- Definitions. For the purpose of this Agreement, certain terms have been defined below:
1.1 “Claim” means any claim, demand, suit, action, allegation, or any other proceeding.
1.2 “Content” means all content in text, graphic, animation, video, or any other form that is used in connection with the Hardware, Software, RMG Services, or Support provided under this Agreement.
1.3 “Customer(s)” means person/entity that acquires Products from Reseller for its internal business use within the Territory and not for resale.
1.4 “Direct Products” means Hardware, Software, and Services that are RMG-branded and offered for sale by RMG and RMG Content offered by RMG as set forth on Exhibit A
1.5 “Distribute,” “Distribution,” “Resale” or “Resell” means the offer or sale, lease, or licensing a Product in accordance with this Agreement.
1.6 “Documentation” means RMG’s manuals (printed or electronic) containing installation and/or operating instructions and technical specifications that RMG or its suppliers generally make available to users of Products, specifically excluding sales and marketing materials.
1.7 “Effective Date” means the effective date set forth on the cover page.
1.8 “FCA” means Free Carrier Alongside (INCOTERMS 2010) RMG’s facilities.
1.9 “Hardware” means a physical machine, device or component.
1.10 “Hardware Extended Warranty Plan” means a plan as described in Exhibit B-1 which available to a Reseller for an additional charge for up to three years from the date of Hardware purchase by which, if purchased, Customer can extend certain repair or replacement services from Reseller for Customer’s Hardware, and by which RMG supports Reseller’s efforts.
1.11 “Korbyt” is a RMG Software platform that is offered either as a software-as-a-service that a Customer may purchase a subscription license to access via the cloud (“Korbyt Cloud”) or as a on-premises Software license that may be installed on a Customer’s server (“Korbyt On-Premises”). Korbyt Cloud and Korbyt On-Premises are Direct Products.
1.12 “Named Accounts” are those customers who are serviced directly by RMG, and are excluded from the Authorization in Section 2.1, except as may be confirmed in writing by RMG.
1.13 “Open Source Software” means any free, open source or other publicly available software.
1.14 “Product Catalog” means the applicable RMG Product & Price List, or any other then-current version of the listing and description of Products, containing applicable pricing and ordering information for a Product or Products that may be provided in electronic format.
1.15 “Product(s)” means any Hardware, Software, RMG Services, RMG Content or Support provided under this Agreement, including Direct Products, which Reseller is authorized by RMG to Resell or, if applicable, to use for its internal purpose within the Territory.
1.16 “Reseller” means a person or entity that is authorized in writing by RMG to purchase for Resale, Distribute and Resell Products in accordance with RMG policies, procedures and terms and conditions
1.17 “Reseller Policies” means all RMG policies and programs applicable to Resellers as amended from time to time at RMG’s discretion.
1.18 “RMG Content” means all Content owned by RMG or licensed to RMG by third-parties.
1.19 “RMG MAX Products” means a RMG-branded LED Hardware. RMG MAX Products are Direct Products under this Agreement. RMG MAX Products are more fully described in the RMG MAX Addendum, attached hereto and incorporated herein, if applicable.
1.20 “RMG Services” or “Services” means services relating to data integration, programming, installation, configuration, training, implementation, and fulfillment of any support requirements to a Customer not delegated to or performed by Reseller, consulting or other professional services provided by RMG.
1.21 “Software” means computer programs in object code form or firmware and consisting of machine-readable instructions, its components, data, audio-visual content (such as images, text, recordings or pictures) and related licensed materials including all whole or partial copies. Software is owned or licensed by RMG, its parent, one of its subsidiaries or affiliates, and is copyrighted and licensed, not sold.
1.22 “Software Support” or “Support” means the support and maintenance services described in Exhibit B hereto and excludes support for Third-Party Products and Korbyt.
1.23 “Supported Configuration” means those minimum requirements or practices for the installation, maintenance and/or management of Software or Hardware provided under this Agreement, as defined by RMG.
1.24 “Territory” means the countries or geographic regions listed on Exhibit A, excluding Named Accounts.
1.25 “Third-Party Products” means Hardware and Software that are designed and manufactured by parties other than RMG, but offered for sale by RMG, as set forth on Exhibit A
1.26 “Unauthorized Reseller” means a person or entity that acquires products that are identical to RMG Products, or purported to be RMG Products, for resale and not for its internal business use and without permission or authorization in writing from RMG.
1.27 “Update” means a change in the Software that typically provides maintenance correction only and does not introduce new features or functionality, typically characterized as a change only in the number (two or more digits to the right of the decimal (e.g., 7.1 to 7.2).
1.28 “Upgrade” means a change in the Software that adds new features or functionality, and is typically characterized as major, involving a change to the left of the decimal (e.g., 8.x to 9.x), or minor, involving a change to the right of the decimal.
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- Reseller Authorization.
2.1 Authorization. Subject to the terms and conditions of this Agreement, RMG authorizes Reseller to purchase Products for Distribution in the Territory to Customers. Reseller is authorized to only Resell Products to Customers in the Territory, other than Named Accounts.
2.2 Non-Exclusivity. Reseller agrees and acknowledges that this Agreement does not grant any exclusive rights to Reseller in the Products or the Territory. RMG expressly reserves the right to contract with others, or to act on its own or through its affiliates, to market, sell, and sub-license and/or service the Products and RMG Services in the Territory.
2.3 Named Accounts. RMG has relationships with certain customers that require resources or a level of services that would normally exceed the capabilities of Resellers, or where commercial considerations or customer preferences mandate that Resellers not attempt to sell to such customers, and therefore Named Accounts may not be solicited by Reseller without the prior written agreement of RMG.
2.4 Tiered Reseller Levels. RMG reserves the right to differentiate among its Resellers based on whatever criteria advances RMG’s business interests, and to offer the resulting tiers of Resellers different pricing, market development support, timing of access to new products, or such other benefits as RMG determines in its sole discretion.
2.5 Reseller Portal. At such times as RMG maintains a website for the use of its Resellers that enables RMG to communicate with Resellers, RMG may limit, change, or discontinue such Reseller website at any time, and may limit or revoke the privileges to access and use such website of any Reseller at its sole discretion. Reseller shall strictly follow all security and authentication procedures for such website, shall not permit access or use by any persons other than its employees with a need for access in the course of performance of this Agreement.
- Purchase Orders and Delivery.
3.1 Issuance. During the Term (defined below), Reseller shall submit purchase orders for Products to RMG (each, a “Purchase Order”), specifying (i) the Products to be delivered to Reseller, (ii) the specific quantities of such Products, (iii) the desired shipment dates of such Products by RMG (the “Shipping Dates”) and (iv) the authorized representative of Reseller placing such Purchase Order. In the event of a conflict between any provision of this Agreement and any Purchase Order, this Agreement shall control, and no provision of any Purchase Order or other written or verbal communication between the Parties shall be effective to amend this Agreement except by signed, mutual agreement of the Parties.
3.2 Acceptance. No Purchase Order shall be binding upon RMG until accepted by RMG in writing; however, any failure by RMG to execute and return a Purchase Order shall not relieve Reseller of any obligation under this Agreement relating to Products provided by RMG to meet such Purchase Order. Partial shipment of an order shall not constitute acceptance of the full order, and RMG reserves the right, for any reason or for no reason whatsoever, to reject, by action or inaction, any Purchase Order received from Reseller.
3.3 Purchase Commitment. For each year during the Term, Reseller shall be required to purchase a minimum dollar amount of the Products as specified on Exhibit A (“Purchase Commitment”). In the event that Reseller fails to satisfy any Purchase Commitment, RMG may, in its sole discretion, adjust the purchase discounts received by Reseller pursuant to Section 6.1 or terminate this Agreement as provided in Section 9. The Purchase Commitment shall be reviewed annually and shall remain in effect until modified by RMG in its sole discretion. Only Products purchased directly from RMG will count toward the Purchase Commitment.
3.4 Changes and Cancellations. Reseller shall not cancel or make any changes to any Purchase Order, including any change to the requested method of shipment, packaging or place of delivery without the written consent of a duly authorized representative of RMG in each instance. On a case-by-case basis, RMG may, at its sole discretion, accept Purchase Order cancellation or reductions, subject to thirty percent (30%) or greater restocking fee, at RMG’s sole discretion. RMG may reject a Purchase Order at any time.
3.5 Delivery; Risk of Loss. Unless otherwise expressly agreed by the Parties, RMG shall arrange for shipment of the Products to Reseller; provided that any carrier selected by RMG to make such shipment shall not be deemed to be an agent of RMG, and RMG shall not have any liability for any loss or other damages relating to any shipment hereunder. Risk of loss or damage shall pass to Reseller, and delivery shall be deemed to be complete, upon tender of delivery of the Products to Reseller’s designated common carrier FCA RMG’s facilities or RMG’s manufacturer’s facility, as applicable. RMG will make reasonable efforts to meet scheduled Shipping Dates but will not be liable for its failure to meet any Shipping Date; provided that RMG is expressly authorized, at RMG’s discretion, to make early or partial deliveries of the Products to be delivered under any Purchase Order. Reseller is solely responsible for delivery to Customers, and RMG shall have no liability for any delivery to Customers.
3.6 Inspection; Acceptance. All Products furnished by RMG hereunder shall materially conform to the applicable published RMG specifications as of the time of delivery to Reseller and shall not be subject to any express or implied rights of acceptance or rejection. Notwithstanding the foregoing, Reseller may inspect Products that it receives, and shall promptly, but within five (5) days of delivery of the Products, give written notice to the common carrier and RMG of any claims of damages or shortages in respect of such Products. For the avoidance of doubt, in no event shall RMG be responsible for any loss, breakage or damage to Products arising after RMG’s delivery of the Products to the common carrier or Reseller.
3.7 Returns. Except with respect to Direct Products returned to RMG pursuant to the applicable warranty, there shall be no right granted to any person to return to RMG any Products purchased by Reseller hereunder other than as provided in this Agreement and its Exhibits.
3.8 Discontinuation. RMG may discontinue or replace a Product at any time.
- Reseller Responsibilities.
4.1 Generally. Reseller shall exercise diligent efforts to achieve sales of the Products in the Territory. Reseller shall employ a competent sales organization and provide appropriate facilities, tools, services and equipment to Resell the Products. Reseller shall perform or comply with the terms and conditions specified in any RMG Reseller Policies, discount or promotional program or as may otherwise be specified in writing by RMG and meet any specific eligibility or certification requirements that RMG may establish for a designated Product as well as comply with and meet or exceed all applicable industry and legal standards for sales and support of the Products Distributed by Reseller hereunder. Reseller will be responsible for customer satisfaction for all Reseller activities with its Customers. Reseller will promptly make available to RMG, documents that Reseller is
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required to maintain under this Agreement (including but not limited to, Customer information or executed Software licenses when applicable). Reseller assumes full responsibility for the marketing and sale of the Products.
4.2 Sales to Customers. Reseller shall sell the Products directly to Customers within the Territory and not to resellers, and any such sales made by Reseller to other Resellers, resellers or any party other than an end user Customer without the express written consent of RMG shall be deemed a material breach of this Agreement. Reseller shall be solely responsible for all aspects of the sale of the Products to Customers, including meeting delivery schedules and collecting payment. Applicable to each sale of the Products, except for Hardware (including RMG MAX Products) sales and Korbyt subscription license sales, Reseller shall obtain a written Customer acknowledgement and signature regarding RMG’s End User License Agreement (“EULA”), by way of accepting the EULA available at http://rmgnetworks.com/end-user-license-agreement/, or to any replacement or alternative end user license agreement or other written agreement, as may be noticed to Reseller by RMG. Reseller acknowledges that for each sale of a Korbyt subscription (Korbyt Cloud or Korbyt On-Premises), Reseller shall obtain a written Customer acknowledgement and signature regarding RMG’s Korbyt End User Subscription Agreement (the “Subscription Agreement”), by way of accepting the Subscription Agreement available at http://rmgnetworks.com/Korbyt-end-user-agreement/, or to any replacement or alternative written agreement, as may be noticed to Reseller by RMG. Such acknowledgement must include the following statements: (i) Customer’s acceptance of and agreement to the provisions of the EULA or Subscription Agreement (as applicable) and (ii) in the event that Customer has issued a purchase order applicable to the subject sale that contains terms or conditions inconsistent with the provisions of the EULA or Subscription Agreement (as applicable), such inconsistent terms and conditions shall be considered as null and void and without effect. A sale of Products shall not be considered as final absent Reseller’s full compliance with the provisions of this Section.
4.3 Compliance with Laws. Reseller shall comply at all times, at its own expense, with all applicable federal, state, county and local laws, ordinances, regulations and codes, including procurement of any required permits or certificates, as well as all non-U.S. laws, applicable to Reseller’s performance of this Agreement and shall at all times refrain from engaging in any illegal, unfair, unethical or deceptive business practices. Reseller acknowledges that any Products, Software or technical information disclosed hereunder are subject to U.S. and non-U.S. export laws and regulations and any use or transfer thereof must be made in compliance with such regulations. Reseller shall not transfer, directly nor indirectly, any Product, technical data or Software furnished under this Agreement to any country without first obtaining all required licenses or other governmental approvals and otherwise complying with all applicable export control laws.
4.4 Products from Third Parties. Any decision by Reseller or a Customer to acquire or use products from third parties (including non-RMG products purchased from Reseller) is, as between RMG and Reseller, Reseller’s sole responsibility, even if RMG provided assistance in identification or evaluation of such third-party products. RMG IS NOT RESPONSIBLE FOR, AND WILL NOT BE LIABLE FOR, THE QUALITY OR PERFORMANCE OF SUCH THIRD-PARTY PRODUCTS. FURTHERMORE, RMG IS NOT RESPONSIBLE FOR THE CONTINUED SUPPLY OR SUPPORT OF SAID THIRD PARTY PRODUCTS.
4.5 Other Instruments. Upon RMG’s request, Reseller shall execute and deliver any further legal instruments and perform any reasonable acts that are or may become necessary to effectuate the purposes of this Agreement.
4.6 Customer Information. Reseller agrees to provide RMG with information about Reseller’s Customer(s) and their purchases and installation of Product(s) as set forth in any Reseller Policies or as otherwise required by RMG.
5.1 Customer Support Plans. Reseller will offer to its Customers RMG Software Support plans consistent with the terms of Exhibit B-1. In addition, as to Hardware that is Direct Product (except for RMG MAX Products), Reseller may offer its Customers Hardware Extended Warranty Plans consistent with the terms of Exhibit B-1. Such plans will be priced in accordance with Section 6. Reseller shall offer its support plan as a contract between Reseller and Customer. A Customer must purchase either a Software Support Plan from Reseller for a minimum of one (1) year for on-premises perpetual licenses of Software; Support is included for subscription licenses of Korbyt. Such Support Plan may apply to an individual or group of RMG Product(s) in accordance with this Section 5 and the Exhibits referenced herein. Software covered by the Support Plan is eligible for certain software Updates and patches from RMG Technical Support from RMG.
5.2 Customer Support. Customers purchasing Software Support plans will receive any support specified in such plan directly from RMG on behalf of Reseller, and Reseller shall purchase Software Support Plans from RMG at the then-current Reseller list price for each plan. Reseller shall set the resale price of each plan to the Customer at its discretion. Technical support for the Third-Party Products shall be provided in accordance with the technical support offering and requirements of the applicable Third-Party Product manufacturer. Technical support for Korbyt shall be provided in accordance with the support offering set forth in the Subscription Agreement. Customers will receive such support directly from RMG on behalf of Reseller and Reseller will purchase such support from RMG at the then-current RMG list price for Resellers.
5.3 RMG Support. RMG makes Updates and Upgrades available to eligible Customers as a part of Support services. Customers are eligible to receive these only if they: (1) purchased a new installation or Upgrade and are under warranty coverage; (2) purchased a RMG Software Support Plan and are within the coverage period or (3) are in a subscription period for Korbyt. Customers are not eligible to obtain or install Updates and service packs if: (A) they have Software or Hardware that is out of warranty and without a Support Plan or Korbyt subscription; or (B) their Reseller is not authorised to sell the Products in question.
5.4 Supported Configuration. Where RMG identifies the Supported Configuration to Reseller, and, as applicable, its Customers, (see www.rmgnetworks.com/company/requirements ), Reseller is required to adhere to such stipulation. Failure to do so could result in RMG declining Technical Support because the customer installation is a “Non-Supported Configuration”.
5.5 Remote Access for Technical Support. Reseller shall arrange with Customers to provide direct RMG access, via VPN or other remote connection means, to a Customer’s Hardware or its computer system to which the Hardware is connected, or as applicable to Customer’s site when requested for troubleshooting purposes and for the delivery of Product licenses as required. Where a Customer refuses for valid reasons to allow remote access, Reseller and RMG shall make alternative arrangements for servicing that Customer, including where necessary onsite Services, provided that Customer is informed of and agrees to pay Reseller’s (and if applicable, RMG’s) charges for such alternative.
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5.6 Feedback. Reseller shall promptly notify RMG of any problems encountered regarding the function or operation of the Products and shall inform RMG of any resolutions or suggestions to address such problems or to otherwise modify, redesign or improve the Products. As between Reseller and RMG, all Feedback is the exclusive property of RMG, and Reseller hereby assigns to RMG all Feedback, at no cost to RMG. “Feedback” shall mean any and all oral and written test results, error data, reports or other information, feedback, testimonials, referrals, field trial reports, or materials made or provided by Reseller or any Customer, employee or agent of Reseller to RMG or RMG’s designates, to the extent relating to the Products, any other RMG Products (released or unreleased) or any other Confidential Information disclosed to Reseller by RMG hereunder, including without limitation, feedback on Product features and usability.
- Payment and Costs.
6.1 Prices and Discounts. Reseller shall exclusively determine the resale price of any Products or Services between Reseller and its Customers. Reseller shall pay RMG for the Products in accordance with RMG’s price list in effect at the time of acceptance of an applicable Purchase Order, in U.S. Dollars, subject to any discounts calculated by RMG. RMG shall have the right to alter its list prices and shall provide to Reseller written notification of such alteration, provided that previously accepted orders shall be unaffected by any such change. In the event of any price decrease by RMG, all orders placed by Reseller and accepted by RMG prior to the effective date of any price decrease shall continue to be controlled by the pricing in effect at the time that the order was accepted. Reseller shall be responsible for all freight and handling charges, including insurance. Reseller may make arrangement to pay for third-party freight pickup and delivery by nominating a preferred carrier and method at least five (5) business days in advance of the applicable purchase order, subject to RMG’s approval. Each Party is responsible for its own expenses in meeting its obligations under this Agreement.
6.2 Invoices. RMG shall issue invoices for the Products (except RMG MAX and Korbyt) at the time of shipment. RMG will issue invoices for the RMG MAX Products in accordance with the RMG MAX Addendum RMG will invoice Reseller for Korbyt subscription fees annually in advance in accordance with the Purchase Order. Any down payment required by RMG shall be invoiced upon receipt by RMG of the relevant Purchase Order. Reseller shall pay all fees due within thirty (30) days after the date of the applicable invoice.
6.3 Late Payments; Disputed Amounts. If the Reseller fails to make payment in full on the due date, the whole of the balance of the price of the Purchase Order then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to RMG, RMG shall be entitled to: (i) terminate this Agreement or any Purchase Order or suspend any further deliveries of Product(s) or Support Plans (whether ordered under the same Purchase Order or not) to the Reseller; or (ii) charge interest on the amount outstanding from the due date to the date of receipt by RMG (whether or not after judgment), at the annual rate of 4% above the base rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment. RMG reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. All sums payable to RMG under this Agreement shall become due immediately on its termination, despite any other provision of this Agreement. This Section is without prejudice to any right to claim for interest under the law, or any right under the Agreement. Notwithstanding the foregoing, in the event that any such dispute under this Section 6 is determined to be invalid, all unpaid amounts under such invoice, plus interest as provided in this Section 6.3, shall be immediately due and payable..
6.4 Taxes. Any taxes, duties, excises or tariffs imposed on amounts due under this Agreement shall be the responsibility of Reseller. Reseller shall indemnify, defend and hold RMG harmless for any failure by Reseller to timely remit any taxes for which it has responsibility pursuant to this Section 6.4. If RMG is required by law to directly pay any such taxes, fees, excises, tariffs or other charges, Reseller shall promptly reimburse RMG upon RMG’s presentation to Reseller of documentation evidencing such payment.
- Proprietary Rights.
7.1 RMG’s Rights. Reseller acknowledges and agrees that (a) RMG owns, without limitation, all right, title and interest to all patent, copyright, trademark, trade name, trade secret and other intellectual property rights relating to the design, manufacture, operation or service of the Direct Products, (b) the applicable manufacturer owns, without limitation, all right, title and interest to all patent, copyright, trademark, trade name, trade secret and other intellectual property rights relating to the design, manufacture, operation or service of the Third-Party Products, (c) and that Reseller shall not, by virtue of its purchase of the Products or otherwise, obtain any right, title or interest in or to such intellectual property rights other than as expressly authorized and only for the specific purposes set forth herein. Reseller acknowledges that the purchase of any Products by Reseller under this Agreement shall not convey any license, expressly or by implication, to manufacture, duplicate, or otherwise copy or reproduce any of the Products. Reseller shall take all necessary steps, as determined by RMG in its sole discretion, to inform its Customers of RMG’s and manufacturer’s rights pursuant to this Section 7.1 and to ensure compliance hereunder and shall promptly notify RMG upon Reseller’s discovery of any infringement of RMG’s or manufacturer’s proprietary rights.
7.2 License. Reseller shall promptly obtain each Customer’s explicit agreement to either (i) RMG’s EULA pursuant to the provisions of Section 4.2 above for each Customer ordering Direct Products (except for Korbyt or Hardware); (ii) RMG’s Subscription Agreement pursuant to the provisions of Section 4.2 above for each Customer ordering Korbyt Cloud or Korbyt On-Premises; or (iii) the applicable manufacturer’s standard end-user license to each Customer ordering Third-Party Products, and ensure that all of the licenses are entered into between Customer and RMG or such manufacturer, as applicable. Reseller shall not, and shall not permit any Customer or third party to, decompile, reverse-engineer or copy, in whole or in part, the object code. Reseller shall not make available to any third party any source code versions of any Product. Reseller agrees to abide by any additional restrictions placed upon the use and distribution of the Third-Party Products made by such Third-Party Product’s manufacturer.
7.3 Proprietary Marks. For purposes of this Agreement, “Marks” means any trade name, trade or service marks, logos, graphical devices, or Uniform Resource Locators (“URL”) in text or numeric form owned or used on or in association with the Products and Services by RMG. On all copies of the Products, Reseller shall reproduce all copyright notices or other proprietary Marks in a form approved by RMG. Reseller may not, without the prior written consent of RMG, co-brand or otherwise add any branding or marking to the Products or their packaging or in any advertising or promotional materials, unless effected pursuant to RMG’s then-current branding and marketing guidelines and with the prior written consent of RMG. Reseller may, during the Term, use the applicable trademarks and trade names for the Products as provided to Reseller by RMG solely in furtherance of the sale, advertisement or promotion of the Products by Reseller, and RMG hereby grants to Reseller a non-exclusive, non-transferable, revocable license to use such provided trade names and trademarks in the normal course of marketing and selling the Products hereunder and strictly in accordance
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with RMG’s then-current guidelines for such use; provided, however, that Reseller agrees not to use RMG’s name in any manner which would misrepresent the relationship between Reseller and RMG. In the event that RMG changes or ceases use of any of its Marks licensed to Reseller, Reseller shall promptly remove and, if applicable, replace such mark upon receipt of notice from RMG of such change or cessation. Upon the earlier of (i) RMG’s written notice to Reseller or (ii) the termination of this Agreement, the license granted under this Section 7.3 shall immediately terminate and Reseller shall promptly (A) cease use of all such trade names and trademarks; (B) return or destroy, at RMG’s option, all marketing materials provided by RMG to Reseller; and (C) remove and destroy any other material identifying Reseller as a Reseller of RMG’s products or otherwise displaying or using any such trade names or trademarks.
7.4 Limitation of Government Rights. If the Products, or any portion thereof, are to be provided to a government agency or acquired pursuant to a government contract or funds, Reseller shall ensure that RMG’s standard end-user license or Subscription Agreement (as applicable) is incorporated into any relevant proposals and contracts. If the Products are being provided to, or acquired by, a government other than the United States, Reseller shall ensure that RMG’s rights in the Products are protected to the maximum extent possible, but in no event less than the standard of protection that RMG would be afforded under US laws and regulations. Compliance with this Section 7.4, including the fulfillment of any governmental requirements to obtain such protection, is Reseller’s sole responsibility and obligation, and in no event shall RMG be obligated to take any action to be afforded such protection.
7.5 Enforcement. In the event of any prosecution of any litigation for violation or infringement of RMG’s rights, including but not limited to the enforcement of RMG’s rights in Software, Reseller shall provide to RMG such assistance as may be reasonably required.
- Record Keeping and Audits.
8.1 Records. Reseller shall keep full, true and accurate records and accounts, in accordance with generally accepted accounting principles, of each Product purchased and Resold, of all Software licensed, of all Korbyt subscriptions licensed, and of all Products and Software used to provide support, including information regarding compliance with the terms of this Agreement and any Reseller Policies. RMG may from time to time audit the information that Reseller is obligated to provide to RMG under this Agreement and otherwise verify Reseller’s compliance with the terms and conditions of this Agreement and any Reseller Policies. At RMG’s option, any audits conducted by RMG pursuant to this Section 8 may be conducted by personnel of RMG or its affiliates or agents. Reseller shall reasonably cooperate with RMG and any RMG affiliates or agents conducting the audits and will make the information and resources reasonably required to conduct the audit available on a timely basis. RMG shall give Reseller reasonable written notice of any audit, but in no event less than five (5) days, prior to such audit. RMG shall conduct such audits during normal business hours for the applicable location. Unless otherwise agreed in writing by the Parties, Reseller shall use commercially reasonable efforts to provide access to information or documentation it is obligated to provide under this Agreement within five (5) days of Reseller’s receipt of RMG’s request for such information or documentation. RMG will pay all costs and expenses associated with any audit initiated by RMG; provided, however, Reseller will reimburse RMG for all of RMG’s reasonable expenses of such audit if as a result of such audit: (1) Reseller is found to be in breach of this Agreement, or (2) RMG discovers Reseller’s under payment of fees by more than five percent (5%). Reseller will immediately, but in no event more than thirty (30) days after discovery of an under payment, pay to RMG the amounts corresponding to such under payment together with simple interest at a rate equal to the higher of one percent (1%) per month or the highest rate permitted by applicable law.
8.2 Cooperation. Reseller shall offer its full cooperation to RMG and provide all information requested for licensing, reporting, and recordkeeping requirements (to include but not limited to Customer information prior to the commencement of any resale) to allow RMG to meet all trade compliance requirements. RMG may directly contact any Customer at any time in order to verify and/or inform Customers about Resellers’ compliance or non-compliance with Agreement and the Reseller Policies.
- Term and Termination.
9.1 Term. This Agreement shall be effective as of the Effective Date and shall remain in effect for the initial term as set forth on the cover page. If no term is set forth on the cover page, then the initial term shall be one (1) year. Thereafter, this Agreement shall automatically renew for subsequent one-year terms, unless either Party provides written notice to the other of its desire not to renew no later than thirty (30) days prior to the expiration of the then-current term (collectively, with the initial period, the “Term”). The termination or expiration of this Agreement will not terminate existing, RMG-accepted Purchase Orders for Korbyt subscription licenses, each of which will survive until the end of their applicable subscription terms, and the terms and conditions of this Agreement and the Subscription Agreement will continue to apply to such Purchase Orders.
9.2 Termination for Convenience. Either Party may terminate this Agreement for convenience upon thirty (30) days written notice to the other; provided, however, that such termination shall not affect Purchase Orders placed and accepted prior to the effective date of termination. In the event of any termination by Reseller pursuant to this Section 9.2, Reseller shall pay a termination fee equal to the balance of any remaining Purchase Commitment under Section 3.3 for the quarter in which such termination becomes effective.
9.3 Termination for Insolvency. Each Party may immediately terminate this Agreement by written notice to the other Party if the other Party (i) suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; ; (ii) commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; (iii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other Party; (iv) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party; (v) the holder of a qualifying floating charge over the assets of the other Party has become entitled to appoint or has appointed an administrative receiver; (vi) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other Party; (vii) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days; or (viii) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this Section 9.3.
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9.4 Termination for Breach. Either Party may terminate this Agreement, and any Purchase Order hereunder, immediately upon written notice to the other Party in the event that the other Party is in material breach or default under this Agreement or any Purchase Order, and fails to remedy such breach within thirty (30) days of notice thereof from the non-breaching Party, including, without limitation, where RMG is the non-breaching Party, any failure by Reseller to fulfill its payment obligations pursuant to Section 6 or to maintain its Purchase Commitment pursuant to Section 3.3 or if Reseller engages in any conduct which, in RMG’s sole discretion, poses a business risk to RMG. In the event of any termination by RMG pursuant to this Section 9.4 for Reseller’s failure to maintain its Purchase Commitment, such termination shall be deemed a termination for convenience by Reseller pursuant to Section 9.2, and Reseller shall pay the applicable termination fee is respect thereof.
9.5 Obligations Upon Termination. In the event of any expiration or termination under this Section 9, Reseller shall accept delivery for Products and promptly pay for all amounts owed under any Purchase Order accepted by RMG prior to the effective date of termination. Should RMG terminate this Agreement pursuant to Section 9.3 or Section 9.4, Reseller’s acceptance of such Products shall be without the benefit of any inspection and acceptance rights arising under Section 3.6 and all amounts owed by Reseller hereunder shall become immediately due and payable.
9.6 Inventory Repurchases. Should RMG terminate this Agreement pursuant to Section 9.3 or Section 9.4, RMG may, at its sole option, repurchase all new, unused, saleable condition Products purchased by Reseller under this Agreement at the then-current discounted price applicable to such Products. Reseller shall ship such Products, at RMG’s cost and expense, to an address specified by RMG. The risk of loss in respect of such repurchased Products shall pass to RMG at such time as the Products arrive and are accepted by RMG at such address.
9.7 Survival. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, Sections 1, 5.6, 6, 7, 8, 9.7, 9.8, 10, 11.6, 12.4, 13, 14, and 15, shall survive any termination or expiration of this Agreement and continue in full force and effect.
9.8 No Liability. RMG shall not be liable to Reseller for any damages or liabilities whatsoever, including, without limitation, damages for lost profits or loss of business, either present or future, arising out of the termination of this Agreement for any reason or for no reason whatsoever.
10.1 Definition of Confidential Information. “Confidential Information” shall mean all information, technical data or know-how, in whatever form, which the disclosing Party (the “Discloser”) transmits to the receiving Party (the “Recipient”) in any manner, even if disclosed to Recipient prior to the Effective Date, relating to the properties, business activities or operations of Discloser, including, without limitation, (i) all information of Discloser disclosed in writing or other tangible form and that is plainly marked by Discloser as “confidential” or “proprietary” or other similar wording, including, without limitation, all customer data and information, trade secrets, patents, specifications, know-how, designs, drawings, sketches, models, notes, documents, samples, reports, plans, forecasts, methods of doing business, current or historical data, computer software and programs, codes and all other technical, financial or business information; (ii) all information of Discloser that is not known to the public, without regard to the form in which such information is disclosed; (iii) any and all of the foregoing which is prepared by Recipient or its employees or agents that contains, reflects or is based upon, in whole or in part, any of the Confidential Information; (iv) the contents of discussions and negotiations between the Parties concerning this Agreement, and the content of the Agreement between the Parties itself; (v) Feedback; and (vi) any information or materials that, under the circumstances of disclosure, would reasonably be expected or understood to be confidential. Confidential Information shall not include information that Recipient can demonstrate: (A) is or (through no improper action or inaction by Recipient or any affiliate, agent, consultant or employee of Recipient) becomes part of the public domain; (B) was lawfully in the possession of or known by Recipient on a non-confidential basis at the time of disclosure by Discloser; (C) was received on a non-confidential basis from a third party that to the Recipient’s knowledge had a lawful right to disclose such information; or (D) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
10.2 Non-Disclosure and Use. Recipient shall not use the Confidential Information of Discloser for any purpose other than in furtherance of this Agreement. Recipient shall not disclose Discloser’s Confidential Information to any person or entity other than Recipient’s employees, agents, advisors and representatives with a need to know the Confidential Information in order to carry out the purpose of this Agreement and who agree to be bound by Recipient’s obligations under this Agreement with regard to nondisclosure and use of such Confidential Information (each a “Representative”). Recipient agrees that it (and that its employees, affiliates, agents or Representatives) shall not reverse-engineer, decompile or disassemble any part of, or remove any proprietary marking from, Discloser’s Confidential Information.
10.3 Care. Recipient shall use at least the same degree of care to safeguard and to prevent disclosure to third parties of Confidential Information as it employs to safeguard its own information of a similar nature, but in no event less than reasonable care. Recipient shall promptly (i) notify Discloser in writing of the details and circumstances of any unauthorized disclosure, misuse or misappropriation of any of Discloser’s Confidential Information (an “Unauthorized Use”) which may come to Recipient’s attention; (ii) use best efforts to rectify or cure such Unauthorized Use and retrieve any such disclosed Confidential Information; and (iii) use best efforts to provide assistance to and cooperate with Discloser to rectify or cure such Unauthorized Use and to prevent further Unauthorized Use.
10.4 Mandatory Disclosure. If Recipient becomes legally compelled to disclose any of Discloser’s Confidential Information, Recipient shall, if lawfully permitted to do so, promptly notify Discloser of such requirement before any disclosure is made so that Discloser may seek a protective order or other appropriate remedy limiting disclosure or use of such information; and (ii) provide reasonable assistance to Discloser to seek such remedy at Discloser’s expense. If such protective order or other remedy is not obtained, Recipient may furnish only that portion of such Confidential Information that, in the written opinion of its legal counsel, it is legally required to disclose, and Recipient agrees to make commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information.
10.5 Ownership. Discloser will retain the title and full ownership rights to its Confidential Information. No license, express or implied, in the Confidential Information is granted to Recipient other than to use the information in the manner and to the extent authorized herein.
10.6 Return of Confidential Information. Upon the written request of Discloser, all of Discloser’s Confidential Information in tangible form shall be, at Discloser’s sole discretion, either promptly returned to Discloser or promptly destroyed by Recipient, and in either case not retained by
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Recipient or its affiliates in any form. Notwithstanding anything to the contrary contained herein, Recipient’s legal department may retain an archival copy of all or any portion of Discloser’s Confidential Information to the extent required by applicable law or regulation or for the purpose of defending or prosecuting claims relating to this Agreement. The rights and obligations of the Parties regarding the non-disclosure and use of Confidential Information exchanged under this Agreement will survive any return, retention or destruction of any Confidential Information.
10.7 Remedies. The Parties acknowledge and agree that money damages would not be a sufficient remedy for any breach of this Section 10, and that any such breach may cause immediate and irreparable harm. Accordingly, each Party agrees that, in the event of any breach or threatened breach of this Section 10 by Recipient, Discloser shall be entitled, in addition to all remedies otherwise available at law or in equity, to seek injunctive relief and specific performance (without the necessity of proving actual damages or posting a bond, cash or otherwise.
11.1 RMG Warranties. RMG warrants (i) the Direct Products (except for RMG MAX Products and Korbyt) purchased by Reseller in accordance with the applicable limited warranty and warranty period, attached as Exhibit C, (ii) RMG MAX Products purchased by Reseller in accordance with the RMG MAX Addendum, and (iii) Korbyt Cloud and Korbyt On-Premises in accordance with the limited warranty set forth in the Subscription Agreement; provided, however, that such warranties shall apply only to Direct Products that are purchased by a Customer from Reseller. Such limited warranties are non-transferable and shall not apply to used or refurbished products. The warranties in this Section 11 shall apply only in the Territory. RMG does not guarantee the results of any of its marketing plans or programs.
11.2 Reseller Warranties. Reseller shall be responsible for any warranty of any nature offered to Reseller’s Customers with obligations different from those rights and remedies described in the Exhibit C, the RMG MAX Addendum, or the Subscription Agreement, as applicable. RMG’s sole obligation to Reseller are the warranties in Exhibit C, the RMG MAX Addendum, and the Subscription Agreement, as applicable.
11.3 Third Party Product Warranties. For Third-Party Products, RMG provides no warranty, and the only warranty would be the applicable limited warranty for the Third-Party Products in effect at the time of shipment or as otherwise provided by such Third-Party Product’s manufacturer.
11.4 Warranty Procedures. RMG or its authorized service center will test returned Direct Products. If such Products are found to perform as warranted, they will return the Direct Products to Reseller and Reseller will pay to RMG all shipping costs and the no trouble found fee as set forth in the warranty and/or any Reseller Policies.
11.5 Out-of-Warranty Product Repairs. RMG’s authorized repair center shall independently provide Resellers with out-of-warranty repair services that are available at the time when requested and at its then current prices.
11.6 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, RMG PROVIDES THE PRODUCTS ON AN “AS IS,” “WHERE IS” BASIS AND RMG AND ITS AFFILIATES MAKE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. FURTHER, RMG, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE PRODUCTS, SUPPORT, SERVICES, OR THIRD-PARTY MATERIALS WILL MEET RESELLER’S, OR ANY THIRD PARTY’S, REQUIREMENTS; OR WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE. WITHOUT LIMITING THE FOREGOING, RMG, ITS AFFILIATES, AND ITS LICENSORS MAKE NO, AND DISCLAIM ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD-PARTY MATERIALS, INCLUDING BUT NOT LIMITED TO ANY THIRD-PARTY SOFTWARE AND OPEN SOURCE SOFTWARE. RMG AND ITS AFFILIATES MAKE NO REPRESENTATION AS TO THE INTEROPERABILITY OF THE PRODUCTS OR DELIVERABLES WITH ANY THIRD PARTIES’ SYSTEMS OR SOFTWARE. UNDER NO CIRCUMSTANCES WILL RMG OR ITS AFFILIATES BE LIABLE FOR ANY LOSSES RESULTING FROM A CAUSE OVER WHICH RMG DOES NOT HAVE CONTROL, INCLUDING, WITHOUT LIMITATION, A FORCE MAJEURE EVENT, OR FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATIONS LINES, NETWORK CONNECTIVITY, TELEPHONE OR OTHER INTERCONNECT PROBLEMS, UNAUTHORIZED ACCESS, THEFT OR OPERATOR ERROR, OR RESELLER’S FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT. IN NO EVENT SHALL RMG OR AFFILIATES HAVE ANY LIABILITY FOR ANY PRODUCTS, SERVICES OR SUPPORT USED FOR AVIATION, COMBAT, MEDICAL, LIFESAVING, LIFE-SUSTAINING OR NUCLEAR APPLICATIONS.
- Representations. As of the Effective Date and as of the date of each Purchase Order hereunder:
12.1 Formation; Authority. Each Party represents, warrants, and covenants that it is duly formed, validly existing and in good standing under the laws of the state of its formation; it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement and the applicable Purchase Order; the execution, delivery and performance of this Agreement and the applicable Purchase Order have been duly authorized by all requisite corporate action; and that this Agreement and the applicable Purchase Order constitutes the legal, valid and binding agreement of the Parties, enforceable against it in accordance with its terms.
12.2 Authorizations. Reseller represents, warrants, and covenants that it has obtained all authorizations, approvals, consents or permits required to perform its obligations under this Agreement under all applicable laws and regulations.
12.3 Experience; Independent Contractor. Reseller represents, warrants, and covenants that it is an experienced user and Reseller of visual communications systems and solutions and is familiar with the Products; it is an independent contractor without any authority to act for or on behalf of RMG, and all representations made, and agreements executed by Reseller with any third party shall be Reseller’s sole responsibility.
12.4 No Corruption. Reseller represents, warrants, and covenants that it is fully aware of and will comply with, and in the performance of its obligations to RMG will not take any action or omit to take any action that would cause either Party to be in violation of, (i) U.S. Foreign Corrupt Practices Act, The Bribery Act 2010, or, (ii) any other applicable anti-corruption laws, or (iii) any regulations promulgated under any such laws. Reseller represents, warrants and covenants that neither it nor any of Reseller’s employees or agents is an official or employee of any government (or any department, agency or instrument of any government), political party, state owned enterprise or a public international organisation such as the
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United Nations, or a representative or any such person (each, an “Official”). Reseller further represents, warrants and covenants that, to its knowledge, neither it nor any of its employees has offered, promised, made or authorised to be made, or provided any contribution, thing of value or gift, or any other type of payment (“Benefit”) to, or for the private use of, directly or indirectly, any Official for the purpose of influencing or inducing any act or decision of the Official to secure an improper advantage in connection with, or in any way relating to, (i) any government authorisation or approval involving RMG, or (ii) the obtaining or retention of any business advantage by RMG. Reseller further represents, warrants and covenants that it will not in the future offer, promise, make or otherwise allow to be made or provide any such payment and that it will take all lawful and necessary actions to ensure that no such payment is promised, made or provided in the future by any employee of Reseller. Reseller further represents, warrants and covenants that neither Reseller nor Reseller personnel offered or conferred any Benefit to any person or solicited or accepted any Benefit, to induce or attempt to induce a violation of any duty of fidelity to an employer, client, or other principal, or to act contrary to a fiduciary duty. Any breach of this Section 12.4 shall be deemed to be a material breach of this Agreement.
12.5 No Inducements. Reseller represents, warrants, and covenants that neither it, nor any of its employees, have provided or offered, or will provide or offer, any illegal or improper bribe, kickback, payment, gift or anything of value (but excluding any reasonable and ordinary business entertainment or gifts of an unsubstantial value, that are customary in local business relationships and permitted by applicable law) to RMG, its directors, officers, employees and representatives, or any Customer, in connection with this Agreement, any Purchase Order or any sale of Products.
13.1 Indemnification by Reseller. Reseller will indemnify, defend and hold harmless RMG, its affiliates, and each of their respective officers, directors, employees, agents, successors and assigns (each a “RMG Indemnitee”) from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) incurred by any RMG Indemnitee, directly or indirectly, arising out of any Claim related to or otherwise made in connection with (i) the possession, use, selection, delivery, resale, purchase or operation of the Products by Reseller or any Customer; (ii) the willful misconduct or grossly negligent acts or omissions of Reseller or any of its subcontractors or Customers; (iii) any modification or supplementation by Reseller of the warranties made by RMG pursuant to Section 11; (iv) Reseller’s breach of this Agreement or any of RMG’s policies and procedures referenced herein, including, without limitation, any failure by Reseller to comply with its obligations pursuant to Sections 7, 8, or 10; (v) Reseller’s breach of its representations set forth in Section 12; or (vi) the Excluded IP Claims (defined below); or (vii) Reseller’s use of or combination of RMG’s Marks licensed to it pursuant to Section 7 in a manner that infringes upon any third party’s intellectual property rights, to the extent that the infringement would not have arisen absent such use or combination by Reseller or otherwise in violation of this Agreement, provided that the RMG (i) promptly notifies Reseller in writing of such Claim; (ii) grants Reseller sole control over the defense and settlement thereof pursuant to Section 13.3; and (iii) cooperates with any request by Reseller for assistance in defending such Claim.
13.2 Indemnification by RMG. RMG will indemnify, defend and hold Reseller harmless from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) arising from: (A) a Claim resulting from the willful misconduct or grossly negligent acts or omissions of RMG, or (B) a third party Claim that a Direct Product, except for RMG Content licensed to RMG by third parties, infringes a United States patent or copyright, provided that Reseller (i) promptly notifies RMG in writing of such Claim; (ii) grants RMG sole control over the defense and settlement thereof pursuant to Section 13.3; and (iii) cooperates with any request by RMG for assistance in defending such Claim. Should any such Direct Product become, or in RMG’s opinion be likely to become, the subject of such a Claim, RMG may, at its option and expense, (i) procure for Reseller the right to make continued use thereof, whether through obtaining a license or some other means; (ii) replace or modify such Product so that it becomes non-infringing; or (iii) request return of the Product by Reseller and refund the price paid by Reseller for such Product, less straight line depreciation based on a three (3) year useful life. RMG shall have no liability under this Section 13.2 for any alleged infringement based, in whole or in part, on (A) any combination of the Products with Reseller or third party products; (B) the use of the Products for a purpose or in a manner for which a Product was not intended or designed; (C) use of an older version of any Product when use of a newer version would have been non-infringing; (D) any modification made to the Products without RMG’s express written approval; (E) modifications made by RMG pursuant to Reseller’s instructions or request; (F) any intellectual property right owned or licensed by Reseller, any of its subsidiaries or affiliates, or any Customer; or (G) compliance with designs, plans, or specifications of Reseller or any Customer (each and collectively, the “Excluded IP Claims”). THE FOREGOING CONSTITUTES RMG’S ENTIRE LIABILITY AND RESELLER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT CLAIM ARISING HEREUNDER.
13.3 Indemnification Procedures. Promptly after receipt by a RMG Indemnitee or Reseller, as applicable (each, an “Indemnitee”) of notice of actual or threatened commencement of any Claim of which an Indemnitee is entitled to indemnification under this Section 13, Indemnitee shall notify the indemnifying party (in such instance, the “Indemnitor”) of such Claim. No delay or failure to so notify Indemnitor shall relieve Indemnitor of its obligations under this Agreement except to the extent that Indemnitor has suffered material prejudice by such delay or failure. Within thirty (30) days following receipt of notice from the Indemnitee relating to any such Claim, but no later than fifteen (15) days before the date on which any response to a complaint or summons is due, if applicable, Indemnitor shall notify Indemnitee that Indemnitor shall assume control of the defense and settlement of such Claim (a “Notice of Assumption”). If Indemnitor delivers a Notice of Assumption within the required notice period, Indemnitor shall assume control (subject to the Indemnitee’s right to participate at its cost and expense) over the defense and settlement of the Claim and diligently defend the Claim; provided, however, that (i) Indemnitor shall keep Indemnitee fully apprised as to the status of the defense; and (ii) Indemnitor shall obtain the prior written approval of Indemnitee before entering into any settlement of such Claim asserting any liability against Indemnitee, imposing any obligations or restrictions on the Indemnitee, involving any admission on the part of the Indemnitee, ceasing to defend against such Claim or otherwise adversely impacting Indemnitee. If Indemnitor does not deliver a Notice of Assumption within the required notice period, or if, after the assumption of the defense by Indemnitor, Indemnitor fails to defend the Claim diligently to the Indemnitee’s reasonable satisfaction, the Indemnitee shall have the right to defend the Claim in such manner as it may deem appropriate. Indemnitor shall promptly reimburse the Indemnitee for all reasonable costs and expenses incurred by the Indemnitee, including attorney’s fees, in connection therewith to the full extent of Indemnitor’s indemnification obligation under this Section 13.
- Limitation of Liability.
14.1 EXCEPT FOR ANY BREACH OF SECTION 7 OR SECTION 10, IN NO EVENT SHALL EITHER PARTY (OR ITS SUPPLIERS OR AFFILIATES) BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY PUNITIVE, SPECIAL, INDIRECT,
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CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, LOST PROFIT, LOST SALES OR REVENUE, BUSINESS INTERRUPTION OR OTHER SIMILAR DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVENT OF FAILURE OF AN EXCLUSIVE REMEDY. EXCEPT FOR AMOUNTS ARISING UNDER RMG’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 HEREIN, IN NO EVENT SHALL RMG’S TOTAL AGGREGATE LIABILITY FOR DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EXCEED THE LESSER OF (A) THE AMOUNT PAID BY RESELLER TO RMG UNDER THE APPLICABLE ORDER GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM; OR (B) $250,000.00. IN NO EVENT WILL RMG HAVE ANY LIABILITY ARISING OUT OF ANY THIRD-PARTY MATERIALS, INCLUDING BUT NOT LIMITED TO ANY THIRD-PARTY SOFTWARE AND ANY OPEN SOURCE SOFTWARE. ANY CLAIMS BROUGHT HEREUNDER OR OTHERWISE MUST BE BROUGHT WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION AROSE.
14.2 Force Majeure. RMG shall not be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is attributable to a force majeure event, including without limitation: fires, floods, riots, work stoppages, weather, acts of God, war, terrorism or delays arising from compliance with any law or government regulation or other similar causes beyond its control and without the fault or negligence of RMG or its subcontractors.
15.1 Notices. All notices and other communications shall be in writing and shall be deemed to have been given if delivered personally, or three days after mailing by certified mail (return receipt requested) or overnight carrier (i) if to RMG, to the address set forth above; (ii) if to Reseller, to the address on the cover page; or (iii) to such other address as either Party may designate by providing notice in accordance with this Section 15.1.
15.2 Assignment; No Third-Party Beneficiaries. RMG may assign this Agreement without the prior consent of Reseller. Reseller may not assign this Agreement without the prior consent of RMG. Any permitted assignee or successor of a Party’s rights and obligations under this Agreement shall be bound by all terms and conditions of this Agreement. Any attempted assignment in violation of the foregoing shall be void and of no effect. This Agreement shall not be deemed to confer any rights or remedies upon any person or entity not a party hereto.
15.3 Independent Contractor. The relationship between the Parties under this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to create a relationship of employer and employee or principal and agent between Reseller and RMG nor shall it be deemed a partnership, joint venture or fiduciary relationship for any purpose. Reseller’s personnel shall serve under the exclusive direction and control of Reseller and shall not be deemed to be employees or agents of RMG. Reseller shall be solely responsible for payments of all such personnel’s compensation, including wages, benefits, taxes, workers’ compensation, disability, and other insurance and the withholding or deduction of such items to the extent required by applicable law.
15.4 Governing Law; Jurisdiction; Waiver of Immunity. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including without limitation disputes or claims) are governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
15.5 Interpretation. This Agreement has been negotiated by the Parties and their respective counsel and shall be interpreted in accordance with its terms and without any strict construction in favor of or against either Party. The section headings in this Agreement are included for convenience only and shall not limit or otherwise affect the interpretation of any of the terms or provisions herein.
15.6 Entire Agreement; Amendment; Cumulative Remedies; Severability. This Agreement, including all Purchase Orders hereto and each of the RMG policies incorporated by reference herein, as may be amended by RMG from time to time, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior verbal or written agreements. No waiver or modification of this Agreement will be binding upon either Party unless made in writing and signed by duly authorized representatives such Party, and no failure or delay in enforcing any right will be deemed a waiver of such right. All remedies set forth in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise, and may be enforced concurrently or from time to time. If any term or provision of this Agreement shall be found to be illegal or unenforceable, such illegal or unenforceable provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the Parties expressed herein.
15.7 Publicity. RMG may identify Reseller as a reseller of RMG and may display Reseller’s logo but only in connection with such identification. RMG shall not otherwise display Reseller’s logo and shall not utilize other trademarks or service marks of Reseller without Reseller’s consent, which consent shall not be unreasonably withheld, delayed or conditioned. RMG may issue any press, media or publicity releases and give statements to the media identifying Reseller and/or relating to this Agreement without Reseller’s consent.
15.8 Counterpart Originals. The Parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement. This Agreement may be delivered by electronic mail communications in pdf format, and pdf copies of signature pages shall be binding as originals.
[End of Terms and Conditions]
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All Products, Software, and Services offered for sale by RMG in the Territory during the Term of the Agreement.
- Purchase Commitment (per Section 3.3)
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RMG offers two levels of Support: RMG Gold Support and RMG Platinum Support (each, a “Support Plan”). Each Support Plan chosen by Customer can apply to all Software included in a single system or installation if purchased. Customer must purchase and continuously keep in effect Software Support. Hardware Extended Warranty Plans, with or without the Advance Shipping feature, described below, are also available for an additional charge for Hardware, except for RMG MAX Products and Third-Party Products. The extended warranty plan for RMG MAX Products is described in the RMG MAX Addendum. For purposes of this Exhibit B-1 only, the term “Products” does not include Third Party Products, Korbyt Cloud, or Korbyt On-Premises.
Since Support is sold to its Customers through Reseller but will be delivered to Customers of Reseller by RMG acting on behalf of Reseller, under a contract between Reseller and Customer and as between RMG and Reseller, this Agreement, when the term “Customer” is used below it shall apply to Reseller, or Customer, or both, as the context requires.
- SUPPORT SERVICES
(A) Included Services. Provided that Customer complies with the terms of this Agreement, including but not limited to Section 1(B) below, RMG will provide the applicable Support availability, response times, and services as described herein for Customer’s then-current Support Plan.
(B) Customer’s Responsibilities. Customer shall:
(i) pay all fees due under this Agreement and this Exhibit;
(ii) pay any expenses incurred by RMG in acquiring access to the Products (including without limitation expenses due to any Customer procedure or security protocol);
(iii) pay for any on-site Support at RMG’s then-current rates and pay for expenses incurred by RMG to perform on-site Support (including expenses for travel, labor and lodging);
(iv) pay RMG’s then-current rates for any support and maintenance not covered by Customer’s Support Plan;
(v) grant RMG appropriate access to the Products being supported;
(vi) comply with RMG’s recommended or required implementations regarding any Upgrades and Updates;
(vii) at its expense, uninstall, pack and ship any Hardware needing Support to the address provided in the Return Material Authorization or at http://www.rmgnetworks.com/company/returns ;
(viii) install any replacement Hardware when received; and
(ix) indicate the following in any request for Support: name, company, telephone number, description of the problem, whether the applicable Software is inoperative, and when Customer will be available to receive a return call from RMG.
(C) Excluded Services. RMG is not obligated to provide any services beyond those offered in the applicable Support Plan. RMG only supports the then-current, generally available Software major release version, the immediately previous major release version, and all Update versions (including minor releases versions, path or hot fix versions). Customer acknowledges
and agrees that there is no warranty of backward compatibility.
(A) Fees. RMG’s current rates for the Support may be updated by RMG at any time. However, any rate change shall not affect an unexpired Order for Support until that Support term renews.
(B) Non-refundable Support Fees. Customer acknowledges and agrees that Support Fees are non-refundable, notwithstanding any expiration or termination of an Order or this Agreement.
(C) Out-of-plan Charges. Any out-of-plan charges (including without limitation those incurred for after-hours Support, on-site Support, Training and Installation Services) will be invoiced by RMG after they are incurred. Customer acknowledges and agrees that such charges are non-refundable.
- TERM AND RENEWAL
(A) Initial Support Term; Renewal. If purchased by Customer, the initial term of the Support Plan for perpetual Software licenses shall commence upon date of Product shipment, and shall continue for one (1) year, or such other period of time as agreed in writing in advance by the Parties (the “Initial Support Term”). After the Initial Support Term, the Support Plan will automatically renew for additional one-year periods (each, “Renewal Support Term”), unless one Party provides the other Party with written notice prior to the expiration of the Initial Support Term or the then-current Renewal Support Term, as applicable, of its intent not
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to renew the Support Plan. The Initial Support Term and any Renewal Support Terms are collectively referred to as the “Support Term”. Prior to the end of the Support Term, RMG will notify Customer of RMG’s then-current Support rates.
(B) Lapse in Support. If Support lapses, Customer will not receive Support for, nor Upgrades or Updates to, the Products, and Support will be provided at RMG’s then-current rates.
(C) Subscriptions to Korbyt. Support is included in all Korbyt subscriptions for the duration of the Subscription term.
RESPONSE TIME AND UPDATE FREQUENCY
- RMG Platinum and RMG Gold Support usually resolve most Customer issues on the same day. Certain issues that require more troubleshooting, Software changes, corrupted data bases, network issues, policy and security issues, or system fixes may take longer. Under these situations, RMG provides the Customer with estimates regarding resolution. In any event, the response times and response update intervals listed are targeted response times offered on the basis of commercially reasonable efforts, and do not constitute a service level agreement, warranty or other commitment and have no penalty or other consequences associated with failure to meet such times.
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INCLUDED SUPPORT SERVICES
HARDWARE EXTENDED WARRANTY PLANS
Two Extended Warranty Plans which continue the repair or replacement benefit for non-conforming Hardware (excluding RMG MAX Products and Third-Party Products) are available for purchase by Customer. Either type of plan must be purchased only at the time, and as part, of the original Hardware purchase for the full term of the applicable plan.
Hardware Extended Warranty Plan with the Advance Shipper feature: Priced at a percentage of the current list price of all Hardware covered, as specified in the current price list, per year, Customer may select the Hardware Extended Warranty Plan with the Advance Shipper feature for the first three (3) years beginning with the original purchase of RMG Hardware Products, providing a total of three years’ warranty coverage. If Customer has purchased this feature, and it notifies RMG that Hardware provided under this Agreement does not conform to the applicable warranty, and RMG has issued the appropriate return materials authorization: (i) RMG will ship, at Customer’s expense, replacement Hardware to Customer; Customer may select and pay to receive the replacement Hardware the next business day after receipt of Customer’s notice, or pay for and use standard shipping instead; and (ii) Customer will provide paid transport to return the defective Hardware to RMG’s facilities once uninstalled by Customer. RMG Networks Smart Screens are not eligible for Advance Shipper Support.
Hardware Extended Warranty Plan (without Advance Shipping feature): In the alternative, Customer may select a Hardware Extended Warranty Plan priced at a lower percentage of the current list price of all Hardware covered, as specified in the current price list per year, that does not include the Advance Shipper feature. If selected, this Plan begins upon expiration of and continues the one (1) year limited Hardware warranty described under Exhibit C for two additional years, providing a total of three years’ warranty coverage.
With either Extended Warranty plan:
• Third Party Hardware is excluded from the Extended Warranty plans;
• The terms of Exhibit C, Section 2, Warranties shall apply to any Extended Warranty plan, except as expressly excluded or changed by this provision;
• For both plans, Customer will be responsible for removal and reinstallation of the Hardware and any associated costs and shipping costs each way for the type of delivery desired (overnight or standard shipping);
• RMG may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units as replacement units;
• RMG may substitute a functionally equivalent model if the Customer’s model of Hardware is no longer commercially available; and
• RMG retains the right to impose an NTF or equivalent fee for returned Hardware where RMG finds no non-conformity to the warranty.
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RMG Products Direct Product Technical Support
a) “Tier I Support” means the initial support provided to end user Customers of the Direct Products. Tier I Support shall provide initial troubleshooting of Customers’ inability to enjoy the full function of the Direct Products (“Issue”), which shall include determining the Customers’ Issue by analyzing the symptoms and determining the underlying cause of the Issue. Without limiting the foregoing, Tier I Support responsibilities include the installation and maintenance of the Direct Products to the extent that the Direct Products’ Installation Manual and User Guides provide guidance to do so. Additionally, Tier I Support shall share the responsibility to determine whether an Issue results from the Direct Products or from non-Direct Product components; and if the underlying cause of the Issue is directly related to the Direct Products, to identify the Direct Product components that need update, repair or replacement to resolve the Issue.
b) “Tier II Support” means the level of technical support, to which Tier I Support shall escalate Issues that, after reasonable effort described in a) cannot be resolved by Reseller furnishing Tier I Support, and which require additional technical resources and/or expertise to resolve.
2) Tier I Support Responsibility. RMG shall provide all Tier I Support to Reseller’s Customers on behalf of Reseller pursuant to its contract with Customer. As a part of Tier I Support and for each Issue reported by Reseller’s Customers, RMG shall create and maintain as current the following information (each a “Trouble Ticket”):
a) The Reseller company name and contact information;
b) The Customer’s company name, address and phone number;
c) The Customer primary point of contact name, email address and phone number;
d) The Customer site location experiencing the Issue (“Issue Site”);
e) The date and time the Issue is initially reported by Customer;
f) A description of the Issue’s symptoms, including the particular Direct Product experiencing the Issue;
g) The site installed environment and configuration, including Direct Product’s serial and version numbers;
h) The impact assessment of the Issue updated with any change;
i) All the steps taken to resolve the Issue (each step dated);
j) The date and time of the resolution of the Issue; or
k) The date and time of any escalation to Tier II of the Issue.
Where further assistance is required as to critical events only, RMG will promptly escalate such support request, with the information gathered above, and as part of Tier 1 Support shall assist in the resolution of Issues to the extent possible through reference to the Installation Manual and User Guides of the Direct Product and shall maintain (a) a sufficient number of active certified technicians on its staff, (b) sufficient quantity of Direct Product necessary to respond to failures of Direct Products to resolve further support requirements, (c) access for its technicians to relevant Direct Product documentation, (d) access to lab equipment to simulate Customer’s field application of the Direct Products, (e) ability to access Customer systems remotely, and (f) where required, Reseller provided customer network diagram and site survey report. Tier I Support shall resolve all Customer requests to replace “out of box” non-conformities of the Direct Products.
3) Tier II Support Responsibility. RMG shall provide all Tier II Support to Reseller’s Customers, on behalf of Reseller. Tier II Support is responsible to (a) respond to escalations from Tier I and receive the applicable Trouble Ticket from Tier I Support, (b) maintain and update the Trouble Ticket to reflect the then current Issue’s state, (c) make commercially reasonable efforts to resolve the Issue, as further described herein, and (d) provide a log of each escalation and add the following fields to the applicable transmitted Trouble Tickets:
a) Time and date received by Tier II Support;
b) Date of Issue verification by Tier II
c) All the steps taken to resolve the Issue by Tier II Support with (each step dated).
Tier II Support shall assist in the resolution of Issues to the extent possible by commercially reasonable means.
Customers are not eligible to obtain or install software updates and service packs if: (1) they have Direct Product Software that is out of warranty with no RMG Software Support Plan coverage, or (2) their Reseller is not authorized to sell the RMG Direct Products in question.
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- Software Warranty
(A) Limited Warranty. RMG provides a limited warranty that, during the ninety (90) day period commencing on the date when Customer (or RMG personnel when installing on Customer’s behalf) download the Software, (i) the latest and current version of the Software will operate in substantial conformity with the then-current version of the applicable Documentation for such Software provided by RMG, and (ii) the Media on which the Software is provided will not, when provided to Customer, be damaged or in a physically defective condition. For clarification purposes, this limited warranty does not apply to Korbyt Cloud or Korbyt On-Premises. RMG warrants Korbyt Cloud and Korbyt On-Premises in accordance with the limited warranty set forth in the Subscription Agreement. The foregoing limited warranty is subject to the following terms and conditions:
(i) Customer is current on all, and there are no overdue amounts relating to any, fees;
(ii) Customer provides cooperation and access to its personnel, records, systems, hardware, equipment and other resources for RMG to remedy the defective Software; and
(iii) breach of the limited warranty is not due to: (1) accident, abuse, or misapplication; (2) modification or alteration by anyone other than RMG; (3) any software, service, hardware, equipment or otherwise that is provided, developed, created, managed, licensed or owned by a third party; (4) usage of any Software in violation of the Documentation or this Agreement; (5) Customer’s failure to follow RMG’s instructions; (6) reasons beyond the control of RMG, including but not limited to a Force Majeure Event; (7) Customer’s failure to install and use the most up-to-date version of the Software; (8) specifications, instructions, features, functions, designs or other elements provided by or requested by Customer; or (9) Customer’s or its users’ negligence or breach of this Agreement.
(B) Remedy. In the event of a breach of the limited warranty set forth in Section 1(A) of this Exhibit and provided that (i) Customer reports the nonconformity to RMG in writing, (ii) Customer has purchased Support, and (iii) the nonconformity is reproducible by RMG, then RMG will use commercially reasonable efforts to remedy the nonconformity in the Software in accordance with the Support described in Exhibit B-1. The preceding remedy is Customer’s sole and exclusive remedy due to a breach of the limited warranty set forth in Section 1(A) of this Exhibit.
(C) Third-Party Software. Third-Party Software warranty and support is only available from the Third-Party Provider licensor, except under separate agreement. RMG does not provide any services for Third-Party Software that is not owned by RMG, which falls only under the normal pass-through warranties provided by the Third-Party Provider licensor.
(D) Open Source Software. In connection with the Software, RMG may make use of any Open Source Software. Customer acknowledges and agrees that its use of the Software or any such Open Source Software is subject to the terms of the applicable Open Source Software license(s), and that it is responsible for its compliance with the terms of such Open Source Software license(s). Customer expressly acknowledges and agrees that, prior to copying, modifying, or distributing any Open Source Software, it will confirm that it has all necessary rights and permissions to do so from the applicable third-party licensor, which confirmation may include obtaining a separate license from the licensor expressly authorizing it to do so.
- Hardware Warranty
(A) Limited Warranty. RMG warrants that the supplied Hardware (excluding RMG MAX Products) will be materially free from defects and workmanship for a period of one (1) year, commencing on the date of shipment, subject to the following limitations:
(i) the limited warranty extends only to Customer and is not assignable or transferable to any subsequent purchaser or end user;
(ii) Unless Customer purchases an Extended Warranty Plan with the Advance Shipper option as described in Exhibit B-1, Customer will bear the cost of shipping the Hardware to the Customer technical support department of RMG. Customer will bear the cost of shipping the Hardware back to Customer after the completion of service, or to ship replacement Hardware if RMG elects replacement as Customer’s remedy under this limited warranty; and
(iii) Customer complies with any additional warranty procedures that may be provided from RMG from time to time;
(iv) A repair on warranted Hardware is good only for the balance of the warranty, or for ninety (90) days from the date of the repair, whichever is longer.
(B) Warranty Exclusions. The limited warranty provided for in this Section 2(A) does not cover:
(i) defects or damages resulting from use of the supplied Hardware in other than its normal and customary manner, or in an environment or in a manner or for a purpose for which the Hardware was not designed;
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(ii) defects or damages from incorrect or abnormal use, abnormal conditions (including without limitation, results of force majeure event), power surges or other irregularities, failure to perform recommended maintenance or improper maintenance, improper handling, or storage, exposure to moisture or dampness, unauthorized modifications, unauthorized connections, unauthorized repair, or had parts replaced by any party other than RMG or an RMG authorized repair facility, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of RMG, including damage caused by shipping, spills of food or liquid;
(iii) breakage or damage unless caused directly by defects in material or workmanship;
(iv) claims in which the technical support department at RMG was not notified by Customer of the alleged defect or malfunction of the supplied Hardware during the applicable limited warranty period;
(v) Hardware which have had the serial number removed or made illegible;
(vi) Hardware that was not purchased by Customer from RMG or its authorized resellers;
(vii) claims related to or caused by Third-Party Materials;
(viii)damage due to normal wear and tear;
(ix) consumables such as fuses and batteries; or
(x) any other cause not wholly and directly attributable to a defect in the Hardware.
(C) Warranty Remedies. As Customer’s sole and exclusive remedy for any warranty claim with respect to Hardware, during the warranty period, RMG will, at its sole option, either repair, replace or refund the Hardware Purchase Price of any supplied Hardware that is covered under this limited warranty. RMG will not be required to repair or replace more than the components of the Hardware actually found to be in breach of the limited Hardware warranty provided in this Exhibit and repaired or replaced Hardware will be warranted under this Exhibit only for the remaining portion of the original warranty period. RMG may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units. In addition, RMG will not back-up any data or content that Customer has added to the Hardware. Where Customer returns any Hardware, and after evaluation, RMG finds no non-conformity to the warranty, RMG may return the Hardware to Customer, and Customer shall pay RMG its standard “no trouble found” (“NTF”) or equivalent fee.
(D) Third-Party Hardware and RMG MAX Products. Third-Party Hardware warranty and support is only available from the manufacturer, except under separate agreement. RMG does not provide any services for Third-Party Hardware that is not manufactured by RMG. These products fall under the normal pass-through warranties provided by the manufacturer. RMG will pass-through to Customer any applicable Third-Party Hardware warranties from Third-Party Providers that RMG is legally able to transfer. The limited warranty and support for RMG MAX Products are set for the in the RMG MAX Addendum.
- Professional Services Warranty.
(A) Limited Warranty. RMG provides a limited warranty that the professional Services provided by RMG (“Professional Services”) will be performed in a professional and workmanlike manner in accordance with the requirements set forth in the applicable Purchase Order, and that, upon delivery to Customer, any deliverables will materially conform to the requirements and specifications set forth in the applicable Purchase Order. Customer will have thirty (30) days to notify RMG of any material non-conformance of the deliverables to the specifications and requirements set forth in the applicable Purchase Order. For clarification purposes, RMG Services includes Professional Services.
(B) Remedies. In the event of a breach of the limited warranty in Section 3(A) of this Exhibit, as Customer’s sole and exclusive remedy, RMG will (i) with respect to the Professional Services, re-perform the Services, and (ii) with respect to the deliverables, repair or replace the defective deliverables.
- Limited Content Warranty. RMG provides a limited warranty that it has the necessary rights to license the RMG Content (other than other than materials, content and other intellectual property provided by Customer) to Customer in accordance with this Agreement. Customer’s sole and exclusive remedy for breach of this warranty shall be the indemnity in Section 13.2 of the Terms and Conditions.