THIS AGREEMENT (“Agreement”) is between ____________________________, a, _______________________with its principal corporate address at ______________________________________________, (individually and/or collectively the “RESELLER”) and INDENI INC., a Delaware corporation (“VENDOR”), with its principal corporate address at: 555 Bryant Street, Palo Alto, CA 94301, and is effective as of the date RESELLER executes this Agreement (the “Effective Date”).
ARTICLE 1 DEFINITIONS.
For purposes of this Agreement, the following terms have the corresponding definitions listed below.
- “Authorized Reseller(s)” means the Reseller(s) of the Products that Indeni has specifically appointed to act on its behalf in certain territories which are available upon request.
- “Confidential Information” means all know-how, specifications, catalogs, books, price books, maintenance, parts and service manuals, data sheets, sales, service and technical bulletins, Customer lists, sales and marketing programs, price lists, cost data, sales aids, such as filmstrips and recordings, and all other publications and information, whether or not reduced to writing, relating to the formulation, manufacture, use, marketing and sale of the Products, as well as any other information relating to the business of Indeni which may be divulged to the Reseller in the course of its performance of this Agreement.
- “End Customer(s)” means Indeni’s end customers only, and explicitly excludes other resellers, distributors, or any other person or entity that purchases the Products for any reason other than to use in a directly owned and operated network.
- “Effective Date” means the date on which this agreement goes into effect as determined by the date the Reseller executes this agreement.“Notice” means notification, which can be delivered by email, or publication at indeni.com at Indeni’s discretion pursuant to Article 9 of this Agreement.
- “Purchase Price” means the aggregate price of any purchase order submitted either to one of our Authorized Resellers or directly to us taking into account the pricing specified in Section 2.2, below.
- “Products” means only those products made and provided by Indeni.
- “Trademarks” means Indeni’s trademarks, service marks, designs, markings, logos, or trade names as may be designated by Indeni from time to time.
ARTICLE 2 APPOINTMENT; PRICING
2.1 Appointment and Acceptance Subject to your continued compliance with the terms of this Agreement, Indeni appoints you as a non-exclusive Reseller of the Products, and you accept such appointment. Nothing in this Agreement prevents us from: (i) appointing other resellers or distributors within the territory or territories in which you typically operate; (ii) marketing, selling, or distributing Products directly to End Customers; or (iii) maintaining direct sales channels for the marketing, selling and distribution of the Products. Resellers will not, directly or indirectly, without the prior written consent of Indeni market, distribute or sell Products to third party resellers, agents or sales representatives for resale.
2.2. Pricing. As an Indeni Partner, you will be entitled to purchase the Products at the various discounted prices listed depending on which party initiated the engagement with the End Customer. If you purchase the Products through one of our Authorized Distributors, then payment of the Purchase Price will be subject to any agreement with the Authorized Distributor. If you purchase the Products directly from us, then payment of the Purchase Price will be subject to Section 3.2.3, below.
ARTICLE 3 PURCHASE AND DELIVERY OF PRODUCTS
3.1. Purchase Through Authorized Distributors. In the territories in which we have appointed an Authorized Distributor, you will generally purchase Products solely from such Authorized Distributors, absent a written agreement between you and Indeni to the contrary (which may take the form of an email message).
3.2. Purchase Directly from Indeni. If you operate in a territory or territories not served by an Authorized Distributor of Indeni, you may purchase Products directly from Indeni, in which event the following terms and conditions shall apply to Reseller:
3.2.1. Direct Orders to indeni. All purchases of Products you make under this Agreement will be subject to the terms and conditions of this Agreement and will be evidenced by a purchase order. Any terms or conditions of any purchase order or acknowledgements given or received that are additional to or inconsistent with this Agreement will have no effect. Purchase orders will, at a minimum, include terms regarding: (i) the Product name or identification; (ii) quantity of Products; (iii) time of requested delivery; (iv) approved pricing; and (v) all applicable addresses, including end customer information. Purchase orders will be deemed to be accepted within five (5) business days unless Indeni provides you with a written notice of rejection (which may take the form of an electronic mail message).
3.2.2. Direct Delivery and Shipping from Indeni. We will use commercially reasonable efforts to ship the Products within two business days of receipt of the purchase order, inventory permitting. If the purchase is solely for software licenses and no hardware is shipped, the software licenses will be made available within two business days of receipt of the purchase order. Some software licenses may be immediately loaded into Indeni’s systems for the use by End Customer, if applicable (such as the case with the Cloudrail SaaS-based product). We will mark all Products for shipment to the address specified in the purchase order, and we will deliver the Products to a carrier or forwarding agent chosen by us or specified by you in the purchase order. Shipment will be FCA Indeni’s facility, at which time title and risk of loss passes to the recipient specified on the purchase order. You will specify a carrier and provide us with an active account number on the purchase order, otherwise we will ship under our account and you will pay all related freight, insurance, and other shipping expenses. As used in this Agreement, the term FCA will be construed in accordance with the International Commercial Terms, “Incoterms” (published 2012).
3.2.3. Payment to Indeni. Unless otherwise agreed to in writing, payment terms will be Net thirty (30) from the invoice date. All orders will be processed when received. Licenses will be made available upon confirmation of the Purchase Order by Indeni, but it is the responsibility of the Reseller to forward the licensing to the End Customer. Hardware will be invoiced with the confirmation of the Purchase order by Indeni, but may be shipped at a later date to accommodate customization for the End Customer, unless alternative payment terms have been agreed to in writing. If Products are shipped prior to our receipt of the full amount of the Purchase Price (and any other charges payable to indeni for the Products), then we hereby retain, and you hereby grant us, a security interest in any Products delivered to you and any proceeds therefrom, and you will promptly execute any documents requested by us to perfect or record such security interest. All prices are set forth in U.S. dollars and payments must be in U.S. dollars. If any currency conversion is required in connection with the calculation of the Purchase Price or other payments to be made under this Agreement, then such conversion will be made using the average of the buying and selling exchange rate for the applicable currency within the territory in which Reseller is located, in U.S. dollars, at current market prices. If any amount payable by Reseller is not paid when due, then without limiting any other rights which Indeni may have as a result of such late payment, the amount unpaid will bear interest until paid at a monthly rate of 1.5% or the maximum amount permitted under law, whichever is less, with such interest to be paid on demand together with all costs incurred by Indeni to collect the amounts due under this Agreement, including but not limited to reasonable attorneys’ fees and disbursements.
3.2.4. Taxes on Direct Sales with Indeni. The amounts payable to Indeni hereunder do not include any taxes, customs duties, tariffs or license fees. All payments made by Reseller to Indeni are payable in full without reduction for any such taxes, customs duties, tariffs or license fees. Reseller is responsible for and will indemnify Indeni against any such taxes, customs duties, tariffs and license fees assessed against Indeni, based on payments to Indeni hereunder or on the use or possession by Reseller or End Customer of Products or support, but excluding United States federal, state and local taxes based on Indeni’s net income.
ARTICLE 4 RESELLER’S OBLIGATIONS AND RESTRICTIONS; DISCLAIMERS
4.1. Marketing. Subject to the license and the restrictions set forth in ARTICLE 5, below, Reseller will market the Products only under the Trademarks. Reseller will avoid deceptive, misleading, or unethical practices and not make any false or misleading representations with regard to Indeni or the Products, and will not knowingly solicit orders from any End Customer that engages in illegal or deceptive practices.
4.2. Training. Reseller will comply as soon as practicable with any and all training requirements with respect to the Products and the Indeni Software that Indeni may require from time to time via written notice.
4.3. Independent Contractor Status. Reseller is an independent reseller of the Products. Reseller is not and will not be considered a legal representative of Indeni for any purpose and, accordingly, will have no power or authority, expressed or implied, to make any commitment or incur any obligations on behalf of Indeni.
4.4. Warranty Disclaimer. Indeni makes warranties directly to its End Customers pursuant to the End User License Agreement (made available upon first use of the Product) (the “EULA”). Reseller will not make any representations, warranties, or any other commitments regarding Indeni or the Products. Indeni will not be responsible for any representation, warranties, or other commitments made by Reseller without Indeni’s prior written consent.
INDENI AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE PRODUCTS, INFORMATION, OR SERVICES PROVIDED UNDER THE TERMS OF THIS AGREEMENT OR THROUGH ITS AUTHORIZED DISTRIBUTORS OR THE VALIDITY OF INDENI’S INTELLECTUAL PROPERTY RELATING THERETO. INDENI SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALINGS OR USAGE IN TRADE.
To the extent that any terms set forth on a purchase order delivered to Reseller by an End Customer conflict with or are in addition to the terms of the EULA, Reseller understands and agrees that such terms will be unenforceable as against Indeni.
4.5. Exclusion and Limitation of Liability. IN NO EVENT WILL INDENI, ITS SUPPLIERS OR RESELLER BE LIABLE TO EITHER PARTY, ITS CUSTOMERS, OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE (INCLUDING LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING FROM OR RELATING TO THE MARKETING AND SALE OF THE PRODUCTS BY RESELLER OR USE OF THE PRODUCTS BY ANY CUSTOMER OF RESELLER, INCLUDING THROUGH SUCH CUSTOMER’S ACCOUNT BY ANYONE ELSE, EVEN IF INDENI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY, ANY CUSTOMER OF EITHER PARTY, OR ANYONE WHO USES THE SERVICE THROUGH SUCH CUSTOMER’S ACCOUNT, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW OR EQUITY, EXCEED THE (I) THE AGGREGATE PURCHASE PRICE OF PRODUCTS ACTUALLY PURCHASED BY RESELLER IN THE PREVIOUS 12 MONTHS, OR (II) IN THE CASE OF AN END CUSTOMER, THE AGGREGATE AMOUNT OF THE PURCHASE PRICE ACROSS ALL ORDERS SUBMITTED BY THE END CUSTOMER TO RESELLER. ALL PARTIES UNDERSTAND THAT THESE LIMITATIONS OF EITHER PARTY’S LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT.
The provisions of this Section 4.5 allocate risks under this Agreement between Indeni and Reseller. Indeni’s pricing of the Products reflects this allocation of risks and limitation of liability.
4.6. Compliance with Laws, including Anti-Corruption Laws. In connection with the resale of the Indeni Products, Reseller will comply with all country, federal, state and local laws, ordinances, codes, regulations, rules, policies, licensing requirements, regulations and procedures, including, without limitation, such laws and regulations related to recycling or take-back programs for packaging, resale or use of Products, the use of Products under telecommunications laws/regulations, and all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act (“FCPA”) and the United Kingdom’s Bribery Act 2010 (collectively, the “Applicable Laws”). Reseller can find more information about the FCPA at the following URL: https://www.justice.gov/criminal-fraud/foreign-corrupt-practices-act. Reseller will not use money or other consideration paid by Indeni (and Reseller will not use its own money on Indeni’s behalf) for any unlawful purposes, including any purposes violating Applicable Laws, such as direct or indirect payments, for the purpose of assisting Indeni in obtaining or retaining business, to any of the following: any person associated with a commercial enterprise (non-government); government officials (including any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, or of any public international organization, such as the United Nations or World Bank, or any person acting in any official capacity for or on behalf of such government, public enterprise or state-owned business); political parties or party officials; candidates for political office; or any person, while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to any of the above-identified persons or organizations.
ARTICLE 5 INTELLECTUAL PROPERTY
5.1. License to Trademarks. Subject to Reseller’s compliance with this Agreement, Indeni hereby grants to Reseller a royalty-free license to use the Trademarks during the Term solely in connection with the marketing and promotion of the Products as contemplated in this Agreement. The license granted hereunder shall be revocable at will by Indeni effective upon notice to Reseller.
5.2. Ownership of Trademarks. The Trademarks are and will remain the sole property of Indeni, and Indeni reserves all rights in trademarks, trade names and logos not expressly granted to Reseller under the terms of this Agreement. Reseller will not register any domain name, trade name, or corporate name containing or comprising any of the Trademarks or anything that would cause confusion in the marketplace, and will not remove or efface any of the Trademarks on any Products sold by Reseller. All goodwill arising from the use of the Trademarks will inure to the exclusive benefit of Indeni, and the Reseller will take all such actions or execute any documents necessary to effect such vesting in Indeni. Reseller will not contest the validity of any of the Trademarks or Indeni’s exclusive ownership of the Trademarks. Reseller shall not adopt, maintain, use, or register, whether as a corporate name, trademark, service mark or other indication of origin, any of the Trademarks, or any word or mark confusingly similar to the Trademarks in any jurisdiction.
5.3. Other Intellectual Property. As between the parties, Indeni owns all right, title, and interest in and to all intellectual property in or relating to the Products and, no rights to such intellectual property are granted to Reseller, except as provided herein. The Products may only be used with software provided by Indeni in connection with such Products (the “Software”). Reseller will not and will not permit any third party to: (i) modify, duplicate, disassemble, or attempt to reverse engineer the Products or the Software; (ii) remove or erase the Software from the Products, or otherwise try to disable or alter the Software functionality; or (iii) load any other software onto the Products. Products offered for sale and are sold by Indeni subject in every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, modify, duplicate, or otherwise copy or reproduce any Product, the Software, or component thereof.
5.4. Protection of Proprietary Rights. If Reseller becomes aware that any third party is infringing or misappropriating any intellectual property in or relating to any Product (including the Trademarks), then Reseller will promptly notify Indeni in writing and cooperate with and assist Indeni, at Indeni’s expense, in the protection of such intellectual property.
ARTICLE 6 TERM AND TERMINATION
6.1. Term. This Agreement will commence in force on the Effective Date and will remain in force until December 31st of that year, unless earlier terminated under this ARTICLE 6. Thereafter, this Agreement will automatically renew for successive one-year terms, unless either party provides to the other party a written notice of non-renewal at least 30 days in advance of the then expiry date.
6.2. Termination for Convenience. Either party may terminate this Agreement (including any purchase orders issued directly to Indeni pursuant to Section 3.2) at any time, for any reason or no reason, upon 30 days’ prior written notice to the other party.
6.3. Termination for Cause. Either party may terminate this Agreement if the other party materially breaches this Agreement, if the breaching party fails to cure the breach within 15 days of receipt of written notice thereof. In addition, either party may terminate this Agreement upon: (i) the insolvency of the other party; (ii) the institution of any proceeding in relation to the credit standing of the other party, such as bankruptcy, reorganization, rehabilitation or composition, by or against the other part; or (iii) the appointment of any receiver or trustee for the other party.
6.4. Effect of Termination. Expiration or termination of this Agreement for any reason will not release any party either from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination. Upon termination of this Agreement, each party will return (or destroy) any Confidential Information of the other party in its possession. The following provisions of this Agreement will survive any termination of the Agreement: ARTICLE 1, Sections 4.4 and 4.5, ARTICLE 5, Section 6.4, ARTICLE 7, and ARTICLE 8.
ARTICLE 7 INDEMNITY
Reseller will indemnify Indeni, its affiliates, and their employees, officers, directors, successors, assigns, agents, and customers against any and all liabilities, damages, losses, costs, and expenses, including reasonable attorneys’ fees arising out of or in connection with any and all claims, demands, actions, or proceedings arising out of or in connection with: (i) any grossly negligent, reckless, or intentionally wrongful act of Reseller or any of Reseller’s employees, directors, contractors, or other agents; or (ii) Reseller’s modification or alteration of the Products or Software.
ARTICLE 8 MISCELLANEOUS
8.1. Confidentiality. Any and all nonpublic information provided directly or indirectly by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) related to the business or technology of the Disclosing Party (collectively, “Confidential Information“), will be kept confidential by the Receiving Party and may not be used, except as necessary in the performance of the Receiving Party’s obligations under this Agreement or otherwise in connection with the marketing, sale, deployment, operation, or maintenance of the Products. The Receiving Party agrees to limit access to the Confidential Information to those of its employees or contractors as are reasonably required for the purpose of performing the Receiving Party’s obligations under this Agreement or otherwise in connection with the deployment, operation, and maintenance of the Products and will ensure that each such employee or contractor is subject to an agreement with the Receiving Party with respect to third party confidential information substantially as protective of the Disclosing Party’s Confidential Information as the provisions of this Section 8.1. Notwithstanding the foregoing, Confidential Information does not include any information that the Receiving Party can verify based on its written records was (a) already lawfully in the Receiving Party’s possession without confidentiality obligations prior to receiving it from the Disclosing Party, (b) independently received from a third party without an accompanying duty of confidentiality and without breach of such third party’s obligations of confidentiality, (c) becomes available in the public domain through no action or inaction of the Receiving Party, or (d) developed independently by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information. If Receiving Party becomes legally compelled to disclose any Confidential Information, other than pursuant to a confidentiality agreement, Receiving Party will provide Disclosing Party prompt written notice, if legally permissible, and will use its best efforts to assist Disclosing Party in seeking a protective order or another appropriate remedy.
8.2. Entire Agreement. This Agreement constitutes the entire agreement between Indeni and Customer with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings, and arrangements, oral or written, between indeni and Reseller. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter of this Agreement have been made either by indeni or Reseller which is not expressly set forth in this Agreement.
8.3. NOTICES. All notices required or permitted under this Agreement will be in writing, including notices sent by email, and will be deemed received by Reseller: (a) for email notices, upon the time the email enters the information processing system that the recipient has designated or uses for the purposes of receiving email (as provided below); or (b) for mailed notices, one day after deposit with a commercial express courier specifying next day delivery, or two days for international courier packages specifying two-day delivery, with written verification of receipt by the courier.
All notices to Reseller will be sent to the email address provided under Section 8.4 or for mailed notices to the Reseller’s address provided at the time of application. All notices to Indeni will be sent to the address provided in the first paragraph of this Agreement or to firstname.lastname@example.org.
8.4. Electronic Notice. Reseller hereby consents to receiving any notice(s) required under this Agreement by electronic mail (“email”). Reseller acknowledges that legal notices such as notices of termination or non-renewal, changes in pricing, software license terms, policies or programs may be given by email. Reseller will provide an email address of a person authorized by Reseller to accept such notices either at the time of application or after receipt of an approval notice by sending such information, including any additional or alternative email addresses to indeni by email to email@example.com. Notices from Indeni to Reseller will be deemed effective when sent to Reseller’s email address(es) provided to Indeni under this Section 8.4.
8.5. Force Majeure. Neither Reseller nor Indeni will be liable under this Agreement by reason of any failure or delay in the performance of its obligations (except for payment obligations) on account of strikes (other than strikes of a party’s own employees), riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions (other than with respect to a party’s own employees), earthquakes, material shortages, or any other causes that are beyond the reasonable control of such party so long as the parties use commercially reasonable efforts, including the implementation of business continuity measures, to mitigate the effects of such force majeure.
8.6. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of California.
8.7. Severability. If any portion of this Agreement is held invalid by a court of competent jurisdiction, then such portion will be deemed to be of no force or effect, and this Agreement will be construed as if such portion had not been included herein. If the deletion of such provision materially impairs the commercial value of this Agreement, then Indeni and Customer will attempt to renegotiate such provision in good faith.
8.8. Waiver. No failure or delay by you or by us to exercise any right under this Agreement will constitute a waiver of that right.
8.9. Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except that Indeni may transfer this Agreement without consent to any of its affiliates. Any attempted assignment in violation of this Section 8.7 will be void and without effect. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
8.10. Language. The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions will be in English. Any attachments or amendments to this End User Agreement will be in English. Translations of any of these documents will not be construed as official or original versions of such documents.
Company: Indeni Inc.