ASP Reseller Agreement

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[NAME OF SUPPLIER]
RESELLER AGREEMENT

This Reseller Agreement (the “Agreement”) is made and entered into as of the Effective Date by and between [NAME OF SUPPLIER], a Delaware corporation (“Supplier”), and [NAME OF RESELLER], a ____________ company (“Reseller”).  Certain capitalized terms have the meaning given them below under Section 10.

For good and valuable consideration, the parties hereby agree as follows:

Contents

1.License From Supplier; Additional Services.

1.1 Grant of Reseller Rights. 

Subject to the terms and conditions of this Agreement (including without limitation, the provisions under Section 1.2 and Section 1.3 and payment of all applicable fees), Supplier hereby grants Reseller a worldwide, non-assignable and non-exclusive right to:

(a)Market. 

Market, promote, distribute and provide the Product to Customers in the following form (if and only if so specified in Exhibit A): (i) in the form of an Installed Product; (ii) by resale of an SAAS Product provided by Supplier; or (iii) in the form of a SAAS Product provided by Reseller.

(b)Copy. 

Make such copies of the Installed Product as may be necessary for distribution of such copies to Customers pursuant to the foregoing; and

(c)Use. 

Use the Product for demonstration purposes in connection with the foregoing marketing, promotion and distribution of the Product and providing support to Customers.

1.2 Customer Licenses.

Reseller shall license the Product to Customers pursuant to agreements (a) substantially in the form attached as EXHIBIT B or (b) that (i) expressly prohibit Customers from deciphering, decompiling, disassembling, or reverse engineering the code or data files or otherwise attempting to discover the source code or read the contents of the data files of the Product, (ii) expressly disclaim Supplier’s liability to Customers and identify Supplier as a third party beneficiary of the user agreement and (iii) otherwise contain terms consistent with and no less restrictive than the terms hereof (including without limitation restrictions relating to pricing for upgrades, data limits and number of permitted users), and containing such additional terms and conditions as may be agreed to by Supplier and Reseller from time to time.  Reseller shall use reasonable efforts to enforce the terms of the user  agreements. 

1.3 Limitations On Use By Reseller and Customers.

(a) Restrictions on Use.

Reseller may not (and Reseller may not permit anyone else, on Reseller’s behalf or otherwise, to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of any software or any part thereof, unless (i) expressly permitted or required by law; (ii) copies made where copying is an essential step in the authorized use of the Product (such as copying to transient storage as part of execution of code, or copying by Reseller to provide authorized copies to Customer); and (iii) copies made solely for backup or archival purposes.

(b)Limitation on Access to and Use of the Product.

Reseller agrees not to access (or attempt to access or authorize any other party to access) the Product by any means other than through the interface(s) that are provided by Supplier, unless Reseller has been specifically allowed to do so in a separate written agreement executed by Supplier. Without limiting the generality of the foregoing, Reseller specifically agrees not to access (or attempt to access) any of the Product through any automated means (including use of scripts or crawlers).  Similarly, Reseller agrees that Reseller will not provide any third party access to material on the Product (or facilitate their attempt to access) by any means other than through the interface that is provided by Supplier, unless Reseller has been specifically allowed to do so in a separate written agreement executed by Supplier.  Reseller agrees that Reseller will not engage in any activity that interferes with or disrupts the Product (or the servers and networks which are connected to the Product); interfere with or disrupt the Product or take any steps to interfere with or in any manner compromise any security measures with respect to the Product or any data or file transmitted, processed or stored on or through the Product.

(c)Compliance with Law and Standards of Conduct.

Reseller agrees to use the Product only for purposes, and in a manner, permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions including, without limitation, any regulations of the United States Bureau of Export Administration and other applicable governmental agencies.  Reseller represents and warrants that Reseller is not a national of, or under the control of, any country upon which the United States has then currently imposed an embargo of goods.  Without limiting the foregoing, Reseller agrees not to use the Product in violation of Supplier’s standards of conduct posted at www.Supplier.com/conduct as amended from time to time.

(d)Provision of Registration Information. 

In order to access the Product, Reseller may be required to provide information about Reseller (such as identification or contact details) from time to time, including, but not limited to, as part of the registration process for the Product, or as part of Reseller’s continued use of the Product.  Reseller agrees that any registration information Reseller give to Supplier will always be accurate, correct and up to date.  Supplier agrees to take commercially reasonable steps to preserve the confidentiality of such information.

(e)Responsibility to Maintain Confidentiality. 

Reseller (or the applicable Customer) is responsible for maintaining the confidentiality of passwords associated with any account such person uses to access the Product.  Accordingly, Reseller (and the applicable Customer) will be solely responsible to Supplier for all activities that occur under such person’s account.  If Reseller becomes aware of any unauthorized use of passwords or accounts, Reseller agrees to notify Supplier immediately.

(f)Prohibition Against Sublicense; Responsibility for Customers and End Users. 

This Agreement and Reseller’s license granted under this Agreement are personal to Reseller (and Reseller Personnel in the course of their work for Reseller), and (other than the right to authorize Reseller’s Personnel, Customers and Customer’s End Users to use the Product expressly granted hereunder) do not include the right to sublicense Reseller’s or Customer’s rights under this Agreement to any third party.  Reseller shall be responsible for ensuring that Reseller Personnel and Customers authorized hereunder comply with this Agreement and any applicable user agreement.  Each Customer shall be responsible for ensuring that its End Users comply with this Agreement and any applicable user agreement. 

(g)U.S. Government Customers. 

The software used to provide the Product is a “commercial item,” as that term is defined in 48 C.F.R. 12.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government customers acquire the software with only those rights set forth herein.

1.4 Marketing and Distribution of the Product. 

Reseller, and not Supplier, shall be responsible to promote, market, license and distribute the Product to Customers.  The costs of such promoting, marketing, licensing and distribution shall be borne solely by Reseller.  Except as expressly set forth on Exhibit A, Reseller shall be responsible for the billing and collection of all license, renewal, support, maintenance and consulting fees relating to the Product.

2. Support Obligations and Updates. 

2.1 Support and Maintenance Services. 

During the term of this Agreement, Supplier will provide Reseller the following support and maintenance services for the Product:

(a)Installed Products Only.

If Reseller is authorized to resell Installed Product, then the following provision is applicable:

Supplier will make available to Reseller, at no additional charge, all Maintenance Releases to the Installed Product which Supplier makes generally available to Supplier’s customers.  In addition, Supplier will make available to Reseller, at no additional charge, all Major Releases to the Installed Product which Supplier makes generally available to Supplier’s customers at no extra charge. Reseller may make such Updates available to its Customers at no additional charge by Supplier.

Supplier reserves the right to charge customers for Major Releases. 

Reseller must install (or arrange for Customers to install) all Installed Products all Updates Supplier makes available to Reseller. 

(b)SAAS Products Only. 

If Reseller is authorized to resell SAAS Products, then the following provision is applicable:

Supplier will provide the SAAS Product using the latest version of the SAAS Product and is responsible for updating its own systems accordingly.  Supplier reserves the right to charge  for additional functionality incorporated in Major Releases.

(c)For Both SAAS Products and Installed Products. 

The following provision is applicable whether Reseller is authorized to resell SAAS Products or Installed Products:

Reseller should provide 2 points of contact for coordination of support (“Reseller Support Contacts”) with Supplier.  Such individuals must be technically qualified and must undertake to become reasonably familiar with the Product and its installation and use as a condition to become a Reseller Support Contact.  Reseller may change such contact on reasonable notice to Supplier.

Supplier investigates potential errors related to the Product's non-conformance to Documentation.  In that connection, Supplier will provide reasonable telephone consultation to the Reseller Support Contacts to assist in the investigation of potential Product errors during Supplier’s Standard Support Hours.  Requests shall be made by email to support@Supplier.com. 

Supplier does not provide support services for any version of the Product other than the current and previous Major Release of the Product. 

Supplier’s obligation under the above provisions is to provide second level support for those problems that Reseller cannot reasonably be expected to resolve itself.  Accordingly, Supplier’s above support obligations are also conditional upon Reseller’s compliance with the following conditions of support:

•           Reseller must provide first line support to Customers.  This includes local Customer's desktop and network access.  Supplier is not obligated to respond to any support requests from Customers, nor any requests from any person who is not a Reseller Support Contact.

•           Reseller must ensure that the Product is used only in combination with other software, devices or hardware recommended or specified by Supplier as being compatible with the Product, and ensure a stable network environment with adequate capacity. 

•           Supplier is not responsible for support services with respect to a Product if such Product has not been updated by all applicable Updates or if Reseller has not ensured that hardware and network services are correctly configured and operating according to specifications, and operating system software and other third party software is current, and has all manufacturer/supplier-recommended updates and patches. 

•           Reseller must provide Supplier with reasonable access (remote or on-site, as needed by Supplier) to relevant equipment, and all relevant documentation and records, and such reasonable assistance as Supplier may request, including sample output and other diagnostic information, in order to assist Supplier in providing support.

2.2 Subsequent Versions of the Product. 

The license granted to Reseller under this Agreement is for the most current version of the Product as of the time Supplier makes such version available to Reseller under this Agreement unless otherwise specified by Supplier.  Supplier may release future versions of the Product under this Agreement on different terms.  Except any obligations to provide Updates in Section 2, nothing in this Agreement (a) gives any person the right to any future version of the Product or rights to any other Product marketed by Supplier; or (b) is a commitment to compatibility between the Product and any future versions of either.

2.3 Automatic Updates. 

The Installed Product may cause Reseller’s and Customer’s computer system or other device to download and install updates to the Product from time to time. These updates are designed to improve, enhance and further develop the Product and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. Reseller consents and agrees to (and shall cause its Customers to) receive and permit the installation of such updates (and to permit Supplier to deliver these to Reseller) as part of Reseller’s and Customer’s use of the Installed Product.  This Agreement shall apply to any such updated Product unless otherwise specified by Supplier.

3. Payment For Services.  

3.1 Fees. 

Reseller shall pay Supplier the fees described on Exhibit A.  Reseller agrees to pay all charges, recurring fees, applicable taxes and other charges (collectively herein “Charges”) incurred by Reseller (or anyone who is using an authorized user account that Reseller, or its Customers, have caused to be created or for which Reseller has otherwise indicated Reseller’s agreement to be responsible for payment) at the rates in effect for the billing period in which those charges are incurred.  Charges may include among other things, setup fees, administrative fees, access fees (whether based on usage of the Product or otherwise), upgrade fees, additional services fees and/or support fees.  Unless otherwise indicated, (i) all invoices are due and payable within thirty (30) days of Supplier’s date of invoice, (ii) in addition to Supplier’s right to suspend delinquent accounts and modify the timing of payment obligations, in each case in accordance with Exhibit A, interest shall be payable at the rate of one and one-half percent (1.5%) per month or at the maximum rate permitted by law, whichever is less, on all overdue and unpaid invoices until paid in full; and (iii) all fees are denominated and to be paid in United States Dollars and are exclusive of any applicable taxes. 

3.2 Taxes. 

Reseller shall pay, indemnify and hold Supplier harmless from all sales, use, value added or other taxes of any nature, other than personal property or taxes on or measured by Supplier’s net or gross income, including penalties and interest, and all government permit or license fees assessed upon or with respect to any fees. 

3.3 Billing Disputes. 

Reseller must inform Supplier of any billing problems or discrepancies within 90 days after they first appear on Reseller’s account statement.  If Reseller does not bring them to Supplier’s attention within 90 days, Reseller agrees that Reseller waives Reseller’s right to dispute such problems or discrepancies.  Additionally, if any charges are being collected by Supplier on behalf of a supplier, then such supplier shall be an express third party beneficiary of this provision.  If Reseller’s account is delinquent, Supplier may, at Supplier’s sole discretion, suspend or cancel Reseller’s, or any of its Customers’, accounts (and accordingly the use of the Product). 

3.4 Sales Reports and Audit. 

If Reseller is authorized to resell Installed Product, then the following provision is applicable:

Reseller shall provide Supplier, by no later than thirty (30) calendar days after the end of each calendar quarter, a sales report for the previous calendar quarter in reasonable detail. During the term of this Agreement and for a period of at least three (3) years following any termination, Supplier shall have the right to no more than once in any twelve (12) month period to have Reseller’s books and records (including any sales reports delivered in connection therewith) relating to the Product audited, whether by Supplier (or by an independent auditor of Supplier’s choosing and reasonably acceptable to Reseller) to confirm compliance with the payment and usage requirements hereunder by Reseller.  Such audits shall be scheduled on reasonable notice by Supplier to Reseller during Reseller’s normal business hours in a manner that does not unreasonably interfere with Reseller‘s business.  In the event that any audit determines that the payments are less than actual amounts due for the period in question, Reseller shall promptly pay Supplier the amount due plus interest at the above rate for the period from the date such payments were due until the date payment is made.  The cost of such audit shall be borne by Supplier unless the audit shows a shortfall of at least $2,500 which is at least 5% of the amount actually due, in which case the reasonable costs of the audit will be reimbursed by Reseller.

4. Proprietary Rights.

4.1 Ownership of Intellectual Property. 

Supplier (or Supplier’s licensors) own all legal right, title and interest in and to the Product, including any intellectual property rights which subsist in the Product (whether those rights happen to be registered or not, and wherever in the world those rights may exist).  The Product may contain information which is designated confidential by Supplier and Reseller shall not disclose such information without Supplier’s prior written consent.

4.2 Ownership of Content. 

Supplier obtains no right, title or interest from Reseller (or Reseller’s licensors) under this Agreement in or to any information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) (collectively, “Content”) that Reseller transmits or displays on, or through, the Product, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).  Reseller is responsible for protecting and enforcing those rights and Supplier has no obligation to do so on Reseller’s behalf.

4.3 Notices/Protection of Proprietary Rights/Use of Trademarks. 

Subject to the provisions of this Section, Supplier grants Reseller the non-transferable, non-exclusive, revocable right to use the Supplier Trademarks solely in connection with the Product on packaging and in advertising, literature, publicity and other promotional materials, in accordance with Supplier's use guidelines and subject to the conditions set forth in this Agreement.  Supplier Trademarks shall be used in accordance with accepted trademark practice, including identification of trademark owner's name.  Such use of any Supplier Trademark does not give Reseller any rights of ownership in that trademark.  Reseller may not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Product.  In using the Product, Reseller will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos. 

Prior to its first availability and thereafter upon the request of Supplier for samples, Reseller shall provide to Supplier its advertising and promotional materials for Product which bear a Supplier Trademark.  If Reseller receives written notice from Supplier that its representation of the Supplier Trademarks does not comply with Supplier's use guidelines or is misleading in regard to any Product, then Reseller at its own expense shall revise the materials to correct the deficiencies.

Reseller shall have no right to use any trademarks or trade dress of Supplier other than the Supplier Trademarks as provided in this Agreement.  Reseller acknowledges that Supplier is the owner of the Supplier Trademarks and agrees to assign to Supplier any rights Reseller may acquire in these marks by operation of law or otherwise.  Reseller agrees that any goodwill that accrues because of its use of the Supplier Trademarks shall inure to the benefit of Supplier.  Reseller agrees not to use or permit the use of marks that may be confusingly similar to the Supplier Trademarks.  Reseller will notify Supplier of any infringement or conflicting use of any Supplier Trademark of which it becomes aware and will cooperate as Supplier may reasonably require to protect Supplier's rights.

4.4 Copyright and Trademark Policies. 

It is Supplier’s policy to respond to notices of alleged copyright infringement that comply with applicable intellectual property law (including the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers. Details of Supplier’s policy can be found at www.Supplier.com/dmca.

5. Content, Data And Storage.

5.1 Rights to Content. 

Reseller (or its Customers, as the case may be) retains copyright and/or any other rights they already hold in any and all Content which they submit, post or display on or through, the Product.  By submitting, posting or displaying such Content, Reseller gives Supplier (and shall cause each Customer to give Supplier) an irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which they submit, post or display on or through, the Product as authorized by Reseller or the Customer in the use of the Product.  For avoidance of doubt, Supplier has no rights to use Content other than in connection with providing the Product to (or on behalf of) Reseller or the Customer.

5.2 Grant of Ancillary Right. 

Reseller acknowledges and agrees that, in the course of performing the technical steps required to provide the Product to Supplier’s users, Supplier may (a) transmit or distribute Content over various public networks and in various media for the purpose of fulfilling Supplier’s obligations under this Agreement; and (b) make such changes to Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media for the purpose of fulfilling Supplier’s obligations under this Agreement.

5.3 Authority to Grant License. 

Reseller represents and warrants to Supplier that Reseller has all the rights, power and authority necessary to grant the above license and shall cause each of its Customers to do so also.  Without limiting the foregoing, Reseller shall ensure its and each of its Customers’ privacy policy is consistent with the use by Supplier of such materials.

5.4 External Resources. 

The Product (and any advertising on the Product, if applicable) may include links to third-party content or resources (“External Resources”) including, without limitation, web pages. Supplier may have no control over such External Resources.  Supplier expressly disclaims any responsibility for any inaccuracy in any information or other materials contained in any External Resources and any defective products or services provided by, or advertised on, any External Resources.  Supplier does not endorse, nor does the display or posting of any link on any part of the Product imply that Supplier endorses, any External Resource or any products or services described therein.  Supplier expressly disclaims any responsibility for the availability of any External Resources.  Reseller acknowledges and agrees that Supplier is not liable for any loss or damage which may be incurred by Reseller as a result of the availability (or lack of availability) of those External Resources, or as a result of Reseller’s reliance on the completeness, accuracy or existence of any advertising, products or other materials on, or available from or through any External Resource. 

5.5 Data Storage/Security. 

The parties shall at all times implement and maintain commercially reasonable technical, physical and organizational security measures as are appropriate in the circumstances to protect one another’s confidential information against unauthorized or unlawful processing, disclosure, use, accidental loss, destruction or damage.  Supplier takes reasonable steps to secure the data and Content transmitted by Reseller.  However, Supplier cannot guarantee that the Content and data transmitted by Reseller will remain secure.

6. Term; Termination.

6.1 Term. 

The term of this Agreement commence on the Effective Date and shall continue for a period of one (1) year.  After expiration of the initial term or any renewal term, the Agreement will automatically be renewed for one year commencing on the day after termination of the prior term, unless either party gives the other party at least thirty (30) days written notice of its intention to terminate prior to the expiration of the initial term or any renewal term.

(a) Termination for Cause. 

Either Party may terminate this Agreement effective upon fifteen (15) days written notice upon if the other Party fails to cure a breach of this Agreement within 15 days of having received written notice of such breach.  Without limiting the foregoing, either Party may terminate this Agreement immediately if the other Party (i) ceases to do business in the normal course, (ii) becomes or is declared insolvent or bankrupt, (iii) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days, or (iv) makes an assignment for the benefit of creditors.

(b) Suspension or Termination. 

Supplier may, at any time, stop (permanently or temporarily) providing the Product (or any features within the Product) to Reseller or to any Customer at Supplier’s sole discretion, and/or terminate this Agreement or all or some of Reseller’s rights under this Agreement, or a Customer’s rights under its customer agreement, if:

(i)Reseller (or Reseller Personnel) have breached any provision of this Agreement, including violating any of the restrictions in the code of conduct referred to above and found at www.Supplier.com/conduct as amended from time to time (or have acted in a manner which clearly shows that Reseller or Reseller Personnel do not intend to, or are unable to comply with the provisions of this Agreement or such code of conduct), and Supplier shall have no obligation to refund to Reseller any fees already paid;

(ii) a Customer has breached any provision of the applicable user agreement (including any action or omission by a Customer that would have constituted a breach if its agreement if such agreement had complied with the requirements thereof set forth in this Agreement), including violating any of the restrictions in the code of conduct referred to above and found at www.Supplier.com/conduct as amended from time to time (or have acted in a manner which clearly shows that such Customer or its personnel do not intend to, or are unable to comply with the provisions of the applicable user agreement or such code of conduct), and Supplier shall have no obligation to refund to Reseller any fees already paid in respect of such Customer;

(iii) there is an attack on the Product, the Product is accessed or manipulated by a third party without Reseller’s (or the applicable Customer’s) consent, or there is another event for which Supplier reasonably believes that the suspension of Reseller’s (or the applicable Customer’s) access to the Product is necessary to protect Supplier’s network or Supplier’s other customers;

(iv) Supplier is required to do so by law (for example, where providing Reseller (or the applicable Customer) or Reseller (or the applicable Customer’s) Personnel access to the Product may be, or become, unlawful);

(v) the partner with whom Supplier offered the Product to Reseller (or the applicable Customer) has terminated its relationship with Supplier or ceased to offer the Product to Reseller;

(vi)Supplier is, or anticipates, no longer providing the Product to users in the jurisdiction containing Reseller’s (or the applicable Customer’s) residence or Reseller’s (or the applicable Customer’s) principal place of business or from which access to the Product may be made on Reseller’s (or the applicable Customer’s) behalf; or

(vii) the provision of the Product to Reseller (or the applicable Customer) or Reseller (or the applicable Customer’s) Personnel by Supplier is, in Supplier’s opinion, no longer commercially viable.

(c) Unauthorized Assignment. 

All of Reseller’s rights to access the Product under this Agreement shall automatically terminate in the event of an unauthorized assignment by either party. 

6.2 Effect of Termination. 

Upon any termination of this Agreement, Reseller’s right to use the Product shall automatically terminate, but the provisions under Section 1.3, 4, 5, 6.2, 6.3, 7, 8, 9, 10 and 11 shall survive termination or expiration of this Agreement for any reason. 

6.3 Transition Period. 

Notwithstanding termination or expiration of this Agreement, during the Transition Period (if any), the parties shall continue to provide the following services pursuant to the terms of this Agreement: (i) such reasonable assistance, advice and training as either party may request and (ii) such other reasonable assistance either party may request in order to ensure a smooth and efficient transition to another vendor.  Licenses granted to Customers prior to termination or expiration shall survive such termination or expiration during the Transition Period (if any).  Unless otherwise agreed to by the parties, the obligations to each party under this Agreement during the Transition Period shall be governed by the provisions of this Agreement.

7. Exclusion Of Warranties.

7.1 Disclaimer of Warranties. 

THE PRODUCT (INCLUDING ANY ADVERTISING DISPLAYED THEREON, IF APPLICABLE), AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE PRODUCT (THE “MATERIALS”) IS MADE AVAILABLE “AS IS, AS AVAILABLE”.  SUPPLIER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE PRODUCT OR THE MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. 

7.2 Assumption of Risk. 

SUPPLIER DOES NOT PROMISE THAT THE USE OF THE PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE, AND RESELLER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY AND CONFIDENTIAL INFORMATION.  ANY WARRANTY GIVE BY RESELLER TO ITS CUSTOMERS SHALL BE SOLELY RESELLER’S RESPONSIBILITY.  RESELLER ALONE SHALL BEAR THE RISK AND RESELLER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM USE OF THE PRODUCT OR ANY MATERIALS.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY RESELLER FROM SUPPLIER OR THROUGH OR FROM THE PRODUCT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. 

8. Indemnification.

8.1 Reseller’s Indemnification Obligation. 

Reseller agrees to defend and indemnify Supplier (and Supplier’s subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees), against any and all third party claims or demands, actions, proceedings and suits and all related liabilities, damages, settlements, penalties, fines costs and expenses incurred by Supplier, due to or arising out of data or content that Reseller  (or Reseller Personnel) or its Customers or their End Users submit, post to, transmit or communicate through the Product, Reseller’s (or Reseller Personnel’s) or its Customers’ or their End Users’ use or misuse of the Product, Reseller’s or its Customers’ or their End Users’ violation of this Agreement (or the applicable user agreement, as the case may be) or the rights (including without limitation, rights in respect of intellectual property) of any third party, except to the extent Supplier has agreed to indemnify Reseller under Section 8.2.

8.2 Supplier’s Indemnification Obligation. 

Supplier agrees to defend and indemnify Reseller (and Reseller’s subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees), against any and all third party claims or demands, actions, proceedings and suits and all related liabilities, damages, settlements, penalties, fines costs and expenses incurred by Reseller, due to, or arising out of, a third party claim that the use by Reseller of the Product in accordance with the terms of this Agreement infringes upon, or violates, a U.S. trademark or U.S. patent, or infringes any copyright, or constitute a misappropriation of any trade secret.

8.3 Procedure. 

For the indemnification obligations above to be applicable, the party desiring indemnification (the "Indemnified Party") must (1) promptly notify the party against which it is seeking indemnification (the "Indemnifying Party") in writing of any such claim and offer the Indemnifying Party the opportunity to control the defense and all related settlement negotiations, and (2) cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in defending or settling such claim.  The Indemnifying Party shall not have any right, without the Indemnified Party’s written consent, to settle any such claim if such settlement contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of the Indemnified Party.

8.4 Indemnification Obligation. 

The obligation of the Indemnifying Party to "defend and indemnify" under Section 8 and 8.2 means the Indemnifying Party will pay any damages, fines, penalties and costs finally awarded against the Indemnified Party in such action or proceeding that are attributable to such claim referred to above, and the cost of a settlement agreed to by the Indemnified Party; and also that the Indemnifying Party shall also bear all costs of defense that the Indemnifying Party incurs in connection therewith (including legal fees), and the out-of-pocket expenses of the Indemnified Party in connection with the defense by the Indemnifying Party.  The Indemnified Party may also engage its own counsel in connection with such claim or proceeding, but the expense of such attorney shall be at the Indemnified Party's sole expense. 

8.5 Mitigation of Damages. 

In the event of infringement or misappropriation or allegation thereof of any copyright, trademark, trade secret, patent or other intellectual property right, or violation of any right of privacy or publicity Supplier have the right to:  (i) procure for Reseller the right to continue using the Product; or (ii) modify the Product to make it non-infringing; or (iii) replace the Product, so long as such modification or substitution is made without additional charge to Reseller, and renders the Product substantially functionally similar to the Product prior to modification or substitution.  If none of the foregoing steps is commercially reasonable, Supplier may, if in Supplier’s absolute discretion Supplier so decide, terminate this Agreement without further compensation.  Any election by Supplier under this Section 8.5 shall fully discharge and satisfy any and all claims by Reseller hereunder other than the right to indemnification under “Supplier’s Indemnification Obligation” above with respect to use of the Product prior to such termination.

8.6 Exceptions. 

Supplier shall have no liability to Reseller (or any other person) to the extent that any alleged infringement or claim of infringement is based upon: (i) any modifications to the Product other than by Supplier or trademarks displayed in connection with the Product other than those provided by Supplier; (ii) use of the Product in connection or in combination with equipment, devices, or software not provided by Supplier, or in a process not specified by Supplier, if such infringement would have been avoided by the use of the Product alone; (iii) infringement that is present in other product(s) or processes used by Reseller without the use of the Product; (iv) theories, such as inducement or contributory infringement, where the alleged infringement is facilitated by the Product but not actually directly caused by the Product; (v) the use of the Product in breach of this Agreement; or (vi) the use of any release of the Product other than the current release of the Product, if such infringement could have been avoided by the use of a more recent release and such more recent release was made available to Reseller on or before the time of such use of the Software.  Notwithstanding anything in this Agreement to the contrary, to the extent that any party shall have any obligation to indemnify and hold harmless any other person under this Agreement, such obligation shall not include any obligation to indemnify any consequential, special, punitive, incidental or indirect damages whatsoever, incurred by any person, including if such damages in any way arise out of, relate to or are a consequence of the performance or nonperformance by a party under this Agreement or a breach or indemnification obligation of an Indemnified Party under any contract or otherwise (including with respect to loss of profits, goodwill, business interruptions, anticipated savings or claims of customers), even if advised of the possibility of such damages.

9. Limitation Of Liability. 

EXCEPT AS SET FORTH IN THIS SECTION, EACH PARTY'S AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR RESELLER’S MARKETING, LICENSING, PROMOTION OR USE OF (OR INABILITY TO USE) THE PRODUCT BY RESELLER, CUSTOMERS OR THEIR END USERS SHALL NOT EXCEED THE SUM OF ALL AMOUNTS RECEIVED BY SUPPLIER FROM RESELLER DURING THE PREVIOUS SIX (6) MONTHS; PROVIDED IT IS UNDERSTOOD THE FOREGOING IS A MEASURE OF DAMAGES APART FROM PAYMENT AND DOES NOT EXCUSE OR LIMIT THE OBLIGATION TO MAKE ANY PAYMENT UNDER SECTION 3.  EXCEPT AS SET FORTH IN THIS SECTION, IN NO EVENT SHALL EITHER PARTY (OR ANY OF SUCH PARTY'S SUPPLIERS OR LICENSORS) BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, TORT OR ANALOGOUS DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR RESELLER’S OR CUSTOMERS’ OR THEIR END USERS’ USE OF (OR INABILITY TO USE) THE PRODUCT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The above limitations do not limit liability under applicable statutory law or otherwise on account of Reseller's or any End User's violation of Supplier's intellectual property rights (such as copyright or patent claims), including for use of Supplier intellectual property outside the licenses granted hereunder.

10. Definitions.

The following terms have specific meanings in this Agreement:

“Agreement” means this Master License and Services Reseller Agreement (including exhibits and schedules hereto).

“Customer” means a entity authorized by Reseller to use the Product, which use will be by specific authorization of a number of End Users by the Customer.

“End User” means uniquely identified individual persons authorized by a Customer to use the Product.

“Maintenance Releases” means: (1) bug fixes; (2) enhancements to the software provided by Supplier to keep current with bug fixes and Major Updates that Supplier makes; (3) enhancements to keep current with the current hardware vendor’s operating system releases, as available from Supplier, provided that the current hardware vendor’s operating system release is both binary and source-compatible with the operating system release currently supported by Supplier; and (4) performance enhancements to the Product, in each case, other than Major Updates.

“Major Updates” mean updated versions of the Product that include: (i) new functionality; (ii) new applications; or (iii) new presentation tools.

“SAAS” license means a right to use the Product under which Customer is not provided software to install on a computer operated by such Customer, but instead the Product is executed by software on a Server operated by Supplier (or Reseller as applicable). 

“On-Premise” license means a right to use the Product which permits the Customer to install and run Software on a computer owned or operated by the Customer. 

“Product” means the Supplier Product and services described on Exhibit A, and any Updates thereto provided by Supplier hereunder. 

“Reseller Personnel” means employees, consultants or other third-party service providers of Reseller authorized by Reseller to use the Product.

“sale,” “sell” and other similar terms, when used in connection with the marketing and distribution of the Product shall mean the licensing of such materials, and shall not be deemed for any purpose to mean a transfer of title or other rights of ownership to the Product. 

“Server” is a physical or Virtual computer, configured with the intention of multiple users accessing it as a service.  A Server may have up to four Cores; Servers with more than four Cores are considered for this purpose to be a number of Servers equal to the number of Cores divided by four, rounded down to the nearest integer.  “Core” means a separate CPU core, which may be combined together in a single physical CPU.

“Software” means the software (in object code form) provided to Reseller by Supplier as part of the Product or used by Supplier to provide the SAAS Product.

“Supplier Trademarks” means Supplier’s trademarks, service marks, logos, designations and insignias, including without limitation “Supplier”.

“Standard Support Hours”: 9:00am to 5:00pm, Eastern time, Monday-Friday, exclusive of observed holidays.

“Transition Period” shall mean a period of time, not to exceed 60 days, following termination or expiration of this Agreement for any reason, other than a termination of this Agreement by Supplier under Section 6.1(a) and Section 6.1(b), in which case there is no Transition Period.

“Updates” means both Major Releases and Maintenance Releases.

“Virtual” computer or Server means a virtualized computer with separate machine identity (primary computer name or similar unique identifier) or separate administrative rights, and commonly have an operating system and applications running within it.  Several virtual computers may concurrently operate on the same physical computer.

11. General Legal Terms.

11.1 Use of Third Party Software, Services or Goods. 

In the course of using the Product, Reseller may use a service or download a piece of software, or purchase goods, which are provided by another person or company.  Reseller’s use of these other services, software or goods may be subject to separate terms between Reseller and the company or person concerned.  If so, this Agreement do not affect Reseller’s legal relationship with these other companies or individuals. 

11.2 Assignment. 

Reseller may not transfer or assign, by operation of law or otherwise, this Agreement, or its rights or obligations hereunder, to any third party, without Supplier’s prior written consent.  Any assignment or attempted assignment in violation of these terms shall be of no effect, and shall constitute a breach of this Agreement.  This Agreement does not limit Supplier’s right to transfer or assign, by operation of law or otherwise, this Agreement, or its rights or obligations hereunder, so long as the transferee undertakes to perform Supplier’s obligation’s hereunder. 

11.3 Entire Agreement. 

This Agreement constitutes the whole legal agreement between both of the parties and governs Reseller’s use of the Product (but excluding any services which Supplier may provide to Reseller under a separate written agreement), and completely replaces any prior agreements between both of the parties in relation to the Product.

11.4 Notices. 

All notices, demands, requests or other communications that may be or are required to be given, served or sent by any party pursuant to this Agreement will be in writing, will reference this Agreement and shall be mailed by first class, registered or certified mail, return receipt requested, postage prepaid, or sent by hand delivery, addressed as indicated below.  Except as provided in Section 11.10, facsimile and email notices shall not be sufficient.  Each party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent.  Each notice that is mailed, delivered or sent in the manner described above shall be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt or the affidavit of messenger being deemed conclusive evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.

11.5 Waiver. 

Each party agrees that if the other party does not exercise or enforce any legal right or remedy contained in this Agreement (or which such other party has the benefit of under any applicable law), this will not be taken to be a formal waiver of the party's rights and that those rights or remedies will still be available to such party.

11.6 Severability. 

If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement.  The remaining provisions of this Agreement will continue to be valid and enforceable.

11.7 Third Party Beneficiaries. 

Persons and entities who have licensed software or provided services to Supplier for inclusion in the Product are third party beneficiaries to this Agreement as it applies to their respective the products and services supplied to Supplier.  Except as specifically provided in this paragraph, a person who is not a party to this Agreement has no right to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from this Agreement.

11.8 Governing Law. 

This Agreement, and Reseller’s relationship with Supplier under this Agreement, shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions.  Reseller and Supplier agree to submit to the exclusive jurisdiction of the federal and state courts located within Suffolk County, Massachusetts to resolve any legal matter arising from this Agreement.  Notwithstanding this, Reseller agrees that Supplier shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

11.9 Amendment and Updating of Certain Requirements. 

No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.  However, Supplier may make changes applicable to the use by Customers by updating terms applicable to Customers from time to time to update it, for example to add references to additional License types or terms or different products and services.  Unless otherwise agreed by Reseller in writing, the amended or updated terms will only apply to licenses to Customers that Reseller provides to Customers after the effective date of such amendment. 

11.10 Acceptance By Electronic Submissions. 

Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, each party agrees to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed relating to or through the Product.  Further, each party hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.

IN WITNESS WHEREOF, each of Supplier and Reseller have caused this Agreement to be duly executed and delivered as of ___________ (the “Effective Date”).

[NAME OF SUPPLIER]:                                      [NAME OF RESELLER]

By:______________________________             By: ____________________________________

Name:                                                                    Name:

Title:                                                                       Title:

Address:                                                                 Address:

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