BY ACCESSING THE SERVICES, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY this Reseller Agreement (the “Agreement”), effective immediately (the “Effective Date”), between Birch Grove Software, Inc. dba ActivTrak, a Delaware corporation, with a principal place of business at 3101 Bee Caves Rd, Suite 200, Austin, TX, 78746 (“ActivTrak” or “Licensor”) and Reseller.
Reseller will re-sell ActivTrak’s Application(s) on a stand-alone basis to End Users in the Territory (as such terms are defined below), pursuant to the terms and conditions of this Agreement. The specific ActivTrak Application(s) subject to this Agreement are identified in Schedule 1 to this Agreement.
1.1. “Application(s)” means collectively the ActivTrak software, as set forth in the Price List in Schedule 1, provided by Reseller solely as a SaaS offering, and either directly or indirectly to End Users, as set forth in the Price List identified in Schedule 1, and all third-party software that ActivTrak may have purchased or licensed from third parties and delivered as part of the Application, as well as any future Updates provided by ActivTrak.
1.2. “Derivative Works” means a revision, modification, translation, abridgment, condensation or expansion of or addition to any Application(s) or Documentation or any work that employs preexisting code from the Applications or, if prepared in violation of this Agreement or without the consent of ActivTrak, would infringe the intellectual property rights of ActivTrak.
1.3. “Documentation” means any and all documentation that pertains to the Application(s).
1.4. “End User(s)” means a party to whom Reseller directly or indirectly markets and distributes a Application who will utilize the Application.
1.5. “Errors” means incorrect code in the Application or an incorrect statement or diagram in Documentation that produces results not in conformity with the applicable Documentation.
1.6. “New Versions” means new releases and new versions of the Application by ActivTrak.
1.7. “Support and Maintenance Services” means collectively the support and maintenance services made generally available by ActivTrak to End Users, and as specifically referenced in the EULA.
1.8. “Territory” means Territory as defined in Schedule 1.
1.9. “Update(s)” means modifications, revisions, or enhancements to an Application, other than New Versions, typically to correct Errors.
2. LICENSE GRANT
2.1. License. Subject to all the terms of this Agreement, ActivTrak grants to Reseller a limited, non-exclusive, non-transferable license to:
2.1.1. Access and use the Applications and Documentation only for the purpose of demonstrating to prospective End Users located within the Territory.
2.1.2. Sell subscriptions to Applications, as provided herein, directly to End Users located within the Territory. For avoidance of doubt, Reseller shall have not right to sell licenses Applications indirectly to End User through third parties.
2.1.3. Sell subscriptions to Applications, as provided herein, directly to End Users located within the Territory. For avoidance of doubt, Reseller shall have not right to sell licenses Applications indirectly to End User through third parties.
2.2. Retention of Rights. Notwithstanding anything else in this Agreement, as between the parties:
2.2.1. ActivTrak and its licensors retain all title to, and, except as expressly and unambiguously licensed herein, all rights to the Applications, all copies and Derivative Works thereof and all related Documentation and materials (all of which are hereby assigned to ActivTrak);Nothing in this Agreement shall be construed as limiting in any manner ActivTrak’s marketing or distribution activities or ActivTrak’s appointment of other resellers, dealers, distributors, licensees, or agents in the Territory that agree in writing to be bound by substantially similar terms as this Agreement.
3. LICENSE RESTRICTIONS
3.1. Indirect Reseller Agreement. Reseller will ensure that each Indirect Reseller is bound in advance, in writing, by terms and conditions no less protective of ActivTrak than the terms contained within this Agreement.
3.2. End User Agreement. No distribution or license of the Applications by Reseller shall be made except pursuant to a valid written agreement that governs the End Users right to use the Applications (“End User Agreement”). Such End User Agreement shall include (at a minimum) substantially the same restrictions as are contained in ActivTrak’s then-current Purchase & License Agreement, located at WITHIN THE PRODUCT. Reseller is responsible for ensuring (i) that each End User enters into the End User Agreement, and (ii) the End User Agreement is legally binding upon the End User. ActivTrak reserves the right to refuse or revoke licenses to End Users if ActivTrak reasonably believes the End User is in breach of the End User Agreement.
4. ORDERS, ACCEPTANCE, DELIVERY AND PAYMENT; ACTIVTRAK’S OBLIGATIONS
4.1. Orders. Reseller may place an order by submitting a purchase order to ActivTrak. ActivTrak reserves the right to reject any orders that do not comply with the terms of this Agreement. The terms and conditions of this Agreement and no others shall apply to all Applications ordered by Reseller notwithstanding any different or additional terms on any purchase order or other document, and each order hereunder shall specifically refer to this Agreement.
4.2. Acceptance. Applications shall be deemed “Accepted” by Reseller upon receipt by either Reseller, Indirect Reseller, or End User of the Application(s) and Applications shall be deemed “Accepted” upon receiving the keys or link to download the Applications.
4.3. Application Delivery. Reseller shall obtain Application, suitable for use, duplication, and distribution of Applications to End Users, consistent with the purposes of this Agreement, by downloading electronic versions of Applications from ActivTrak’s web site, or as provided by ActivTrak. Upon download, ActivTrak will deliver to Reseller the license file for each such Application, as applicable.
4.4. Fees, Charges and Payment; Audit Rights.
4.4.1. Fees payable by Reseller for Applications distributed by Reseller are set forth in the purchase order authorized by ActivTrak. Payment shall be made in US Dollars or as otherwise stated in the applicable invoice (e.g. Euros) within thirty (30) days of each invoice date.
4.4.2. Reseller will pay all charges and shall be responsible for all taxes (except ActivTrak’s net U.S. income taxes) in connection with the subject matter of this Agreement, together with all shipping costs FOB San Mateo, California, customs duties, and other governmental assessments, if any.
4.4.3. ActivTrak will invoice Reseller upon provision of licenses. Any and all payments made by the Reseller pursuant to this Agreement are nonrefundable. ActivTrak reserves the right to terminate this Agreement if actual payment of an undisputed invoice has not been received within the aforementioned 30 day period.
4.4.4. Audit Rights. Reseller shall keep such records relating to its distribution of Applications as are necessary to determine whether the applicable fees have been paid in accordance with this Agreement. Such records shall be available at Reseller’s place of business for audit by ActivTrak or its designated representative upon fifteen (15) business days advance written notice, no more than twice each year during the term of this Agreement. ActivTrak or its designated representative shall have the right to make and keep such copies of Reseller’s records as it may deem necessary and appropriate in the conduct of such audit, but shall keep such information confidential except pursuant to legal enforcement of rights hereunder. In the event fees have been underpaid, Reseller shall reimburse ActivTrak for all such underpaid amounts within ten (10) days after receiving a written request. If the variance is more than five percent (5%) for the period under review, Reseller shall also pay ActivTrak for its documented audit costs.
4.5. ActivTrak’s Obligations. During the term of this Agreement:
4.5.1. ActivTrak will have the right to change or modify any Application at any time with sixty (60) days’ prior written notice to Reseller.
4.5.2. ActivTrak may, at its own expense and discretion, provide Reseller with marketing and technical information concerning the Applications, which may include electronic copies of brochures, instructional material, advertising literature, and other Application data. ActivTrak retains all right, title, and interest in and to all marketing materials that it provides to Reseller under this Agreement.
4.5.3. Reseller shall be responsible for responding to help desk calls, providing basic troubleshooting, and addressing configuration questions for the Applications from End Users. ActivTrak shall be responsible for providing Maintenance and Support Services for the Applications. To the extent escalation is required to ActivTrak, Reseller will provide ActivTrak with a written summary of the End User issue.
5. RESELLER COVENANTS AND REPRESENTATIONS
5.1. Covenants and Representations. Except as expressly and unambiguously provided herein and as a condition of Reseller’s license hereunder, Reseller represents, warrants, and agrees:
5.1.1. Not to modify, create any Derivative Work of, include in or integrally incorporate into any other software or make or distribute any copies of, the Applications, except as expressly permitted hereunder.
5.1.2. Not to delete, alter, add to, or remove, in and on any Applications and media the name of the Application (except as expressly permitted in Schedule 1) and any copyright or other proprietary notices appearing in or on any copy, media or master or package materials provided by ActivTrak, or which may be reasonably required by ActivTrak at any time.
5.1.3. Except as permitted under local law, not to reverse assemble, decompile, reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure or organization) from the Applications or from any other information provided by ActivTrak to Reseller.
5.1.4. To comply with all laws and regulations relevant to the marketing, sale and distribution of the Applications, including all applicable health and safety laws. To the extent that Reseller uses any trademarks, trade names, and other Application names of ActivTrak relating to the Applications in its distribution efforts, Reseller will use the then- current names used by ActivTrak for the Applications (but will not represent or imply that it is ActivTrak or is a part of ActivTrak). Reseller will not otherwise use or register (or make any filing with respect to) any trademark, name or other designation relevant to the subject matter of this Agreement anywhere in the world.
5.1.5. To use commercially reasonable efforts, as determined by Reseller in its reasonable discretion, to keep ActivTrak informed as to any problems encountered with the Applications and any resolutions arrived at for those problems, and to communicate promptly to ActivTrak any and all modifications, design changes or improvements of the Applications suggested by any customer. Reseller further agrees (i) that ActivTrak shall have and is hereby assigned any and all right, title, and interest in and to any such suggested modifications, design changes, or improvements of the Applications, without the payment of any additional consideration therefor either to Reseller, or its employees or customers; and (ii) that it will cooperate reasonably with ActivTrak in this regard, at ActivTrak’s sole expense.
5.1.6. To conduct its business in a manner that favorably reflects upon the Applications. When soliciting licenses, advertising, marketing, and making available the Applications, and otherwise performing under this Agreement, Reseller will: (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) not make any representations or warranties concerning the Applications, except as set forth in printed marketing collateral or documentation furnished by ActivTrak; (c) conduct business in a manner that reflects favorably at all times on the good name, good will, and reputation of ActivTrak; and (d) comply with all applicable federal, state, and local laws and regulations. In addition, Reseller agrees to comply with ActivTrak’s Minimum Advertised Pricing (MAP) Policy, located at ADD LINK.
5.1.7. To use, in addition to and without in any way limiting Reseller’s other obligations hereunder, all reasonable methods to protect ActivTrak’s rights with respect to the Applications and ActivTrak Proprietary Information (as defined below) as it uses to protect its own or any third-party’s software, confidential information or rights, but in any event such protection methods shall be no less than commercially reasonable methods for protection.
5.1.8. To comply with all Reseller policies and procedures made available to Reseller by ActivTrak.
6. TERM AND TERMINATION
Term. The initial term of this Agreement (“Initial Term”) commences on the Effective Date and shall continue until expiration of the stated term (“Term”) in the applicable Order Form or as otherwise terminated pursuant to this Agreement. This Agreement will automatically renew for additional terms equal in duration to the initial Term (each a “Renewal Term”), unless and until either party gives the other notice of non- renewal at least thirty (30) days prior to the end of the then-current Term or Renewal Term.
6.1. Termination for Cause. This Agreement may be terminated by a party for cause immediately upon the occurrence of any of the following events:
6.1.1. If the other party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days of written notice describing the breach; or
6.1.2. If the other party shall seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against the other party and not dismissed within one hundred twenty (120) days.
6.2. Termination Without Cause. This Agreement may be terminated by ActivTrak without cause upon thirty (30) days advance written notice to the Reseller.
6.3. Effects of Termination. Upon termination of this Agreement by either party as permitted by Section 6.2, or naturally at the end of the Term (a) all rights and licenses of Reseller hereunder shall terminate, except that End User licenses and subscriptions granted in accordance with this Agreement will remain in effect in accordance with their terms and provided that Distributor is specifically prohibited from renewing any such licenses or subscriptions following termination of this Agreement; (b) each party will immediately return to the other party all proprietary information, catalogues, and literature in its possession, custody, or control in whichever form held (including all copies or embodiments thereof), and will cease using any trademarks, service marks, and other designations of the other party; and (c) except as provided herein or elsewhere in this Agreement, the provisions of this Agreement shall remain in effect.
6.4. Remedies. Termination is not the sole remedy under this Agreement and, whether or not termination is effected, all other remedies will remain available.
7.1. Reseller agrees that the Applications and Documentation, and all code, inventions, algorithms, know-how and ideas it obtains from ActivTrak and all other business, technical and financial information it obtains from ActivTrak are the confidential property of ActivTrak and its licensors (“ActivTrak Proprietary Information”). ActivTrak agrees that Reseller’s Application, and all code, inventions, algorithms, know-how and ideas it obtains from Reseller and all other business, technical and financial information it obtains from Reseller are the confidential property of Reseller and its licensors (“Reseller Proprietary Information”). Except as expressly and unambiguously allowed herein, each party will hold in confidence and not use or disclose any proprietary information of the other party except for the purposes of this Agreement, and shall similarly bind its employees in writing. The parties’nondisclosure obligations shall not apply to information if it (a) is already in the public domain at the time of disclosure or becomes available to the public through no breach of this Agreement; (b) was lawfully in the receiving party’s possession, without obligation of confidentiality, prior to receipt from the disclosing party; (c) is received independently from a third party free to lawfully disclose such information to the receiving party; or (d) is independently developed by the receiving party without reference to the other party’s Proprietary Information, as evidenced by business records.
8.1. ActivTrak shall defend Reseller against any claim, demand, suit, or proceeding (“Claim”) made or brought against Reseller by a third party alleging that the use of any Application as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Reseller for any damages finally awarded against Reseller, and for reasonable attorney’s fees incurred by, Reseller in connection with any such Claim; provided, that Reseller promptly gives ActivTrak written notice of the Claim; gives ActivTrak sole control of the defense and settlement of the Claim (provided that ActivTrak may not settle any Claim unless the settlement unconditionally releases Reseller of all liability); and provides to ActivTrak all reasonable assistance, at ActivTrak’s expense.
8.2. Indemnification by Reseller. Reseller shall defend ActivTrak against any Claim made or brought against ActivTrak by a third party resulting from Reseller’s breach of this Agreement, including any warranties contained herein, and shall indemnify ActivTrak and ActivTrak for any damages finally awarded against, and for reasonable attorney’s fees incurred by, ActivTrak in connection with any such Claim; provided, that ActivTrak; promptly gives Reseller written notice of the Claim; gives Reseller sole control of the defense and settlement of the Claim (provided that Reseller may not settle any Claim unless the settlement unconditionally release ActivTrak of all liability); and provides to Reseller all reasonable assistance, at Reseller’s expense.
9. LIMITED WARRANTY; DISCLAIMER
ACTIVTRAK WARRANTS, SOLELY TO RESELLER, THAT THE THEN-CURRENT, UNMODIFIED VERSION OF THE APPLICATIONS PROVIDED BY LICENSOR TO RESELLER WILL OPERATE IN ALL MATERIAL RESPECTS IN CONFORMITY TO LICENSOR’S PUBLISHED DOCUMENTATION FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF ACCEPTANCE OF A APPLICATION IN ACCORDANCE WITH SECTION 4.2. IF A APPLICATION DOES NOT PERFORM AS WARRANTED, RESELLER’S SOLE REMEDY, AT LICENSOR’S OPTION, WILL BE THE REPAIR OR REPLACEMENT OF THE NON-CONFORMING APPLICATION OR PERFORMANCE OF ANY SERVICE. THE FOREGOING LIMITED WARRANTY OF CONFORMITY SHALL NOT APPLY TO ERRORS OR OTHER PROBLEMS ARISING OUT OF (I) (UNLESS CAUSED BY LICENSOR) DISASTER, ACCIDENT, NEGLIGENCE OR MISUSE AFTER DELIVERY OF THE APPLICATION OR SERVICE TO RESELLER, OR (II) MODIFICATIONS TO ANY APPLICATION OR SERVICE NOT DONE OR EXPRESSLY AUTHORIZED IN WRITING BY LICENSOR. LICENSOR DOES NOT REPRESENT THAT THE APPLICATION OR SERVICE IS ERROR-FREE OR WILL SATISFY ALL OF RESELLER’S OR ITS INDIRECT RESELLER’S OR END USER’S REQUIREMENTS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR THE FOREGOING WARRANTY, LICENSOR MAKES NO WARRANTIES TO ANY PERSON WITH RESPECT TO THE APPLICATIONS OR ANY SERVICES OR LICENSES AND DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. LICENSOR ALSO MAKES NO WARRANTY REGARDING NON- INTERRUPTION OF USE. RESELLER WILL HANDLE AND BE RESPONSIBLE FOR ALL WARRANTY RETURNS FROM ITS INDIRECT RESELLER’S AND END USERS.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL LICENSOR BE LIABLE TO RESELLER OR ANY THIRD PARTY OR END USER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR CONTINGENT DAMAGES INCLUDING LOSS OF PROFITS, OR ANY AMOUNTS IN EXCESS OF THE FEES ACTUALLY PAID TO LICENSOR BY RESELLER DURING THE PRIOR 12 MONTHS (THE FOREGOING BEING COLLECTIVELY CALLED “DAMAGES”) INCURRED BY RESELLER OR ANY OTHER THIRD PARTY. SUCH NON-LIABILITY FOR DAMAGES SHALL APPLY WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR ANY OTHER SUCH THEORY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY TO A PERSON.
Subject to the provisions of this Section 11, during the term of this Agreement, Reseller will have the right to advertise Applications with ActivTrak’s trademarks, trade names, service marks, and logos of ActivTrak (“ActivTrak Trademarks”), solely in connection with the solicitation of orders for licenses, subject to ActivTrak’s prior inspection and written approval. All representations of ActivTrak Trademarks that Reseller intends to use will first be submitted to ActivTrak for approval (which will not be unreasonably withheld) of design, color, and other details, or will be exact copies of those used by ActivTrak. Reseller will fully comply with all guidelines communicated by ActivTrak concerning the use of ActivTrak Trademarks including ActivTrak’s standard Trademark Usage Guidelines provided by ActivTrak. Except as set forth in this Section 11, nothing contained in this Agreement will grant or will be deemed to grant to Reseller any right, title, or interest in or to ActivTrak Trademarks.
12. GENERAL PROVISIONS
12.1. Assignment. Neither party may assign this Agreement or any right or obligation hereunder without the other party’s prior written consent, provided that ActivTrak may assign this Agreement in the event of a merger or consolidation or the purchase of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
12.2. Foreign Corrupt Practices Act and Anticorruption Laws. Each party agrees in connection with this Agreement to comply with the U. S. Foreign Corrupt Practices Act (the “FCPA”), and all other applicable anticorruption laws (i.e., U.K. Bribery Act of 2010 and local anticorruption laws). Each party further agrees that it, and its employees, officers, directors, principals, agents, brokers and Affiliates shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment or an offer to pay, or offer a gift, promise to give, or authorize the giving of a bribe or, anything of value for the purpose of influencing an act or decision of any government official or other person (including a decision not to act) or inducing an official or other person to improperly use his/her influence to affect any such governmental act or business decision in order to assist in obtaining, retaining or directing any business, or securing any improper advantage. Each party shall have the right to audit the other party’s compliance with this provision during normal business hours no more than once per annum and upon at least fourteen (14) business days’ prior written notice. Each may be required to annually certify compliance with this provision upon written request by the other party. Failure to comply with this provision shall be considered a material breach of the Agreement.
12.3. No Partnership. The parties undertake their respective obligations under this Agreement as independent contractors. This Agreement does not, and is not intended to, create any employment, agency, distributorship, franchise, joint venture, legal partnership or other similar legal relationship between Reseller and ActivTrak. Neither party will have any right or authority to act on behalf of, or to bind, the other party and neither party will represent to any third party that it has such right or authority.
12.4. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Texas. Any dispute or disagreement arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located within the County of Travis, Texas, and both parties hereto hereby irrevocably consent to venue and personal jurisdiction in such courts.
12.5. Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the parties may specify from time to time by written notice to the other party.
12.6. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
12.7. Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has accrued.
12.8. 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. 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.
12.9. Entire Agreement. This Agreement together with all Schedules, each of which is hereby incorporated by reference, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.