THIS RESELLER AGREEMENT (this “Agreement”) is entered into as of the date of Reseller’s digital or manual execution of this Agreement (the “Effective Date”) by and between KASEYA (“KASEYA”) and (“Reseller”), identified during the Reseller Registration Process
SECTION 1 – DEFINITIONS AND INTERPRETATION
1.1 Definitions. In this Agreement, unless the context clearly requires otherwise, the following terms have the following meanings, and all other capitalized terms have the meaning ascribed elsewhere in this Agreement (including the Schedules): (a) “Additional Services” means such additional consulting, training and other services as KASEYA may, in its absolute discretion, provide for the benefit of Reseller or its Customers pursuant to this Agreement. (b) “Claims” means claims, counterclaims, complaints, demands, causes of action, liabilities, obligations, damages, legal fees, costs, expenses, and disbursements, including without limitation reasonable attorneys’ fees and court costs, of any nature or kind, whatsoever and howsoever arising, whether known or unknown, whether in law or in equity or pursuant to contract or statute, and whether in any court of law or equity or before any arbitrator or other body, board or tribunal. (c) “Customer” means Reseller or any entity to whom Reseller resells Customer Services for use by that entity and its End Users and any suchprospective customer. (d) “Customer Data” means data and information accessible, communicated, obtained, received or transmitted by a Customer its End Users through or using the Customer Services. (e) “Customer Services” means Primary Products and Additional Services provided by KASEYA to or for the benefit of a Customer and its End Users. (f) “Fees” means the fees for Services set forth in Schedule B located at http://www.365command.com/partners. (g) ”Party” refers to either KASEYA or Reseller, as applicable; “Parties” refers to KASEYA and Reseller. (h) “Primary Maintenance and Support” means all support and maintenance services to Customers and End Users provided by Reseller, including without limitation the services described in Schedule D at http:// www.365command.com/partners. (i) “Primary Products” means the software-based products and related services to be provided by KASEYA to or for the benefit of Customers and as indicated in Schedule A as such services are amended from time to time by KASEYA in its absolute discretion. (j) “Proceedings” means actions, suits, proceedings and hearings of any nature and kind in any court of law or equity or before any arbitrator or other body, board or tribunal. (k) “365 Command Services” means the Primary Products and associated Services described in Schedule A. (m) “Services” means Customer Services, Secondary Maintenance and Support and Additional Services. (n) ”Secondary Maintenance and Support” means the maintenance and support services to be provided by KASEYA to Reseller as described in Schedule D. (o) ”Taxes” means all applicable federal, state, provincial, and municipal sales, use, value-added, property, excise, import, foreign, withholding or other governmental taxes, duties, charges, levies, fees, excises, tariffs or assessments of any nature whatsoever now or hereafter imposed. (p) “Term”, “Initial Term,” and “Renewal Term” have the meanings specified in Section 13.1. (q) “End User” means the user which makes use of Primary Products as a pass through to End User or as bundled in Customer products. 1.2 Interpretation. In this Agreement: (a) A reference to “this Agreement” and other similar terms refers to this Agreement as a whole, including all Schedules, and not just to the particular provision in which those words appear; (b) Headings in this Agreement are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (c) The term “person” includes individuals, partnerships, associations, trusts, unincorporated organizations, societies, and corporations; (d) The singular includes the plural and vice versa; (e) Reference to any gender includes all genders; and (f) Reference to a day, week, month, quarter or year means a calendar day, week, month, quarter or year, unless expressly stated otherwise.
SECTION 2 – GRANT OF RIGHTS
AM 17839477.3 2.1 Grant. Subject to the terms and conditions of this Agreement, KASEYA hereby grants to Reseller a worldwide, limited, restricted, non- exclusive, non-transferable, revocable right during the Term to market, license and resell licenses to Customer Services to Customer and their End Users. As a condition to distribute and/or resell licenses hereunder, Reseller shall inform Customers that the Primary Products are subject to terms of a license embodied in the agreement having the terms of the agreement End User License Agreement (‘EULA”) described in Schedule C at http://www. 365command.com/partners, the terms of which are incorporated herein and in addition to the terms in this Agreement form the license between KASEYA and Reseller which will be binding upon the use of Primary Products services as is fully set forth herein. 2.2 Reservation. Notwithstanding any other provision of this Agreement, nothing in this Agreement in any way limits, impairs or restricts KASEYA’s right and ability, and KASEYA reserves the right and ability from time to time in its absolute discretion, to directly or indirectly market, distribute, demonstrate, sell, resell, license, maintain and support and otherwise commercially exploit the 365 Command Services or any other software-based products or services on a worldwide or territorial basis, including through other channels, resellers, referral sources and distributors. 2.3 Customer Data. Reseller, on its own behalf and on behalf of each Customer and End User, hereby expressly grants to KASEYA the right to access Customer Data solely for the purpose of providing and supporting the 365 Command Services and fulfilling its obligations under this Agreement, including without limitation verifying database integrity. KASEYA shall treat any and all Customer Data so accessed as Confidential Information in accordance with Section 12 hereof and as the property of the respective Customer pursuant to Section 12.2 hereof.
SECTION 3 – 365 COMMAND SERVICES
3.1 Permitted Uses. Subject to the provisions of this Agreement and during the Term, the 365 Command Services may be used solely by Customers in connection with the Customer Services subject to the restrictions set forth in Section 3.2. 3.2 Restrictions. Reseller may not and Reseller shall ensure that no Customer or End User shall: (a) Copy, reproduce, modify, translate, transmit, reverse engineer, disassemble or decompile or otherwise attempt to derive the source code of, the 365 Command Services or any other Primary Product; (b) License, sublicense, sell, resell, lease, loan, transfer, assign, distribute, rent or otherwise make available the Primary Products to or for the benefit of any person other than Customers and End Users pursuant to the terms and conditions of this Agreement; (c) Except as expressly agreed by the Parties pursuant to Schedule C, remove, alter, obscure, destroy or attempt to circumvent any trademarks, notices, proprietary codes, means of identification, digital rights management information, or software license agreements on, in or in relation to the 365 Command Services or any other Primary Product; or
SECTION 4 – REGISTRATION OF CUSTOMERS AND SERVICES AGREEMENTS
4.1 Registration of Customers. Reseller will register all Customers to receive Customer Services. 4.2 Approval. KASEYA may withhold such consent for any reason whatsoever, in KASEYA’s sole discretion. Specifically, Reseller acknowledges and agrees that KASEYA shall be the sole and final authority in determining which Customers have access to the Primary Product or. 4.3 Withdrawal of Consent. In the event that KASEYA consents pursuant to section 4.2, KASEYA may, upon ninety (90) days notice to Company, withdraw its consent for Company to act as a Reseller by providing written notice to Company. KASEYA may withdraw its consent in respect of (i) any specific Primary Product or Service; (ii) any Customer generally; (iii) any specific Customer application or iv) any combination of (i), (ii) or (iii) as KASEYA may elect, in its discretion. In the event that KASEYA has withdrawn its consent pursuant to this section 4.3, Reseller shall immediately suspend access by Customer to the (A) Primary Product; (B) Services; and (C) any other services whatsoever as is reasonably necessary to give effect to the withdrawal of KASEYA’s consent. 4.4 EULA. Before Reseller registers a Customer and its End Users to receive any Customer Services, Reseller will obtain from the Customer a duly executed, EULA for such Services. For the purposes of this section documented archived electronic acknowledgement of the acceptance of the EULA shall be deemed execution: . 4.5 Additional Services. Upon request by Reseller and only pursuant to a written Schedule hereunder approved by Reseller and KASEYA, KASEYA may in its absolute discretion provide Additional Services to Reseller to or for the benefit of Reseller or Customers. If so required by such Schedule, Reseller will pay the fees for Additional Services on a time and materials basis in accordance with the then-current KASEYA fee schedule.
SECTION 5 – MAINTENANCE AND SUPPORT
5.1 Primary Maintenance and Support. Reseller will be solely responsible for providing Primary Maintenance and Support to Customers and End Users, and will establish an adequate technical support team to provide such Primary Maintenance and Support. KASEYA will have no obligation to provide Primary Maintenance and Support or any other support, maintenance or warranty services of any kind or degree to Customers or End Users. 5.2 Secondary Maintenance and Support. During the Term and subject to the terms and conditions of this Agreement, KASEYA will make available and provide Secondary Maintenance and Support to Reseller as set forth in Schedule D at http://www.365command.com/partners. 5.3 Other Services. Except for Secondary Maintenance and Support and Additional Services, Reseller is solely responsible for all training, support and services (including without limitation all technical, user and system administration training, installation services, maintenance and support services and professional services) required by Customers , including without limitation training, support and services regarding the integration and interoperation of Customer Services with other software or services provided by Reseller or other persons. Reseller may charge Customers for such services as Reseller may determine in its absolute discretion. Reseller is solely and exclusively responsible and liable for the quality and adequacy of any such services or the results thereof. AM 17839477.3
SECTION 6 – FEES, PRICES AND PAYMENT
6.1 Fees. Reseller is solely responsible and liable for, and will pay to KASEYA, all Fees and related Taxes for all Services in accordance with Schedule B. Reseller may set the fees Reseller charges Customers for Services; provided, however, that Reseller shall not at any time advertise or charge fees for Services that are less than the greater of (a) the Fees in effect at such time or (b) the retail prices that KASEYA charges its customers generally then in effect at such time. Current retail prices are set forth in Schedule B. 6.2 Invoices and Payment. Reseller will pay the Fees in accordance with Schedule B. 6.3 Invoice Disputes. If Reseller disputes any invoiced amount, Reseller must pay all amounts not in dispute. 6.4 Interest. Payment will be overdue thirty (30) business days after the date of the applicable invoice. Overdue payments will be subject to interest of one and one-half percent (1½%) for each month (18% per annum) or fraction thereof that the invoice is overdue, or the highest interest rate permitted by applicable law, whichever is lower. Reseller will reimburse KASEYA for all costs incurred in collecting overdue payments, including all of KASEYA’s legal fees, disbursements and expenses. 6.5 Withholdings. Except to the extent required by law, all amounts payable to KASEYA under this Agreement are payable in full without any deduction or withholding on account of any Tax or other charges. In the event that Reseller is prohibited by law from making payments under this Agreement free of deductions or withholdings, Reseller will pay such additional amounts to KASEYA as may be necessary to ensure that the actual amount received by KASEYA after deduction or withholding and after payment of any additional Taxes or charges due as a consequence of the payment of such additional amounts will equal the amount that would have been received by KASEYA if such deductions, withholdings and payments were not required. 6.6 Taxes. All fees and charges referenced in this Agreement are exclusive of any and all Taxes. Reseller will be solely responsible for and will add, charge, collect, and remit any and all Taxes (other than corporate income taxes payable by KASEYA) associated with, based on or due as a result of: (a) any amounts paid by Reseller to KASEYA pursuant to this Agreement; and (b) the provision of Services. If KASEYA pays any such Taxes (other than corporate income taxes payable by KASEYA), Reseller will immediately indemnify and hold KASEYA harmless for the amount paid plus any interest, penalties and other expenses (including legal fees and disbursements) incurred in connection therewith and interest thereon. Reseller will provide KASEYA with any relevant sales tax numbers or exemption certificates upon request by KASEYA.
SECTION 7 – OBLIGATIONS OF PARTIES
7.1 Standard of Conduct. Each Party will at all times perform its obligations under this Agreement and otherwise conduct itself in a lawful, ethical, fair, competent and professional manner and in accordance with the highest standards of the industry, and will not by way of any action, inaction, statement or omission adversely impact the reputation or customer goodwill of the other Party. 7.2 Reseller Personnel. Reseller will at all times market, distribute, maintain, support and provide services arising from, connected with, or relating to the Customer Services only through employees or agents of Reseller who are thoroughly knowledgeable about how to use, demonstrate, promote, maintain and support the Customer Services. 7.3 Equipment and Services. KASEYA is solely responsible for obtaining, provisioning, configuring, maintaining, paying for and protecting all equipment and services necessary to provide Reseller access and use the 365 Command Services. Reseller will ensure that Customers obtain, provision, configure, maintain, pay for and protect all equipment and services necessary for the Customer and its End Users to access and use the Customer Services. In this Section 7.3, “equipment and services” includes without limitation computer hardware, software, telephone lines and Internet access. 7.4 Acceptable Use. Reseller is solely responsible and liable for the use of the Customer Services by Reseller, Customers and End Users, and any and all acts and omissions by Reseller, Customers and End Users. Reseller will ensure that all use of the Services by Reseller, Customers and End Users complies with all applicable laws and the terms of this Agreement including all obligations defined in the attached Schedules, and of the EULA. 7.5 Enforcement of EULAs. Reseller will use commercially reasonable efforts to monitor the use of the Customer Services by Customers and End Users and will take such steps as may be commercially reasonable to ensure each Customer’s and End User’s compliance with the applicable EULA, Schedules attached hereto, and applicable laws. Upon request by KASEYA acting reasonably, Reseller will enforce the applicable EULA and assist KASEYA to enforce the applicable EULA as against any Customer or any other person. 7.6 Security and Passwords. Access to and use of certain of the 365 Command Services requires use of a user name and password by Reseller, its employees and representatives. User names and passwords may not be shared with other persons. Reseller is solely responsible for all use and misuse of user names and passwords issued to Reseller its employees and representatives. Reseller must immediately notify KASEYA if Reseller discovers or suspects any unauthorized use of the 365 Command Services, or if Reseller knows or suspects that any of the user names or passwords have been lost or stolen or become known to any unauthorized person. KASEYA is not under any obligation to verify the actual identity or authority of any user name or password. If KASEYA, in its absolute discretion, considers a password to be unsecured or to have been used inappropriately, then KASEYA may cancel the password with 24 hours prior written notice to Reseller. Such notice may be in paper or electronic format. 7.7 Accurate Information. Reseller will provide Customers with accurate information (on the basis of written guidance and materials provided by KASEYA as modified by Reseller) regarding Customer Services. 7.8 Other Services. If Reseller wishes to provide to its Customers or potential Customers any products or services that are not then within the scope of the Primary Products or Additional Services but are made generally available by KASEYA to its customers, KASEYA will give written notice to Reseller of the first opportunity to provide such products or services as Customer Services pursuant to this Agreement. AM 17839477.3 7.9 Records. During the Term and for all open tax years after the expiration or earlier termination of the Term, Reseller will create and retain all usual and proper records and books of account relating to the marketing and reselling of Customer Services in accordance with generally accepted accounting principles applied on a consistent basis. Upon request by KASEYA, Reseller will promptly allow KASEYA to inspect (upon commercially reasonable written notice of not less than five (5) days) all relevant records and books of account required to be retained pursuant to this Section 7.9. 7.10 Flow through Audit. Reseller shall expressly bind all Reseller Customers to records retention and audit obligations no less onerous than those contained in section 7.9 of this Agreement. Reseller shall also ensure that all authorized Reseller Customers have expressly authorized KASEYA, or its respective designee, to directly audit such Reseller Customers in order to ensure that each Reseller Customer has complied with the terms of this Agreement. In all cases, Reseller shall ensure that KASEYA shall have no obligation to pay any expenses or costs of any Reseller Customer in connection with any audit performed directly by KASEYA or its designee pursuant to section 7.9. 7.11 Compliance with Laws. Each Party will at all times comply with all applicable laws and regulations relating to the conduct of its business and the performance of its obligations under this Agreement. Neither Party will knowingly take any actions or inactions that may cause the other Party to be in violation of any applicable laws or regulations. 7.12 Governmental Approvals. Each of Reseller and KASEYA will at its own expense obtain in a timely manner, maintain throughout the Term, and at all times comply with, all governmental approvals, consents, licenses, permits, declarations, filings, and registrations, including without limitation carriers, customs, import and foreign exchange approvals and clearances, currency control authorizations and visas (collectively “Approvals”), that may be required for the selling, reselling and provision of 365 Command Services, payments made under this Agreement and the performance of its respective obligations under this Agreement. As to Reseller, if such Approvals can only be obtained subject to conditions, then Reseller will obtain them only subject to such conditions as are acceptable to KASEYA. KASEYA’s obligation to provide 365 Command Services is subject to confirmation of the grant of all required Approvals, and KASEYA will not be responsible or liable to Reseller or any other person for any delivery or performance delays that result from delays in obtaining required Approvals. 7.13 Customer Notices. Upon request by KASEYA from time to time, Reseller will promptly deliver to Customers notices prepared by KASEYA regarding 365 Command Services. 7.14 Notification. Each Party will promptly give notice to the other Party of any notices received by such Party that might adversely affect the other Party, including without limitation any notices of actual or potential third party Claims or Proceedings arising from, connected with, or relating to 365 Command Services. 7.15 Errors. Reseller will promptly give notice to KASEYA of all suspected and errors, bugs or other problems associated with 365 Command Services of which Reseller becomes aware. 7.16 Reseller Costs and Expenses. Reseller is solely responsible for any and all costs and expenses (including all travel and other expenses incurred by its employees, representatives and agents) incurred directly or indirectly by Reseller or any other person arising from, connected with, or relating to Reseller’s performance of its obligations under this Agreement. 7.17 Reseller Obligations. In addition to any other obligations of the Reseller under this Agreement, Reseller shall: 7.17.1 not resell or remarket the Primary Product or any of the Services for commercial purposes (except to make available the Customer Service to direct Reseller Customers); 7.17.2 obtain all licenses and authorizations as well as pay all expenses associated with the operation of any Reseller or Customer use of the Primary Product or Services (including any costs relating to the integration of the Services with any Reseller services or product); 7.17.3 not tamper with, alter or otherwise modify (or attempt to modify) the 365 Command Services; 7.17.4 not use or abuse the 365 Command Services or knowingly permit or assist others to do so for any purposes or in any manner that directly, indirectly or possibly violates the terms of this Agreement, applicable laws or any third-party’s intellectual property rights; 7.17.5 comply at all times with the terms of any third-party licenses entered into by KASEYA that are necessary for the provision of the Primary Product and Services by KASEYA to the extent that such third-party licenses are furnished by KASEYA to Reseller (from time to time). 7.17.6 ensure at all times during the Term that Reseller is a business entity that is (i) properly organized, (ii) not insolvent or bankrupt; and (iii) validly existing and in good standing under the laws of its jurisdiction of organization; 7.17.7 be responsible for the use of the 365 Command Services by any End User of the 365 Command Services including Customers and End Users; 7.17.8 ensure at all times that Reseller, Customer, Reseller Services, and any use of 365 Command Services comply in every way with KASEYA’s security policies (if any) within fifteen (15) days of KASEYA providing written notice of such policies to Company. 7.17.9 shall not aggregate Customer Data.
SECTION 8 – REPRESENTATIONS, LIMITED WARRANTY AND DISCLAIMER
8.1 Mutual Representations and Warranties. Each Party represents and warrants that it has all requisite power, authority and approvals to enter into, execute and deliver this Agreement and to perform fully its obligations under this Agreement, and its entering into this Agreement and performance of this Agreement will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual, statutory (including obligations under applicable intellectual property law), or otherwise) that it now or in the future owes to any other person. AM 17839477.3 8.2 No Representations to Customers. Reseller will not make any representations, warranties, conditions, promises or claims about Customer Services or the use thereof to any Customer, potential Customer or End User except for those representations and warranties expressly set forth in the applicable EULA or as Reseller is otherwise authorized in writing by KASEYA. 8.3 NO OTHER WARRANTIES. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO ACCURACY, CAPACITY, COMPLETENESS, DELAYS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, ABSENCE OF NEGLIGENCE, VIRUSES OR OTHER HARMFUL COMPONENT, ERRORS OR INTERRUPTED SERVICE, MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, RESULTS, QUALITY, TIMELINESS, TITLE OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY DISCLAIMED BY KASEYA TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KASEYA DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT THE SERVICES WILL MEET THE NEEDS OF RESELLER, ANY CUSTOMER OR END USER OR BE FREE FROM ERRORS OR THAT SERVICES WILL BE UNINTERRUPTED. 8.4 GENERAL DISCLAIMER. USE OF THE SERVICES IS AT RESELLER’S, CUSTOMER’S AND END USER’S OWN RISK. THE SERVICES MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND KASEYA’S CONTROL, AND MAY NOT BE CONTINUOUS OR UNINTERRUPTED OR SECURE. SECURITY AND PRIVACY RISKS CANNOT BE ELIMINATED. PASSWORD PROTECTION MAY NOT PREVENT UNAUTHORIZED ACCESS TO CUSTOMER DATA OR OTHER INFORMATION CUSTOMERS MAY USE IN CONNECTION WITH THE SERVICES. EXCEPT AS OTHERWISE SET FORTH HEREIN RESELLER WILL REMAIN SOLELY AND EXCLUSIVELY RESPONSIBLE (I) FOR THE USE OF THE SERVICES BY RESELLER, CUSTOMERS AND END USERS, AND (II) FOR THE CONTROL, SECURITY AND CONFIDENTIALITY OF CUSTOMER DATA. RESELLER HEREBY ACKNOWLEDGES THAT COMMUNICATION NETWORKS ARE NOT A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION, AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF SECURITY. 8.5 NO RESPONSIBILITY FOR CUSTOMER DATA. USE OF ANY CUSTOMER DATA IS AT CUSTOMER’S AND END USER’S OWN RISK. RESELLER IS SOLELY RESPONSIBLE FOR, AND BEARS ALL RISKS AND LIABILITIES ASSOCIATED WITH, ALL CUSTOMER DATA. KASEYA DOES NOT SCREEN, BLOCK, FILTER, POLICE OR EDIT CUSTOMER DATA FOR COMPLIANCE WITH APPLICABLE LAWS OR ACCEPTABLE USE POLICIES. CUSTOMERS AND END USERS MAY FIND SOME CUSTOMER DATA TO BE OFFENSIVE, HARMFUL, INACCURATE OR DECEPTIVE. EXCEPT AS SET FORTH IN THIS AGREEMENT, KASEYA MAKES NO REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, REGARDING CUSTOMER DATA, AND DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY REGARDING THE NATURE, QUALITY OR ACCURACY OF CUSTOMER DATA TO THE FULLEST EXTENT PERMITTED BY LAW. 8.6 NO RESPONSIBILITY FOR THIRD PARTY CLAIMS. EXCEPT IN THE EVENT OF AND TO THE EXTENT THAT KASEYA’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT GIVES RISE TO A THIRD PARTY PROCEEDING OR CLAIM, RESELLER IS SOLELY LIABLE AND RESPONSIBLE FOR ANY AND ALL CLAIMS AND PROCEEDINGS DIRECTLY OR INDIRECTLY ARISING FROM, CONNECTED WITH OR RELATING TO THE USE OF THE SERVICES BY RESELLER, CUSTOMERS, OR ANYONE USING ANY USER NAME OR PASSWORD ISSUED TO RESELLER, CUSTOMERS, OR THEIR EMPLOYEES, AGENTS OR REPRESENTATIVES, OR ANY BREACH OF THIS AGREEMENT, VIOLATION OR INFRINGEMENT OF THE RIGHTS OF OTHER PERSONS OR VIOLATION OF ANY APPLICABLE CIVIL OR CRIMINAL LAW BY ANY OF RESELLER, CUSTOMERS OR END USERS. KASEYA DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY REGARDING ALL SUCH MATTERS TO THE FULLEST EXTENT PERMITTED BY LAW. 8.7 NO RESPONSIBILITY FOR UNAUTHORIZED ACCESS OR DAMAGES. KASEYA IS NOT RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER DATA THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD. EXCEPT FOR LIABILITY RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF KASEYA, IN NO EVENT WILL KASEYA BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR FOR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES.
SECTION 9 – EXCLUSION AND LIMITATION OF LIABILITY
9.1 EXCLUSION OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR ANY OBLIGATION ARISING UNDER SECTION 11 OR A MATERIAL BREACH OF SECTION 12 OR AS A RESULT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY CUSTOMER, END USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE ARISING FROM, CONNECTED WITH, OR RELATING TO THE SERVICES OR USE OF THE SERVICES (INCLUDING THE UNAVAILABILITY, SUSPENSION OR TERMINATION OF ALL OR ANY OF THE SERVICES), THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT, THE EXPIRATION OR TERMINATION OF THIS AGREEMENT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, BUSINESS, MARKETS, SAVINGS, INCOME, PROFITS, USE, PRODUCTION, OR GOODWILL, ANTICIPATED OR OTHERWISE (INCLUDING WITHOUT LIMITATION BY REASON OF ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE IN ANTICIPATION OF THE CONTINUANCE OR PERFORMANCE OF THIS AGREEMENT), OR ECONOMIC LOSS, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LAW OR EQUITY), REGARDLESS OF ANY NEGLIGENCE OR OTHER FAULT OR WRONGDOING BY THE PARTY TO BE CHARGED OR ANY PERSON FOR WHOM SUCH PARTY IS RESPONSIBLE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE BEING INCURRED. IN THIS PARAGRAPH, “PARTY” INCLUDES THE APPLICABLE PARTY (AS DEFINED IN SECTION 1(H) HEREOF) AND ITS AFFILIATES AND THEIR RESPECTIVE PAST, PRESENT AND FUTURE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, SUCCESSORS, PERMITTED ASSIGNS AND RELATED PERSONS. 9.2 LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR ANY OBLIGATION ARISING UNDER SECTION 11 OR A MATERIAL BREACH OF SECTION 12 OR AS A RESULT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AM 17839477.3 UNDER NO CIRCUMSTANCES WILL KASEYA’S TOTAL AGGREGATE LIABILITY TO ANY OTHER PERSON EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO KASEYA UNDER THIS AGREEMENT IN THE PRECEDING SIX (6) MONTHS IN CONNECTION WITH THE CUSTOMER AND CUSTOMER APPLICATION AT ISSUE AND UP TO THE DATE ON WHICH THE LIABILITY AROSE. IN THIS PARAGRAPH, “KASEYA” INCLUDES KASEYA AND ITS AFFILIATES AND THEIR RESPECTIVE PAST, PRESENT AND FUTURE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, SUCCESSORS, PERMITTED ASSIGNS AND RELATED PERSONS. 9.3 FAIR ALLOCATION OF LIABILITY. THIS AGREEMENT REPRESENTS A FAIR ALLOCATION OF RISK AND LIABILITY, WHICH IS REFLECTED IN THE FEES TO BE PAID BY RESELLER.
SECTION 10 – INDEMNIFICATION
10.1 KASEYA Indemnity. 10.1.1 Subject to Section 11.3 and 11.4, KASEYA will defend, indemnify and save and hold Reseller and its past, present and future directors, officers, employees, agents, representatives, successors, permitted assigns, related persons and each of them (collectively, “Reseller’s Indemnified Representatives”) harmless from and against any and all third-party Claims and Proceedings directly or indirectly arising from, connected with or relating to any proven or unproven allegation that the Customer Services or any part thereof, when used by Reseller, Customers, or End Users in accordance with this Agreement, infringe or violate any intellectual, industrial or proprietary rights of a third party, excluding any such actual or alleged infringement or violation resulting from: (a) The combination of any Customer Services with software, products or services not supplied by KASEYA; (b) Any material breach by Reseller of its obligations under this Agreement; (c) Any material breach by a Customer of an applicable EULA; or (d) Any violation of any applicable laws by an End User or any other person for whom Reseller or Customer is responsible or liable under this Agreement or in law responsible. 10.1.2 In the event that the 365 Command Services or any part thereof are held or are likely to be held to infringe a third party’s intellectual property or other proprietary right(s), KASEYA shall either: (a) secure for Reseller the right to continue the use and resale of such infringing 365 Command Services; or (ii) modify the 365 Command Services, at KASEYA’s sole expense, such that the 365 Command Services become non-infringing (but while substantially preserving the parameters for the 365 Command Services and the specifications for any Primary Products embedded in such 365 Command Services, each as established by this Agreement), or, if both (i) and (ii) are commercially impracticable terminate this Agreement. 10.2 Reseller Indemnity. Subject to Section 11.3 and 11.4, Reseller will indemnify, defend and hold harmless KASEYA and its past, present and future directors, officers, employees, agents, subcontractors, representatives, successors, permitted assigns, related persons and each of them (collectively, “KASEYA’s Indemnified Representatives”) from and against any and all third-party Claims and Proceedings directly or indirectly arising from, connected with or relating to: (a) Use of the Customer Services by Reseller, Customers or End Users; (b) Any claim arising under an agreement between a Customer and Reseller, and any claim arising out of gross negligence, willful misconduct or material breach of this Agreement by Reseller; (c) The unavailability, suspension or termination of all or any of the Customer Services as a result of any action or inaction of Reseller; or (d) The expiration or termination of this Agreement. 10.3 Mutual Indemnity. If any Claim or Proceeding gives rise to an indemnity obligation by both Parties pursuant to Section 10.1 or 10.2, the liability of each Party to indemnify the other Party or its Indemnified Representatives will be apportioned and offset in proportion to the responsibility of each Party for the matter giving rise to the Claim or Proceeding. 10.4 Indemnity Procedure. Notwithstanding Section 11.1 and 11.2, the Indemnifying Party’s obligations are conditional upon the Indemnified Party and its Indemnified Representatives (if applicable): (a) Giving the Indemnifying Party prompt notice of the Claim or Proceeding; (b) Granting control of the defense and settlement of the Claim or Proceeding to the Indemnifying Party, however no settlement may be made in which the Indemnified Party, its representatives or licensors makes any admission ; and (c) Reasonably co-operating with the Indemnifying Party regarding the defense and settlement of the Claim or Proceeding at the Indemnified Party’s expense. Notwithstanding anything contained in this Agreement to the contrary, the Indemnified Party and its Indemnified Representatives (if applicable) retain the right to participate in the defense of and settlement negotiations relating to any Claim or Proceeding with counsel of its own selection at its sole cost and expense.
SECTION 11 – CONFIDENTIALITY
11.1 Definition. “Confidential Information” means all nonpublic information, in any form and on any medium, whether or not designated by a Party (the “Disclosing Party”) as confidential and disclosed by such Party to the other Party (the “Receiving Party”) under this Agreement, regardless of the form of disclosure, and includes without limitation and without the need to designate as confidential KASEYA’s pricing, the terms of this Agreement, computer software, technologies, and related documents and information (which is KASEYA’s Confidential Information); BUT DOES AM 17839477.3 NOT INCLUDE any information to the extent, but only to the extent, that such information becomes or is: (a) Already known to or in the possession of the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party; (b) Subsequently learned by the Receiving Party from an independent third party free of any restriction and without breach of this Agreement or any agreement with such third party; (c) Publicly available through no wrongful act of the Receiving Party; or (d) Independently developed by the Receiving Party without reference to any Confidential Information as evidenced by the written records of the Receiving Party. 11.2 Duty to Protect. The Receiving Party will: (a) Use the Disclosing Party’s Confidential Information only during the Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) Disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, employees, representatives, and subcontractors, on a “need to know basis” and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations under this Agreement; and (c) Both during and for a period of three (3) years after the Term maintain the strict confidentiality of the Disclosing Party’s Confidential Information using the same degree of care as the Receiving Party affords to its own confidential information of a similar nature which it desires not to be published or disseminated, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of the Disclosing Party’s Confidential Information. 11.3 Permitted Disclosures. Notwithstanding any other provision of this Agreement, including the restrictions set forth in Section 11.2, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent such disclosure is required by a valid order of a court, tribunal or governmental authority of competent jurisdiction and authority or by applicable law, provided that before making any such disclosure the Receiving Party gives reasonable notice to the Disclosing Party of the potential disclosure and reasonably assists the Disclosing Party in seeking a protective order preventing or limiting the potential disclosure or use of the Confidential Information. 11.4 Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement or at any time upon request by the Disclosing Party, the Receiving Party will promptly: (a) deliver to the Disclosing Party all originals and copies of the Disclosing Party’s Confidential Information (including the information relating to Customers, as described in Section 4.3) and all documents, records, data and materials containing the Disclosing Party’s Confidential Information in the Receiving Party’s possession, power or control; or (b) use commercially reasonable efforts to delete all the Disclosing Party’s Confidential Information (including the information relating to Customers, as described in Section 4.3) from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and if requested by the Disclosing Party the Receiving Party will deliver to the Disclosing Party a declaration signed by a senior officer of the Receiving Party certifying that the Receiving Party has complied with this Section 11.4. 11.5 Monitoring Use of Customer Services and Disclosure of Aggregated Information. Subject to the terms and conditions of this Section 11, KASEYA may in its absolute discretion: (a) monitor the use of the Customer Services by Reseller, Customers and End Users without any further notice or any liability to any person and (b) disclose to other persons aggregated, non-identifiable information regarding the use of the Customer Services by Reseller, Customers and End Users.
SECTION 12 – PROPRIETARY RIGHTS
12.1 KASEYA Ownership. As between the Parties, KASEYA owns and retains all right, title and interest (including without limitation all copyrights, patents, moral rights, trademark rights, and other intellectual property and industrial property rights) in, to and associated with the 365 Command Services and all software and technology used to provide the 365 Command Services and related documents and information. Except as expressly granted herein, Reseller, Customers and End Users will not acquire any right, title or interest in or to any software or technology provided by KASEYA for use by Reseller, Customers and End Users as part of the 365 Command Services. 12.2 Customer Ownership. The Parties acknowledge and agree that as between the parties each Customer owns and retains all right, title and interest in, to and associated with its Customer Data. Each Customer, as part of entering into a EULA, shall grant to KASEYA a nonexclusive, royalty-free, non-transferable license during the Term to access, copy and otherwise use Customer Data solely for the purpose of providing the Customer Services and fulfilling its obligations under this Agreement, including without limitation verifying database integrity. 12.3 Non-Solicitation of Employees. Without the prior written consent of KASEYA, during the Term and for three (3) years after the Term, Reseller will not directly or indirectly hire any employee of KASEYA nor solicit or encourage any employee of KASEYA to terminate his or her employment with KASEYA, or attempt to do any of the foregoing or assist any other person to do so. 12.4 Reservation of Rights. All rights not expressly granted under this Agreement are reserved to the Parties.
SECTION 13 – TERM, TERMINATION AND SUSPENSION
13.1 Term. The initial term of this Agreement (the “Initial Term”) will be for one month commencing on the Effective Date of this Agreement, unless terminated earlier by either Party pursuant to this Agreement. This Agreement will automatically renew for additional one-month periods (each, a “Renewal Term”), unless terminated earlier by either Party pursuant to this Agreement or unless either Party gives notice of non-renewal to the other Party by no later than ten (10) days before the end of the Initial Term or any Renewal Term. For purposes of this Agreement, the Initial Term and the Renewal Term are referred to collectively as the “Term. AM 17839477.3 13.2 Termination for Cause. Notwithstanding any other provision of this Agreement, either Party may terminate this Agreement for cause effective immediately upon delivery of notice of termination to the other Party if the other Party materially breaches this Agreement and has not remedied the breach within thirty (30) days after receipt of a notice (the “Default Notice”) from the non-breaching Party. Such Default Notice shall identify the breach and state the non-breaching Party’s intention to terminate this Agreement if the breach is not remedied within thirty (30) days (the “Cure Period”), provided that such termination notice must be delivered no later than thirty (30) days after the end of the Cure Period. If the other Party does not give notice of termination to the breaching Party within that further 30-day period, and if the breach continues after the end of the Cure Period, the non-defaulting Party may give a further Default Notice in respect of the breach, in which case the provisions of this Section 13.2 shall apply in respect of that further Default Notice. 13.3 Termination under Special Circumstances. Each Party may in its absolute discretion terminate this Agreement for cause immediately upon delivery of notice to the other Party if the other Party becomes bankrupt, takes any step or proceeding available to it for the benefit of insolvent debtors, becomes insolvent or takes any step or proceeding for its liquidation, dissolution or winding up. 13.4 Effect of Expiration or Termination. Immediately upon expiration or termination of this Agreement: (a) Reseller will cease using the 365 Command Services and will cease providing or attempting to provide Customer Services to Customers and End Users; (b) KASEYA will cease providing the 365 Command Services to Reseller, Customers and End Users pursuant to this Agreement (provided, however, that any EULAs shall remain in effect in accordance with their terms); and (c) Reseller will pay to KASEYA all Fees accrued up to the date of termination without any right of deduction or setoff. 13.5 Suspension, Delay or Cancellation of Services. Notwithstanding any other provision of this Agreement and without limiting KASEYA’s rights or remedies under this Agreement or otherwise, KASEYA may in its absolute discretion, within five (5) business days after Reseller’s failure to cure any material breach on its part during the 30-day Cure Period described in Section 13..2 hereof, and only after providing written notice thereof to Reseller, suspend the performance of any or all of its obligations under this Agreement or cancel, delay or refuse to provide any 365 Command Services pursuant to this Agreement. KASEYA may suspend, cancel, delay or refuse to provide any Customer Services to a Customer and End Users pursuant to this Agreement if KASEYA reasonably believes that the Customer or any of its End Users have breached the applicable EULA, and if KASEYA has, after working diligently with Reseller to demand that the Customer or End User comply with such EULA, exhausted all reasonable means of ensuring such compliance and has provided Reseller express prior written notice of the intent to so suspend, cancel, delay or refuse to provide Customer Services. No such suspension, cancellation, delay or refusal will be treated as a breach of this Agreement by KASEYA or give rise to any liability by KASEYA to Reseller or any Customer, or any other person. 13.6 Survival. Notwithstanding anything herein to the contrary, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the expiration or termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable :Section 8, Section 9, Section 10, Section 11, Section 12 and Section 13.6,
SECTION 14 – MISCELLANEOUS
14.1 Time of the Essence. Time is of the essence of this Agreement and of every provision of this Agreement. 14.2 Further Assurances. Each of the Parties will execute any further documents and do any further acts or things that may be necessary to implement and carry out the intent of this Agreement. 14.3 Inurement. This Agreement will inure to the benefit of and be binding upon each of the Parties and their respective successors and permitted assigns. 14.4 Force Majeure. Notwithstanding any other provision of this Agreement, neither Party will be liable to the other Party and KASEYA will not be liable to Customers or any other person, for any delay in performing or failure to perform any of its obligations under this Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond such Party’s reasonable control, including without limitation: (a) Any act of God, fire, explosion, lightning, storm, flood, earthquake, accident or natural disaster; (b) War, terrorism, hostilities, civil war, insurrection, riot, civil unrest, commotion or acts of a public enemy; (c) Labor shortages, strikes, lock-outs or other labor, industrial or trade action, disputes, disruption or disturbances (whether involving its employees or those of any other person); (d) Theft, sabotage, malicious damage, fraud, epidemic or quarantine restrictions; (e) Material shortages or rationing; (f) General failure, malfunction or unavailability of power, utilities, telecommunications, data communications or related services; (g) Action, inaction, demand, order, restraint, restriction, requirement, prevention or hindrance by any government or court; or (h) Applicable law or regulation. AM 17839477.3 Provided that the non-performing Party has promptly advised the other Party of the circumstances giving rise to its invocation of this Section 14.4 and has devoted its diligent efforts to avoid and mitigate such non-performance, any delay or failure of this kind will not be deemed to be a breach of this Agreement by the non-performing Party, and the time for such Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances. 14.5 Relationship of Parties. The Parties are independent contractors, and nothing in this Agreement or done pursuant to this Agreement will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between the Parties. Neither Party will act or purport to act on behalf of the other or have or purport to have any power or authority to assume or create any obligations whatsoever, express or implied, on behalf of the other Party or enter into any binding commitment on behalf of the other Party. The relationship between the Parties is non-exclusive. Without limiting the generality of the foregoing, under no circumstances will Reseller have the authority, or purport to have the authority, to legally bind KASEYA to any agreement with any Customer or other person. 14.6 Assignment. Reseller may not assign this Agreement or its rights, duties, obligations or interests under this Agreement to any other person or entity without the prior written consent of KASEYA. For the avoidance of doubt, KASEYA may assign this Agreement and its rights, duties, obligations and interests under this Agreement without the prior written consent of Reseller. 14.7 No Third Party Beneficiaries. Unless otherwise expressly provided in this Agreement, no provisions of this Agreement are intended to or will be construed to confer upon or give to any person or entity other than Reseller and KASEYA, and their respective successors and permitted assigns, any rights, remedies or other benefits under or by reason of this Agreement. Without limiting the generality of the foregoing, Customers and End Users will not have any rights under this Agreement. 14.8 Notices. Any notice required or permitted to be given under this Agreement will be in writing and will be delivered by-mail delivery with confirmed receipt or by overnight or express courier, or by facsimile transmission to each Party at its head office address, or at such other addresses and facsimile numbers as a Party may from time to time designate in a notice to the other Party. A notice delivered personally, by courier or by facsimile will be deemed to have been received on the day of such delivery. 14.9 No Waiver. No consent or waiver by either Party to or of any breach or default by the other Party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that Party. No consent or waiver will be effective unless in writing and signed by the Party against whom such waiver or consent is to be charged. 14.10 Remedies. Except as specifically provided herein, the specific rights and remedies of either Party under this Agreement are cumulative and not exclusive of any other rights or remedies to which either Party may be lawfully entitled under this Agreement or at law or equity, and the Parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively. 14.11 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. It is the intention of the Parties that this Agreement would have been executed without reference to any provisions that may, for any reason, be held to be invalid or unenforceable. 14.13 Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Florida without regard to the conflicts of law principles thereof. 14.14 Counterparts and Execution. This Agreement may be executed and delivered in one or more counterparts, which may be executed and delivered by facsimile transmission or electronic image transfer, and each counterpart when so executed and delivered will be deemed an original, and all such counterparts will together constitute one and the same document. 14.15 Entire Agreement. This Agreement, including the Schedules to this Agreement, sets forth the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any and all previous and contemporaneous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written, between them with respect to the subject matter of this Agreement. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement. This Agreement may be modified only by a written instrument signed by each Party or their respective successors or permitted assigns. IN WITNESS WHEREOF, the Parties hereto have caused this Reseller Agreement to be executed by their duly authorized representatives as of the date first above written. AM 17839477.3