Exhibit 10.1
VIVATO RESELLER AGREEMENT
This Vivato Reseller Agreement (''Agreement") is entered into as of the
effective date indicated below (the "Effective Date"), by and between Vivato,
Inc., a Delaware corporation, with its principal offices located at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000 Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000 ("Vivato") and the Reseller
identified below ("Reseller").
This Agreement consists of this signature sheet, the Terms and Conditions
attached hereto ("Terms and Conditions"), the exhibits listed below, and any
supplements to the foregoing executed by the parties in accordance with the
Terms and Conditions.
Contract Number
Reseller: Network Installations Corp.
Address: 00 Xxxxxxxxxx Xx. # 000X
Xxxxxx XX, 00000
Effective Date: August 14, 2003
Territory: California
Exhibits:
A Vivato Products and Prices
B Product Warranty
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives as of the
Effective Date.
Vivato, Inc RESELLER
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx X Xxxxxxxx Name: Xxxxxxx Xxxxxxxx
Title: Vic President Title: CEO
Initial Address for Notice:
Vivato Network Installations
00000 X Xxxxxxxx Xxxx, Xxx 000 00 Xxxxxxxxxx Xxxxx, 000X
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxxxx Xxxxxxxx
Fax: 0-000-000-0000 Fax 000-000-0000
TERMS AND CONDITIONS
1. DEFINITIONS
Capitalized terms in this Agreement including those in the Exhibit, have the
meanings
set forth below or defined elsewhere in this Agreement. All references to
Sections and Exhibits
in this Agreement are to Sections and Exhibits attached to this Agreement,
"Acknowledged Shipping Date" is defined in Section 3.2.
"Confidential Information" is defined in Section 8.1.
"Co-op Funds" is defined in Section 5.4.
"Days" shall mean calendar days.
"Discloser" is defined in Section 8.2.
"End User" shall mean a person or entity that acquires the right to use the
Vivato
Product from Reseller for that person or entity's own personal or internal
business use solely in
the Territory, and not for distribution, resale or other purposes.
"Force Majeure Event" is defined in Section 14.2.
"Point of Sale Reports" is defined in Section 5.2
"Product Warranty" shall mean Vivato's product warranty for the Vivato Product
as set
forth in Exhibit B, as amended by Vivato from time to time.
"Recipient" is defined in Section 8.2.
"Renewal Term" is defined in Section 13.1.
"Required Disclosure" is defined in Section 8.3.
"Reseller Committed Revenue" is defined in Section 4.2.
"Term" is defined in Section 13.1.
"Territory" shall mean the geographical location(s) specified on the signature
sheet in
which Reseller will be allowed to distribute the Vivato Products in accordance
with this
Agreement.
"Vivato Product" shall mean those items as further specified in Exhibit A,
including the
Vivato Software.
"Vivato Software" shall mean the Vivato Operating System that includes Vivato
Vision
GUI, command line interface application, and Rouge AP Detection, and the Vivato
Integrated
Site Survey Application and any updates, modifications or additional software
module thereto
that Vivato may provide as a part of the Vivato Product to Reseller under this
Agreement.
"Vivato Trademarks" is defined in Section 2.2.
2. Appointment AND LICENSE
2.1 Appointment and License Grant.
(a) License Grant. Subject to the terms and conditions of this Agreement,
Vivato hereby appoints Reseller as a nonexclusive reseller of Vivato products in
the Territory and grants to Reseller a nontransferable and nonexclusive license
during the Term to resell
(b) License Restrictions. Reseller shall not use modify, create derivative works
of, make. have made, display, perform, reproduce, distribute, sell, sublicense
or otherwise exploit the Vivato Products in any way for any purpose except as
expressly permitted under this Agreement. For the purpose of protecting Vivato's
trade secrets, Reseller shall not disassemble, decompile, or reverse enginner
any part of the Vivato Software or Vivato Products.
2.2 Trademark License and Usage.
(a) Trademark License. Reseller shall use any name, logo and trademark of
Vivato used by Vivato to identify Vivato Products that Vivato provides to
Reseller under this Agreement (the "Vivato Trademarks") solely in the Territory
and solely in connection with the distribution of Vivato Products under the
terms of this Agreement, provided that any use of any Vivato Trademark shall be
subject to Vivato's prior written approval and be in accordance with Vivato's
then current usage guidelines for such Vivato Trademark. In the event that
Vivato notifies Reseller that Reseller has failed to comply with the; usage
guidelines for any Vivato trademark, Reseller shall immediately suspend all use
of the applicable Vivato trademark until such non-compliance has been corrected.
Vivato may modify the Vivato trademarks from time to time. Upon notice from
Vivato to Reseller of any modification to the Vivato trademarks. Reseller shall
use such modified Vivato trademarks and immediately cease any use of the Vivato
Trademarks previously provided to Reseller.
(b) Trademark Restrictions. Reseller hereby acknowledges and agrees that (i)
the Vivato Trademarks are owned solely and exclusively by Vivato or its
affiliates; (ii) Reseller has no rights, title or interest in or to the Vivato
Trademarks; (iii) Reseller shall not contest Vivato's ownership of or rights in
the Vivato Trademarks (iv) all use of the Vivato Trademarks by Reseller will
inure to the benefit of Vivato and its affiliates; (v) Reseller agrees not to
apply for registration of the Vivato Trademark (or any xxxx confusingly similar
thereto) anywhere in the world; (vi) Reseller agrees that it will not engage,
participate or otherwise become involved in any activity or course of action
that diminishes and/or tarnishes the image and/or reputation of Vivato or of any
Vivato Trademarks; and (vii) Reseller may not sublicense, transfer or assign
Vivato Trademarks.
3. ORDER AND DELIVERY
3.1 Forecasts. During the Term, Reseller shall submit to Vivato, three months in
advance on an ongoing basis, a rolling monthly forecast of its quantity
requirements for Vivato Products. Reseller shall submit the first such forecast
with ten (10) Days of the Effective Date.
3.2 Direct Order and Acceptance. To order Vivato Products, Reseller shall
provide Vivato with purchase orders via mail, facsimile, or electronic mail.
Each purchase order shall specify the xxxx-to address, ship-to address, quantity
and description of each Vivato Product ordered, the unit price for each Vivato
Product as specified in this Agreement, the requested ship date (which shall be
not more than 180 Days after date of the purchase order), the preferred means of
delivery, and tax exempt certifications, if any. Each purchase order placed by
Reseller shall be governed by the terms of this Agreement, and any terms set
forth in Reseller's purchase orders that are additional to or inconsistent with
this Agreement shall be deemed stricken from such purchase order. Each purchase
order for Vivato Products shall be subject to Vivato's acceptance and upon
acceptance; Vivato will confirm the order and the shipping date with Reseller
("Acknowledged Shipping Date").
3.3 Reschedule or Cancellation of Direct Order. Reseller has a one time right to
reschedule all or any portion of a purchase order that has been accepted by
Vivato, provided that such rescheduling request is made at least sixty (60) Days
prior to the Acknowledged Shipping Date for that order. Reseller may cancel all
or any portion of an unshipped purchase order provided that such request is made
at least ninety (90) Days prior to the Acknowledged Shipping Date for that order
and Rescller pays Vivato a cancellation charge equal to twenty-five percent
(25%) of the then current list price of the Vivato Product ordered.
3.4 Delivery. Vivato shall use commercially reasonable efforts to promptly fill
(by full or partial shipment) Reseller's purchase orders for Vivato Products
accepted by Vivato, subject to Vivato's shipping schedule, access to supplies on
acceptable terms and allocation of available products and capacity among Vivato
customers. Vivato will use commercially reasonable efforts to notify Reseller
from time to time of Vivato's then average lead time. Vivato will use
commercially reasonable efforts to meet the Acknowledged Shipping Date, but in
no event shall Vivato be liable for failure to meet such schedule. H Reseller is
late in payment or is otherwise in default under this Agreement, Vivato shall be
entitled to withhold or delay shipment of any order of Vivato Products, in
addition to any other remedies Vivato may have under this Agreement. Vivato
Products shall be delivered F.O.B. Spokane, Washington, or at a Vivato
manufacturing location as may be identified from time to time. Title to the
media containing Vivato Products and the risk of loss shall pass from Vivato to
Reseller upon delivery, at Vivato's designated shipping point. Vivato shall
package Vivato Products in Vivato's customary manner but will use commercially
reasonable efforts to provide special packaging at Reseller's written request
and expense. Vivato shall select the forwarders, brokers. transportation
suppliers and insurance carriers; provided that if Reseller has previously
notified Vivato of preferred forwarder, brokers, transportation suppliers and
insurance carriers, Vivato shall use commercially reasonable efforts to use such
preferred entities. Reseller shall pay, or reimburse Vivato, for all freight and
insurance charges.
3.5 Modifications. Vivato reserves the right to modify Vivato Products from time
to time upon thirty (30) Days written notice to Reseller. Vivato may, upon
ninety (90) Days written notice to Reseller, discontinue the manufacture or sell
of any Vivato Product.
3.6 Value Added DIstributor Order. Reseller may also purchase directly from
Vivato's Value Added Distributor in Territory, if such exists. Reschedule,
cancellation and delivery order terms will be determined directly between
Reseller and Vivato's Value Added Distributor.
4. FEES AND PAYMENT
4.1 Fees.
(8) Vivato Products. For each Vivato Product ordered by Reseller under the terms
of this Agreement. Reseller shall pay Vivato the V AR Price specified in Exhibit
A. Vivato's current list price for the Vivato Products is set forth in Exhibit A
and may be modified by Vivato at its sole discretion.
4.2 Discount. Vivato will offer Vivato Channel Partners either a 32% or 30%
discount off current list price for the term of this Agreement as long as
Reseller generates $l2SK per quarter as an Elite Partner (32% discount) or $50K
per quarter as an Advantage Partner (30% discount) from the Territory.
4.3 Payment. All payments under this Agreement shall be in U.S. dollars, shall
be invoiced upon shipment, and shall be due within thirty (30) Days from the
date of invoice. Any late payment of fees due to Vivato under this Agreement
shall bear interest at the .rate of 1.5% per month (18% per annum based on a
calendar year of 360 Days) or, if lower, the highest rate allowed by law. Vivato
reserves the right to require payment in advance or payment secured by letters
of credit. Vivato also reserves the right to demand payment in full prior to
shipment of any order in the case of Reseller's prior payment delinquency.
4.4 Taxes. Reseller shall be responsible for all sales taxes. use taxes,
withholding taxes. value added taxes, import and export taxes and any other
similar taxes imposed by any United States' federal, state, provincial or local
governmental entity or any government entity in the Territory on the
transactions contemplated by this Agreement, excluding taxes based on Vivato's
net income. When Vivato has the legal obligation to payor collect such taxes,
the appropriate amount shall be invoiced to and paid by Reseller unless Reseller
provides Vivato with a valid tax exemption certificate authorized by the
appropriate taxing authority.
5.
SALES AND MARKETING
5.1 Relationship Manager. Each party shall designate an individual to serve as
the single point of contact for all business activities. The Vivato point of
contact will work with the Reseller to develop a work plan. including, but not
limited to, sales forecasts, seminars, training, Point of Sale Reports and
promotional obligations.
5.2 Point of Sale Information. Reseller shall provide periodic written or
electronic Point of Sale Reports ("Point of Sale Reports") indicating the bid-to
address, ship-to address, quantity and description of each Vivato Product
ordered, including model numbers. Nothing in this Agreement may restrict
Vivato's use of the Point of Sale Information for market analysis, information
processing, and marketing and product maintenance purposes.
5.3 Promotional Obligations During the Term of this Agreement. Reseller shall
actively promote and market the Vivato Products in the Territory. After the
Effective Date, Reseller shall promptly include the Vivato Products in
Reseller's catalogs and other promotional materials and identify them as the
products of Vivato being marketed by Reseller. Reseller shall keep Vivato
informed of relevant market trends, customer needs, competitive activity,
economic and regulatory conditions in the Territory and Reseller's distribution
and inventory of the Vivato Product. Vivato reserves the right to review
Reseller's sales strategies and reasonably require adequately trained and
focused sales personnel selling the Vivato Products as a condition to continuing
Reseller's appointment.
5.4 Co-op Advertising Program. To assist the Reseller in advertising and
promoting Vivato Products, Vivato shall accrue into a special advertising fund
one and one-half percent (1.5%) of sales dollars based upon monthly Point of
Sale Reports provided by Reseller to Vivato ("Co-op Funds"). Amounts in such
Co-op Funds shall be disbursed to Reseller to reimburse it for 100% of
demonstrated and pre-approved advertising and promotional expenses incurred by
Reseller in connection with the advertising and promotion of Vivato Products.
Unused Co-op Funds at the end of each calendar year, or at the time of
termination of this Agreement for any reason, will be lost and neither refunded
nor applicable to future years. Except as expressly set forth herein, Reseller
shall be solely responsible for all costs and expenses related to the
advertising, marketing, promotion and distribution of the Vivato Products.
5.5 Sales Support. Vivato shall provide commercially reasonable amounts of
pre-sales support to Reseller's sales organization. Vivato will support
Reseller's sales activities on a best efforts basis.
5.6 Marketing Materials. Upon Reseller's request, Vivato shall provide Reseller
with reasonable amounts of marketing materials in English in hardcopy and, as
available, in electronic version. Reseller hereby agrees to only use sales and
marketing materials that accurately describe the Vi vam Products.
S.7 Customer Service. Reseller shall provide first line customer service and
shall maintain manpower, facilities, and inventory of the Vivato Products to
ensure prompt handling of inquiries, orders, and shipments for Vivato Products
in order to provide good customer service and marketing coverage in the
Territory. Reseller shall not make any representations or warranties regarding
the Vivato Products which are in addition to or different than the Product
Warranty.
5.8 Business Practices. Reseller shall (i) conduct business in a manner that
reflects favorably at all times on the Vivato Products and Vivato's goodwill and
reputation. (ii) avoid deceptive, misleading, illegal and unethical practices in
connection with marketing and distributing Vivato Products, and (iii) make no
false or misleading representations with regard to Vivato or Vivato Products.
6. SUPPORT AND MAINTENANCE
6.1 Technical Support. Reseller shall be responsible, at its expense for
providing technical training, installation and technical support to End Users.
Vivato shall not be responsible for providing any support directly to End Users.
Vivato will provide Reseller with reasonable secondary support via telephone
from Monday through Friday during the hours of 9:00am and 5:00pm, Pacific Time,
at Vivato's technical assistance center at the telephone number 0-000-000-0000.
6.2 Required Training. Vivato shall have sales training instructors train
Reseller's sales and technical teams. Reseller shall arrange to annually have a
minimum of two (2) qualified salespeople attend the Vivato sales training
program at Reseller's cost
6.3 Software Updates. Vivato shall provide Reseller software updates if required
and Reseller shall distribute such updates to End Users promptly after receipt
of such updates from Vivato.
6.4 Additional Support and Maintenance Services. Vivato may provide Reseller
additional maintenance services, if any, in accordance with the terms specified
in a separate Support and Maintenance Agreement.
7. PROPRIETARY RIGHTS
Rescller acknowledges and agrees that as between Reseller and Vivato, Vivato
owns all right, title and interest in and to the Vivato Products and Vivato
Software, and all copyright, trade secret, trademark, patent and other
intellectual property rights therein. Vivato reserves all right, title and
interests in and to the Vivato Products and Vivato Software and, except for the
licenses expressly granted in this Agreement, no right, title, ownership,
interest or license in or to the Vivato Products or Vivato Software, whether by
implication, estoppel or otherwise is granted, assigned or transferred to
Reseller under or in connection with this Agreement. Reseller shall promptly
notify Vivato in writing upon its discovery of any unauthorized use of the
Vivato Products or Vivato Software or infringement of the proprietary rights
therein. Reseller shall not distribute or license any Vivato Products or Vivato
Software to any person or entity that Vivato has notified Reseller in writing as
being involved in potential unauthorized use of any Vivato Products, Vivato
Software, or infringement of the proprietary rights therein.
8. CONFIDENTIALITY
8.1 Cont1dent1al Information. The parties acknowledge that they have received or
may receive confidential information relating to the other party's products;
concepts, inventions and technology relating to such products; product. business
and financial plans; customer lists and information and trade secrets in
connection with the performance of this Agreement that should be reasonably
understood by the recipient as the proprietary and confidential information of
the Discloser ("Confidential Information"). Confidential Information shall not
include any information which: (i) is or falls into the public domain without
fault of the receiving party; or (ii) the receiving party can show was in its
possession prior to receipt thereof from the disclosing party; or (ill) the
receiving party receives from a third party with no obligation of confidence to
the disclosing party; or (iv) the receiving party independently develops without
benefit of any Confidential Information of the disclosing party.
8.2 Use of Conftdentfal Information. Except as' (i) expressly permitted or
required in carrying out this Agreement or (ii) required by law or by any
competent government authority, or (iii) such limited disclosures in confidence
as may be reasonably necessary to either party's attorneys and accountants, the
receiving party of any Confidential Information ("Recipient") disclosed by a
disclosing party ("Discloser") shall not use such Confidential Information or
disclose such Confidential Information to any third party, either during the
term of this Agreement or thereafter, without the prior written consent of
Discloser. Thus, Recipient shall use the Confidential Information of the
Discloser only to perform its obligations under this Agreement and to the extent
permitted in the licenses granted hereunder. Recipient's duty to protect
Confidential Information commences upon receipt of the Confidential Information.
8.3 Required Disclosure. Nothing in this Agreement shall prohibit either party
from disclosing Confidential Information of the other party if legally required
to do so by judicial or governmental order or by deposition, interrogatory,
request for documents, subpoena, civil investigative demand or similar process
in a judicial or governmental proceeding ("Required Disclosure"); provided that
the disclosing party shall (i) give the other party prompt notice of such
Required Disclosure prior to disclosure, (ii) cooperate with the other party in
the event that it elects to contest such disclosure or seek a protective order
with respect thereto and (ill) in any event only disclose the exact Confidential
Information, or portion thereof, specifically requested by the Required
Disclosure.
8.4 Ownership of Confidential Information. All Confidential Information shall
remain the property of the respective Discloser and shall be returned to the
owner thereof upon written request or termination of this Agreement for any
reason.
9. PUBLICITY
The parties shall mutua11y agree on any press release announcing this business
relationship. The specific terms of this Agreement shall not be disclosed by
either party to any third party without the prior written approval of the other
party except (i) as may be required by law or by any competent government
authority, or (ii) such limited disclosures in confidence as may be reasonably
necessary to either party's bankers, investors or potential investors, attorneys
and accountants. During the term of this Agreement, Vivato shall have the right
to identify Reseller in any customer list or marketing materials as a reseller
of Vivato Products, and Reseller shall have the right to identify itself as an
authorized Reseller of the Vivato Products.
10. REPRESENTATIONS AND WARRANTIES
10.1 By Reseller. Reseller makes the following representation and warranties to
Vivato, each of which is true and correct on the date hereof and shall continue
to be true and correct at all times during the term of this Agreement, and
hereby covenants as follows:
(a) Organization, Standing and Power. Reseller has all requisite corporate power
and authority to execute, deliver and perform this Agreement and any other
agreements contemplated hereby and to consummate the transactions contemplated
hereby.
(b) No Conflicting Agreements. Reseller is not currently obligated nor will it
assume any future obligation under any contract (including without limitation
any license, covenant or commitment of any nature) or other agreement,
instrument or arrangement that could conflict with its obligations under this
Agreement
(c) Compliance with Law. Reseller will comply with all applicable Jaws,
statutes, rules, regulations and ordinances of the Territory including, but not
limited to, all filings, registrations type approvals, foreign exchange
approvals, fair trade approvals, and customs clearance with respect to the
distribution of Vivato Products and Reseller's performance under this Agreement
and will obtain all necessary approvals and permits in the Territory to
distribute Vivato Products and perform its obligations under this Agreement.
Reseller represents that the provisions of this Agreement. and the rights and
obligations of the parties hereunder, are enforceable under the laws of the
countries or subdivisions thereof within the Territory.
(d) Product Warranty. Reseller represents and warrants that it will not make any
representation, guarantee or warranty of any kind with respect to Vivato
Products in addition to or different from the Product Warranty, except as
expressly authorized in writing by Vivato.
10.2 By Vivato. Vivato makes the following representation and warranties to
Reseller, each of which is true and correct on the date hereof and shall
continue to be true and correct at all times during the term of this Agreement,
and hereby covenants as follows:
(a) Organization, Standing and Power. Vivato has all requisite corporate power
and authority to execute, deliver and perform this Agreement and any other
agreements contemplated hereby and to consummate the transactions contemplated
hereby.
(c) Product Warranty. Vivato provides the Product Warranty to the Reseller. The
remedies set forth in the Product Warranty shall be Reseller's sole remedy in
the event of Vivato's breach of the Product Warranty.
10.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, VIV A
TO DOES NOT MAKE ANY WARRANTIES WHATSOEVER WITH RESPECT TO VIVATO PRODUCTS OR
VIVA TO SOFTWARE PROVIDED UNDERTIUS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE OR
NON--INFRINGEMENT OF THIRD PARTY RIGHTS. ALL SUCH WARRANTIES ARE HEREBY
EXPRESSLY DISCLAIMED. VIVATO DOES NOT WARRANT THAT THE VIVATO PRODUCTS OR VIVATO
SOFTWARE ARE ERROR-FREE OR THAT OPERATION OF THE VIVA TO PRODUERS OR VIVA TO
SOFTWARE WILL BE SECURE OR UNINTERRUPI'BD AND VN ATO HEREBY DISCLAIMS ANY AND
ALL LIABILITY ON ACCOUNT THEREOF.
11. LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF SECTION 8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT
OR SPECIAL DAMAGES OR COSTS HOWSOEVER ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER OR NOT E1THBR PARTY HAS BEEN ADVISED OF THE POSSBILITY OF
SUCH DAMAGES OR COSTS. VIVATO'S AGGREGATE LIABILITY TO RESELLER UNDER THIS
AGREEMENT SHALL NOT EXCEED FEES RECEIVED BY VIVATO FROM RESELLER UNDER TH1S
AGREEMENT. RESELLER'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT IS PROVIDED IN
SECTION 12.2.
12. INDEMNIFICATION
12.1 Indemnification by Vivato. Vivato at its own expense shall indemnify,
defend and hold Reseller free and harmless from any and all claims, damages,
losses, costs, actions and expenses, including attorneys' and experts' fees,
arising from any claim or contention that any Vivato Product infringes any
United States patent, Berne Convention copyright in the Territory or
misappropriates any trade secret protected under the laws of the Territory.
Reseller shall (1) give Vivato prompt written notice of any such claim, suit,
expense or the like, (2) permit Vivato to defend or settle any such claim, suit
or the like, provided, however, that (a) Vivato shall not enter into any
settlement agreement that would result in any admission by Reseller or payment
by Reseller without Reseller's prior written consent and (b) Reseller may at its
election participate in the defense of such claim, suit or the like through
separate counsel at its own expense, and (3) provide Vivato all reasonable
assistance (at the expense of Reseller) in connection with the defense or
settlement of any such claim, suit or the like.
12.2 Alternatives. Should any Vivato Product become, or in Vivato's opinion
likely to become, the subject of a claim for which Vivato is required to
indemnify pursuant to Section 12.1, Vivato may, at its discretion, (i) obtain
for Reseller, at no additional cost to Reseller, the right to continue
distributing the Vivato Products under this Agreement; (ii) modify or replace
the infringing part of the Vivato Products, at no additional cost to Reseller,
to avoid such claim, or (Hi) if neither (i) or (ii) is commercially feasible,
terminate this Agreement. THIS SECTION 12.2 STATES VIVATO'S ENTIRE LIABILITY AND
RESELLER'S EXCLUSIVE REMEDY FOR ANY CLAIMED, POTENTIAL OR ACTUAL INFRINGEMENT.
12.3 Exclusions. Notwithstanding the foregoing, Vivato shall have no obligation
under Section 12.1 for any claims to the extent resulting from (i) modifications
or alternations of the Vivato Products made by or for Reseller or any other
party that were not provided or authorized by Vivato in writing; (ii) use
outside the scope of the licenses granted hereunder, (Hi) use of a superseded or
previous version of the Vivato Product or Vivato Software if infringement would
have been avoided by the use of an update which Vivato made available to
Reseller, or (iv) use of the Vivato Products in combination with any other
software, hardware or products not supplied by Vivato.
12.4 Indemnification by Reseller. Reseller at its own expense shall indemnify,
defend and hold Vivato free and harmless from any and all claims, damages,
losses, costs, actions and expenses, including attorneys' and experts' fees,
arising from (i) any breach of Reseller's representations or warranties or
covenants under this Agreement, (ii) any claim related to or arising from
Reseller's distribution of the Vivato Products under this Agreement, or (iii)
any claim resulting from the exclusions specified in Section 12.3. Vivato shall
(1) give Reseller prompt written notice of any such claim, suit, expense or the
like, (2) permit Reseller to defend or settle any such claim, suit or dIe like,
provided, however, that (a) Reseller shall not enter into any settlement
agreement that would result in any admission by Vivato or payment by Vivato
without Vivato's prior written consent and (b) Vivato may at its election
participate in the defense of such claim, suit or the like through separate
counsel at its own expense, and (3) provide Reseller all reasonable assistance
(at the expense of Vivato) in connection with the defense or settlement of any
such claim, suit or the like.
13. TERM AND TERMINATION
13.1 Term. This Agreement shall commence as of the Effective Date and shall
continue for one (1) year (the "Term"). After the Initial Term, this Agreement
shall automatically renew for successive one (1) year periods (each a "Renewal
Term" or collectively, the 'Term") unless either party notifies the other party
of its decision not to renew the tcrm of this Agreement at least thirty (30)
Days prior to the end of the then current Term.
13.2 Termination. This Agreement may be terminated as follows:
(8) by either Vivato or Reseller upon thirty (30) Days prior notice for any
material default or breach of any of the material terms and conditions of this
Agreement by the other party, unless the defaulting party has cured such failure
or default within such 30-day period;
(b) by either party immediately upon notice, if (i) the other party is subject
to a bankruptcy proceeding, whether voluntary or involuntary, which is not
dismissed within sixty (60) Days or makes an assignment for the benefit of
creditors. or if a receiver, liquidation. administrator or trustee is appointed
for such party's affairs or any analogous procedure is initiated and not
dismissed within sixty (60) Days or (ii) the other party is dissolved;
(c) by the parties upon mutual written agreement; and
(d) as permitted by Sections 12.2 or 14.2.
13.3 Effect of Termination. Upon the termination or expiration of this
Agreement, Reseller shall immediately cease all distribution of the Vivato
Products, cease all use of the Vivato Trademarks and pay Vivato all fees payable
under Section 4. The provisions of Sections I, 4.3, 7, 8, 10. 11, 12 and 14
shall survive the termination of this Agreement and remain effective.
14. GENERAL PROVISIONS
14.1 Notices. Unless otherwise provided in this Agreement, all notices permitted
or required under this Agreement shall be in writing and shall be delivered
personally. sent by first class prepaid mail with return receipt requested, or
sent by express delivery service to the other party at the address set forth on
the signature page or such other address as specified by the other party in
accordance with this section.
14.2 Xxxxx Majeure. Except for payments of amounts owed or as otherwise set
forth in this Agreement, a party will not be deemed to have materially breached
this Agreement to the extent that performance of its obligations or attempts to
cure any breach are delayed or prevented by reason of any act of God, fire,
natural disaster, accident, act of government, terrorism, shortage of materials
or supplies beyond the reasonable control of such party, strike, labor dispute
or walkout, or any other cause beyond the reasonable control of a party. (a
"Force M4ieure Event"); provided that the party whose performance is delayed or
prevented promptly notifies the other party of the nature and duration of the
force majeure event and uses commercially reasonable efforts to overcome the
difficulties created thereby and resumes performance of its obligations as soon
as practicable. If the period of non-performance exceed sixty (60) Days from the
receipt of notice of the force majeure event. the party whose ability to perform
has not been affected may terminate this Agreement
14.3 No Assignment. Reseller shall not assign. transfer or pledge this
Agreement. or any interest, license or rights of any kind herein. in any manner
whether voluntarily or by operation of law. without the prior written consent of
Vivato. Subject to the foregoing, this Agreement shall be binding upon and inure
to the benefit of the parties and their successors and assigns.
14.4 Independent Contractors. In performing this Agreement, each of the parties
will operate as, and have the status of an independent contractor. This
Agreement does not create any agency, employment, partnership, joint venture,
franchise or other similar or special relationship between the parties. Neither
party will have the right or authority to assume or create any obligations or to
make any representations, warranties or commitments on behalf of the other party
or its affiliates, whether express or implied, or to bind the other party or its
affiliates in any respect whatsoever.
14.5 Export Control. Each party acknowledges that technical information and
products provided under this Agreement may be subject to United States,
Territory and other governments' export laws and regulations, and any use or
transfer of that technical information or product must be permitted or
authorized under those regulations. Each party shall be responsible for ensuring
that it complies with all laws and regulations of the United States and other
applicable governments relating to the export or import of technical information
or technical data or products made using technical information or technical data
or products received from the other party under this Agreement.
14.6 U.s. Government End Users. If the Vivato Software as incorporated in the
Vivato Products is acquired by or on behalf of a unit or agency of the United
States government, this provision applies. The Vivato Software is (a) existing
computer software. and was developed at private expense. (b) is a trade secret
of Vivato for all purposes of the Freedom of Information Act, (c) is "commercial
computer software" subject to limited utilization as expressly stated in this
Agreement, (d) in all respects is proprietary data belonging to Vivato. and (e)
is unpublished and all rights are reserved under the copyright law of the United
States. For civilian agencies and entities acquiring Software under a GSA
Schedule. Software is licensed only with "Restricted Rights" and use.
reproduction or disclosure is subject to restrictions set forth in subparagraph
(a) through (d) of the Commercial Computer Software - Restricted Rights clause
at 52.227-19 of the Federal Acquisition Regulations and its successors. For
units of the Department of Defense (DOD), this Software is licensed only with
"Restricted Rights" and use, duplication, or disclosure is subject to
restrictions as set forth in subdivision (c)(l)(ii) of the Rights in Technical
Data and Computer Software clause at 252.227-7013 of the DOD Supplement to the
Federal Acquisition Regulations and its successors.
14.7 Foreign Corrupt Practices Act. In conformance with the United States
Foreign Corrupt Practices Act, Reseller shall not directly or indirectly make an
offer, payment, promise to pay, or authorize payment, or offer a gift. promise
to give, or authorize the giving of anything of value for the purpose of
influencing an act or decision of an official of any government within the
Territory or the United States government (including a decision not to act) or
inducing such a' person to use his influence to affect any such governmental act
or decision in order to assist Reseller in obtaining, retaining or directing any
business.
14.8 Choice of Law. This Agreement shall be governed by and construed under and
the legal relations between the parties hereto shall be determined in accordance
with, the laws of the State of California, without giving effect to such state's
conflicts of law principles, and the United States of America. The parties agree
that the United Nations Convention on Conflicts for the International Sale of
Goods is specifically excluded from application to this Agreement.
14.9 Injunctive Reseller. Reseller acknowledges and agrees that breach of its
obligations under this agreement may cause irreparable harm for which recovery
of money damages would be inadequate, and Vivato shall therefore be entitled to
obtain timely injunctive relief to protect its rights under this Agreement. in
addition to any and all remedies available to Vivato in equity and at law.
14.10 Attorneys' Fees. The prevailing party in any action brought in connection
with this Agreement shall be entitled to recover its reasonable attorneys' fees
and costs from the non-prevailing party.
14.11 Severability. If any provision of this Agreement or portion thereof is
determined by a court of competent jurisdiction or declared under any law. rule
or regulation of any government having jurisdiction over the parties hereto, to
be invalid, illegal or otherwise unenforceable, then such provision will, to the
extent permitted by the court or government not be voided but will instead be
construed to give effect to its intent to the maximum extent permissible under
applicable law and the remainder of this Agreement will remain in full force and
effect according to its terms.
14.12 Modification. No supplement, modification or amendment to this Agreement
shall be binding unless evidenced by a writing signed by the party against whom
it is sought to be enforced. Any terms and conditions in any purchase order or
other instrument issued by Reseller in connection with this Agreement which are
additional to or inconsistent with this Agreement shall not be binding on
Vivato. From time to time the parties may agree to modify or amend the signature
sheet or the exhibits of this Agreement to reflect, for example, updated or
additional information. In such event. Vivato shall furnish to Reseller a
supplement to the signature page or the applicable exhibit of this Agreement
which shall reflect such agreement Upon its execution by both parties. such
supplement shall, as provided herein. amend the information contained on the
signature sheet or the applicable exhibit of this Agreement. References in this
Agreement to information contained on the signature sheet or exhibits of this
Agreement shall mean such information as amended by any supplement thereto
executed by the parties in accordance with this section.
4.13 Waiver. No waiver of any provision or consent to any action shall
constitute a waiver of any other provision or consent to any other action,
whether or not similar. No waiver or consent shall constitute a continuing
waiver or consent or commit a party to provide a waiver in the future except to
the extent specifically set forth in writing. Any waiver given by a party shall
be null and void if the party requesting such waiver has not provided a full and
complete disclosure of all material facts relevant to the waiver requested. No
waiver shall be binding unless executed in writing by the party making the
waiver.
14.14 Entire Agreement. This Agreement, including the Exhibits attached hereto,
constitutes the entire agreement of the parties concerning its subject matter
and supersedes any and all prior or contemporaneous, written or oral
negotiations. correspondence, understandings and agreements between the parties
respecting the subject matter of this Agreement.
14.15 Execution; Counterparts. This Agreement shall not be binding in whole or
in part upon the parties unless and until duly executed by or on behalf of both
parties hereto, in which event this Agreement shall be effective as of the
Effective Date. This Agreement may be executed in counterparts, each of which
shall be deemed to be an original instrument enforceable in accordance with its
terms and all of which shall constitute but one and the same agreement of the
parties.
