CYBERLOCK RESELLER PARTNER AGREEMENT
This Agreement is between CyberLock, Inc. (“CyberLock”) and the reseller partner (“Reseller”) and establishes the terms of Reseller’s participation in the CyberLock Partner Program (the “Program”). Reseller’s participation in the Program is subject to approval by CyberLock. By ordering, receiving, or accepting CyberLock product for resale, by submitting a CyberLock Partner Application, or by otherwise participating in the Program in any capacity, Reseller accepts the terms of this Agreement.
1. Reseller Qualification
In order to qualify for participation in the Program and to resell CyberLock products, Reseller must satisfy all applicable requirements described in the Partner Levels Definitions and the Program Levels Grid (the “Eligibility Requirements”). CyberLock reserves the right to deny Reseller participation in the Program for any or no reason, even if Reseller otherwise satisfies all applicable Eligibility Requirements. Under the Program, CyberLock grants Reseller the non-exclusive and non-transferable right to resell CyberLock products in accordance with this Agreement. During the term of this Agreement, Reseller must comply with all terms of (a) this Agreement, (b) the Lead Policy and (c) the Deal Registration Policy. If, at any time, Reseller does not meet all applicable Eligibility Requirements or does not comply with any term in this Agreement, the Lead Policy, or the Deal Registration Policy, CyberLock may, in addition to other available remedies, terminate this Agreement with cause in accordance with Section 3.2.
2. Relationship of the Parties
2.1. Use of the word “partner” or “partnership” in this Agreement, in the Eligibility Requirements, on the CyberLock Partner Portal websites, or in any other CyberLock materials made available to Reseller does not mean legal partner and does not create a legal partnership between the parties. Reseller and CyberLock have absolutely no right to share in profits or losses from the sale of CyberLock products or other activities. Reseller is an independent contractor engaged in purchasing CyberLock products solely for resale to its customers. Reseller is not an agent or legal representative of CyberLock for any purpose, and has no authority to act for, bind or commit CyberLock. Reseller’s participation in the Program does not establish a partnership, agency, joint venture, franchise, business opportunity, employment, or other similar relationship between Reseller and CyberLock.
2.2. Reseller has no authority to make any commitment on behalf of CyberLock, including, without limitation, any commitment with respect to quantities, delivery, modifications, compatibility with third-party products or software, suitability of software, or suitability in specific applications. Reseller has no authority to modify the limited warranty offered with CyberLock products. This Section 2.2 shall not be interpreted to limit or prohibit Reseller’s ability to offer, at its sole risk and expense, its own warranty terms in connection with its independent resale of CyberLock products. In no event shall CyberLock be responsible for or legally bound by any representations or warranties made by Reseller. Reseller shall indemnify CyberLock from and against all claims, legal or administrative proceedings, damages, liabilities, loss, cost or expenses (including, but not limited to, reasonable attorneys’ fees and court costs), judgments, settlements, and penalties arising from or relating to a breach of this Section 2.2.
2.3. Reseller shall not represent itself in any manner that implies Reseller is an agent or branch of CyberLock, or that Reseller has any relationship to CyberLock other than that of an independent contractor authorized to resell CyberLock products. Upon notice from CyberLock, Reseller shall immediately change or discontinue any representation, advertisement, or business practice that CyberLock deems misleading or deceptive.
3. Term, Limitations, Termination
3.1. This Agreement has a term of one (1) year commencing on the date that CyberLock approves Reseller for participation in the Program. This Agreement will automatically renew on each subsequent year for an additional one-year term, unless it is terminated earlier in accordance with Section 3.2 or Section 3.4.
3.2. Neither CyberLock nor Reseller has any ongoing obligation to supply or resell products or services, respectively. CyberLock and Reseller may each terminate this Agreement without cause at any time upon thirty (30) days written notice or with cause at any time upon fifteen (15) days written notice. Except for termination by CyberLock pursuant to Section 3.4, expiration or termination of this Agreement does not release either party from any obligation that accrued prior to the effective date of such expiration or termination. Upon termination or expiration of this Agreement, Reseller shall immediately pay all outstanding fees and invoices. If Reseller is entitled under local law or otherwise to any special payment or termination indemnity as a result of termination or expiration of this Agreement, Reseller hereby waives and disclaims any right to such payment or indemnity.
3.3. CyberLock may provide Reseller written notice of amendments to this Agreement. Any such amendment will become a part of this Agreement thirty (30) days from the date CyberLock delivered the notice, unless otherwise specified in the notice.
3.4. Within three (3) months following a Change of Control of Reseller, CyberLock may terminate this Agreement immediately upon written notice. If CyberLock terminates this Agreement in accordance with this Section 3.4, CyberLock shall be automatically released from, and Reseller will be deemed to have released CyberLock from, any and all outstanding obligations related to delivery or supply of CyberLock products to Reseller, including any such obligations that may have accrued prior to termination. For purposes of this Agreement, a Change of Control shall mean the occurrence of any one of the following events: (a) a sale, transfer, or other disposition of all or substantially all of the assets of Reseller to another person or entity; (b) a merger or consolidation of Reseller and another entity in which Reseller is not the surviving corporation or in which ownership of more than fifty percent (50%) of the outstanding voting stock of, or other equity interests in, Reseller changes; or (c) a person or entity acquires more than fifty percent (50%) of the total outstanding voting stock of, or other equity interests in, Reseller.
4. Benefits and Obligations
4.1. The Program contains various participation levels. CyberLock may invite Reseller from time to time to participate in advertising, market development, and other promotional programs offered by CyberLock. Reseller may, at its option, participate in such programs during the term of this Agreement. CyberLock reserves the right to terminate or modify such programs at any time at its sole discretion.
4.2. Reseller will exert reasonable efforts to promote and sell CyberLock products. Reseller is encouraged to advertise and promote the sale of CyberLock products through all appropriate media, including, without limitation, trade show exhibits, catalogs and direct mailings, space advertising, educational meetings, and sales aids. Reseller may, at its option, use promotional materials supplied by CyberLock for the purpose of marketing and advertising CyberLock products, however CyberLock will not provide reseller with a sales or marketing program. CyberLock reserves the right to inspect, prior to dissemination, all original materials that use CyberLock’s name or trademarks (aside from modifying existing CyberLock supplied template materials) solely to ensure that such use is in accordance with the CyberLock Trademark and Logo Usage Guidelines. Reseller is solely responsible for all costs and expenses associated with its efforts to promote and sell CyberLock products including, but not limited to, costs and expenses related to print media publication, broadcast advertising, trade show attendance and travel, Internet advertising and/or website development, market research, printing materials, and direct or electronic mailing. Inspection of promotional materials by CyberLock for the limited purpose of protecting CyberLock’s intellectual property rights, and the rights of its licensors, does not represent an endorsement by CyberLock of Reseller’s promotional materials and in no event shall CyberLock be liable for any damages or penalties arising from Reseller’s marketing or promotional activities.
4.3. Reseller’s resale rights under this Agreement are non-exclusive and this Agreement does not restrict CyberLock’s ability to sell or license its products to third-parties. Reseller is not entitled to any commission, fees, or other amounts related to the sale or license of CyberLock products to third-parties.
4.4. Reseller will be solely responsible for determining and establishing the prices and fees it charges its customers, and for determining payment terms and collecting payment from its customers. CyberLock makes no guarantee or representation regarding Reseller’s ability to profit from the resale of CyberLock products or participation in the Program.
4.5. CyberLock does not represent that it will continue to manufacture, develop, or offer for sale any particular item or model of product indefinitely, or even for any specific period. CyberLock reserves the right to modify any of the specifications or characteristics of its products, to remove any product from the market, and to cease manufacturing or supporting any product.
5. Limitation of Liability
THE TOTAL LIABILITY OF CYBERLOCK FOR ALL CLAIMS OF ANY KIND ARISING FROM OR RELATED TO THIS AGREEMENT, RESELLER’S PARTICIPATION IN THE PROGRAM, OR THE SALE, USE, OR MISUSE OF CYBERLOCK PRODUCTS OR SERVICES IS LIMITED TO THE GREATER OF $1,000 OR THE PRICE PAID OR PAYABLE BY RESELLER TO CYBERLOCK, DURING THE THREE (3)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, FOR THE PRODUCT(S) OR SERVICE(S) DIRECTLY GIVING RISE TO THE CLAIM. IN NO EVENT SHALL CYBERLOCK BE LIABLE FOR ANY REPROCUREMENT COSTS, LOST REVENUE OR PROFITS, OR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF CYBERLOCK KNOWS OR IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. RESELLER HEREBY, FOR ITSELF AND ITS RESPECTIVE LEGAL SUCCESSORS, HEIRS AND ASSIGNS, RELEASES AND ABSOLUTELY DISCHARGES CYBERLOCK, AND EACH OF ITS OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, ASSIGNS, PARENTS OR SUBSIDIARIES, PAST AND PRESENT, OF AND FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES, LIABILITIES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS), AND CAUSES OF ACTION OF EVERY KIND AND NATURE ARISING OUT OF OR IN CONNECTION WITH TERMINATION OF THIS AGREEMENT, EXPIRATION OF THIS AGREEMENT, OR THE REFUSAL OF CYBERLOCK TO SUPPLY PRODUCT OR SERVICES TO OR AT THE REQUEST OF RESELLER.
6. CyberLock Trademarks
6.1. CyberLock (together with its licensors) owns all right, title, and interest in the CyberLock names and logotypes. CyberLock (together with its licensors) owns certain other trademarks and trade names used in connection with its product lines and software. Reseller will acquire no interest in any CyberLock trademarks or trade names by virtue of this Agreement, participation in the Program, any activities related to the Program, or its relationship with CyberLock. Any and all goodwill appurtenant to or associated with such trademarks and trade names shall accrue exclusively to the benefit of CyberLock (together with its licensors).
6.2. During the term of this Agreement, Reseller may indicate that it is a Certified Reseller of CyberLock products. Reseller is granted the limited, non-exclusive, non-transferable, and royalty-free right to use CyberLock trademarks and trade names only to promote CyberLock products and solicit sales of CyberLock products during the term of this Agreement and only in accordance with the CyberLock Trademark and Logo Guidelines. Reseller will not adopt or use CyberLock trademarks or trade names, or any confusingly similar word or symbol, as part of its company name, logotype, or website address, or allow such marks or names to be used by others.
6.3. Upon expiration or termination of this Agreement, Reseller shall immediately discontinue all use of CyberLock names or trademarks or any other combination of words, designs, trademarks, or trade names that would indicate that Reseller is a Certified Reseller of CyberLock products.
7. Limited Product Warranty
7.1. The warranty terms applicable to CyberLock products are specified in the CyberLock Terms and Conditions of Sale.
7.2. THE CYBERLOCK LIMITED WARRANTY IS EXCLUSIVE, AND CYBERLOCK MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY PATENT OR INTELLECTUAL PROPERTY RIGHTS. SOME STATES DO NOT ALLOW LIMITATION OF IMPLIED WARRANTIES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU. CYBERLOCK IS NOT OBLIGATED TO HONOR ANY WARRANTY UNTIL PAYMENT HAS BEEN RECEIVED IN FULL.
7.3. CyberLock products should not be used in applications where the highest level of safety and reliability are required and failure or malfunction would result in harm or loss of life, as well as enormous damage or loss. Such fields of applications include, without limitation, controlling emergency exits, circuitry on aircraft or heavy equipment, atomic energy, life-critical medical equipment, or in any application where the property losses may exceed $10,000. CYBERLOCK EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR ARISING OUT OF THE USE OF CYBERLOCK PRODUCTS IN SUCH APPLICATIONS. Reseller shall indemnify CyberLock, and each of its officers, employees, agents, representatives, assigns, parents or subsidiaries, past and present, from and against all claims, legal or administrative proceedings, damages, liabilities, loss, cost or expenses (including, but not limited to, reasonable attorneys’ fees and court costs), judgments, settlements, and penalties arising from or relating to Reseller’s use or sale for use in such applications.
The software license terms are specified in the CyberLock Terms and Conditions of Sale and any Software Maintenance Agreement entered into by the parties.
9. Proprietary Information
9.1. Reseller’s participation in the Program may result in CyberLock and/or Reseller disclosing, or making available, certain Confidential Information. Confidential Information means information that is not generally known outside the disclosing party or information that is otherwise designated as confidential. With respect to CyberLock, Confidential Information includes, but is not limited to, business, financial or technical data, specifications, software code, designs, and other information, whether oral or written, relating to the operation, design, manufacture, repair, distribution, or sale of CyberLock products. While this Agreement is in effect, and for a period of five (5) years immediately following termination of this Agreement for any reason, the recipient of any Confidential Information must hold in confidence, including but not limited to exercising the same degree of care as the recipient exercises with its own confidential or proprietary information of a similar nature, but in no event less than a commercially reasonable degree of care, and shall not disclose to any persons, any Confidential Information, whether patentable or not and whether received previously or hereafter, without the prior written permission of the disclosing party, except that the recipient is permitted to disclose Confidential Information to (a) employees and consultants of the recipient who have a need to know such Confidential Information for the limited purpose of advancing the promotion and sale of CyberLock products in accordance with this Agreement, and then only to the extent such employee or consultant needs to know, and who have similarly agreed in writing to the obligations contained herein; and (b) third parties as required by law, judicial action, or regulatory body, but only if the recipient provides prior notice to the disclosing party, assists the disclosing party in obtaining legal remedies to prevent such disclosure, and does not disclose any more information than expressly required. While this Agreement is in effect, and for a period of five (5) years immediately following termination of this Agreement for any reason, the recipient of Confidential Information shall not use Confidential Information for any purpose except the limited purpose of advancing the promotion and sale of CyberLock products in accordance with this Agreement.
9.2. In addition to the obligations of Section 9.1, where Confidential Information disclosed by a party constitutes a trade secret (as defined by the Oregon Uniform Trade Secrets Act), the recipient shall maintain the confidence of such information for as long as it remains confidential, regardless of whether this Agreement has expired or been terminated.
9.3. The following information is not considered Confidential Information: (a) information that is or becomes part of the public domain without breach of this Agreement; (b) information that the recipient can show, by written document, was lawfully within its possession at the time of disclosure and was not acquired from the disclosing party; (c) information that the recipient can show, by written document, was developed independently without use of Confidential Information; and (d) information that the recipient can show, by written document, was lawfully acquired from a third-party who, at the time of disclosure to the recipient, was not under any obligation to keep such information confidential.
9.4. CyberLock is under no obligation to disclose Confidential Information to Reseller. All Confidential Information, and any intellectual property rights therein, remains the sole and exclusive property of the disclosing party. Nothing in this Agreement shall be construed as transferring or granting any express or implied right, title or interest of any kind, by license or otherwise, to the recipient. Disclosure of Confidential Information does not grant the recipient any interest in such information. This Agreement does not grant any license under any patents or other intellectual property rights owned or controlled by or licensed to CyberLock.
9.5. Reseller represents that it understands the general nature of CyberLock products. In the event Reseller were to manufacture items designed to replicate the functionality of CyberLock or that otherwise compete with CyberLock products, exposure to Confidential Information will likely create a business advantage for Reseller, and/or any entity that controls, is controlled by, or is under common control with Reseller. Notwithstanding and in addition to the Section 9.1 restrictions on permitted use of Confidential Information, while this Agreement is in effect, and for a period of two (2) years immediately following termination of this Agreement for any reason, Reseller agrees not to manufacture, or direct others to manufacture on its behalf, any items that simulate the functionality of or compete with CyberLock products.
9.6. To afford CyberLock the opportunity to safeguard its Confidential Information, Reseller agrees to notify CyberLock within ten (10) days of any decision to offer for sale third-party products or services that reasonably compete with CyberLock products.
10. Export Controls
Reseller agrees that it shall not use, export, re-export, or divert any CyberLock products or software in a manner contrary to United States export laws and regulations. The United States Government imposes economic sanctions or embargoes on certain countries. The list of sanctioned or embargoed countries may change periodically, but currently includes Cuba, Iran, North Korea, Sudan, and Syria. Reseller agrees that it will not furnish CyberLock products or software to any person or entity in a country that is subject to economic sanctions or embargoes, or to nationals of such countries, without obtaining prior authorization from the United States Government. Reseller further agrees that it will not furnish CyberLock products or software to any person or entity subject to export restrictions including, but not limited to, persons or entities identified on the Denied Persons List, Entity List, or Unverified List as maintained by the United States Department of Commerce, or identified on the Specially Designated Nationals list as maintained by the United States Department of the Treasury. Reseller shall not use, or provide for use, any CyberLock item in any application or for any purpose related to nuclear technologies or chemical/biological weapons. Reseller shall indemnify CyberLock from and against all claims, legal or administrative proceedings, damages, liabilities, loss, cost or expenses (including, but not limited to, reasonable attorneys’ fees and court costs), judgments, settlements, and penalties arising from or relating to Reseller’s failure to comply with the terms of this Section 10.
11. Compliance with Laws
Reseller must comply with all laws and regulations that are applicable to the business that Reseller transacts. Reseller will, at its expense, obtain and maintain authorization from any governmental or regulatory body that may be required to resell CyberLock products. Reseller shall indemnify CyberLock from and against all claims, legal or administrative proceedings, damages, liabilities, loss, cost or expenses (including, but not limited to, reasonable attorneys’ fees and court costs), judgments, settlements, and penalties arising from or relating to Reseller’s failure to comply with the terms of this Section 11.
12. Government Contracts
In the event that Reseller elects to provide CyberLock products or services to the U.S. Government, Reseller does so solely at its own option and risk, and agrees not to obligate CyberLock as a subcontractor or otherwise to the U.S. Government. Reseller remains solely and exclusively responsible for compliance with all statutes and regulations governing sales to the U.S. Government. CyberLock makes no representations, certifications, or warranties whatsoever with respect to the ability of its business, employees, products, services, or prices to satisfy any such statutes and regulations.
13.1. This Agreement constitutes the entire understanding between the parties as to the subject matter of this Agreement and supersedes all other agreements, whether written or oral, between the parties with respect to its subject matter. Reseller states that it is not relying on any statements or representations made outside of this Agreement. No amendment to this Agreement will be effective unless it is (a) in writing and signed by both parties, or (b) enacted by CyberLock in accordance with Section 3.3. CyberLock’s failure to enforce any particular term contained herein or to exercise any right or privilege provided for herein does not constitute a waiver of CyberLock’s right to strictly enforce such terms or to exercise such rights or privileges. CyberLock reserves the right to take steps it believes reasonably necessary to verify Reseller’s compliance with any term of this Agreement.
13.2. Reseller is not permitted to assign any of its rights or delegate any of its obligations under this Agreement. Any purported assignment or delegation in breach of this Section 13.2 is void.
13.3. All notices permitted or required under this Agreement must be delivered in writing, to Reseller by e-mail, by courier, by overnight mail service, or by certified mail (postage prepaid and return receipt requested), and to CyberLock by courier, by overnight mail service, or by certified mail (postage prepaid and return receipt requested), and will be effective upon receipt. Notices to Reseller shall be sent to the same address or e-mail address that invoices are sent. Notices to CyberLock shall be sent to 1105 N.E. Circle Blvd., Corvallis, OR 97330, Attn: Tammy Davis. Either party may change its address at any time by giving written notice to the other party.
13.4. Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from a cause beyond its reasonable control.
13.5. If any term or provision of this Agreement is held invalid or unenforceable, in whole or in part, that provision shall be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
13.6. This Agreement is made under, and shall be governed and construed in accordance with the laws of the state of Oregon, excluding its choice-of-law provisions. All adversarial proceedings between the parties to this Agreement, whether arising out of this Agreement, out of Reseller’s participation in the Program, or otherwise, shall be governed by the laws of the state of Oregon, excluding its choice-of-law provisions, and shall be decided exclusively by a court of competent jurisdiction located in Lane County, Oregon. Any such legal proceeding shall be filed exclusively in the state or federal courts located in Eugene, Lane County, Oregon, and Reseller hereby irrevocably and unconditionally consents to the exclusive jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, or to any legal proceedings between the parties, and is hereby excluded. Notwithstanding the foregoing terms of this Section 13.6, CyberLock may bring a claim in any court having jurisdiction over Reseller to enjoin infringement of CyberLock’s trademarks, patents, or other intellectual property rights.