RESELLER AGREEMENT
THIS RESELLER AGREEMENT ("AGREEMENT") IS ENTERED INTO BETWEEN PIRIFORM (AS DEFINED BELOW) AND THE ENTITY YOU REPRESENT IN EXECUTING THIS AGREEMENT ("YOU"). YOU MUST READ AND ACCEPT THIS AGREEMENT BEFORE ENROLLING TO BECOME A PIRIFORM RESELLER. IF YOU DO NOT AGREE TO THESE TERMS, CLICK THE "DECLINE" BUTTON AT THE END OF THIS AGREEMENT. BY CLICKING THE "ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
DEFINTIONS
“Piriform”, “we”, “us” or “our” means either Piriform Commercial ltd, Piriform Inc. or one of its affiliated companies as applicable.
"Territory" means worldwide, unless stated otherwise in an amendment referencing this Agreement executed in writing between you and Piriform.
1. BACKGROUND AND PURPOSE
We develop, own and license proprietary information technology solutions that enable business users to optimize and report on the computers in their network (collectively, the “Software”). We also offer training and user and technical support services as well as services for installation, implementation and integration of the Software (collectively, the “Services”). We have established a program through which We appoint as authorized resellers within specified market segments (“Markets”) and geographic territories (“Territories”) companies that have or are capable of developing relationships with potential licensees of Our Software.
2. APPOINTMENTS AND LICENSES
2.1 Appointments.
We hereby appoint you as a non-exclusive Reseller for the Products offered through our Partner Portal. As a reseller, you may promote, market, and resell Products to end user customers in the Territory.
2.2 Licenses.
Subject to the terms of this Agreement, We grant to You: (a) a license to use Our Marks and Our Promotional Materials (defined in Section 5.1) for the sole purpose of carrying out Your obligations under the Appointments for Our benefit; and (b) a license to resell, load, execute and display the object code version of the Software on a single computer, for the sole purpose of becoming familiar with and demonstrating the capabilities of the Software in carrying out Your obligations under the Appointments for Our benefit. We refer to the license rights in this Section as the “Licenses”. Your rights under the Licenses are limited to displaying, reproducing and distributing for Our benefit the Promotional Materials and those of Our Marks as appear on the Software and Promotional Materials. You also may display on Your Internet site the version of Our logo that We provide to You. We reserve the right to review and approve all uses You make of Our Marks. “Marks” means Our trade names, trade dress, trademarks, servicemarks, domain names, logos or other indications or symbols of Our brand or identity.
3. CONDITIONS OF THE APPOINTMENT AND LICENSE
3.1 General.
We may grant to others or reserve for Our own use, rights in the Territory that are the same as or similar to the rights We granted to You. Your rights under the Licenses and Appointments are subject to Your continued compliance with this Agreement and We may revoke the Appointments and Licenses at any time if We feel You are not complying. The Appointments and Licenses may be contingent on You meeting minimum sales quotas. If any sales quotas apply to You, they will be listed in, and updated from time to time (“Sales Quotas”). We do not guarantee You will be able to achieve the Sales Quotas. You are not authorized to appoint any type of sub-agent unless You make a request in writing in advance and We reply in writing consenting to Your request. We may require You and the sub-agent to agree to additional terms. We do not give blanket consents, so You must follow these procedures for each sub-agent You wish to appoint. You must not remove, alter or modify any proprietary rights notices or Marks that We place on the Software or its packaging or any Promotional Materials. You are also prohibited from using Our Marks in any manner that would tarnish, damage, or otherwise negatively affect Us or Our rights in the Marks.
3.2 Software Conditions.
You are prohibited from copying the Software. You are also prohibited from reverse engineering, decompiling or otherwise attempting to create any version of the Software. You must distribute the Software only in the form We provide to You. This means You must not bundle, embed or integrate the Software with any other product, or promote or offer the Software other than as a stand-alone product complementary to and potentially capable of integration with Your other offerings. If You are required to provide any regulatory body with use of or access to Our Software, then such use and access will be subject to this Article 3 and Your confidentiality obligations, and all items so provided or accessed shall bear the legend “Restricted Rights” in addition to all other notices. You must not: (a) use or allow use of the Software outside the scope of the Appointments and Licenses; (b) use or exploit the Software for Your own internal business purposes; and/or (c) provide rental, lease, business process outsourcing, service bureau, ASP or any other similar or related services to any individual or entity.
3.3 Access to Reseller Console.
Piriform will provide you with a user name and password to access the Partner Portal for the purpose of (a) purchasing Products; and, if applicable, (b) ordering Products on behalf of your customers.
4. SERVICES
4.1 Permitted Services.
As a subcontractor to Piriform, We do not authorize, appoint or grant to You the right to perform services on Our behalf. Unless contained within a supplement to this Agreement, nothing in this Agreement or its Appointments and Licenses will be read to give You such rights. You must seek Our consent and confirmation that any additional services You wish to provide are Permitted Services.
4.2 Reseller Services.
Independent of Piriform, you are permitted to offer Your implementation, integration and training services to end-users providing that You are always solely responsible to the End User for any Reseller Services You offer or perform, including their quality and timeliness, and You will indemnify, defend and hold Us harmless from all claims, damages, liabilities and penalties (including reasonable legal costs) that may arise as the result of Reseller Services.
5. SALES EFFORTS AND PROCEDURES
5.1 Marketing and Publicity; Piriform’s Assistance.
You must, at Your own expense, undertake promotional efforts and activities to actively pursue sales of the Software. You also must assist Us in maintaining existing customer relationships and sales volumes and be available for training and joint customer calls. Your duties under the Appointment further require You to actively participate in Our sales promotion campaigns and programs. To assist You in these efforts, We will provide You with a copy of Our standard sales and marketing materials, including any updates We may issue from time to time (collectively, the “Promotional Materials”). We will also provide initial training and instruction to familiarize You with the features, functions and benefits of the Software and reasonable follow-up training as You request. Each party shall bear their own training costs and expenses, except that We reserve the right to charge You additional fees for follow-up training.
5.2 Reseller Orders.
You will purchase Software via our then current Partner Portal. All purchases from Us will be subject to the terms and conditions of this Agreement We may in Our sole discretion add or remove Software or discontinue the distribution, distribution method or availability of any portion of the Software without prior notice to Orders You issue to Us are solely for the purpose of requesting delivery dates and quantities. We will not be liable for any damages to You or to any other person, for Our failure to fulfil any orders, or for any delay in delivery or error in fulfilling any orders for any reason whatsoever. All deliveries will be made via download. Delivery will be deemed complete, and risk of loss or damage to the Software will pass to You upon delivery to the carrier or download to Your local server or computer, as applicable. Your actual or attempted purchase of Software in any manner, or from any party, other than as expressly provided in this Section shall be deemed a material breach of this Agreement unless it was agreed to by Us prior to the actual or attempted purchase in writing.
5.3 Distribution of Software and Updates.
You may contract with End Users for Reseller Services and distribute the Software you purchase from our Partner Portal to End Users under Your own standard form of contract so long as it: (a) requires each End User to agree to the unmodified form of Piriform end user license agreement (“EULA”)and any other agreements or policies We provide with the Software; (b) does not, without Our prior written approval in each case, alter Our intellectual property rights under this Agreement or the EULA; and (c) does not contain any terms that conflict with this Agreement or provide for any additional obligations on Our behalf, including any warranties (each a “End User Contract”). You will provide Us with accurate End User information via the purchase process in the Partner Portal. You agree to make all changes to the End User Contracts that We may reasonably require to protect Our rights in the Software. You must use best efforts to enforce the terms and conditions of each End User Contract. We may from time to time in Our sole discretion, make improvements, corrections, additions, or revisions to the Software (“Updates”). If We provide Updates to You they will be considered Software for purposes of this Agreement, and You will be solely responsible for distributing such Updates and any accompanying materials to End Users in accordance with Our instructions. “End Users” means persons or entities who have entered into an End User Contract to use the Software for their own internal use, rather than for the purposes of redistribution. [L1]
5.4 Records and Reporting.
All records and reporting will be collected during the purchase process. You agree to use best efforts to make sure that all this information is accurate and up-to-date. We reserve the right to audit this information and from time to time may require that you update the Partner Portal with the most up to date information. If You become aware of any actual or suspected unauthorized use or copying of the Software, You must promptly notify Us. In connection with these and Your other obligations, You shall keep and maintain during the Term and for three (3) years thereafter accurate books and records and shall make them available to Us or Our designated third party for reasonable review and audit. We may in Our sole discretion amend this agreement to require that all such requested information be provided with each deal as it is being processed through an authorized distributor.
5.5 Returns.
Except as otherwise provided in this Agreement, in keeping with Piriform’ “no-return” policy, You may not return Software without Our prior express authorization. If authorized as an exception, we only accept returns of the current version of the Software within 30 days of the software purchase. All returns must have a clearly marked “return authorization” number obtained from Us; have shipping prepaid; and are subject to Our then-current return processing fee. All amounts due to You under this Section will be payable as a credit toward Your future purchases of Software from Us and not in cash, unless We expressly agree otherwise in advance.
6. FEES, PAYMENT AND TAXES
6.1 Software Fees.
You will purchase the Software and associated maintenance from Us at the prices detailed in our Partner Portal. We reserve the right to change pricing, any reseller discounts, and/or shipping schedule costs at any time without prior notice, and at Our sole discretion. We will attempt to provide You with the most current price list, but it is Your responsibility to ensure that You have and use the most current pricing and discount information. Your payment of amounts owed to Us is not contingent upon Your receipt of payment from End Users, but according to your payment terms with Piriform in section 6.3. We may in Our sole discretion amend the Partner Portal to require that all such Software Fees be managed in accordance with the rules set forth by Our current policy.
6.2 Payment; Taxes and Expenses.
The fees for the Software do not include applicable sales, use, value-added, withholding, excise, or any other similar taxes or government charges all of which are payable by You (except for taxes on Our income), or other costs such as insurance, shipping, and handling. All purchases will completed following guidelines and rules as presented by the Partner Portal provider.
6.3 Nothing in this Agreement is intended nor shall it be construed to create a relationship of agency, partnership, joint venture or franchise between the parties. Neither party makes any guarantees to the other that a minimum amount of fees or profit will be earned. Except for the right to resell or service Our Products as expressly authorized in this Agreement, neither party shall have authority to act in the name or on behalf of or otherwise to bind the other party in any way (including making any representation or warranty, assuming any obligation or liability and exercising any right or power). We have no liability to any third party in relation to any representation or warranty You may make or obligation You may undertake. Any use of such terms as reseller, partner, partnership, joint venture or similar terms in describing the relationship of the parties under this Agreement is made in reference to the spirit of cooperation between the parties only, and shall not imply any legal, tax or other obligations of the parties related to any specialized meaning of those terms at law. Each party is acting as the independent contractor of the other and shall be responsible for such taxes and employer-source withholdings as may be imposed under applicable law. Under no circumstances will any of Your employees or agents be entitled to participate in Our pension, welfare or benefits plans.
7. TERM AND TERMINATION
7.1 Termination.
This Agreement shall commence on the date you click the "ACCEPT" button and will continue until terminated.
7.2 Termination for Convenience.
Either party shall be entitled to terminate this Agreement for convenience upon thirty (30) days' prior written notice to the other.
7.3 Termination.
If either party materially breaches any obligation under this Agreement, and the material breach is not cured within ten (10) calendar days of written notice, the non-breaching party shall have the right to terminate this Agreement and the Appointment and License immediately upon a second written notice. Notwithstanding the foregoing, We shall have the right to automatically and immediately terminate this Agreement and the Licenses and Appointments upon notice to You if You are in material breach of its confidentiality obligations or the express terms of the Appointments or Licenses. Either party may terminate this Agreement for any reason or no reason with ninety (90) days prior written notice (or such longer period as required by law) to the other party. Termination shall not relieve You of Your obligation to pay all fees that have accrued as of the date of termination or that You have otherwise agreed to pay under this Agreement. Immediately upon expiration or termination of this Agreement (or earlier if We request) You shall immediately: (a) return all copies and embodiments of the Software (subject to applicable refunds), Confidential Information, Marks and Promotional Materials then in Your possession or under Your reasonable control and certify in writing that such delivery is a complete delivery; (b) provide Us with all information in Your possession or under Your control regarding prospective End Users; and (c) cease to identify Yourself as a Our authorized reseller. Each of the following Articles or Sections of this Agreement shall survive the termination, expiration or non-renewal of this Agreement for any reason: Article 3, Section 5.4, Article 6, Article 7, Section 7.2, Article 8, Article 9, Article 10, Article 11, Article 12, Article 14, and those portions of Article 15 which by their nature are required to survive.
8. OWNERSHIP
As between You and Us, We exclusively retain all intellectual property rights (including patents, trademarks and copyrights), proprietary rights (including trade secrets) and moral rights (including rights of attribution and authorship) throughout the world in and to the Software, Our Confidential Information, Promotional Materials and the Marks and in and to all of their derivative works and improvements (as each of those terms is defined and applied under Title 17 and Title 35 U.S.C. respectively). No right, title or interest is granted or transferred to You except for the Appointment and License expressly granted under this Agreement.
9. CONFIDENTIALITY
We may deliver to You, allow You to access or You may come in contact with information, data or materials in either tangible or intangible form that are trade secrets of, or proprietary and confidential to Us, Our customers or business partners, including as may be designated at law (collectively, the “Confidential Information”). Without limiting the preceding sentence, the definition of “Confidential Information” shall include the terms and conditions of this Agreement as well as the contents of Our standard price sheet. You will not: (a) use the Confidential Information, including internally within Your own organization, except to the minimum extent necessary to perform under this Agreement; or (b) disclose the Confidential Information to any third party during the Term or thereafter without Our express written consent in each case, except to those of Your legal and financial advisers with a need to know and who have signed an equally protective agreement. You always will handle Confidential Information with at least reasonable care and will be responsible for the actions of those persons to whom it is permissibly disclosed. Your obligations under this Section will not apply to Confidential Information You can demonstrate by contemporaneous written evidence to be: (i) already known independently developed by it at the time of receipt; (ii) generally available to the public other than by breach hereof; or (iii) independently obtained from a third party whose disclosure does not violate a duty of confidentiality. If You are compelled by a court or other body of competent jurisdiction to disclose the Confidential Information, You will disclose only so much as is legally required and only after providing Us with written notice and reasonable assistance in obtaining and enforcing a protective order or other appropriate means of safeguarding the Confidential Information. If We are given access to information or data of Yours that is proprietary or confidential under applicable law, Our rights and obligations for use and disclosure shall be the same as Yours with respect to Our Confidential Information. If the parties have previously entered into a non-disclosure or other confidentiality agreement, such agreement is superseded in its entirety by this Section notwithstanding any terms for survival it might have.
10. REGULATORY COMPLIANCE
Warranties. You expressly represent and warrant to Us that You have the authority to enter into this Agreement and neither You nor Your affiliates or employees, officers or directors are prohibited, denied, debarred or embargoed persons or entities as those terms are defined and applied under the International Traffic in Arms Regulations, the regulations administered by the Office of Foreign Assets Control or any similar U.S., Canadian, or foreign regulations. In addition, each party shall be responsible for its own compliance with local, state, provincial and federal laws and regulations and all international standards, conventions and treaties known or which should be reasonably known to apply to such party’s performance under this Agreement and the parties shall, at their own expense, reasonably assist one another in continued compliance, including by entering into such amendments or addenda to this Agreement as may be reasonably necessary for continued compliance. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES (INCLUDING IMPLIED AND STATUTORY WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT) OTHER THAN THOSE EXPRESSLY PROVIDED IN THIS ARTICLE AND THE EULA.
11. INDEMNIFICATION
If a lawsuit, investigation or similar action is brought against Us because of something You or Your employees and agents did or failed to do, You will defend Us in that suit or action at Your cost such that You will pay all court costs, reasonable attorneys’ fees and the like. If You settle or lose any part of the suit or other claim, You will indemnify and hold Us harmless by paying all amounts awarded against You, Us or End Users including amounts for damages and penalties. We will provide You with written notice if We become actually aware that such a suit or other action is going to be brought. We also understand that You may request the right to retain reasonable control over the defense and/or settlement of each such claim and also may request Our reasonable assistance (at Your expense) in Your defense obligations.
12. LIMITATION OF LIABILITY
Insurance. EXCEPT FOR YOUR BREACH OF YOUR OBLIGATIONS UNDER ARTICLE 3, EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER ARTICLE 9 OR IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS: (a) NEITHER PARTY SHALL BE LIABLE FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES UP TO A TOTAL CAP OF TWENTY-FIVE THOUSAND UNITED STATES DOLLARS ($25,000) OR THE AMOUNT OF FEES YOU PAY TO US IN THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY, WHICHEVER IS LESS; AND (b) TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR LOST DATA. These limitations and exclusions apply to all causes of action in whatever form and on whatever legal theory or basis brought. You must maintain during the Term and for three (3) years thereafter, customary insurance policies that protect You and Us against risks reasonably known to arise from Your performance or failure to perform under this Agreement. Upon Our request, You will provide Us with valid certificates evidencing that insurance. In Our reasonable discretion, We may require You to obtain additional insurance. Insurance coverage will not affect the limitation of liability under this Section.
13. ASSIGNMENT
You are prohibited from transferring or assigning Your rights under this Agreement, the Appointment or License without Our prior written consent. Any attempt to do so will be a material breach of this Agreement. Any change in the ownership or control of Your company or the parent entity that may own a controlling interest in Your company will be considered a transfer requiring Our written consent. As this Agreement relates to Our intellectual property, an assignment or transfer by operation of law will require Our consent to the same extent as other attempted assignments or transfers.
14. GOVERNING LAW
For Piriform Inc. and affiliated entities, this Agreement shall be exclusively governed by, interpreted, and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws. All disputes shall be brought in the courts of the State of New York or the Federal District Courts sitting in the Southern District of New York and such courts shall have exclusive substantive and procedural jurisdiction.
15. GENERAL
15.1 Miscellaneous.
Section headings are used for convenience of reference only. This Agreement may be signed in separate, identical counterparts deemed to be one instrument. You shall not issue any press release or other public announcement concerning this Agreement without Our prior written consent in each case. All notices shall be sent by certified mail or reputable overnight courier to the address specified for each party in this Agreement and deemed given three (3) business days after sending. Failures in performance beyond a party’s reasonable control are excused. Unenforceable provisions shall be reformed to permit enforceability with maximum effect to the original intent. Waiver of any breach is not waiver of other or later breaches. The Agreement shall not be amended except in a writing signed by both parties. This Agreement is the complete agreement of the parties with respect to their subject matter and supersedes all prior discussions and negotiations and any earlier proposals all whether verbal or written. If a conflict exists between this Agreement and any the applicable purchase order, this Agreement shall prevail. The word “including” is intended as a term of enlargement meaning “including without limitation” and does not denote exclusivity unless otherwise specifically indicated. The words “shall”, “will” and “must” are each intended to be obligatory and to require performance of the stated action, compliance with the stated condition etc. at the applicable time during the Term; The word “may” is the antonym of shall, will and must and is intended to be permissive, imparting a right, but not an obligation to perform the stated action.
15.2 Non-Solicitation.
For the term of this Agreement, and for a period of one (1) year thereafter, You agree not to hire, solicit or accept employment of any Piriform’ employees or from affiliated companies, independent contractors or agents with whom it has had contact as a result of this Agreement or other business interactions with Piriform, unless You obtain the prior written consent of Piriform. Should You hire such an employee, independent contractor or agent in violation of this Agreement, Client shall immediately pay to Piriform, as liquidated damages, an amount equal to such person’s then current gross annual compensation (or the amount paid to such person during the previous twelve (12) months in the case of an independent contractor) inclusive of bonuses, commissions and other employee benefits.
15.3 Export Compliance.
You agree to comply with all laws, rules and regulations of the United States and Canada and any other applicable jurisdiction(s) regarding the export of any commodity, technology and/or software used, developed or acquired under this Agreement which, at the time of export, requires an export license or other government approval.
15.4 Advertising Piriform may include Your name and trademarks in general promotional materials for the purpose of promoting Piriform, and may issue press releases announcing any newsworthy event or fact pertaining to the relationship described herein.