectly, reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code or object code or the underlying ideas, algorithms, structure or organization of the Licensor Software.
; and (iii)Both parties represent, warrant and agreewith respect to its conduct under this Agreement, to comply with all applicable US and foreign laws and regulations, including, without limitation, U.S. export control laws, the U.S. Foreign Corrupt Practices Act, and laws related to the collection, dissemination, processing and transfer of personally identifiable and other information[mf9].
Reseller Each party shall defend, indemnify and hold Licensor the other party and its officers, directors, employees, consultants and agents harmless from and against any and all liabilities, expenses, costs, losses and damages, including, without limitation, reasonable legal expenses and attorneys’ fees, and in connection with all third party suits, claims, actions, or demands arising directly or indirectly out offrom: (i) in the case of Reseller as indemnitor, any unauthorized representation or warranty made by Reseller with respect to the Licensor Offerings to any third parties; or (ii) in the case of either party as indemnitor, the breach by Reseller it of any of its representations, warranties or covenants hereunder.
6.8.Warranty Disclaimer. EXCEPT AS SET FORTH IN THE DOCUMENTATION, THELICENSOROFFERINGS ARE PROVIDED “AS IS” WITHOUT ANY REPRESENTATIONS, CONDITIONS, TERMS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, DESIGN, WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, STATUTE, COMMON LAW OR TRADE PRACTICE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENTLICENSOR OFFERINGS. LICENSOR DOES NOT WARRANT THAT THE LICENSOR OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE LICENSOR OFFERINGS. THE FOREGOING DOES NOT APPLY TO CUSTOMERS’ RIGHTS UNDER APPLICABLE CUSTOMER TERMS.
9.Warranty Infringement. Licensor warrants to Reseller that Licensor is the owner or has full right to grant the subject license to the Licensor Software and that neither the Licensor Software nor any part thereof infringes any patent, copyright, trade mark, trade name, or service mark, or that is misappropriates any trade secret or other proprietary right of any third party, and agrees to hold harmless, indemnify and defend, at its expense, Reseller, or and its officers, directors and employees, if so named, againstemployees against any claim of infringement related to said Licensor Software. Licensor agrees to pay any costs, damages and reasonable attorney’s fees incurred by or awarded against Reseller in any such action ahich are attributable to such claim, provided that Reseller promptly notifies Supplier in writing of such claim and that Supplier shall have the right to control the defense and/or settlement thereof. [mf10]
10.Intellectual Property. Licensor warrants that all information and materials it furnishes hereunder and products licenses pursuant to this Agreement will not infringe any third party’s intellectual property rights issues, honored or enforceable under U.S. laws or international conventions(s) (including but not limited to the Berne Convention, Paris Convention, Universal Copyright Convention, or Patent Cooperation treaty) including but not limited to patents, copyrights, trademarks, trade names and trade secrets. In the event of breach of this warranty, the furnishing party shall indemnify, defend and hold harmless from and against all cost and damages (including reasonable attorney’s fees) awarded by a court ocof competent jurisdiction to or settled with a third party to the extent they arise out of a claim that information and/or materials as delivered hereunder infringe any such intellectual property right. Such obligation is subject to the following conditions: (i) the indemnified party shall notify the furnishing party in writing within thirty (30) days of the date the indemnified party first becomes aware of a claim; (ii) the furnishing party has sole control of the settlement, compromise, negotiation and defense of any such action; and, (iii) the indemnified party gives the furnishing party’s expenses, to enable the furnishing party property rights, the furnishing party shall. Aat its option, obtain the right for continued use of the I/M, [mf11]substitute other equivalent I/M, or modify the I/M so it is no longer infringing, or, if none of the foregoing remedies are commercially feasible, terminate the indemnified party’s right to use the allegedly infringing I/M and refund to the indemnified party any amount whichthat the indemnified party may have paid for such I/M. The foregoing indemnity shall not apply to any infringement claim arising for I/M, which has been modified, by a third party other than the furnishing party. [mf12]THE FOREGOING STATES INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPERTY RIGHTS OF ANY KIND.