1. DEFINITIONS. The following terms shall have the following meanings:
“Company General Terms” means the then current standard terms and conditions applicable to the Company Services found here: https://www.whitehatsec.com/terms-conditions/general-terms/, including any product specific terms that are included in Company Quotes related to the applicable Company Services. All capitalized terms in the Reseller Agreement not defined therein shall have the meanings set forth in the Company General Terms for such terms.
“Company Quote” means a quote provided by Company to Reseller that sets forth (i) the Company Services to be purchased by a Customer, (ii) any additional terms applicable to the particular Company Services to be purchased by Customer, and (iii) the agreed upon fees applicable to Reseller.
“Company Service(s)” means Company’s services provided on the Company Quote.
“Company Service Software” means the software and accompanying documentation used by Company to offer the Company Service under this Agreement.
“Including” means including without limitation.
“Intellectual Property Rights” means all copyright rights, patent rights (including reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries), trademark rights, trade secret rights, moral rights, rights of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all applications and registrations, renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country, jurisdiction or international treaty.
“Reseller Purchase Order” means a written purchase order submitted by Reseller to Company that (i) is in English; (ii) identifies the Customer; (iii) clearly describes the Company Services purchased; (iv) states the quantity(ies) of Company Services purchased; (v) lists the fees (in U.S. dollars) associated with the Company Services purchased; (vi) in lieu of items (iii) – (v) references the applicable Company Quote number; and (vii) contains no additional terms and conditions. If neither the Company Quote nor the Reseller Purchase Order includes subscription service term(s) for the Company Services purchased, then the service term(s) shall be deemed to begin on the date that Company accepts the Reseller Purchase Order and continue for a period of twelve (12) months from such date.
2. GRANT OF RIGHTS.
2.1 Grant of Rights. Subject to the terms and conditions of this Agreement, Company hereby appoints Reseller as a non-exclusive reseller with the non-transferable, limited right to:
(a) Market and promote the Company Service to the Customer;
(b) Resell and license the Company Services to Customer, subject to Reseller ordering documentation with Customer that references either: (i) the Company General Terms; or (ii) a services agreement executed between the Company and Customer.
2.2 Restrictions. Reseller shall not appoint any subdistributors, resellers or agents to promote, demonstrate or sell the Company Service. In addition, Reseller shall not: (i) copy or otherwise reproduce, whether in whole or in part, the Company Service or the Company Service Software; (ii) modify or create any derivative work of the Company Service or the Company Service Software; (iii) sell, rent, loan, license, sublicense, distribute, assign or otherwise transfer the Company Service (except as expressly provided in Section 2.1 above) or the Company Service Software; (iv) cause or permit the disassembly, decompilation or reverse engineering of the Company Service Software or otherwise attempt to gain access to the source code to the Company Service Software; or (v) cause or permit any third party to do any of the foregoing.
2.3 Additional Terms. Reseller shall not grant to Customer any rights to the Company Services or make any warranties with respect to the Company Services other than pursuant to the Company General Terms. Reseller will promptly report to Company any breach, or suspected breach, of the Company General Terms of which it becomes aware.
2.4 Order Processing. Reseller shall provide order processing services to Customers including invoicing Customer, collecting fees from Customer and disbursing monies to Company. Reseller’s failure to collect the applicable fees for Company Services and forward the fees to Company does not relieve Reseller of its contractual obligation to pay Company for the full amount of the fees set forth in an invoice issued to Reseller by Company as described in Section 5.2 below. Such failure to pay shall be a material breach of this Reseller Agreement.
2.5 Acceptance of Reseller Order. Reseller shall provide a Reseller Purchase Order along with every purchase of Company Services; however, Reseller acknowledges that Company will only accept a Reseller Purchase Order if Reseller has complied with Section 2.1(b) above. Upon written request, Reseller shall provide Company with supporting documentation to confirm its compliance with Section 2.1(b).
2.6 Reservation of Rights. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by either party to the other under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth herein.
3.1 Marketing Expenses. Reseller shall be responsible for all of its costs and expenses related to its marketing, promoting, demonstrating, or selling the Company Service.
3.2 Invoices and Payments. For each Customer order of Company Services, Reseller shall be entitled to the discounts listed in the Company Quote off the products outlined under the Reseller Pricing (as defined in Exhibit A). Upon Company’s acceptance of a Reseller Purchase Order, Company shall promptly issue to Reseller an invoice based on the Company Services and fees set forth in the applicable Company Quote. Payment of undisputed amounts shall be made by Reseller to Company within forty-five (45) days after the date of Company’s invoice. All payments due under this Agreement shall be made by check or bank wire transfer in immediately available funds to an account designated by Company. All payments hereunder shall be made in U.S. dollars.
3.3 Taxes. Amounts payable to Company under this Agreement are payable in full to Company without deduction and are net of taxes (including any sales, use, excise, ad valorem, property, withholding, value added tax, or other tax and any income tax withheld at source), tariff, duty or assessment levied or imposed by any government authority (including any country, state, city, county, province, department, or other subdivision of government) that may be applicable to the transactions contemplated by this Agreement, exclusive of taxes based on Company’s net income. In the event that any such withholding or other taxes or duties are required to be deducted from any payment under applicable law, then Reseller shall pay Company such additional amount as shall cause the net amount of the aggregate payment to Company, after giving effect to such deduction, to equal the amount of the payment otherwise due to Company under this Agreement, and shall indemnify and hold harmless Company against any additional such taxes that might be determined to be due in connection with the transactions contemplated herein.
3.4 Audit Rights. During the term of this Agreement and for a period of three (3) years thereafter, Reseller agrees to keep books and records pertaining to this Agreement (which books and records shall be maintained on a consistent basis and substantially in accordance with generally accepted accounting principles) as necessary to substantiate the amounts owed to Company hereunder and Reseller’s compliance with Section 2.2. Company shall have access to such books and records for purposes of audit. Any such review of Reseller’s records will be conducted upon reasonable notice during normal business hours. If any audit uncovers a shortfall in amounts paid to Company of greater than five percent (5%) of the amounts due for any audited period, Reseller shall reimburse Company for the reasonable cost of the audit.
4. INTELLECTUAL PROPERTY OWNERSHIP.
(a) Company Service. Company shall own and retain all right, title and interest in and to the Company Service and the Company Service Software, including all improvements, enhancements or derivative works of the Company Service or the Company Service Software, as well as all Intellectual Property Rights embodied in any of the foregoing.
(b) Covenant of Further Assurances. Each party shall execute such documents and take such other actions as are reasonably requested by the other party, at such other party’s expense, in order to effect the intent of this Section 4.1.
5.1 Reseller Indemnity. Reseller, at its own expense, shall indemnify and defend Company, and its officers, directors, employees, representatives, agents, or suppliers and hold them harmless from, any claims, suits, judgments, losses, damages, fines or other costs (including reasonable attorney’s fees) and expenses resulting from (i) Reseller’s violation of any applicable law, statute or regulation; (ii) Reseller’s violation of any applicable third party privacy, publicity or Intellectual Property Rights; (iii) Reseller’s breach of the representations and warranties contained in Section 8; (iv) Reseller’s breach of it’s obligations under Section 2.1(b); or (v) Reseller’s gross negligence or willful misconduct.
6. LIMITATION OF LIABILITY.
6.1 UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LIABILITY SHALL COMPANY OR RESELLER OR THEIR OFFICERS, EMPLOYEES, OWNERS, DIRECTORS, SHAREHOLDERS, SUCCESSORS, AGENTS OR ASSIGNS HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOST OPPORTUNITY OR PROFITS, LOSS OR CORRUPTION OF DATA, EQUIPMENT, APPLICATION OR NETWORK DOWNTIME, COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES, OR OF ANY OTHER NATURE WHATSOEVER ARISING OUT OF THIS AGREEMENT, ANY SERVICE SCHEDULE OR ANY EXHIBITS OR ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR OTHER TORT), WHETHER OR NOT COMPANY OR RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR A PARTY’S PAYMENT OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR RESELLER OR THEIR OFFICERS’, EMPLOYEES’, OWNERS’, DIRECTORS’, SHAREHOLDERS’, SUCCESSORS’, AGENTS’ OR ASSIGNS’ AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS RECEIVED BY COMPANY FROM RESELLER DURING THE SIX (6) MONTHS PRECEDING ANY CLAIM. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
6.2 THE LIMITATION SET FORTH IN SECTION 6.1 ABOVE SHALL NOT APPLY TO A BREACH BY EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 2, SECTION 5 AND SECTION 7
7.1 Definition. Each party acknowledges that, in the course of performing and obtaining services under this Agreement, it may be granted or otherwise obtain access to Confidential Information (as defined herein) of the other party. For purposes of this Agreement, “Confidential Information” shall mean all nonpublic information owned or otherwise controlled by each of the parties, whether or not written or otherwise fixed in any form or medium, regardless of the media on which contained and whether or not patentable or copyrightable, and which is expressly designated as confidential.
7.2 Non-use; Non-disclosure. Each party shall protect all Confidential Information of the other party with the same degree of care that it protects its own Confidential Information (which, in any event, shall be not less than a reasonable degree of care under the circumstances) and may use such Confidential Information only as necessary to perform the services or otherwise carry out the provisions of this Agreement. Each party may allow disclosure of Confidential Information of the other party only to those of its employees and contractors who (i) require knowledge of Confidential Information in order to perform the Company Services and (ii) are bound by obligations of confidentiality and nondisclosure at least as restrictive as those set forth herein. Each party shall advise its employees and contractors of the proprietary nature of all Confidential Information and (ii) use all reasonable safeguards to prevent unauthorized use and disclosure by such employees and contractors. Each party shall be responsible for any breach of its confidentiality obligations by any of its employees, contractors or agents. The provisions of this Section 7 shall survive the termination of this Agreement and remain in effect for a period of five (5) years after such termination.
7.3 Injunctive Relief. The parties acknowledge that any breach of the obligations under this Section 7 will result in immediate irreparable and continuing injury to the non-breaching party for which there is no adequate remedy at law. Accordingly, in the event of any such breach (or threatened breach), the non-breaching party shall be entitled to seek from any court of competent jurisdiction preliminary and permanent injunctive relief, without bond, with respect to such breach. Such relief shall be cumulative and in addition to any other remedies at law or in equity (including monetary damages) which the non-breaching party may have upon any such breach.
7.4 Exclusions. Confidential Information will not include: (a) information which at the time of disclosure or discovery is in the public domain; (b) information which, after disclosure, becomes part of the public domain by publication or otherwise except by breach of this letter agreement; (c) information which a party can establish by reasonable proof was in its possession at the time of disclosure to it and was not acquired, directly or indirectly, from the other party; or (d) information which a party receives from a third party which has the legal right to disclose it.
7.5 Return of Confidential Information. Promptly after the termination or expiration of this Agreement (or promptly after receipt at any time of a written request), each party shall return (or, if so requested, destroy) all Confidential Information previously disclosed to or obtained by such party (and all copies, abstracts or summaries thereof) and provide the other party with a written verification of such return or destruction, as the case may be. Thereafter, such party shall make no further use, and shall not allow any of its officers, employees or agents to make any use of such Confidential Information for any purpose whatsoever.
7.6 Notification. Each party shall notify the other party of any breach involving that party’s Confidential Information within twenty four (24) hours after discovery of breach.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS.
8.1 Full Power and Authority. Each party represents and warrants that it has full power and authority to execute this Agreement and to take all actions required by, and to perform the agreements contained in, this Agreement, and that each party’s obligations under this Agreement do not conflict with its obligations under any other agreement to which Company or Reseller is a party.
8.2 Compliance with Laws. Each party represents, warrants and covenants that the performance of its obligations under this Agreement in connection with the Company Service complies and will comply with all applicable federal, state, local and foreign laws and regulations.
8.3 Obligations to Third Parties. Reseller represents and warrants that it shall not delete or modify any of the terms and conditions set forth in the Company General Terms when entering into agreements with Customers without the express written authorization of Company. Reseller is representing and warranting that any agreement between Reseller and a Customer relating to the provision of the Company Services complies with Section 2.1(b).
8.4 DISCLAIMER. EXCEPT AS EXPRESSLY STATED ABOVE, COMPANY PROVIDES THE COMPANY SERVICE “AS IS” AND MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF AVAILABILITY, RELIABILITY, USEFULNESS, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. Without limiting the generality of the foregoing, Company does not warrant that the Company Service, reports or related data will be error-free, complete, free from interruption or failure, or absolutely secure from unauthorized access, nor does Company make any warranty that Customer’s application(s) will be free from vulnerability to intrusion or attack or that Company will find any or all security vulnerabilities in the Customer application(s). Furthermore, Company does not warrant that the Customer application(s) will not be adversely affected by the Company Service. Any promises or obligations made by Reseller to any third party, including Customers, that are not expressly stated in the Company General Terms are the promises or obligations of Reseller, not Company, and Reseller will be solely liable for such promises or obligations.
8.5 Export Control. Neither party shall export or re-export the Company Service, Company Service Software or any underlying information or technology, except in full compliance with all United States and other applicable laws and regulations.
9. NOTICES. All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each herein, a “Notice”) shall be given in writing and delivered to the receiving party to its respective address set forth in the Company Quote (Attn: Legal Dept.) by: (i) personal delivery to the individual identified below, (ii) by certified or registered mail (return receipt requested), or (iii) a nationally recognized courier. The effective date of such Notice shall be deemed to be three business days after the Notice is sent. Either party may change its address set forth below by written notice to the other party hereto in accordance with the terms of this Section 9..
10. TERM AND TERMINATION.
10.1 Term. This Agreement shall take effect upon the Effective Date, and continue for a period of one (1) year from the Effective Date unless earlier terminated in accordance with this Section 10 or as explicitly provided elsewhere in this Agreement or such longer period of time as stated in an ordering document executed by the parties hereto that references this Agreement.
(a) For Breach. Either party may terminate this Agreement upon written notice in the event the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after the date of written notice thereof by such party.
(b) For Convenience. Either party may terminate this Agreement upon sixty (60) days prior written notice to the other party.
10.3 Survival. The provisions of Section 1, (Definitions); 2.2(c) (Restrictions); 3 (Fees); 6 (Indemnification): 6 (Limitation of Liability); 7 (Confidentiality); 8, (Disclaimer); 9 (Notices); 10.3 (Term and Termination, Survival); and 11 (General) shall survive any termination or expiration of this Agreement. All other rights and obligations of the parties shall cease upon termination or expiration of this Agreement, other than liabilities that have accrued prior to such termination or expiration.
11.1 Headings. Headings stated in this Agreement are for convenience of reference only and are not intended as a summary of such sections and do not affect, limit, modify, or construe the contents thereof.
11.2 Governing Law. This Agreement shall be governed by and in accordance with the laws of the State of California, without reference to its conflict of laws principles.
11.3 Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (including any delay in developing or delivering the Company Service) due to any act of God, war, terror, strike, lockout, epidemic, riot, insurrection, unavailability or performance degradation of the Internet or any other cause beyond the reasonable control of the party invoking this section.
11.4 Independent Contractor Status and Authority. Each party agrees and acknowledges that in its performance of its obligations under this Agreement, it is an independent contractor of the other party, and is solely responsible for its own activities. Neither party shall have any authority to make commitments or enter into contracts on behalf of, bind or otherwise obligate the other party in any manner whatsoever except as expressly stated in this Agreement. No joint venture or partnership is intended to be formed by this Agreement.
11.5 Non-Waiver; Cumulative Rights. No failure or delay (in whole or in part) on the part of either party to exercise any right or remedy hereunder shall operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
11.6 Severability. If any provision contained in this Agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, legality, or unenforceability shall not affect the remaining provisions and portions of this Agreement.
11.7 Assignment. Reseller shall not transfer, assign or delegate this Agreement or any rights or obligations hereunder, in whole or in part, whether voluntarily, by operation of law or otherwise, without the prior written consent of Company; except that Reseller may assign this Agreement to an entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of its voting securities or assets upon written notice to Company.
11.8 Use of Third Parties to Perform Services. Reseller acknowledges that Company may perform its obligations through the use of agents, suppliers, subcontractors or independent contractors.
11.9 Entire Agreement. This Agreement, including all exhibits hereto and each service order or other ordering document executed by the parties hereto that references this Agreement, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior contemporaneous oral or written understandings or agreements among the parties which relate to the subject matter hereof. No modification or amendment of this Agreement or any of its provisions shall be binding upon any party unless made in writing and duly executed by authorized representatives of all parties.