These terms and conditions are an agreement between Cumulus Networks, Inc. (“Cumulus”) and the entity you are employed by or represent (“You” or “Company”).
By participating in the Cumulus reseller network, reselling the Licensed Product, or placing any orders for the Licensed Product as a reseller of the Licensed Product You confirm that you accept these terms in connection with such activity and You represent and warrant that you have the authority to bind Your employer or the entity You represent. IF YOU DO NOT ACCEPT THESE TERMS, DO NOT PARTICIPATE IN THE CUMULUS RESELLER NETWORK, RESELL THE LICENSED PRODUCT OR PLACE ANY ORDERS AS A RESELLER OF THE LICENSED PRODUCT. BY TAKING ANY SUCH ACTIONS YOU ACCEPT AND AGREE TO ABIDE BY THIS RESELLER AGREEMENT (“Agreement”).
1.1 “Distributor” shall mean an entity that is authorized by and subject to a valid written agreement with Cumulus for the distribution of Licensed Products to Company.
1.2 “End Users” shall mean individuals or entities that are approved by Cumulus and purchase a license of the Licensed Products from Company under this Agreement solely for their own use and not further distribution or sale.
1.3 “License Key” shall mean a series of characters provided by Cumulus and entered during the installation of the Licensed Product to unlock its functionality.
1.4 “Licensed Product” shall mean the machine-readable, executable code of the identified Cumulus product software made generally commercially available, including any documentation and manuals relating thereto, and any modifications or updates of the forgoing, that Cumulus makes available to Company under this Agreement.
1.5 “Territory” shall mean the geographical territory in which the Distributor from whom Company licenses the Licensed Product is authorized to distribute such products, as determined by a binding written distribution agreement between Distributor and Cumulus.
2. License and Terms of Distribution.
2.1 Appointment Terms. Following a written approval by Cumulus of the Your partner application form, and subject to the terms and conditions of this Agreement, Cumulus will appoint Company as a Cumulus non-exclusive, independent, 2nd tier reseller of licenses to the Licensed Products only to End Users located in the Territory. Company may only purchase licenses to the Licensed Product directly from a Distributor. Company will not promote, advertise, market, sell or otherwise distribute the Licensed Products outside the Territory without prior written consent from Cumulus. Cumulus expressly reserves the right to advertise, market, sell or otherwise distribute the Licensed Products directly or through other distributors, resellers, system integrators and/or other channels. You hereby represent and warrant that the information you provide to the Cumulus in connection with this appointment, including but not limited to the information provided in the partner application form is accurate.
2.2 License Grant. Subject to the terms and conditions of this Agreement, Cumulus hereby grants to Company a revocable, non-exclusive, non-assignable, non-transferable license to advertise, market, sell or otherwise distribute the Licensed Products in the Territory; provided that, Cumulus shall retain the right to reject any sale of the Licensed Products by Company for any reason whatsoever.
2.3 Restrictions. Except as expressly provided herein, Company shall not, and shall not allow any third party to: (i) modify or create derivative works of the Licensed Products; (ii) reverse engineer or attempt to discover any source code or underlying ideas of the Licensed Products (except to the extent that applicable law prohibits reverse engineering restrictions), (iii) remove or alter any product identification, trademark or other notices appearing within or on the Licensed Products; or (iv) distribute the results of performance studies to third parties. Company shall be solely responsible for the observance and compliance with all terms and conditions hereunder by its employees and any other third party who has been permitted access to the Licensed Product as a result of Company’s action or inaction. Company shall indemnify, hold harmless and defend Cumulus and its licensors from and against any claims or suits, including attorneys' fees and expenses, which arise or result from any unauthorized or illegal use or distribution of the Licensed Products.
3. Obligations of Company. Although Cumulus may publish suggested wholesale or retail prices for the Licensed Products, Company shall at all times be free to determine the actual prices at which the Licensed Products will be licensed, provided however, that Licensed Products may not be licensed on a perpetual basis or for any term longer than the longest term on the suggested price list.
4. Trademarks. Subject to the terms and conditions of this Agreement, Cumulus grants to Company a revocable, non-exclusive, non-assignable, non-transferable license to use and display Cumulus logos and trademarks associated with the Licensed Products (“Trademarks”) solely to market, sell licenses to, and distribute the Licensed Products. Company’s use of the Trademarks shall at all times be in accordance with the then current Cumulus trademark usage guidelines. Company acknowledges and agrees that Cumulus owns the Trademarks and that any and all goodwill derived from the use of the Trademarks by Company hereunder inures solely to the benefit of Cumulus. Company will at no time contest or aid in contesting the validity or ownership of any Trademark or take any action in derogation of the Cumulus rights therein, including without limitation applying to register any trademark, trade name, service mark or other designation that is identical or similar to any Trademark.
5. Proprietary Rights. Company acknowledges that the Licensed Products, including the structure, organization and design of software included as part of the Licensed Products, contain valuable intellectual property of Cumulus. As between Company and Cumulus, Cumulus owns all right, title and interest in and to the Licensed Products, including all modifications or derivative works thereof, and all copyright, trade secret, trademark, patent and other intellectual property rights therein. Except for the rights expressly granted by Cumulus to Company under this Agreement, (a) Cumulus reserves all right, title and interest in and to the Licensed Products and all intellectual property rights therein and (b) no right, title, ownership interest or license in or to the Licensed Products, whether by implication, estoppel or otherwise, is granted, assigned or transferred to Company.
6. Orders. All orders for the Licensed Products will be in writing. All orders for Licensed Products licensed to End Users will be subject to written acceptance by Cumulus, and no purchase order will be binding upon Cumulus until such acceptance has occurred. All agreements between Company and an End User must ensure Cumulus may freely exercise this right. Company acknowledges and agrees that all of Company’s orders will be governed exclusively by this Agreement and nothing contained in any such order will in any way modify or add any additional terms or conditions, even if Cumulus accepts or acknowledges such an order. All agreements between Company and an End User shall (a) only offer the Licensed Products on a term-limited basis as offered publicly by Cumulus; (b) expressly note that the software © 2015 Cumulus Networks, Inc. All Rights Reserved; (c) require the End User to execute a Cumulus Networks Software Letter of Destruction within thirty (30) days of any termination or expiration of licenses under this Agreement; and (d) bind the End User to terms which are no less protective of Cumulus than the Cumulus End User Licensing Agreement, which is available at http://cumulusnetworks.com/downloads/eula and hereby incorporated by reference.
7. Confidentiality Obligations. “Confidential Information” means any technical or business information of Cumulus, including without limitation, any information relating to its current and future products and services, research, procurement requirements, and customer lists, and any other information that should reasonably be understood by Company to be confidential information. Notwithstanding anything to the contrary, the Licensed Product, the specific terms and conditions of this Agreement, and all information related thereto shall be considered Confidential Information. “Confidential Information” will not include any information that is or becomes generally known to the public through no fault of or breach of this Agreement by Company. Company will at all times, both during the term of this Agreement and for a period of three (3) years after its termination, maintain in confidence all Confidential Information and will not use such Confidential Information for any purpose, except as otherwise expressly permitted herein. Company shall take all measures it uses for its confidential information of similar importance to maintain the confidentiality of such Confidential Information, but in no event less than reasonable measures. Company will limit the disclosure of such Confidential Information to those of its employees and contractors with a bona fide need to access such Confidential Information for a party’s obligations and exercise of its rights under this Agreement; provided that all such employees and contractors are subject to binding use and disclosure restrictions at least as protective as those set forth herein.
8. Disclaimer of Warranties. CUMULUS MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE PERFORMANCE OF THE LICENSED PRODUCTS TO COMPANY OR TO ANY OTHER PERSON, INCLUDING ANY END USERS, EXCEPT AS EXPLICITLY SET FORTH IN THE CUMULUS NETWORKS EULA. TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUMULUS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
9. Limitation of Liability. IN NO EVENT WILL CUMULUS BE LIABLE TO COMPANY OR TO ANY THIRD PARTY, INCLUDING ANY END USER, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, PROFITS, GOODWILL OR SAVINGS, OR LOSS OF DATA, DATA FILES OR PROGRAMS, aRISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE LICENSED PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL THE CUMULUS AGGREGATE LIABILITY TO COMPANY OR ANY THIRD PARTY, INCLUDING ANY END USER, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, EXCEED $1,000 USD.
10. Term and Termination. This Agreement will have an initial term of one (1) year. After the initial term, this Agreement will be automatically renewed for successive one (1) year terms, unless terminated in accordance with Section 10 or unless either party notifies the other party in writing of its intent not to renew this Agreement at least thirty (30) days before the end of the then-current term. The non-breaching party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice from the non-breaching party. Cumulus may unilaterally alter and/or terminate this Agreement upon thirty (30) days prior written notice to Company. Upon any termination of this Agreement: (a) Company will discontinue all use of the Trademarks and sale of subscriptions to Licensed Products; and (b) Company will promptly return to Cumulus or destroy all Confidential Information in its possession or control. Sections 1, and 4 through 11 will survive the termination of this Agreement.
11. Miscellaneous. The rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather such rights and obligations shall be governed by and construed under the laws of the State of California, including its Uniform Commercial Code, without reference to conflict of laws principles and as such laws apply to agreements between California residents entered into and to be performed within California. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in the San Francisco Bay Area before one arbitrator with substantial experience arbitrating claims relating to commercial contracts relating to software. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for injunctive relief without breach of this arbitration provision. No waiver or modification of this Agreement will be binding upon a party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver. Except for payments due under this Agreement, neither party will be responsible for any failure or delay in its performance due to causes beyond its reasonable control, provided that such party gives prompt written notice thereof to the other party and uses its diligent efforts to resume performance. For the term of this Agreement only, Company hereby grants to Cumulus, its affiliates, and its authorized representatives a worldwide, nonexclusive right and license to use and display its name and logo in presentations to third parties for the limited purpose of identifying Company as an authorized reseller of Licensed Products. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be amended to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous discussions and agreements relating to its subject matter. All notices, consents and other communications under this Agreement will be in writing and delivered by courier or overnight delivery service with written verification of receipt, or by registered or certified mail, return receipt requested, and in each instance will be deemed given upon receipt. All such communications to Cumulus will be sent to the addresses set forth above or to such other address as Cumulus may specify in writing. The parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party nor its employees has the authority to bind the other party in any way. Company may not assign this Agreement, in whole or in part, including without limitation by operation of law, without prior written consent from Cumulus. Any attempt to assign this Agreement without such consent will be null and void. Cumulus may freely assign and transfer this Agreement. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Company agrees to comply with all laws and regulations applicable to Company’s performance of its obligations under this Agreement. Without limiting the foregoing, Company acknowledges that the Licensed Products, including documentation and other technical data, are subject to the export control laws of the United States and may be subject to the import and export laws in other countries and Company further agrees to strictly comply with all applicable export and import control laws and regulations. Furthermore, in conformity with the United States Foreign Corrupt Practices Act and with the Cumulus policy, Company and its employees and agents shall not directly or indirectly make, or offer to make, a payment or a gift to a foreign official for the purpose of obtaining or retaining business for or with, or directing business to, any person. This Agreement is in the English language only, which language will be controlling in all respects.