Riverbed Technologies, Inc.
RESELLER AGREEMENT
This Agreement, effective as of the date signed below, is by and between
RIVERBED TECHNOLOGIES, a Delaware corporation with offices at 0000 Xxxxxxxx Xxxx
Xxxxx, Xxxxx 000, Xxxxx Xxxxxx, XX 00000 ("Riverbed"), and the "Reseller" listed
below.
Riverbed has developed the computer software listed in Exhibit A. Reseller is in
the business of manufacturing and marketing proprietary docking stations and
related products in fields appropriate for the use of such products, amongst
other business endeavors. The parties wish to enter an agreemetn authorizing
Reseller to distribute the Products, as defined below, in the United States.
1. PRODUCTS.
For the purpose of this Agreement, the "Products" are Riverbed programs
(the "Software") listed in Exhibit A, (a description of said Products are
also in Exhibit "A") in the form as marketed by Riverbed, including
documentation packaged with the Products by Riverbed. The Products may
include any enhancements, new releases, updates or other modifications to
the Software that Riverbed may release from time-to-time under the same
product name or names.
2. GRANT OF DISTRIBUTION RIGHTS.
Riverbed hereby grants to Reseller, and Reseller accepts from Riverbed, the
nonexclusive, non-transferable right and license to promote, advertise,
market, and distribute, the Products only to end-users and to use the
Products and associated user documentation in the United States. Reseller
shall not grant sub-distributorships.
3. ORDERS AND PAYMENT.
Reseller shall pay Riverbed the amounts shown in Riverbed's then current
price list, a copy of which is in Exhibit A, for units which World
Cyberlinks delivers pursuant to Reseller's purchase orders ("Orders") under
terms as provided in Exhibit C, which may be amended by Riverbed on thirty
days' written notice. An Order shall specify (i) quantity and description,
(ii) date and location of delivery, (iii) end user name and address, and
(iv) other pertinent information.
4. SUPPORT.
During the term of this Agreement, Riverbed will (i) provide Reseller
access to Riverbed telephone support during Riverbed's normal business
hours, (ii) provide training to Reseller as may be mutually agreed from
time to time and (iii) Riverbed will provide no end user customer support.
5. OBLIGATIONS OF RESELLER.
(a) Reseller shall use its best efforts to promote the marketing of the
Products.
(b) Reseller shall be responsible for providing installation, training, and
support to its customers when desired by the customers and for warranty
service as set forth in Section 6(a) below.
(c) Reseller shall provide and maintain an adequate technically-trained staff
and telephone service to provide prompt support to customers.
(d) Reseller shall provide copies of the Products only pursuant to Riverbed
end-user license agreements enclosed with the Products. Reseller shall not
vary the terms of any such agreements.
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(e) Reseller shall not de-compile, reverse engineer, reverse compile, make
modifications to, or perform any similar type of operation on any Software
acquired under this Agreement, in any fashion or for any purpose without
the prior written consent of Riverbed and additional terms and conditions.
(f) Reseller shall not make copies of or verbal or media translations of the
Software or user documentation, or make telecommunications data
transmissions of the Software.
(g) Reseller shall comply with all applicable laws, rules, and regulations in
its performance of this Agreement. In particular, Reseller shall not export
any Product, directly or indirectly, to any country outside the United
States without Riverbed's prior written approval.
(h) Reseller shall promptly notify Riverbed of any infringement of Riverbed
proprietary rights that comes to Reseller's attention.
6. WARRANTY ONLY TO END-USERS - LIMITATION OF LIABILITY.
(a) Each Product unit is packaged with Riverbed's warranty statement for that
Product. Such warranties shall apply only to the ultimate end-user
customer. Reseller may receive warranty claims and fulfill Riverbed
warranty obligations to repair or replace defective products. Reseller
shall accept the return of units under warranty claims, convey such units
to Riverbed, and, at Riverbed's expense, transmit replacement copies to the
end user, all as directed by Reseller.
(b) The foregoing warranties are exclusive and are in lieu of all other
warranties expressed or implied. NO OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS,
TITLE, AND AGAINST INFRINGEMENT, ARE MADE BY Riverbed.
(c) Riverbed's entire liability and Reseller's exclusive remedy under this
Agreement shall be as follows: (i) in all situations involving performance
or nonperformance of the Products, Reseller's remedies are the warranties
in Section 6(a); (ii) For any claim concerning performance or
non-performance by Reseller pursuant to or in any way related to the
subject matter of this Agreement, including personal injury or damage to
physical property to the extent caused by Riverbed's fault or negligence,
or for damages for any causes whatsoever and regardless of the form of
action, whether in contract or in tort including negligence, or any other
legal theory, Reseller's remedy shall be actual damages up to the amount of
the payments actually made to Riverbed by Reseller hereunder in the most
recent twelve months prior to such damages occurring; (iii) IN NO EVENT
WILL Riverbed BE LIABLE TO ANYONE FOR ANY LOST PROFITS OR FOR ANY OTHER
INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF Riverbed HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Riverbed BE LIABLE FOR
ANY CLAIM AGAINST RESELLER BY ANY OTHER PARTY.
(d) Notwithstanding anything in this agreement, DEMONSTRATION AND EVALUATION
COPIES ARE DELIVERED ON AN "AS IS" BASIS AND Riverbed MAKES NO EXPRESS OR
IMPLIED REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THEIR USE OR
PERFORMANCE.
7. COPYRIGHT AND TRADEMARKS.
(a) Title and full ownership rights in the Software and design of the Products,
and in any and all authorized modifications to and derivative works from
Software acquired under this Agreement made by Reseller or any other party,
shall remain in Riverbed. It is expressly understood and agreed that the
Products, including but not limited to proprietary computer programs,
documentation, input formats, generated output, modifications, and
conversions, constitute valuable proprietary products and trade secrets of
Riverbed embodying substantial creative efforts and confidential
information, ideas and expressions which require protection against
unauthorized use, transfer, reproduction, or disclosure.
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(b) During the term of this Agreement, Reseller may represent itself as a
"Riverbed Authorized Reseller", and use the trademarks of Riverbed (the
"Trademarks") in connection with Resellers' marketing and distribution of
the Products. Any such use of the Trademarks shall inure to the benefit of
Riverbed. Reseller shall not seek to register, or otherwise assert or
obtain any interest in, the Trademarks, or any confusingly similar marks
anywhere in the world.
(c) Reseller shall exercise due care to protect the trademarks, copyrights, and
trade secrets and other proprietary information of Riverbed made available
to Reseller, and shall do nothing during or after the term of this
Agreement, which could adversely affect their validity or unenforceability.
Reseller shall not remove, alter, cover, or obfuscate any copyright notice,
trademark or other proprietary rights notice placed by Riverbed on the
Products or any portion thereof.
8. TERM AND TERMINATION.
This Agreement shall become effective on the date it is executed by both
parties. Either party may terminate this Agreement with or without cause,
for any reason or no reason, upon thirty (30) days' written notice to the
other party. Subject to Riverbed's right to terminate licenses due to
breach of their terms, all licenses for use of the Products pursuant to the
terms of Riverbed's end-user license agreement packaged with the Products,
granted in good faith, during the term of this Agreement, to Reseller's
customers, shall be perpetual.
9. CERTAIN REMEDIES.
In the event of termination for Reseller's breach or default, Riverbed may,
without retaking Products delivered to Reseller (i) declare all accrued and
unpaid charges and fees and any other amounts (whether or not then due and
owing) immediately payable, and (ii) require by written notice that
Reseller immediately cease all use and distribution of the Products until
all events of default have been fully cured.
10. INDEMNIFICATION.
Reseller hereby agrees to indemnify and hold harmless Riverbed and its
officers, directors and controlling persons from and against any and all
claims, liabilities or expenses (including court costs, attorneys' fees and
costs of settlement) incurred by any of them in connection with or arising
out of (i) any breach or alleged breach by the channel of any of its
representations, warranties or covenants in this Agreement; (ii) any claim
or liability relating to the content, quality or performance of the
Software or any warranty, return, support, maintenance or other obligations
related to the Software; (iii) any claim or liability relating to sales
taxes applicable to transactions involving the Software; or (iv) any other
obligation or responsibility expressly allocated to the channel under this
Agreement.
11. FORCE MAJEURE.
Except for payments due under this Agreement, neither party will be
responsible for any failure to perform due to causes beyond its reasonable
control (each a "Force Majeure"), including, but not limited to, acts of
God, war, riot, fire, floods, earthquakes, or accidents, provided that such
party gives prompt written notice thereof to the other party. The time for
performance will be extended for a period equal to the duration of the
Force Majeure, but in no event longer than sixty (60) days.
12. GENERAL.
(a) All notices shall be in writing and given by personal delivery or certified
mail to the recipient's address set forth above, return receipt requested.
Mailed notice shall be deemed given the fifth business day after mailing.
(b) This Agreement shall not be assigned by either party without the advance
written consent of the other, provided that Riverbed may assign to a
successor (without such consent) to all or a substantial portion
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of its business, and Riverbed may assign (without such consent) its right
to receive payments hereunder. This Agreement shall be binding upon and
inure to the benefits of the parties, their successors, and permitted
assigns.
(c) This Agreement constitutes the entire agreement between the parties with
respect to its subject matter; except as provided herein, all other prior
agreements, representations, statements, negotiations, and undertakings are
terminated and superseded hereby.
(d) After expiration or termination of this Agreement, all provisions relating
to payment shall survive until completion of required payments. In
addition, all provisions regarding ownership, warranty, liability, and
limits thereon, confidentiality or protection of proprietary rights and
trade secrets, and assignment shall survive indefinitely.
(e) The parties shall at all times be independent contractors with respect to
each other in carrying out this Agreement.
(f) This Agreement shall be deemed to have been made in, and shall be governed
by and construed in accordance with the laws of Virginia, exclusive of its
rules governing choice of law and conflict of laws.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as an
instrument under seal by their duly authorized representatives:
RIVERBED, INC. RESELLER
By: /s/ World Cyberlinks Corp.
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Signature 000X Xxxxxxx Xxxxxx
Name: /s/ E. Xxxxx Xxxxxxx, III Xxxxxxxxxx, XX 00000
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E. Xxxxx Xxxxxxx, III State of Incorporation: New York
Title: CEO By: /s/ Xxxx Xxxxxxx
-------------------------
Date: 12-22-98 Xxxx Xxxxxxx, President
Date: 11/12/98
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Exhibit C
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Orders, Shipment, and Payment Terms
NEW RESELLER INFORMATION: Shipments are subject to Riverbed's receipt of a
signed Reseller Agreement and a copy of Reseller's current business license.
RESELLER ORDERS: All Orders shall be subject to acceptance by Riverbed. Each
Order placed by the Reseller shall be deemed to incorporate all the terms and
conditions of this Agreement, and any terms and conditions of such Orders which
are in addition to or inconsistent with the terms and conditions of this
Agreement shall automatically be deemed stricken from such Order. Riverbed
assumes no responsibility for Reseller's errors in selecting Products.
DISCOUNT: The Reseller shall pay the OEM price as list in Exhibit A.
TERMS: 30 day net payment terms may be granted by Riverbed based upon
satisfactory credit evaluation and, if required, the receipt of satisfactory
guarantees. Invoiced terms shall govern Reseller's payment obligation to
Riverbed. Delinquent balances will be subject to finance charges of 1.5% per
month, but not in excess of the lawful maximum, and may result in revocation of
net payment terms.
TAXES: Reseller shall pay all sales, use, and excise taxes, import duties,
tariffs, custom fees, and any other governmental assessments related to receipt
or distribution of the Products by Reseller. If Reseller is exempt from any of
the aforementioned taxes, duties, tariffs, fees, or assessments, Reseller shall
provide Riverbed with written documentation of such exemption, including, but
not limited to, a copy of any valid tax exemption certificate(s).
SHIPPING: Goods are shipped FOB warehouse. Unless otherwise requested, Riverbed
will ship goods UPS surface. Expedited Delivery requests will be subject to
additional charges. Unless the Reseller has specifically requested no partial
shipments, Riverbed will partial ship and back order any out-of-stock item.
RETURNED MERCHANDISE: All merchandise returned to Riverbed must have a Return
Material Authorization (RMA) number issued by the Riverbed order entry
department, at their sole discretion. When calling for an RMA number, please
have the following information available:
a. Riverbed's invoice number and date shipped; b. The type of Products;
c. The serial number of the unit; and d. The reasons for the
RMA request.
If an RMA number has been assigned, it must be prominently displayed ON THE
SHIPPING LABEL ONLY. Merchandise should be returned to Riverbed freight
pre-paid in the original boxes and packing materials. Returned units must be
complete, including all documentation, etc. Returned Products that arrive at
Riverbed without an RMA number prominently displayed on the shipping label will
not be accepted and shall be returned freight charges collect.
RESTOCKING FEES: Merchandise returned or refused delivery will be subject to a
15% restocking fee.
OTHER FEES: Reseller shall pay all legal, court and attorney fees on any action
arising out of or related to this Agreement in connection with any breach of
Reseller's obligations to Riverbed.
