Pointivity Reseller Agreement - Facing Page

Transcription

Pointivity Reseller Agreement - Facing Page
As used in this document, the term “Agreement” means this Pointivity Reseller Agreement, namely
this Facing Page and the following attached Appendices:
Appendix
A - Reseller Agreement
Appendix
B - Pointivity’s Reseller Services and Policies
Appendix
C - Pointivity’s Fees and Commissions
Appendix
D - Third Party Terms and Conditions
This Agreement is by and between Pointivity, a California corporation (“we,” “us” or “Pointivity"), and
the person or entity signing below as a Reseller (“you” or "Reseller") and is made and entered into as
of the latest date shown in the signature blocks below (the “Effective Date”).
This Agreement sets forth the terms and conditions upon which you will act as a reseller of our hosting
and managed solutions offered at our website at pointivityconnect.com/partners (the “Website” and
the “Services,” respectively) using Pointivity’s provisioning engine (“Engine”). You may choose to
resell the Services under your brand name or under our brand name.
By signing below, you acknowledge and agree that, prior to signing below, you read the entire
Agreement, including each appendix to it; you consulted with legal counsel of your choice (or had the
opportunity to consult with legal counsel of your choice but declined to do so); and you are legally
bound by all the terms and conditions set forth in this Agreement. Further, by our signature below, we
likewise agree to be legally bound by this Agreement and by all the terms and conditions set forth in it.
Pointivity:
Reseller:
Name: Pointivity
Name: ______________________________
Entity: California corporation
Entity: ______________________________
Address: 5355 Mira Sorrento Place
Suite #600
San Diego, CA 92121
Address: ____________________________
________________________________
Signature
___________________________________
Signature
_______________________________
Printed Name/Title
___________________________________
Printed Name/Title
_______________________________
Date
__________________________________
Date
Partner Account Manager (PAM):
Designated Administrator:
________________________________
Name: _____________________________
____________________________________
Email: _____________________________
Pointivity Reseller Agreement v. 1.1
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Appendix A - Pointivity Reseller Agreement
1.
Pointivity Services and Support. We will provide the Services described in, and in accordance
with, our Reseller Services and Policies (Appendix B). A current copy of Pointivity’s Reseller Services
and Policies can be found at http://www.pointivity.com/partners/legal/resellerpolicies.html. We may
amend the Reseller Services and Policies, including the Services we offer, at any time at our sole
discretion. You agree to regularly review the Website for updates to this Agreement, including updates
to any Appendix to it.
2.
Fees and Payment.
2.1
Fees. We will charge, and you agree to pay, the prices and fees for the Services set forth
on our Fees and Commissions (Appendix C). A current copy of Pointivity’s fees, commissions and
service rates can be found at http://www.pointivity.com/partners/legal/hostedservices.html. Additional
fees will apply for items not set forth on this appendix, such as migration and customization fees,
professional services fees, SSL fees and out-of-pocket expenses, as you and us may separately agree
from time to time. We may update the fees and commissions due us, effective upon thirty days notice
to you, with fee or commission changes shown on our invoice to you expressly constituting such
advance notice. All payments by you under this Agreement shall be made in U.S. dollars in
immediately available funds available.
2.2
End User Billing and Collection. You are solely responsible for billing your customers
(“End Use r ( s) ”) and collecting payments from them. If you are utilizing our payment gateway
functionality, you take full responsibility and risk for such usage and for collection of payment from
your End Users.
2.3
Our Billing to You. For our Services, we will bill you for each calendar, in arrears,
generally by the fifth day of the following month. The invoice will cover the Services during the month
in question. We may require pre-payment for extraordinary services.
2.4
Aborted Accounts. No service fee shall be due to us in connection with any unpaid EndUser account which is (a) disabled no later than the fifteenth of the month following the month in which
such account was created, and (ii) terminated within fifteen days after it was so disabled. No service
fee shall be due us in connection with any of your internal test accounts if such accounts are marked as
non-chargeable test accounts prior the end of the month in which such accounts were created and if
such test accounts are otherwise created and used in accordance with our policies.
2.5
Electronic Billing. Except as provided in Section 2.5 below, all payments by you to us
shall be made by credit card. For all amounts owed by you to us, you hereby authorize us to
electronically charge your credit card you gave us when signing up to be a reseller. You may
prospectively change and update that credit card through your access to the administrative control
panel of your website. You hereby agree and authorize us to (a) make such charges as necessary for
payment of current and outstanding bills and invoices, and recurring fees; (b) make additional attempts
to charge should the initial attempt fail; and (c) act upon your instructions regarding such charge,
whether by phone, in writing, or by other means, that we reasonably believe to be genuine.
2.6
Invoicing. After your reseller account has been in good standing at all times for six
consecutive months in each of which you were charged at least $1,000.00 per month you may request
to be switched to invoice billing and we will not unreasonably deny that request. You agree to pay all
invoices within fifteen days of our sending it via e-mail to your administrative liaison. Those payments
shall be made in funds available to us on a same-day basis by electronic wire transfer. Payments may
not be made by any other means without our prior written consent, and we may refuse for any or no
reason to give that consent.
2.7
Late Payment. Late Payment is defined: (a) for credit card payments, payments not
received (including, for instance, if the payment is refused by the credit card issuer or the credit card
information you provided in the administrative control panel of your website is outdated) by the
fifteenth calendar day of the month for which the payment is due; and (b) for invoiced payments,
payments not received by the fifteenth calendar day following our sending it via e-mail to your
administrative liaison. There is a late payment penalty of 5% of the amount past due. In addition, all
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past due amount, including the late charge, shall bear interest until paid at the lower of two percent per
month or the applicable maximum legal rate. If there is any late payment(s) on your account,
Pointivity, at its sole discretion and without waiving other rights it may have, may suspend, interrupt,
or disconnect the Services on your account, without notice to you.
3.
Re se lle r Pr ofit / Adm in ist r a t ive Con t r ol Pa n e l . You are solely responsible for keeping your
Reseller account information current through the administrative control panel on your website. We will
have access at all times to that administrative control panel. We will send invoices, notices and other
communication only to the contact e-mail address listed as an Administrator on the Facing Page or, if
different, in your administrative control panel on the date such communication is sent.
4.
Term and Termination.
4.1
Term - General. Subject to Section 4.2, the initial term of this Agreement will be one
year from the Effective Date. This Agreement shall automatically renew for additional one year terms
for the life of the customer relationship if you provide one or more Leads resulting in Net Revenue of
$12,000 or more in a calendar year.
4.2
Termination at Will. Either you or we may terminate this Agreement at any time, for any
or no reason, upon two weeks prior notice to the other. Notwithstanding the termination of this
Agreement, the parties shall each remain liable for any accrued amounts due or obligations arising
under this Agreement prior to the termination. Notwithstanding the termination of this Agreement for
any reason, the following provisions shall survive in accordance with their terms: Appendix A,
Section 2.7 (Late Payment); Appendix A, Section 7 (Disclaimer of Warranties; Limitation of Damages);
Appendix A, Section 8 (Indemnity); Appendix A, Section 9 (Confidentiality); Appendix A, Section 10
(General); Appendix B, Section 5 (Other Policies); Appendix B, Section 8 (Miscellaneous) and
Section 2.4a)ii) of Appendix C.
4.3
WE MAY TERMINATE SERVICES TO YOU IMMEDIATELY AND WITHOUT PRIOR NOTICE
FOR ANY OR ALL OF THE FOLLOWING REASONS: (A) ANY MATERIAL BREACH BY YOU OF THIS
AGREEMENT, WHICH INCLUDES, BUT IS NOT LIMITED TO, FAILURE TO TIMELY PAY US, VIOLATION OF
THE COMPANY’S ACCEPTABLE USE OR NO SPAM POLICIES, UNLAWFUL CONDUCT; OR (B) ANY OTHER
BREACH BY YOU OF THIS AGREEMENT WHICH REMAINS UNCURED BEYOND A REASONABLE TIME
AFTER BREACH NOTIFICATION; (C) FAILURE TO PROVIDE AND KEEP CURRENT ALL YOUR CONTACT
AND BILLING INFORMATION. IN UPON TERMINATION FOR CAUSE, WE WILL NOT REFUND ANY FEES
ALREADY PAID. TERMINATION FOR CAUSE WILL NOT CANCEL OR WAIVE ANY FEES OWED TO US
PRIOR TO ACCOUNT TERMINATION. WE HAVE DISCRETION TO DETERMINE WHAT IS A MATERIAL
BREACH, BASED ON OUR CUSTOM AND PRACTICE CONSISTENTLY APPLIED.
5.
Changes. We may amend any terms of to this Agreement (other than changes to amounts we
charge you for fees and commissions covered in Section 2.1 above), at any time at our sole discretion,
with 30 days notification. You agree to regularly review the Website for changes to this Agreement,
including changes to any Appendix to it.
6.
Representation and Warranties.
6.1
By Us. We represent and warrant that we (a) have the right, power and authority to
enter into the Agreement and to fully perform all of our obligations hereunder; (b) will use
commercially reasonable efforts to provide all services required of us under the Agreement in
accordance prevailing industry standards; and (c) own or have acquired the requisite rights from third
parties to the Pointivity Property (as defined in the Reseller Services and Policies (Appendix B)).
6.2
By you. You represent and warrant that you (a) have the right, power and authority to
enter into the Agreement and to fully perform all of your obligations hereunder; (b) will use
commercially reasonable efforts to market and sell the Services; and (c) any and all information
provided by you under or relating to this Agreement, including all information provided pursuant to the
administrative control panel portion of your website, is complete, true and not misleading in any
material respect.
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7.
DISLAIMER OF WARRANTIES; LIMITATION OF DAMAGES.
7.1
THE EXPRESS, BUT LIMITED, WARRANTY IN SECTION 6.1 ABOVE IS IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING OUR SERVICES AND WE AND
OUR AFFILIATES SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES (IMPLIED OR EXPRESS) OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY
WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE.
THERE IS NO WARRANTY
AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE INFORMATION OR AGAINST INFRINGEMENT
REGARDLESS OF WHETHER THE ACTION AROSE INSIDE OR OUTSIDE THE UNITED STATES. THERE IS
NO WARRANTY AGAINST INACCURACY. THERE IS NO WARRANTY OF SYSTEMS INTEGRATION. THERE
IS NO WARRRANTY THAT OUR OBLIGATIONS UNDER THIS AGREEMENT WILL FULFILL ANY OF YOUR OR
ANY AUTHORIZED USER’S PARTICULAR PURPOSES OR NEEDS.
7.2
WE PROVIDE THE SERVICES “AS IS”. YOU EXPRESSLY AGREE THAT USE OF OUR
SERVICES IS AT THE SOLE RISK OF YOU AND EACH AUTHORIZED USER. YOU ACKNOWLEDGE THAT
THE USE OF THE SERVICES BY YOU AND EACH AUTHORIZED USER ARE AT YOUR OWN RISK AND THAT
THERE IS NO WARRANTY OF UNINTERRUPTED OR ERROR-FREE SERVICE OR ACCURACY OR
RELIABILITY.
7.3
WE AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST
DATA OR CONFIDENTIAL INFORMATION, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST
PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION
ARISING FROM OR RELATING TO THIS AGREEMENT OR ARISING FROM OR RELATING TO THE USE OF
THE SOFTWARE WHICH HAS BEEN MODIFIED BY ANYONE OTHER THAN US, LOSS OF PROGRAMS OR
INFORMATION, AND THE LIKE, THAT RESULT FROM THE USE OR INABILITY TO USE THE SERVICES OR
FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR DIRECTORIES, LOSS OF
DATA, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF
PERFORMANCE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUIDNG NEGLIGENCE
OR OTHER TORTS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING THIS SECTION 7, WE DO NOT EXCLUDE OR LIMIT LIABILITY IN RESPECT OF
PERSONAL INJURY OR DEATH TO THE EXTENT SUCH LIABILITY CANNT BE EXCLUDED OR LIMITED
UNDER APPLICABLE LAW.
7.4
YOU ACKNOWLEDGE AND AGREE YOU HAVE RELIED ON NO WARRANTIES EXCEPT OUR
LIMITED EXPRESS WARRANTY IN SECTION 6.1.
7.5
You agree that the total liability of us and our Affiliates and the sole remedy of you and
any End User for any claims regarding our services is limited to your right to terminate this Agreement.
Further, should a court nonetheless find that remedy is not exclusive or that we are for any reason
nonetheless liable for money damages, our cumulative liability in connection with this Agreement and
our services, whether in contract, tort or otherwise, shall not exceed the amount paid to us under this
Agreement during the three months preceding the events giving rise to such liability. The existence of
more than one claim shall not enlarge that limitation of liability.
7.6
We are not obligated to exercise any control over the content of the information passing
through our network except those controls expressly provided in this Agreement.
7.7
Except as expressly provided in the Agreement, you acknowledge that (a) we are in no
manner responsible for any action or inaction of any third party, including, but not limited to, hardware
or software vendors or Internet service providers; (b) we have not represented that the Services shall
be uninterrupted, error-free, or without delay; and (c) we do not and cannot control the flow of data
through the Internet, and such flow depends in large part on the performance of third parties whose
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actions or inaction can, at times, produce situations in which connections to the Internet (or portions
thereof) may be impaired or disrupted. ACCORDINGLY, YOU ACKNOWLEDGE THAT WE DISCLAIM ALL
LIABILITY RELATED TO EVENTS OUTSIDE OF OUR CONTROL AND/OR IN THE CONTROL OF THIRD
PARTIES, AND YOU SHALL HAVE NO RIGHT TO RELY UPON ANY REPRESENTATION OR WARRANTY OF
ANY THIRD PARTY IN RESPECT TO THE SERVICES. Further, you acknowledge that, in providing the
Services, we shall necessarily rely upon information, instructions, and services from you, your
Administrator, employees and agents, and other third parties providing computer and communications
hardware, software, and Internet services. Except as expressly provided in the Agreement, you fully
assume the risk associated with errors in such information, instructions, and services.
8.
Indemnity.
Our Indemnity. We shall indemnify, defend, and hold you, your directors, officers, members,
shareholders, managers, employees, agents representatives, subsidiaries and affiliates, harmless
against any claim, suit, losses, liabilities, costs, and expenses (including, but not limited to, attorneys’
fees and court costs) based upon any third party claim (a) based on or arising from a breach of our
representations, covenants and agreements hereunder, or (b)arising out of our provision of the
Services in violation of the Agreement.
8.1
Your Indemnity. You shall indemnify, defend, and hold us, our directors, officers,
members, shareholders, managers, employees, agents, representatives, subsidiaries and affiliates,
harmless against any claim, suit, losses, liabilities, costs, and expenses (including, but not limited to,
attorneys’ fees and court costs) based upon any third party claim (a) based on or arising from a breach
of your representations, covenants and agreements hereunder, (b) arising out of your sale or use
(including use by persons claiming through you, such as End Users) of the Services in violation of the
Agreement.
8.2
Indemnification Conditions. An indemnitee seeking indemnification pursuant to the prior
paragraph shall (a) promptly notify the indemnitor in writing of the claim for which indemnification is
sought; (b) make a reasonable effort to provide the indemnitor with the information and material in
indemnitee’s possession regarding the claim, (c) furnish the indemnitor such assistance as indemnitor
may reasonably request in connection with the investigation, settlement and defense of the claim;
(d) grant the indemnitor sole control over the resolution of the claim (including, if applicable, the
defense and settlement of it); provided, however (i) indemnitee may participate in such resolution at
indemnitee’s option and expense, and (ii) indemnitor shall not resolve or settle any claim in any
manner which may adversely affect indemnitee’s right or interests without indemnitee’s prior written
consent, which consent shall not be unreasonably withheld or delayed. Indemnitor shall not be liable
hereunder for any settlement entered into by indemnitee without your written consent (which consent
shall not be unreasonably withheld or delayed).
9.
Confidentiality.
9.1
Confidential Information Defined. As used in the Agreement, “Confidential
Information” means (a) the terms and conditions of these Policies and the Agreement; (b) each
party’s trade secrets, current or future business plans, strategies, opportunities, methods and/or
practices; and (c) other information relating to either party that is not generally known to the public,
including information about either party’s personnel, customers, designs, protocols, know-how,
processes, costs, prices, finances and research and development. In addition, each Party agrees that all
processes and protocols provided by the other party hereunder are Confidential Information of such
other Party. Confidential Information specifically excludes (i) information that is now in the public
domain or subsequently enters the public domain by publication or otherwise through no action or fault
of the other party; (ii) information that is known to either party without restriction, prior to receipt from
the other party under the Agreement, from its own independent sources as evidenced by such party’s
written records, and which was not acquired, directly or indirectly, from the other party;
(iii) information that either party receives from any third party reasonably known by such receiving
party to have a legal right to transmit such information, and not under any obligation to keep such
information confidential; and (iv) information independently developed by a party’s employees or
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agents; provided that such party can show that those same employees or agents had no access to or
use of the Confidential Information received hereunder.
9.2
Mutual Non-Disclosure. You and us each agree and acknowledge that, as a result of
negotiating, entering into and performing the Agreement, each party has and shall have access to
certain of the other party’s Confidential Information. Each party also understands and agrees that
misuse and/or disclosure of that information could adversely affect the other party’s business.
Accordingly, the parties agree that each party shall (a) use and reproduce the other party’s Confidential
Information only for the purposes of the Agreement and only to the extent necessary for such purpose;
(b) restrict disclosure of the other party’s Confidential Information to its employees, consultants or
independent contractors with a need to know; and (c) not disclose the other party’s Confidential
Information to any third party without prior written approval of such other party. Notwithstanding the
foregoing, it shall not be a breach of the Agreement for either party to disclose Confidential Information
of the third party if required to do so under law or in a judicial or other governmental investigation or
proceeding, provided the other party has been given prior notice and the disclosing Party has sought all
reasonably available safeguards against widespread dissemination prior to such disclosure.
10.
General.
10.1 Governing Law; Venue; Time for Claims; Attorneys’ Fees. The laws of the State of
California, without respect to principles of conflicts of laws, shall govern all matters with respect to this
Agreement, including tort claims. Each party waives any objection to jurisdiction of any action
instituted against him, her or it as provided herein and agrees not to assert any defense based on lack
of jurisdiction. The parties agree to submit to the jurisdiction of the State of California, and venue in
San Diego, California, with respect to any arbitration or other legal proceeding necessary to interpret or
enforce any part of this Agreement. Any cause of action either party may have against the other with
respect to this Agreement must be commenced within one year after the claim or cause of action arises
or such claim or cause of action is barred. In any action to enforce this Agreement, the prevailing party
in the action shall pay the other party’s reasonable attorneys' fees and costs in connection with such
action.
10.2 Entire Agreement. This Agreement contains the entire agreement between you and us
regarding all relevant aspects of the subject matter of this Agreement and supersedes all prior
understandings and agreements, if any and whether oral or in writing, between you and us regarding
such subject matter. An y st a t e m e n t a ppe a r ing a s a r e st r ict ive e ndor se m e n t on a ch e ck or
ot h e r docu m e n t w h ich pur por t s t o m odify a r igh t , obliga t ion or lia bilit y of e it h e r you or u s
shall be of no force and effect.
10.3 Severability. If any term, covenant, condition or provision of this Agreement, or the
application thereof to any person or circumstance, shall to any extent be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions or
provisions of this Agreement, or the application thereof to any other person or circumstance, shall
remain in full force and effect and shall in no way be affected, impaired or invalidated thereby if the
essential provisions of this Agreement for each party remain valid, binding and enforceable.
10.4 Waiver; Modification. The waiver by one party of the performance of any covenant or
condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver
by it of any other covenant or condition under this Agreement. The waiver by either or both parties of
the time for performing any act under this Agreement shall not constitute a waiver of the time for
performing any other act or an identical act required to be performed at a later time. The exercise of
any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law
or in equity, and the provision in this Agreement for any remedy shall not exclude other remedies
unless they are expressly excluded.
10.5 Assignment. You may not assign your rights or delegate your duties or obligations
hereunder without our prior written consent, which consent shall not be unreasonably withheld or
delayed. For purposes of this Agreement, if you are an entity, a change in control of you shall be
considered a deemed assignment of rights and obligations. This Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the parties to this Agreement.
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10.6 Force Majeure. If the performance of this Agreement of any obligation other than a
monetary obligation (e.g., your obligation to pay us for the Services) is prevented, restricted, or
interfered with by reason of fire or other casualty or accident; terrorism, strike(s) or labor dispute(s);
inability to procure raw material power or supplies on commercially reasonable terms after
commercially reasonable efforts; war or other violence; any law, order, proclamation, regulation,
ordinance, demand, or requirement of any government, government’s agency, or inter-governmental
body; or any other act or condition whatsoever beyond the reasonable control of the parties hereto, the
party so affected, upon giving notice to the other party, shall be excused from such performance to the
extent of such prevention, restriction, or interferences; provided that the party so affected shall use its
best efforts to avoid or remove such causes of nonperformance and shall continue performance
hereunder with the utmost dispatch whenever such causes are removed; and, provided further, that no
such occurrence shall extend the term of this Agreement. The failure of a third party service provider
of either you or us to perform its contractual obligations shall not be deemed to be a cause beyond
your or our reasonable control, unless such failure is caused by any force majeure event
10.7 Third Party Beneficiaries. You understand and agree that we and you intend to include,
as the only third party beneficiaries of this Agreement, our vendors and licensors (including all thirdpartylicensors), with all rights and remedies – but not obligations - available as if such vendors and
licensors were a party to this Agreement.
10.8 Notices. All notices and demands which any party is required or desires to give to
another shall be given in writing by United States registered or certified mail, return receipt requested,
by personal delivery, by telegram or by express courier service, or electronic facsimile to the address in
the Facing Page. Either of us may update our address at any time, with our address being as shown on
the Website and your address, if different from the Facing Page, as shown on the administrative control
panel portion of your website. Subject to the next sentence, all notices and demands given by mail
shall be effective on the second business day after mailing; all notices and demands otherwise given as
provided above shall be effective upon receipt by the party to whom notice or a demand is being given.
The rejection or other refusal to accept a notice, or the inability to deliver a notice because of a change
of address where no notice was given hereunder of such change in address for purposes of notices and
demands hereunder, shall be deemed to be receipt of the notice sent, and such notice shall be effective
as of the date the notice was sent or given.
10.9 Relationship of Parties. You are not granted any right or authority to assume or create
any obligation or responsibility on our behalf, nor are we in any way liable for any of your debt or any
of your obligations to a third party. Our relationship is that of parties contracting for services on an
independent contractor basis.
10.10 Remedies. The rights and remedies of each party under this Agreement are cumulative.
Notwithstanding any other provision of this Agreement, the parties agree a breach by that party under
this Agreement shall cause irreparable harm for which recovery of money damages would be
inadequate and that, in addition to any and all remedies available at law, the other party shall be
entitled to seek timely injunctive relief to protect their rights under this Agreement.
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APPENDIX B - Pointivity Reseller Services and Policies (“Policies”)
1.
Your Responsibilities.
1.1
Sales Support. You are solely responsible for all marketing and sales of the Services to
your End Users.
1.2
Administrators. You are responsible for designating, via the Website and from your own
qualified personnel, up to two persons (the “Administrators”) as “liaison(s)” between us and you, with
at least one of them designated as the “Technical” liaison. The Technical liaison(s) shall be the only
person(s) authorized to communicate with us with respect to technical issues, including service
availability. Your Administrators will act as the primary point of contact between us and shall have sole
authority for certain administrative functions relating the Services, including but not limited to
(a) controlling the creation and deletion of end-user accounts, mailboxes and domain names;
(b) managing changes to mailbox information (such as changes to user name or password); and
(c) serving as our technical contact. You may change an Administrator upon three business days
advance notice to us. The control panel portion of our Website lists your initial Administrators. We are
not required to heed communications from you regarding the Hosting Services or any aspect of the
Agreement unless such communications are from a liaison designated by you. We are not obligated to
communicate to anyone other than your designated Administrator(s) regarding the Services or any
aspect of this Agreement.
1.3
Level 1 Support. You shall have sole responsibility for handling technical support inquiries
from End Users (the “Le ve l 1 Suppor t ”). Level 1 Support for Microsoft Exchange and SharePoint shall
cover customer service and end user issues including but not limited to initial setup, account mailbox
management, connectivity testing, Microsoft Outlook configuration, Macintosh Entourage setup, Pocket
PC and mobile device setup, ActiveSync setup, Postini setup, RIM and BlackBerry setup, email
migration, .PST file migration, reseller merchant and credit card processing services, domain
management, inbound domains, quotas, and configuration and troubleshooting of any add-on features.
Level 1 Support for other services shall cover customer service and end user issues including but not
limited to initial setup, HTTP and FTP connectivity, site users, access permissions, domain names
management, mail client configuration, SPAM filtering, web site statistics, hosted application
management, server access and management, configuration and troubleshooting of any add-on
features.
1.4
End User Agreement. Each End User’s use of the Services and the Website is subject to
our standard Master Agreement, including all appendices to it (“End User Agreement”). That
agreement can be found at http://www.pointivity.com/partners/legal/enduseragreement.html. The
End User will have to accept and agree to be bound by all of the terms of that agreement as a condition
to being enabled to use the Website and the Services; provided, however, that the provision regarding
standard fees shall not apply and instead you will directly bill the End Users as described in Section 2.2
of Pointivity’s Reseller Agreement (Appendix A).
1.5
Promotion. You will identify and register End Users in accordance with the terms hereof.
You represent that you have sufficient personnel and resources to promote, market, support and resell
the Services as contemplated herein. You will perform your duties hereunder in a diligent and
businesslike manner and refrain from any activity or action that may damage our reputation or the
reputation of our Services.
1.6
Expenses. You are solely responsible for any and all your marketing, advertising and
other costs and expenses, employees and activities that you undertake in connection herewith.
1.7
Custom Branding. We will allow you to custom-brand different elements including EndUser website (store front), End-User shopping cart (e-commerce engine), End-User control panel and
notification templates. You may use our Authorized Reseller logo on your website and advertisements
during the term of this Agreement, but to maintain the quality of our brand name, you must submit to
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the PAM a copy of any such web pages or advertisements for approval prior to publication. We will
review use of our logo and notify you of approval or disapproval within five business days of
submission. All such materials shall be deemed disapproved unless you receive written notice of
approval within five days of submission to the PAM.
2.
Our Responsibilities.
2.1
Customer Support Training. We will provide you with initial training on the features and
functionalities of the Services via documentation and our knowledge base, in accordance with our
custom and practice. Any additional customer support training shall be provided via telephone,
webinars, or onsite in our San Diego, California facilities and may be subject to additional customer
support training fees. Alternative training methods are also available for additional customer support
training, as you and us may separately agree from time to time.
2.2
Level 2 Support. We will provide technical support related to the Services to your
Administrators (the “Level 2 Support”) and only to your Administrators. Level 2 Support shall cover
server-side issues, resolution of both account configuration and client configuration problems, and
advanced troubleshooting; provided that any troubleshooting support is given only if we are reasonably
satisfied you have made a good faith attempt to cure the problem and failed to cure it. Any support
related to the End User configuration is subject to additional support fees and shall be provided in
English via either (a) telephone line (858-777-6920) during our regular business hour of 7am-6pm
PST; or (b) By calling 858-777-6911 if you have an after-hours emergency.
2.3
Partner Account Manager. We will assign a partner account manager (“PAM”) to you
whose services will be free of charge to your Administrators. The PAM will provide a reasonable level of
account management to assist you in closing the sale to a commissionable lead and answering general
technical questions and questions regarding your account with us, but will not provide Level 2 Support.
At our election in our absolute discretion, we may provide you with other marketing support and
services.
2.4
Modifications and Maintenance. From time to time at our sole discretion, we may modify
the software or hardware we use to provide and operate the Services. We will use reasonable efforts to
schedule maintenance, upgrades and services during off-peak periods. Your modification of such
software or other elements of the Services not specifically authorized by these Policies shall be
considered a material breach of the Agreement and we shall bear no responsibility for any malfunction
or failure of the Services caused by such modification.
3.
Provisioning.
3.1
End User Set-Up. You may use our End User signup application and notification
templates. Pointivity accepts no responsibility for any End User setup application or notification process
other than the one provided by us.
3.2
Demo Mailbox and SharePoint. We will provide you with up to one account with one
demonstration (Demo) Mailboxes (1 GB) and one SharePoint service (50 MB) at no charge for your use
in promoting the Service(s). We reserve the right to terminate Demo within thirty days of such
activation. You can choose to pay for additional demonstration services subject to fees set forth on
Services, Fees and Commissions (Appendix C).
4.
Appointment. We hereby appoint you, and you hereby accept the appointment, as our nonexclusive reseller to promote the Services to your customers, potential customers and/or their EndUsers under the terms provided herein. Our obligations hereunder are subject to your acceptance of the
entire
5.
Other Policies.
5.1
Pointivity Property. “Pointivity Property” means (a) our proprietary software
applications and third party software applications provided by us to you for use in receiving and using
the Services, including but not limited to those belonging to Microsoft Corporation (“Microsoft”);
Google Postini Anti-Virus and Spam (“Google”); Research In Motion and BlackBerry (“RIM”); Global
Relay (“Globa l Re la y”); (ii) all Pointivity-developed or –supplied technology, technical information,
Page 9
discoveries, ideas, theories, improvements, designs, original works of authorship, processes,
algorithms, inventions, know-how, techniques, and other information, including all of our intermediate
and partial versions thereof; and (c) all documentation, program materials, marketing materials,
flowcharts, notes, outlines, and the like developed in association therewith and/or supplied by us in
connection with the Services and this Agreement.
5.2
Restrictions. You agree that the Services and Pointivity Property involve trade secrets
and other valuable proprietary information belonging to us. You shall not (a) alter, or permit the
alteration of, the Services or any Pointivity Property; (b) copy, or permit the copying of, the Services or
any Pointivity Property; (c) knowingly or negligently take any action that jeopardizes our proprietary
rights in the Services or any Pointivity Property; (d) acquire or seek to acquire any ownership interest
in or to the Services or any Pointivity Property; (e) reverse engineer, decompile, disassemble, or
otherwise attempt to derive source code from the Services or any Pointivity Property; (f) remove,
modify or obscure any copyright, trademark or other proprietary notices that appear during use of the
Services, or any Pointivity Property; (g) except as expressly contemplated herein, license, sell, transfer,
lease, or disclose the Services or any Pointivity Property to any person. Except as expressly provided
herein, nothing in the Agreement shall be interpreted as granting to you or any other Person, any right,
title, or interest in or to any of the Pointivity Property.
5.3
Compliance with Microsoft Terms and Conditions. You (a) acknowledge that our ability to
provide the Services is contingent upon your continued compliance with certain Microsoft terms and
conditions, and (b) agree to the “Notice Regarding Use of Microsoft Software” attached hereto as part
of Appendix D. You further acknowledge our support Services hereunder are not in any way provided
by Microsoft and expressly disclaim, to the extent permitted by applicable law, all warranties by
Microsoft for any damages, whether direct, indirect, or consequential, arising from the use of the
Pointivity Property or in connection herewith.
5.4
Compliance with Google Postini Terms and Conditions. You (a) acknowledge that our
ability to provide the Services is contingent upon your continued compliance with certain Postini terms
and conditions, and (b) agree to the “Notice Regarding Use of Google Postini Services” attached hereto
as part of Appendix D. You further acknowledge our support Services hereunder are not in any way
provided by Google and expressly disclaim, to the extent permitted by applicable law, all warranties by
Google for any damages, whether direct, indirect, or consequential, arising from the use of the
Pointivity Property or in connection herewith.
5.5
Compliance with Research In Motion (RIM) Terms and Conditions. You (a) acknowledge
that our ability to provide the Services is contingent upon your continued compliance with certain RIM
terms and conditions, and (b) agree to the “Notice Regarding Use of RIM Services” attached hereto as
part of Appendix D. You further acknowledge our support Services hereunder are not in any way
provided by RIM and expressly disclaim, to the extent permitted by applicable law, all warranties by
RIM for any damages, whether direct, indirect, or consequential, arising from the use of the Pointivity
Property or in connection herewith.
5.6
Compliance with Global Relay Terms and Conditions. You (a) acknowledge that our ability
to provide the Services is contingent upon your continued compliance with certain Global Relay terms
and conditions, and (b) agree to the “Notice Regarding Use of Global Relay Services” attached hereto
as part of Appendix D. You further acknowledge our support Services hereunder are not in any way
provided by Global Relay and expressly disclaim, to the extent permitted by applicable law, all
warranties by Global Relay for any damages, whether direct, indirect, or consequential, arising from the
use of the Pointivity Property or in connection herewith.
5.7
Non-Conforming or Interfering Use of Services. If we determine that the use of Services
by you or your End-User fails to conform with the terms and conditions of these Policies, then we may
suspend the affected Services until such non-conformity or interference is cured or, alternatively, we
may terminate the Services to the End User and/or terminate the Agreement.
6.
Content. Although we have no obligation to monitor or police the content you or your End
Users place on our servers, when questionable material comes to our attention, we reserves the right
to remove without notice any content that, in our absolute discretion, may result in a violation of any
Page 10
federal, state, common or international laws or regulations or that may be offensive to us or to other
users.
7.
Pointivity Acceptable Use Policy (AUP).
7.1
The acceptable use of the Services is for the purposes set forth in these Policies, the End
User Agreement, and any separate agreement (f any) between us and you or between us and the End
User. An authorized user's right to use the Services is non-exclusive and subject to compliance with the
terms and conditions of this AUP, as posted or published on our website from time to time. We may
amend this AUP in our sole discretion from time to time. The continued use of the Services after a
revised AUP has been posted on our website will be deemed acceptance of the revised AUP. The
following practices are strictly prohibited by Pointivity, whether by its customers, resellers, customers
of resellers or other parties:
•
Using the Services for any unlawful, invasive, infringing, defamatory, or
fraudulent purpose;
•
Using the Services to send unsolicited bulk commercial email ("Ju nk Em a il") of
any kind, regardless of the content or nature of such messages;
•
Intentionally sending any virus, worm, Trojan horse or harmful code or
attachment with the Services;
•
Interfering with the use of the Services by Pointivity customers, authorized
resellers and/or other authorized users;
•
Altering, tampering with or circumventing any aspect of the Services;
•
Reselling, passing-through, renting, leasing, timesharing or branding the Services
or otherwise providing the Services to any party which is not contractually
authorized by Pointivity to receive the Services.
•
Testing or reverse-engineering the Services
vulnerabilities or evade filtering capabilities;
•
Supplying proprietary information about the Services, including but not limited to
screen shots, product documentation, demonstrations, service descriptions,
announcements, or feature roadmaps to unauthorized third parties;
in
order
to
find
limitations,
7.2
If a Pointivity customer, reseller, customer of a reseller or other third party violates any
of the foregoing prohibitions, we may immediately suspend or limit the Services, terminate the
applicable services agreement we have with them, without further liability or obligation by us and/or
take all other action as permitted by contract or applicable law. As between us and the user or reseller
of the Services, all intellectual property and proprietary rights relating to the Services, including but not
limited to any specifications, interfaces, protocols and configurations related to the Services, shall
belong solely and exclusively to us.
7.3
To report suspected violation of this AUP, please contact us at [email protected].
7.4
This AUP will always be available at: http://www.pointivity.com/partners. You should
regularly check that webpage and advise your employees, agents and End Users to regularly check it.
8.
Miscellaneous.
8.1
No Solicitation. You agree that for the duration of this Agreement and for one year
following termination of this Agreement as provided herein, you and your affiliates shall not solicit for
hire or hire any of our employees (or any affiliate of us). You further agree that if you or any of your
affiliates, including but not limited to a owner, subsidiary or brother-sister entity of you, or any officer,
director, or employee of you, directly or indirectly hires as its own employee or independent contractor
an employee of us during the term described in the prior sentence, you shall pay to us a fee equal to
the first year’s gross compensation (including bonuses) offered and paid to the employee/independent
contractor. This fee is due and payable, in full, to us on the first day of employment (or retention, if as
an independent contractor) of the described person by you or the described related person or entity.
Page 11
You further agree that for a period of one year following the termination of this Agreement you shall
not solicit for hire by you any of our subcontractors if that hiring would diminish in any way the
customary or planned services or products we get from that subcontractor, nor will you interfere with
any subcontractor arrangements between the us and that subcontractor. You acknowledge that the
services provided by us are unique and that we have invested a significant amount in hiring, training
and retaining its work force in place and in procuring quality subcontractors. You further acknowledge
that the described fee is a reasonable estimation of the anticipated damages to the us that are
expected to result from the described hiring of its employee.
8.2
Publicity and Advertising. Except in the course of performing pursuant to this Agreement
and only to the limited extent so necessary, you shall not publicize this Agreement, the terms hereof or
the efforts to be or made in connection with performing pursuant to this Agreement without our
express prior written permission.
Page 12
APPENDIX C - Services, Fees and Commissions
1.
Hosted Services and Fees. A copy of our current Hosted Services, Fees and Commissions can
be found at http://www.pointivity.com/partners/legal/hostedservices.html. If you want versions of the
Services, Fees and Commissions applicable to a earlier time during the term of this Agreement, please
contact us in writing (e-mail is sufficient) with that request.
2.
Dedicated Se r ve r s a n d Managed Hosting Solutions: Se r vice s a n d Fe e s. This section
applies to Dedicated servers and Managed Hosting Solutions and utilizing Pointivity as a master hoster.
2.1
You may offer our Services to your customers or new sales Leads. You acknowledge and
agree that in order for a Lead to qualify as a Lead upon which Commissions will be paid, the following
must have occurred:
2.2
anyone:
2.3
a)
You must have actively participated in the introduction of the Lead to the PAM;
and
b)
You must continue to actively participate in support of the sales process with the
Lead; and
c)
The Lead and we must agree to the terms and conditions upon which Pointivity
provides the Services.
You acknowledge and agree that no commission will be paid by us to you with respect to
a)
That was an existing customer of us at the time of the referral from you;
b)
With whom we already have been involved in preliminary or advanced discussions
relating toward the sale or license to Lead;
c)
For whom a Lead has previously been submitted to us by another reseller or any
other third party; or
d)
By any reseller who is (or who is the family member of) an employee, intern,
contractor or ours without the express written permission of our executive
management.
Dedicated Server and Managed Hosting Solutions Terms
a)
Your compensation is either: (a) a Commission, as described in this Agreement
(e.g., see Section 2.4 below), or (b) to mark up and resell our Dedicated Server
and Managed Hosting Solutions (“Mark- up”).
b)
You must notify us in advance whether you want to be paid a Commission or if
you prefer to Mark-Up. Absent such notification from you, you will be paid a
Commission.
c)
Upon your request, we can provide private label or white label solutions for you.
You will need to pay for any additional costs related to private label or white label
of our Dedicated Server and Managed Hosting Solutions.
d)
If you are Microsoft Reseller you many request SPLA credit for our Dedicated
Server and Managed Hosting Solutions. Pointivity must be notified at the time of
the Lead introduction of Reseller’s request for SPLA credit.
e)
Other Information. For more information about our partner offerings, please visit
http://www.pointivity.com/partners.
Page 13
2.4
Commission Terms.
a)
General.
i)
Commissions will be based on Net Revenue. “N e t Re ve nu e ” means gross
revenue to us, less any refunds, charge backs, credits, or sales taxes paid by us.
ii)
Commissions will be paid for the “Life” of our relationship with the
customer during or after the term of the Agreement, namely for so long as the
customer continues using the Services during the term of this Agreement. Life of
the customer relationship includes the initial contact, contract terms, contract
changes and any contract renewals with Lead including the purchase of additional
services or solutions from us during the term of this Agreement. No further
Commissions will be paid for any period beginning after the termination of this
Agreement.
iii)
No Commissions will be paid to you for professional services, support or
help desk services, training services or software and hardware products purchased
by us or the Lead under this Agreement or any other agreement between us and
Lead.
b)
3.
Commission. We will pay you a fee (the “Commission”) equal to ten percent
(10%) of the “Net Revenue” for each Lead accepted by us and resulting, during
the term of this Agreement, in an agreement for Services between us and that
Lead. Commissions shall be paid to you by the last day of the month following
the month in which we receive payment of any fees from the Lead. You will not
receive a Commission if the terms of this Agreement are not met. It is your
responsibility to identify new sales and leads for each calendar year.
Service Rates: The table below outlines our current service rates which you may incur if you
request us to assist in any deployment, migration, plan implementation which falls outside of
the services outlined in Section 1 above. You will be notified, prior to us commencing work, in
writing that the services being provided will be billable per the rates below. *Remote services
billed in 1/4 hour increments.
Engineering Rates
Tier One Help Desk Services*
Rate
7am-6pm PST M-F
$ 95/Hour
Tier Two Engineering Services* 8am-5pm PST M-F
$135/Hour
Tier Three Senior Engineering Services* 8am-5pm PST M-F
$150/Hour
Engineering Rates - After Business Hours
Tier One Help Desk Services* 6:01pm to 6:59am PST Monday-- Friday & $110/Hour
weekends
Tier Two Engineering Services* 5:01pm to 7:59am PST Monday - Friday & $150/Hour
weekends
Tier Three Senior Engineering Services* 5:01pm to 7:59am PST M-F & weekends $185/Hour
Page 14
APPENDIX D – Third Party Terms and Conditions
1. Postini Acceptable Use Policy (Version: March 7, 2007)
The acceptable use of the Postini services (the "Services") is for the purposes set forth in the applicable
contract between Postini and its customer, reseller or other authorized user. An authorized user's right
to use the Services is non-exclusive and subject to compliance with the terms and conditions of this
AUP, as posted or published on Postini's website from time to time. Postini may amend this AUP in its
sole discretion from time to time. The continued use of the Services after a revised AUP has been
posted on Postini's website will be deemed acceptance of this AUP. The following practices are strictly
prohibited by Postini, whether by its customers, resellers, customers of resellers or other parties:
Using the Services for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
Using the Services to send unsolicited bulk commercial email ("Junk Email") of any kind,
regardless of the content or nature of such messages;
Intentionally sending any virus, worm, Trojan horse or harmful code or attachment with the
Services;
Interfering with the use of the Services by Postini's customers, authorized resellers and/or
other authorized users;
Altering, tampering with or circumventing any aspect of the Services;
Reselling, passing-through, renting, leasing, timesharing or branding the Services or
otherwise providing the Services to any party which is not contractually authorized by Postini
to receive the Services.
Testing or reverse-engineering the Services in order to find limitations, vulnerabilities or
evade filtering capabilities;
Supplying proprietary information about the Services, including but not limited to screen
shots, product documentation, demonstrations, service descriptions, announcements, or
feature roadmaps to unauthorized third parties;
Using the Services in a manner not authorized, including use of any features that filter
electronic messages for users where a Postini Message Center Account has not been
established (except as may be permitted in writing by Postini).
If a Postini customer, reseller, customer of a reseller or other third party violates any of the foregoing
prohibitions, Postini may immediately suspend or limit the Services, terminate the applicable Postini
services agreement without further liability or obligation to Customer and/or take all other action as
contractually permitted. As between Postini and Customer, all intellectual property and proprietary
rights relating to the Services, including but not limited to any specifications, interfaces, protocols and
configurations related to the Services, shall belong solely and exclusively to Postini.
To
report
suspected
violation
of
this
http://www.postini.com/about_postini/complaints.php.
AUP,
please
contact
us
at
This AUP will always be available at: http://www.postini.com/legal/aup.php
Page 15
2. RIM / BlackBerry Acceptable Use Policy
RESEARCH IN MOTION USE – TERMS AND CONDITIONS
This Appendix is required as a result of Your use of Research in Motion (“RIM”) software, hardware and
services as well as any printed or electronic documentation or associated media (“the RIM Products”)
provided by Pointivity and is in addition to the terms and conditions of the Master Agreement. Pointivity
does not own the RIM Products and the use thereof is subject to certain rights and limitations of which
Pointivity needs to inform You. Your right to use the RIM Products is subject to Your agreement with
Pointivity, and to Your understanding of, compliance with and consent to the following terms and
conditions.
1. DEFINITIONS. Capitalized terms used herein but not otherwise defined shall have their respective
meanings set forth in the Master Agreement. For purposes of this Appendix, the following definition
shall apply:
“En d Use r ” solely for the purpose of this Appendix shall mean You and any related party for whom
Pointivity operates a messaging platform and who is authorized directly or indirectly by Pointivity to
access the RIM Products, or otherwise to whom the functionality of the RIM Products is made
available by Pointivity, directly or indirectly. “End Users” shall include Your employees or
independent contractors who access the RIM Products, or otherwise to whom the functionality of the
RIM Products is made available by Pointivity.
“En d Use r D ata” means any information or data of any kind that personally identifies (or that can
be used, together with other information or data, to personally identify) an End User.
2. Use. Each End User is prohibited from using the RIM Products for any purpose other than the
internal business or personal purposes of the End User. You shall be responsible for each End User’s
compliance with this Appendix.
3. Ex clu sion of Lia bilit y. IN NO EVENT SHALL RIM AND RIM’S AGENTS BE LIABLE TO ANY END USER
FOR, ANY INDIRECT, ECONOMIC, SPECIAL, PUNITIVE, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS
REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE
EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THIS
APPENDIX OR THE END USER’S USE OF THE RIM PRODUCTS, WHETHER OR NOT SUCH DAMAGES
COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD WAS DISCLOSED TO THE PARTIES.
4. Applica t ion of Lim it a t ions, Ex clu sions a n d D iscla im e r s. The limitations, exclusions and
disclaimers set out in the Master Agreement and this Appendix shall apply: (a) whether an action, claim
or demand arises from a breach of warranty or condition, breach of contract, tort (including
negligence), strict liability or any other kind of civil or statutory liability connected with or arising out of
the Master Agreement, this Appendix or the RIM Products; and (b) to RIM and to RIM’s affiliated
companies as well as to RIM to RIM’s affiliated companies’ director, officers, employees, and
independent contractors. Some jurisdictions do not allow limitation or exclusions of certain types of
damages and/or of implied conditions or warranties.
5. Te r m in a t ion for Br e a ch . In the event that the End User breaches the Master Agreement, including
without limitation, any provision of this Appendix, Pointivity shall have the right, in its sole discretion,
to immediately terminate the Master Agreement with the End User for cause or to terminate the portion
of the Services to which such breach pertains.
6. Tr a n sit ion Pe r iod u pon Te r m in a t ion . Upon termination of Pointivity’s Master Alliance Agreement
with RIM and any subsequent transition period, this Appendix shall terminate.
Page 16
7. Liability. As a condition of Pointivity’s ability to provide access to the RIM Products to End Users,
End User shall be liable to Pointivity for any and all damages caused as a result of any breach of the
Agreement by such End User without limitation or exception.
8. En d Use r D a t a . The End User hereby consents to Pointivity providing End User Data to RIM solely
for the purpose of facilitating the transition of End Users to an alternative solution in the event of a
termination of the Pointivity’s Master Alliance Agreement with RIM.
9. N o Tr oj a n H or se s. End User shall not distribute in any way, any viruses, contaminating or
destructive features, “backdoors”, “time bombs”, “Trojan horses”, “sniffer” routines, “worms”, bots,
“drop
dead devices”, harmful software code, file, program or
programming routine or other
contaminating or destructive features or other computer software routines or hardware components
designed to: (i) permit unauthorized access to, or use of, the RIM Products or computer systems on
which the RIM Products are loaded, or to which RIM Products are linked; (ii) disable, damage or erase
the RIM Products; or (iii) perform any other similar actions that would preclude full use of the RIM
Products by RIM, its channel partners, its authorized sub-licensees, or their end users.
10. Re pr e se n t a t ion s a n d W a r r a n t ie s. In addition to any similar representations and warranties in
any applicable RIM agreement, End User represents and warrants that it will not (a) incorporate any
data, content, files or materials in any medium distributed by End User, or in conjunction with the End
User products or services, that: (i) includes content, material, graphics, sounds, video, screens, code or
information that is unlawful or fraudulent, or violates or infringes any patent, copyright, trademark,
trade secret or any other intellectual property of others; (ii) includes any inappropriate language or
material that is unlawful, libelous, slanderous, defamatory or invasive of another person’s right of
privacy or right of publicity or personality, or that RIM may reasonably deem harmful, vulgar, obscene,
derogatory, pornographic, abusive, harassing, threatening, hateful, objectionable with respect to race
religion, sexual orientation, age group, national origin or gender, injurious to the reputation or business
goodwill of RIM or the BlackBerry brand or otherwise unfit for publication; or (b) publish, transmit,
distribute or upload any unauthorized or unsolicited bulk e-mail solicitations, chain letters,
advertisements, marketing or promotional materials, “junk mail”, “spam”, pyramid schemes or any
other solicitations or communications, including without limitation spamming the RIM Products or other
mobile phones or computers, or uses or collects RIM Product user e-mail addresses or phone numbers,
or other user information for any purpose other than the legitimate internal purposes of End User, or
uses the RIM Products to perform any data collection, extraction or mining or gain or attempt to gain
unauthorized access to the wireless device memory and software programs or applications.
11. Re st r ict ion s on Use . End User shall not use the RIM Products to commit or attempt to commit a
crime or facilitate the commission of any crime or other illegal or tortuous act.
12. Cooperation. End User shall cooperate with Pointivity and/or its licensors and provide information
and copies of records requested by Pointivity and/or its licensors to assist Pointivity in investigating or
determining whether there has been a breach of any and all agreements by and between End User and
Pointivity and/or its licensors.
Page 17
3 . Microsoft SPLA Acceptable Use Policy
MICROSOFT SOFTWARE USE TERMS AND CONDITIONS
This document concerns your use of Microsoft software, which includes computer software provided to
you by Pointivity as described below, and may include associated media, printed materials, and “online”
or electronic documentation (individually or collectively “SOFTWARE PRODUCTS”). Pointivity does not
own the SOFTWARE PRODUCTS and the use thereof is subject to certain rights and limitations of which
Pointivity needs to inform you. Your right to use the SOFTWARE PRODUCTS is subject to your
agreement with Pointivity, and to your understanding of, compliance with and consent to the following
terms and conditions, which Pointivity does not have authority to vary, alter or amend.
1. DEFINITIONS. For purposes of this Appendix, the following definitions shall apply:
“Client Software” means software that allows a Device to access or utilize the services or functionality
provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal
digital assistant, “smart phone”, or other electronic device.
“Se r ve r Soft w a r e ” means software that provides services or functionality on a computer acting as a
server.
“Re dist r ibu t ion Soft w a r e ” means software described in Paragraph 4 (“Use of Redistribution
Software”) below.
2. OW N ERSH I P OF SOFTW ARE PROD UCTS. The SOFTWARE PRODUCTS are licensed to Pointivity
from an affiliate of the Microsoft Corporation (“Microsoft”). All title and intellectual property rights in
and to the SOFTWARE PRODUCTS (and the constituent elements thereof, including but not limited to
any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the
SOFTWARE PRODUCTS) are owned by Microsoft or its suppliers. The SOFTWARE PRODUCTS are
protected by copyright laws and international copyright treaties, as well as other intellectual property
laws and treaties. Your possession, access, or use of the SOFTWARE PRODUCTS does not transfer any
ownership of SOFTWARE PRODUCTS or any intellectual property rights to you.
3. USE OF CLI EN T SOFTW ARE. You may use the Client Software installed on your Devices by
Pointivity only in accordance with the instructions, and only in connection with the services, provided by
you by Pointivity.
4. USE OF RED I STRI BUTI ON SOFTW ARE. In connection with the services provided to you by
Pointivity, you may have access to certain “sample,” “redistributable” and/or software development
(“SDK”) software code and tools (individually and collectively “Redistribution Software”). YOU M AY
N OT USE, M OD I FY, COPY, AN D / OR D I STRI BUTE AN Y RED I STRI BUTI ON SOFTW ARE UN LESS
YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN
TH E SERVI CES PROVI D ER USE RI GH TS ( “SPUR”) APPLI CABLE TO POINTIVITY, W H I CH
TERM S M UST BE PROVI D ED TO YOU BY POINTIVITY. Microsoft does not permit you to use any
Redistribution Software unless you expressly agree to and comply with such additional terms, as
provided to you by Pointivity.
4.
COPIES. You may not make any copies of the SOFTWARE PRODUCTS; provided, however, that
you may (a) make one (1) copy of Client Software on your Device as expressly authorized by
Pointivity; and (b) you may make copies of certain Redistribution Software in accordance with
Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software
and/or Redistribution Software upon termination or cancellation of your agreement with Pointivity, upon
Page 18
notice from Pointivity or upon transfer of your Device to another person or entity, whichever first
occurs. You may not copy any printed materials accompanying the SOFTWARE PRODUCTS.
6. LI M I TATI ON S ON REVERSE EN GI N EERI N G, D ECOM PI LATI ON AN D D I SASSEM BLY. You may
not reverse engineer, decompile, or disassemble the SOFTWARE PRODUCTS, except and only to the
extent that applicable law, notwithstanding this limitation expressly permits such activity.
7. N O REN TAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute
SOFTWARE PRODUCTS to any third party, and you may not permit any third party to have access to
and/or use the functionality of the SOFTWARE PRODUCTS.
8. TERMINATION. Without prejudice to any other rights, Pointivity may terminate your rights to use
the SOFTWARE PRODUCTS if you fail to comply with these terms and conditions. In the event of
termination or cancellation, you must stop using and/or accessing the SOFTWARE PRODUCTS, and
destroy all copies of the SOFTWARE PRODUCTS and all of its component parts.
9. N O W ARRAN TI ES, LI ABI LI TI ES OR REM ED I ES BY M I CROSOFT. ANY WARRANTIES, LIABILITY
FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY POINTIVITY AND NOT BY
MICROSOFT OR ITS AFFILIATES OR SUBSIDIARIES.
10. PROD UCT SUPPORT. Any product support for the SOFTWARE PRODUCTS is provided to you by
Pointivity and is not provided by Microsoft or its affiliates or subsidiaries.
11. N OT FAULT TOLERAN T. THE SOFTWARE PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT
FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN
ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE PRODUCTS COULD
LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
12. EXPORT RESTRI CTI ON S. The SOFTWARE PRODUCTS are of U.S. origin for purposes of U.S.
export control laws. You agree to comply with all applicable international and national laws that apply
to the SOFTWARE PRODUCTS, including U.S. Export Administration Regulations, as well as end-user,
end-use and destination restrictions issue by U.S. and other governments. For additional information,
see http://www.microsoft.com/exporting/.
13. LI ABI LI TY FOR BREACH . In addition to any liability you may have to Pointivity, you agree that
you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
Page 19
4 . Global Relay Services Acceptable Use Policy
This Acceptable Use Policy describes the proper kinds of conduct and prohibited uses of Global Relay’s
Services. This Acceptable Use Policy is not exhaustive and Global Relay reserves the right to modify this
Acceptable Use Policy at any time, effective upon posting of the modified Acceptable Use Policy to
www.globalrelay.com/acceptable_use_policy.html. Changes to this Acceptable Use Policy are deemed
to be communicated to Customers, Resellers, employees and other users (each, a “User”) upon their
posting on this website.
1. General Responsibilities
Global Relay expects all Users of the Services, to take responsibility in using the Internet with courtesy
and responsibility, and be familiar with and practice good Internet etiquette.
Any violation of this Acceptable Use Policy may result in the suspension or cancellation of a Service or
Services or termination of the Services Agreement or Reseller Agreement, or such other action as
Global Relay deems appropriate. Global Relay will not be held liable for the suspension or cancellation
of a Service if, in Global Relay’s sole discretion, this Acceptable Use Policy has been violated.
The Customer shall remain solely liable and responsible for its use of the Services and any and all
content that the Customer may display, upload, download or transmit through the use of the Services,
as applicable.
2. Content
The Services may be used only for lawful purposes. The transmission, distribution or storage of any
material in violation of any applicable law or regulation is prohibited, including, without limitation:
i.
ii.
Infringement of intellectual property rights or other proprietary rights material protected by
patent, copyright, trademark, service mark, trade secret or other intellectual property rights
used without proper authorization; or
site content, or the transmission of data that contains illegal or obscene material or fosters or
promotes illegal activity.
The following non-exhaustive list details the kinds of illegal or harmful conduct that are prohibited:
Infringement may result from, among other activities, the unauthorized copying and posting of
pictures, logos, software, articles, musical works, and videos.
Transmission or dissemination of, sale, storage or hosting of material that is unlawful, libelous,
defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of
privacy or publicity rights, abusive, inflammatory or otherwise objectionable.
Posting or sending of software or technical information in violation of applicable laws.
Disseminating or hosting harmful content including, without limitation, viruses, Trojan horses,
worms, time bombs or any other computer programming routines that may damage, interfere
with, surreptitiously intercept or expropriate any System, program, Data or personal
information.
Page 20
Offering or disseminating fraudulent goods, services, schemes, or promotions (i.e., make money
fast schemes, chain letters, pyramid schemes), or furnishing false data on any signup form,
contract or online application or registration, or the fraudulent use of any information obtained
through the use of the Services, including without limitation use of false or stolen credit card
numbers.
Whether lawful or unlawful, Global Relay reserves the right to restrict or prohibit any and all uses of the
Services or Data on its Systems and to remove such materials from its Systems that Global Relay
determines, in its sole discretion, is harmful to its Systems, network, reputation, goodwill, other
customers of Global Relay, or any third party, and may take any action it deems fit to resolve the
situation.
3. Access and Interference
Violations or attempts to violate Global Relay’s Systems or to interrupt Global Relay’s Services are
strictly prohibited, and may result in criminal and civil liability. Global Relay may investigate incidents
involving such violations and will involve and will co-operate with law enforcement agencies if a criminal
violation is suspected.
Examples of System violations include, without limitation, the following:
Unauthorized access to or use of the Services, Data, or the Systems, including any attempt to
probe, scan or overload a Company System or Service, or to breach security or authentication
measures without express authorization.
Unauthorized monitoring of Data or traffic on any System without express authorization.
Interference with Service to any User, host or System including, without limitation, mailbombing, flooding, deliberate attempts to overload a System and broadcast attacks.
Any action that imposes an unreasonable or disproportionately large load on Global Relay's
infrastructure.
Intentional interference also means the use of any kind of program/script/command, or sent
messages of any kind, designed to interfere with a User's terminal session, via any means,
locally or by the Internet.
Using manual or electronic means to avoid any use limitations placed on the Services such as
timing out.
Any attempt to decompile, disassemble, decrypt, extract, reverse engineer or otherwise attempt
to derive the source code (including the methods, processes, and infrastructure) underlying the
Services or any other software in connection with the Services.
If approached with complaints relating to any of the above violations, Global Relay will cooperate and
assist the police and law enforcement bodies with their investigations in order to bring such misuse and
violations to an end.
4. System Performance
Global Relay considers that any application that overloads Global Relay’s System by whatever means
will be considered as making reckless use of Global Relay’s System and as such is not allowed. Global
Relay may prohibit the running of any such application which, in its sole judgment, endangers the
stability or performance of Global Relay’s Systems. Use of IP multicast other than by means provided
and coordinated by Global Relay is likewise prohibited.
Page 21
I N D I RECT OR ATTEM PTED VI OLATI ON S OF TH I S POLI CY, AN D ACTUAL OR ATTEM PTED
VI OLATI ON S BY A TH I RD PARTY ON BEH ALF OF A USER OR A CUSTOM ER'S OR RESELLER’S
EN D USER, SH ALL BE CON SI D ERED VI OLATI ON S OF TH I S POLI CY BY SUCH CUSTOM ER,
RESELLER OR END USER.
To report of any alleged infringements of this Acceptable Use Policy or any alleged abuse of the
Services, including spamming, mailbombing, and trolling to Global Relay, please email:
[email protected].
Questions or Comments
If there are any questions or concerns about this Policy, please contact us at [email protected]
Page 22
5 . Scalix Licensing, Terms and Acceptable Use Policy
1.
DEFINITIONS.
For purposes of this Agreement the following terms shall have the meanings set forth below:
1.1
“Documentation” means such manuals, guides, and other similar publications relating to
the applicable components of the Scalix Software that Scalix generally provides to its licensees from
time to time.
1.2
“End-User” means any person or entity located in the Territory who obtains or wishes to
obtain Scalix Software for such End-User's own internal business purposes in the Territory, and not for
transfer, sale, sublicense, distribution or release to third parties.
1.3
“Scalix List Price” means a standing list of product pricing for Scalix Software maintained
by Scalix. The Scalix List Price may be changed from time to time at Scalix’s discretion, and any such
change will be effective ninety (90) days following notice of such change to Reseller.
1.4
“Scalix Software” means the Scalix Collaboration Platform, Scalix Enterprise Edition,
Scalix
Small
Business
Edition,
Scalix
Connect
Software,
Scalix
Migration
Tool
and
[_______N/A_____________], in executable form, as well as any patches, updates, or upgrades
thereto, that Scalix provides to Reseller.
1.5
“Territory” means _____North America_____________________________.
2.
APPOINTMENT OF RESELLER; LICENSE GRANT.
2.1
Appointment of Reseller. Scalix hereby grants to Reseller non-exclusive rights to
promote Scalix Software and arrange designated agreements for licensing Scalix Software to End-Users
in the Territory. Reseller is also hereby granted the non-exclusive right to provide services, seminars,
and training using the Scalix Software to End-Users in the Territory.
2.2
License Grant for Scalix Software. Subject to the terms and conditions of this Agreement,
Scalix grants Reseller a non-exclusive, non-transferable license to use Scalix Software (in object code
only) and Documentation in order to promote and market Scalix Software to End-Users in the Territory.
Reseller shall have no right to reproduce the Scalix Software, nor any right to lend, rent, lease, or
otherwise distribute the Scalix Software except as otherwise specifically described herein. All copies of
Scalix Software distributed to End-Users shall be distributed only pursuant to either (i) a download of
Scalix Software from Scalix’s website pursuant to Scalix’s then-current Evaluation License, as amended
from time to time at Scalix’s discretion (a copy of the now current Evaluation License is available on
Scalix’s website at www.scalix.com), or (ii) Scalix’s then-current End-User License Agreement, as
amended from time to time at Scalix’s discretion, in each case after the End-User has properly
executed such license with Scalix (by electronic agreement or otherwise).
2.3
Licensing Restriction. Reseller agrees not to cause or permit the reverse engineering,
translation, disassembly, or decompilation of, or otherwise to attempt to derive the source code of, the
Scalix Software, whether in whole or in part. Reseller shall not itself, and shall not permit or encourage
any third party to, use the Scalix Software on a service bureau basis, to rent, lease, distribute, transfer,
or make any derivative works of or changes, modification, or enhancements to the Scalix Software.
Reseller shall not disclose or publish performance benchmark results for Scalix Software without
Scalix’s written consent. Reseller shall not use the Scalix Software in any manner which is a violation of
law or regulation.
2.4
Proprietary Notices. Reseller shall not remove, alter, efface, or obscure any copyright
notices or other proprietary notices or legends from any Scalix Software or other material provided
hereunder, and Reseller shall reproduce all such notices and legends whenever any such notices appear
in the Scalix Software or the Documentation.
2.5
Ownership. Except as specifically provided herein, Scalix and its licensors retain all right,
title, and interest, including all intellectual property rights, in and to the Scalix Software. Except for the
express licenses in Sections 2.1 and 2.2, Scalix and its licensors reserve all rights in and to the Scalix
Software.
Page 23
3.
RESELLER OBLIGATIONS.
3.1
Marketing and Promotion. Reseller shall use its best efforts to market and promote Scalix
Software in the Territory. Reseller shall maintain an adequately-sized and properly-trained sales
organization to assure maximum market penetration by Scalix Software in the Territory.
3.2
Named Sales Engineers and Sales Professionals. As of the execution date of this
Agreement, Reseller shall retain not less than one (1) trained and certified sales engineer(s) and not
less than ___One___ (_1_) sales professional(s) who will promote, sell, install, and support Scalix
Software in the Territory,. Reseller will also maintain the financial and managerial capabilities
necessary to vigorously promote the distribution and use of Scalix Software. Reseller shall name one
sales engineer as the “Primary Sales Engineer.
3.3
Installation Services. Reseller understands that End-User satisfaction is a very important
business objective of Scalix. Reseller therefore covenants and agrees that during the term of this
Agreement, it will offer professional installation and training services to every End-User in the Territory
that expresses interest in such services. Such installation and professional services, when delivered,
shall be of good and workmanlike quality.
3.4
Support and Maintenance. Reseller agrees to provide support services to End-Users.
3.5
Restriction on Distribution. Reseller will not sell or otherwise provide any Scalix Software
to persons or entities who (i) it has reason to believe is competing with or developing products to
compete with Scalix Software, or (ii) it has reason to believe may decompile, disassemble, or reverseengineer the Scalix Software or make copies of the Scalix Software in violation of the Evaluation
License or End-User License Agreement, and Reseller will not itself engage in any of the above
activities.
3.6
Compliance with Laws. Reseller shall comply with all laws and regulations applicable to its
business, including without limitation, those laws and regulations applicable to Reseller’s promotion and
marketing of Scalix Software. Without limiting the foregoing in any way, Reseller shall, at its own
expense, make, obtain, and maintain in force at all times during the term of this Agreement, all filings,
registrations, licenses, permits, and authorizations in the Territory required for Reseller to perform its
obligations under this Agreement, and, if requested, shall provide Scalix with English language
translations thereof.
3.7
No Representations. Reseller and its employees shall not have any authority to and shall
not make any representation or warranty on behalf of Scalix. Reseller and its employees shall not in
any manner assume or attempt to create any obligation or responsibility, expressed or implied, on
behalf of or in the name of Scalix, or act for or bind Scalix in any respect except as expressly permitted
pursuant to this Agreement.
3.8
Protection of Scalix Proprietary Rights. Reseller shall cooperate without charge to Scalix
in Scalix’s efforts to protect Scalix’s and its licensors’ rights in Scalix Software. Reseller shall promptly
notify Scalix of any infringements of Scalix’s proprietary rights that come to Reseller’s attention. Scalix
shall have the exclusive right to institute infringement or other appropriate legal action against
infringers of its proprietary rights.
3.9
Level of Service to End-Users. Reseller covenants and agrees that it will fulfill all of its
contractual and legal obligations to its customers. Reseller covenants that it will (i) provide End-Users
with first quality sales and technical support, (ii) promptly, courteously, and appropriately respond to
its customers’ questions, concerns, and complaints, and (iii) generally deal with its customers in a
professional manner that will add to the good reputation of Scalix.
4.
PRICING AND ORDER FULFILLMENT.
4.1
Changes to Pricing. Scalix, in its sole discretion, may change its Price List as regards
Reseller from time to time upon not less than ninety (90) days written notice to Reseller.
4.2
Taxes. Reseller shall pay all levies, duties, and taxes, including any sales, use, or valueadded taxes, however designated, imposed as a result of the existence or operation of this Agreement
or of any purchase orders generated hereunder, except any lawful income tax imposed upon Scalix by
any governmental entity. Upon the written request of Scalix, Reseller shall promptly furnish Scalix with
evidence of exemption or payment or withholding of any taxes that may be required.
Page 24
5.
SCALIX OBLIGATIONS.
5.1
Marketing and Promotion. Scalix shall provide, at its cost, reasonable marketing and
sales collateral material to Reseller for Reseller’s use in promoting the Scalix Software in the Territory.
6.
USE OF TRADEMARKS.
6.1
Scalix Trademarks. During the term of this Agreement, Reseller shall have the right to
use and reproduce the trademarks and servicemarks of Scalix used in connection with the Scalix
Software and Documentation solely to promote and market the Scalix Software in the Territory.
Reseller’s use of such marks shall not create any right, title, or interest therein. Reseller shall use such
marks only in a manner which complies in all material respects with Scalix’s reasonable policies in
effect from time to time, and all such use shall be for Scalix’s benefit. If Reseller, in the course of
promoting or distributing the Scalix Software, acquires any goodwill or reputation in any of the Scalix
marks, all such goodwill or reputation shall automatically be transferred to and shall vest in Scalix when
and as, on an ongoing basis, such acquisition of goodwill or reputation occurs, as well as at the
expiration of this Agreement, without any separate payment or consideration of any kind to Reseller.
Reseller shall not adopt, use, or register whether as a corporate name, website, trademark, service
mark, or other indication of origin, any of the Scalix marks or any word or mark confusingly similar to
the Scalix marks in any jurisdiction.
6.2
Reseller Trademarks. During the term of this Agreement, Scalix shall have the right to
use and reproduce the trademarks and servicemarks of Reseller solely to identify Reseller as a business
partner of Scalix, and solely in a manner which complies in all material respects with Reseller’s
reasonable policies in effect from time to time.
7.
LIMITED WARRANTIES.
7.1
Limited Warranty. Scalix warrants that for a period of ninety (90) days following delivery
of the Scalix Software to Reseller, the Scalix Software will perform substantially in accordance with the
accompanying Documentation, provided that: (a) Reseller is using the Scalix Software in accordance
with Scalix’s hardware and software guidelines; (b) any error or defect detected is reproducible by
Scalix; (c) the performance issue, error, or defect does not relate to third-party software; and (d)
Reseller notifies Scalix of such nonconformance within the warranty period. Neither Scalix nor its
licensors represent or warrant that the Scalix Software will be error-free or will operate without
interruption.
7.2
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, SCALIX
HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO
THE SCALIX SOFTWARE, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF
DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8.
INDEMNIFICATION.
8.1
Indemnity. Scalix shall defend or settle and pay any damages finally awarded, claims,
costs, and fees (including reasonable attorneys’ fees) with respect to any third-party claims brought
against Reseller that the Scalix Software as used within the scope of this Agreement infringes any trade
secret or United States copyright of any third party, provided that (a) Reseller notifies Scalix promptly
in writing of the claim; (b) Scalix has sole control of the defense and all related settlement
negotiations; and (c) Reseller provides Scalix with all necessary assistance, information, and authority
to perform these duties. To the extent that any delay by Reseller in notifying Scalix results in any cost,
expense, or liability to Scalix which would otherwise have been avoided, Scalix shall be relieved of its
obligation to indemnify and shall be entitled to deduct such amount from sums paid or collect such
amount from Reseller.
8.2
Exclusions. Neither Scalix nor its licensors shall have any liability for any claim of
infringement based on or arising from (a) use of any version other than the latest commercially
available version of the Scalix Software made available to Reseller, to the extent the infringement
Page 25
would have been avoided by use of such version; (b) modification of the Scalix Software by Reseller or
any third party; (c) use of the Scalix Software which exceeds the licenses granted by Scalix; or (d) the
combination or use of the Scalix Software furnished hereunder with materials not furnished by Scalix to
the extent such infringement would have been avoided by use of the Scalix Software alone.
8.3
Remedies. In the event the Scalix Software is held to, or Scalix believes is likely to be
held to, infringe any third-party intellectual property rights, Scalix shall have the right at its sole option
and expense to (i) substitute or modify the Scalix Software so that it is non-infringing, while retaining
substantially equivalent features and functionality as set forth in the Documentation; (ii) obtain for
Reseller a license to continue using the Scalix Software under commercially reasonable terms; or (iii) if
(i) and (ii) are not reasonably practicable as determined by Scalix, terminate this Agreement as to the
infringing Scalix Software and return to Reseller the license fees paid to Scalix with respect thereto,
depreciated on a 5-year straight-line basis from the Effective Date in full and complete satisfaction of
Scalix’s and its licensors’ liability hereunder.
8.4
Sole Obligation. The foregoing indemnity states the sole obligation and exclusive liability
of Scalix and its licensors, and Reseller’s sole recourse and remedy, for any claim of infringement of an
intellectual
property
right
or
proprietary
right
by
the
Scalix
Software.
9.
TERM AND TERMINATION.
9.1
Term. This Agreement shall become effective on the Effective Date and shall remain in
effect for one (1) year. At the end of the initial one year term, this Agreement shall remain in effect
unless terminated as permitted by this Agreement.
9.2
Termination. If at any time either party defaults in a payment or other material obligation
under this Agreement and, in the case of breaches capable of cure (other than the payment of license
or other fees payable to Scalix), fails to completely cure such default for a period of thirty (30) days
after written notice of default from the non-breaching party, the non-breaching party may immediately
terminate this Agreement, upon written notice of termination given to the defaulting party. Scalix may
terminate this Agreement by written notice immediately upon any breach of Sections 2 or 10 of this
Agreement. This Agreement shall terminate upon the election of and notice from a party to the other if
the other party is adjudged insolvent or bankrupt, or the institution of any proceedings by or against
the other party seeking relief, reorganization or arrangement under any laws relating to insolvency, or
any assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee of
any of the other party’s property or assets, or the liquidation, dissolution or winding up of the other
party’s business. Following the initial one year term of this Agreement, either party may terminate this
Agreement upon ninety (90) days’ written notice.
9.3
Effect of Termination. Upon termination of this Agreement for any reason, (i) all rights
and licenses granted to Reseller shall automatically terminate, and (ii) Reseller shall certify to Scalix
that all of the Scalix Software and Documentation in Reseller’s possession has been destroyed or
erased from Reseller’s equipment. Sections 1, 2.4, 2.5, 3.9, 4.3, 7, 8, 9.3, 10, 11, and 12 shall survive
any expiration or termination of this Agreement. Except as expressly provided otherwise in this
Agreement, (i) all remedies available to either party are cumulative and not exclusive; and (ii)
termination of this Agreement or any license shall not limit either party from pursuing other remedies
available to it, including injunctive relief. Upon termination, all amounts owed under this Agreement
shall immediately become due and payable.
10.
CONFIDENTIALITY.
10.1 Definition. For purposes of this Agreement, “Confidential Information” of a party means
non-public information or materials disclosed or otherwise provided by such party (“Disclosing Party”)
to the other party (“Receiving Party”) that are identified as confidential or proprietary. This Agreement
is expressly included in the definition of “Confidential Information.” Confidential Information does not
include that which (i) was known to the Receiving Party, without restriction and without duty of
confidentiality, at the time of disclosure, as evidenced by the written records of Receiving Party, (ii) is
or becomes part of public knowledge other than as a result of any action or inaction of the Receiving
Party, (iii) is obtained by the Receiving Party from an unrelated third party without a duty of
Page 26
confidentiality, or (iv) is independently developed by the Receiving Party without reliance upon or use
of the Confidential Information of the Disclosing Party.
10.2 Restrictions on Use and Disclosure. The Receiving Party shall not use Confidential
Information of the Disclosing Party for any purpose other than in furtherance of this Agreement and the
activities described herein. The Receiving Party shall not disclose Confidential Information of the
Disclosing Party to any third parties except as otherwise permitted hereunder. The Receiving Party may
disclose Confidential Information of the Disclosing Party only to those related parties who have a need
to know such Confidential Information and who are bound to retain the confidentiality thereof under
provisions no less restrictive than those required by the Receiving Party for its own comparable
Confidential Information. The Receiving Party shall maintain Confidential Information of the Disclosing
Party with at least the same degree of care it uses to protect its own proprietary information of a
similar nature or sensitivity, but in no event with less than reasonable care.
11.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL SCALIX OR ITS LICENSORS HAVE ANY LIABILITY TO RESELLER OR ANYONE
CLAIMING THROUGH OR UNDER RESELLER FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT
DOWNTIME, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN ANY
WAY ARISING OUT OF THIS AGREEMENT AND HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY, EVEN IF SCALIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT SHALL SCALIX’S CUMULATIVE LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE
AMOUNTS ACTUALLY PAID BY RESELLER TO SCALIX PURSUANT TO THIS AGREEMENT WITHIN TWELVE
(12) MONTHS OF THE EVENT GIVING RISE TO ANY SUCH CLAIM. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE BARGAIN AND
ABSENT THIS SECTION THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY
DIFFERENT.
12.
MISCELLANEOUS.
All notices under this Agreement must be delivered in writing by courier, by electronic facsimile, or by
certified or registered mail, (postage prepaid and return receipt requested) to the other party at the
address set forth on the cover page hereto (or such other address designated by a party in writing),
and will be effective upon receipt or seven (7) business days after being deposited in the mail as
required above, whichever occurs sooner. If Reseller exports, re-exports or imports the Scalix Software
or Documentation, then Reseller assumes responsibility for complying with applicable laws and
regulations and for obtaining required export and import authorizations. Scalix may suspend
performance if Reseller is in violation of any applicable laws or regulations. Neither party shall be liable
to the other in any way whatsoever for any failure or delay in performance of any of the obligations
under this Agreement (other than obligations to make payment), arising out of any event or
circumstance beyond the reasonable control of such party (including, without limitation, war, rebellion,
civil commotion, strikes, lock-outs or industrial disputes; fire, explosion, earthquake, acts of God, flood,
drought or bad weather; the unavailability of deliveries, supplies, software, disks or other media or the
requisitioning or other act or order by any government department, council or other constituted body).
All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Reseller’s relationship to Scalix is that of an independent contractor, and neither party is an agent or
partner of the other. Reseller consents to the use of its name on Scalix customer and partner lists.
Upon the request of Scalix, Reseller will act as a reference for Scalix. If any provision of this
Agreement is unenforceable, such provision will be changed to accomplish the objectives of such
provision to the greatest extent possible under applicable law and the remaining provisions will
continue in full force and effect. This Agreement may be executed in counterparts and signature pages
may be transmitted by facsimile, each of which will be considered an original, but all of which together
will constitute the same instrument. Reseller may not assign or delegate this Agreement or its rights or
duties hereunder (by operation of law or otherwise) without the express written consent of Scalix.
Scalix may assign this Agreement in connection with a merger, acquisition, or sale of substantially all of
its assets. Any assignment not in conformity with the foregoing will be null and void. Exclusive
Page 27
jurisdiction and venue of any actions arising out of, or relating to or in any way connected with this
Agreement, its negotiation or termination, or the Scalix Software or Documentation provided or to be
provided by Scalix, will be in New York County, New York if in United States’ state court, and in the
New York City District of New York if in United States Federal Court. In any litigation in which the
parties are adverse, the parties agree to waive their respective rights to a trial by jury. The rights and
obligations of the parties under this Agreement shall not be governed by the provisions of the 1980
United Nations Convention on Contracts for the International Sale of Goods or the United Nations
Convention on the Limitation Period in the International Sale of Goods, as amended. If this license is
acquired under a U.S. Government contract, use, duplication, and disclosure of the Scalix Software and
Documentation by the U.S. Government is subject to restrictions set forth in this Agreement, which
incorporates all applicable FAR provisions; without limitation, Reseller agrees that the Scalix Software is
delivered as "commercial computer software" as defined in DFARS 252.227-7014 (June 1995) or as a
"commercial item" as defined in FAR 2.101(a), or as "restricted computer software" as defined in FAR
52.227-19 (Jun 1987) (or any equivalent agency regulation or contract clause), whichever is applicable.
If the Scalix Software is licensed for use in the performance of a U.S government prime contract or
subcontract, Reseller agrees that the Scalix Software has been developed entirely at private expense.
Reseller agrees that the Scalix Software, and any derivatives or modifications, is adequately marked
when the restricted rights legend below is affixed to the Scalix Software or to its storage media and is
perceptible directly or with the aid of a machine or device. Reseller agrees to conspicuously put the
following legend on the Scalix Software media with Reseller 's name and address added below the
notice:
RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure is subject to Scalix’s and its licensors’ standard commercial license terms
and for non-DOD Departments and Agencies of the U.S. Government, the restrictions as set forth in
FAR 52.227-19(c)(1-2)(Jun 1987).
Scalix Incorporated
149 Madison Ave.
Suite 302
New York, NY 10016
Copyright (c) 2008 Scalix Incorporated. All Rights Reserved
This Agreement will be governed in all respects by the laws of the State of New York in the United
States, without application of its conflicts of laws principles, and without regard to the provisions of any
state Uniform Computer Information Transactions Act or similar United States federal or state laws or
regulations. This Agreement may be amended only by a written document signed by both parties that
specifically references this Agreement. No purchase order or other document that purports to modify or
supplement this Agreement will add to or vary the terms of the Agreement, and all proposed variations
or additions (whether submitted by Scalix or Reseller) are deemed material and objected to unless
otherwise agreed to in a writing signed by both parties. The terms of this Agreement supersede in
their entirety the terms and provisions of any license which Reseller is required to “click on” or “click
through” in order to download or obtain Scalix Software. The parties hereto agree that any rule of
construction to the effect that ambiguities are to be resolved against the drafting party will not be
applied in the construction or interpretation of this Agreement. As used in this Agreement, the words
“include” and “including,” and variations thereof, will not be deemed to be terms of limitation. This
Agreement includes the cover page and the exhibits attached hereto, and constitutes the entire
agreement between the parties regarding the subject hereof and supersedes all prior or
contemporaneous agreements, understandings, and communication, whether written or oral.
Page 28

Pointivity Reseller Agreement - Facing Page

Transcription

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