Date: January 2025
This Single Customer Reseller Agreement (“Agreement”), effective as of the Effective Date, is entered into and between Birchgrove Software, Inc. (dba ActivTrak) (“Vendor”), a Delaware corporation, with its principal place of business at 1501 South MoPac Expressway Suite 155 Austin, TX 78746 US, and the reseller XYZ, with its principal place of business XYZ identified on the Order Form and its Affiliates (“Reseller”), and is subject to the terms and conditions thereof. “Reseller” is the entity that receives the Products (defined below) quote from Vendor and issues Vendor a Purchase Order (defined below).
1. AUTHORIZATION. Vendor hereby grants to Reseller the right and license to promote, market, resell, distribute, and ship the Products to end user (“Customer”). “Products” shall mean the hardware, software, services, support, and/or other services and/or products set forth on Vendor’s quote to Reseller.
2. ORDERING AND PAYMENT. If Reseller purchases the Products for resale to the Customer, Reseller shall issue a purchase order (“Purchase Order”) to Vendor if required. Reseller’s price for the Products is set forth on the quote Reseller receives from Vendor and Reseller’s Purchase Order. Reseller shall pay all undisputed amounts for any Purchase Orders in U.S. currency by check, credit card or wire transfer net thirty (30) days after receipt of Vendor’s accurate, complete invoice. Reseller shall have the right, in its sole discretion, to determine the prices for Products sold by Reseller to Customer, adhering to Vendor’s MAP policy listed in Exhibit B.
3. VENDOR’S & RESELLER’S RESPONSIBILITIES.
3.1 Shipping Procedure. Vendor shall ship all ordered Products as directed by Reseller. If not specified by Reseller, Vendor shall select the mode of shipment and the carrier. Title and risk of loss or damage shall pass from Vendor when the Products are delivered to Reseller or Customer. Vendor will accept Reseller’s and Customer’s returns of factory sealed and unopened Products, without penalty or restocking fee, if returned within thirty (30) days after delivery.
3.2 Technical Support, Maintenance and Renewal. Reseller will not provide technical support and maintenance for the Products to Customer. All support and maintenance for the Products shall be provided directly by Vendor to Customer. Vendor is solely responsible for authorizing any additional Product sales to Customer and authoring any renewal.
3.3 Compliance with Laws; Export Regulations. Reseller shall comply with all applicable laws and regulations in performing its obligations under this Agreement, including without limitation all applicable export or re-export laws.
3.4 Warranties & End User Agreement. Vendor’s standard warranties apply to the use of the Products. All applicable end user agreements, licenses, warranties, and end user documentation shall be between Vendor and Customer, and Reseller shall have no responsibility in connection therewith.
4. LIMITATION ON DAMAGES. Except in connection with each party’s obligations as provided in Sections 5, 8, and 9, Vendor, Optiv and their affiliates, shall not be liable for any indirect, incidental, consequential, or special damages (including lost profits) sustained or incurred in connection with this Agreement and/or the resale of the Products, regardless of the form of action and whether such damages are foreseeable or known in advance to be possible. Except in connection with each party’s obligations as provided in Sections 5, 8, and 9, Vendor’s, Optiv’s and their affiliates’, liability in connection with this Agreement and/or the resale of the Products, shall not exceed the amounts paid to Vendor by Reseller under this Agreement during the twelve (12) month period immediately preceding the date a party notifies the other of the claim. This limitation applies to all causes of action, including without limitation any action for breach of contract, breach of warranty, negligence, strict liability, misrepresentation, and other torts. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
5. INDEMNIFICATION. Vendor will indemnify, protect, defend, and hold harmless Optiv and their affiliates, from and against any and all costs, liabilities, claims, damages, lawsuits, actions, and expenses (including without limitation attorneys’ fees) incurred by any such party in connection with any third party claim that the Products infringe upon or otherwise violate a patent, copyright, trademark, trade secret, or other intellectual property right of a third party. Vendor represents and warrants that that to the best of its knowledge it is the sole and exclusive owner of all intellectual property rights in the Products or has a valid license to such intellectual property rights in the Products.
6. TERM & TERMINATION. The term of this Agreement shall be for the duration of the transaction with the Customer (“Term”). Each party may terminate this Agreement: (a) if the other party breaches this Agreement and fails to cure the breach within ten (10) business days after receiving written notice of such breach; or (b) for convenience by providing ten (10) business days prior written notice to the other party. The termination of this Agreement shall not discharge or relieve each party from any obligation which accrued prior to termination.
7. INTELLECTUAL PROPERTY. Reseller shall have a non-exclusive, worldwide, royalty-free, limited license to use the Vendor’s trademarks in its advertising and promotional materials directly in connection with the resale of the Products to Customer during the Term. Nothing in this Agreement shall be deemed an assignment of, or otherwise restrict a party’s use of, such party’s trademarks and other intellectual property, all of which trademarks and other intellectual party shall continue to be owned by such party. Each party may not use the other party’s name or trademarks in or on any press releases, marketing materials, websites, or other public announcements without the other party’s prior consent.
8. CONFIDENTIAL INFORMATION. A party (“Receiving Party”) may, during the course of this Agreement, acquire information or knowledge of the other party (“Disclosing Party”) that such Disclosing Party designates in writing is confidential or that a reasonable person would understand to be confidential (“Confidential Information”). The Receiving Party will, during the term of this Agreement and for three (3) years thereafter, treat the Disclosing Party’s Confidential Information as confidential and will not disclose any such Confidential Information to any third party nor use such Confidential Information other than in connection with this Agreement. “Confidential Information” shall not include information that the Receiving Party can document was independently developed by the Receiving Party, is or becomes publicly available without breach of this Agreement, is known prior to disclosure by the Receiving Party, or is acquired by the Receiving Party from a third party free of disclosure obligations, as well as the Product and end user Agreements. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information if required by applicable law, rule or court order, provided that the Receiving Party gives the Disclosing Party prompt notice thereof and cooperates, at the Disclosing Party’s expense, in any attempt to obtain a protective order or other confidential treatment of such disclosure.
9. NON-SOLICITATION. Reseller recognizes that ActivTrak expends considerable time and effort training ActivTrak employees and, therefore, Reseller agrees that it will not, either for itself or any other person or organization, hire away or attempt to hire away any employee of ActivTrak without ActivTrak’s express prior written consent during the Term and for a period of twelve (12) months following expiration or termination of the Agreement for any reason. In the event Reseller either directly or indirectly hires away any employee of ActivTrak, with or without ActivTrak’s consent, it shall pay as liquidated damages to ActivTrak an amount equal to six (6) times the highest gross monthly compensation paid by ActivTrak to such employee.
10. ASSIGNMENT. Except as set forth below, a party may not assign or transfer this Agreement or their rights or duties hereunder, in whole or in part, by operation of law or otherwise, without the other party’s prior written consent. Notwithstanding the foregoing, either party may, without consent, assign or delegate any of their rights or obligations under this Agreement in connection with a merger in connection with an acquisition of all or substantially all of its assets or equity interests, or to any Reseller affiliate.
11. MISCELLANEOUS. Vendor and Reseller are independent contractors and not joint venturers, partners, employees, or agents of the other. If any term of this Agreement is held invalid or unenforceable for any reason, the remaining terms of this Agreement shall continue in full force and effect and a substitute term will be added which most closely approximates the intent of the invalid term. Any delay, omission, or failure to exercise any right or remedy under this Agreement shall not constitute a waiver. If a party brings legal action to enforce this Agreement, the prevailing party in such action shall be entitled to receive all costs and expenses, including but not limited to attorneys’, accountants’, and other experts’ fees and expenses, incurred by the prevailing party in connection with such action. All notices shall be in writing and delivered to the other party to the addresses listed on the first page of this Agreement by first class mail, postage prepaid or by nationally-recognized overnight courier. This Agreement may be executed by hand or electronically and in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or other electronic transmission, or any other reliable means shall be effective for all purposes as delivery of a manually executed original counterpart. This Agreement shall be construed and enforced in accordance with the laws of the State of Texas , without regard to conflicts of law principles. The parties exclude in its entirety the application to the Agreement of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement is the complete agreement between the parties related to the subject matter hereof. This Agreement may not be modified except in a writing executed by the parties. Any sections of this Agreement intended to survive termination or expiration of this Agreement will so survive. The relationship between Reseller and Vendor is not exclusive. Only the entity that issues a Purchase Order to Vendor will be liable under this Agreement with respect to such Purchase Order and the applicable transaction related to such Purchase Order. There shall be no joint and several liability with respect to Reseller under this Agreement. Upon Reseller’s request, Vendor will provide Reseller with the prices for all available Products in a Microsoft Excel spreadsheet, which will include both Vendor’s list price and Reseller’s discounted price.
RESELLER:
By:__________________________________
Title:_________________________________
Date:________________________________
VENDOR:
By: __________________________________
Title:_________________________________
Date:________________________________
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Exhibit A
Pricing and Program Structure
PRICING AND PROGRAM STRUCTURE
A. Pricing. www.activtrak.com/pricing
B. Reseller Discount Structure
| USER COUNT | APPLICABLE DISCOUNT |
| 5-100 Users | 10% |
| 101-500 Users | 15% |
| 501-1,000 Users | 20% |
| 1001+ Users | To be Reviewed |
C. Price Changes. ActivTrak reserves the right to modify Application prices listed on the Price List
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Exhibit B
MINIMUM ADVERTISED PRICE POLICY
A. POLICY STATEMENT. ActivTrak, in its sole discretion, reserves the right to discontinue doing business with any authorized reseller of ActivTrak that advertises any ActivTrak products or services covered by this MAP policy at a price lower than set forth in the MAP.
B. GENERAL GUIDELINES. All ActivTrak products and services are covered by this Policy.
ActivTrak recognizes that authorized resellers are free to make their own decisions to advertise and sell any ActivTrak product and services at any price they choose, without consulting or advising ActivTrak. Similarly, ActivTrak will exercise its right to make its own decisions regarding the ActivTrak its reseller programs, including but not limited to supplemental marketing materials, new product availability, or future promotional, joint marketing, or sponsorship programs.
The MAP Policy applies to advertised prices, not the price at which ActivTrak products and services are actually sold or offered for sale.
ActivTrak believes in maintaining a well-regulated and fair marketplace for all its authorized resellers.
C. ADVERTISING GUIDELINES. The MAP Policy applies to all advertisements of ActivTrak products and services in any and all media, including but not limited to flyers, posters, coupons, mailers, inserts, newspapers, magazines, catalogs, television, radio, and public signage, as well as internet sites, social media sites, apps, or any other electronic media.
Website features such as “click for price,” automated “bounce-back” pricing e-mails, pre-formatted e-mail responses, forms, automatic price display for any items prior to being placed in a customer’s shopping cart and other similar features are considered to be communications initiated by the dealer /partner (rather than by the customer) and thereby constitute “advertising” under this MAP Policy.
It shall not be a violation of this MAP Policy to advertise that a customer may “call for price” or “email for price,” or to use similar language, specifically with respect to ActivTrak products, so long as no price is listed. This MAP Policy also applies to any activity which ActivTrak determines, in its sole discretion, is designed or intended to circumvent the intent of this MAP Policy, such as solicitations for “group purchases” and the like. It shall not be a violation of this MAP Policy to advertise in general that the reseller has “the lowest prices” or will match or beat its competitors’ prices, or to use similar phrases; so long as the reseller does not include any advertised price below MAP and otherwise complies with this MAP Policy.
From time to time, ActivTrak may authorize resellers to advertise MAP products and services at prices lower than the MAP retail price. In such events, ActivTrak reserves the right to modify or suspend the MAP retail price with respect to the affected products and services for a specified period of time by providing advance notice to all resellers of such changes.
From time to time, ActivTrak may offer a direct manufacturer’s rebate to customers. In such events, it shall not be a violation of this MAP Policy to advertise the availability of the manufacturer’s rebate, provided that:
i. the advertisement includes a MAP-compliant price, the rebate amount, and the net price after manufacturer’s rebate in the same type size and style.
ii. an asterisk is placed next to the net price after manufacturer’s rebate; and
iii. “after manufacturer’s rebate” appears in the same area of the advertisement as the advertised product.
D. BUNDLING GUIDELINES. “Bundling” or advertising ActivTrak products or services for sale together with other products will violate this MAP Policy when:
i. the effective or stated price of the bundle represents a discount of greater than 15% of the MAP; or
ii. the product(s) or services bundled with MAP products or services violate ActivTrak’s Intellectual Property rights; or
iii. the product(s) or services bundled with MAP products or services violate the ActivTrak’s Trademark & Brand Policy; or
iv. the product(s) or services bundled with MAP products or services include words, packaging, graphics, or other indicia which may create customer confusion as to the source of the product(s); or
v. the effective or stated discount is greater than 15% of the highest priced item in the bundle.
E. POLICY ENFORCEMENT. ActivTrak’s MAP Policy Administrator, or any executive of ActivTrak, are solely responsible for determining whether a violation of the MAP Policy has occurred, as well as determining appropriate remedies. Waivers to this MAP Policy may be granted in ActivTrak’s sole discretion by the MAP Policy Administrator in writing. In the event that the MAP Policy Administrator authorizes a waiver to the MAP Policy, the applicable authorized reseller must strictly adhere to the terms of the waiver letter. Deviation from the terms of a waiver letter is a violation of the MAP Policy.
ActivTrak reviews the advertised prices of resellers, either directly or via the use of third-party agencies or tools.
The MAP Policy will be enforced solely by ActivTrak in its sole discretion. Authorized resellers have no right to enforce the MAP Policy on behalf of ActivTrak. Violations of this Policy may result in termination of our business relationship to extent permitted by law.
16. NON SOLICITATION OF ACTIVE CLIENTS
A. Non-Solicitation of Direct Clients
The Reseller agrees that, during the term of this Agreement and for a period of 1 year following its termination or expiration, it will not directly or indirectly solicit, recruit, or attempt to engage any of ActivTrak’s active direct clients for the purpose of offering, selling, or providing services or products that are competitive with the ActivTrak’s offerings.
B. Definition of Active Direct Clients
For the purposes of this Agreement, “Active Direct Clients” refers to any current clients of ActivTrak with whom the ActivTrak has an ongoing business relationship at the time of this Agreement and during its term, excluding clients introduced to ActivTrak by the Reseller.
C. Avoidance of Channel Conflict
The Reseller shall ensure that all business development and sales efforts for ActivTrak’s products or services are directed toward prospective clients or end users that are not already direct clients of ActivTrak, in order to avoid any potential channel conflicts.
D. Remedies for Breach
In the event of a breach of this section, ActivTrak reserves the right to seek all available remedies, including but not limited to injunctive relief and recovery of any damages incurred as a result of the Reseller’s actions