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Reseller

RHOMBUS SYSTEMS RESELLER AGREEMENT

This Reseller Agreement (“Agreement”) is made by and between Rhombus Systems, Inc., a Delaware corporation, with its principal office located at 1610 R Street, Suite 350, Sacramento, CA 95811 ("Company"), and the "Reseller" as listed on the Application Submission to follow, as of the date on which the Application to become an Authorized Rhombus Reseller (“Application”) is approved ("Effective Date").

This Agreement includes the Terms and Conditions (as listed below) and any Exhibit(s). There shall be no force or effect to any different or additional terms of any related purchase order, confirmation or similar form even if signed by the parties after the date hereof.

By submitting an Application, applicant attests to being a duly authorized officer or appointed representative of the Reseller and is empowered to enter into a legally binding agreement with Company.

TERMS AND CONDITIONS

  1. Appointment; Products. Subject to all the terms and conditions of this Agreement, Company hereby appoints Reseller for the term of this Agreement as a nonexclusive reseller (if Reseller is purchasing directly from Company) or sub-Reseller (if Reseller is purchasing indirectly through a Distributor (as defined below)) of the products sold by Company (“Products”) only to end customers who agree, in writing, to the terms located at Rhombus Systems (as may be updated by Company at any time – the “End User Terms”). Reseller may either purchase the Products from a Company-authorized wholesale distributor (“Distributor”) or directly from Company. Company, in its sole discretion, may update Reseller’s direct purchase terms set forth in Section 2 below, up to, and including, the discontinuation of allowing Reseller to purchase directly from Company, at any time. Reseller shall secure each end customer’s written agreement to the End User Terms in any legally binding, and appropriate given industry customs, manner (for example, via inclusion of the foregoing link, together will appropriate legal verbiage, in a quote or purchase order executed by the end customer). Company may add Products and remove any discontinued Products.
  2. Fees; Payment and Supply Terms.
    1. All fees payable for the Products, and applicable shipping and delivery terms, will be as agreed between Reseller and either Distributor if Reseller orders indirectly, or with Company if Reseller orders directly. For orders placed directly with Company, prices payable by Reseller for the Products are those set forth in the Company’s then current Price Book (a copy of which can be viewed from within the Rhombus Reseller Partner Portal). Company shall have the right, in its sole discretion, at any time to change such prices with fifteen (15) days written notice. New prices will apply to all orders accepted by Company after such notice period. For orders placed directly with Company, Reseller will pay all charges, including without limitation taxes, unless Reseller provides appropriate Resale Certificates. Payment shall be made in US. Dollars in the United States. For orders placed directly with Company, Company will invoice Reseller upon each shipment. For orders placed directly with Company, Reseller shall pay Company directly all amounts invoiced within 30 days from Invoice Date. Late Payments may be subject to a finance charge of 1.5% per month on all outstanding balances owed to Company by Reseller.
    2. For orders placed directly to Company, all Products are delivered to the location designated in Reseller’s order that are accepted by Company (FCA 2010 from Company’s point of shipment). During the term of this Agreement, subject to the other terms and conditions of this Agreement, Company shall use its reasonable commercial efforts to meet the delivery dates requested in Reseller's orders that are accepted by Company, insofar as practical and consistent with Company' then-current lead-time schedule, shipping schedule, access to supplies on acceptable terms and allocation of available products and capacity among Company customers. Unless agreed to by Company in writing (email is sufficient), Reseller may not modify or cancel any order once it has been accepted by Company.
    3. Any software incorporated into or provided for use in or with a Product (whether initially, as part of maintenance or support or otherwise) is not sold, but rather is licensed solely for the end user’s internal use only as installed in such Product and strictly in accordance with the documentation and any other use restrictions applicable for that Product. Company retains all right, title and interest relating to the software; no other licenses express or implied are granted. Reseller and its customers are not entitled to receive any source code or source documentation relating to such software.
  3. Reseller Covenants and Representations. Reseller represents, warrants, and agrees:
    1. Not to (i) disassemble, decompile or otherwise reverse engineer the Products, or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Products, provided that clause (i) shall not apply to the extent it is expressly prohibited by applicable law (ii) copy or modify the Products, (iii) remove any names, designations or notices from any Product; or (iv) allow others to do any of the foregoing.
    2. To diligently market (including, without limitation, undertaking and completing the marketing activities described in Exhibit A, if any), distribute and support (including installation, training and other support) the Products on a continuing basis and to comply with good business practices and all laws and regulations relevant to this Agreement or the subject matter hereof. In its distribution efforts, Reseller will use the then-current names used by Company for the Products (but will not represent or imply that Reseller is Company or is a part of Company); provided that all advertisements and promotional materials shall be subject to prior written approval of Company, which approval shall not be unreasonably withheld, and, provided further, that no other right to use any name or designation is granted by this Agreement.
    3. To keep Company informed as to any problems encountered with the Products and any resolutions arrived at for those problems, and to communicate promptly to Company any and all modifications, design changes or improvements of the Products suggested by any customer, employee or agent. Reseller further agrees that Company shall have and is hereby assigned any and all right, title and interest in and to any such suggested modifications, design changes or improvements of the Products, without the payment of any additional consideration therefor either to Reseller, or its employees, agents or customers. Reseller will also promptly notify Company of any infringement of any trademarks or other proprietary rights relating to the Products.
    4. To comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority and not to export or re-export, or allow the export or re-export of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations; Reseller shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of the Products to any location in compliance with all applicable laws and regulations prior to delivery thereof by Company.
    5. To comply with and to obtain any necessary registrations and approvals required in a territory of resale or distribution.
    6. To distribute the Products only to end customers that have entered into the End User Terms.
    7. To be responsible for Tier 1 support to end customers (as further described in Exhibit A).
  4. Limited Warranty; Disclaimer; Indemnity.
    1. All warranties, if any, with respect to the quality and condition of the Products, will be as made by Company to the end customers pursuant to the End User Terms. Products obtained from Company that do not comply with the warranty and are returned by Reseller or the end customer to Company during the warranty period (as shown by appropriate documentation) in full accordance with Company’s return material authorization policy (“RMA Policy”) in effect at the time of such return - will be repaired or replaced at Company's option, provided Reseller or the end customer (as applicable) bears the cost of freight and insurance to the point of repair or return. Company will bear the cost of freight and insurance for return of goods to Reseller or the end customer (as applicable). If Company cannot, or determines that it is not practical to, repair or replace the returned Product, the price therefor paid to Company will be refunded. In addition, Company will accept non-defective product returns from Reseller for a term of up to sixty (60) days from original sale date, or the time period as stated in the End User Terms, whichever is shorter. Provided the returned Products comply with the RMA Policy, Company will issue a refund to Reseller in an amount equal to the purchase price of the Product paid to Company by Reseller. COMPANY MAKES NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS OR ANY SERVICES AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS. RESELLER SHALL NOT MAKE ANY WARRANTIES TO ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, END CUSTOMERS) ON BEHALF OF, OR THAT OTHERWISE MAY BIND, COMPANY. The above warranty does not extend to any Product that is modified or altered, is not maintained to Company' maintenance recommendations, is operated in a manner other than that specified by Company, has its serial number removed or altered or is treated with abuse, negligence or other improper treatment (including, without limitation, use outside the recommended environment). Reseller's sole and exclusive remedy with respect to any warranty or defect is set forth in this Section. Reseller is fully responsible for satisfaction of its end customers and will be responsible for all claims, damages, settlements, expenses and attorneys' fees incurred by Company with respect to Reseller's customers or their claims beyond Company' above warranty obligation to Reseller.
    2. Company shall defend Reseller and its officers, directors, agents and employees from claims by a third party arising from infringement by the Product of any United States patent issued as of the date of delivery of the applicable Product or any United States copyright provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise; Company will not be responsible for any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE HEREBY DISCLAIMED. The foregoing obligation of Company does not apply with respect to Product or portions or components thereof (i) that are not supplied by Company, (ii) that are made in whole or in part in accordance to Reseller specifications, (iii) that are modified after shipment by Company, if the alleged infringement relates to such modification, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Reseller continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) where Reseller's use of the Product is incident to an infringement not resulting primarily from the Product or (vii) where Reseller's use is not strictly in accordance with this Agreement and all applicable licenses and documentation; Reseller will indemnify Company and its officers, directors, agents, and employees from all damages, settlements, attorneys' fees and expenses related to a claim of infringement or misappropriation excluded from Company’ indemnity obligation by this sentence.
  5. Limited Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, COMPANY WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) AMOUNTS THAT IN THE AGGREGATE ARE IN EXCESS OF THE AMOUNTS PAID TO COMPANY HEREUNDER DURING THE TWELVE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA, OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, OR SERVICES, OR (IV) FOR LOSS OR CORRUPTION OF DATA OR INTERRUPTION OF USE. COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL.
  6. Relationship of Parties. The parties hereto expressly understand and agree that Reseller is an independent contractor in the performance of each and every part of this Agreement, is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and is responsible for and will indemnify Company from any and all claims, liabilities, damages, debts, settlements, costs, attorneys' fees, expenses, and liabilities of any type whatsoever that may arise on account of Reseller's activities, or those of its employees or agents, including without limitation, providing unauthorized representations or warranties (or failing to disclose all limitations on warranties and liabilities set forth herein on behalf of Company) to its customers or breaching any term, representation or warranty of this Agreement. Company is in no manner associated with or otherwise connected with the actual performance of this Agreement on the part of Reseller, nor with Reseller's employment of other persons or incurring of other expenses. Except as expressly provided herein, Company shall have no right to exercise any control whatsoever over the activities or operations of Reseller.
  7. Assignment. This Agreement and the rights hereunder are not transferable or assignable by Reseller without the prior written consent Company. Company may freely assign or transfer this Agreement and the rights hereunder.
  8. Term and Termination.
    1. This Agreement will continue in force for one (1) year after the Effective Date unless terminated earlier pursuant to this Section 8. After the initial one (1) year term, the Agreement will automatically renew for consecutive one (1) year periods, unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.
    2. This Agreement may be terminated by a party for cause immediately by written notice upon the occurrence of any of the following events:
      1. If the other ceases to do business or otherwise terminates its business operations without a successor; or
      2. If the other shall fail to promptly secure or renew any license, registration, permit, authorization or approval for the conduct of its business in the manner contemplated by this Agreement or if any such license, registration, permit, authorization or approval is revoked or suspended and not reinstated within five (5) days; or
      3. If the other materially breaches any material provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of a failure to pay) of written notice describing the breach; or
      4. If the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within 90 days).
    3. Either party may terminate this Agreement at any time with or without cause upon 60 days' written notice
    4. Company may terminate this Agreement upon written notice if Reseller is acquired by or merges with a third party or there is a change in control of Reseller.
    5. Each party understands that the rights of termination hereunder are absolute and that it has no rights to a continued relationship with the other after termination except as expressly stated herein. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination of this Agreement by such party that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses.
    6. In the event of any termination, Company may elect to continue or terminate any order then pending.
  9. Effect of Termination. Upon termination of this Agreement for any reason:
    1. All licenses and other rights granted to Reseller under this Agreement will become null and void (provided that, Reseller may continue to distribute Products in its inventory on the date of termination under the terms and conditions of this Agreement for one hundred and eighty (180) days after such termination (but if termination if for Reseller’s breach, such continued activity will only be with Company’s written consent – email is sufficient) (“Wind Down”));
    2. Reseller will surrender all copies of Confidential Information, catalogs, literature and other Company materials in its possession or control, or at Company’ option, destroy such materials;
    3. All outstanding obligations or commitments of either party to pay amounts to the other party, if any, will become immediately due and payable; and (d) for orders of Product in place and not shipped at the time of termination, Company will have the option to cancel or fulfill the order; and
    4. Sections 4(b) and 5 through 13 (excepting 12) of this Agreement will survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
  10. Proprietary Rights and Trademarks. As between the parties, Company and/or its suppliers have all right, title and interest in and to the Products, and in and to all patents, copyrights, trade secrets, and know-how relating to the Products, all copies and derivative works thereof. Reseller will use Company’ then-current names, marks, logos, and other identifiers for the Products (“Trademarks”) and Company designated intellectual property related notices on or in the packaging for the Products and Reseller’s advertising and promotional materials for such Products, provided that Reseller will: (a) only use Trademarks in the form and manner, and in accordance with the quality standards and usage guidelines that Company specifically prescribes; and (b) upon termination of this Agreement for any reason, immediately cease all use of the Trademarks. Reseller will not use, register or take other action with respect to any name, logo, trademark, service mark, or other identifier used anywhere in the world by Company, except to the extent authorized in writing by Company in advance.
  11. Confidential Information. Reseller agrees that all code, inventions, algorithms, designs, know-how, ideas, and all business, technical and financial information it obtains from Company are the confidential property of Company and its suppliers (“Confidential Information”). Reseller will hold in confidence and not use or disclose any Confidential Information without the prior written consent of Company. Reseller agrees to take all necessary precautions to protect the Confidential Information from unauthorized disclosure or use. Reseller’s nondisclosure obligation will not apply to information it can document is generally available to the public (other than through breach of this Agreement). Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that Company’ remedies at law for a breach by Reseller of its obligations under this Section 11 will be inadequate and that Reseller will be entitled to equitable relief (including without limitation provisional and permanent injunctive relief and specific performance) in addition to any other remedies.
  12. Support. Each party will use commercially reasonable efforts to comply with the support obligations set forth in Exhibit A attached hereto.
  13. General. All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed fax, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). For all purposes of this Section 13, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

 

 

Exhibit A

Reseller’s Tier 1 Support Commitments:

Reseller shall provide, at a minimum, Tier 1 Support (first customer call) for all Rhombus Products sold to Customers by Reseller. Tier 1 Support will include: (i) providing general product information; (ii) configuration support; (iii) collection of relevant technical problem identification information; (iv) filtering dummy problems from real technical problems; and (v) troubleshooting common technical problems or questions, including non-Rhombus problems or questions.