Reseller Terms and Conditions
IMPORTANT: Please read these Reseller Terms and Conditions carefully and maintain a copy for your records. Termly LLC is not a lawyer or a law firm and does not engage in the practice of law or provide legal advice or legal representation. All information, software, services, and comments provided on termly.io or by Termly LLC are for informational and self-help purposes only and are not intended to be a substitute for professional legal advice.
As a condition to your submitting (i) an End User of Software or Integrated Products (each as defined below), (ii) a prospective Customer (as defined below), End User of Software or Integrated Products or (c) any similar business opportunity or offer, or an acceptance of terms provided by or to Termly LLC, a Delaware limited liability company with offices located at 522 W. Riverside Ave., Suite 4296, Spokane, WA 99201 (“Termly”), you (the “Reseller”) accept and agree to be bound by these Reseller Terms and Conditions, all referenced documentation and other items referenced herein or therein (collectively, the “Agreement”), and you represent that you have read and understand all of the provisions of this Agreement. Termly and Reseller are each referred to as a “party” or as the “parties” in this Agreement.
If you do not agree to all of the terms of this Agreement, then Termly is unwilling to license any Termly Properties to you and has no obligation to pay any consideration to you. By entering into this Agreement, you represent that you have the authority to bind Reseller (including its affiliates, as applicable), in which case the terms “you” or “your” will refer to Reseller, which such date shall be referred to as the “Effective Date.”
Termly is willing to appoint Reseller as its non-exclusive reseller and “affiliate,” and to grant to Reseller a non-exclusive license to integrate Software as part of Integrated Products and to license and distribute such Integrated Products on and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- Definitions. Certain definitions are set forth in this Section 1 below:
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Customer” means an End User that licenses one or more Integrated Products from Reseller for its own use and not for transfer or resale of any kind.
“Customer Information” means any information collected, received, processed, or maintained by or on behalf of Reseller from or relating to any Customer in connection with the Integrated Products, including the identification of the Integrated Products distributed to or used by or on behalf of the Customer and related data analytics.
“Documentation” means Termly’s user manuals, handbooks, and installation guides relating to the Software, including the Termly TOU that Termly provides or generally makes available to End Users which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
“End User” means a Customer or a Person that uses one or more Integrated Products for or on behalf of such Customer.
“Integrated Products” means any and all products made by Reseller that incorporate or include one or more Reseller Components and all or a portion of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Loss” or “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Mark” means any trademark, service mark, trade name, logo, domain name, or other indicator of source, affiliation, or sponsorship, whether registered or unregistered.
“Marketing Materials” means any advertising, promotional, or marketing materials for or relating to the Software or Integrated Products that Termly may make available to Reseller from time to time during the Term.
“New Version” means any new version of the Software that Termly may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Termly’s designation of a new version number), and which Termly may make available to Reseller or End User at an additional cost under a separate written agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Products” means Software, Reseller Components, and Integrated Products in any form or medium.
“Receiving Party” has the meaning set forth in Section 10.1.
“Reporting Period” has the meaning set forth in Section 9.4(a).
“Representatives” means, with respect to a party, that party’s employees, officers, agents, service providers and legal advisors.
“Reseller Components” means any and all components of the Integrated Products other than Software.
“Software” means the products offered on the Termly.io website or as may be offered by Termly for use by End Users from time to time, including all related Documentation.
“Specifications” means the technical specifications for the Software provided by Termly to Reseller and set forth on URL (the “Specifications Page”), as the same may be modified from time to time by the parties’ written agreement.
“Termly Marks” means the Marks that Termly may make available to Reseller in its sole discretion from time to time.
“Termly Properties” means any and all of the Software, Specifications, Documentation, Termly Marks, Marketing Materials, Termly’s Confidential Information, APIs (application programming interfaces), and other technologies, information (including any Customer Information), and materials provided by Termly to Reseller to enable Reseller to develop, make, market, distribute, or license, or provide maintenance, support or other services for, Integrated Products.
“Territory” means the geographic area or jurisdiction agreed on by the parties, and for which Termly Properties specific to such geographic area or jurisdiction are provided to Reseller from time to time.
“Third-Party Materials” means, other than the Integrated Products and Reseller Components, all materials and information in any form or medium, including any open source components or other software, documents, data, content, specifications, products, equipment or components of or relating to the Software, that are not proprietary to Termly.
- Non-Exclusive Reseller. Subject to and conditioned on Reseller’s compliance with the terms and conditions of this Agreement, Termly hereby: (a) appoints Reseller as Termly’s non-exclusive reseller in the Territory during the Term; and (b) authorizes Reseller, during the Term, to describe itself in promotional, advertising, and marketing materials relating to the Integrated Products as a “Reseller” of Software solely as part of the Integrated Products. This appointment is non-exclusive and at any time and in Termly’s sole discretion, Termly may itself and may authorize third parties to, without limitation, design, develop, produce, market, distribute, and otherwise commercialize or use Software, any modifications or derivatives of Software, or any products or services that compete with Software, and provide support and other services for or using such products, alone or with other products, services, and materials, in and outside the Territory, through any channel, and to any Person, including resellers, systems integrators, original equipment manufacturers, retailers, and end users.
- Acceptance and Conditions of Appointment. Reseller hereby accepts Termly’s appointment pursuant to Section 2.1 and agrees, as a condition to such appointment and the continuation of Reseller’s authorization as Termly’s reseller under this Agreement, to perform all of Reseller’s obligations hereunder.
- No Franchise Relationship. Nothing contained in this Agreement creates any franchise, dealership, agency, or business opportunity (each, a “Franchise”) relationship between the parties. Reseller acknowledges that it does not and will not offer or sell Integrated Products under a business or marketing plan or system prescribed by Termly and that Reseller sells Integrated Products at prices set solely by Reseller.
- License Grants.
- Software and Documentation. Subject to and conditioned on Reseller’s compliance with the terms and conditions of this Agreement, and solely in connection with Reseller’s appointment and for the purposes of its operation as a non-exclusive authorized reseller pursuant to Section 2, Termly hereby grants Reseller, a limited, non-exclusive, non-transferable, and non-sublicensable license in the Territory during the Term solely to: (a) reproduce the Software in object code form only (except for open source components, which may be copied in source code form as and to the extent permitted by the open source license agreements governing such open source components), for purposes of developing and producing Integrated Products that incorporate or are otherwise bundled with the Software; (b) demonstrate, market, and distribute the Software to Customers in the Territory solely for such Customers’ end use under the Termly TOU as so incorporated in or bundled with the Integrated Products; (c) use the Software internally for testing, servicing, and supporting the Integrated Products and reproduce the Software in the quantities and to the extent necessary for these purposes; and (d) incorporate the Documentation, in whole or in part, into the documentation for the Integrated Products, reproduce such quantities of the Documentation as are necessary solely for purposes of such incorporation, and distribute to Customers such Documentation as incorporated in the Integrated Product documentation (each of the foregoing items, (a) through (d), a “Permitted Purpose”). Reseller shall be solely responsible for configuring, assembling, making, marketing, packaging, and shipping all Integrated Products.
- Open Source. Software may include open source components. Any use of open source components by Reseller is subject to and governed solely by the terms and conditions of the applicable open source license agreement(s).
- Trademark License and Use.
- Subject to and conditioned on Reseller’s compliance with the terms and conditions of this Agreement, Termly hereby grants Reseller a limited, non-exclusive, non-transferable and non-sublicensable, royalty-free license in the Territory during the Term to use the Termly Marks and reproduce and distribute Marketing Materials solely to market and promote the Integrated Products under this Agreement in accordance with Termly’s guidelines as the same may be updated by Termly from time to time. All uses of the Termly Marks, and all goodwill associated therewith, shall inure solely to the benefit of Termly.
- Reseller shall not advertise, promote, market, or distribute Integrated Products using any Marks other than the Termly Marks and Reseller Marks without Termly’s written pre-approval in accordance with Section 6.1(f).
- Reseller shall not use any Termly Marks:
- in or in connection with the advertising, promotion, marketing or distribution of any goods, services or technologies other than the Software as components of the Integrated Products;
- as part of Reseller’s corporate or trade name or any domain name;
- in any way that may cause confusion, mistake or deception; or
- in any way that may dilute, tarnish or otherwise diminish the Termly Marks’ distinctiveness, or jeopardize the reputation of or goodwill associated with the Termly Marks, Software or Termly or the validity or Termly’s ownership of the Termly Marks or the registrations therein.
- Other than such use of the Termly Marks as are expressly permitted under this Section 3.3, Reseller shall not use, register, or attempt to register in any jurisdiction any Mark that is identical to or confusingly similar to any of the Termly Marks or that incorporates any of the Termly Marks in whole or in confusingly similar part. If Reseller acquires any rights in any Mark that is identical or confusingly similar to any of the Termly Marks, by operation of law or otherwise, Reseller shall and does hereby assign, at no additional cost and for no additional consideration, all such rights to Termly and its successors, together with all associated goodwill in and applications and registrations for such Mark.
- Reseller shall not directly or indirectly engage in any unfair, unethical, misleading, or deceptive acts or practices that are or might be detrimental to the public or the goodwill or reputation of Termly or any Software or Termly Marks, including any dissemination, display or use of any false, misleading or deceptive representations, depictions, or materials for or in connection with any advertising, promotion, marketing, or distribution of any Integrated Products.
- Reseller shall not at any time during or after the Term (i) challenge, or cause, induce, authorize, or assist any Person to challenge, the validity of the Termly Marks or Termly’s ownership, use or registration of or rights in any of the Termly Marks or (ii) take any action in derogation of Termly’s rights in the Termly Marks, including by using, licensing, or applying to register any Mark that is identical or confusingly similar to any of the Termly Marks.
- No Implied Rights. The Termly Properties are provided to Reseller solely for the Permitted Purpose under the express terms of the licenses granted in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Reseller or any third party any Intellectual Property Rights or other right, title or interest in or to any of the Software or other Termly Properties. All uses in this Agreement of the terms “sell,” “sale,” “resell,” “resale,” “purchase,” “price,” and the like mean the purchase or sale of a license: (a) in the case of Reseller, under this Agreement; and (b) in the case of Customers, under the Termly TOU. Nothing in this Agreement grants or conveys, or permits Reseller to grant or convey, any ownership right in any of the Termly Properties or Third-Party Materials, or any article or copy thereof or Intellectual Property Rights therein.
- Restrictions. Reseller shall not, and shall not permit any other Person to, access, use, or perform any other act on or relating to any Termly Properties except as expressly permitted by this Agreement and, in the case of any licensed Third-Party Materials, the applicable third-party license agreement.
- Without limiting the foregoing, except as otherwise expressly permitted in this Agreement, Reseller shall not at any time, directly or indirectly:
- market, distribute, license, or otherwise make available any Software, including (i) as a single product, on a stand-alone basis, or in any form other than incorporated in or otherwise as an integral part of an Integrated Product, or (ii) on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
- use any Software for Reseller’s own internal business operations unless it enters into a separate license agreement with Termly permitting such use;
- market, distribute, license, or otherwise make available any Integrated Product that it has not tested in accordance with Section 5.2 and certified in accordance with Section 5.3;
- make, market, distribute, license, or otherwise make available, or provide support or other services for, any Integrated Product outside the Territory or for any actual or potential use outside the Territory;
- export, re-export, or release, directly or indirectly, any Integrated Product to any location, jurisdiction, or Person outside the Territory;
- copy, modify, or create any derivative works or improvements of any Software or Documentation;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of any Software or any part thereof;
- bypass, breach, or disable any security device, copy control, or digital rights management tool, or other protection used by any Software, or induce or assist any Person to do so;
- use or incorporate any open source components in or in connection with any Integrated Products, including in their development, making or operation;
- represent itself as an agent of Termly, commit Termly to any contracts, or incur any obligation or liability whatsoever on behalf of Termly for any purpose;
- make any representations, warranties, guarantees, indemnities, claims, or other commitments: (i) actually, apparently, or impliedly on Termly’s behalf; or (ii) concerning or relating to any Software that are in addition to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, claims, or other commitments in this Agreement, the Termly TOU, the Documentation, or any written documents provided or made available by Termly to Reseller that concern or relate to that Software;
- remove, delete, add to, alter, or obscure the Specifications, Documentation, or Termly TOU, or any warranties, disclaimers, copyright, trademark, patent, or other intellectual property, proprietary rights, or other notices, or any marks, symbols or serial numbers (including any Termly Marks) that appear on or in connection with any Software as provided or directed by or on behalf of Termly; or
- under or in connection with any part of this Agreement or its subject matter, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or violates any applicable Law.
- Integration of Software. Subject to the terms of this Agreement, Termly shall provide to Reseller, and Reseller shall provide to Termly, all information and materials in its possession or control that are reasonably necessary or desirable to enable: (a) Termly to modify the Software so that they are properly configured to operate in the Integrated Products; and (b) Reseller to modify the Integrated Products so that they operate with the Software, in each case in accordance with the Specifications and functional specifications for the Integrated Products set out in the Specifications Page. To the extent necessary to develop other or additional written technical specifications to achieve the foregoing purposes, the parties shall collaborate to timely develop such specifications and agree to them in writing. Each party shall be responsible for its own costs incurred in connection with this Section 5.1. Upon the parties’ written agreement to such other or additional specifications, the Specifications Page shall be deemed to be amended to include such specifications and such specifications shall constitute Specifications hereunder as defined in Section 1.
- Product Testing. Before and for the purpose of certifying the Integrated Products and related documentation pursuant to Section 5.3, the Reseller shall conduct all testing that may be necessary to determine if the Integrated Products operate in accordance with functional specifications set out in the Specifications Page. Such testing may include, without limitation: (a) initial testing on a pre-distribution copy of the Software; and (b) final testing on a master copy of the Software. Termly shall provide one copy of the pre-distribution Software and one copy of the master copy of the Software, as applicable, to support such testing and shall have the right to observe or participate in all or any part of Reseller’s testing of the Integrated Products. Reseller shall give Termly at least 3 business days’ prior written notice of all such testing. Termly may elect to waive one or more testing requirements if Termly determines, in its sole discretion, that the requirements specific to the Integrated Products have been otherwise satisfied. The parties shall bear their own costs and expenses in connection with the testing obligations under this Section 5.2.
- Integrated Product Certification. Prior to the first commercial distribution of any of the Integrated Products, Reseller shall provide all information and materials as Termly may request concerning the specific Integrated Product proposed for distribution and certify to Termly in writing that:
- the Integrated Product is fully operable and will function in accordance with the functional specifications set out in the Specifications Page when properly installed in accordance with Reseller’s documentation for that Integrated Product;
- Reseller’s documentation for the Integrated Product is complete and accurate and includes all such information as may be reasonably necessary for the effective installation and use of the Integrated Product by End Users, including the effective configuration, integration and systems administration of the Integrated Product and performance of all other functions identified in the Integrated Product’s functional specifications; and
- the Integrated Product and Reseller’s documentation for the Integrated Product conform in all respects to the requirements of this Agreement.
- Right to Change Software. Termly has the right at any time, in its sole discretion, to modify or make changes to the Software or change the methods by or media in which Termly makes, markets, distributes, licenses, or otherwise makes available, and, where applicable, provides any services relating to, any Software. In the event of any such changes, Termly shall:
- give Reseller written notice of such changes as soon as reasonably practicable;
- provide Reseller with revised Specifications and such additional information and materials as Reseller may reasonably request to enable Reseller to modify the Integrated Products to maintain their compatibility with the Software or to incorporate the modified Software in the Integrated Products; and
- provide Reseller, upon Reseller’s request, with such additional consultation and training as Termly deems necessary in its sole discretion.
- Right to Suspend or Terminate License and Disable Reproduction. Termly may, on three (3) days’ prior written notice to Reseller at any time, in its sole discretion and without any obligation or liability to Reseller (a) temporarily or permanently disable any or all copies of Software or (b) discontinue, as applicable, Termly’s licensing, maintenance or support of Software to Reseller if for any reason Termly temporarily or permanently discontinues the licensing, maintenance or support of such Software entirely or generally with respect to Reseller distribution, and to remove the offering of such discontinued Software.
- Reseller Obligations.
- Production, Marketing, and Distribution. At all times during the Term, Reseller shall, in accordance with the terms and conditions of this Agreement and at its own cost:
- design, develop, and produce the Integrated Products in accordance with the Specifications and the functional requirements set out in the Specifications Page;
- ensure that End Users receive, are aware of, and accept the terms and conditions of the Termly TOU before using the Integrated Products and promptly report to Termly in writing any actual or suspected Termly TOU non-compliance;
- advertise, promote, market, and distribute the Integrated Products to Customers using Reseller’s best efforts to maximize the distribution of, licensing revenues from, and Customer satisfaction with the Integrated Products;
- maintain sufficient knowledge of the industry and products competitive with the Integrated Products (including specifications, features and benefits) so as to be able to explain in detail to the Customers: (i) the differences between the Integrated Products and competing products; and (ii) information on standard protocols and features of each of the Integrated Products;
- comply with all then current Termly rules of conduct, including Termly’s advertising, promotion, marketing, and merchandising policies relating to value-added combinations and versions of the Software and all Termly directions and instructions concerning the commercialization of the Integrated Products;
- before publicly disseminating or using any advertising, promotional or marketing materials for any Integrated Products, supply a representative sample of such materials to Termly for approval, which may be given or withheld in Termly’s sole discretion;
- maintain inventory of the Integrated Products at levels that are reasonably necessary and sufficient for Reseller to meet Customer demand for the Integrated Products;
- store all copies of the Products in appropriate storage conditions and provide appropriate security for the Products;
- promptly give Termly written notice of and investigate and address any notice, complaint or claim of which Reseller becomes aware concerning any data security breach, personal injury, property damage, or other injury alleged to have been caused, in whole or in part, by any Integrated Product, any use of an Integrated Product, or any act or omission of Reseller under or in connection with this Agreement; and
- conduct business in accordance with applicable Law and in a manner that is consistent with good business practice and reflects favorably at all times on the Products and the good name, goodwill, and reputation of Termly.
- Customer Information and Data Law Compliance. Reseller shall at all times during and after the Term provide to Termly, in such written, electronic, or other form as Termly may request for purposes of administering or enforcing the licenses to the Termly Products and providing Product maintenance and support or other services to Customers, all Customer Information collected or received by Reseller and, for any Customer Information consisting of or reflecting personal information: (i) notify and, where required by applicable Law, obtain the written consent of, all End Users that their information may be transferred or disclosed to Termly and third parties for the foregoing purposes; (ii) maintain appropriate administrative, physical, and technical safeguards for the protection of the privacy, security, confidentiality, and integrity of such Customer Information; and (iii) comply, and ensure that its employees, agents, and contractors comply, with all applicable Laws regarding data privacy and security, required data breach notifications and personal information.
- Reseller Certification. At all times during the Term, Reseller shall have and maintain all required certifications, credentials, licenses, registrations, approvals, and permits necessary to lawfully conduct business in accordance with this Agreement.
- Termly Obligations.
- Subject to and conditioned on Reseller’s compliance with the terms and conditions of this Agreement, during the Term Termly shall:
- provide to Reseller such information as Reseller may reasonably request regarding the marketing of the Integrated Products in the Territory; and
- allow Reseller to participate in any marketing programs, events or opportunities that Termly may make generally available to its resellers of Software in the Territory, provided that Termly may modify or eliminate any such program, event or opportunity at any time.
- Maintenance, Support, and Training.
- Customer Support. Except as expressly provided otherwise in Section 8.2, Reseller is solely responsible for providing technical support to Customers for the Integrated Products, including Software incorporated in or used with the Integrated Products. Reseller shall:
- ensure that an adequate number of trained, capable, and qualified Reseller technical personnel with sufficient knowledge of the Integrated Products are available to serve as the primary points of contact for Customers’ requests for technical support for, and to effectively and efficiently assist Customers’ operation of, the Integrated Products;
- timely respond to existing and prospective Customers’ inquiries and requests regarding the general operation and use of the Integrated Products, including: (i) providing general information and installation, configuration, and integration support on standard Integrated Product protocols and features; (ii) collecting relevant technical problem identification information; and (iii) providing assistance to Customers in the diagnosis and correction of problems encountered in using the Integrated Products; and
- direct Customers to contact only Reseller for support for the Integrated Products and promptly direct any Customers seeking support for the Software (other than as part of the Integrated Products) to Termly at [email protected].
Except as and to the extent expressly permitted in this Agreement with respect to the Integrated Products, or in such other written agreement as Reseller may hereafter enter into with Termly, Reseller shall not service, support, maintain, correct, repair or replace any Software.
- Termly Technical Support.
- At Reseller’s written request, provided that Reseller is then-current in its payment of all Fees and charges due Termly hereunder, including Termly’s fees for support, maintenance, and training, during the Term, Termly will provide to Reseller technical support for Software. Provided further that Reseller Customer has a written agreement with Termly under which Termly is obligated to provide technical support to such Customer for the Software as part of the Integrated Products, Termly will also provide third level technical support to Reseller solely to the extent necessary to assist Reseller to resolve the Customer’s support requests for such Software that Reseller cannot resolve after performing its technical support obligations as set forth in Section 8.1. Reseller hereby grants Termly a license to perform such support services under all rights necessary or reasonably desirable for these services’ lawful performance, including the rights to reproduce, modify, test and use the Integrated Products and Reseller Components to the extent necessary or reasonably desirable for these purposes.
- Notwithstanding the provisions of Section 8.2(a) or any other provisions of this Agreement, Termly shall have no obligation to provide technical support for: (a) altered, damaged or modified Software (other than such altered or modified Software as have been altered or modified by or in accordance with the Specifications or Termly’s written directions to Reseller); (b) Software that are not the then current release of the Products available from Termly; (c) Software problems caused by Reseller’s or the End User’s negligence, hardware malfunction, or other causes beyond the control of Termly; (c) Software installed on a hardware or operating system environment that is not supported by Termly; or (e) prerelease or beta Software that are not part of an official Termly beta program.
- Support Contact. Reseller shall appoint one individual within Reseller’s organization who shall have the authority to act on behalf of Reseller in matters pertaining to Reseller’s support requests and to serve as the primary contact between Reseller and Termly with respect to Reseller’s receipt of Termly technical support. Reseller shall initiate all support inquiries and requests through this individual and ensure that he or she has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Reseller shall maintain the same support contact throughout the Term and such additional period, if any, as Termly performs technical support services to Reseller hereunder, except for any change of such contact due to: (a) Termly’s request or (b) the death, disability, resignation or termination of such contact or other circumstances outside Reseller’s reasonable control. Upon Termly’s written request, Reseller shall promptly replace Reseller’s support contact.
- Prohibited Reseller Services. Reseller shall not service, support, maintain, correct, repair, or replace any Software except as and to the extent expressly permitted under this Section 8.
- Fees and Payment.
- Fees. Reseller shall pay Termly for each copy of any Software distributed in or with an Integrated Product the corresponding license fee for that Software in the amounts set forth in Termly’s then current fee list for authorized Reseller distributors, a current copy of which will be provided from time to time by Termly to Reseller (“Fees”). No Fee deductions, credits or allowances may be taken. The Fees are subject to change from time to time in Termly’s sole discretion. Termly will notify Reseller of changes to its applicable fee list, and such changes will become effective thirty (30) days following such notice.
- Expenses. Except where otherwise expressly provided in this Agreement, each party is solely responsible and liable for all costs and expenses it incurs in entering into and performing this Agreement.
- Taxes. All Fees and other amounts payable by Reseller under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Reseller is responsible for all sales, use, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Reseller hereunder, other than any taxes imposed on Termly’s income.
- Payment. Reseller shall make all payments when due under this Agreement as follows:
- within ten (10) days following the end of each calendar month of the Term (each, a “Reporting Period”), Reseller shall pay Termly all Fees accrued during such Reporting Period;
- Reseller shall pay Termly for all service fees, reimbursable expenses, and other amounts payable under this Agreement (other than Fees) within ten (10) days after receipt of Termly’s invoice therefor;
- Reseller shall make all payments in US dollars to the address or account specified by Termly in writing from time to time; and
- Reseller shall pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind, whether under this Agreement, applicable Law, or otherwise and whether relating to Termly’s breach, bankruptcy, or otherwise. Reseller bears all credit risk regarding, and is solely responsible for collecting payment for, all sales and distribution of Integrated Products. Reseller’s inability or failure to collect the purchase price for any Integrated Product does not affect Reseller’s obligation to pay Termly in strict accordance with this Section.
- Late Payment. If Reseller fails to make any payment when due then, in addition to all other remedies that may be available:
- Termly may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
- Reseller shall reimburse Termly for all costs incurred by Termly in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
- if such failure continues for thirty (30) days following written notice thereof, Termly may disable, or withhold, suspend, or revoke its grant of a license of, or performance of services relating to, any Software until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Reseller or any other Person by reason of any such action.
- Recordkeeping and Reporting. Reseller shall:
- maintain books, records and accounts of all transactions and activities covered by this Agreement and permit full examination thereof by Termly and its Representatives; and
- submit to Termly upon receipt of a written request in a computer-readable format acceptable to Termly, then-current, complete, and accurate reports sufficient to verify each of the following for such Reporting Period: (i) the number of copies of Software made by Reseller; (ii) Reseller’s inventory of Software; (iii) Reseller’s inventory of Integrated Products; (iv) all outstanding orders for Integrated Products; (v) all sales, licensing, and other commercial exploitation of Integrated Products, in terms of both unit and dollar volume; and (vi) subject to the terms of this Agreement, all Customer Information Reseller has collected or otherwise acquired.
- Audit and Inspection. On request, during the Term and for one year after the expiration or earlier termination of this Agreement, Reseller shall make available for audit and inspection by Termly or its representatives: (a) all files in Reseller’s possession or control relating to any production, marketing, inventory, sale, licensing, or other transactions of or relating to the Integrated Products; and (b) all Integrated Products and Software in Reseller’s possession or control, including all such Integrated Products and Software then in Reseller’s inventory. Termly may conduct any audit or inspection under this Section at any time during regular business hours. Reseller shall provide cooperation and assistance in connection with all such audits and inspections and make appropriate Reseller personnel available for this purpose.
- Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 10.2 below, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all Specifications, unpublished Documentation, and non-public Marketing Materials are and will remain the Confidential Information of Termly.
- Exclusions. Except for personal information or any third-party information that the Receiving Party is under a contractual or other binding obligation to maintain in confidence Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records, was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
- Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall, during the Term and for a period of two (2) years after the termination of this Agreement:
- not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
- except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section;
- safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
- ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section.
- Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
- Intellectual Property Rights.
- Intellectual Property Ownership. All right, title, and interest in and to the Termly Properties and Third-Party Materials, including all Intellectual Property Rights therein, are and will remain, respectively, with Termly and the respective rights holders in the Third-Party Materials. Reseller has no right or license with respect to any Termly Properties or Third-Party Materials except as expressly licensed hereunder, or the applicable third-party license, in each case subject to the requirements and restrictions set forth in this Agreement. All other rights in and to the Termly Properties and Third-Party Materials are expressly reserved by Termly and the respective third-party licensors. Reseller hereby unconditionally and irrevocably assigns to Termly or Termly’s designee its entire right, title, and interest in and to any Intellectual Property Rights that Reseller may acquire in or relating to any of the Termly Properties (including any rights in derivative works or patent improvements relating thereto), whether acquired by operation of law, contract, assignment, or otherwise.
- Reseller Cooperation and Notice of Infringement. Reseller shall, during the Term: (a) safeguard the Termly Properties (including all copies thereof) from infringement, misappropriation, theft, misuse, and unauthorized access; (b) at Termly’s expense, take all such steps as Termly may reasonably require to assist Termly in maintaining the validity, enforceability, and Termly’s ownership of the Intellectual Property Rights in the Termly Properties; (c) promptly notify Termly in writing if Reseller becomes aware of (i) any actual or suspected infringement, misappropriation, or other violation of Termly’s Intellectual Property Rights in or relating to any of the Termly Properties or (ii) any claim that any Termly Properties, including any production, marketing, distribution, licensing, sale, use or other disposition of any Software, whether or not as incorporated in the Integrated Products or under the Termly Marks, infringes, misappropriates or otherwise violates the rights of any third party; and (d) fully cooperate with and assist Termly in all reasonable ways in the conduct of any Action, including having Reseller’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
- Exclusive Right to Bring or Defend Action. Termly has the sole right and discretion, but not the obligation, to prevent or abate any actual or threatened infringement, misappropriation, or violation of Termly’s or Reseller’s respective rights in, and to attempt to resolve any claims relating to, the Integrated Products or any Termly Properties, including by: (a) prosecuting or defending any Action of any kind; and (b) taking any other lawful action that Termly, in its sole discretion, believes is reasonably necessary to protect, enforce, or defend the validity of Termly’s or Reseller’s rights in the Integrated Products or Termly Properties. Termly has the right to prosecute or defend any such Action in Termly’s own name or, if required by applicable Law, in the name of Reseller, and may join Reseller as a party to such Action. Reseller hereby grants Termly an irrevocable power of attorney, coupled with an interest, to sue in Reseller’s name and stead for purposes of prosecuting or defending such Actions. Termly shall bear its own costs and expenses in all such Actions and have the right to exclusive control over the conduct of the Action and be represented by counsel of its own choice. Reseller shall and hereby does irrevocably and unconditionally waive any objection to Termly’s joinder of Reseller to any Action described in this Section on any grounds whatsoever, including on the grounds of personal jurisdiction, venue, or forum non conveniens.
- Recovery and Settlement. If Termly undertakes the enforcement or defense of any Intellectual Property Rights in or relating to any Integrated Products, any recovery, damages, or settlement amount derived from such Action (whether or not litigated) shall be retained in its entirety by Termly. Termly may settle any such Action, whether by consent order, settlement, or other voluntary final disposition, without the prior written approval of Reseller.
- Representations and Warranties.
- Mutual Representations and Warranties. Each party represents and warrants to the other party that:
- it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
- it has the full right, power and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement;
- the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
- when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
- DISCLAIMER OF WARRANTIES. ALL TERMLY PROPERTIES AND SERVICES, AND ANY OTHER INFORMATION, MATERIALS, OR WORK PRODUCT PROVIDED BY TERMLY ARE PROVIDED “AS IS” AND TERMLY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND TERMLY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TERMLY MAKES NO WARRANTY OF ANY KIND THAT ANY SOFTWARE OR OTHER TERMLY PROPERTIES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET RESELLER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ANY REPRESENTATIONS AND WARRANTIES OF OR RELATING TO THE SOFTWARE ARE MADE DIRECTLY TO END USERS SOLELY UNDER THE TERMS AND CONDITIONS OF THE END USER’S TERMLY TOU. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN RESELLER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
- Termly Indemnification. Termly shall indemnify, defend, and hold harmless Reseller from and against any and all Losses incurred by Reseller arising out of or relating to any Action by a third party (other than an Affiliate of Reseller) to the extent that such Losses directly arise from or relate to any allegation in such Action that Reseller’s exercise of its rights under Section 3 in accordance with the Specifications, Documentation, and this Agreement infringes a US Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
- open source component or other Third-Party Materials;
- incorporation by any Termly Properties of or into, or any combination, operation, or use of any Termly Properties in or with, any technology (including any software, hardware, firmware, system, or network), material or service (other than Integrated Products or Reseller Components) not provided by Termly or specified for Reseller’s use in the Specifications or Documentation;
- Integrated Products or Reseller Components unless, where such Integrated Products or Reseller Components incorporate or are combined with any Termly Properties, such infringement would also have resulted solely from the use of such Termly Properties without their incorporation into or combination with such Integrated Products or Reseller Components;
- modification of any Termly Properties other than: (i) by Termly; or (ii) with Termly’s express written approval and in strict accordance with Termly’s written directions and specifications;
- failure to timely implement any modification, update, or replacement of any Termly Properties made available to Reseller by Termly;
- use of any Termly Properties after Termly’s notice to Reseller of such activity’s alleged or actual infringement, misappropriation, or other violation of a third party’s rights;
- negligence, abuse, misapplication, or misuse of any Termly Properties by or on behalf of Reseller, Reseller’s Representatives, or a third party;
- use of any Termly Properties by or on behalf of Reseller that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Termly’s instructions;
- events or circumstances outside of Termly’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects or malfunctions);
- allegation of facts that, if true, would constitute Reseller’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
- act, omission or other subject matter described in Section 13.2, whether or not the same results in any Action against or Loss by any Termly Indemnitee.
- Reseller Indemnification. Reseller shall indemnify, defend, and hold harmless Termly and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and permitted assigns (each, a “Termly Indemnitee”) from and against any and all Losses incurred by the Termly Indemnitee in connection with any Action by a third party (other than an Affiliate of a Termly Indemnitee) that arise from any allegation in such Action of or relating to:
- any Integrated Products or Reseller Components, provided that, where such Integrated Products or Reseller Components incorporate or are combined with any Termly Properties, such Losses do not arise solely out of or relate solely to the Termly Properties;
- Termly’s compliance with any specifications or directions provided by or on behalf of Reseller to the extent prepared without any contribution by Termly;
- any facts that, if true, would constitute Reseller’s breach of any of its representations, warranties, covenants, or obligations under this Agreement;
- Reseller’s negligence or more culpable act or omission; or
- the performance of any support or other services hereunder by or on behalf of Termly in material compliance with this Agreement.
- Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section 13 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- Mitigation. If any Software is, or in Termly’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Reseller’s use of any Software is enjoined or threatened to be enjoined, Termly may, at its option and sole cost and expense:
- obtain the right for Reseller to continue to reproduce and use the affected Software for the purposes of producing and marketing, distributing, and selling the Integrated Products as contemplated by this Agreement;
- modify or replace the master copy of the affected Software, in whole or in part, to seek to make the Software (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Software under this Agreement; or
- by written notice to Reseller, terminate the licenses granted to Reseller under this Agreement with respect to all or part of the Software, and require Reseller to immediately cease all reproduction, use, marketing, distributing, licensing, and commercialization of Integrated Products, or any Software part or feature thereof.
THIS SECTION 13.4 SETS FORTH RESELLER’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE OR ANY OTHER LICENSOR PROPERTIES) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING COST OF COVER, LOST PROFITS, LOST GOODWILL, LOST USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, RESELLER AGREES THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES SO THAT TERMLY’S MAXIMUM CUMULATIVE LIABILITY AND RESELLER’S EXCLUSIVE REMEDY FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM IN CONTRACT, TORT, FOR INDEMNIFICATION OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY RESELLER TO TERMLY UNDER THIS AGREEMENT DURING THE 2 (TWO) MONTHS PRIOR TO SUCH LIABILITY.
- Term and Termination.
- Term. The term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until the date this Agreement is terminated in accordance with its terms (the Term).
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement, during the Term:
- Termly may without cause, and without incurring any obligation, liability, or penalty by reason of such termination, terminate all or any of: (i) this Agreement; (ii) the rights and licenses granted by Termly hereunder; or (iii) any services to be performed by Termly under this Agreement, in each of the foregoing cases by providing at least thirty (30) days’ prior written notice to Reseller;
- Termly may terminate this Agreement, effective on written notice to Reseller, if: (i) Reseller fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Termly’s delivery of written notice thereof; or (ii) Reseller breaches any of its obligations under Section 2, Section 3.3, Section 4, Section 10, or Section 11.
- either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach;
- either party may terminate this Agreement, effective immediately, if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- Effect of Expiration or Termination. Upon any expiration or termination of this Agreement:
- all Termly TOU licenses and Reseller sublicenses granted to then-existing Customers under this Agreement shall survive in accordance with their terms;
- Reseller shall immediately cease to represent itself as Termly’s authorized reseller or distributor of the Software, and otherwise desist from all conduct or representations that might lead the public or trade to believe that Reseller is authorized by Termly to sell or distribute the Software or Integrated Products;
- subject only to Reseller’s continued right to retain and use one copy each of the Software, Specifications, and Documentation solely to perform its support obligations to then-existing Customers pursuant to this Agreement:
- all licenses granted to Reseller hereunder will also expire or terminate;
- Reseller shall cease all use of Software and other Termly Properties, and all copies thereof, in whole and in part, including in any production, marketing, distribution, licensing, sale, maintenance, support or use of the Integrated Products;
- Reseller shall within three (3) days after such expiration or termination: (A) return to Termly all documents and tangible materials containing, reflecting, incorporating, or based on the Termly Properties; and (B) permanently erase the Termly Properties from its computer systems; and
- Termly shall within three (3) days after such expiration or termination: (A) return to Reseller all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Reseller’s Confidential Information; and (B) permanently erase Reseller’s Confidential Information from its computer systems;
- if Termly terminates this Agreement pursuant to Section 15.2(b) or Section 15.2(c), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Reseller shall pay such Fees, together with all previously-accrued but not yet paid service charges and reimbursable expenses, within three (3) days after the effective date of such termination; and
- Reseller shall certify to Termly in a written instrument signed by Reseller’s duly authorized executive officer that it has complied with the requirements of this Section 15.3.
- Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 15.7, Section 2.2, Section 3.3(b) through Section 3.3(f), Section 4, Section 8.1, Section 8.2, Section 10, Section 11, Section 12, Section 13, Section 14, Section 15.3 and Section 16.
- Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, in the case of Reseller, except as expressly permitted under Section 3.3, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
- Notices. Any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a party to such address or such other person that such addressee party may designate from time to time on or prior to the Effective Date. Notices sent in accordance with this Section 16.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3rd) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid..
- Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Assignment. Reseller shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Termly’s prior written consent, which consent Termly shall not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Reseller (regardless of whether Reseller is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Termly’s prior written consent is required. No delegation or other transfer will relieve Reseller of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
- Force Majeure.
- No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
- Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party will give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each party. No waiver by any party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
- Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
- Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 10, or Section 12 or, in the case of Reseller, Reseller’s obligations under Section 3.3, Section 4, Section 6, or Section 11, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and court costs from the non-prevailing party.
- Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.