This RESELLER AGREEMENT (this "Agreement") by and between JetStream Networks, Inc. (“JETSTREAM”), and the party named above as Reseller (“RESELLER”), is entered into on the Effective Date set forth above. Subject to the terms and conditions set forth in this Agreement and in consideration of the mutual promises and undertaking herein contained, the receipt and sufficiency of which is hereby acknowledged, JETSTREAM hereby appoints RESELLER and RESELLER accepts appointment as an authorized non-exclusive RESELLER of the Service.
1. SCOPE OF AGREEMENT
JETSTREAM provides the services set forth on the Services and Price List available on the Partner Portal found at www.JetStreamNetworks.com (hereinafter occasionally referred to as the “JS Website” (the “Services”). RESELLER desires to market, resell, and support the Services and to integrate and combine the Services with RESELLER’s products and services. RESELLER desires to sell the Services directly to RESELLER’s own end user customers (“Customers” or “End Users”) or indirectly to end user customers of RESELLER’s partners (“Partners”). JETSTREAM desires to appoint RESELLER as a non-exclusive authorized RESELLER pursuant to the terms and conditions of this Agreement.
2. TERM AND TERMINATION
a. Term. Commencing on the Effective Date, this Agreement will have an initial term as set forth above (“Initial Term”), unless terminated as provided herein. Thereafter, this Agreement automatically extends for additional terms of twelve (12) months (each a “Renewal Term”) unless terminated by either party by written notice not later than thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. Any expiration or termination of this Agreement does not modify any rights or obligations of either party which arose prior to such expiration or termination.
b. Termination for Convenience. Either JetStream or RESELLER may terminate this Agreement without cause upon ninety (90) days prior written notice.
c. Termination for Cause. Either party may terminate this Agreement in the event of (a) a material breach by the other party of any term and condition of this Agreement upon thirty (30) days prior written notice and failure to cure such breach within such 30-day notice period, (b) upon thirty (30) days prior written notice if the other party becomes insolvent, commits an act of bankruptcy, is subject to a proceeding in bankruptcy, receivership, liquidation, or insolvency or if there is a change in the controlling ownership of RESELLER, or (c) ceases to function as a going concern or to conduct its operations in the normal course of business. If RESELLER is in default due to a failure to make the payments required under this Agreement and fails to cure the default within ten (10) days’ notice of the default, then JETSTREAM may terminate this Agreement.
d. JetStream’s Rights in the Event of RESELLER Breach. If RESELLER is in breach of this Agreement, then JETSTREAM may: (i) declare all amounts payable under this Agreement immediately due and payable; (ii) suspend delivery to RESELLER until the default is cured; (iii) proceed to enforce performance and/or recover damages; (iv) manage the existing relationship and any renewal, including but not limited to the direct collection of outstanding and future receivables, and any other services or negotiations directly with the Customers or Partners and/or (v) terminate this Agreement. If JETSTREAM continues to perform after RESELLER’s default, such action does not constitute a waiver of any rights or remedies, JETSTREAM may however, in its sole discretion waive any default hereunder with respect to a specific default without such waiver constituting a waiver of any other defaults or
a waiver under agreements with Resellers under other agreements, even if the defaults are allegedly similar.
e. Effect of Termination. Upon notice of termination, all amounts due become immediately due and payable.
Subject to RESELLER’s payment of applicable fees and RESELLER’s compliance with the other terms and conditions of this Agreement, JETSTREAM hereby appoints RESELLER and RESELLER accepts such appointment as JETSTREAM’s non-exclusive, independent RESELLER for the resale of only those Services found on the Services and Price List available at the Partner Portal of the JS Website to Customers and to Partners. Pricing for the Services shall be as set forth in JETSTREAM’s then current price list (the “Price List”) set forth on at the Partner Portal and subject to the terms of this Agreement. JETSTREAM reserves the right to modify the Price List, applicable Services, Terms and Conditions (the then current version of which will always be available at the Partner Portal of the JS Website), support services, and the like for any new orders for Services upon thirty (30) days prior
written notice to RESELLER. RESELLER acknowledges that its appointment under this Agreement is non-exclusive, that it obtains no exclusive rights in any geographic area, commercial or governmental market segment, or country for the Services.
4. RESELLER’S REPRESENTATIONS AND OBLIGATIONS
a. Resources. RESELLER shall maintain the facilities, resources, inventory, personnel, and experience to market, support, and resell the Services.
b. End User Agreements. RESELLER shall enter into an agreement with each Customer and each Partner that contain terms consistent with this Agreement, the Terms and Conditions, the Service Level Agreement, and the Terms of Service, all located on the JS Website. RESELLER warrants that its Partners will enter into agreements with Partners’ end users that contain terms consistent with this Agreement, the Terms and Conditions, the Service Level Agreement, and the Terms of Service.
c. Change in Information. RESELLER shall promptly notify JETSTREAM in writing of all changes to RESELLER’s name, address, and control/ownership of its assets.
d. Private Label. Subject to the guidelines established by JETSTREAM, RESELLER may private label or brand the Services with RESELLER’s name or logo for the purposes of resale. RESELLER may not make, and shall ensure that its Partners do not make, any claim, representation, or warranty regarding the Services or any software or other technology incorporated therein, other than those claims, representations, and warranties set forth in JETSTREAM’S printed documentation and marketing materials.
e. Good Name. RESELLER shall (i) conduct business in a manner that reflects favorably at all times on the Services, good name, good will, and reputation of JETSTREAM; and (ii) avoid deceptive, misleading, or unethical practices that are or might be detrimental to JETSTREAM or the Services.
f. Representations. RESELLER may not (i) make false or misleading representations with regard to JETSTREAM or the Services; (ii) publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to JETSTREAM or the Services; (iii) make representations, warranties, or guarantees to customers or to the trade with respect to the specifications, features, or capabilities of the Services that are inconsistent with the literature distributed by JETSTREAM; and (iv) enter into any contract or engage in any practice detrimental to the interests of JETSTREAM or the Services.
g. Customer Information. Upon JETSTREAM’s request, RESELLER shall provide JETSTREAM with information regarding the number of Customers, Partners, and End Users of the Services and other non-personally identifiable information reasonably requested by JETSTREAM to monitor usage of the Services and the applicable fees for such services.
h. Compatibility and Services Defects. RESELLER is solely responsible for the compatibility of the Services with the Services offered by RESELLER and its Partners. RESELLER shall immediately report to JETSTREAM any defects with respect to the Services or any conflicts between the Services and any RESELLER or Partner products or services. JETSTREAM is not responsible for incorrect configuration of the user’s software, which may result in the inability to connect to the Service and such inability to connect is not considered downtime and is excluded from the calculation of system availability.
i. Support of Services. RESELLER shall provide all support to Customers and shall maintain a Customer Support Center available from 8:00 a.m. to 8:00 p.m. Eastern Standard Time to resolve Customer service, billing, and other questions. RESELLER will make clear in its agreements with its Partners, End Users and Customers that RESELLER, not JETSTREAM is responsible for all support to RESELLERS’S Partners, End Users and Customers.
j. Training. RESELLER shall offer reasonable training and assistance to its Customers with respect to the effective use of the Services.
k. Promotion of Services. RESELLER may advertise and promote the Services, provided that JETSTREAM reviews and approves such marketing and promotional materials in advance. RESELLER may not issue any press release with respect to this Agreement without the express written consent of JETSTREAM. JETSTREAM is not required to provide any advertising or trade show support of RESELLER. RESELLER agrees that once it has sold an End User, Partner or Customer JETSTREAM services, it will not introduce or attempt to sell competitive products or services to an End User or Customer during the Term of the Agreement. RESELLER further agrees that when presenting an end user, Partner or Customer with new products or services similar to the Services, RESELLER will also include the Services in such presentation.
l. Governmental Approvals. When applicable, RESELLER shall assist JETSTREAM with obtaining and maintaining any and all governmental approvals or certifications necessary for the import and/or export of Services in the Territory, which approvals or certifications shall be in JETSTREAM’s name.
5. JETSTREAM’S OBLIGATIONS
a. Servers, Hardware, and Third Party Software. JETSTREAM agrees that the servers, hardware, and third party software used to host and provide the Services shall be maintained by JETSTREAM at its sole cost and expense. JETSTREAM has no obligation to purchase or acquire dedicated servers or hardware for RESELLER, Customers, Partners, or End Users in connection with any the Services contemplated hereby.
b. Literature, Marketing Information, Documentation, and Manuals. JETSTREAM shall provide RESELLER, at no charge, in electronic format, with a reasonable supply of Services’ literature, marketing information, user documentation, and manuals in the English language. RESELLER shall ensure that all applicable JETSTREAM notices are included and shall return all documentation upon the expiration or termination of this Agreement.
Support Services. RESELLER, but not its End Users or Customers, may contact JETSTREAM Tech Support for any issues related to Services that cannot be resolved directly by RESELLER. The currently applicable contact information for JETSTREAM Tech Support will be available on the JS Website at www.JetStreamNetworks.com.
c. Hosted Exchange Availability. JETSTREAM will use commercially reasonable efforts to make hosted exchange services 99.999% available. Availability is defined as the ability for a customer to connect to the Property and access the Services. Property means the JS Website, JETSTREAM service portals, documentation, and technical support that may be made available by JETSTREAM to a customer in connection with Services. JETSTREAM calculates availability as a percentage of time in a month (30 days x 24 hours x 60 minutes) during which the system is available. Any circumstance beyond JETSTREAM’s reasonable control, including scheduled maintenance and excused failures as defined in the Service Level Agreement, are excluded from the calculation of availability. Additionally, any loss of availability lasting less than five (5) minutes will not be included in the calculation of
d. Mail Filtering. JETSTREAM will use commercially reasonable efforts to make mail filtering services 99.9% available. Availability is defined as the ability for a customer to connect to the Property and access the Services. JETSTREAM calculates availability as a percentage of time in a month (30 days x 24 hours x 60 minutes) during which the system is available. Any circumstance beyond JETSTREAM’s reasonable control, including scheduled maintenance and excused failures as defined in the Service Level Agreement, are excluded from the calculation of availability. Additionally, any loss of availability lasting less than five (5) minutes will not be included in the calculation of availability.
e. Mail Encryption. JETSTREAM will use commercially reasonable efforts to make mail encryption services 99.9% available. Availability is defined as the ability for a customer to connect to the Property and access the Services. JETSTREAM calculates availability as a percentage of time in a month (30 days x 24 hours x 60 minutes) during which the system is available. Any circumstance beyond JETSTREAM’s reasonable control, including scheduled maintenance and excused failures as defined in the Service Level Agreement, are excluded from the calculation of availability. Additionally, any loss of availability lasting less than five (5) minutes will not be included in the calculation of availability.
f. Archiving. JETSTREAM will use commercially reasonable efforts to make archiving services 99.9% available. Availability is defined as the ability for a customer to connect to the Property and access the Services. JETSTREAM calculates availability as a percentage of time in a month (30 days x 24 hours x 60 minutes) during which the system is available. Any circumstance beyond JETSTREAM’s reasonable control, including scheduled maintenance and excused failures as defined in the Service Level Agreement, are excluded from the calculation of availability. Additionally, any loss of availability lasting less than five (5) minutes will not be included in the calculation of availability.
6. END USER TERMS AND CONDITIONS
The Terms and Conditions may be found at the JS Website at www.JetStreamNetworks.com and are incorporated into and form a part of this agreement as if set forth at length herein. JETSTREAM reserves the right to change or modify portions of the Terms and Conditions at any time. Any such changes will be posted on the JS Website and JETSTREAM will indicate at the top of the above website the date the Terms and Conditions were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services made for legal reasons will be effective immediately. RESELLER’s continued use of the Service after the date of any such changes become effective constitutes RESELLER’s acceptance of the new Terms and Conditions, and RESELLER assumes an obligation when it places an order to acknowledge
that it has reviewed and accepted the then current Terms and Conditions.
a. Price. During the term of this Agreement, RESELLER may order the Services from JETSTREAM at the applicable fees and prices set forth in JETSTREAM’s then current Price List which will be available on the Partner Portal at the JS Website.
b. Payment of Taxes. All prices quoted are exclusive of all taxes and other charges, including but not limited to, shipping, handling, insurance, sales, use, value-added or other similar taxes, duties, or assessments, except taxes based upon JETSTREAM’s net income. Each party is responsible for its own taxes relating to transactions under this Agreement and shall report and pay any relevant taxes to the respective tax authorities.
c. Price Modification. JETSTREAM MAY MODIFY THE PRICE LIST FOR ANY SERVICES UNDER THIS AGREEMENT AT ANY TIME UPON THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO RESELLER. All orders accepted by JETSTREAM before the effective date of any fee or price modification shall be at the fee in effect prior to such modification. Thereafter, all orders accepted by JETSTREAM shall be at such modified fee.
d. RESELLER’s Price to Customers. RESELLER IS FREE TO UNILATERALLY ESTABLISH ITS FEES TO ITS CUSTOMERS FOR SERVICES. JETSTREAM MAY PROVIDE A SUGGESTED RETAIL FEE FOR SERVICES. THE FEES, OR LACK THEREOF, THAT RESELLER ESTABLISHES WITH ITS CUSTOMERS FOR SERVICES DOES NOT CHANGE THE AMOUNT RESELLER OWES JETSTREAM. ALL FEES PURSUANT TO THIS AGREEMENT ARE STRICTLY CONDITIONED UPON RESELLER’S COMPLIANCE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
7. PAYMENT TERMS
a. Due Date. RESELLER will provide JETSTEAM with information regarding RESELLER’S credit card (or other payment instrument for the transfer of electronic funds approved by JETSTREAM). RESELLER represents and warrants that such information is true and that RESELLER is authorized to use the payment instrument. RESELLER will promptly update such information to keep it current. Once a month, on approximately the 25th of each month, JETSTREAM will take inventory of all of the Services for which RESELLER has subscribed, with the understanding that any services provided by JETSTREAM to RESELLER as of the 25th of the month will be deemed for billing purposes to have been provided for the entire month. JETSTREAM will then invoice RESELLER on the 1st day of each month for all fees incurred in the prior month, and will charge the applicable credit card or payment instrument on the 5th
of each month. All fees are due and payable notwithstanding any payment or nonpayment by Customers, Partners, or End Users.
b. Late Payment. If RESELLER fails to make any payment when due, then JETSTREAM may withhold further Services and/or terminate the Agreement as provided in Section 2. If RESELLER is late making a payment, then JETSTREAM may charge a late payment charge of one and one-half percent (1 1/2%) per month, or the maximum allowed by law, whichever is less.
c. Collection. RESELLER shall reimburse JETSTREAM’s costs of collection including, but not limited to, reasonable attorneys’ fees.
d. Security Interest. Prior to accepting an order, JETSTREAM may require RESELLER to grant JETSTREAM a security interest for the order or other credit accommodation as a condition of accepting an order.
e. Financial Information. If JETSTREAM reasonably requests information to verify the creditworthiness of RESELLER or any Partner, then RESELLER shall provide the requested financial information regarding RESELLER and any of its Partners.
f. Invoice Dispute. Within thirty (30) days of the invoice date, RESELLER must notify JETSTREAM in writing and provide sufficient detailed support of any invoice dispute. If RESELLER fails to do so, RESELLER is deemed to have waived its right to dispute that invoice and the invoice will be deemed accurate and valid.
After accepting the Terms of Services through the Partner Portal of the JS Website and setting up an account, thereafter to place order, RESELLER will log in to its individual service platform and set up new End User accounts, which will then provide the basis for the JETSTREAM calculation of total usage on a monthly basis as set forth in Section 7(a) above. Orders are conditioned upon RESELLER providing JETSTREAM with reasonable assurances of RESELLER’s creditworthiness for such order, to the extent requested. All additions of End User accounts are subject to acceptance by JETSTREAM at JETSTREAM’S sole discretion and JETSTREAM has no liability for non-acceptance of, or failure or delay in filling adding such accounts. JETSTREAM will use reasonable effort to meet proposed implementation dates for the Services and is not liable for delivery delays. No addition of End User
accounts, purchase order, acknowledgment form, or other document or communication from RESELLER may amend the terms and conditions of this Agreement.
9. LICENSES, OWNERSHIP AND RESTRICTIONS
a. License Grant. Apart from the rights explicitly granted in this Agreement, RESELLER has no other right, title, interest ownership or license rights, express or implied, in the Services.
b. Ownership; Restrictions on Use. RESELLER acknowledges that all right, title, and interest in the Services, including any and all software and other technology used to provide the Services and any intellectual property rights therein or thereto, including patents, copyrights, trademarks, and trade secrets, shall remain the sole and exclusive property of JETSTREAM and its licensors. No title to or ownership of the intellectual property contained in the Services or any part of the Services or JETSTREAM’s confidential information is transferred to RESELLER. RESELLER acknowledges that the Services as well as all enhancements, updates, modifications, local versions, or any derivatives of the Services, and all intellectual property and proprietary rights therein remain JETSTREAM’s property. RESELLER may not delete or alter any JETSTREAM trade names, trademarks, or other insignia
which are affixed to the Services or related documentation and can only use such marks in conjunction with its marketing and/or resale of the Services in accordance with JETSTREAM’s then current guidelines on usage. RESELLER shall refrain from any other direct or indirect use or registration of such marks or similar marks. Upon expiration or termination of this Agreement, RESELLER shall take all actions necessary to transfer and assign to JETSTREAM any right, title, or interest in and to any of the marks and shall immediately cease to use any mark. RESELLER shall immediately notify JETSTREAM of any claims with respect to the license or use of the Services or to any alleged intellectual property infringement. Except with the express written consent from JETSTREAM, RESELLER agrees that RESELLER may not, and may not permit any third party, to (i) modify, adapt, alter, translate,
or create derivative works from the Services or the documentation related thereto; (ii) merge the Services with other software; (iii) allow Customers or Partner’s end users to resell, export, sell, provide for service bureau use, lease, rent, loan, or otherwise transfer the Services or the documentation to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services; (v) remove or alter any copyright notices or other notices included in the Services; or (vi) otherwise use or copy the Services except as expressly permitted.
10. RECORDS AND AUDIT
RESELLER shall maintain adequate records with respect to the Services. RESELLER shall permit JETSTREAM to audit its records related to this Agreement upon reasonable prior written notice. RESELLER shall keep and provide complete and accurate records related to this Agreement during the term of this Agreement and for seven (7) years from the date of termination of this Agreement. RESELLER shall provide complete and accurate records relating to sales under this Agreement as requested by JETSTREAM. If an error in fees due in excess of five percent (5%) of the fees paid is found, RESELLER shall bear the cost of the audit. In addition, RESELLER shall pay any underpaid amount within thirty (30) days of the audit. All records shall be subject to the confidentiality provisions of this Agreement.
11. DISCLAIMER OF WARRANTY
SERVICES AND ALL OTHER PRODUCTS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WITHOUT LIMITING THE FOREGOING, JETSTREAM MAKES NO REPRESENTATION, WARRANTY, OR CONDITION THAT ITS PRODUCTS AND SERVICES WILL BE EFFECTIVE IN PREVENTING OR REMEDIATING MALICIOUS ATTACKS (INCLUDING, WITHOUT LIMITATIONS, VIRUSES, PHISING, SPAM, TROJAN HORSES, OR OTHER METHODS OF ATTACK NOW EXISTING OR DEVISED IN THE FUTURE). ANY WARRANTY FROM JETSTREAM FROM RESELLER TO ANY CUSTOMER, PARTNER, OR PARTNER’S END USER WILL BE CONTAINED IN THE SERVICE LEVEL AGREEEMNT. RESELLER IS NOT AUTHORIZED TO MODIFY THE SERVICE LEVEL AGREEMENTL. RESELLER ACKNOWLEDGES AND AGREES THAT JETSTREAM DISCLAIMS ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT,
OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. JETSTREAM DOES NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.
For purposes of this Agreement, “Confidential Information” means any information if (i) it is delivered in tangible form marked “confidential”, (ii) it is delivered orally and described as confidential at the time of delivery or disclosure, or (iii) the receiving party might reasonably be expected to judge it as confidential. A party shall not directly or indirectly communicate to any person or other entity any of the disclosing party’s Confidential Information unless (a) such information is already known or independently developed (without use of such Confidential Information) by the receiving party, as evidenced by its business records at the time it was provided; (b) such information is already in the public domain through no fault of a party to this Agreement; (c) the receiving party is required to disclose such information pursuant to law or court order, but only after
notifying the other party and allowing the other party an opportunity to obtain a protective or other order (unless prohibited by law or court order); or (d) such information lawfully comes into the receiving party's possession from a third party without any obligation of confidentiality to the disclosing party. Each party agrees to use the other party’s Confidential Information only in its performance under this Agreement and shall treat and protect such information in the same manner as it treats its own confidential information, but with not less than reasonable care. A party shall only disclose the other party’s Confidential Information to employees and agents who are on a need to know basis and are subject to confidentiality obligations at least as restrictive as those herein. A party shall be responsible for any breach of this Section by its employees or agents. The
obligations of this Section shall continue for a period of two (2) years after termination or expiration of this Agreement, except in the case of trade secrets, such obligations shall continue until the information no longer qualifies as a trade secret. Any Confidential Information in tangible form shall be returned by the receiving party or the receiving party shall destroy such Confidential Information and certify to the disclosing party such destruction has occurred upon written notice or termination or expiration of this Agreement.
13. JETSTREAM INDEMNITY
JETSTREAM will defend at its own expense any action against RESELLER brought by a third party to the extent that the action is based upon a claim brought by a third party that the Services infringes any U.S. or EU patents, trademarks, or copyrights of a third party, and JETSTREAM will pay those costs and damages finally awarded against RESELLER in any such action that are specifically attributable to such claim or those costs and damages agreed to in a settlement of such action. The foregoing obligations are conditioned on RESELLER notifying JETSTREAM promptly (but no later than 7 days) in writing of such action; giving JETSTREAM sole control of the defense thereof and any related settlement negotiations; and cooperating, at JETSTREAM’s request and expense in such defense. If the Services become, or in JETSTREAM’s opinion is likely to become, the subject of an infringement
claim, JETSTREAM may, at its sole option and expense, either (i) procure for RESELLER the right to continue using the Services, or (ii) modify the Services so that it becomes non-infringing. If none of the above options are reasonably available, JETSTREAM may terminate this Agreement. This Section represents the sole and exclusive remedy of RESELLER and the entire liability and obligation of JETSTREAM with respect to infringement or claims of infringement of any intellectual property right by the Services or by its distribution, operation, use, or receipt. Notwithstanding the foregoing, JETSTREAM has no liability under this Section 13 if (a) the alleged infringement arises from (i) the integration or combination of the Services with other products, services, equipment or software that were not provided by JETSTREAM, (ii) modifications made to the Services without the
JETSTREAM’s consent, (iii) use of the Services other than as directed by JETSTREAM, or (iv) use of the Services, when use of an update or subsequent software release which JETSTREAM has made commercially available would have avoided such infringement; or (b) RESELLER is in breach of the terms and conditions of this Agreement. FOR PURPOSES OF THIS SECTION, SERVICES DO NOT INCLUDE ANY COMPONENTS OR PRODUCTS, WHETHER HARDWARE OR SOFTWARE, MANUFACTURED BY A THIRD PARTY (“THIRD PARTY PRODUCTS”). TO THE EXTENT THE MANUFACTURER OF A THIRD PARTY PRODUCT, IN ITS AGREEMENT WITH JETSTREAM, PROVIDES PATENT INDEMNIFICATION WITH RESPECT TO ITS PRODUCT AND EXPLICITLY AUTHORIZES JETSTREAM TO PASS THROUGH SUCH INDEMNIFICATION TO JETSTREAM’S CUSTOMER, JETSTREAM SHALL PASS THROUGH SUCH INDEMNIFICATION TO RESELLER IN THE MANNER AND TO THE EXTENT AUTHORIZED BY SUCH THIRD PARTY PRODUCT
14. RESELLER INDEMNITY
RESELLER shall defend, indemnify, and hold JETSTREAM harmless from any claim, suit, damages and expenses (including, but not limited to, attorneys’ fees) arising out of (i) breach by RESELLER of any warranty, representation, or covenant under this Agreement; (ii) the failure of RESELLER and/or Partners to comply with all applicable laws, rules, and/or regulations regarding the Services; (iii) the failure of RESELLER and/or Partners to comply with the terms and conditions of this Agreement; (iv) any negligent act or omission of RESELLER and/or Partner; (v) any statements, claims, representations, or warranties made by RESELLER or RESELLER’s personnel relating to the Services, other than as authorized by JETSTREAM in writing; or (vi) any willful misconduct of RESELLER and/or Partner. JETSTREAM may participate in the defense or settlement of any such claim, suit or proceeding
with counsel at its expense.
15. INDEPENDENT CONTRACTOR
RESELLER shall conduct its business under this Agreement as an independent contractor and this Agreement creates no relationship of principal and agent, partner, joint venture, employer-employee, or any similar relationship. RESELLER may not represent itself to be an agent for JETSTREAM and may not attempt to create any obligation or make any representation on behalf of or in the name of JETSTREAM.
16. EXPORT CONTROLS AND COMMERCIAL COMPUTER SOFTWARE
a. Export Control. RESELLER acknowledges that JETSTREAM’s export of the Services is subject to regulation by the United States which prohibits export or diversion of the Services to certain countries. RESELLER may not export or re-export, directly or indirectly, any of the Services to or on behalf of (a) any country that is subject to U.S. economic sanctions administered by the US Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), including but not limited to Cuba, Iran, Sudan, Syria and North Korea; (b) the government of an OFAC-sanctioned country, wherever located; or (c) persons or entities identified as “Specially Designated Nationals” by OFAC, or entities that are owned or controlled by a Specially Designated National.. RESELLER further agrees not to distribute or supply the Services to any person if RESELLER has reason to believe that such person
intends to export, re-export, or otherwise transfer the Services to, or use the Services in any of such countries, governments, persons, or entities. RESELLER may not use or supply the Services to any Customer, Partner, or Partner’s end user, in connection with the commission of terrorist acts or the design, development, production, or use of nuclear, biological, or chemical weapons; missiles; or unmanned aerial vehicles. RESELLER may not supply Services to any person or entity with knowledge or reason to know that any of the prohibited activities identified in this section are intended by such person or entity. RESELLER agrees to obtain written assurances from its Customers as may from time to time be requested by JETSTREAM. Without limiting the foregoing, RESELLER may not commit any act which would, directly or indirectly, violate any United States or local law, regulation,
treaty, or agreement relating to the export or re-export of the Services. At its expense, RESELLER shall obtain any government consents, authorizations, or licenses required for RESELLER to exercise its rights and to discharge its obligations under this Agreement.
b. U.S. Government End Users. If RESELLER’s Customer is a branch or agency of the United States Government, the following provision applies. The Services and documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7202-3 (JUN 1995).
17. LIMITATION OF LIABILITY
EXCEPT FOR EACH PARTIES INDEMNITY OBLIGATIONS UNDER SECTIONS 13 AND 14, EITHER PARTY’S BREACH OF SECTION 12, OR FOR RESELLER’S BREACH OF SECTION 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION LOSS OF INCOME, DATA, GOODWILL, USE OR INFORMATION, DOWNTIME, OR COSTS OF SUBSTITUTE SERVICES OR EQUIPMENT), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF JETSTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL JETSTREAM’S LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID FOR THE SERVICES GIVING RISE TO SUCH LIABILITY DURING THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
RESELLER shall secure and maintain during the term of this Agreement, an insurance policy or policies from carriers adequately protecting JETSTREAM against any loss, liability, or expense whatsoever, including product liability, worker’s compensation, personal injury, fire, theft, death or property damage in an amount not less than One Million ($1,000,000) Dollars per occurrence. RESELLER shall furnish to JETSTREAM certificates evidencing all such insurance, designating the other party as an additional insured.
a. Approvals. Each party represents it has the right and authority to enter into this Agreement and it will comply with all applicable laws or regulations of the Territory and the United States.
b. Entire Agreement, Amendment, and Waiver. This Agreement and the exhibits and addendums hereto supersedes all prior and contemporaneous agreements, representations, and understandings and contains the entire agreement between the parties with regard to the subject matter contained herein. RESELLER acknowledges that it has not relied upon any promise, representation, or statement of JETSTREAM except as expressly set forth herein. No amendment or modification of any provision of this Agreement is effective unless in writing and signed by a duly authorized representative of each party. No failure or delay of JETSTREAM in exercising any right or remedy under this Agreement shall operate as a waiver of such right or remedy.
c. Assignment. This Agreement is binding upon and inure to the benefit of the parties and their successors and assigns. RESELLER may not assign or otherwise transfer its rights or delegate its duties under this Agreement without the express written consent of JETSTREAM; any such assignment is null and void.
d. Notice. Any notice or other communication sent by facsimile will be deemed to have been received on the day it is sent. Any notice or other communication sent by registered or certified mail or courier will be deemed to have been received five (5) business days after its date of posting. Any notices given under this Agreement will be sent to the party to be notified at its address set forth below, as may be amended.
Notices to JETSTREAM will be sent to the attention of JetStream Legal Department | 945 Fourth Ave., Suite 305 | San Diego, CA 92121.
Notices to RESELLER will be sent as set forth in Proposal for Services executed by RESELLER on the Partner Portal accessed via www.JetStreamNetworks.com.
e. Governing Law. This Agreement is governed, construed, and interpreted in accordance with the laws of the state of California, USA, without regard to its choice of law provisions or policies. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
f. Agreement Terms Confidential. The terms of this Agreement are proprietary and confidential. Neither party will disclose the terms of this Agreement except as required to perform its obligations hereunder.
g. Survival of Obligations. All obligations under this Agreement which by their nature extend beyond termination will survive termination and remain in effect, including without limitation, all monetary obligations of either party to the other under this Agreement.
h. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement. The prohibition on or unenforceability of any provision in any jurisdiction does not affect the validity or enforceability of such provision in any other jurisdiction.
i. No Waiver. JETSTREAM’S failure to object to any document, communication, or act of the RESELLER will not be deemed a waiver of any terms of this Agreement.
j. Headings. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Headings in this Agreement are included for reference only and do not constitute a part of this Agreement for any other purpose.
k. Force Majeure. Both parties are not liable to the other for any loss, injury, delay (except for any payment obligations) for expenses or damages arising out of any cause or event not within its reasonable control including, but not limited to: riots, wars or hostilities between any nations; Acts of terrorism; Acts of God, fires, storms, floods or earthquakes; strikes, labor disputes, vendor delays, or shortages or curtailments of raw materials; labor, power, or other utility services; governmental restrictions or trade disputes; manufacturing delays; or other contingencies.
l. Solicitation. Nothing in this Agreement restricts JETSTREAM’S ability to market, promote, solicit, service, sell, do business, or licensing its Services to any Customer, Partner, Reseller, Partner’s end user, or anyone else.