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