Reseller Terms and Conditions
1. APPOINTMENT; RELATIONSHIP OF PARTIES
- Appointment. Subject to all of the terms and conditions in this Agreement, EC Suite appoints Reseller to act during the Term (as defined below) as a non-exclusive reseller authorized to market, resell and support ECS's CDN and IP Transit Services directly to customers of Reseller ("Customers") and Reseller accepts such appointment. Upon the mutual written agreement of the parties, the services being sold under this Agreement may be expanded subject in all cases to the terms and conditions of this Agreement.
- Freedom of Action; Certain Restrictions. Reseller acknowledges that its appointment under this Agreement is non-exclusive and, except as expressly set forth herein, nothing in this Agreement shall limit in any manner ECS's marketing, distribution or sales activities or its rights to market, distribute or sell, directly or indirectly, or appoint any other person or company as a dealer, distributor, reseller, licensee or agent for, EC Suite Services worldwide. Each party may directly or indirectly (through resellers or otherwise) market, sell, offer or provide any of its respective products or services except for those Services include in this Agreement to any customer of the other party during or after the Term.
- Independent Contractors. The relationship of EC Suite and Reseller established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either party the power to direct and control the day-to-day activities of the other; (ii) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (iii) permit either party or any of either party's officers, directors, employees, agents or representatives to create or assume any obligation on behalf of the other party for any purpose whatsoever.
- Managers. Reseller shall designate a manager who will supervise Reseller's activities hereunder including support and quality control ("Reseller Designated Manager"). EC Suite shall designate a manager who will supervise EC Suite activities hereunder including sales training, support and resource allocation ("EC Suite Designated Manager"). A party may change its Designated Manager, if any, upon notice to the other party's Designated Manager. The EC Suite Designated Manager and the Reseller Designated Manager shall each serve as the principle point of contact for the other party for the resolution of any issues or problems that may arise hereunder. The services of the EC Suite Designated Manager and the Reseller Designated Manager shall be at no charge to the other party. Reseller shall provide EC Suite with current and complete Reseller contact information and Reseller profile information.
2. LICENSE GRANT; RESTRICTIONS; CUSTOMER AGREEMENTS
- License Grant. Subject to all terms and conditions of this Agreement, EC Suite grants to Reseller during the Term the non-exclusive, nontransferable, revocable right and license to provide all EC Suite provided and related documentation ("Documentation"), directly to Customers who purchase Services from Reseller solely for all reasonable purposes as contemplated by this Agreement; and to use the Documentation for the purpose of demonstrating the Services and providing support services to Customers as contemplated under this Agreement.
- License Restrictions. Reseller shall not appoint any other person, firm, or entity as a sub-distributor or agent for EC Suite Services. Reseller shall not, for itself, any affiliate of Reseller or any third party: sell, sublicense, assign, or transfer the Documentation, except as permitted under this Agreement, or remove from the Documentation any language or designation indicating the confidential nature thereof or the proprietary rights of EC Suite or its suppliers in such items.
- Customer Terms and Conditions; Right of EC Suite to Restrict Content. All re-sales of Services and sublicenses of Documentation by Reseller will be subject to the execution and delivery by each Customer of a valid and binding agreement that contains, at a minimum, the terms and conditions set forth in the attached Exhibit A, and that does not contain any terms or conditions inconsistent with this Agreement (the "Customer Terms and Conditions"). Notwithstanding anything herein to the contrary, if EC Suite determines in its sole discretion that such Customer Content is inappropriate or unacceptable, EC Suite reserves the right to refuse to provide Services to any Customer or to take steps to prevent any Customer Content from being routed to, passed through or stored on or within the EC Suite Network.
3. RESELLER PERSONNEL TRAINING; CUSTOMER SUPPORT
- Training. EC Suite shall provide to Reseller's sales and technical personnel, at ECS's training facility or, if available, online: (i) a reasonably sufficient number of training sessions and source training material to reasonably enable Reseller's sales and support staff to become knowledgeable about the capabilities and operation of, and support for, the Services, and (ii) technical consulting services and training to reasonably ensure that Reseller has the internal capability to, among other things, provide services to Customers, invoice Customers for Services, and provide adequate and proper Customer support for Services., provided, however, that EC Suite provided training shall be limited to 4 days per year. Reseller shall be responsible for the travel, lodging and meal expenses of its employees who attend any training session. Reseller will ensure that any of its personnel who provide support or integration services shall have received training and shall be and remain knowledgeable about the EC Suite Services.
- Customer Support. EC Suite will provide Tier-2 and Tier-3 technical support to Reseller as defined in and in accordance with the provisions of the attached Exhibit B. Reseller will provide Tier-l technical support directly to Customers as defined in and in accordance with the provisions of the attached Exhibit B. Upon the written request by an authorized Reseller representative, EC Suite may provide technical support directly to a Customer in accordance with ECS's standard technical support terms and conditions, subject to the right of EC Suite to charge Reseller if the direct Customer support to be provided by EC Suite exceeds ECS's agreed upon Tier-2 and Tier-3 support obligations.
4. MARKETING EFFORTS; PROMOTIONAL MATERIALS
- Co-Branded Service. Reseller agrees that the Services to be marketed, resold and supported by Reseller pursuant to the terms of this Agreement shall be co-branded as "Service Powered by EC Suite" or such other co-brand as may be agreed upon by both parties. The form or forms of logo or tag line used by Reseller to represent the co-branded service offering shall be subject to ECS's prior approval.
- Reseller's Efforts. Reseller shall use its best efforts to: (i) aggressively market, resell and support Services to Customers; (ii) dedicate adequate resources, financial and otherwise, and maintain facilities and staff, to market, resell and support Services in accordance with Reseller's obligations under this Agreement, in a timely, diligent and professional manner using competent personnel; (iii) keep EC Suite informed as to any problems encountered by Customers or by Reseller with the Services, and to communicate to EC Suite any resolution or proposed resolutions relating to such problems; (iv) maintain accurate records of all Customers to which Reseller sells Services, including the names and addresses of such Customers, the date Services were initially provided to Customers, and the Customer Agreements (v) maintain accurate records of all support services provided to Customers; and (vi) maintain and update as necessary emergency contact information for each Customer.
- Promotional Materials; Marketing. EC Suite will provide Reseller with a reasonable amount of sales and marketing literature relating to the Services. The exact form and quantity of such literature will be determined at ECS's reasonable discretion. Reseller shall adhere to ECS's branding and marketing guidelines and restrictions as provided to Reseller by EC Suite, and Reseller shall not make any representations or statements regarding Services, other than those contained in the sales and marketing literature and promotional materials provided to Reseller by EC Suite, without the prior written approval of EC Suite. Upon notice from EC Suite, Reseller shall discontinue use of any marketing literature or promotional materials that EC Suite no longer deems acceptable.
- Governing Principles. Reseller acknowledges the importance of upholding the reputation of the EC Suite Services and representing the EC Suite Services and the support to Customers in a consistent high quality manner. Accordingly, Reseller agrees that it will maintain at all times during the Term the highest business practices and ethics while marketing or representing EC Suite Services, and comply with all applicable laws and regulations.
- Publicity. Within 30 days of the Effective Date, the parties agree to issue a joint press release announcing the relationship contemplated by this Agreement. The press release shall be subject to the approval of each party. During the term of this Agreement, subject to the restrictions contained in Section 6 below, each party may post on its web site the other party's logo and/or a hyperlink to the other party's web site, to use the other party's name in connection with proposals to other prospective customers and otherwise refer to the other party and the co-branded service offering contemplated hereby in print or electronic form for marketing or reference purposes.
- Customers. During the Term, Customers shall be considered Customers of Reseller and Reseller shall be solely responsible for billing Customers for their use of the Services. The format and information contained on the Customer invoice will be at the Reseller's discretion. During the Term, EC Suite will provide Reseller with monthly data sorted by content provider codes in a standard file format to enable Reseller to bill its Customers separately. Subject to any restrictions placed upon Reseller or EC Suite by a Customer, EC Suite shall be entitled to reference Customers on ECS's web site and in marketing materials as a customer. After termination or expiration of this Agreement, Customers will become direct customers of EC Suite with respect to the Services and direct customers of Reseller with respect to those services not offered by EC Suite.
5. CONTENT RESPONSIBILITY; INTELLECTUAL PROPERTY RIGHTS
- Customer Content. As between EC Suite and Reseller, Reseller is and shall be solely responsible for any creation, renewal, updating, deletion, editorial content, control and all other aspects of any files, software, scripts, multimedia images, graphics, audio, video, text, data or other objects originating or transmitted from any web site owned or operated by Reseller or any Customer of Reseller and routed to, passed through and/or stored on or within the EC Suite network or otherwise transmitted or routed using EC Suite Services ("Customer Content"). Reseller or its Customers shall be responsible to tag/rename the URL of the Customer Content to route such Customer Content to the EC Suite network and install and maintain any and all EC Suite provided traffic management probes ("Probes") including provision of any and all power, internet connectivity, and other reasonable support. In the event Reseller or one of its Customer becomes aware that any Customer Content (a) violates or infringes upon the intellectual property or other rights of any third party, (b) contains any libelous, defamatory, or obscene material, or (c) violates any laws or regulations applicable to such Customer Content, Reseller shall remove or cause its Customer to remove such Customer Content from such content's origin server and/or remove the URL/tag from such Customer Content so that it will not be routed to and not pass through the EC Suite Network. Reseller agrees that EC Suite is an Internet Service Provider ("ISP") under the Digital Millennium Copyright Act (DMCA) and understand that EC Suite is required under the DMCA to have removed any material that another party claims is infringing once EC Suite has received, in its sole judgment, a proper notification. Reseller also agrees that if a Customer does not comply with a request from EC Suite to remove material under the DMCA or for any other reason, EC Suite may at its discretion block access by the website to ECS's network until such time as EC Suite is certain that the material is removed. EC Suite may, at its sole discretion, determine who is an "infringer" and may terminate Service if EC Suite, at it sole discretion, believes a Customer to be a repeat infringer.
Reseller or its Customers shall be solely responsible for maintaining the availability of the Customer web site(s), the connectivity of such web site(s) to the Internet, and all Customer Content, IP addresses, domain names, hyperlinks, databases, applications and other resources as necessary for Reseller or Customer to operate and maintain its web site(s).
- EC Suite Software and Services. As between EC Suite and Reseller or any Customer of Reseller, EC Suite shall own all right, title and interest in and to the, Documentation, Probes and Services. Reseller acknowledges that the Documentation and Services constitute proprietary information and trade secrets which are the sole and exclusive property of EC Suite or its licensors and that the Documentation and Services are or may be protected by U.S. patent, copyright, trade secret and/or similar laws and certain international treaty provisions. This Agreement does not transfer or convey to Reseller or any Customer or third party any right, title or interest in or to the, Documentation, or Services or any associated intellectual property rights, but only a limited right of use revocable in accordance with the terms of this Agreement and any Customer Agreement.
6. MARKS; USAGE RESTRICTIONS
Either party's use, display or reference to the other party's proprietary indicia, trademarks, service marks, trade names, logos, symbols and/or brand names (collectively "Marks") shall be subject to the advance written approval of that party, which approval shall not be unreasonably withheld. Neither party may remove, destroy or alter the other party's Marks. Each party agrees that it shall not challenge or assist others to challenge the rights of the other party or its suppliers or licensors in the Marks or the registration of the Marks, or attempt to register any trademarks, service marks, trade names, logos, symbols, brand names or other proprietary indicia confusingly similar to the Marks. All use of a party's Marks, including but not limited to use of any co-branded logo comprised of each party's Marks, shall be subject to such party's logo and trademark usage guide, as provided to the other party and as the same may be updated from time to time. Neither party grants any rights in the Marks or in any other trademark, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of the parties.
7. FEES; PRICING AND PAYMENT TERMS
- Prices; Fees. ECS's current wholesale prices for Services provided to Reseller, together with all other payment terms and conditions are set forth in the attached Exhibit C. It is understood that Reseller will be entitled to resell Services to Customers at a price determined by Reseller in its sole discretion. EC Suite acknowledges that in an opportunity in which both EC Suite and Reseller propose Services, and EC Suite wins the contract by proposing a price below that of the wholesale price charged to the Reseller, Reseller shall have a 30 day period in which they may provide 30 days prior notice to EC Suite of their intent to terminate the agreement. EC Suite may change any or all of the prices set forth in Exhibit C at any time without prior notice, provided however, that EC Suite must provide Reseller with a minimum of 30 days notice of any material increase in the prices set forth in Exhibit C.
- Payment Terms; Taxes. All prices are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any jurisdiction. Reseller will be invoiced by EC Suite as provided in the attached Exhibit C. Reseller agrees to pay a late charge of 1.5 % per month or the maximum lawful rate; whichever is less, for all amounts not paid within 30 days of receipt of invoice. All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of EC Suite) which are imposed by or under the authority of any government or any political subdivision thereof on the amounts charged by EC Suite to Reseller under this Agreement shall be borne by Reseller and shall not be considered a part of, a deduction from or an offset against such fees.
- Security Interest. To secure all of its obligations under this Agreement, Reseller hereby grants to EC Suite a security interest in all of Reseller's right, title and interest in and to all accounts receivable and all other rights to the payment of money for Services rendered to Customers, whether now or hereafter existing, or now owned or hereafter acquired or arising (collectively, the "Collateral"). Reseller represents and warrants that it will keep the Collateral free and clear of all security interests, liens and other encumbrances, except for the security interest in favor of EC Suite granted hereby. EC Suite may at any time, notify, or request Reseller to command, any account debtor or other obligor with respect to any of the Collateral, to make payment to EC Suite or its designee directly. In addition to any of ECS's other rights and remedies, upon the occurrence of a default, EC Suite may exercise all rights of a secured party under the Uniform Commercial Code. For purposes of this Section 8.3, a "default" shall have occurred if Reseller shall have breached or failed to comply with any of the material terms of this Agreement and shall have not cured such breach or default within the cure period, if any, provided herein.
8. ACCURATE RECORDS; RIGHT TO AUDIT
EC Suite shall maintain complete and accurate records and log files for six months from the date on which they relate to support and document the fees charged to Reseller in connection with this Agreement. Reseller shall maintain complete and accurate records as required hereunder, and shall provide to EC Suite the right to audit all executed Customer contracts for purpose of determining compliance with this Agreement. In the event Reseller objects to EC Suite conducting such an audit, EC Suite will select an independent third-party, subject to Reseller's approval, which approval shall not be unreasonably withheld or delayed. ECS's right to conduct such audits shall be limited to once in any one calendar year.
9. REPRESENTATIONS AND WARRANTIES
- ECS's Representations and Warranties. EC Suite represents and warrants that: (i) EC Suite and its licensors own or possess the necessary rights, title and licenses in and to the Software and Probes necessary to perform its obligations hereunder, (ii) EC Suite has the right to enter into this Agreement and to perform its obligations hereunder, and (iii) EC Suite has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations hereunder.
- Reseller's Representations and Warranties. Reseller represents and warrants that: (i) Reseller has the right to enter into this Agreement and to perform its obligations hereunder, and (ii) Reseller has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations hereunder.
- WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 10, BOTH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. RESELLER SHALL MAKE NO REPRESENTATIONS OR WARRANTIES ON EC SUITE'S BEHALF WITHOUT SUITE'S EXPRESS WRITTEN CONSENT.
10. TERM AND TERMINATION
- Term; Initial Term; Renewals. The Initial Term, together with any and all Renewal Terms, is collectively referred to as the "Term." This Agreement shall be for a term of one year from the Effective Date (the "Initial Term") and automatically renews for a term of one year thereafter (each a "Renewal Term") unless either party notifies the other party of its intent to terminate at least 60 days prior to the expiration of Term.
- Termination upon Default. Either party may terminate this Agreement in the event that the other party materially breaches or defaults in performing any obligation under this Agreement and such breach or default continues for a period of 30 days following written notice of default.
- Termination upon Insolvency. This Agreement shall terminate, effective upon delivery of written notice by a party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party.
- Effect of Termination. The provisions of Sections 2.2, 5, 6, 7.3, 8, 9, 10, 11, 12, 13, 14, 15 and this Section 10.4 shall survive termination of this Agreement. All other rights and obligations of the parties shall cease upon termination of this Agreement. The term of any license or rights granted hereunder shall expire upon expiration or termination of this Agreement.
11. DISPUTE RESOLUTION
In the case of any disputes under this Agreement, the parties shall first attempt on good faith to resolve their dispute informally, or by means of commercial mediation, without the necessity of formal proceeding. Any controversy or dispute arising out of or relating to this Agreement, or the breach thereof, which cannot otherwise be resolved as provided above shall be resolved by arbitration conducted in accordance with the commercial arbitration rules of the American Arbitration Association ("AAA") and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof.
12. CONFIDENTIAL INFORMATION
All information disclosed by either party ("Disclosing party") to the other party ("Receiving Party"), if disclosed in writing and labeled as proprietary or confidential, or if disclosed orally and the Receiving Party reasonably knows such information is proprietary or confidential, is "Confidential Information" and shall remain the sole property of the Disclosing Party. Except for the specific rights granted by this Agreement, the Receiving Party shall not use any Confidential Information of the Disclosing Party except as contemplated by this Agreement. The Receiving Party shall use the same degree of care to protect the Disclosing Party's Confidential Information as such party uses with respect to its own confidential information. The Receiving Party shall not disclose Confidential Information to any third party without the express written consent of the Disclosing Party (except solely for the Receiving Party's internal business needs, to employees, consultants, agents and representatives who are bound by a written agreement with the Receiving Party to restrict the disclosure and use of such Confidential Information in a manner consistent with this Agreement). The prohibitions contained in this Section 13 shall not apply to information that is: (i) available to the public other than by a breach of this Agreement; (ii) rightfully received from a third party not in breach of an obligation of confidentiality; (iii) independently developed by the Receiving Party without access to Confidential Information; (iv) known to the Receiving Party prior to the time of disclosure; or (v) produced in compliance with applicable law or a court order, provided the Disclosing Party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. Subject to the above, the Receiving Party agrees to cease using any and all materials embodying Confidential Information, and to promptly return such materials to the Disclosing Party upon request.
- Mutual Indemnification. Each party shall indemnify and hold the other, its assignees, agents, officers and employees harmless from and against any damages to real or tangible personal property and/or bodily injury to persons, including death, resulting from its or its employees' or agents' negligence or willful misconduct.
- EC Suite Indemnification Obligations.
- EC Suite or its licensors shall defend, indemnify and hold harmless Reseller and its affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of a claim by a third party that any of EC Suite Services infringes any valid patent, copyright, trade secret, or other intellectual property right under the laws of the United States, provided that: (i) Reseller promptly notifies EC Suite, in writing, of the suit, claim or proceeding or a threat of suit, claim or proceeding; (ii) at ECS's reasonable request and expense, Reseller provides EC Suite with reasonable assistance for the defense of the suit, claim or proceeding; and (iii) EC Suite has sole control of the defense of any claim and all negotiations for settlement or compromise, except that EC Suite shall not settle or compromise any claim without the prior written consent of Reseller, which consent shall not be unreasonably withheld or delayed.
- If a claim of infringement under this Section 14 occurs, or if EC Suite determines that a claim is likely to occur, EC Suite will have the right, in its sole discretion, to either: (i) procure for Reseller and its Customers the right or license to continue to use the Service free of the infringement claim; or (ii) replace or modify the Service to make it non-infringing provided that the replacement service substantially conforms to ECS's then current specification for the Service. If these remedies are not reasonably available to EC Suite, EC Suite may, at its option, terminate this Agreement without liability, other than liability that may arise under Section 14.1, and EC Suite shall return any fees paid by Reseller in respect of EC Suite Services not provided.
- Despite the provisions of this Section 13, EC Suite has no obligation with respect to any claim of infringement to the extent based upon or arises out of: (i) any modification to the Service if the modification was not made by or at the written direction of EC Suite; or (ii) the use or combination of the Service with any hardware, software, products, data or other materials not specified or provided by EC Suite; or (iii) Reseller's or any Customer's use of the EC Suite Services other than in accordance with the documentation or ECS's written directions or policies.
- Reseller Indemnification Obligations. Reseller acknowledges that by entering into and performing its obligations under this Agreement, EC Suite does not assume and should not be exposed to the business and operational risks associated with Reseller's business. Accordingly, Reseller shall defend, indemnify, and hold harmless EC Suite and its affiliates, licensors, suppliers, officers, directors, employees and agents from and against any and all damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees) incurred as a result of claims of Customers or other third parties, arising from or connected with: (i) any Customer Content, (ii) Reseller's or any Customer's web site(s) (including without limitation any activities or aspects thereof or commerce conducted thereon), (iii) Reseller's or any Customer's use of the Services, except for matters in which EC Suite is obligated to indemnify Reseller under Section 14.2.1 and material breaches of ECS's obligations under this Agreement; (iv) Reseller's or any Customer's unauthorized modification of any software or unauthorized combination of software with any hardware, software, products, data or other materials not specified or provided by EC Suite, or (v) any claims based on a misrepresentation by Reseller with respect to the EC Suite Services; provided that: (i) EC Suite promptly notifies Reseller, in writing, of the suit, claim or proceeding or a threat of suit, claim or proceeding; (ii) at Reseller's reasonable request and expense, EC Suite provides Reseller with reasonable assistance for the defense of the suit, claim or proceeding; and (iii) Reseller has sole control of the defense of any claim and all negotiations for settlement or compromise, except that Reseller shall not settle or compromise any claim without the prior written consent of EC Suite, which consent shall not be unreasonably withheld or delayed.
- Exclusions. THE PROVISIONS OF THIS SECTION 14 STATE THE SOLE AND EXCLUSIVE OBLIGATIONS AND LIMITATION OF LIABILITY OF BOTH PARTIES FOR ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT AND ARE IN LIEU OF ANY WARRANTIES OF NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED.
14. LIMITATION OF LIABILITY AND DAMAGES.
EXCEPT FOR LIABILITY ARISING OUT OF A PARTY'S INDEMNFICATION OBLIGATIONS OR BREACH OF CONFIDENTIALITY, EACH PARTY'S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY RESELLER TO EC Suite UNDER THIS AGREEMENT DURING THE PRECEDING SIX MONTHS. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY (INCLUDING ANY CUSTOMER OF RESELLER) FOR ANY LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCREMENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE USE OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
- Third Party Beneficiaries. This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and, except as expressly provided herein or in any Exhibit hereto, does not confer any rights or remedies on any other person or entity.
- Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
- Severability. Should any provision of this Agreement be held to be void, invalid, or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in effect and the invalid provision shall be deemed modified to the least degree necessary to remedy such invalidity. The parties further agree that in the event such provision is an essential part of this Agreement, the parties will begin negotiations for a suitable replacement provision.
- Notices. Any notice required or permitted hereunder shall be in writing and be delivered in one of the following manners: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by fax with oral confirmation of receipt; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. All notices must be sent to the contact person for notices at the address listed on the cover page of this Agreement. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section 16.4.
- Assignment. Reseller shall not, without the prior written consent of EC Suite, assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be void. ECS's rights and obligation; in whole or in part, under this Agreement may be assigned by EC Suite upon notice to Reseller.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona. Any suit hereunder shall be brought in the federal or state courts in Maricopa County Arizona and Reseller hereby submits to the personal jurisdiction thereof.
- Waiver. In no event shall a failure of either party to exercise or enforce any provision of this Agreement be construed as a waiver of any provision or right under this Agreement.
- Entire Agreement. This Agreement, including all Exhibits and other documents incorporated herein, constitutes the entire agreement between EC Suite and Reseller pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements of such parties in connection herewith. The terms of this Agreement shall control in the event of any inconsistency with the terms of any Exhibit hereto. We expect that these terms and conditions will evolve over time. We will post the terms and conditions, including any changes, on the EC Suite Website located at www.ecsuite.com/cs/docs/ra_ip_tc.html and we ask that you periodically review them. Your continued participation will constitute your acceptance of any changes to the terms and conditions.
- Force Majeure. If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party's reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, vandals, or hackers (a "force majeure event") the time for that party's performance will be extended for the period of the delay or inability to perform due to such occurrence; provided, however, that Reseller will not be excused from the payment of any sums of money owed by Reseller to EC Suite; and provided further, however, that if a party suffering a force majeure event is unable to cure that event within 30 days, the other party may terminate this Agreement.
- Non-Disclosure of Agreement Terms. Neither party shall disclose to third parties, other than its agents and representatives on a need-to-know basis, the terms of this Agreement or any Exhibit hereto without the prior written consent of the other party, except either party shall be entitled to disclose (i) such terms to the extent required by law, and (ii) the existence of this Agreement.
- Remedies. Except as provided herein, the rights and remedies of each party set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
- Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors and permitted assigns.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, and all of which shall constitute one and the same Agreement.
IN WITNESS WHEREOF, each of the parties, by its duly authorized representative, has entered into this Agreement as of the Effective Date.
EC Suite LLC
2353 W. University Dr.
Tempe, AZ 85281-7223, U.S.A.