RESELLER AGREEMENT
This Reseller Agreement (“Agreement”) is entered into on this _______ day of ________, 2021 (the “Effective Date”), by and between AaDya Security, Inc., a Delaware corporation, with offices at 1420 Washington Blvd., Suite 600, Detroit, MI 48266 (“AaDya”), and [______________], a _______________ corporation, with office at ___________________________________________________ (“Reseller”).
RECITAL
AaDya has developed and is offering for sale subscriptions to a software-as-a-service platform, whereby AaDya analyzes certain data provided by its customers and their end users and provides such customers with cybersecurity-related reports and notifications based on AaDya’s analysis of such data, endpoint monitoring, anti-phishing and single sign-on functionality (the “Platform”). Reseller desires to resell subscriptions to AaDya’s Platform and represents that it has the expertise and other qualifications necessary for such reselling activities. AaDya has agreed to appoint Reseller as a non-exclusive reseller of the Platform under the terms and conditions of this Agreement.
NOW, THEREFORE, intending to be legally bound hereby, AaDya and Reseller agree as follows:
DEFINITIONS
Defined terms used in this Agreement will have the meanings set forth below:
“Affiliate” means, with respect to a Party hereto, an entity which, directly or indirectly, controls, is controlled by or is under common control with such Party, wherein “control” means the power to direct the management or affairs of an entity and/or the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.
“Documentation” shall mean user manuals, training materials, product descriptions, sales and marketing materials, and specifications and other printed information relating to the Platform, as in effect and provided from AaDya.
“End User” shall mean any third party that purchases a subscription to use the Platform from AaDya for such third party’s own use and not for resale.]
“End User Agreement” shall have the meaning set forth in Section 2.3. “Fee” shall mean the amount to be paid by AaDya to Reseller for Reseller End User subscriptions accepted by AaDya, as such amount is determined in accordance with Section REF _Ref293323546 \w \h \* MERGEFORMAT 3.1.
“Force Majeure Event” shall mean an event outside of the reasonable control of a Party, including, without limitation, a natural disaster, pandemic, act of war, terrorism, civil unrest, action or decree of a governmental body or communications line failure. “List Price” shall mean the prices as set forth in AaDya’s price list provided in writing from time to time to Reseller which sets forth the subscription prices for the Platform.
AaDya will have the right at any time to revise the List Price for the Platform with thirty (30) days’ advance written notice to Reseller. Such revisions will apply to all requests for Orders (as defined in Section REF _Ref293387231 \w \h 3.2) submitted by Reseller thirty (30) days after the date of AaDya’s issuance of the notification of such price revision.
“Parties” shall mean AaDya and Reseller.
“Renewal Date” shall mean with respect to each Reseller End User, the 12-month anniversary of the date of the initial onboarding on the Platform of such Reseller End User and each subsequent 12-month anniversary of such initial onboarding provided that such Reseller End User has been a party to a current End User Agreement throughout the previous 12-month period.
“Renewal Year” shall mean with respect to each Reseller End User the consecutive 12-month period immediately following a Renewal Date to the extent such Reseller End User renews the applicable End User Agreement.
“Reseller End User” shall mean any End User that purchases a subscription to use the Platform from AaDya on an order form submitted by Reseller.
“Reseller Referral” shall have the meaning set forth in Section 5.1. “Platform Subscription Fee” shall mean the subscription fee paid by a Reseller End User for the Platform.
“Term” shall mean the period beginning on the Effective Date and expiring or terminating on the date this Agreement expires or is terminated under Section REF _Ref293330492 \w \h 7.
“Platform” shall have the meaning set forth above.
APPOINTMENT AND AUTHORITY OF RESELLER
Resale Limitations. Reseller may resell subscriptions to the Platform only to End Users for such End Users’ internal use. The Platform will be resold only as marketed, or specifically permitted to be marketed, by AaDya. Subject to the terms of this Agreement, this Agreement only permits Reseller to (a) promote, or (b) in the case where subscriptions have originally been sold to Reseller by AaDya, resell subscriptions to the Platform to third parties. Except as expressly set forth herein, the sale or granting of the right to promote, sell, or offer to sell, subscriptions or other access to the Platform to Reseller does not convey any other license, expressly or by implication, estoppel or otherwise, under any intellectual property rights owned or controlled by AaDya.
Appointment; Rights Granted. Subject to the terms and conditions set forth herein, (a) AaDya hereby appoints Reseller as AaDya’s nonexclusive reseller of the Platform directly to End Users, and Reseller hereby accepts such appointment, and (b) AaDya hereby grants Reseller a non-sublicensable, non-transferable, non-exclusive right to (i) market the Platform, (ii) demonstrate and resell subscriptions to the Platform to End Users pursuant to End User Agreements (as defined in Section REF _Ref293330712 \w \h \* MERGEFORMAT 2.3), and (iii) use the Documentation to fulfill its support obligations, if any, under the Agreement. Reseller may not appoint sub-resellers. Nothing in this Agreement shall be construed as limiting in any manner AaDya’s marketing or distribution activities or its appointment of other dealers, distributors, licensees or agents. All subscriptions and other access to the Platform are licensed and not sold, notwithstanding the use of the terms “sell” or “resell” herein.
End User Agreement. Reseller is permitted to resell subscriptions and other access to the Platform to End Users only pursuant to AaDya’s standard end user agreement with AaDya as set forth on the AaDya website (“End User Agreement”). If any End User requires alternative terms, AaDya may, but is under no obligation to, agree in writing, in its sole and complete discretion, to permit such alternative terms. Reseller will require each End User to receive and accept the End User Agreement as a valid and enforceable written agreement as a condition precedent to the use of the Platform. AaDya reserves the right to amend the terms of its standard End User Agreement at any time.
Software. In order to access and use the Platform, each End user must use certain AaDya client software (the “Software”) that may be installed on End User’s equipment. Accordingly, subject to the terms of this Agreement, AaDya grants to Reseller a license during the term of this Agreement to reproduce and install copies of the Platform only on End User’s equipment. Notwithstanding anything else in this Agreement, AaDya and its licensors retain all title to, and, except as expressly licensed herein, all rights to the Software and the Platform, and all copies thereof (by whomever produced), all rights therein, and all related documentation and materials. Reseller will have no right to receive or license any source code with respect to the Software or the Platform. For avoidance of doubt, subject to the terms and conditions of this Agreement, (a) AaDya or Reseller (and not any other party) shall install copies of the Software and Platform on the applicable End User equipment, and (b) Reseller shall not allow any person or entity to directly or indirectly access the Software or the Platform (except for use of the Platform by End User as expressly authorized herein).
Independent Contractors. The relationship of AaDya and Reseller established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow Reseller to create or assume any obligation on behalf of AaDya for any purpose whatsoever.
TERMS OF RESALE BY RESELLER
Fees. The Fees to be paid to Reseller by AaDya herunder are set forth on Exhibit REF _Ref293323546 \w \h \* MERGEFORMAT 3.1 (which is attached hereto and incorporated herein by reference). In addition, Exhibit REF _Ref293323546 \w \h \* MERGEFORMAT 3.1 sets forth any other fees applicable to other services provided by AaDya as well as the billing, provisioning and support responsibilities of each of the Parties.
Purchases; Delivery. Reseller will initiate purchases under this Agreement as set forth on Exhibit 3.1 (“Orders”). The terms and conditions of this Agreement will apply to all Orders submitted to AaDya and supersede any different or additional terms contained in any Orders. All Orders are subject to acceptance by AaDya in writing, which acceptance will not be withheld unless the proposed End User is a competitor of AaDya or already a proposed customer of AaDya, or AaDya has another reasonable business or legal reason not to accept such Order. AaDya must provide notice of acceptance or rejection within ten (10) business days after receipt of the Order; if no response is provided within such 10-day period, the Order will be deemed rejected.
Taxes. All amounts payable by AaDya hereunder do not include any foreign, federal,
state or local sales, use or other similar taxes, however designated, levied against the licensing, delivery or use of the Platform or any other services. Reseller will pay, or reimburse AaDya for, all such taxes imposed on Reseller or AaDya, provided, however, that Reseller will not be liable for any taxes based on AaDya’s net income. When AaDya has the legal obligation to collect such taxes, the appropriate amount will be added to Reseller’s invoice and paid by Reseller unless Reseller provides AaDya with a valid tax exemption certificate authorized by the appropriate taxing authority.
Audits. During the Term and for three (3) years thereafter, AaDya or an independent third party auditor selected by AaDya, may inspect Reseller’s premises, books and records, upon AaDya’s reasonable request, for the purposes of determining whether Reseller has complied with the terms of this Agreement. AaDya will pay the expenses of the audit, unless such audit reveals either a material breach of a Reseller obligation hereunder or an underpayment of five percent (5%) or more, in which case Reseller will promptly pay AaDya the reasonable fees and expenses incurred by AaDya for such audit.
WARRANTIES
Warranties.
Each Party represents and warrants that it has the corporate authority to enter into and perform under this Agreement, without violation of any of its obligations to third parties. Reseller represents and warrants that its performance under this Agreement and all actions to be taken by Reseller as a result of or arising out of this Agreement shall be conducted in accordance with this Agreement and in compliance with all applicable laws, rules and regulations.
AaDya warrants to Reseller that it will provide the Platform in accordance with this Agreement and in a manner consistent with generally accepted industry standards and all applicable laws. In the event of a breach of the foregoing warranties, AaDya’s sole obligation, and Reseller’s sole remedy, will be for AaDya to use commercially reasonable efforts to correct the Platform. If AaDya cannot, or determines that it is not practical to, correct the Platform, AaDya may terminate the affected Platform and the price paid for the affected Platform by Reseller will be refunded to Reseller. Such refund shall be Reseller’s sole and exclusive remedy for any breach of the foregoing warranty. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, AADYA DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES ON THE AADYA SERVICE, PLATFORM, SOFTWARE AND ANY OTHER SERVICES FURNISHED HEREUNDER, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Reseller is fully responsible for the satisfaction of its End Users and will be responsible for all claims, damages, settlements, expenses and attorneys’ fees incurred by AaDya with respect to Reseller’s End Users or their claims beyond AaDya’s above warranty obligation to Reseller.
COMMERCIALIZATION; MARKETING
Reports and Projections. Within five (5) days of the end of each month during the Term, Reseller will provide AaDya with a report in AaDya’s then current standard form
and format (“Monthly Report”). At a minimum, such report will include: (i) the name, address and a designated contact for each Reseller End User that is the subject of an Order during such month and each potential End User with which Reseller is then engaged in discussions or negotiations regarding the Platform (such potential End User is referred to herein as a “Reseller Referral”); and (ii) a one (1) year rolling projection of Orders by Reseller.
Promotion of the Platform. Reseller represents, warrants and agrees that: (a) Reseller will use its best efforts during the Term to market and sell the Platform in the Territory in a manner that reflects favorably upon AaDya and in compliance with all applicable laws and regulations (including, without limitation, export control laws and the United States Foreign Corrupt Practices Act and all similar anti-corruption laws of other jurisdictions); (b) Reseller will keep accurate records and accounts with respect to subscriptions to the Platform sold, as well as all information required to produce Monthly Reports (as defined below); (c) Reseller agrees to cooperate and assist AaDya in bringing legal action against any End User for any activity in violation of AaDya’s End User Agreement; and (e) Reseller will not issue any press release or make any other public statement regarding the parties’ relationship absent AaDya’s prior written approval. In connection therewith, but without limiting the foregoing, at all times during the Term, Reseller will: maintain in its own name, at its own cost, sufficiently trained personnel to enable Reseller to provide competent technical advice and service to Reseller End Users; include the Platform in conjunction with other Reseller products or services in trade shows, conferences and other marketing events;
where practicable, invite AaDya to Reseller’s sales and marketing events related to the Reseller Service;
promptly respond to inquiries from prospective End Users;
notify Company of any complaints or claims concerning Company or the White-Label Services promptly after becoming aware thereof.
Marketing Plan. Within sixty (60) days after the Effective Date, and within thirty (30) days after each year of this Agreement, AaDya and Reseller will develop and implement a marketing plan with respect to the marketing and resale of the Platform. Each such marketing plan will set forth specific marketing and sales efforts for the applicable period, projected sales goals, anticipated revenues and specify with particularity the market support activities to be provided by AaDya. Each marketing plan will be reviewed by AaDya and Reseller on a quarterly basis and adjusted accordingly in consideration of actual and anticipated resales of the Platform hereunder.
maintain in its own name, at its own cost, sufficiently trained personnel to enable Reseller to provide competent technical advice and service to End Users;
include the Platform in conjunction with other Reseller products or services in trade shows, conferences and other marketing events;
where practicable, invite AaDya to Reseller’s sales and marketing events; promptly respond to inquiries from prospective End Users;
notify AaDya of any complaints or claims concerning AaDya or the Platform promptly after becoming aware thereof.
Upon Reseller’s request, and subject to availability of resources, AaDya would
participate in sales meetings with potential End Users and contribute as an overlay sales organization to support Reseller’s sales and marketing of the Platform. To the extent Reseller desires AaDya to participate therein, Reseller would endeavor to get AaDya involved in sales meetings early in the sales process.
Reseller Referral. In the event that a Reseller Referral becomes an actual End User within 90 days of being first included in the monthly report described in Section 5.1, through an order form submitted by Reseller (a “Reseller End User”), then Reseller shall be entitled to the fees set forth on Exhibit 3.1. In the event such Reseller Referral becomes an End User through an order form submitted directly to AaDya by such End User or submitted to AaDya by a third party reseller, then Reseller shall have no right to any fees relating to such End User. AaDya will not attempt to sell directly to any Reseller Referral during such 90-day period unless within such 90-day period such Reseller Referral indicates to AaDya that it no longer wishes to deal with Reseller (in which case, AaDya shall notify Reseller of such indication). For the avoidance of doubt, the naming of a Reseller Referral does not provide Reseller any form of exclusivity with respect to such Reseller Referral except as specifically set forth in the immediately preceding sentence.
Performance of Obligations. Reseller will represent the Platform accurately and fairly and will avoid any misleading or unethical business practices.
Marketing Materials. Reseller will, at its own expense, submit to AaDya, for AaDya’s prior written approval, all marketing materials not originally provided by AaDya to Reseller that Reseller intends to use in the marketing or promotion of the Platform. All marketing materials used by Reseller and not provided by AaDya must identify the Platform as services provided by or on behalf of AaDya (e.g., with a “Powered by AaDya” designation). Reseller will not publish or otherwise make available any materials relating to the Platform that are not approved marketing materials, and will not verbally disclose any conflicting or materially different information regarding AaDya or the Platform that is not contained on such approved marketing materials.
MODIFICATIONS AND UPDATES
Platform. AaDya, at its sole discretion, will have the right to modify the Platform at any time during the Term, provided that such modification does not have a materially adverse impact on the Platform and Except for Orders accepted by AaDya prior to the date of such notice, AaDya will be under no obligation to continue the Platform.
Updates. AaDya will periodically update the Platform in order to: (i) diagnose and fix bugs and make other corrections; and (ii) implement new functionality or modules as necessary to maintain the Platform.
TERM AND TERMINATION
Term. This Agreement will continue in force for an initial term of one (1) year from the Effective Date unless terminated earlier under the provisions of this Section REF _Ref293330492 \w \h 7, and may be renewed by mutual written agreement of the Parties. Termination. Either party may terminate this Agreement in the event of a breach of this
Agreement by the other party that is not cured within thirty (30) days (or ten (10) days in the event of non-payment) after the breaching party receives notice of such breach. In addition, AaDya may terminate this Agreement immediately (a) in the case of a breach by Reseller of Sections 2.4, 5.2, and 8; or (b) upon the commencement of any bankruptcy proceeding (or other insolvency proceeding) of Reseller or the dissolution or change of control of Reseller. Further, either party may terminate this Agreement at any time, with or without cause, upon sixty (60) days’ written notice. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination by such party (or expiration) that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses.
Provision of Subscriptions upon Termination. Upon termination of this Agreement other than by AaDya for cause or by Reseller without cause, AaDya will continue to provide, subject to the terms of Section REF _Ref293332287 \w \h 3, the Platform pursuant to Orders accepted by AaDya prior to the date of termination for the then-existing subscription terms accepted by AaDya (without renewal, absent mutual agreement of the Parties), and Reseller will continue to comply with all its related obligations hereunder. In addition, upon any expiration or termination of this Agreement for any reason: (a) all licenses and other rights granted to Reseller under this Agreement will terminate; (b) Reseller will return to AaDya all Confidential Information of AaDya, and all Documentation and all other tangible materials related to the Platform, including without limitation all derivative works and translations thereof; (c) all outstanding obligations or commitments of Reseller to pay amounts to AaDya will become immediately due and payable; and (d) for any order of Services that are in place and not delivered at the time of termination, AaDya will have the option to cancel or fulfill the order. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
Limitation on Liability. In the event of termination by either Party, neither Party will be liable to the other, because of such termination, for consequential or incidental damages, including without limitation, loss of profits or goodwill. Termination will not, however, relieve either Party of obligations incurred prior to the termination.
Survival. The provisions of Sections 2.4, 3.3, 4.1(c), 7, 8, 11 and 12 will survive the termination or expiration of this Agreement for any reason.
INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
Intellectual Property Rights. AaDya will retain all intellectual property rights relating to the Platform and/or Documentation, including all improvements, modifications, translations and derivative works thereof (“AaDya IP”). To the extent Reseller obtains any right, title or interest in or to any AaDya IP, Reseller hereby assigns to AaDya all right, title and interest in and to such AaDya IP. Reseller expressly acknowledges and agrees that the Platform is AaDya’s Confidential Information. Reseller will use AaDya’s then-current names, marks, logos, and other identifiers for the Platform (“Trademarks”) and AaDya’s designated intellectual property related notices on or in Reseller’s advertising and promotional for such Platform during the Term; provided that Reseller will: (a) only use Trademarks in the form and manner, and in accordance with the usage guidelines that AaDya specifically prescribes; and (b) upon termination of this
Agreement for any reason, immediately cease all use of the Trademarks. If AaDya determines that Reseller is using or displaying any Trademark in a manner that is or may be detrimental to AaDya’s interest, AaDya may issue reasonable instructions to Reseller concerning the manner, if any, in which Reseller may continue to use such Trademark. Reseller shall promptly comply with such instructions or cease the use or display of such Trademark. Reseller will not use, register or take other action with respect to any Trademark used anywhere in the world by AaDya, except to the extent authorized in writing by AaDya in advance.
Restrictions. Reseller will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform; remove any proprietary notices from any portion of the Platform or Documentation; modify, translate, or create derivative works based on the Platform or Documentation, except with the prior written approval of AaDya; use the Platform for any purpose other than for the benefit of its End Users as permitted in connection with the Platform; or use the Platform other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including export laws).
Feedback. Reseller may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to AaDya with respect to the Platform. AaDya will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality, and will have the full, unencumbered right to copy, distribute, transmit, display, perform, create derivative works of, use and otherwise fully exploit the Feedback in connection with its products and services. All Feedback and intellectual property rights arising out of or embodied in or by Feedback shall be the sole and exclusive property of AaDya and Reseller hereby agrees to assign and does hereby assign all such rights to AaDya.
Confidentiality.
As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in the Exhibits), business and marketing plans, technology and technical information, product designs, and business processes. The Documentation and Platform are the Confidential Information of AaDya. Confidential Information will not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party. In addition, each Party may disclose the terms and conditions of this Agreement to any actual or potential bona fide investors, acquirers or lenders.
Receiving Party will not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party will protect the confidentiality of Disclosing Party’s
Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party will promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information. If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it will provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
Upon any termination of this Agreement, Receiving Party will continue to maintain the confidentiality of Disclosing Party’s Confidential Information and, upon request, return to Disclosing Party or destroy (at Disclosing Party’s election) all materials containing such Confidential Information.
Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that remedies at law for a breach of the obligations under this Section will be inadequate and that AaDya will be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance) in addition to any other remedies.
INDEMNIFICATION BY AADYA
Indemnification. AaDya will defend at its expense any third party claim, suit or proceeding (each, a “Claim”) brought against Reseller by any third party in the United States to the extent such Claim is based upon a claim that the Platform infringes such third party’s patents in the United States, or copyrights or trade secrets, and AaDya shall pay all costs and damages finally awarded against Reseller by a court of competent jurisdiction as a result of any such Claim; provided, however, that Reseller (i) promptly notifies AaDya in writing of such Claim; (ii) promptly gives AaDya the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of AaDya’s own choosing (provided that Reseller shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (iii) gives assistance and full cooperation for the defense of same. If the Platform is, or in AaDya’s opinion, might be held to infringe as set forth above, AaDya may, at its option, (a) replace or modify the Platform so as to avoid infringement, (b) procure the right for Reseller to continue to resell the Platform or (c) terminate this Agreement without liability along with all then-existing subscriptions to the Platform; provided, that AaDya will be obligated to continue to indemnify Reseller under this Section 9.1. Notwithstanding the foregoing, AaDya will have no obligation under this Section or otherwise with respect to any infringement claim based upon (A) any unauthorized use of the Platform or any breach of this Agreement by Reseller, (B) any combination of the Platform with other products, equipment, software, uses or data, to the extent such claim would not have arisen absent such combination, (C) any modification of the Platform by any person other than AaDya or its authorized agents or contractors or (D) any activity after AaDya has provided Reseller with a work around or modification that would have avoided such issue.
Sole Remedy. The provisions of this Section 9 set forth AaDya’s sole and exclusive
obligations, and Reseller’s sole and exclusive remedies, with respect to infringement or misappropriation of third-party intellectual property rights of any kind.
INDEMNIFICATION BY RESELLER
Indemnification. Reseller will defend at its expense any Claim brought against AaDya to the extent such Claim arises out of (a) a breach of any obligation of Reseller set forth herein or (b) any marketing, use or other exploitation of the Platform (except to the extent covered by AaDya’s indemnity obligations in Section 9), and Reseller shall pay all costs and damages finally awarded against AaDya by a court of competent jurisdiction as a result of any such Claim; provided, however, that AaDya (i) promptly notifies Reseller in writing of such Claim; (ii) promptly gives Reseller the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Reseller’s own choosing (provided that AaDya shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim and no settlement shall be entered into by Reseller if such settlement involves the admission of liability or responsibility on the part of AaDya); and (iii) gives assistance and full cooperation for the defense of same.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, COMPANY WILL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (a) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO COMPANY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSE WHICH GAVE RISE TO SUCH DAMAGES; (b) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, OR RIGHTS; (c) FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (d) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (e) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE FOREGOING LIMITATION IS A FUNDAMENTAL PART OF THE BASIS OF COMPANY’S BARGAIN HEREUNDER. COMPANY WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATION.
GENERAL PROVISIONS
Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including, without limitation, earthquake, flood, or other natural disaster, act of God, pandemic, labor controversy, civil disturbance, terrorism, war (whether or not officially declared) or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree (“Force Majeure Event”); provided that financial inability in and of itself will not be a
Force Majeure Event.
Compliance with Laws. Reseller will not transfer, either directly or indirectly, the Platform or any related technology, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and will otherwise comply with all other applicable laws, rules and regulations.
Publicity. Neither Party will, without prior written consent of the other Party, issue a press release or other public statements or announcements regarding their business relationship or entry into this Agreement.
No Assignment. Reseller may not assign this Agreement, or sublicense any of the rights granted herein, in whole or in part, without the prior written consent of AaDya. Any attempt by Reseller to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing will be null and void. AaDya may freely assign or subcontract any or all of its rights or obligations under this Agreement.
Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by a duly authorized representative of both Parties. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the date of this Agreement.
Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby will be governed by and construed in accordance with the laws of the State of Michigan without regard to its rules of conflict of laws. Each of the Parties hereby (a) irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of Michigan and of the United States of America located in Wayne County, Michigan (the “Michigan Courts”) for any litigation among the Parties arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, (b) waives any objection to the laying of venue of any such litigation in the Michigan Courts, and (c) agrees not to plead or claim in any Michigan Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Michigan Courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the Parties with respect to this Agreement and the transactions contemplated hereby.
Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (a) delivered personally; (b) sent by confirmed telecopy or other electronic means; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses first set forth above.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.
IN WITNESS WHEREOF the Parties have caused this Agreement to be executed and delivered by their respective authorized signing officers, effective as of the Effective Date.
| AaDya Security, Inc. |
| By:
Raffaele Mautone, CEO |
Reseller:
By:
Name:
Title:
Exhibit REF _Ref293323546 \w \h \* MERGEFORMAT 3.1
Fees and Services
The Fee, the services to be provided by Reseller and the billing arrangements for End Users will be in accordance with the applicable Reseller Type indicated below. The responsibilities of each Reseller Type are as set forth in this Exhibit 3.1:
| Applicable
Reseller Type (check box) |
Reseller Type | Level | Pricing | Services to be Provided by
Reseller |
| √ | Referral
Partner |
L1 | 20% of
Platform Subscription Fees paid by each Reseller End User and received by AaDya in the 12 month period following onboarding of such Reseller End User. 10% of Platform Subscription Fees paid by each Reseller End User and received by AaDya in any Renewal Year. |
N/A |
L1 Referral Partners.
Reseller will initiate purchases under this Agreement by submitting written purchase orders signed by the applicable Reseller End User, the form of which will be mutually agreed upon by the Parties, and which may be sent via email or other mutually agreed method (“Orders”), to AaDya.
Upon Receipt of an Order, AaDya shall be responsible for onboarding each such Reseller End User and shall provide all Platform support in accordance with the End User Agreement.
AaDya shall be responsible for all billing and collection of Platform Subscription Fees. L1 Referral Partners shall be paid a Fee of 20% of the total Platform Subscription Fees paid by the applicable Reseller End User in the 12 month period following the onboarding of such Reseller End User. Such Fees shall be paid in monthly installments within 30 days of receipt by AaDya from such Reseller End User of the applicable Platform Subscription Fees.
CONFIDENTIAL
LIBC/4161136.1
AaDya Reseller Agreement Page PAGE 1
LIBC/4161136.1
LIBC/4161136.1
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