Reseller Agreement: (Please read through the agreement completely to submit your application.)
AIRTIGHT NETWORKS RESELLER AGREEMENT
BEFORE YOU CLICK "I AGREE TO THE AIRTIGHT NETWORKS CHANNEL PROGRAM AGREEMENT AND SUBMIT APPLICATION", READ THIS AGREEMENT CAREFULLY. IT IS A LEGALLY BINDING AGREEMENT AND CONTROLS YOUR AND YOUR COMPANY'S RESELLER RELATIONSHIP WITH AIRTIGHT. WHEN YOU AGREE AND SUBMIT YOUR COMPANY'S APPLICATION, YOU REPRESENT TO US THAT YOU REVIEWED THE TERMS OF THIS AGREEMENT, HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY APPLYING AS A RESELLER, AND THAT YOUR COMPANY AGREES TO BE BOUND BY, AND IS BECOMING A PARTY TO, THIS AGREEMENT.
IF YOU AND YOUR COMPANY DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT SUBMIT AN APPLICATION.
1.1 "Customer(s)" means the current or potential customers of Reseller excluding any entity or person deemed in AirTight's reasonable discretion as a competitor of AirTight.
1.2 "List Price" means the price specified on the Price List. List Prices do not include taxes, duties, shipping or handling.
1.3 "Cloud Service" means AirTight's online wireless vulnerability management service.
1.4 "Price List" means AirTight's then current price list of Products and Services applicable to the territory.
1.5 "Products" means the AirTight products identified in the Price List.
1.6 "Reseller" means the company submitting the AirTight Networks Channel Program application.
1.7 "Services" means the AirTight services identified in the Price List. For the avoidance of doubt, Services include but are not limited to, the Cloud Service, professional services and maintenance and support.
1.8 "You," "Your" and "Yours" means the individual submitting the AirTight Networks Channel Program application on behalf of the Reseller.
2.0 Appointment and Restrictions.
2.1 Reseller Appointment. Subject to the terms and conditions in this Agreement and acceptance as an authorized Reseller by AirTight, AirTight appoints Reseller and Reseller accepts appointment as a nonexclusive authorized Reseller of the Products and Services. Reseller may not transfer or sublicense the appointment set forth in this Agreement. Subject to the terms and conditions of this Agreement, AirTight grants Reseller a non-exclusive, non-transferable license to use the Products and Cloud Services for demonstrating and marketing the same to Customers. Except as otherwise permitted in this Agreement, Reseller's use of the Cloud Service and any Products shall be subject to the end-user agreement accompanying such Service or Product. Future Products and Services are deemed added to this Agreement at such time as they are added by AirTight to the then current Price List, at the price and discount indicated at such time. Reseller has the option not to resell any future Product or Service added in this manner. AirTight reserves the right to add products and services to the Price List that are not eligible for resale.
2.2 Nonexclusive Relationship. Reseller hereby acknowledges that nothing in this Agreement shall be construed to preclude AirTight from directly or indirectly marketing, distributing, selling, or servicing any Product or Service to or for any party, including without limitation, other resellers, distributors, managed service providers, end-users, and original equipment manufacturers.
2.3 Restrictions. Except for the limited license granted to Reseller herein, all right, title and interest in and to the Products and Services (to the extent applicable) including the concepts and technology inherent in the Products and Services, the trademarks, copyrights, patents, trade secrets and other intellectual property, are, and at all times shall remain, the sole and exclusive property of AirTight. Reseller shall, by all appropriate means, prevent unauthorized disclosure, publication, display or use of the Products and Services. Except as expressly provided for herein, Reseller shall not copy any Products. Reseller shall not, and shall not request that any third party, modify or reverse engineer any Products or attempt to gain unauthorized access to the Cloud Service. Reseller shall not remove, alter, cover or obfuscate any end-user agreement, copyright notices or other proprietary legends placed or embedded by AirTight on or in the Products, Services or documentation or literature. Reseller shall distribute and sell the Products and Services subject to AirTight's end-user agreement and shall expressly state this in any agreement between Reseller and any Customer. Reseller may not use any component part of the Products owned by a third party supplier as a standalone program or in any way independent from the Products. Reseller agrees not to distribute the Products in bulk for redistribution.
3.0 Purchase Terms.
3.1 Reseller's Orders. The terms and conditions of this Agreement shall apply to all orders submitted to AirTight and supersede any different or additional terms on Reseller's orders. Orders issued by Reseller to AirTight are solely for the purpose of specifying the Products, requesting delivery dates, identifying the end customer (name, address, email and phone numbers) and quantities. All orders placed with AirTight for the Product and Services shall be subject to acceptance by AirTight at its principal place of business. Once accepted by AirTight, Reseller's orders are non-cancellable by Reseller and delivery dates may be changed only upon AirTight's written consent. AirTight may discontinue products at anytime but shall provide Reseller written notice of such discontinuance.
3.2 Price and Payment. Reseller shall pay AirTight, for all Products and Services ordered and shipped/provided, at the prices set forth on the then current Price List. At anytime, AirTight may change its prices and/or discounts effective at least 30 days after AirTight's written notice of such. Notwithstanding the List Price, Reseller shall be solely responsible for setting the price charged to Customers for Products and Services re-sold by Reseller as well as services provided by Reseller. AirTight will invoice Reseller upon shipment/provisioning. Reseller shall pay AirTight within 30 calendar days of AirTight's invoice date. All payments shall be made in U.S. Dollars. Any amounts due and payable by Reseller but unpaid shall bear interest at the maximum annual rate permitted by applicable law until paid in full, which amount, including accrued and unpaid interest, shall be payable upon demand.
3.3 Shipments. Orders are shipped at Reseller's expense from AirTight's designated shipping point. Title to Products (excluding software which is licensed) and risk of loss shall pass to Reseller upon delivery to the common carrier at AirTight's shipping point. Reseller shall pay all transportation, handling and insurance costs.
3.4 Taxes and Duties. In addition to any payments due to AirTight under this Agreement, Reseller shall pay amounts equal to any taxes, shipping, insurance, duties or other amounts, including without limitation state sales taxes, however designated, which are levied or based on such payments or arise under this Agreement, provided, however, that Reseller shall not be liable for taxes based on AirTight's net income. Reseller agrees to provide AirTight with a state resale certificate, if required. In the event that Reseller is required by applicable law to make deductions or withholdings from payments to AirTight, then Reseller shall pay such additional amounts to AirTight as may be necessary to assure that the actual amount received by AirTight after deduction or withholding (and after payment of any additional taxes due as a consequence of such additional amount) shall equal the amount that would have been received if such deduction or withholding were not required.
4.0 Reseller Obligations.
4.1 Sales Efforts. Reseller shall use its best efforts to market, promote and resell the Products and Services, and agrees that its marketing and advertising efforts will be of high quality and in good taste. Reseller shall include in all such advertising all applicable copyright and trademark notices as they appear on or in the Products. Reseller shall not use deceptive, misleading, or unethical practices and shall not make any false or misleading representations with regard to AirTight, or the Products and Services.
4.2 Qualified Staff. Reseller shall maintain a staff of employees with a good working knowledge of the Products and Services, including their use, applications, limitations, installation, maintenance, repair and related subjects. Reseller's employees shall also be knowledgeable in the use of complementary products. Reseller shall appoint employees of appropriate training and skill to participate in training programs offered by AirTight from time to time. Reseller shall appoint one primary and one secondary point of contact to coordinate the sales and marketing relationship with AirTight's designated point of contact.
5.0 Use of Trademarks.
5.1 Trademark License. AirTight hereby grants to Reseller a worldwide, non-exclusive, nontransferable limited license (with no right of sublicense) during the term of this Agreement to use both AirTight's name and any stylized form or logo used by AirTight, and the applicable Product and Service trademarks (collectively, the "Trademarks") solely in its distribution (in the Territory), advertising and promotion of the Products, provided that such Trademarks are used solely in accordance with AirTight's specifications as to style, color, and typeface, as such specifications may be modified by AirTight from time to time. Reseller agrees not to attach any other trademarks, logos or trade designations to the Products, nor to remove or modify any of AirTight's Trademarks or proprietary notices affixed to the Products. Reseller shall not affix any Trademarks to products other than the genuine Products. Upon notice from AirTight of its objection to any improper or incorrect use of the Trademarks, Reseller shall correct or stop such usage as soon as reasonably practicable.
5.2 Ownership of Trademarks. AirTight claims exclusive ownership of all right, title, and interest in and to the Trademarks, together with any new or revised trademarks, trade names, and logos that AirTight may adopt to identify it or any of its products or services. Reseller shall not adopt or use any of the Trademarks in any manner whatsoever except as expressly provided in Section 5.1. Reseller shall not claim any rights in the Trademarks or take any action that threatens or challenges AirTight's proprietary rights therein. All use by Reseller of the Trademarks and all goodwill associated therewith shall inure exclusively to the benefit of AirTight and its affiliates.
5.3 Use of Reseller Trademarks. Reseller hereby grants to AirTight a worldwide, nonexclusive and nontransferable limited license (with no right of sublicense) to use the Reseller's trademarks in the performance of AirTight's duties under this Agreement and in the promotion of the Products and AirTight's channel program in accordance with Reseller's then current trademark usage guidelines to be provided and updated by Reseller from time to time. AirTight shall not claim any rights in Reseller's designated trademarks or take any action that threatens or challenges Reseller's proprietary rights therein. All use by AirTight of Reseller's trademarks and all goodwill associated therewith shall inure exclusively to the benefit of Reseller. Upon notice from Reseller of its objection to any improper or incorrect use of the Reseller's trademarks, AirTight shall correct or stop such usage as soon as reasonably practicable.
6.1 Confidential Information. In the course of performing its responsibilities under this Agreement, each party ("Recipient") or its employees may be exposed to or acquire Confidential Information of the other party ("Discloser") or third parties to whom Discloser has a duty of confidentiality. "Confidential Information" means nonpublic information that the Discloser designates as being confidential to Recipient or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Recipient. "Confidential Information" includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Discloser products, the marketing or promotion of any Discloser product, Discloser's business policies or practices, and information received from others that Discloser is obligated to treat as confidential. Recipient agrees to hold Confidential Information in strict confidence and not to copy, or disclose the information to third parties, or use the information for any purpose not contemplated by this Agreement and to advise each of its employees who may be exposed to Confidential Information of their obligations to keep that information confidential. Recipient shall use at least the same degree of care in handling Discloser's Confidential Information as it uses with regard to its own confidential information, but no less than a reasonable standard of care.
6.2 Exceptions. Confidential Information may be disclosed: (i) to the extent required by applicable law or regulation, or (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory or legislative body of competent jurisdiction, or (iii) in connection with any regulatory report, audit or inquiry, or (iv) where requested by a regulator with jurisdiction over Recipient. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient (which must be demonstrable) without an obligation of confidentiality; (iii) independently developed by Recipient outside of this Agreement; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.
6.3 Return of Confidential Information. Upon Discloser's written request, Recipient shall use commercially reasonable efforts to either return or destroy the Discloser's Confidential Information and any copies or extracts thereof. However, Recipient, its affiliates and their representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court or regulatory agency; or (b) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement.
7.0 Limited Warranty. AirTight's Products and Services shall be distributed with the applicable warranty in effect at the time of sale and documented in the applicable AirTight end-user agreement (the "Warranty"). To make a claim under this Warranty, Reseller must notify AirTight in writing within the applicable warranty period. Such notice shall include the nature of the defect, serial number of the defective Products and/or Services and any other relevant information. Reseller shall not return Products to AirTight without AirTight's prior written authorization. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH THEREIN, AIRTIGHT MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS OR SERVICES, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR OBLIGATION TO INDEMNIFY OR DEFEND RESELLER. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE PRODUCTS AND SERVICES. RESELLER SHALL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF AIRTIGHT.
Reseller shall defend, indemnify and hold harmless AirTight, its affiliates and customers, and each of their officers, directors, employees, and agents (collectively, "Indemnitees"), from and against any and all liabilities, damages, losses, costs, and expenses, including reasonable attorneys' fees arising out of or in connection with any and all claims, demands, actions, or proceedings arising out of or in connection with: (i) Reseller's breach of this Agreement; or (ii) Reseller's or its representative's negligent acts or omissions. To qualify for such defense and payment, the Indemnitee must: (i) give the Indemnitor prompt written notice of any such claim, and (ii) allow Indemnitor to control, and fully cooperate with Indemnitor in, the defense and all related settlement negotiations.
9.0 Limitation of Liability. EACH PARTY'S SOLE REMEDY AND THE OTHER PARTY'S SOLE OBLIGATION SHALL BE GOVERNED BY THIS AGREEMENT. EXCEPT IN THE CASE OF EACH PARTY'S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND RESELLER'S BREACH OF SECTION 2.3 (RESTRICTIONS) OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY TO THE OTHER EXCEED TWO TIMES THE AGGREGATE AMOUNTS PAID OR OWED BY RESELLER TO AIRTIGHT IN THE 12 MONTHS PRECEDING ANY CLAIM. EACH PARTY EXPRESSLY AGREES THAT IN NO EVENT SHALL THE OTHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, WHETHER IN TORT OR CONTRACT, EVEN IF SUCH PARTY IS AWARE OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. Any AirTight profit from sales of Products or Services shall not be deemed special, indirect, incidental or consequential damages. AirTight shall not be responsible for any damages or expenses resulting from alteration or unauthorized use of the Products, or from the unintended and unforeseen results obtained by Reseller or any Customers resulting from such use.
10.0 Export Compliance. The parties shall comply with all applicable United States and foreign laws and regulations, including without limitation: (i) all applicable laws and regulations relating to the advertising, packaging, sale, and distribution of the Products, (ii) all United States export laws and regulations governing the export or re-export of all Products and any products or services provided in connection with the Products, including without limitation the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and any regulations administered by the Department of the Treasury's Office of Foreign Assets Control, and (iii) all applicable laws and regulations of countries other than the United States that govern the importation, use, or re-export of the Products. Reseller further agrees to comply with any conditions that AirTight notifies Reseller are contained in any applicable export licenses pertaining to the Products. Reseller shall comply with any reporting requirements that may apply to the export or re-export of the Products and shall provide to AirTight and the appropriate governmental authority any periodic reports containing such information as may be required under applicable law. Reseller further agrees to pay any taxes or tariffs that may apply to the export, or re-export of the Products.
11.0 Reseller shall comply with all statutes, laws, regulations, codes, ordinances, executive orders and licensing requirements of any country, state, municipality, or governing body (collectively "Laws") applicable to the Products and/or Services, AirTight, or Reseller's business activities, including but not limited to any environmental Laws, recycling or take-back programs for packaging, or the resale or use of Products. Reseller shall comply with all applicable anti-corruption Laws, including the U.S. Foreign Corrupt Practices Act ("FCPA") and the United Kingdom's Bribery Act 2010. Reseller shall not, and shall not authorize, offer or promise to make or give any money or other consideration to any official of a public international organization, government official, political party, political official, or candidate for political office ("Public Official"), or to any other person, while knowing or having reason to know that all or a portion of such money or other consideration will be offered, given or promised, directly or indirectly, to any Foreign Official or in violation of any laws.
12.1 Term. The term of this Agreement shall commence as of the Effective Date of this Agreement and continue until terminated by either party as provided herein.
12.2 Termination Without Cause. Either party may terminate this Agreement at any time without cause upon 30 days prior written notice to the other party.
12.3 Termination With Cause. Either party may terminate this Agreement: (i) upon 10 days written notice for a material breach of this Agreement if such breach is not cured within such 10-day period; or (ii) immediately after giving written notice upon the commencement by or against the other party of any proceeding under any bankruptcy or similar law providing relief to the party as debtor.
12.4 Rights Upon Termination. Upon any termination of this Agreement: (i) Reseller's status as an authorized Reseller shall be null and void; (ii) Reseller shall immediately cease using the Trademarks and discontinue all representations that it is an authorized Reseller; and (iii) Reseller shall promptly return to AirTight all sales literature, brochures, technical information, price lists, samples, evaluation units, and other materials received from AirTight.
12.5 Survival. The Sections entitled Restrictions, Price and Payment, Use of Trademarks, Confidentiality, Limited Warranty, Indemnification, Limitation of Liability, Rights Upon Termination, and Miscellaneous shall survive expiration or termination of this Agreement for any reason.
13.1 Assignment. Reseller may not assign this Agreement without the prior written approval of AirTight. For the purposes of this section, a change in the persons or entities that control 50% or more of the equity securities or voting interest of Reseller shall be considered an assignment of Reseller's rights. AirTight may assign this Agreement upon written notice to Reseller, a public announcement of which shall be deemed notice for this purpose.
13.2 Audit Rights. Upon reasonable notice and during Reseller's normal business hours, AirTight shall have the right to audit (either directly or indirectly through an independent third party) Reseller's books of account and business records as necessary to verify accuracy of the amounts paid pursuant to this Agreement. Reseller shall promptly pay the difference (plus interest) if such audit reveals an underpayment. If such audit reveals an underpayment of more than 5%, Reseller shall also reimburse AirTight for the reasonable costs and expenses of such audit.
13.3 Notices. All notices given pursuant to this Agreement shall be in writing and effective: (i) upon receipt if hand delivered; (ii) on the next day after being sent by email or facsimile if followed by the methods in subsections (iii) or (iv); (iii) on the third business day after being sent prepaid by certified or registered mail; or (iv) on the second business day after being sent prepaid by commercial express courier. All such notices will be sent to the addresses first set forth above, attention Controller and General Counsel for AirTight and Chief Executive Officer for Reseller.
13.4 Waiver. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
13.5 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.
13.6 Controlling Law. This Agreement shall be governed in all respects by the laws of the state of California, without regard to its choice of law rules. Application of the U.N. Convention of Contracts for the International Sale of Goods is expressly excluded.
13.7 Dispute Resolution and Attorneys' Fees. Except for claims related to a breach of confidentiality or infringement or misuse of intellectual property, any and all claims or disputes arising out of or in any manner related to this Agreement or any order shall be resolved in binding arbitration conducted in accordance with the provisions of the California Code of Civil Procedure, section 1280 through section 1294.2, or under such other provisions of California law enacted to modify or affect the foregoing sections. The laws of California relating to the arbitration of disputes that are in existence at the time that an arbitrable claim arises shall govern the proceedings. The parties acknowledge and agree that the parties and the subject matter of this Agreement have substantial contacts with the County of Santa Clara, State of California. The parties agree that arbitration shall be conducted in Santa Clara, California and that the Superior Court for the County of Santa Clara shall have jurisdiction with regards to petitions to compel arbitration. Each party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, such court. No punitive or exemplary damages may be awarded in the arbitration proceedings, but all other relief allowed by law or equity in judicial proceedings conducted in the State of California shall be recoverable. The arbitrator may award the prevailing party reasonable attorneys' fees and costs of arbitration if prior to the first meeting with the arbitrator, the prevailing party offered to participate in mediation conducted in Santa Clara County, California, before a mutually agreeable mediator and, if such offer is accepted, such party actually participated in good faith in such mediation proceedings.
13.8 No Agency. The parties are independent contractors under this Agreement, and nothing contained herein shall be construed as creating any agency, partnership, employment, or other form of joint enterprise between the parties.
13.9 Force Majeure. AirTight, AirTight's agents, Reseller and Reseller's agents shall not be liable for any delay or failure to perform for any cause beyond their reasonable control, except for the payment of money, to the extent that performance is rendered impossible by strike, fire, flood, wars, sabotage, civil unrest, governmental acts, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party.
13.10 Entire Agreement. This Agreement completely and exclusively states the agreement of the parties regarding its subject matter. This Agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. This Agreement may be modified by AirTight and notice of such shall be provided to Reseller. Reseller shall be deemed to accept any such changes to this Agreement and or the Channel Program unless Reseller provides AirTight written notice of termination within 10 days of AirTight's notice.