RESELLER AGREEMENT – USA
Last Updated: March 15, 2023
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. This Reseller Agreement (this “Agreement”) describes the terms under which RMG Enterprise Solutions, Inc. dba Korbyt, including its affiliates (“Korbyt“) authorizes a Reseller (defined below) the right to Resell Products. Reseller agrees to comply with and to be bound by the terms of this Agreement, including the policies and guidelines linked to (by way of the provided URLs) from this Agreement.
This Agreement is incorporated by reference into each Order executed by Reseller. Korbyt may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the domain or subdomains of https://www.korbyt.com/engagement/legal/us-reseller-agreement/ where the prior version of the Agreement was posted, or by communicating these changes through any written contact method Korbyt has established with Reseller.
The Parties agree to the following:
TERMS AND CONDITIONS
1. 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 owned by Korbyt or licensed to Korbyt by third-parties that is used in connection with the Hardware, Software, Subscription Services, Professional Services, or Support.
1.3 “Customer(s)” means the person or legal entity that acquires Products from Reseller for its internal business use within the Territory and not for resale.
1.4 “Direct Products” means Hardware, Content, Subscription Services, and Professional Services (including deliverables) that are Korbyt-branded and offered for sale by Korbyt as set forth on Exhibit A.
1.5 “Resale” or “Resell” means the sale of Products by Reseller to Customers in accordance with this Agreement.
1.6 “Documentation” means Korbyt’s manuals (printed or electronic) containing installation and/or operating instructions and technical specifications that Korbyt 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 “Hardware” means the physical devices purchased from Korbyt by Reseller pursuant to this Agreement. For purposes of any warranty plan, Hardware will only mean Korbyt manufactured products and does not include Third-Party Products.
1.9 “Hardware Extended Warranty Plan” means a plan as described in Exhibit C which is 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 Korbyt supports Reseller’s efforts.
1.10 “Korbyt Policies” means all Korbyt policies and programs applicable to Resellers as amended from time to time at Korbyt’s discretion.
1.11 “Korbyt Sourced Customer” means a Customer opportunity that has not been previously registered and approved in Korbyt’s Partner Portal.
1.12 “Open Source Software” means any free, open source or other publicly available software.
1.13 “Order” means an ordering document executed by the Reseller, which incorporates by reference the terms of this Agreement, identifies the Products ordered by Reseller, sets forth the prices for the Products and contains other applicable information, terms and conditions as required by Korbyt.
1.14 “Product Catalog” means the applicable Product and 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 Direct Products and Third-Party Products provided under this Agreement.
1.16 “Professional 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 Korbyt.
1.17 “Reseller” means the person or entity identified on the first page of this Agreement.
1.18 “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.
1.19 “Subscription” means the limited, non-exclusive, revocable, non-sublicensable, non-transferable right for Customer to access and use the Subscription Services for its internal business purposes during the Subscription Term, which shall be subject to this Agreement and the End User Agreement (defined in Section 4.3).
1.20 “Subscription Services” means Korbyt’s provision and management of the Content and Subscription-based services, including all components thereof, described in the applicable Order that are provided for a particular Subscription Term.
1.21 “Subscription Term” means the period of time specified in an Order that Customer has the right to use the Subscription Services and includes any renewals of such Subscription Term.
1.22 “Support” has the meaning stated in Section 5.1.
1.23 “Supported Configuration” means those minimum requirements or practices as defined by Korbyt for the installation, maintenance and/or management of Products provided under this Agreement.
1.24 “Territory” shall mean North America unless otherwise stated in an Order.
1.25 “Third-Party Products” means Hardware and Software that are designed and manufactured by parties other than Korbyt or its affiliates.
2. Reseller Authorization.
2.1 Authorization. Subject to the terms and conditions of this Agreement, Korbyt authorizes Reseller to purchase Products for Resale to Customers in the Territory.
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. Korbyt 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 Professional Services in the Territory.
2.3 Reseller Portal. At such times as Korbyt maintains a website for the use of its Resellers that enables Korbyt to communicate with Resellers, Korbyt 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.
3. Orders and Delivery.
3.1 Issuance. During the Term (defined below), Reseller shall execute Korbyt’s standard Order for Products, specifying (i) the Products to be delivered to Reseller, (ii) the specific quantities of such Products, (iii) the desired shipment dates of Hardware by Korbyt (the “Shipping Dates”), (iv) the Customer name and address, and (v) the authorized representative of Reseller placing such Order. In the event of a conflict between any provision of this Agreement and any Order, this Agreement shall control, and no provision of any 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 Order shall be binding upon Korbyt until accepted by Korbyt in writing; however, any failure by Korbyt to execute and return a Order shall not relieve Reseller of any obligation under this Agreement relating to Products provided by Korbyt to meet such Order. Partial shipment of an Order shall not constitute acceptance of the full Order, and Korbyt reserves the right, for any reason or for no reason whatsoever, to reject, by action or inaction, any Order received from Reseller. Purchase orders will not be accepted as Orders. Notwithstanding the foregoing, Korbyt may, at its sole subjective discretion accept Reseller’s purchase order in lieu of an Order provided that such purchase order meets the requirements of Section 3.1. Any such purchase order shall be governed by this Agreement. All pre-printed or standard terms of any Reseller purchase order or other business processing document are hereby rejected and will have no force or effect. Korbyt reserves the right, for any reason or for no reason whatsoever, to reject, by action or inaction, any purchase order received from Reseller. Any purchase order accepted by Korbyt shall be considered an “Order” under this Agreement.
3.3 Changes and Cancellations. Reseller shall not cancel or make any changes to any 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 Korbyt in each instance. On a case-by-case basis, Korbyt may, at its sole discretion, accept Order cancellation or reductions, subject to thirty percent (30%) or greater restocking fee, at Korbyt’s sole discretion.
3.4 Returns. Except with respect to Hardware returned to Korbyt pursuant to the applicable warranty, there shall be no right granted to any person to return to Korbyt any Products purchased by Reseller hereunder other than as provided in this Agreement and its Exhibits. Subscription Services may not be cancelled or terminated prior to the expiration of the applicable Subscription Term.
3.5 Discontinuation. Korbyt may discontinue or replace a Product at any time.
4. 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 Korbyt Policies, discount or promotional program or as may otherwise be specified in writing by Korbyt and meet any specific eligibility or certification requirements that Korbyt 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 Reseller Resells hereunder. Reseller will be responsible for customer satisfaction for all Reseller activities with its Customers. Reseller will promptly make available to Korbyt, documents that Reseller is required to maintain under this Agreement. 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 or distributors, and any such sales made by Reseller to parties other than the Customer without the express written consent of Korbyt 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.
4.3 Terms of Service. Each Customer who purchases a Subscription to use the Subscription Services as contemplated hereunder shall be subject to Korbyt’s End User Subscription Agreement (the “End User Agreement”), by way of accepting (including by way of a click through agreement) the End User Agreement available at http://www.korbyt.com/korbyt-end-user-agreement, or to any replacement or alternative written agreement. In the event of a conflict between any term in this Agreement and a term in the End User Agreement, the term set forth in this Agreement shall prevail. In the event that Customer has issued a purchase order applicable to the subject sale of Subscriptions that contains terms or conditions inconsistent with the provisions of the End User Agreement, such inconsistent terms and conditions shall be considered as null and void and without effect.
4.4 Compliance with Laws. Reseller shall comply at all times, at its own expense, with all applicable laws, ordinances, regulations and codes, including procurement of any required permits or certificates 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 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, or technical data 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.
4.5 Products from Third Parties. Any decision by Reseller or a Customer to acquire or use Third-Party Products is, as between Korbyt and Reseller, Reseller’s sole responsibility, even if Korbyt provided assistance in identification or evaluation of such Third-Party Products. KORBYT IS NOT RESPONSIBLE FOR, AND WILL NOT BE LIABLE FOR, THE QUALITY OR PERFORMANCE OF SUCH THIRD-PARTY PRODUCTS. FURTHERMORE, KORBYT IS NOT RESPONSIBLE FOR THE CONTINUED SUPPLY OR SUPPORT OF SAID THIRD-PARTY PRODUCTS.
4.6 Other Instruments. Upon Korbyt’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.
4.7 Customer Information. Reseller agrees to provide Korbyt with information about Reseller’s Customer(s) and their purchases and installation of Product(s) as set forth in any Korbyt Policies or as otherwise required by Korbyt.
5.1 Support Packages. At no additional charge, Korbyt agrees to provide “Basic Support” for the Subscription Services from Monday-Friday from 8 a.m. to 5 p.m. CST excluding Korbyt holidays. “Basic Support” means that Korbyt will provide the applicable Tier I and Tier II Support described in Exhibit A within 12 business hours of receipt of an incident and use commercially reasonable efforts to resolve such incident promptly. Additional support packages are available for purchase. Together with Basic Support such additional support packages, if purchased, shall be collectively referenced as “Support” hereunder. Reseller will offer Support to its Customers consistent with the terms of Exhibit A. If Customer purchases additional Support packages from Reseller, Reseller shall purchase additional Support packages from Korbyt at the then-current list price for such Support packages. Reseller shall set the resale price of Support to the Customer at its discretion. Korbyt Support contact information is as follows:
5.2 No Support for Third Party Products. For the avoidance of doubt, Support does not apply to Third Party Products. Any 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.
5.3 Hardware. For Hardware that is a Direct Product, Reseller may offer Hardware Extended Warranty Plans to its Customers consistent with the terms of Exhibit B.
5.4 Supported Configuration. Where Korbyt 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 Korbyt 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 Korbyt 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 as required. Where a Customer refuses for valid reasons to allow remote access, Reseller and Korbyt shall make alternative arrangements for servicing that Customer, including where necessary onsite Professional Services, provided that Customer is informed of and agrees to pay Reseller’s (and if applicable, Korbyt’s) charges for such alternative.
5.6 Feedback. Reseller shall promptly notify Korbyt of any problems encountered regarding the function or operation of the Products and shall inform Korbyt of any resolutions or suggestions to address such problems or to otherwise modify, redesign or improve the Products. As between Reseller and Korbyt, all Feedback is the exclusive property of Korbyt, and Reseller hereby assigns to Korbyt all Feedback, at no cost to Korbyt. “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 Korbyt or Korbyt’s designates, to the extent relating to the Products, any other Korbyt Products (released or unreleased) or any other Confidential Information disclosed to Reseller by Korbyt hereunder, including without limitation, feedback on Product features and usability.
6. Payment and Costs.
6.1 Prices and Discounts. Reseller shall exclusively determine the resale price of any Products between Reseller and its Customers. Reseller shall pay Korbyt for the Products in accordance with Korbyt’s price list in effect at the time of acceptance of an applicable Order, in U.S. Dollars. Korbyt shall have the right to alter its list prices, provided that previously accepted Orders shall be unaffected by any such change. In the event of any price decrease by Korbyt, all Orders placed by Reseller and accepted by Korbyt 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, duty, customs, shipping, and handling charges, including insurance for Products. 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 Order, subject to Korbyt’s approval. Each Party is responsible for its own expenses in meeting its obligations under this Agreement. Except as otherwise specified in an Order, (i) Subscription fees are based on Subscriptions purchased and not actual usage, (ii) Subscription Services and the related payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
6.2 Invoices. Korbyt will invoice Customer for (i) Hardware fees upon shipment of applicable Hardware; (ii) Subscription fees for Subscription Services annually in advance of each year of the Subscription Term; and (iii) Professional Service fees on a (A) fixed price basis will be invoiced in advance of performance, and (B) time and materials, milestone or other basis, will be invoiced monthly (for time and materials). Any down payment required by Korbyt shall be invoiced upon receipt by Korbyt of the relevant Order. Reseller shall pay all fees due within thirty (30) days after the date of the applicable invoice.
6.3 Late Payments. If the Reseller fails to make payment in full on the due date, the whole of the balance of the price of the Order then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to Korbyt, Korbyt shall be entitled to: (i) terminate this Agreement or any Order or suspend any further deliveries of Product(s) (whether ordered under the same Order or not) to the Reseller; or (ii) charge interest on the amount outstanding from the due date to the date of receipt by Korbyt (whether or not after judgment), at the monthly interest at the lesser of one and one-half percent (1.5%) or the maximum rate permitted by applicable law. All sums payable to Korbyt 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. If Reseller fails to pay any due and payable amounts on the due date, Reseller shall be deemed to be in material breach hereunder. Notwithstanding the foregoing, in the event that any such dispute under Section 6.4 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 Disputed Amounts. Reseller may reasonably and in good faith dispute an invoiced amount within thirty (30) days after the invoice date, provided that Reseller shall promptly pay the undisputed portion of the invoice pursuant to Section 6.2 and may only withhold payment of the disputed portion until the dispute is resolved. The Parties shall negotiate in good faith to resolve any payment dispute within forty-five (45) days. Reseller agrees that any billing discrepancies or disputes not brought to the attention of Korbyt within thirty (30) days after the invoice date will be and are hereby waived and the invoiced amount will be deemed to be correct.
6.5 Taxes. All payments shall be paid in U.S. Dollars. Any taxes, duties, excises or tariffs imposed on costs and fees paid under this Agreement shall be the responsibility of Reseller. Reseller shall indemnify, defend and hold Korbyt harmless for any failure by Reseller to timely remit any taxes for which it has responsibility pursuant to this Section 6.5. If Korbyt is required by law to directly pay any such taxes, fees, excises, tariffs or other charges, Reseller shall promptly reimburse Korbyt upon Korbyt’s presentation to Reseller of documentation evidencing such payment.
7. Proprietary Rights.
7.1 Korbyt’s Rights. Reseller acknowledges and agrees that (a) Korbyt 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 Korbyt in its sole discretion, to inform its Customers of Korbyt’s and manufacturer’s rights pursuant to this Section 7.1 and to ensure compliance hereunder and shall promptly notify Korbyt upon Reseller’s discovery of any infringement of Korbyt’s or manufacturer’s proprietary rights.
7.2 Acceptance of End User Agreements. Reseller shall promptly obtain each Customer’s explicit agreement to either (i) the End User Agreement pursuant to the provisions of Section 4.2 above for each Customer ordering Subscription Services (which may include Customer’s acceptance of Korbyt’s click-through End User Agreement); or (ii) 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 Korbyt 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 Professional Services by Korbyt. On all copies of the Products, Reseller shall reproduce all copyright notices or other proprietary Marks in a form approved by Korbyt. Reseller may not, without the prior written consent of Korbyt, 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 Korbyt’s then-current branding and marketing guidelines and with the prior written consent of Korbyt. Reseller may, during the Term, use the applicable trademarks and trade names for the Products as provided to Reseller by Korbyt solely in furtherance of the sale, advertisement or promotion of the Products by Reseller, and Korbyt 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 with Korbyt’s then-current guidelines for such use; provided, however, that Reseller agrees not to use Korbyt’s name in any manner which would misrepresent the relationship between Reseller and Korbyt. In the event that Korbyt 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 Korbyt of such change or cessation. Upon the earlier of (i) Korbyt’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 Korbyt’s option, all marketing materials provided by Korbyt to Reseller; and (C) remove and destroy any other material identifying Reseller as a Reseller of Korbyt’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 the End User Agreement 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 Korbyt’s rights in the Products are protected to the maximum extent possible, but in no event less than the standard of protection that Korbyt 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 Korbyt 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 Korbyt’s rights, including but not limited to the enforcement of Korbyt’s rights in Direct Products, Reseller shall provide to Korbyt such assistance as may be reasonably required.
8. 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 Subscriptions, and of all Products used to provide support, including information regarding compliance with the terms of this Agreement and any Korbyt Policies. Korbyt may from time to time audit the information that Reseller is obligated to provide to Korbyt under this Agreement and otherwise verify Reseller’s compliance with the terms and conditions of this Agreement and any Korbyt Policies. At Korbyt’s option, any audits conducted by Korbyt pursuant to this Section 8 may be conducted by personnel of Korbyt or its affiliates or agents. Reseller shall reasonably cooperate with Korbyt and any Korbyt affiliates or agents conducting the audits and will make the information and resources reasonably required to conduct the audit available on a timely basis. Korbyt shall give Reseller reasonable written notice of any audit, but in no event less than five (5) days, prior to such audit. Korbyt 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 Korbyt’s request for such information or documentation. Korbyt will pay all costs and expenses associated with any audit initiated by Korbyt; provided, however, Reseller will reimburse Korbyt for all of Korbyt’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) Korbyt 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 Korbyt 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 Korbyt and provide all information requested for Subscription, reporting, and recordkeeping requirements (to include but not limited to Customer information prior to the commencement of any resale) to allow Korbyt to meet all trade compliance requirements. Korbyt 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 Korbyt Policies.
9. 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, Korbyt-accepted Orders for Subscription Services, each of which will survive until the end of their applicable Subscription Terms, and the terms and conditions of this Agreement and the End User Agreement will continue to apply to such 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 Orders placed and accepted prior to the effective date of termination.
9.3 Termination for Insolvency. Each Party may immediately terminate this Agreement by written notice to the other Party if the other Party (i) becomes insolvent or makes a general assignment for the benefit of creditors; (ii) files a petition for bankruptcy or has filed against it a petition for bankruptcy which is not dismissed within twenty (20) days; or (iii) proposes any dissolution or becomes involved in legal, financial or reorganization proceedings that interfere with the performance and satisfactory completion of the other Party’s obligations hereunder.
9.4 Termination for Breach. Either Party may terminate this Agreement, and any 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 Order, and fails to remedy such breach within thirty (30) days of notice thereof from the non-breaching Party, including, without limitation, where Korbyt is the non-breaching Party, any failure by Reseller to fulfill its payment obligations pursuant to Section 6 or if Reseller engages in any conduct which, in Korbyt’s sole subjective discretion, poses a business risk to Korbyt.
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 Order accepted by Korbyt prior to the effective date of termination. Should Korbyt 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 Korbyt terminate this Agreement pursuant to Section 9.3 or Section 9.4, Korbyt 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 Korbyt’s cost and expense, to an address specified by Korbyt. The risk of loss in respect of such repurchased Products shall pass to Korbyt at such time as the Products arrive and are accepted by Korbyt 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, 5.5, 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. Korbyt 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 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 Korbyt Warranties. Korbyt warrants (i) Hardware, excluding Third-Party Products, purchased by Reseller in accordance with the applicable limited warranty and warranty period stated in Exhibit B, (ii) Subscription Services in accordance with the limited warranty set forth in the End User Agreement; provided, however, that (iii) all 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. Korbyt does not guarantee the results of any of its marketing plans or programs.
11.2 Reseller Warranties to Customers. 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 Exhibit B or the End User Agreement, as applicable. Korbyt’s sole obligation to Reseller are the warranties in Exhibit B and the End User Agreement, as applicable.
11.3 Third Party Product Warranties. For Third-Party Products, Korbyt 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. Korbyt 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 Korbyt all shipping costs and the no trouble found fee as set forth in the warranty and/or any Korbyt Policies.
11.5 Out-of-Warranty Product Repairs. Korbyt’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, KORBYT PROVIDES THE PRODUCTS ON AN “AS IS,” “WHERE IS” BASIS AND KORBYT 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, KORBYT, 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, KORBYT, 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. KORBYT 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 KORBYT OR ITS AFFILIATES BE LIABLE FOR ANY LOSSES RESULTING FROM A CAUSE OVER WHICH KORBYT 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 KORBYT OR AFFILIATES HAVE ANY LIABILITY FOR ANY PRODUCTS, SERVICES OR SUPPORT USED FOR AVIATION, COMBAT, MEDICAL, LIFESAVING, LIFE-SUSTAINING OR NUCLEAR APPLICATIONS.
12. Representations. As of the Effective Date and as of the date of each 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 Order; the execution, delivery and performance of this Agreement and the applicable Order have been duly authorized by all requisite corporate action; and that this Agreement and the applicable 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 Korbyt, 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 Korbyt 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, U.K. Anti-Bribery Act, 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 instrumentality of any government), political party, state owned enterprise or a public international organization such as the 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 authorized to be made, or provided any contribution, thing of value or gift, or any other type of payment 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 authorization or approval involving Korbyt, or (ii) the obtaining or retention of business by Korbyt. 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. For the avoidance of doubt, any violation 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 Korbyt, its directors, officers, employees and representatives, or any Customer, in connection with this Agreement, any Order or any sale of Products.
13.1 Indemnification by Reseller. Reseller will indemnify, defend and hold harmless Korbyt, its affiliates, and each of their respective officers, directors, employees, agents, successors and assigns (each a “Korbyt Indemnitee”) from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) incurred by any Korbyt 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 Korbyt pursuant to Section 11; (iv) Reseller’s breach of this Agreement or any of Korbyt’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 Korbyt’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 Korbyt (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 Korbyt. Korbyt 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 third party Claim that a Direct Product, except for Content licensed to Korbyt by third parties, infringes a United States patent or copyright, provided that Reseller (i) promptly notifies Korbyt in writing of such Claim; (ii) grants Korbyt sole control over the defense and settlement thereof pursuant to Section 13.3; and (iii) cooperates with any request by Korbyt for assistance in defending such Claim. Should any such Direct Product become, or in Korbyt’s opinion be likely to become, the subject of such a Claim, Korbyt 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. Korbyt 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 Korbyt’s express written approval; (E) modifications made by Korbyt 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 KORBYT’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 Korbyt 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.
14. 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, 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 KORBYT’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 HEREIN, IN NO EVENT SHALL KORBYT’S TOTAL AGGREGATE LIABILITY FOR DIRECT 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 KORBYT 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 KORBYT 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. Korbyt 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 Korbyt 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 an internationally recognized courier service (such as UPS or FedEx) (i) if to Korbyt, 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. Korbyt may assign this Agreement without the prior consent of Reseller. Reseller may not assign this Agreement without the prior consent of Korbyt. 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 Korbyt 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 Korbyt. 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, all transactions between, and the rights and obligations of the Parties will be governed, construed and interpreted in accordance with the laws of the State of Texas, without reference to conflict of Laws principles. Each Party hereby consents to the exclusive jurisdiction and venue of the state and federal courts with jurisdiction over Dallas County, Texas. BOTH PARTIES IRREVOCABLY WAIVE TRIAL BY JURY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT. The Parties agree that their respective rights and obligations under this Agreement will be solely and exclusively as set forth in this Agreement, and that the 1980 United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, will not apply to this Agreement and are hereby disclaimed. If Reseller is a government entity or entitled to assert sovereign immunity or immunity under the Eleventh Amendment, Reseller acknowledges that its obligations hereunder are of a commercial, non-governmental nature and accordingly waives any such immunity.
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 Orders hereto and each of the Korbyt policies incorporated by reference herein, as may be amended by Korbyt 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. Korbyt may identify Reseller as a reseller of Korbyt and may display Reseller’s logo but only in connection with such identification. Korbyt 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. Korbyt 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]
Korbyt Direct Product Technical Support
a) “Tier I Support” means the initial support provided to Customers of the Direct Products. Tier I Support shall provide initial troubleshooting of Customer’s inability to enjoy the full function of the Direct Products (“Issue”), which shall include determining the Customer’s 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. Korbyt shall provide all Tier I Support to Customers on behalf of Reseller pursuant to Reseller’s contract with Customer. As a part of Tier I Support and for each Issue reported by Customers, Korbyt 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, Korbyt 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. Korbyt shall provide all Tier II Support to 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 Subscription Services updates and service packs if the Reseller is not authorized to sell the Korbyt Direct Products in question.
HARDWARE TERMS, CONDITIONS AND WARRANTIES
1. DELIVERY AND TITLE
A Shipping and Delivery.
(i) Subject to subpart (ii) of this Section 1(A), Korbyt will ship the Hardware FCA Shipping Point (INCOTERMS 2010); provided, that Reseller will reimburse Korbyt the shipping and insurance costs. Korbyt will use Reseller’s preferred carrier if Reseller provides Korbyt with necessary information and instructions. Otherwise, Korbyt is responsible for delivering the Hardware to its preferred common carrier with Korbyt’s preferred routing instructions, obtaining all appropriate shipping documents, and assuring that the Hardware has been insured for its replacement cost.
(ii) Delivery of the Hardware will be subject to availability of the Hardware. However, any dates quoted for delivery of the Hardware are approximate only, and Korbyt will not be liable for any delay in delivery of the Hardware, regardless of cause.
B Title to Hardware. Title and ownership of the Hardware will pass to Reseller upon Reseller’s payment for the Hardware.
C Risk of Loss. Risk of loss to the Hardware will pass to Reseller upon delivery of the Hardware to the carrier. Reseller assumes risk of loss or damages to the Hardware while the Hardware is in transit to Reseller. Within ten (10) business days of receipt of the Hardware (or three calendar days for third party displays/TVs), Reseller will inspect the Hardware and inform Korbyt of any damages thereto. Should Reseller not notify Korbyt of any damage incurred during shipment of the Hardware within the applicable period, Korbyt will be relieved of all responsibility and liability with respect to the damaged Hardware, and Reseller will be responsible for any damage claim, repair or replacement of such damaged Hardware. These terms also apply to any Hardware provided to Reseller in connection with any warranty for Hardware. Notwithstanding anything in the Agreement and this Exhibit to the contrary, risk of loss and title thereto is not subject to Reseller’s acceptance of the Hardware.
D. Inspection; Acceptance. All Hardware furnished by Korbyt hereunder shall materially conform to the applicable published Korbyt 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 Hardware that it receives, and shall promptly, but within five (5) days of delivery of the Hardware, give written notice to the common carrier and Korbyt of any claims of damages or shortages in respect of such Hardware. For the avoidance of doubt, in no event shall Korbyt be responsible for any loss, breakage or damage to Hardware arising after Korbyt’s delivery of the Products to the common carrier or Reseller.
A Limited Warranty. Korbyt warrants that the supplied Hardware 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 below, Customer will bear the cost of shipping the Hardware to the Customer technical support department of Korbyt. Customer will bear the cost of shipping the Hardware back to Customer after the completion of service, or to ship replacement Hardware if Korbyt elects replacement as Customer’s remedy under this limited warranty;
(iii) Customer complies with any additional warranty procedures that may be provided from Korbyt 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;
(v) at Customer’s 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; and
(vi) install any replacement Hardware when received;
B Warranty Exclusions. The limited warranty provided for in Section 2(A) herein 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;
(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 (successfully or not), or had parts replaced by any party other than Korbyt or an Korbyt authorized repair facility, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of Korbyt, 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 Korbyt 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 Korbyt or Reseller;
(vii) claims 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, Korbyt will, at its sole option, either repair, replace or refund the purchase price of the Hardware of any supplied Hardware that is covered under this limited warranty. Korbyt 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 Attachment, and repaired or replaced Hardware will be warranted under this Attachment only for the remaining portion of the original warranty period. Korbyt may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units. In addition, Korbyt will not back-up any data or Content that Customer has added to the Hardware. Where Customer returns any Hardware, and after evaluation, Korbyt finds no non-conformity to the warranty, Korbyt may return the Hardware to Customer, and Customer shall pay Korbyt its standard “no trouble found” (“NTF”) or equivalent fee.
D Third-Party Hardware. Third-Party Hardware warranty and support is only available from the manufacturer, except under separate agreement. Korbyt does not provide any services for Third-Party Hardware that is not manufactured by Korbyt. These products fall under the normal pass-through warranties provided by the manufacturer. Korbyt will pass-through to Customer any applicable Third-Party Hardware warranties from Third-Party Providers that Korbyt is legally able to transfer.
3. HARDWARE EXTENDED WARRANTY PLAN
An Extended Warranty Plan which continues the repair or replacement benefit for non-conforming Hardware is available for purchase by Customer through Reseller. The plan must be purchased only at the time, and as part, of the original Hardware purchase for the full term of the applicable plan:
Priced at a percentage of the then current list price of all Hardware covered, as specified in the current price list, per year, Customer may select the Hardware Extended Warranty Plan for the first three (3) years beginning with the original purchase of Korbyt Hardware, providing a total of three years’ warranty coverage. With the Extended Warranty plan:
(i) Third Party Hardware is excluded from the Extended Warranty plans;
(ii) The terms of Section 2 of this Exhibit B, Warranties shall apply to any Extended Warranty plan, except as expressly excluded or changed by this provision;
(iii) Customer will be responsible for removal and reinstallation of the Hardware and any associated costs and for shipping costs each way for the type of delivery desired (overnight or standard shipping);
(iv) Korbyt may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units as replacement units;
(v) Korbyt may substitute a functionally equivalent model if the Customer’s model of Hardware is no longer commercially available; and
(vi) Korbyt retains the right to impose an NTF or equivalent fee for returned Hardware where Korbyt finds no non-conformity to the warranty.