EMEA Reseller Terms & Conditions

Reseller Agreement (English)

 

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PLACING ORDERS FOR RESALE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT OR THE APPLICABLE VERSION OF THIS AGREEMENT FOR YOUR REGION, DO NOT PLACE ORDERS FOR RESALE. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR ORGANIZATION, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. REFERENCES TO "YOU" OR "YOUR" IN THIS PARARGRAPH AND TO "RESELLER" BELOW SHALL MEAN THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT, ITS SUCCESSORS AND PERMITTED ASSIGNEES. IF YOU HAVE A SIGNED AGREEMENT WITH THE COMPANY (DEFINED BELOW) THAT IS EXECUTED BETWEEN YOU AND COMPANY, THEN THAT SIGNED AGREEMENT WILL SUPERSEDE THIS AGREEMENT.

This reseller agreement (the "Agreement") states the terms under which you ("Reseller") may purchase Company Products for resale to End-Customers.

  1. Definitions.

(a) “Company” means Quest Software International Ltd, with its principal place of business located at City Gate Park, Mahon Point, Cork, Ireland. If Company is renamed, then the renamed entity shall become the Company under this Agreement.

(b) “End-Customer” means an organization to which Reseller resells Company Products.

(c) “Maintenance Services” means the technical support services provided by Company to End-Customers on an annual basis.

(d) “Products” means the Software or Appliances that Company makes generally available to its customers.

(e) “Professional Services” means the consulting and training services provided by Company to End-Customers in connection with the Products in accordance with (i) the applicable services order and the applicable "Services Agreement" located currently at http://quest.com/legal/services-agreement.aspx.

(f) “Software” means the object code version of the software that is provided or made available by Company to its customers as well as any corrections, enhancements, and upgrades to such software that are made available by Company to its customers, and all copies of the foregoing.

(g) “Territory” means the focus sales territory stated on the web page on which the link to this Agreement appears.

  1. Ordering for Resale.

(a) Upon Reseller's receipt of a valid, signed (if necessary) order from a End-Customer, Reseller may order Software, prepaid Maintenance Services, and Professional Services for delivery to End-Customers in the focus Territory by submitting written purchase orders to Company in accordance with Company's then-current order processing procedures (each, a "Reseller Order").

(b) All Reseller Orders must refer to this Agreement, and include all information required to deliver the Products and Maintenance Services to the End-Customer, including, but not limited to the End-Customer's name, address, point of contact, telephone number and email address.

(c) Reseller Orders for Software must also specify: (i) the quantities of each Software ordered, (ii) the license type (e.g., by CPU, by server) of the Software being ordered, and (iii) the desired shipment date. Unless otherwise agreed to by Company in writing, in addition to the Reseller Order, for each Reseller Order for Software of over two hundred thousand US dollars (US$200,000) or for Orders which contain non-standard licensing terms or future commitments, Reseller shall submit a purchase acknowledgment form signed by the End-Customer which contains, at a minimum, the Software names, quantities, and applicable license definitions for the Software being ordered and the incorporation of the STA (as defined in Section 1(h) below) or an existing agreement between Company and the End-Customer.

(d) Reseller Orders for Software designated in the price list provided by Company to Reseller as "PSO Required" will only be Approved by Company if the End-Customer has purchased consulting services from Company in connection with the Reseller Order or Company has granted a "Professional Services Waiver" for the Reseller Order. Professional Services Waivers will be granted by Company in its sole reasonable judgment based on the various aspects of each Reseller Order.

(e) Reseller Orders for prepaid Maintenance Services must also specify the name and quantities of the Software for which Maintenance Services are being ordered and the duration of the Maintenance Services being ordered (e.g., one year, two years).

(f) Reseller Orders for Professional Services must also specify the number of eight-hour days or the number of hours of Professional Services being ordered and the estimated travel and living expenses, if not included in the daily or hourly rate and a reference to the applicable services order issued by Company.

(g) All Reseller Orders will be subject to approval by Company either in writing or by shipment ("Approve" or "Approved"). Reseller Orders cannot be canceled or rescheduled once Approved by Company. Partial shipments will be allowed. All shipments are FCA (Company's Dublin office) ICC Incoterms (2010) and will be made by Company directly to the specified End-Customer unless otherwise expressly stated in a Reseller Order.

(h) As between Company and End-Customers, all Software delivered to End-Customers pursuant to a Reseller Order shall be governed by the Software Transaction Agreement stated at http://quest.com/legal/sta.aspx on the date that the Software is delivered to the End-Customer (the "STA").

  1. Relationship of the Parties. This Agreement is non-exclusive and is not intended to prohibit or inhibit existing or future business relationships of either party. The parties are independent contractors. Neither party has nor will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other party or to represent that the other party is an agent, employee, or involved in a joint venture with it; or that the other party is involved with it in any capacity, except as specified in this Agreement. Each party shall be responsible for all expenses incurred by it in the course of exercising any right or complying with any responsibility under this Agreement.
  1. Trademarks. Reseller may use those trademarks used by Company in conjunction with its promotion and marketing activities under this Agreement (the "Marks"). All such use must be in accordance with Company's trademark usage guidelines then in effect located at www.quest.com/legal. Reseller acknowledges Company's exclusive right in and to the Marks and agrees that use of the Marks shall not create in Reseller any right, title or interest therein, and every use thereof shall inure to the benefit of Company. Reseller will not adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the Marks or in such a way as to create combination marks with the Marks. At Company's request, Reseller shall promptly modify or discontinue any use of the Marks if Company determines that such use does not comply with Company's then-current trademark usage guidelines.
  1. Reservation of Rights and Ownership. Company reserves any and all rights, implied or otherwise, which are not expressly granted to Reseller in this Agreement. Reseller understands and agrees that (i) the Products are protected by copyright and other intellectual property laws and treaties, (ii) Company and/or its suppliers own the title, copyright, and other intellectual property rights in the Products, (iii) the Software is licensed, and not sold, and (iv) except as expressly permitted herein, this Agreement does not grant Reseller any rights to Company's trademarks or service marks.
  1. Payment. Reseller agrees to pay to Company the fees specified in each Reseller Order, including any applicable shipping fees. Reseller will be invoiced promptly following delivery of the Software to the End-Customer and Reseller shall make all payments due to Company in full within thirty (30) days from the date of each invoice. Company reserves the right to charge Reseller a late penalty of 1.5% of the invoice amount per month (or the maximum rate permitted by law, whichever is the lesser) for any amounts payable to Company by Reseller that are not subject to a good faith dispute and that remain unpaid after the due date until such amount is paid.
  1. Taxes. All amounts payable under this Agreement are exclusive of all sales, use, value added, withholding and other taxes and duties. Reseller will pay all applicable taxes and duties assessed in connection with this Agreement and its performance, except for taxes payable based on Company's net income. Reseller will promptly reimburse Company for any and all such taxes or duties that Company may be required to pay in connection with this Agreement.
  1. Term & Termination.

(a) Term & Termination. The term of this Agreement will begin on the date Reseller accepts the Agreement by "click-through" on Company's website (the "Effective Date") and will continue until terminated. This Agreement may be terminated by either party for any reason upon thirty (30) days written notice.

(b) Effect of Termination. Any Approved Reseller Orders placed by Reseller prior to the effective date of a termination shall be delivered to the End-Customer by Company and the obligations of the Payment Section shall apply to such Reseller Orders. At a party's request, the other party shall promptly return all Confidential Information (as defined in the Confidential Information Section of this Agreement), including computer media, Software, documentation and related information in such party's possession. In no event will either party be liable to the other for compensation, reimbursement or damages on account of expenditures, investments, leases or commitments in connection with the business of Company or Reseller, or for any other reason whatsoever arising from any termination. Termination of this Agreement shall not release Reseller from its liability to pay Company any amounts owed to Company under the Agreement and any such amounts shall become due and payable immediately.

(c) Survival. Any provision of this Agreement that requires or contemplates execution after expiration or termination are enforceable against the other party and their respective successors and assignees notwithstanding expiration or termination, including, without limitation the Taxes, Effect of Termination, Survival, Warranty Disclaimer, Infringement Indemnity, Limitation of Liability, Confidential Information, Compliance with Laws, and General Sections of this Agreement.

  1. Limited Warranties.

(a) Company Warranty. Company warrants that it has the ownership rights and/or licenses necessary to perform its obligations under this Agreement. Reseller's sole and exclusive remedy and Company's entire liability for any breach of the warranty in the preceding sentence shall be for Company to perform its obligations under the Infringement Indemnity Section of this Agreement. Company shall provide a limited warranty on the Products and Professional Services as set out in the STA or Services Agreement (as applicable).

(b) Reseller Warranty. Reseller warrants that it shall not directly or indirectly make or offer any warranties or make any representations to any third party, including but not limited to End-Customers, regarding Company, the Products, or the Services which are inconsistent with or in addition to those representations contained in the (i) technical and marketing materials published and made generally available to the public by Company or (ii) the STA and shall provide End-Customer with the then current STA for each Reseller Order for Products.

(c) Mutual Warranty. Each party warrants that it has the right and authority to (i) enter into this Agreement and to perform its obligations under this Agreement without violating any agreements it may have with any third parties, and (ii) disclose any End-Customer or other information which it may disclose during the course of its performance under this Agreement.

(d) Warranty Disclaimer. THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES AND REMEDIES PROVIDED BY COMPANY HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE.

  1. Infringement Indemnity. Company shall indemnify Reseller from and against any claim, suit, action, or proceeding brought against Reseller by a third party to the extent it is based on an allegation that the Software directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the country in which Company has authorized Reseller to resell the Software, or misappropriates a trade secret in such country (a "Claim"). Indemnification for a Claim shall consist of the following: Company shall (a) defend or settle the Claim at its own expense, (b) pay any judgments finally awarded against Reseller under a Claim or any amounts assessed against Reseller in any settlements of a Claim, and (c) reimburse Reseller for the reasonable administrative costs or expenses, including without limitation reasonable attorneys' fees, it necessarily incurs in responding to the Claim. Company's obligations under this Infringement Indemnity Section are conditioned upon Reseller (i) giving prompt written notice of the Claim to Company, (ii) permitting Company to retain sole control of the investigation, defense or settlement of the Claim, and (iii) providing Company with cooperation and assistance as Company may reasonably request in connection with the Claim. Company shall have no obligation hereunder to defend Reseller against any Claim resulting from a modification of the Software other than by Company. This Section states Company's entire liability and its sole and exclusive indemnification obligations with respect to a Claim.
  1. Limitation of Liability.

Except as otherwise set forth in Section Country Unique Terms the parties shall be liable as follows::

(a) Subject to Section 11(b) and (c), the maximum aggregate and cumulative liability of either party under this Agreement, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed (i) the greater of 125% of the fees paid and/or owed (as applicable) by Reseller for the Products or Maintenance Services or Professional Services that are the subject of the claim or five hundred euros (€500); or (ii) for Maintenance Services or a Product subject to recurring fees, the liability shall not exceed the greater of 125% of the amount paid and/or owed (as applicable) for such Maintenance Service or Product during the twelve (12) months preceding the breach or five hundred euros (€500).

(b) Subject to Section 11(c), neither party shall be liable for any (i) loss of income, revenue, business, contracts or actual or anticipated profits; (ii) loss of anticipated savings; (iii) loss of goodwill or reputation; (iv) loss of, damage to or corruption of data; (v) recovery of data or programs; (vi) indirect, incidental, special or consequential loss or damage of any kind; howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise.

(c) Nothing in this Agreement shall exclude or limit a party's liability for (i) any breach of the Trademarks, Reservation of Rights and Ownership, Confidential Information, and Export Sections of this Agreement; (ii) a party's express obligations under the Infringement Indemnity Section of this Agreement; (iii) any breach of Reseller's payment obligations; (iv) Reseller's violation of the scope of activities authorized by this Agreement; (v) death or personal injury resulting from negligence; (vi) willful misconduct or fraud; and (vii) any liability to the extent liability may not be excluded or limited as a matter of applicable law.

(d) Company's affiliates and suppliers shall be beneficiaries of this Limitation of Liability Section; otherwise, no third party beneficiaries exist under this Agreement.

  1. Confidential Information.

(a) Definition.  Confidential Information means information or materials disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that are not generally available to the public and which, due to their character and nature, a reasonable person under like circumstances would treat as confidential, including, without limitation, financial, marketing, and pricing information, trade secrets, know-how, proprietary tools, knowledge and methodologies, the Software (in source code and/or object code form), information or benchmark test results regarding the functionality and performance of the Software, any Software license keys provided to End-Customer or to Reseller, and the terms and conditions of this Agreement.

Confidential Information shall not include information or materials that (i) are generally known to the public, other than as a result of an unpermitted disclosure by the Receiving Party after the Effective Date; (ii) were known to the Receiving Party without an obligation of confidentiality prior to receipt from the Disclosing Party; (iii) the Receiving Party lawfully received from a third party without that third party's breach of agreement or obligation of trust; (iv) are protected by Company in accordance with its obligations under the Protected Data Section below, or (v) are or were independently developed by the Receiving Party without access to or use of the Disclosing Party's Confidential Information.

(b) Obligations.  The Receiving Party shall (i) not disclose or permit disclosure of the Disclosing Party's Confidential Information to any third party, except as permitted in subsection (c) below, (ii) only use the Disclosing Party's Confidential Information to exercise the rights granted to it under this Agreement, and (iii) protect the Disclosing Party's Confidential Information from unauthorized use or disclosure by exercising at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Disclosing Party's Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights. For the avoidance of doubt, this Section shall apply to all disclosures of the parties' Confidential Information as of the Effective Date, whether or not specifically arising from a party's performance under this Agreement.

(c) Permitted Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party's Confidential Information without the Disclosing Party's prior written consent to any of its Affiliates, directors, officers, employees, consultants, contractors or representatives (collectively, the "Representatives"), but only to those Representatives that (i) have a "need to know" in order to carry out the purposes of this Agreement or to provide professional advice in connection with this Agreement, (ii) are legally bound to the Receiving Party to protect information such as the Confidential Information under terms at least as restrictive as those provided herein, and (iii) have been informed by the Receiving Party of the confidential nature of the Confidential Information and the requirements regarding restrictions on disclosure and use as set forth in this Section. The Receiving Party shall be liable to the Disclosing Party for the acts or omissions of any Representatives to which it discloses Confidential Information which, if done by the Receiving Party, would be a breach of this Agreement.

Additionally, it shall not be a breach of this Section for the Receiving Party to disclose the Disclosing Party's Confidential Information as may be required by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party unless expressly prohibited from doing so by a court, arbitration panel or other legal authority of competent jurisdiction.

Further, Reseller agrees that Company may use Reseller information (including Protected Data) as necessary in the course of its usual business operations and that Company may disclose such information to its distributors or End-Customers to enable warranty or other problem resolution.

  1. Data Privacy.  

In this clause "Data Privacy", the terms "data controller", "data processor", "data subject", "personal data" and "processing" shall be as defined in the General Data Protection Regulation (EU) 2016/679 (the "GDPR") as amended or superseded from time to time and the term "personal data" shall be further defined as referring only to personal data in respect of which the Reseller is the data controller. Where Reseller is a data controller in respect of any personal data processed under or in connection with a Reseller Order, it shall comply with the provisions and obligations imposed by the GDPR as implemented into applicable national laws. As data controller, Reseller confirms that it has obtained all necessary authorizations for lawful processing, prior to passing any personal data (including any End-Customer personal data) to Company. To the extent Company processes personal data as a data processor on behalf of Reseller under or in connection with a Reseller Order, Company shall ensure appropriate technical and organizational measures are in place to safeguard such personal data against accidental or unlawful destruction, or accidental loss, alteration, unauthorized disclosure or access, and shall process the personal data in accordance with Reseller's written instructions in connection with the Reseller Order. Reseller shall be responsible for (1) the accuracy and quality of the personal data to be processed by Company and (2) acquiring the data in accordance with the GDPR. Company undertakes to keep and maintain adequate and complete documentation of all processing or use of personal data provided by Reseller to Company under this Agreement. Company shall use its reasonable efforts to assist Reseller to comply with its obligation, as data controller, to respond to requests by data subjects to provide access to, correct, amend or delete that data subject's personal data, a data subject opposes the processing of her or his personal data and/or a data subject wishes to exercise her or his right to portability or to be forgotten under GDPR, subject to the provision by Reseller of sufficient information to enable Company to locate the personal data. Reseller authorizes Company to collect, use, store, share and transfer the personal data for the purpose of performing Company's obligations under a Reseller Order and for any additional purposes described pursuant to Reseller Order. Company may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, Company shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with the Reseller Order. Reseller acknowledges Company is reliant on Reseller for direction as to the extent to which Company is entitled to use and process the Personal Data. Consequently, Company shall not be liable for any claim brought by Reseller or a data subject arising from any action or omission by Company to the extent that such action or omission resulted from compliance by Company with Reseller's instructions.

  1. Compliance With Laws. Reseller hereby agrees to comply with all laws, rules and regulations in the Territory and obtain and maintain all necessary government licenses, permits, approvals, and registrations required by law in the Territory at all times during the term of this Agreement. These responsibilities shall include, without limitation, compliance with any applicable currency exchange regulations or other similar requirements.
  1. Export. Reseller acknowledges that the Products and Maintenance Services are subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the "Export Controls") and agrees to abide by the Export Controls. Reseller hereby agrees to resell the Products, Maintenance Services, and Professional Services in accordance with the Export Controls, and shall not export, re-export, sell, lease or otherwise transfer the Products or any copy, portion or direct product of the foregoing in violation of the Export Controls. Reseller is solely responsible for obtaining all necessary licenses or authorizations relating to the export, re-export, sale, lease or transfer of the Products and for ensuring compliance with the requirements of such licenses or authorizations. Reseller hereby (i) represents that Reseller is not an entity or person to which the sale of the Products or Maintenance Services for resale to End-Customers, is prohibited by the Export Controls; and (ii) agrees that it shall not export, re-export or otherwise transfer the Products to (a) any country subject to a United States trade embargo, (b) a national or resident of any country subject to a United States trade embargo, (c) any person or entity to which shipment of Products is prohibited by the Export Controls, or (d) anyone who is engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons. Reseller shall, at its expense, defend Company and its Affiliates from any third party claim or action arising out of any inaccurate representation made by Reseller regarding the existence of an export license, Reseller's failure to provide information to Company to obtain an export license or any allegation made against Company due to Reseller's violation or alleged violation of the Export Controls (an "Export Claim") and shall pay any judgments or settlements reached in connection with the Export Claim as well as Company's costs of responding to the Export Claim.
  1. Territory.

(a) If Reseller's focus Territory (as defined in Section 1(g)) is within the European Economic Area ("EEA"), Reseller hereby agrees not to actively market and sell to any party located outside the EEA or, subject to Section 16(d), within the Restricted Territories (as defined in Section 16(c).

(b) If Reseller's focus Territory is outside the EEA, Reseller hereby agrees not to actively market and sell to any party located outside the Territory.

(c) Notwithstanding the nature and scope of this Agreement, Company currently has certain exclusive arrangements in place with certain third parties and is required (amongst other things) to prevent the sale of the Products, Maintenance Services and Professional Services in following countries within (1) Europe: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Greece, Hungary, Kosovo, Latvia, Lithuania, Macedonia, Malta, Montenegro, Poland, Romania, Serbia, Slovakia, Slovenia; (2) Middle East: Afghanistan, Bahrain, Iraq, Jordan, Kuwait, Lebanon, Oman, Qatar, Pakistan, Saudi Arabia, Turkey, United Arab Emirates, Yemen; and (3) Africa: Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Congo, Cote d'Ivoire, Democratic Republic of Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Nigeria, Rwanda, Sa Tome & Principe, Senegal, Sierra Leone, Somalia, South Africa, South Sudan, Swaziland, Tanzania (United Republic of), Togo, Tunisia, Uganda, Zambia, Zimbabwe (collectively the "Restricted Territories").

(d) For the avoidance of doubt, any passive sales activities within Europe, Middle East and Africa, i.e. sales activities which were initiated by End-Customers and not by Reseller shall not be covered by the above restrictions, however, Reseller may be required to place orders for End-Customers located in the Restricted Territories on Company's exclusive partners under a separate agreement with such exclusive partner.

  1. Anti-Corruption Law Compliance

(a) Company is committed to winning business only on the merits and integrity of our products, services and people. Company does not tolerate bribery or corruption, regardless of where Company is located or where Company does business. As used herein, "Anti-Corruption Laws" means the anti-corruption or anti-bribery laws in effect in jurisdictions where Reseller markets or sells Company products or services, and Anti-Corruption Laws specifically include the Foreign Corrupt Practices Act of the United States. The parties acknowledge that the Anti-Corruption Laws include (but are not limited to) prohibitions:

  1. Against offering, promising, or giving any financial or other advantage to any persons (public or private): (i) in order to induce a person to improperly perform a relevant function or duty; (ii) to reward a person for such improper activity; or (iii) where the person knows or believes that the acceptance of the advantage is itself an improper performance of a function or duty; and
  1. Against offering, promising, or giving any financial or other advantage to a public official, either directly or through a third party intermediary, with the intent to obtain or retain business or an advantage in the conduct of business by either (i) influencing the official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of his lawful duties, (iii) securing any improper advantage; or (iv) inducing the official to use his influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.

(b) The parties agree to comply with the Anti-Corruption Laws. Neither party will, in connection with this Agreement,

  1. offer, promise, or give any financial or other advantage to any persons (public or private): (i) in order to induce a person to improperly perform a relevant function or duty; (ii) to reward a person for such improper activity; or (iii) where the person knows or believes that the acceptance of the advantage is itself an improper performance of a function or duty, or
  1. offer, promise, or give any financial or other advantage to a public official, either directly or through a third party intermediary, with the intent to obtain or retain business or an advantage in the conduct of business by either (i) influencing the official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of his lawful duties, (iii) securing any improper advantage; or (iv) inducing the official to use his influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.

(c) Reseller agrees that in the event that Reseller subcontracts the provision of any element of this Agreement to any person, or receives any services in connection with its performance of this Agreement from any person (each such person being an "Associated Person"), it shall impose upon such Associated Person Anti-corruption obligations that are no less onerous than those imposed upon the Reseller in this Agreement.

(d) Reseller warrants and represents that neither Reseller nor any of its officers or employees has been convicted of any offense involving bribery, corruption, fraud or dishonesty or, to the best of its knowledge, has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under the Anti-Corruption Laws.

(e) Reseller shall (i) maintain, throughout the duration of dealings between the parties, its own anti-corruption policies and procedures, including without limitation, adequate procedures designed to ensure that Reseller and its Associated Persons comply with the Anti-Corruption Laws; (ii) provide a copy of such policies and procedures to Company on request; and (iii) monitor and enforce such policies and procedures as appropriate. Reseller shall maintain true, accurate, and complete accounting books and records relating to all of Reseller's activities under this Agreement. Reseller shall provide information, documentation and reasonable assistance to Company and its authorized representatives for purposes of ensuring Reseller's compliance with the Anti-Corruption Laws or to support an inquiry or investigation of a suspected violation of those laws.

(f) Reseller shall notify Company promptly if it discovers that it, or any of its officers, employees or Associated Persons, have engaged in any behavior that may violate any of the Anti-Corruption Laws. The parties will meet promptly and in good faith to resolve any claims made or concern raised. If, after no more than 90 days, no good faith resolution has been achieved, then Company, on written notice to Reseller, may suspend, withdraw from or terminate this Agreement with immediate effect and without liability.

(g) Company may immediately terminate this Agreement or suspend its performance hereunder if Reseller breaches, or refuses to provide information requested by Company to confirm its compliance with this Section of the Agreement.

  1. Country Unique Terms

If the governing law of this Agreement (pursuant to Section 19(a) below) is that of any country set forth in this Section Country Unique Terms, this Section sets forth specific provisions that apply thereto, as well as certain exceptions to specific terms and conditions in this Agreement, as detailed below:

(a) Austria or Germany: The following replaces clause "Limitation of Liability" in its entirety: (i) The parties accept unlimited liability for acts or omissions based on wilful misconduct or gross negligence. (ii) In case of slight negligence, the parties are only liable in case of a violation of essential contractual duties in a manner that endangers the Reseller Order's purpose or in case of a violation of duties that are indispensable for the proper execution of the Reseller Order. Liability for slight negligence is then limited to contract-typical, foreseeable damages. (iii) For claims according to the preceding clause (ii) liability is further limited to 125% of the fees paid and/or owed (as applicable) by Reseller for the Products, Maintenance Services or Professional Services that are the subject of the claim; for Maintenance Services or a Product subject to recurring fees, liability is further limited to the amount paid and/or owed (as applicable) for such Maintenance Service or Product during the twelve (12) months preceding. (iv) This provision applies to all claims for damages independent of their legal basis, including tort claims. (v) The following claims remain unaffected from the preceding limitations of liability: claims based on (1) the product liability act; (2) a breach of an express guarantee; (3) personal injury, or death; (4) willful misconduct or fraud; (5) any breach of the Trademarks, Reservation of Rights and Ownership, Confidential Information, and Export Sections of this Agreement; (6) a party's express obligations under the Infringement Indemnity Section of this Agreement; (7) any breach of Reseller's payment obligations; (8) Reseller's violation of the scope of activities authorized by this Agreement; and (9) any liability to the extent liability may not be excluded or limited as a matter of applicable law. (vi) These limitations of liability analogous to claims against Company's Affiliates and suppliers and disbursements.

(b) France: In addition to other rights and remedies for non-payment of invoices as specified in Section Payment, automatic collection fees, amounting to €40, may also be applied by Company.

  1. General.

(a) Governing Law and Venue. If Reseller's principal place of business is located in Austria, Belgium, Denmark, France, Germany, Ireland, Italy, Netherlands, Norway, Spain, Sweden, Switzerland or the United Kingdom, then the laws of such country shall apply to and govern this Agreement in relation to any disputes or claims arising hereunder. If Reseller's principal place of business is located in any other country in Europe, the Middle East or Africa, then the laws of England shall apply instead for such purposes. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the courts of the country whose laws apply to this Agreement. Each party hereby agrees to submit to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods 1980 (Vienna Convention) shall not apply.

(b) Assignment. Neither party may assign, transfer or subcontract all or part of this Agreement (or as applicable any Reseller Order) without the prior written consent of the other party except that (1) no consent is required to assign to a Company affiliate, (2) in connection with a merger, acquisition or sale of all or any portion of such party's assets or business, provided that such party's successor entity assumes in writing all of such party's obligations under this Agreement and agrees in writing to be bound by this Agreement, and (3) Company may subcontract its obligations under a Reseller Order but shall remain liable and responsible to Reseller for such obligations.

(c) Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.

(d) Notices. All notices provided hereunder shall be in writing, delivered personally, sent by facsimile or e-mail, or mailed by first class mail, postage prepaid, addressed to the legal department of the respective party or to such other address as may be specified in an order or in writing by either of the parties to the other in accordance with this Section of the Agreement. All notices, requests, demands or communications shall be deemed effective upon personal delivery or four (4) days following deposit in the mail in accordance with this paragraph.

(e) Disclosure of Reseller Status. Company may include Reseller in its listing of Resellers and, upon written consent by Reseller, announce Reseller's selection of Company in its marketing communications.

(f)  Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

(g) Injunctive Relief. Each party acknowledges and agrees that in the event of a material breach of this Agreement, including but not limited to a breach of the "Trademarks", "Reservation of Rights and Ownership", "Payment", "Confidential Information" or "Data Privacy" Sections of this Agreement, the non-breaching party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.

(h) Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. Nothing in the foregoing shall be deemed to relieve Reseller of its obligation to pay fees owed under this Agreement.

(i) Headings. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term "including" is used in this Agreement it will be construed in each case to mean "including, but not limited to."

(j)  Participation Agreement. If the parties desire to extend the use of this Agreement to use by either party's Affiliates, then they may authorize Company or its Affiliates and Reseller or its Affiliates to incorporate this Agreement into new agreements to reflect the applicable differing terms, including but not limited to pricing, scope of authorization, and local law (each, a "Participation Agreement"),

(k) Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter thereof and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement, including but not limited the terms and conditions on any Reseller purchase order. This Agreement may not be modified or amended except by a writing executed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.

 

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