Engage Reseller Terms of Service
Last Modified: January 9, 2017
By signing up for the Engage Reseller Program, you are agreeing to be bound by the following Reseller Agreement (the “Agreement”). The Agreement is between Markido Inc. ("Licensor") and you ("Reseller"). You can review the current version of the Agreement at any time at markido.com/partners/terms. Markido Inc. reserves the right to update and change the Agreement by posting updates and changes here: http://markido.com/partners/terms. If a significant change is made, we will provide reasonable notice by email. This Agreement addresses the different types of Partner programs as defined below:
"Engage Affiliate Program": an "Engage Affiliate" has registered for an Engage Affiliate Program account via the Engage Affiliate Program page, and if approved is issued a unique referral link by Markido Inc. This referral link is used to track purchase of Engage software via the Reseller.
"Engage Partner Program": an "Engage Partner" has applied via the Engage Partner Program page, met the criteria and if approved and signed an Engage Partner Program addendum, is issued a unique referral link by Markido Inc. and is given the ability to create Engage license keys via the Engage Partner Portal.
Licensor and Reseller agree that the following terms and conditions shall apply between the parties.
1. Definitions
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
"Affiliate" of a party means any corporation or other legal entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;
"Confidential Information" means any business, marketing, technical, scientific or other information disclosed by either party (including their Affiliates) which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by the parties (or their Affiliates), exercising reasonable business judgment, to be confidential;
"Customer" means an individual or legal entity in the Territory who has executed an End User License or an Order Acknowledgement accepting a shrinkwrap license for the Software;
"Documentation" means any and all written or electronic documentation, including user manuals, reference materials, and/or installation manuals that Licensor generally makes available to licensees of the Software;
"End User License" means a license agreement between a Customer and Licensor in a form to be provided to Reseller by Licensor as may be updated by Licensor from time to time;
"Intellectual Property" means all rights in any invention, discovery, improvement, utility model, patent, copyright, trademark, industrial design or mask work right, and all rights of whatsoever nature in computer software and data, Confidential Information, trade secrets or know-how, and all intangible rights or privileges of a nature similar to any of the foregoing, in every case in any part of the world whether or not registered, and will include all rights in any applications and granted registrations for any of the foregoing rights;
"License Key" means a series of computer-generated characters provided by Licensor for the purpose of controlling the licensed use of an item of Software;
"Order Acknowledgement" means the form attached as Schedule B (Order Acknowledgement) to be executed by a Customer and subsequently delivered to Licensor in unmodified form;
"Professional Services" means development and other technology-related services that may be provided by Reseller to Customers in respect to the Software;
"Revenue Target" shall have the meaning ascribed to that term in Schedule A;
"Software" means each computer software program identified in Schedule A in machine-readable object code form only and associated Documentation;
"Subscription Fees" means the fees charged by Licensor, as set forth in Schedule A, for annual licenses to use the Software;
"Subscription Term” means the right to use the Software for a specified one (1) year period;
"Support" means Licensor's technical support program for the Software as set forth in Section 4(d) and Schedule C;
"Support Wind-Down Period" has the meaning ascribed to that term in Section 4(d);
"Term" has the meaning ascribed to that term in Section 10(a);
"Territory" means the area specified in Schedule A under the heading “Territory”, which may be changed by mutual written consent of the parties;
"Update" means error corrections, patch fixes, and/or bug fixes for the Software that have been developed by Licensor and made generally commercially available by Licensor. Update releases will generally be designated by a change in the digit of the release number to the right of the decimal - e.g. X.1 to X.2; and
"Upgrade" shall mean Software enhancements that have been developed by Licensor and made generally commercially available by Licensor. Upgrade releases will generally be designated by a change in the digit of the release number to the left of the decimal - e.g. 1.X to 2.Y.
2. Appointment
(a) Grant of Rights. Subject to the terms and conditions of this Agreement and payment of the applicable fees, Licensor hereby grants Reseller, for the Term, a non-exclusive, non-transferable right to market, promote and sell licenses and Support for such Software to Customers and potential Customers in the Territory. Reseller shall only market, promote and sell licenses for the Software on an annual subscription basis. Reseller shall not appoint agents, sub-resellers or sub-distributors or any other third party to market, promote or sell licenses and Support for the Software. Reseller shall market, promote and sell license for the Software solely to Customers for end use and not to anyone who intends to further re-market or re-distribute such Software or who intends to use the Software to provide a service to third parties. Licensor grants to Reseller a non-exclusive, non-transferable license for the Term to use thirty (30) copies of the Software to provide demonstrations to potential Customers (the “Pilot Software”). Reseller's use of the Pilot Software shall be governed by the terms and conditions of the shrinkwrap license provided with or embedded in the Pilot Software, with the grant of usage rights in the shrinkwrap license modified to match the scope of use set forth in the immediately preceding sentence.
(b) Software Licensing. Software shall only be licensed to a Customer pursuant to the terms and conditions of an End User License executed by such Customer or pursuant to a shrinkwrap license included with or accompanying the Software provided that such Customer has executed an Order Acknowledgement for the Software. Reseller shall provide Licensor with all End User Licenses and Order Acknowledgements that have been executed by Customers forthwith after such execution. If a potential Customer does not execute an End User License or an Order Acknowledgement, Reseller shall notify Licensor to enable Licensor to negotiate licensing terms directly with such potential Customer. In the event of such negotiation, Reseller shall not provide such potential Customer with any production License Keys for the Software until such time as a license agreement has been executed between Customer and Licensor.
(c) Distribution of Software. Reseller shall be entitled to sell licenses for the Software in accordance with the pricing provisions specified in Schedule A. Upon receipt of a purchase order from Reseller (along with all required supporting documentation) for a quantity of Software licenses that have been sold by Licensor to a Customer, Licensor will deliver a production License Key to Reseller for such Customer (or if authorized by Licensor, Reseller can generate a production License Key for such Customer) that will then be delivered by the Reseller to the applicable Customer. The Customer may then use such License Key to download the Software from Licensor's website. Reseller shall be responsible for and bear all expenses (including taxes) for distributing License Keys to Customers. Reseller shall advise Licensor forthwith if Reseller receives notice from any Customer that such Customer is intending not to renew their subscription license for the Software. Licensor shall be entitled to refuse to provide License Keys to Reseller if Reseller is delinquent in its payment obligations to Licensor.
(d) Sales of Support. Support is included with the Subscription Fees for the Software for an applicable Subscription Term. Support will be provided by the parties in accordance with Section 4(d) and Schedule C and shall be subject to payment of the applicable Subscription Fees.
(e) Reservation of Rights. The rights and licenses granted under this Agreement are only as expressly set forth in this Agreement. No other license or right is or will be deemed to be granted, whether by implication, estoppel, inference or otherwise, by or as a result of this Agreement or any conduct of either party under this Agreement. Reseller shall not disassemble, reverse translate, decompile or in any other manner decode the Software except to the extent that the foregoing restriction is expressly prohibited by applicable law notwithstanding a contractual obligation to the contrary. Licensor and its licensors shall retain all right, title, and interest (including all Intellectual Property rights) in, to, and under the Software. Except as explicitly permitted in this Agreement, Reseller shall not distribute, lease, rent, grant a security interest in, assign, or otherwise transfer the Software. Reseller shall not modify or create any derivatives of the Software or merge all or any part of the Software with another program. Reseller shall identify the Software as proprietary to Licensor, and not remove from the Software any copyright, trademark, confidentiality, or other proprietary notices of Licensor or its licensors. In addition, Reseller shall follow good proprietary rights practices and procedures to protect Licensor's and its licensor's rights, including those practices and procedures that may be reasonably required by Licensor or its licensors and suppliers.
3. Obligations of Reseller
(a) Reseller Efforts. Reseller shall, solely at its own cost: (i) use its commercially reasonable efforts to market and promote the sale of licenses and Support for the Software in the Territory, which activities shall include but not be limited to: (1) employing at all times experienced sales personnel knowledgeable concerning the functions, specifications and advantages of the Software to demonstrate and sell licenses and Support for the Software to potential Customers; (2) providing pertinent information concerning the Software to potential Customers while making no representations, warranties or guarantees to Customers or to the trade with respect to the specifications, features or capabilities of the Software that are inconsistent with the representations or warranties set forth in the End User License or shrinkwrap license for the Software; (3) maintaining trained and experienced sales engineering personnel knowledgeable concerning the functions and specifications of the Software to install the Software for Customers; and (4) utilizing advertising, mailings and attendance at trade shows, consistent with good business ethics and in a manner that will reflect favorably on the Software and on the goodwill and reputation of Licensor.
(b) Market Information. Reseller shall use reasonable efforts to advise Licensor about Reseller's activities under this Agreement, on deviations from budget, of market information and competitive trends that may come to Reseller's attention respecting the Software, of Reseller's market position, and the continued competitiveness of the Software in the Territory, including charges, complaints or claims by Customers or others about the Software.
(c) Communications. Reseller shall not make any representations and warranties on behalf of Licensor or bind or commit Licensor or pledge the credit of Licensor in any way.
(d) Violation of Licensor Rights. Reseller shall promptly notify Licensor of any suspected or known violation of any End User License or Software shrinkwrap or of any suspected or known infringement or misappropriation of any Intellectual Property rights in the Software and Reseller shall provide reasonable assistance in verifying the facts surrounding such suspected or known violations, infringements or misappropriations.
(e) Business Practices. Reseller shall comply with all applicable laws and regulations of the Territory, and shall observe the rules of fair competition and refrain from engaging in any illegal or deceptive trade practices, unethical business practices, or make any representations inconsistent with the specifications provided by Licensor with respect to the promotion and sale of licenses and Support for the Software. This obligation shall include using commercially reasonable efforts, subject to receiving reasonable assistance from Licensor and Customers, to obtain any and all required import approvals and licenses from the relevant government authorities for the sale of licenses for the Software to Customers.
(f) Customer Relations. Reseller shall use commercially reasonable efforts to maintain good business relations with Customers and to maintain goodwill for Licensor and Reseller, all in a manner consistent with prudent business practice which activities include, but are not limited to, the following: (i) using all reasonable efforts to promptly fill or arrange to have filled orders for Software and Support; and (ii) providing Customers with marketing literature, as may be provided to Reseller by Licensor from time to time, and such other assistance as may be necessary or appropriate in promoting the distribution of the Software.
(g) Order Documentation. For all Software ordered by Reseller under this Agreement, Reseller shall provide Licensor with a purchase order identifying the Customer, ship-to address, bill-to address, the Software being ordered, quantity, pricing, platform, version and other pertinent information.
4. Obligations of Licensor
(a) Provision of License Keys. Reseller may apply to Licensor for the right to generate License Keys for the Software. If Licensor approves Reseller's application to receive the right to generate License Keys then Licensor will provide Reseller with a user name and password that will allow Reseller to access the appropriate portion of Licensor's on-line “Partner Portal” that contains the License Key generator for the Software and which can be used to create License Keys for demonstration licenses (Pilot Software) and/or production licenses. Reseller shall maintain its access credentials for Licensor's Partner Portal in confidence and shall only use the License Key generator for legitimate Software licenses sales and/or Software license sales opportunities. Licensor shall be entitled to revoke Reseller's credentials for the Partner Portal at any time in Licensor's reasonable discretion. For greater certainty, Licensor shall be entitled to revoke Reseller's credentials for the Partner Portal if Reseller is delinquent in its payment obligations to Licensor.
(b) Software-Related Information. Licensor shall use commercially reasonable efforts to provide Reseller with timely notice prior to issuing new Software revisions, and/or information regarding new revisions or Software discontinuance.
(c) Marketing Literature. Licensor shall use commercially reasonable efforts to provide Reseller, at no charge, with an initial amount of Software marketing literature. The amount of such literature shall be determined by Licensor in its sole discretion. Additional quantities of Software marketing literature may be made available to Reseller for a fee. Licensor may, from time to time and in its sole discretion, make available to Reseller electronic versions of publicly available Software marketing literature.
(d) Support. The responsibilities of the parties for Support of Software for which subscription licenses have been sold by Reseller to Customers shall be as set forth in Schedule C. After the expiration or termination of this Agreement, the parties shall provide Support under the terms and condition of this Agreement for an additional twelve (12) months for Customers that have purchased (or renewed) subscription licenses for the Software with Reseller (such period hereinafter referred to as the “Support Wind-Down Period”). Licensor shall provide Reseller with copies of all Upgrades and Updates as they are made generally commercially available by Licensor during the Term of this Agreement and thereafter during the Support Wind-Down Period, subject to the payment by Reseller of the applicable fees.
5. Royalties and Payment
(a) Commissions and Fees. For Software subscription licenses (including renewals) sold by Reseller to Customers during the Term, Reseller shall be entitled to a commission from the amounts paid by the applicable Customers for such subscription licenses as set forth in Schedule A, and, after deducting its commission from the amounts paid by the applicable Customer, Reseller shall pay Licensor the fees as specified in Schedule A. Reseller shall report all Software subscription license sales to Licensor within five (5) business days after the applicable sale and Licensor will consolidate such reports and bill the corresponding fees to Reseller on a calendar monthly basis.
(b) Payment. All amounts under this Agreement shall be due upon Licensor's presentation to Reseller of an invoice for the corresponding fees, and the amounts set forth in such invoices shall be paid in full by Reseller within thirty (30) days of the date set forth in such invoice. If any payment, or any other sum due to Licensor under this Agreement, becomes past due for more than thirty (30) days, Licensor may charge Reseller a late payment charge of one percent (1%) per month (12.67% annually) or the maximum rate legally permitted, whichever is less.
(c) Taxes. All fees exclude taxes (including any applicable federal, state, provincial, use, value-added, goods and services, and local taxes, excluding taxes based on Licensor's net income) and the costs relating to the delivery of the Software. Reseller shall pay to Licensor the amount of all such taxes and additional costs.
(d) Fee Changes. Licensor may change, in its sole discretion, any pricing contained in Schedule A, upon thirty (30) days prior written notice (which notice may be provided to Reseller by way of a posting on Licensor's on-line “Partner Portal” or electronically via email to Reseller). If Licensor increases the price of an item of Software, all transactions for such Software completed prior to the effective date of the price increase shall be invoiced at the previous price. Licensor will honour written quotations for such Software that have been made by Reseller to Customers prior to the notice of the price change. Qualifying quotations that have been made by Reseller to customers prior to a price change will be honoured by Licensor for a period not exceeding ninety (90) days from the date of such written Reseller quotation, provided that Licensor is supplied a copy of such quotation. If Licensor notifies Reseller of a reduction in the price of an item of Software, Licensor will offer such reduced pricing on any deals Reseller is negotiating in respect to such Software but which have not closed at the time of notification of such reduced price.
(e) Refunds. If Licensor refunds the purchase price for an item of Software to a Customer pursuant to the warranty, intellectual property indemnity or any other provision of the relevant End User License or shrinkwrap, then Reseller shall pay to Licensor all amounts received from the Customer for such item of Software.
(f) Currency. Unless otherwise indicated in this Agreement, all amounts in this Agreement are set forth in the following currencies: (1) if Reseller is located in Canada, then in Canadian dollars; and (2) if Reseller is located outside of Canada, then in United States dollars. All amounts payable under this Agreement shall be paid in the applicable currency as set forth above in this Section 5(f).
(g) Records and Audit. In addition to the reports that are to be provided pursuant to Section 5(a), Reseller shall keep complete and accurate records with respect to the amounts received by Reseller for sales of subscription licenses for the Software and amounts received by Reseller for sales of Professional Services provided in respect to the Software (the “Revenue Records”). Once per year and after giving Reseller at least ten (10) business days prior written notice of an intention to conduct an audit, Licensor shall have the right to audit or appoint an auditor to audit the Revenue Records to confirm Reseller's compliance with the payment obligations of this Agreement. Any audit shall be conducted during normal business hours and any auditor appointed by Licensor shall be entitled to provide Licensor with a report indicating the amount by which Reseller has overstated or understated the payments due to Licensor. Prompt adjustment shall be made by the proper party to compensate for any overpayments or underpayments disclosed by any audit. Licensor shall bear all of the costs of any audit, unless such audit reveals underpayment by more than five percent (5%) for the audited period, in which case, Reseller shall reimburse Licensor for all reasonable costs of such audit.
6. Confidentiality
(a) Protection of Confidential Information. Reseller acknowledges that the Software (and any information incorporated therein or provided in respect thereto) is the Confidential Information of Licensor. Each party shall maintain in confidence all Confidential Information of the other party, shall use such Confidential Information only for the purpose of exercising its rights and fulfilling its obligations under this Agreement, and shall not disclose any Confidential Information of the other party to any third party except as expressly permitted pursuant to this Agreement or make any unauthorized use thereof. Each party shall treat Confidential Information of the other party with the same degree of care against disclosure or unauthorized use as it affords to its own information of a similar nature, or a reasonable degree of care, whichever is greater. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documents or other materials containing Confidential Information of the other party. Each party shall be entitled to provide the disclosing party's Confidential Information to contractors of the receiving party that have agreed to confidentiality obligations at least as protective as those contained in this Agreement. The obligations of confidence set forth in this Agreement shall extend to any Affiliates that have received the other party's Confidential Information and shall also cover Confidential Information disclosed by any Affiliate.
(b) Exemptions. Neither party shall be bound by obligations restricting disclosure and use set forth in this Agreement with respect to the other party's Confidential Information, or any part thereof, which: (i) was lawfully known or received by the receiving party prior to disclosure without any obligation of confidentiality; (ii) was lawfully generally publicly known prior to its disclosure, or becomes generally publicly known other than through a breach of this Agreement; (iii) was disclosed to the receiving party by a third party, provided such third party, or any other party from whom such third party receives such information, is not in breach of any confidentiality obligation in respect of such information; or (iv) is independently designed and developed by the receiving party without any violation of any Intellectual Property or other rights of the other party.
(c) Compelled Disclosure. If a receiving party is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, to disclose Confidential Information of a disclosing party, the receiving party shall use reasonable efforts to (i) seek confidential treatment for such Confidential Information, and (ii) provide prior written notice to the disclosing party to allow the disclosing party to seek protective or other court orders.
7. Warranty
(a) Limited Warranty. Licensor warrants that for a period of twelve (12) months from the date of delivery to the Customer, the Software will operate in accordance with its Documentation and the media on which the Software is supplied, if any, will be free from any defect that has a materially adverse effect on its use. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, THE SOFTWARE AND SUPPORT PROVIDED BY LICENSOR UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS-IS” BASIS. LICENSOR DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, TITLE, DURABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnification
(a) Reseller Indemnification. If an action, suit or proceeding is brought against Licensor by a third party arising from or relating to: (a) any representations or warranties or commitments made by Reseller in respect to the Software that were not authorized in writing by Licensor; (b) Reseller's actions under this Agreement, including but not limited to, Reseller's breach or violation of applicable export laws or regulations; or (c) any breach by Reseller of any of the terms or conditions of this Agreement, Reseller shall defend Licensor, at Reseller's expense, and shall pay any settlement amounts Reseller authorizes and all damages, costs and attorneys' fees finally awarded against Licensor in any such action, suit or proceeding.
9. Limitation of Liability
(a) LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DIRECTORS OR EMPLOYEES) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. EXCEPT FOR ITS OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION), IN NO EVENT SHALL LICENSOR'S (INCLUDING ITS AFFILIATES, SUBCONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DIRECTORS OR EMPLOYEES) LIABILITY UNDER THIS AGREEMENT TO RESELLER, REGARDLESS OF THE BASIS OF LIABILITY OR THE FORM OF ACTION (INCLUDING FUNDAMENTAL BREACH, TORT, NEGLIGENCE, MISREPRESENTATION, OR OTHER CONTRACTUAL OR TORT CLAIM), EXCEED TOTAL PAYMENTS MADE BY RESELLER TO LICENSOR IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEEDING THE EVENT OR EVENTS GIVING RISE TO THE LIABILITY.
NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY'S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM RESELLER'S INFRINGEMENT OR MISAPPROPRIATION OF LICENSOR'S INTELLECTUAL PROPERTY RIGHTS, OR (III) CLAIMS FOR BODILY INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE NEGLIGENCE OF SUCH PARTY OR ITS EMPLOYEES, SUBCONTRACTORS OR AGENTS.
(b) LIMITATION ON ASSERTIONS. NO CAUSE OF ACTION MAY BE ASSERTED BY RESELLER AGAINST LICENSOR LATER THAN ONE (1) YEAR FOLLOWING THE DATE ON WHICH THE CAUSE OF ACTION ACRUED.
10. Term and Termination
(a) Term. This Agreement will commence as of the Effective Date and will continue in effect for an initial term of two (2) years (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement will be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
(b) Termination. A party may terminate this Agreement by giving a written notice to the other party: (i) if the other party commits a material breach of this Agreement and fails to remedy such material breach within thirty (30) days after delivery of written notice by the non-breaching party of the occurrence or existence of such breach or such longer period as may be agreed to in writing by the non-breaching party; (ii) if the other party applies for or consents to the appointment of a receiver, trustee, or liquidator for all or substantially all of its assets or such a receiver, trustee, or liquidator is appointed; or such party has filed against it an involuntary petition of bankruptcy that has not been dismissed within sixty (60) days thereof, or files a voluntary petition of bankruptcy, or a petition or answer seeking reorganization, or an arrangement with creditors, or seeks to take advantage of any other law relating to relief of debtors; or (iii) for convenience upon ninety (90) days notice. If Reseller does not meet the Revenue Target for an applicable calendar year, then Licensor may in its sole discretion, terminate this Agreement immediately upon provision of written notice to Reseller.
(c) Effect of Termination. Upon termination or expiration of the Agreement, Reseller's appointment as a reseller for the Software shall immediately end. All rights and licenses granted pursuant to this Agreement will expire immediately upon termination or expiration. No expiration or termination of this Agreement will impair or affect licenses for the Software properly sold by Reseller in accordance with this Agreement prior to the effective date of the expiration or termination of this Agreement. Termination or expiration will not release either party from its obligation to pay any fees accruing prior to the date of the termination or expiration or that thereafter nay become due during the Sales Wind-Down Period. In addition to this Section 10(c), Sections 1, 5, 6, 7, 8, 9, and 11 of this Agreement shall survive termination or expiration. Upon termination or expiration of the Agreement, Reseller shall immediately destroy or return, at Licensor's option, the Software and Licensor's Confidential Information and all copies thereof. Notwithstanding the foregoing, during the Support Wind-Down Period Reseller shall be entitled to retain copies of the Software that are used solely to provide support to Customers. Additionally, during the Support Wind-Down Period, Licensor will provide Support to Reseller under the terms and conditions of this Agreement to the extent that Reseller has paid to Licensor the fees set forth in Schedule A. To the extent that Reseller has paid the applicable fees due pursuant to Schedule A, Section 4(d) of the Agreement and Schedule C shall survive termination and expiration for such period of time. After the end of the Support Wind-Down Period, upon Licensor's request, Reseller shall, within ten (10) days of such request certify in writing Reseller's compliance with this entire Section.
11. General
(a) Nature of Obligations Between Parties. The obligations of each party under this Agreement shall be in every case several and shall not be, or be construed to be, either joint or joint and several. Nothing contained in this Agreement shall be deemed to constitute either party or any of its representatives the partner, agent, franchisee, or legal representative of the other party or to create any fiduciary relationship for any purpose whatsoever. Except as otherwise specifically provided in this Agreement, nothing in this Agreement shall confer on either party or any of its representatives any authority to act for, bind, or create or assume any obligation or responsibility on behalf of the other party.
(b) Export. The Software and related information may be subject to export and import restrictions. Reseller shall comply with any such laws as are applicable.
(c) Assignment. Neither party may assign this Agreement, any interest herein or any rights hereunder without the prior written consent of the other party, except that Licensor may assign this Agreement to (i) any Affiliate, or (ii) any person or entity that acquires all or substantially all of its related business by merger, sale of stock or assets, or otherwise or to an Affiliate of Licensor. Subject to the foregoing limits on assignment, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
(d) U.S. Government Customers. If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in the Software and accompanying Documentation will be only as set forth in the shrinkwrap agreement accompanying or embedded in the Software; this is in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions).
(e) Governing Law. This Agreement shall be governed by the laws of the province of Ontario, without regard to its conflict of law principles. Reseller shall only be entitled to bring any action or proceeding arising out of or relating to this Agreement or the Software in a court in Ottawa, Ontario, Canada. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
(f) Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes (each a “Force Majeure Event”), provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. Licensor shall have the right to terminate this Agreement in the event that Reseller is unable to fulfill its obligations herein for a period of at least sixty (60) calendar days due to a Force Majeure Event.
(g) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law. If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed without further action by the parties to the extent necessary to make such provision valid and enforceable
(h) Amendments; Waivers. This Agreement may be amended, and the taking of any action required hereunder may be waived, by the written consent of each party at the time such amendment or waiver is sought. No such waiver will operate as a waiver of, or estoppel with respect to, any other action. No failure to exercise, and no delay in exercising, any right, remedy, or power under this Agreement will operate as a waiver thereof, nor will single or partial exercise of any right, remedy, or power under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, or power provided under this Agreement or by law or at equity. The waiver of the time for performance of any act or condition hereunder does not constitute a waiver of the act or condition itself.
(i) Interpretation. Any agreement or schedule referred to herein means such agreement or schedule as amended, supplemented and modified from time to time to the extent permitted by the applicable provisions thereof and by this Agreement. References to any statute or regulation means such statute or regulation as amended at the time and includes any successor statute or regulation. Unless otherwise stated, references to recitals, articles, sections, paragraphs, schedules and exhibits will be references to recitals, articles, sections, paragraphs, schedules and exhibits of this Agreement. The parties agree that this Agreement will be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities will not be interpreted against the party that drafted the relevant language.
(j) Notice. In any case where any notice or other communication is required or permitted to be given by one party to the other party hereunder, such notice or communication shall be in writing and unless otherwise provided in this Agreement (a) personally delivered, (b) sent by international air courier service with confirmation of delivery requested, or (c) transmitted by fax, to the other party at the location first specified for that other party in this Agreement.
(k) Entire Agreement. This Agreement and the Schedules hereto constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. No preprinted terms or conditions of any purchase order submitted by Reseller to Licensor shall be of any contractual effect between the parties. If you are accepting the online version of this Agreement, this Agreement will not become effective between the parties until Licensor has agreed to and both parties have executed a signed Schedule A to this Agreement setting forth the financial terms agreed between the parties.