Master Partner Agreement
This Master Partner Agreement (this “Agreement” or “MPA”), effective as of the date last signed below by the Parties (the “Effective Date”), is by and between QEVLAR AI INC., a Delaware corporation with offices located at 1411 Broadway, FL16, New York, NY 10018, United States (“Provider”), and the Partner identified in an Order Form (“Partner”). Provider and Partner may be referred to herein collectively as the “Parties” or individually as a “Party”.
WHEREAS, Provider develops, operates, and markets a software-as-a-service cybersecurity solution that uses artificial intelligence and machine learning to investigate and report on security alerts (the “Services”); and
WHEREAS, Partner desires to act as either a Reseller or a Distributor of the Services, in accordance with the applicable Schedule and the terms of this Agreement; and
WHEREAS, Provider is willing to appoint Partner on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions
Capitalized terms used in this Agreement have the meanings given below. Capitalized terms used but not defined herein have the meanings given in the End-Customer MSA.
“Affiliate” means with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party, where “control” means the direct or indirect ownership of more than fifty percent (50%) of the voting interest in the subject entity.“
Applicable Schedule” means Schedule A (Reseller) or Schedule B (Distributor), as designated in the applicable Partner Order Form.“
Confidential Information” means has the meaning given in Section 12.“
Distributor” means a Partner appointed under Schedule B to (i) purchase Services from Provider for resale through one or more Sub-Resellers and (ii) manage a network of Sub-Resellers in the Territory.“End Customer” means any natural person or entity (other than Partner) that purchases or subscribes to the Services for its own internal use.
“End-Customer MSA” means the Master Services Agreement executed between Provider and a given End Customer.“Fees” means the fees and charges payable by Partner to Provider under this Agreement under a Partner Order Form.
“Marks” means Provider’s trade names, trademarks, service marks, logos, and other brand identifiers, including the QEVLAR name and logo.
“Partner Order Form” means an ordering document executed by Provider and Partner that references this Agreement and the Applicable Schedule, identifies the Services subscribed for resale, the Territory, the Subscription Term, and any other deal-specific commercial terms. Each Partner Order Form is governed by this Agreement; in the event of any conflict between a Partner Order Form and this Agreement (including the Applicable Schedule), the Partner Order Form prevails.
“Reseller” means a Partner appointed under Schedule A to purchase Services from Provider and resell them directly to End Customers in the Territory.
“Services” means Provider’s proprietary cybersecurity software-as-a-service offering, including the Platform, Documentation, Maintenance, and any updates, modifications, fixes, additions, and enhancements thereto, as more particularly described in the End-Customer MSA.
“Sub-Reseller” means any third-party reseller authorized by Distributor under Schedule B to sell the Services to End Customers in the Territory pursuant to a written agreement with Distributor that complies with this Agreement.
“Subscription Term” means the period during which an End Customer is authorized to access and use the Services pursuant to a Partner Order Form, as specified therein.
“Territory” means the geographic territory in which Partner is authorized to market and resell the Services, as set forth in the applicable Partner Order Form.
2. Appointment and Scope
2.1 Appointment. Subject to and conditioned on Partner’s compliance with this Agreement, Provider hereby appoints Partner, and Partner accepts the appointment, to act as either a Reseller or a Distributor of the Services in the Territory, as designated in each Partner Order Form. The terms of Schedule A apply to Partner Order Forms designating Partner as a Reseller; the terms of Schedule B apply to Partner Order Forms designating Partner as a Distributor.
2.2 Non-Exclusive. Unless expressly designated as exclusive in a Partner Order Form, the appointment under Section 2.1 is non-exclusive, and Provider reserves the right (a) to appoint other resellers, distributors, agents, or partners in the Territory or elsewhere; and (b) to sell, market, and license the Services directly to End Customers (including End Customers located in the Territory).
2.3 Independent Contractor. Partner is an independent contractor. Nothing in this Agreement creates any agency, partnership, joint venture, employment, franchise, or fiduciary relationship between the Parties. Partner has no authority to bind Provider or to make any representation, warranty, or commitment on Provider’s behalf, except as expressly authorized in writing by Provider.
3. License Grants
3.1 Demonstration Use. Subject to Partner’s compliance with this Agreement, Provider grants Partner a limited, non-exclusive, non-transferable, non-sublicensable right to use the Services and the Documentation during the Term solely (a) to demonstrate, market, and promote the Services to prospective End Customers in the Territory, (b) to train Partner’s personnel on the Services, and (c) to perform Partner’s obligations under this Agreement. Partner shall not use the Services for any other purpose, including Partner’s own internal business operations, except under a separately executed End-Customer MSA.
3.2 Marks License. Subject to Partner’s compliance with this Agreement and Provider’s then-current brand guidelines (as published by Provider), Provider grants Partner a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right to use the Marks during the Term solely to identify Partner as an authorized Reseller or Distributor of Provider and to market the Services in the Territory. All goodwill arising from Partner’s use of the Marks inures solely to Provider. Partner shall not (a) modify the Marks, (b) use the Marks in any way that disparages Provider or the Services, (c) register any domain name, social-media handle, or trademark that incorporates the Marks, or (d) use the Marks in connection with any product or service other than the Services.
3.3 Reservation of Rights. Except for the limited rights expressly granted in Sections 3.1 and 3.2, Provider reserves all rights in the Services, the Documentation, the Marks, and the Provider IP. No implied license is granted under this Agreement.
4. Partner Activities and Restrictions
4.1 Authorized Activities. Partner shall (a) actively market and promote the Services within the Territory using qualified personnel trained on the Services; (b) maintain a level of competence, sales coverage, and technical expertise as is business standard; (c) accurately describe the Services to prospective End Customers, consistent with the Documentation and Provider’s published marketing materials; (d) refer to and rely on the End-Customer MSA when communicating commercial and legal terms to prospective End Customers; and (e) cooperate with Provider in good faith with respect to End Customer engagement, training, and support.
4.2 Restrictions. Partner shall not, and shall not permit any third party (including any Sub-Reseller) to: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works of the Services or Documentation; (b) rebrand, re-skin, or otherwise present the Services as Partner’s own product; (c) remove or alter any copyright, trademark, or other proprietary notice; (d) make any representation, warranty, or commitment regarding the Services beyond those expressly set forth in the End-Customer MSA or Provider’s published Documentation; (e) sell, market, or deliver the Services outside the Territory; (f) bundle the Services with another product or service in a manner that obscures Provider’s identity as the provider of the Services without Provider’s prior written consent; or (g) use the Services to develop a competing product, perform competitive benchmarking, or publish performance or evaluation results without Provider’s prior written consent.
4.3 No Authorized User Access. Except as expressly authorized in Section 3.1 (Demonstration Use), Partner shall not access or use the Services as an Authorized User and shall not allow any of its personnel to do so. Production use of the Services by Partner for its own internal cybersecurity operations requires a separately executed End-Customer MSA and the payment of the applicable subscription fees.
5. End-Customer Agreement (Back-to-Back)
5.1 End-Customer MSA Required. All access to and use of the Services by any End Customer is governed by the End-Customer MSA (and the related Data Processing Agreement and any other ancillary terms incorporated therein) executed by Provider and the End Customer. No End Customer is authorized to access or use the Services until it has accepted the End-Customer MSA in writing or by clicking acceptance as part of activation.
5.2 Partner’s Pass-Through Obligation. Partner shall (a) make the End-Customer MSA available to each prospective End Customer prior to order placement; (b) procure the End Customer’s acceptance of the End-Customer MSA prior to or contemporaneously with order activation; and (c) ensure that no agreement, side letter, or commercial document between Partner and the End Customer purports to modify, supplement, or override the End-Customer MSA, in each case unless expressly approved in writing by Provider.
5.3 Provider’s Direct Relationship with End Customer. Notwithstanding Partner’s commercial relationship with the End Customer, Provider retains the direct relationship with the End Customer with respect to all matters arising under the End-Customer MSA, including support, security incident notification, data-protection obligations, suspension, and termination. Partner shall not interfere with this relationship and shall not represent that Partner provides or controls these matters.
5.4 Partner Value-Add. Nothing in this Section 5 prevents Partner from offering its own value-added services to the End Customer (including integration, professional services, managed services, or first-line support), provided that such services are performed by Partner under Partner’s own agreement with the End Customer, at Partner’s sole risk and expense, and do not purport to bind Provider or expand Provider’s obligations under the End-Customer MSA. Partner shall expressly disclaim Provider’s liability for Partner’s value-added services in its agreement with the End Customer.
6. Partner Order Forms
Each transaction under this Agreement is documented by a Partner Order Form executed by Provider and Partner. A Partner Order Form is effective upon execution by both Parties and is incorporated into and governed by this Agreement.
7. Fees, Pricing, and Payment
7.1 Resale Pricing. Partner is free to set the price at which it resells the Services to End Customers; provided that (a) Partner shall not make any representation regarding Provider’s list price or margin without Provider’s prior written consent; (b) Partner shall comply with all applicable competition, antitrust, and consumer-protection laws; and (c) Partner shall not engage in tied selling, bundling, or pricing practices that would expose Provider to claims of competition-law violation.
7.2 Invoicing. Unless otherwise specified in a Partner Order Form, Provider invoices Partner annually in advance on the first day of each Subscription Year. Invoices are payable within thirty (30) days of Partner’s receipt of the invoice. Payment shall be made in US Dollars (USD) by wire transfer to the account designated by Provider on the invoice.
7.3 Non-Cancellable; Non-Refundable. All Fees are non-cancellable and non-refundable, except as expressly provided in this Agreement. Partner’s payment obligation to Provider is independent of, and not contingent on, payment by any End Customer or Sub-Reseller to Partner. Partner bears all credit risk on End Customers and Sub-Resellers.
7.4 Late Payment. If Partner fails to make any payment when due, without limiting Provider’s other rights and remedies: (a) Provider may charge interest at the rate of 1.5% per month, calculated daily and compounded monthly, or the highest rate permitted by applicable law if lower; (b) Partner shall reimburse Provider for all costs incurred in collecting any late payments or interest, including reasonable attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days or more, Provider may suspend Partner’s rights under this Agreement (including the Marks license) and any then-active Partner Order Forms until payment is received in full. Suspension does not release Partner from its accrued payment obligations.
7.5 Taxes. All Fees and other amounts payable by Partner under this Agreement are exclusive of taxes and similar assessments. Partner is responsible for all sales, use, excise, VAT, and similar taxes, duties, and charges of any kind imposed by any federal, state, local, or foreign authority on amounts payable by Partner hereunder, other than any taxes imposed on Provider’s net income. Partner shall provide Provider with valid tax-exemption certificates where applicable.
7.6 No Set-Off. Partner shall not set off, withhold, deduct, or otherwise reduce any amount due to Provider under this Agreement against any claim Partner may have against Provider, whether under this Agreement or otherwise.
7.7 Price Changes. Provider may revise its list prices from time to time. Price changes apply to (a) any new Partner Order Form executed after the price change, and (b) any renewal of an existing Partner Order Form after the price change, in each case effective on the date of execution or renewal.
8. Audit
On not less than thirty (30) days’ written notice, and no more than once per calendar year (except in connection with a confirmed material breach), Provider may, at its own cost, audit Partner’s records relating to Partner’s performance under this Agreement (including sales-out reports, end-customer agreements, and pricing records) to verify Partner’s compliance. Audits shall be conducted during Partner’s normal business hours and in a manner that does not unreasonably interfere with Partner’s operations. The auditor shall not be a competitor of Partner. If an audit reveals an underpayment of more than five percent (5%), Partner shall reimburse Provider for the reasonable cost of the audit in addition to the underpaid amount and any applicable late-payment interest.
9. Intellectual Property
9.1 Provider IP. As between the Parties, Provider exclusively owns all right, title, and interest in and to the Services, the Documentation, the Marks, the Platform, any output of the Services (including investigation reports, scores, and remediation suggestions), Aggregated Statistics, and any feedback, suggestions, ideas, or know-how that Partner or any of its personnel may provide to Provider (collectively, “Provider IP”), and all intellectual property rights therein. Partner shall not contest, challenge, or assist any third party in contesting Provider’s ownership of the Provider IP.
9.2 Feedback Assignment. Partner hereby assigns to Provider all right, title, and interest in and to any feedback, suggestions, ideas, recommendations, or know-how relating to the Services or Provider IP that Partner or any of its personnel provides to Provider, and Provider may use such feedback for any purpose without attribution or compensation.
9.3 Partner Materials. Partner retains ownership of any pre-existing intellectual property of Partner and any value-added services Partner develops independently of the Services. Where Partner combines Provider IP with Partner’s materials, Partner shall ensure the combination does not (a) modify the Services beyond integrations expressly authorized by Provider or (b) infringe Provider IP.
9.4 No Implied License. No license is granted by either Party except as expressly set forth in this Agreement. Nothing in this Agreement grants to Partner any right, title, or interest in or to the Provider IP, except the limited rights expressly granted in Sections 3.1, 3.2, and the Applicable Schedule.
10. Confidentiality
10.1 Confidential Information. Each Party (the “Receiving Party”) acknowledges that it may receive from the other Party (the “Disclosing Party”) information that is confidential or proprietary, whether or not marked as such, including pricing, customer lists, technical information, business plans, strategy, financial information, and other non-public information (“Confidential Information”). The terms of this Agreement, including any pricing terms, are Confidential Information of both Parties.
10.2 Exclusions. Confidential Information does not include information that, at the time of disclosure, is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure without restriction; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d) independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
10.3 Restrictions. The Receiving Party shall (a) use the Disclosing Party’s Confidential Information only as necessary to perform its obligations under this Agreement, (b) disclose it only to its employees, contractors, agents, and professional advisors who have a need to know and who are bound by written confidentiality obligations at least as protective as those in this Section 11, and (c) protect it with at least the same degree of care it uses to protect its own confidential information of similar importance, but in no event less than reasonable care.
10.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information if required by law, court order, or regulatory authority, provided that (where legally permitted) the Receiving Party first gives the Disclosing Party prompt written notice and a reasonable opportunity to seek a protective order or other appropriate remedy.
10.5 Term. The Receiving Party’s obligations under this Section 11 survive for five (5) years following expiration or termination of this Agreement; provided that, with respect to any Confidential Information that constitutes a trade secret under applicable law, the obligations survive for so long as such Confidential Information remains a trade secret.
11. Data Protection
Partner acknowledges that all processing of Personal Data in connection with the Services is governed by the Data Processing Agreement entered into between Provider and the End Customer. Partner shall not act as a processor or sub-processor of Provider with respect to End Customer Personal Data, and shall not access, store, transmit, or process End Customer Personal Data except as expressly authorized in writing by Provider and the End Customer. To the extent Partner processes any Personal Data of Provider personnel or End Customer contacts in connection with this Agreement, Partner shall do so as an independent controller, in compliance with all applicable data-protection laws.
12. Marketing and Co-Marketing
12.1 Marketing Obligations. Partner shall actively market and promote the Services in the Territory, Provider’s brand guidelines, and this Agreement. Partner shall not make any false, misleading, or unauthorized statements about Provider or the Services.
12.2 Joint Marketing. From time to time, the Parties may agree to undertake joint marketing or co-marketing activities, including joint announcements, case studies, webinars, and event participation. Any such activity shall be subject to mutual written agreement on scope, budget, and approvals.
12.3 Press Releases. Neither Party shall issue a press release or public statement that references the other Party by name without the other Party’s prior written consent, except that Provider may identify Partner in customer or partner lists and in regulatory or investor filings.
13. Term and Termination
13.1 Term. This Agreement commences on the Effective Date and continues for an initial period of one (1) year (the “Initial Term”). Thereafter, this Agreement automatically renews for successive one-year periods (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either Party gives written notice of non-renewal to the other Party at least sixty (60) days before the end of the then-current period.
13.2 Termination for Convenience. Either Party may terminate this Agreement for convenience on ninety (90) days’ prior written notice.
13.3 Termination for Cause. Either Party may terminate this Agreement for cause (a) on thirty (30) days’ prior written notice if the other Party materially breaches this Agreement and fails to cure the breach within the thirty-day notice period; (b) immediately on written notice if the breach is incapable of cure or constitutes a breach of Sections 4 (Partner Restrictions), 10 (Intellectual Property), 11 (Confidentiality), or 18 (Compliance); or (c) immediately on written notice if the other Party becomes insolvent, makes an assignment for the benefit of creditors, files or has filed against it a petition under any bankruptcy or insolvency law (which is not dismissed within thirty (30) days), or has a receiver, trustee, or custodian appointed for it.
13.4 Termination of a Partner Order Form. Termination of this Agreement does not automatically terminate any then-active Partner Order Form. Active Partner Order Forms continue in accordance with their terms until expiration or earlier termination as provided therein, subject to the wind-down provisions of Section 15.
13.5 Change of Control. Provider may terminate this Agreement on thirty (30) days’ prior written notice in the event of a change of control of Partner (whether by merger, acquisition, sale of substantially all assets, or otherwise) to an entity that is a competitor of Provider or that is, in Provider’s reasonable judgment, materially incompatible with the Partner relationship.
14. Effect of Termination
14.1 Cessation of Activities. On expiration or termination of this Agreement, Partner shall (a) immediately cease marketing, promoting, and selling the Services; (b) immediately cease all use of the Marks (subject to a reasonable wind-down period agreed in writing); (c) immediately cease holding itself out as an authorized Reseller or Distributor; and (d) within thirty (30) days, return or destroy all Confidential Information and all copies of the Documentation.
14.2 End Customer Continuity. End Customer Subscription Terms in effect on the date of termination continue in accordance with the End-Customer MSAs. Provider shall, at Provider’s discretion, either (a) novate the affected End Customer relationships directly to Provider (with the End Customer’s consent), or (b) transfer the affected End Customer relationships to another partner of Provider. Partner shall reasonably cooperate in any such transition at no additional cost to Provider.
14.3 Accrued Obligations. Termination does not affect any obligation accrued prior to the effective date of termination, including any payment obligation of Partner. Sections 1, 4.2, 4.3, 8 (with respect to accrued obligations), 10, 11, 15, 16, 17, 19, and 20 survive termination.
14.4 Sell-Off Period. If this Agreement is terminated other than for Partner’s breach of Section 4, 10, 11, or 18, Partner may sell through any pre-paid or inventoried Subscription Term that has been ordered from Provider prior to the termination date, in each case in accordance with this Agreement, for a period of up to ninety (90) days following termination (the “Sell-Off Period”).
15. Indemnification
15.1 Indemnification by Partner. Partner shall defend, indemnify, and hold harmless Provider and its Affiliates, and their respective officers, directors, employees, and agents, from and against any third-party claim, demand, suit, or proceeding (“Claim”), and any losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to (a) Partner’s breach of this Agreement, or any Partner Order Form; (b) any unauthorized representation, warranty, or commitment made by Partner regarding the Services; (c) any breach by Partner of Section 4 (Activities and Restrictions), Section 9 (IP), Section 10 (Confidentiality), or Section 17 (Compliance); (d) Partner’s value-added services or any other products or services Partner provides to End Customers (other than the Services themselves); (e) any failure of Partner to procure the End Customer’s acceptance of the End-Customer MSA in accordance with Section 5; or (f) any negligence, willful misconduct, or fraud by Partner or its personnel.
15.2 Indemnification by Provider. Provider’s indemnification obligations to End Customers (if any) are set forth in the End-Customer MSA and run only to the End Customer. Provider shall not indemnify Partner for any claim by an End Customer or any third party arising out of Partner’s activities under this Agreement; provided that, to the extent the End-Customer MSA provides for Provider indemnification of the End Customer and an End Customer asserts such a claim through Partner, Provider shall handle such claim in accordance with the End-Customer MSA and shall, to the extent of the End-Customer MSA’s indemnification, hold Partner harmless from such pass-through claim.
15.3 Procedure. The indemnified Party shall promptly notify the indemnifying Party of any Claim, allow the indemnifying Party to control the defense and settlement of the Claim (provided that the indemnifying Party shall not settle any Claim in a manner that imposes liability on the indemnified Party without the indemnified Party’s prior written consent), and provide reasonable cooperation in the defense at the indemnifying Party’s expense. The indemnified Party may participate in the defense at its own expense with counsel of its choice.
16. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY (INCLUDING BREACH OF CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, AND OTHERWISE) FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL, OR REPUTATION; (iii) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (iv) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT (OTHER THAN PARTNER’S PAYMENT OBLIGATIONS UNDER SECTION 7) EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY PARTNER TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE LIABILITY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 17 APPLY EVEN IF ANY STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Compliance with Law
17.1 General. Each Party shall comply with all applicable laws and regulations in the performance of this Agreement, including those relating to data protection, consumer protection, competition, antitrust, anti-corruption, anti-money laundering, sanctions, and export control.
17.2 Anti-Corruption. Partner represents and warrants that, in connection with the Services and this Agreement, Partner has not and will not, directly or indirectly, offer, promise, give, or authorize the giving of anything of value to any government official, political party, or other person for the purpose of obtaining or retaining business or any improper advantage, in violation of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, or any other applicable anti-corruption law.
17.3 Sanctions and Export Controls. Partner shall not, directly or indirectly, sell, deliver, or otherwise make the Services available to any person or in any country in violation of U.S. export-control laws and regulations (including the Export Administration Regulations administered by the U.S. Department of Commerce), U.S. sanctions administered by OFAC, EU export-control rules, French export-control rules, or any other applicable export-control or sanctions law. Partner represents that it is not, and is not controlled by or acting on behalf of, a Sanctioned Person, and Partner shall promptly notify Provider if that status changes.
17.4 Information Security. Partner shall maintain reasonable information-security controls to protect any Provider Confidential Information and any End Customer information that Partner may receive in the course of marketing, selling, or supporting the Services.
18. General Provisions
18.1 Governing Law and Jurisdiction. This Agreement is governed by, and construed in accordance with, the internal laws of the State of New York, without giving effect to any conflict-of-laws principle that would result in the application of the laws of any other jurisdiction. The Parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the City and County of New York, New York, for any action arising out of or relating to this Agreement, and waive any objection to such jurisdiction or venue.
18.2 Notices. All notices under this Agreement must be in writing and delivered by (a) personal delivery, (b) nationally recognized overnight courier (with all fees pre-paid), (c) email (with confirmation of transmission), or (d) certified or registered mail (return receipt requested, postage pre-paid), in each case to the addresses set forth on the signature page or such other address as a Party may designate by notice. Notices are effective on receipt.
18.3 Assignment. Partner shall not assign or delegate this Agreement or any of its rights or obligations hereunder, whether voluntarily, by operation of law, or otherwise (including in connection with a change of control), without Provider’s prior written consent. Any purported assignment in violation of this Section is null and void. Provider may assign this Agreement to an Affiliate or in connection with a merger, acquisition, reorganization, or sale of substantially all of its assets, on written notice to Partner. This Agreement binds and inures to the benefit of the Parties and their respective permitted successors and assigns.
18.4 Force Majeure. Neither Party is liable to the other for any failure or delay in performance (other than payment obligations) caused by circumstances beyond its reasonable control, including acts of God, war, terrorism, civil unrest, government action, epidemic or pandemic, fire, flood, earthquake, labor disputes, and disruption of telecommunications or infrastructure. The affected Party shall promptly notify the other Party and use commercially reasonable efforts to mitigate the impact. If a force-majeure event persists for more than sixty (60) days, either Party may terminate this Agreement on written notice.
18.5 Entire Agreement; Order of Precedence. This Agreement (including all Schedules and each Partner Order Form executed hereunder) constitutes the entire agreement between the Parties with respect to the subject matter and supersedes all prior and contemporaneous understandings, agreements, and representations. In the event of conflict, the order of precedence is: (a) the Partner Order Form (as to commercial terms expressly set forth therein); (b) the Applicable Schedule; (c) this Agreement’s body. Any pre-printed terms in a purchase order or similar document issued by Partner are void and have no effect.
18.6 Amendment; Waiver. No amendment to this Agreement is effective unless in writing signed by both Parties. No waiver of any provision of this Agreement is effective unless in writing signed by the waiving Party. A failure to enforce any provision is not a waiver of the right to enforce it later.
18.7 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable, the remaining provisions remain in full force and effect, and the Parties shall negotiate in good faith to replace the invalid provision with a valid provision that achieves the same economic and legal intent.
18.8 Counterparts; Electronic Signature. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together constitute one and the same instrument. Electronic signatures (including DocuSign or similar) have the same legal effect as original signatures.
18.9 No Third-Party Beneficiaries. Except as expressly stated in this Agreement, no person other than the Parties has any right or remedy under or in connection with this Agreement.
Schedule A — Reseller Terms
This Schedule A applies to any Partner Order Form that designates Partner as a Reseller. In the event of a conflict between this Schedule A and the body of the Agreement, this Schedule A controls solely with respect to Partner Order Forms designating Partner as a Reseller.
A.1 Reseller Appointment
Provider appoints Partner as a non-exclusive Reseller of the Services in the Territory specified in each Partner Order Form. Partner shall purchase Services from Provider and resell them directly to End Customers under Partner’s own ordering document that references and incorporates the End-Customer MSA.
A.2 End Customer Relationship
Partner owns the commercial relationship with the End Customer (including invoicing, collection, and value-added services). Provider owns the contractual and technical relationship with the End Customer under the End-Customer MSA (including support, security, and data protection). Partner shall not interfere with Provider’s direct relationship with the End Customer.
A.3 Support
Where a specific Partner Order Form so designates, Partner may provide support to End Customers in accordance with the support standards published by Provider. Partner shall escalate to Provider promptly any matter that exceeds the scope of support they can reasonably provide or that involves a confirmed Security Incident.
A.4 No Sub-Resale
Partner shall not appoint sub-resellers, sub-distributors, or agents to resell or distribute the Services. Resale to End Customers must be made by Partner directly.
Schedule B — Distributor Terms
This Schedule B applies to any Partner Order Form that designates Partner as a Distributor. In the event of a conflict between this Schedule B and the body of the Agreement, this Schedule B controls solely with respect to Partner Order Forms designating Partner as a Distributor.
B.1 Distributor Appointment
Provider appoints Partner as a non-exclusive Distributor of the Services in the Territory specified in each Partner Order Form. Partner shall purchase Services from Provider for resale exclusively through a network of Provider-approved Sub-Resellers. Partner is not authorized to sell the Services directly to End Customers, except as expressly authorized in writing by Provider.
B.2 Sub-Reseller Network
Partner shall (a) recruit, qualify, and onboard Sub-Resellers using selection criteria approved by Provider; (b) execute a written reseller agreement with each Sub-Reseller that contains terms no less protective of Provider than those in this Agreement, including back-to-back pass-through of the End-Customer MSA, IP, confidentiality, compliance, and audit obligations; (c) provide Provider with a list of all active Sub-Resellers and update the list at least monthly; and (d) ensure Sub-Resellers comply with Provider’s brand guidelines, and applicable laws. Provider may, on reasonable grounds (including non-compliance with this Agreement, an unsatisfactory background check, or sanctions/export-control concerns), require Distributor to remove a specified Sub-Reseller from the network on written notice.
B.3 Distributor Support
Distributor is responsible for providing support to Sub-Resellers and, where Sub-Resellers do not themselves provide support to End Customers, for ensuring Sub-Reseller support standards. Distributor shall escalate to Provider any matter that exceeds the scope of support they can reasonably provide or that involves a confirmed Security Incident, in accordance with the support standards published by Provider.
B.8 Provider’s Direct Engagement Right
Notwithstanding Distributor’s appointment, Provider retains the right to engage with End Customers directly with respect to the End-Customer MSA, support, security incidents, data protection, and any matter requiring direct Provider involvement. Provider shall use commercially reasonable efforts to keep Distributor informed of material direct engagements with End Customers in the Territory.
B.9 Distributor Liability for Sub-Resellers
Distributor is liable to Provider for the acts and omissions of each Sub-Reseller in connection with the Services and the End-Customer MSA as if such acts and omissions were Distributor’s own. Distributor shall indemnify Provider against any claim arising out of a Sub-Reseller’s breach of its agreement with Distributor or its activities in connection with the Services, on the terms set forth in Section 15 of the Agreement.
