Version 1 – Effective September 1, 2026
This Reseller Agreement (“Agreement”) governs Reseller’s resale of products or services that it purchases from KM (as defined below) in accordance with a Products and Services Reseller Schedule and forms part of the Reseller Agreement, Order Form, or any other document that refers to them (“Incorporating Document”). The terms of this Agreement shall only become binding, and Reseller shall only be considered formally accepted into KM’s reseller program, upon Reseller being granted formal approval by KM after completing the necessary reseller program application process and receiving the countersigned initial reseller Order Form signed by an authorized representative of KM. Until such time as these conditions are met, Reseller has no authority to act under this Agreement, and any actions taken by Reseller in relation to reselling KM’s products and services are invalid and unauthorized. If there is a conflict between this Agreement and another document referenced in the Incorporating Document, the other document takes precedence. Capitalized terms may be defined in this Agreement or in any document referenced in the Incorporating Document.
- DEFINED TERMS
“Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control with such party. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of more than 50% of the voting securities, by contract, or otherwise.
“Agreement Year” means mean an initial period that commences on the Effective Date or on any January 1st during the term of the Agreement and ends on the next December 31st or, if earlier, the effective date of any termination of the Agreement.
“Anti-Corruption Laws” means the anti-bribery and anti-corruption laws of countries where KM conducts business, including the U.S. Foreign Corrupt Practice Act, the UK Bribery Act, Brazilian Law No. 12.846 and the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions.
“Customer” means either a KSS Customer or a Subscription Customer.
“Customer Data” means any and all electronic data and information submitted by a KSS Customer or Users to the KSS.
“Delivery” means KM making the Production Certificate for the Software, which is the subject of a purchase order that KM has accepted, available for electronic download by Reseller.
“Discount Schedule” means the product specific schedule(s) attached to this Agreement that contains the discount percentages and terms to apply the discount percentages that KM will use to determine the Subscription Fees and SaaS Fees payable by Reseller in this Agreement for the product governed by the applicable product schedule(s).
“Documentation” means either: (1) the “Help Files” included in the Software or KSS; or (2) if no such “Help Files” exist in the Software or KSS, then such other documentation published electronically by KM, in either case, which describes the functional, operational or performance characteristics of the Software or KSS. Documentation includes any Updates of Documentation which KM generally makes available to Resellers during the term of this Agreement.
“Effective Date” means the date this Agreement is signed by the last party to sign this Agreement, as determined based upon the dates set forth after their respective signatures
“Error” means a bug or defect inherent in the Software which is reported in accordance with the terms of this Agreement, is confirmed by KM to exist and which causes the Software to fail to function in all material respects in accordance with the Documentation.
“Estimate” means an approximate calculation of quantity or value based upon information known at the time the estimate is made for Professional Services. Estimates are not exact or binding.
“Functional Specification” means a formal, mutually agreed-upon, document used to describe the system’s complete set of requirements, including but not limited to intended capabilities, appearance, and interactions with users, in detail. The Functional Specifications define the scope of the Professional Services and overall goals which the Customer intends to be accomplished.
“Government Official” means (i) an officer, employee, agent, contractor or representative of any government or military, including, but not limited to, a customs official; (ii) any department, agency, corporate entity, instrumentality or political subdivision of any government or military; (iii) any person or commercial entity acting in an official capacity for or on behalf of any government or military; (iv) officers and employees of companies that are owned or controlled by the government; (v) any candidate for political office, any political party or any official of a political party; or (v) any officer, employee, agent, contractor or representative of any public international organization, including, but not limited to, the United Nations and World Bank.
“Initial Term” with respect to an Order Form for a KSS Customer or a Subscription Customer, an initial term of three (3) years beginning on the effective date of the Subscription Agreement or KSS Agreement, as applicable, for the applicable Customer.
“Intellectual Property Rights” or “IPR shall mean (i) patents, inventions, designs, copyright and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered) and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow; (iv) applications, extensions and renewals in relation to any of these rights; and (v) any other rights of a similar nature or having an equivalent effect anywhere in the world, including but not limited to trademarks identified in a Products and Services Schedule.
“KM” means KeyMark, LLC and its Affiliates, each of which may be identified on an Order Form.
“KM SaaS Service” or “KSS” means KM’s provision of the Software through KM’s website; any mobile, cloud and web applications that may be provided by KM; KM’s computer system and data center facilities; and/or local hardware for use at a Customer facility.
“KSS Customer” means a person or entity that purchases a license to the KSS from Reseller for such Customer’s own internal business, commercial or personal use and without the right to redistribute, time-share, or act as a service bureau, application service provider, software-as-a-service provider, cloud service provider, business process outsourcing service provider or other similar provider, unless otherwise agreed to in writing by KM and Reseller in an amendment to this Agreement.
“KSS Platform” means the physical hardware and infrastructure whether owned by KM or a third-party service providers, the website hosted by KM through which the Customer will access the Software and Customer Data stored in the KSS using the Software, and all third-party software products (other than those bundled with the Software) provided by KM as part of the KSS.
“License Agreement” means either: (a) the click through license agreement included in the Software or KSS and affirmatively accepted by a Customer in accordance with the click through instructions included in the Software and through such Customer’s use of the Software; or (b) an Order Form accepted by KM that references the applicable terms for the purchase scope from KM’s website (currently www.keymarkinc.com/legal ). KM reserves the right to modify the form of License Agreement at any time.
“List Price” means KM’s price list of Software products, KSS, maintenance and support, and services which are available for sale, a copy of the current form is available upon request and KM may post and update the List Prices on a portal in the future.
“Order Form” means a document referencing the Agreement and that is accepted by KM from Reseller for a Customer’s purchase of Software, KSS, Professional Services, or other products or services, including, but not limited to, the associated fees, and other terms agreed to by the parties and that references the correct terms for the selected purchase from the designated KM website (currently www.keymarkinc.com/legal ). For clarification purposes, a Work Order, Amendment, attachment, purchase order, or other similar document may be used as an Order Form.
“PCR” means a project change request.
“Primary Technical Support” means technical support services for Supported Software in the form of Software and KSS provided directly by Reseller to Customers, including without limitation: (a) complying with KM’s policies for delivery, installation, testing, confirmation, and acceptance by the Customer for the original license of the Software or KSS and any associated documentation, applications, and hardware for the successful operation of the Software or KSS; (b) providing the Customer with a reasonable level of training for use of the Software or KSS and any associated applications and hardware; (c) providing day-to-day, first point of contract to the Customer for help and support for the use of the Software or KSS; (d) providing the Customer with on-going applicable technical advice and support on using the Software or KSS through various means, including without limitation, through telephone and email; (e) providing the Customer with a reasonable level of assistance in installing any available Software patch, Update, or new version of the Software or in implementing any recommendation or solution to deal with Software or KSS errors reported to KM or not matching those in KM’s error tracking system; (f) providing such other assistance to the Customer in dealing with Software or KSS operation or errors; and (g) providing the Customer with assistance in implementing fixes or recommendations as directed or implemented by Secondary Support Services.
“Production Certificate” means license codes, a license certificate, binary code, an IFM file, or such other tool that is issued by KM to Reseller and necessary for a Customer to activate Software for production use.
“Products and Services Schedule” means a schedule that is incorporated into and made part of an Order Form, pursuant to which KM grants Reseller the right to participate in KM’s reseller program for the products and services identified therein, subject to the registration requirements, fees, training requirements, discounts, Territory, and trademark rights applicable to such program.
“Professional Services” means mutually agreed upon professional services provided by KM to Reseller as described in an executed Work Order.
“Professional Services Fees” means KM’s fees payable by Reseller to KM as described in a statement a work, including but not limited to: Software installation; Software consulting, implementation and integration; project management; and development of integrations of the Software with other applications using any Software API.
“Project Plan” means a document attached to a Work Order identifying major deliverables, milestones, activities, and resource requirements on the project and used to guide both project execution and project control. Dates (including overall start and end dates) associated with both the sequence of events and activities contained within the Project Plan are subject to change throughout the project and such changes will not require the use of a Project Change Request (“PCR”).
“Reseller” means the entity that submits an Order Form incorporating a Products and Services Schedule and thereby agrees to be bound by this Agreement. Each Order Form submitted by Reseller after the date of the initial Order Form shall be governed by, and incorporated into, this Agreement.
“Reseller Due Diligence Form” means the compliance and due diligence form that Reseller is required to complete as part of KM’s onboarding process for resellers generally.
“SaaS Fees” means the fees invoiced by KM to Reseller for each Customer that has licensed the KSS. The initial SaaS Fees for each KSS Customer are set forth in the initial Order Form submitted by Reseller to KM for such KSS Customer.
“Secondary Technical Support” means the following services to be provided by KM to Reseller: (a) with respect to the Software (i) using reasonable efforts to assist Reseller with the provision of Primary Support; (ii) using reasonable efforts to correct, fix, or circumvent Errors, and modifying Documentation, as KM shall deem appropriate, to respond to reported Errors; and (iii) in KM’s discretion, if KM develops and commercially releases Updates then providing such Updates to Reseller for delivery to Customers who are active on Primary Support from Reseller; and (b) with respect to the KSS (i) telephone or online technical support related to problems reported by Reseller related to the operation of the KSS Platform, and (iii) with respect to any defects (non-conformity to manufacturer’s provided user documentation) in the KSS Platform which are properly reported by Reseller and which are confirmed by KM or its suppliers, in the exercise of their reasonable judgment, reasonable efforts to either repair the defective component so as to correct the defect, or replace the defective component with a replacement component providing substantially similar functionality.
“Software” means KM’s proprietary products listed on schedules to this Agreement, which may be included in the KSS, including third party software bundled together by KM with KM’s proprietary products as a unified product. Software does not include third-party software products included in the KSS Platform.
“Specifications” means the final, detailed functional requirements for any Work Products that are provided by KM in a Work Order.
“Subscription Customer” means a person or entity that purchases a license to use the Software in an on-premise subscription from Reseller for such Customer’s own internal business, commercial or personal use and without the right to redistribute, time-share, or act as a service bureau, application service provider, software-as-a-service provider, cloud service provider, business process outsourcing service provider or other similar provider, unless otherwise agreed to in writing by KM and Reseller in an amendment to this Agreement.
“Subscription Fees” means the periodic fees for the licensing of Software and Provision of Secondary Technical Support from KM with respect to a Subscription Customer.
“Supplemental SaaS Fees” means the additional fees invoiced by KM to Reseller for each Customer that licensed the KSS and selected a purchase option that includes additional fees including, but not limited to, storage, capacity, high availability, web balancing, dedicated geographic regions, and such other items as may be identified on the List Price Schedule as Supplemental SaaS Fees.
“Supported Software” and “Retired Software” means (a) “Supported Software” is, at any particular time, the then-current released version of the Software and one prior release version of such Software that is not Retired Software; and (b) “Retired Software” is any version of the Software which is identified as being retired on KM’s end user website(s) (including https://filehold.com/knowledge-base/filehold-software-version-releases/) and/or which is older than one prior release version of such Software. KM will specify on such web site Software versions which become Retired Software. The effective date of such change will be twelve (12) months from the date KM initially posts the status change on such web site or otherwise communicates it to Resellers and Customers.
“Territory” means the territory identified on the initial Order Form and any renewal Order Form.
“Test Plan” means a detailed document that outlines the test strategy, objectives, resources needed, schedule, and success criteria for testing a specific new feature, process, or piece of software. Test plans should include specific test scenarios that exercise the system in such a way that the requirements identified in the Functional Specification (or other relevant, mutually agreed-upon requirements) may be validated. Development and implementation of the test plan is the Customer’s responsibility.
“Update” means subsequent releases of the Software which are generally made available to all Customers for Supported Software at no additional charge, other than media and handling charges. Updates may include modifications of or additions to the Software, but does not include any releases, versions, options or future products which KM licenses separately.
“Users” means a KSS Customer’s employees that access and use the KSS.
“Work Order” means a mutually agreed upon written proposal for Professional Services that is signed by KM and Customer, or an Order Form that KM accepts for any of the products or services listed on the applicable KM website (currently www.keymarkinc.com/legal). Work Orders are fully incorporated herein by reference.
“Work Product” means all items in the nature of computer software, including source code, object code, scripts, and any components or elements of the foregoing, or items created using the configuration tools of the Software, together with any and all design documents associated with items in the nature of computer software, in each case which are created, developed, discovered, conceived or introduced by KM, working either alone or in conjunction with others, in the performance of Professional Services contemplated under this Agreement (including any Order Form).
- RESELLER APPOINTMENT
2.1 Eligibility. Before entering this Agreement and afterwards upon KM’s reasonable request no more than once per calendar year, Reseller shall submit a completed Reseller Due Diligence form to KM.
2.2 Appointment and Participation Fee. Subject to the terms and conditions of this Agreement, KM grants Reseller a non-exclusive, non-transferable, limited, terminable right and license, during the term of this Agreement, to market, promote, and resell licenses to the Software and KSS solely to Customers in the Territory, in each case only as and to the extent set forth in an Order Form accepted by KM incorporating a Products and Services Schedule describing the applicable scope. On or before the Effective Date, Reseller shall pay KM the amounts specified on the initial Order Form for the applicable Products and Services Schedule, and thereafter annually on or before each September 30th during the term of this Agreement Reseller shall pay the annual program fee provided on the renewal Order Form. Annual program fees described on an Order Form and that Reseller timely pays to KM may be applied, at KM’s option, on a dollar-for-dollar basis towards: (1) the training fees payable for any training or certification requirements provided in Section 2.4 of this Agreement, (2) the registration fees for any KM-conducted reseller or end user conferences related to technical training for the Software, in either case which are completed within the then-current Agreement Year; or (3) to Subscription Fees or SaaS Fees; blocks of training hours are only applicable to training fees for training or certification courses offered by KM.
2.3 Competitive Restriction. During the term of this Agreement, Reseller shall not: (a) directly or indirectly (including by outsourcing or through any person or entity in which Reseller has an ownership interest) develop, engage others to develop, have an ownership interest in any person or entity that does any of the foregoing; in each case, with respect to any computer program or software product that is primarily designed to complete with the Software or KSS; or (b) convert, or assist with the conversion of, any Customer from using the Software or KSS to any other computer program or software that is a competitive product to the Software or KSS.
2.4 Minimum Training and Certification Requirements. Within one hundred eighty (180) days of executing this Agreement, and in order for Reseller to perform Professional Services, Primary Support and license the products and services in this Agreement, Reseller must comply with the training requirements in the initial Order Form based on Reseller’s assigned Reseller tier.
- OWNERSHIP; DEPLOYMENT TYPES; PROHIBITED ACTS; KM RIGHTS TO MODIFY OR DISCONTINUE SOFTWARE OR KSS
3.1 Ownership. Reseller acknowledges and agrees that as between Reseller and KM all right, title and interest, including any Intellectual Property Rights, in the Software, SaaS Services, Documentation, Innovations, KM Trade Rights, KM Confidential Information, Work Products and in each case all amendments, changes, enhancements, derivates and copies thereto are and shall remain owned by and/or shall be vested solely in KM and its Affiliates and licensors, as applicable The Software, KSS and Work Products are licensed and not sold. Except as expressly provided in writing, this Reseller Agreement shall not give Reseller or any third party any direct, indirect or implied right or license to use or otherwise exploit Intellectual Property Rights belonging to KM, its Affiliates or licensors, as applicable. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. KM or its suppliers retain on an exclusive basis for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by KM in the performance of its duties under this Agreement including, but not limited to, all patents, patent applications, copyrights and other intellectual property rights relating to or associated with the Software, KSS, Innovations and Work Products.
3.2 Deployment Types. KM offers the Software for either on-premise deployment or hosted deployment via the KSS in the KSS Platform. Any element of the KSS and the KSS Platform may be operated by KM, an Affiliate, or by third parties under agreements with KM or Affiliates. Except for any local hardware, neither Reseller nor any Customer will have physical access to the KSS or KSS Platform, including any Work Products deployed in the KSS.
3.3 Prohibited Acts. Reseller shall not: (1) remove any KM notices in the Software, KSS, Work Products or Documentation or otherwise represent that Reseller is the owner or developer of any of the foregoing; (2) rent, lease, time share or sub-license the Software, KSS, Work Products or Documentation to any third party, (3) use the Software, KSS, Work Products or Documentation in connection with any activities as a service bureau, application service provider, software-as-a-service provider, cloud service provider or other similar arrangement; (4) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, KSS, Work Products, or Documentation; (5) alter or prepare derivative works of the Software, KSS, Work Products or Documentation; and (6) shall not copy, display, distribute or make any other use of the Software, KSS, Work Products or Documentation not expressly covered by the license grants provided in this Agreement. This Agreement does not grant Reseller any rights to use the Software, KSS, Work Products or Documentation for Reseller’s internal business operations or purposes.
3.4 KM’s Rights to Modify or Discontinue Software and KSS. KM has the right, at any time, to: (a) change the specifications and operating characteristics of the Software, KSS, and KM’s Upgrade policies; and (b) discontinue distribution or deployment of any or all Software, KSS, or to discontinue support, maintenance, or the provision of new versions, Upgrades, or corrections for any Software, for any version or for any hardware or software platform or operating system, or for any component of the KSS. If such a discontinuance of distribution of the Software, KSS, or of support, maintenance or the provision of new versions, Upgrades, or corrections materially impairs the value of this Agreement to Reseller, Reseller shall have the option to terminate this Agreement; such option to terminate shall expire after sixty (60) days from the date notice of discontinuance is given.
- SOFTWARE, DOCUMENTATION, KM TRADE RIGHTS, AND WORK PRODUCTS LICENSE
4.1 Software and KSS. KM grants to Reseller a non-perpetual, terminable, non-exclusive, non-transferable or sub-licensable, and limited license during the term of this Agreement to use the Software internally only, in machine-readable object code form only: (a) to demonstrate the Software to Customers and prospective Customers, so long as the demonstration copies remain in control and possession of Reseller’s employees on Reseller’s systems; (b) to perform Primary Support for Customers; (c) upon Reseller’s submission of a purchase order to KM that KM accepts for Software licenses for a specific Customer, to download a copy of the Software ordered and install and use the same on Reseller’s systems in connection with Reseller’s implementation of the Software for such Customer, and such copy of the Software shall be removed from Reseller’s systems immediately upon the transfer of the implemented Software solution from Reseller’s systems to such Customer’s systems; and (d) to develop Reseller’s own software that may interact with, operate with, make calls to or store documents or data using the Software (any such software being a “Reseller Product”); provided that no Reseller Product may incorporate or alter the Software source code or any of KM’s intellectual property or proprietary property or rights, no elements of the Software will be included in or incorporated into any Reseller Product, and no Reseller Product will be designed or intended to (i) enable Reseller or any Customer to increase the number of users accessing or using the Software without licensing additional Software client licenses or to reduce the number of Software client licenses required, or (ii) replace or substitute for directly, or indirectly through integration or another application, the functionality offered by any module or other element of the Software.
4.2 Documentation. KM grants Reseller a non-perpetual, terminable, non-exclusive, non-transferable or sub-licensable, and limited license during the term of this Agreement to use the Documentation only as follows: (1) to perform Primary Support of the Software for Customers; and (2) to perform implementations of the Software for Customers.
4.3 KM Trade Rights. KM grants Reseller a non-perpetual, terminable, non-exclusive, non-transferable or sub-licensable, and limited license to use the KM Trade Rights during the term of this Agreement, solely to market and redistribute the Software in accordance with this Agreement. KM agrees that all uses of the KM Trade Rights shall be undertaken strictly in accordance with trademark requirements in an applicable Products and Services Schedule and other policies that KM develops. All of Reseller’s uses of the KM Trade Rights shall inure to the benefit of KM. Reseller shall not register or apply to register any domain name, user name, trademark, trade name, service mark or service name containing any KM Trade Right or any confusingly similar word or mark. The grant of this license to use the KM Trade Rights in no way provides Reseller any rights in or authorization to use any other trademarks, service marks, trade names, trade dress, domain names or other similar property or rights of KM. Notwithstanding the above, if KM determines that Reseller’s use of any KM Trade Rights is not in compliance with this Agreement or the or policies or is otherwise improper, Reseller agrees to comply promptly with any requests to correct or discontinue such use.
4.4 Work Products License. Subject to Reseller’s payment of all amounts due under the applicable Order Form and its compliance with Section 5.3.4, KM grants to Customer (or in the event Reseller has sub-licensed the Software to Customer, Reseller may grant to Customer) a limited, non-exclusive and non-assignable license, for the term of the Subscription Agreement or KSS Agreement that Reseller entered with Customer, to solely use the Work Products: (a) internally; (b) in connection with Customer’s own data; (c) and in accordance with the authorized use of the Software under the applicable license agreement. All Work Products license(s) will terminate or expire concurrently with the termination or expiration of the applicable license agreement authorizing the use of the Software.
- REDISTRIBUTION AND MARKETING; TECHNICAL SUPPORT; PROFESSIONAL SERVICES; DATA EXTRACTION.
5.1 Redistribution and Marketing.
5.1.1 Distribution. Reseller shall use its best efforts to promote, market and redistribute the Software and KSS to Customers in the Territory, including pursuing leads provided by KM. Reseller shall redistribute licenses to use the Software, KSS and Documentation to Customers as follows: (i) copies of the Software for on-premises deployment redistributed to Customers shall be in machine readable object code form only; (ii) copies of the Documentation redistributed shall only be such copies as are included by KM in the Software instances (including KSS) delivered to Reseller to fulfill the redistribution of licenses of Software to Customers; and (iii) Customers are required to enter a License Agreement for each purchase of the Software and KSS, unless otherwise agreed upon by KM and Reseller for a particular Customer transaction.
5.1.2 Cooperative Marketing Efforts. KM and Reseller agree to the following cooperative marketing activities: (a) quarterly meetings to review market, sales and product requirements and to discuss KM’s requirements for Reseller to achieve the objectives of this Agreement; and (b) monthly conference calls between designated sales management to review sales, forecast, and to identify if KM support can help Reseller and KM achieve more revenue.
5.1.3 Additional Obligations and Limitations on Redistribution.
(a) Anti-Virus. Reseller shall use commercially available and generally accepted tests for virus detection and protection in all of Reseller’s production processes to ensure Software is distributed without viruses.
(b) High Risk Use Prohibited. The Software is not fault-tolerant and is not guaranteed to be error free or to operate uninterrupted. Reseller is prohibited from reselling licenses to the Software to any Customer for use in any application or situation where failure or fault of any kind of the Software could lead to death or serious bodily injury to any person, or to severe physical or environmental damage (“High Risk Use”). High Risk Use of the Software is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, or weaponry systems. High Risk Use does not include use of the Software for administrative purposes, to store configuration data, engineering or configuration tools, or other non-control applications, the failure of which would not result in death, personal injury, or severe physical or environmental damage. These non-controlling applications may communicate with the applications that perform the control, but must not be directly or indirectly responsible for the control function.
(c) Software Designation. The Software is complex computer software, and its performance may vary depending its configuration, interaction with other applications, and the type of hardware on which it is installed. Software is not fault tolerant or free from errors, conflicts, interruptions or other imperfections. As between KM and Reseller, Reseller is responsible for determining that the Software meets the quality and performance objectives necessary for its Customers, and Reseller will provide its Customers with all necessary notices or warnings to such Customers and others who may be affected by use of the Software.
(d) Non-Governmental. No United States Government procurement regulations or Federal Acquisition Regulations shall be included hereunder or be binding on either party unless specifically agreed to in writing prior to incorporation hereunder. In the event of any sale or license to the United States government, Reseller shall assure that all labeling needed to establish Restricted Rights in Data with respect to any Software is correctly affixed and intact.
(e) Limitations on Multi-Customer Contracts. This Agreement does not constitute a letter of supply or similar instrument under any schedule or contract (“Multi-Customer Contract”) to which Reseller is or may become a party and which provides for procurement of Software or services by multiple Customers or prospective Customers, such as a General Services Administration schedule, any other multi-customer government procurement schedule or contract, or any similar schedule or contract with a private buying consortium or other private procurement group or association, regardless of how organized or operated. Any and all purchase orders placed by Reseller to KM under this Agreement in connection with any Customer or prospective Customer which is seeking to procure Software or services through a Multi-Customer Contract shall remain subject to the other terms and conditions of this Agreement.
5.2 Technical Support.
5.2.1 Primary Support. During the term of this Agreement, Reseller shall provide Primary Support directly to all Customers purchasing Subscription Software and KSS from Reseller. In order to remain eligible to provide Primary Support, Reseller must both comply with the certification requirements in Section 2.4(b) and remain current in payment of all Subscription Fees and SaaS Fees to KM.
5.2.2 Failure to Provide Primary Support. So long as Reseller is providing Primary Support to a Customer as described in Section 5.2.1, then if: (a) any Customer contacts KM directly for the provision of Primary Support, (b) such Customer or KB has attempted to contact Reseller with respect to such request, and (c) Reseller fails for any reason to provide such Primary Support, KM shall have the right to charge and invoice Reseller for any services that KM provides directly to such Customer in response to such request on a time and materials basis.
5.2.3 Secondary Support. During the term of this Agreement, and so long as Reseller is providing Primary Support to a Customer as described in Section 5.2.1 and has paid all Subscription Fees to KM for the current Agreement Year, then KM shall provide Secondary Support to Reseller for Supported Software and KSS with respect to such Customer. In requesting Secondary Support, Reseller will comply with the technical support procedures as set forth by KM. In the case of reporting an Error, Reseller agrees to provide written documentation of such Error to substantiate the Error and to assist KM in the detection, confirmation and correction of such Error. Reseller acknowledges and agrees that KM may require on-line access to the Supported Software installed on a Customer’s systems to provide Secondary Support. Accordingly, Reseller shall require all Customers to install and maintain means of communication and the appropriate communications software and an adequate connection with KM to facilitate KM’s provision of Secondary Support. Such right of access and use shall be provided at no cost or charge to KM.
5.3 Professional Services.
5.3.1 Professional Services Ordering. Reseller may purchase Professional Services from KM for the benefit of Reseller’s Customers pursuant to a Work Order, which may include a Project Plan. KM and Reseller will discuss the desired work, and KM will determine whether an Order Form (including a Work Order) or a purchase order will be the applicable ordering document from Reseller. Each Order Form for Professional Servies will be incorporated in this document by this reference as if fully rewritten herein.
5.3.2 Fulfillment. KM will perform the Professional Serves as agreed upon in Section 5.3.1. The schedule for Professional Services may be automatically extended, and KM shall have no liability or responsibility for additional costs, if delays arise solely from any incorrect information, incorrect assumption or failure of Reseller to perform or fulfill its obligations in connection with the applicable Order Form. If any milestone in an Order Form is missed solely because of a KM delay, and provided that such cause is not an event of force majeure as described in this Agreement, then KM agrees, at no additional charge to Customer, to commit such additional resources and personnel to ensure that such delay does not result in additional delays of such Professional Services. Any Professional Services or Work Products described in an Order Form that KM has performed or developed, in whole or in part, prior to the execution of such Order Form nevertheless shall be covered by all terms and conditions of such Order Form.
5.3.3 Change Orders. If the Reseller receives a request from a Customer for additional work that is in excess of the intended scope of the Professional Services ordered in Section 5.3.1, , or if the intended scope of the Professional Services has materially changed, determined at KM’s discretion, and so chooses to provide such additional service hours or assistance in response to such request under a new Order Form or an PCR to an existing Order Form, then upon approval, the Reseller agrees to pay KM using KM’s then current rates and charges for time and materials. Any such additional services or assistance will be subject to the terms and conditions of this Agreement. If such additional services involve the use of third-party data or services, the Customer must agree to pay for all such third-party data and services.
5.3.4 Project Assumptions. The following standard assumptions apply to all Professional Services Work Orders: (a) work efforts will proceed continuously until completion; (b) Reseller’s Customer maintains at least one (1) test/development environment that mirrors the product environment, including integrations with third-party systems; (c) KM personnel will have direct VPN/server access to all environments in which work is to be performed; (d) extensive security measures, background checks and other security requirements for KM personnel are not required; (e) Reseller through Reseller’s Customer will provide all infrastructure, access, development tools, licensing or provisioning of work samples in a timely manner; (f) Reseller and Reseller’s Customer will provide KM with all necessary and appropriate rights to perform the Professional Services, including but not limited to accessing facilities, systems, data and third party software; and (g) Reseller’s and Reseller’s Customer’s key stakeholders or subject matter experts will remain assigned to the project through completion. A PCR will be required for any additional time and costs that result from material impacts to a Work Order that result from Reseller’s and Reseller’s Customer’s failure to meet the assumptions provided in in this Section 5.3.4.
5.4 Customer Requests. Reseller hereby acknowledges and agrees that KM shall have no responsibility to provide service or assistance to Customers, except for agreed upon Professional Services pursuant Section 5.3. Reseller agrees not to direct any Customers to contact KM directly for technical support. If a Customer requests that KM or another reseller replace Reseller, then: (a) KM will allow a reasonable period of time for Reseller and the Customer to resolve their differences; (b) if after the time in 5.2.3(a) the Customer still insists upon a change, then KM will be entitled to replace the Reseller as a provider of Technical Support Services to such Customer and the Reseller shall refund to the Customer a pro-rata portion of pre-paid fees for Technical Support Services not yet rendered.
- RESELLER PURCHASES FROM KM
6.1 Purchase Orders. Reseller shall submit purchase orders for Software, KSS, Professional Services, or any other products or services ordered pursuant to the terms of this Agreement. Each such purchase order shall include the following: Customer name and address, “Bill To” & “Ship To” address, Customer contact name & phone number, detail of Software, Secondary Technical Support, KSS, Professional Services or any other products or services ordered, applicable fees payable, purchase order number, resale number or federal, state and local sales tax charges (i.e. tax percent), and any additional expenses. Each such purchase order shall be subject to acceptance or rejection by KM.
6.2 Delivery of Software. All obligations of KM associated with delivery of Software are complete at the time and place where Delivery occurs. At Delivery, all risk of loss associated with such Software passes from KM to Reseller.
6.3 Fees. Reseller will pay to KM the SaaS Fees or Subscription Fees, as applicable, for the purchase of licenses of the Software redistributed by Reseller to Subscription Customers and for the provision of KSS sold to KSS Customers. The price for a particular purchase order will be calculated by multiplying the applicable list price for the subscription or SaaS fees for the Software or KSS included on Reseller’s accepted purchase order as set forth on the List Prices in effect at the time Reseller submits such purchase order, by 100% less Reseller’s applicable discount percentage as determined in accordance with the applicable Products and Services Schedule discounts at the time Reseller submits its applicable purchase order. Professional Services Fees, including fees for Work Products, will be provided in the applicable Order Form or purchase order.
6.4 Third Party Charges. Reseller recognizes that the Subscription Fees and SaaS Fees do not include fees for all hardware or third party software products which may be required to be licensed or purchased by a Customer for a Customer to utilize the various capabilities of the Software or KSS and that Reseller or the Customer is responsible for the costs and licenses to obtain such hardware or third party software.
6.5 Invoicing. KM will invoice Reseller for the first year of the Initial Term for each Subscription Customer and KSS Customer upon KM’s acceptance of Reseller’s purchase order for such Customer. Each invoice shall be due and payable in accordance with Section 6.5 of this Agreement. For each remaining year of the Initial Term and any subsequent years, KM will invoice Reseller for Subscription Fees or SaaS Fees, as applicable, at least sixty (60) days prior to the beginning of such year or renewal term, and such invoices shall be due and payable by Reseller to KM on or before the beginning of such year; provided that, following expiration of the Initial Term, KM will increase the Subscription Fees or SaaS Fees, as applicable, for any renewal term based on the Consumer Price Index. In the event a Customer licenses additional Software under the Subscription Agreement or for use in the KSS, KM will invoice Reseller for Subscription Fees or SaaS Fees for such additional Software on a pro-rata basis upon KM’s acceptance of Reseller’s purchase order for such additional Software and such invoice shall be due and payable in accordance with Section 6.5 of this Agreement. Thereafter, Subscription Fees or SaaS Fees, as applicable, relating to such additional Software shall be included in the subsequent invoices issued with respect to the existing licensed Software or KSS. Professional Services fees will be invoiced in accordance with the applicable Order Form or purchase order entered pursuant to Section 5.3.1.
6.6 Payment Terms. KM shall issue payment invoices electronically for fees and any other amounts due hereunder upon KM’s acceptance of purchase orders and agreement to Order Forms. Reseller agrees to make payment in USD of all such payment invoices within thirty (30) days of the date of such invoice.
6.7 Past Due Payments. All late payments by either party shall bear interest at a rate of one and one-half percent (1.5%) per month or partial month during which any sums were owed and unpaid, or the highest rate allowed by law, whichever is lower.
6.8 Additional Charges and Taxes. The prices and payment obligations under or related to this Agreement are exclusive of any shipping charges or foreign, federal, state, municipal or other governmental taxes, duties, excise taxes or tariffs now or hereafter imposed on the production, storage, sale, transportation, import, export, licensing or use of Software, KSS or on the sale or provision of Secondary Support or other services. Reseller shall pay all such charges and taxes. If Reseller claims that any transactions under or related to this Agreement are exempt from any applicable taxes, Reseller shall provide an exemption certificate acceptable to KM and the applicable authority on or promptly after the Effective Date.
6.9 Resolution of Invoice Disputes. If Reseller believes that an invoice contains an error, then Reseller shall, prior to the due date for payment of such invoice, notify KM in writing that it disputes all or any portion of an amount invoiced. Any amounts not timely disputed in accordance with the preceding sentence shall be deemed to be undisputed and shall be payable in accordance with the terms of the Agreement. With respect to any amounts that are timely disputed, both parties will use commercially reasonable efforts to resolve the dispute within thirty (30) calendar days of KM’s receipt of the notice. If any amount remains disputed in good faith after such 30-day period, either party may escalate the disputed items to the parties’ respective executive management to attempt to resolve the dispute. The parties agree that at least one of each of their respective executives will meet (which may be by telephone or other similarly effective means of remote communication) within ten (10) calendar days of any such escalation to attempt to resolve the dispute. If the parties are unable to resolve the dispute in accordance herewith, either party thereafter may file litigation in a court of competent jurisdiction under the Agreement to seek resolution of the dispute.
6.10 Price Changes. KM has sole discretion and authority to change its List Prices and Discounts by providing Reseller with at least thirty (30) days advanced written notice.
- CONFIDENTIAL INFORMATION; DATA SEECURITY
7.1 Confidential Information. Each party agrees that, with respect to the Confidential Information of the other party, during the term of this Agreement such party as a recipient shall at all times maintain the confidentiality of the other party’s Confidential Information, using the same degree of care that such party uses to protect its own confidential information, but in any event not less than reasonable care; and shall not use (except in performance of this Agreement) or disclose to any third party any such Confidential Information, except as may be required by law or court order. As used herein, “Confidential Information” shall mean information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without breach of its obligations. Each party shall be liable and responsible for any breach of this Section committed by any of such party’s employees, agents, consultants, contractors or representatives. Reseller shall not advertise or otherwise make public any past, current or future discounts provided in any Products and Services Schedule or List Price Schedule or any pricing information or other price lists of KM, and any documents, such as proposals, that contain such pricing information shall bear a confidentiality notice. Reseller agrees not to disclose the terms and conditions of this Agreement to any third party without the prior written consent of KM.
7.2 Return of Confidential Information. The receiving party shall return to the disclosing party, destroy or erase all Confidential Information of the disclosing party in tangible form: (a) upon the written request of the disclosing party; or (b) upon the expiration or termination of this Agreement, whichever comes first, and in both cases, the receiving party shall promptly and in writing that it has done so. Except for the rights expressly described in this Agreement, Reseller is not granted any rights to any KeyMark patents, copyrights, trade secrets, trade names, trademarks (whether or not registered), or any other rights, franchises or licenses.
- WARRANTIES.
8.1 Software Purchased by Reseller for which Fees are Paid in Full. When Reseller purchases a license to Software from KM in accordance with section 6.1, KM invoices Subscription Fees in accordance with 6.4, Reseller timely pays the Subscription Fees in full, and Reseller redistributes the Software licenses to a Customer in accordance with this Agreement, then for a period of sixty (60) days from the date such Software is Delivered with respect to such Customer, KM warrants to reseller that such Software, when properly installed by Reseller and properly used by such Customer, will substantially conform to the Documentation. The terms of this limited warranty shall not apply to, and KM shall have no liability for any non-conformity related to: (a) any Retired Software; or (b) any Software that Reseller, Customer or any third party has modified, used in combination with equipment or software other than that which is consistent with the Documentation, or misused or abused.
8.2 Zero Dollar Software, KSS and Professional Services. Any Software, KSS, Professional Services, or any other service for which no fees are paid to KM by Reseller are provided “AS-IS” without any warranty, remedy or refund whatsoever.
8.3 Professional Services Warranty. For a period of sixty (60) days from the date of completion of Professional Services, KM warrants to Customer that such services have been performed in a good and workmanlike manner and substantially according to industry standards. These warranties shall not apply to, and KM shall have no liability for any non-conformity to the extent it is caused by or related to: (i) incorrect data or incorrect procedures used or provided by Customer or a third party; (ii) failure of Customer to perform and fulfill its obligations under this Agreement; (iii) any component of the Software or KSS that has been modified, misused or abused by Customer or a third party, (iv) problems within or impacting Customer’s or Reseller’s computing environment, including any third party software applications, hardware, network or internet connectivity, (v) Customer’s or Reseller’s failure to install the most recent update made generally available to customers or any other update which resolves the issue; (vi) a Force Majeure event; or (vii) if the Software or KSS is used in combination with equipment or software other than that which is provided by KM or is consistent with the Documentation.
8.4 Warranty Remedy. KM’s sole obligation, and Reseller’s sole and exclusive remedy, for any non-conformities for which Reseller has provided written notification to KM in accordance with this provision, shall be to either (a) correct the non-conforming component or reperform the nonconforming services, which may include the delivery of a reasonable workaround for the non-conformity; or (b) if KM determines that correcting the non-conformity is not practicable, then terminate the Agreement with respect to the non-conforming component, in which event, upon compliance by Customer with its termination obligations under the Agreement, KM will provide a refund to Customer of the unused fees prepaid by Customer and attributable to the non-conforming component or services.
8.5 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.1 AND 8.3 OF THIS SCHEDULE, IS IN LIEU OF, AND KM HEREBY DISCLAIMS, ALL OTHER WARRANTIES BY KM AND ITS SUPPLIERS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. KM AND ITS SUPPLIERS DO NOT WARRANT THAT ANY SOFTWARE, KSS, DELIVERABLES, SPECIFICATIONS, PROFESSIONAL SERVICES OR UPGRADES WILL SATISFY THE REQUIREMENTS OF RESELLER OR ANY CUSTOMERS OR ARE WITHOUT DEFECT OR ERROR. RESELLER DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES. NO ORAL OR WRITTEN INFORMATION GIVEN BY KM, ITS AGENTS, OR EMPLOYEES SHALL CREATE ANY ADDITIONAL WARRANTY. NO MODIFICATION OR ADDITION TO THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS AUTHORIZED UNLESS IT IS SET FORTH IN WRITING, REFERENCES THIS AGREEMENT, AND IS SIGNED ON BEHALF OF BOTH PARTIES BY A CORPORATE OFFICER.
- INDEMNIFICATION
9.1 By KM. KM agrees to defend, indemnify and hold harmless Reseller against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Reseller based upon any infringement or misappropriation by the Software, Work Products, and KSS of any patent, registered copyright or registered trademark of a third party that is enforceable; provided that KM: (a) is notified immediately after Reseller receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim; (c) receives Reseller’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of KM) of the occurrence of a finding of infringement or misappropriation, either to procure for Reseller the right to continue use of the Software, Work Products and KSS, or to replace the relevant portions of the Software, Work Products and KSS with other equivalent, non-infringing portions. If KM is unable to accomplish either of the options set forth in (d) above, KM shall cause the infringing portion of the Software, KSS and Work Products to be removed and KM will refund to Reseller the unused prepaid fees in the current Agreement Year for such infringing portion of the Software, Work Products and KSS. Notwithstanding anything to the contrary, KM shall have no obligation to Reseller to defend or satisfy any claims made against Reseller that arise from: (1) the use, marketing, licensing or disposition of the Software, Work Products and KSS other than as permitted by this Agreement; (2) the combination of the Software, Work Products and KSS with any product not furnished by KM to Reseller or Reseller’s Customer; (3) the modification or addition to of the Software, Work Products and KSS by any third party not approved of in writing by KM beforehand; or (4) the Reseller’s or its Customer’s business methods or processes. THIS SECTION STATES KM’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF RESELLER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE, WORK PRODUCTS AND KSS.
9.2 By Reseller. Reseller agrees to defend, indemnify and hold harmless KM against all liability and expense, including reasonable attorneys’ fees and costs, arising from or out of any breach or alleged breach of Reseller’s representations, warranties, duties or obligations under this Agreement, arising out of or in connection with any transactions related to this Agreement, or otherwise as a result of Reseller’s activities. This indemnification covers, but is not limited to, claims resulting from: (a) Reseller’s misrepresentations or unauthorized commitments, actions or promises; (b) promises made to Customers or prospective Customers by Reseller, its employees or agents with respect to KM, the Software or any other product or service marketed by Reseller; (c) Customers’ use of the Software in connection with any High Risk Use; or (d) breaches of Section 12.2 (Compliance With Laws). In the event of a claim where Reseller is obligated to indemnify KM, if Reseller agrees in writing to indemnify KM completely with respect to such claim and waives and releases any right to assert that it is not so obligated to indemnify KM, Reseller shall be entitled to control the defense of such claim and any settlement negotiations with respect to such claim; provided, that Reseller shall not agree to or enter into any settlement or compromise of such claim that involves any remedy other than the payment of money without the prior written approval of KM of the terms of such settlement or compromise, which approval shall not be unreasonably withheld. If Reseller assumes the defense of such claim, KM nevertheless reserves the right to directly participate in all aspects in the defense of, and any settlement or compromise negotiations with respect to, such claim, with separate counsel of its own choosing; with KM to bear and pay the fees and disbursements of such counsel in such case. If Reseller does not assume the defense of such claim in accordance with the provisions of this Section, KM shall retain and control all rights associated with such defense and all settlement or compromise negotiations.
- LIMITATION OF LIABILITY
10.1 IN NO EVENT SHALL KM OR ITS SUPPLIERS BE LIABLE TO RESELLER OR RESELLER’S CUSTOMERS FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, STATUTORY, SPECIAL OR PUNITIVE LOSSES OR DAMAGES, OR (B) DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFIT OR OPPORTUNITY, LOSS OF USE OR OTHER FINANCIAL LOSS, OR LOSS OF DATA OR THE COST OF RECOVERY OF SUCH DATA, IN EITHER CASE WHETHER IN CONNECTION WITH A CLAIM FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSE, TRANSFER OR USE OF THE SOFTWARE OR THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES, EVEN IF KM OR SUCH SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITIES OF SUCH LOSSES OR DAMAGES.
10.2 WITHOUT PREJUDICE TO SECTION 10.1 ABOVE, KM’S AND ITS SUPPLIERS’ TOTAL LIABILITY TO RESELLER, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL: (A) WITH RESPECT TO ALL CLAIMS PERTAINING TO SOFTWARE OR SERVICES PROVIDED TO A PARTICULAR CUSTOMER, NOT EXCEED THE FEES THAT HAVE BEEN ACTUALLY PAID BY RESELLER TO KM FOR THE TRANSACTIONS TO WHICH SUCH CLAIMS ARE RELATED; AND (B) IN THE AGGREGATE, WITH RESPECT TO ALL CLAIMS ASSERTED IN A PARTICULAR AGREEMENT YEAR, NOT EXCEED AN AMOUNT EQUAL TO ALL PAYMENTS RECEIVED BY KM FROM RESELLER UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING AGREEMENT YEAR.
- TERM AND TERMINATION
11.1 Term. Unless terminated in accordance with the relevant provisions of this Agreement, the initial term of this Agreement shall commence on the Effective Date and end on the next occurring December 31st, and shall be automatically renewed successively for additional period(s) of one (1) Agreement Year each.
11.2 Termination for Non-Renewal. Either party, in its sole discretion, may terminate this Agreement effective as of the last day of the then-current term, provided the terminating party gives written notice of termination to the other party not less than sixty (60) days prior to the expiration of the then-current term.
11.3 Termination for Breach. Either party may terminate this Agreement for any breach of the Agreement by the other party upon thirty (30) days written notice, provided that such termination will not become effective if the breaching party cures the breach prior to the expiration of such 30 days.
11.4 Immediate Termination by KM. KM may immediately terminate this Agreement upon providing written notice to Reseller without a right to cure, if: (a) Reseller breaches any of the provisions of Section 2, Section 12.2, Section 12.3 or Section 12.4 of this Agreement; (b) Reseller misappropriates or infringes any of KM’s intellectual property rights; (c) Reseller at any time fails to comply with Section 2.4,; or (d) Reseller makes a general assignment for the benefit of creditors or files a voluntary petition in bankruptcy or petitions for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against Reseller, or if a receiver or trustee is appointed for all or any part of the property and assets of Reseller.
11.5 Effect of Termination. Upon termination, all of Reseller’s rights granted under this Agreement shall terminate and Reseller shall immediately: (a) stop exercising any and all rights arising under this Agreement; (b) cease making any statements or representations that it is an authorized reseller of KM; (c) cease use of and either return or destroy all copies of Software, Documentation and Confidential Information of KM and in the event of destruction, shall promptly certify to KM in writing that such destruction has occurred; and (d) pay to KM all Subscription Fees, SaaS Fees, and Professional Services fees and any other fees and charges accrued or due for any period or event occurring prior to the effective date of the termination.
11.6 Customer Transition. Upon termination or expiration of this Agreement, Customers that have licensed the Software from Reseller are not required to terminate their respective agreement(s). Rather, KM shall be entitled, but not obligated, to directly interact with such Customers. At KM’s option, Reseller shall assign to KM or its authorized designee the contracts or agreements related to Software specified by KM, and Reseller shall cooperate with KM and perform all acts reasonably necessary to carry out this transition.
- MISCELLANEOUS.
12.1 Taxes. In addition to any other payments due under this Agreement, Reseller agrees to pay, and to indemnify and hold KM harmless from, any sales, use, excise, import or export, value added or similar tax or duty not based on KM’s net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof; and all governmental permit fees, license fees and customs and similar fees levied upon the delivery by KM of the Software, Technical Support Services or Professional Services or payments by Reseller to KM, which KM may incur in respect of this Agreement.
12.2 Compliance With Laws. Reseller shall comply with all applicable international, national, state, regional and local laws, ordinances, rules and regulations that apply to any aspect of Reseller’s performance of its obligations under this Agreement or its business generally. For purposes of clarification, such compliance includes Reseller obtaining any and all permits, licenses, authorizations or certificates that may be required in any jurisdiction or by any regulatory or administrative agency.
12.3 Export Restrictions. KM’s Software, Documentation, and technical data are subject to U.S. export jurisdiction, including the U.S. Export Administration Regulations (the “EAR”), and Reseller will comply with the EAR and end-user and destination restrictions by the U.S. and other governments. Reseller acknowledges and agrees that it has the responsibility to obtain any required licenses to export, re-export, or import Software, Documentation, technical data or any systems incorporating such Software, Documentation or technical data. Reseller shall not undertake activities with or export to government entities, organizations, or nationals, business entities or individuals who are citizens of or located in any territory or nation with respect to which the United States maintains any commercial activities sanctions program (for more information visit: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). Reseller shall not license, sell or otherwise transfer the Software, Documentation or technical date for any prohibited end uses under applicable laws and regulations.
12.4 Anti-Corruption. Reseller understands that KM is subject to the Anti-Corruption Laws, and Reseller will comply with and provide training to its employees regarding anti-corruption and anti-bribery laws that apply to Reseller. Reseller will not: (1) directly or indirectly, offer, promise, authorize, or pay anything of value (including but not limited to gifts, travel, hospitality, charitable donations or employment) to any Government Official or other party to improperly influence any act or decision of such official or other party related to any activities or transactions under this Agreement or for the purpose of promoting or improperly promoting the business interests of KM in any respect.; (2) engage in acts of fraud related to any activities or transactions under this Agreement; (3) use its relationship with KM to disguise or attempt to disguise the sources of illegally obtained funds; or (4) cause KM to violate the Anti-Corruption Laws.
12.5 Government End Users. When licensing the Software to the U.S. Government, Reseller shall identify the Software as a “commercial product,” as that term is defined at 48 C.F.R. 2.101, and more specifically shall identify such item as “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202 1 through 227.7202 4. Accordingly, the terms of this Agreement shall control and no other Federal Acquisition Regulation (“FAR”) or Defense Federal Acquisition Regulation Supplement (“DFARS”) clauses shall apply with respect to this Agreement or the Software as defined herein. KM shall make a good faith effort to mark the Software to provide notice to Reseller and Customers that the Software is subject to restrictions on use, disclosure, duplication, and modification, but the omission of such markings shall not affect the rights of any part with respect to the Software.
12.6 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
12.7 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
12.8 Third Party Beneficiary. Reseller acknowledges that third party software may be included with the Software and that such third parties are beneficiaries to this Agreement and this Agreement is enforceable by such third parties.
12.9 Independent Contractors. KM and Reseller are independent contractors under this Agreement and nothing in this Agreement authorizes a party to act as a legal representative or agent of the other party for any purpose or to commit the other party to any obligations with a third party, including, but not limited to, any obligations related to such other party’s employees. It is expressly understood that this Agreement does not establish a franchise relationship, partnership, principal-agent relationship or joint venture.
12.10 Governing Law; Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of South Carolina (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. The Court of Common Pleas, Pickens County, South Carolina and the Federal District Court, Greenville Division, District of South Carolina shall each have non-exclusive jurisdiction over disputes under this Agreement. Reseller consents to the personal jurisdiction of the above courts.
12.11 Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by either party will cause the non-breaching party irreparable damage for which recovery of money damages would be inadequate, and that the non-breaching party shall therefore be entitled to obtain timely injunctive relief to protect the non-breaching party’s rights under this Agreement in addition to any and all remedies available at law.
12.12 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
12.13 Use of Reseller’s Name. Reseller agrees that KM may use Reseller’s name and may disclose that Reseller is a licensee of KM products and services in KM advertising, promotion and similar public disclosures with respect to the Software and the KSS; provided, however, that such advertising, promotion or similar public disclosures shall not indicate, without Reseller’s written consent, that Reseller in any way endorses any KM products.
12.14 Assignment. Neither this Agreement nor any rights or obligations of Reseller hereunder may be assigned, sold, or otherwise transferred by Reseller in whole or in part (including by merger, reorganization, consolidation, sale of all or any portion of the assets of Reseller or change in control of Reseller) without the prior written approval of KM. For the purposes of this Section 19.15 (“Assignment”), a change in control means a change in the persons or entities who control fifty percent (50%) or more of the equity securities or voting interest of Reseller as of the date of this Agreement. KM’s rights and obligations, in whole or in part, under this Agreement may be assigned by KM. KM may exercise full transfer and assignment rights in any manner at KM’s discretion and specifically may sell, pledge, or otherwise transfer its right to receive fees under this Agreement. Reseller acknowledges that KM and/or any of its affiliates may fulfill any of KM’s obligations contemplated by this Agreement.
12.15 Survival. In the event of any expiration or termination of this Agreement, the provisions of Section 1 (“Definitions”), Section 2.3 (“Competitive Restriction”), Section 6 (“Reseller Purchases from KM”), Section 7 (“Confidential information; Data Security”), Section 8 (“Warranties”), Section 9 (“Indemnification”), Section 10 (“Limitation of Liability”), and Section 12 (“Miscellaneous”) shall survive and shall continue to bind the parties. Reseller shall be liable for payment to KM for all KSS, Professional Services and Technical Support rendered and all Software delivered prior to the effective date of termination of this Agreement.
12.16 Non-Solicitation; Non-Hire. During the term of this Agreement and for one (1) year after the termination of this Agreement, neither Reseller nor KM will: (a) solicit, for employment or for engagement as an independent contractor for the soliciting party or for any other third party, a person who is or was an employee of the other party or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or (b) hire or engage, directly or indirectly, as an employee or independent contractor a person who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party. Each violation of this provision by a party entitles such other party to liquidated damages (not a penalty) from the hiring or engaging party in an amount equal to Fifty Thousand Dollars ($50,000.00), and all costs associated with the collection of such liquidated damages, including but not limited to reasonable attorneys’ fees
12.17 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
12.18 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
12.19 Notices. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under this Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or last known business address of such party; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
12.20 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and proposals, oral or written, related to such subject matter. This Agreement may be amended or modified only by a written amendment signed by each party. All purchase orders submitted by Reseller to KM shall be subject solely to the terms of this Agreement, and any preprinted terms on any purchase order form used for the convenience of Reseller or Customers are objected to and shall not alter or amend the terms of this Agreement.
