1.1 “Confidential Information” means any nonpublic information, data, materials, intellectual property rights, trade secrets, patents, copyrights, designs, techniques, plans or know-how or any information which by its nature would be understood to be confidential, whether or not marked or designated as confidential at any time, of either Party and in any form or media disclosed by or on behalf of a Party (“Discloser”) to the other Party (“Recipient”) under the Agreement. It is understood and agreed that the Disclosing Party will not furnish to the Receiving Party any source code, information subject to export controls or “personal information” within the meaning of the General Data Protection Regulation (GDPR) or other applicable law, or other non-public personal information of any natural person, except as the Parties may expressly agree in a written supplement hereto. Confidential Information does not include information which Recipient can prove by Recipient’s contemporaneous written files and records: (i) is lawfully in the possession of or known to the Recipient prior to the time of disclosure, without violation of any obligation of confidentiality; (ii) prior to or after the time of disclosure is or becomes publicly known other than as a result of any improper inaction or action of the Recipient; (iii) is lawfully made available to the Recipient by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iv) is developed independently by the Recipient without use of any Confidential Information of the Discloser; (v) is made available to third parties by the disclosing party without restriction on the disclosure of such information; or (vi) is approved by the disclosing party for release in writing.
1.2 “End User” is defined as a third party individual, business or governmental customer which has purchased the Software from Reseller for the End User’s internal business or personal purposes, which may include the provision of services, but not for redistribution or resale except as provided in the End User License Agreement.
1.3 “End User Documentation” is defined as the ReaQta user manual(s) and other written or online materials distributed with the Software by ReaQta that describes the function and use of the Software.
1.4 “End User License Agreement” is defined as the standard ReaQta End User Software License Agreement (henceforth referred to as EULA), or the click-wrap agreement contained within the Software, specifying the terms and conditions on which an End User may use the Software. Reseller shall license all Software hereunder either using the End User License Agreement, or via the Reseller’s own license agreement which shall contain materially similar provisions as the End User License Agreement and which shall protect ReaQta to the same extent it protects itself.
1.5 “Intellectual Property Rights” means patent rights (including but not limited to rights in patent applications or disclosures and rights of priority), copyrights (including but not limited to rights in audiovisual works and moral rights), trade secret rights, and Marks.
1.6 “Marks” is defined as trademarks, trade names, service marks, and/or service names associated with ReaQta and/or the Software.
1.7 “MSSP Agreement” is defined as the standard ReaQta MSSP Agreement specifying the terms and conditions under which a MSSP may distribute, use and manage the Software to End Users, located at: https://www.reaqta.com/legal/MSSP, which may be amended or supplemented from time to time.
1.8 “Services” is defined as utilising the Software for the provision of professional services such as, but not limited to, deployment, training, monitoring, incident response, threat hunting, remediation. This provision of services can either be carried out by MSSP, ReaQta or its third party partner, for the End User’s internal business based on the outlined Scope of Work or Service Level Agreement, but not for redistribution or resale.
1.9 “Software” means the edition and version of ReaQta’s commercially available software specified in the applicable Quotation (or if a version is not specified, the current version of such software as of the Effective Date of this Agreement) and includes new versions that may be provided by ReaQta pursuant to the Agreement. This may include certain software associated with that edition and installed on client endpoints (i.e. endpoints that are not normally accessible over the network by other users), and/or servers and/or cloud based services hosted by or on behalf of ReaQta, including, the web-based user interface and ReaQta Agent software resident on Partner or End User machines. The portions of the ReaQta Software that are delivered hereunder are licensed in object code form only, and are not sold.
1.10 “Third Party Appointment” If Reseller wishes to appoint any other third party (e.g. MSSP, Reseller, etc.) to resell the ReaQta Software to such End Users, Reseller must inform ReaQta with a written notice and enter into a written agreement with that third party, at a minimum, that includes terms and conditions that are consistent with, and no less protective of ReaQta as the provisions of the standard ReaQta Reseller Agreement and/or ReaQta MSSP Agreement, as applicable. Reseller will use its best efforts to enforce each such Agreement and will promptly notify ReaQta of any breach thereof by that third party that might affect ReaQta or any of its rights in the ReaQta Software.
1.11 “Territory” is defined as the geographical regions and/or market segments set forth in Exhibit A.
2. License Grant / Limitations
2.1 “License Grant” Subject to the terms and conditions herein, ReaQta grants to Reseller a fee-bearing, non-exclusive, non-transferable limited license to: (i) distribute the Software in the Territory only to End Users in accordance with the terms and conditions of this Agreement; (ii) to use a limited number of 30-day evaluation copies of the Software for customer evaluations (unless agreed otherwise in writing); (iii) a limited number of Not for Resale (“NFR”) licenses to train its personnel to demonstrate the Software and and (iv) to support and maintain the Software in accordance with the terms and conditions of this Agreement.
2.2 “Restrictions” Reseller acknowledges that any breach of the following restrictions constitutes a material breach of this Agreement for which ReaQta may immediately terminate this Agreement. During the term of this Agreement and thereafter, Reseller agrees not to: (i) use, modify, adapt, translate, localize, or create derivative works of the Software except with the prior written consent of ReaQta or as expressly permitted herein; (ii) decompile, disassemble, reverse engineer or otherwise reduce the Software to human perceptible form; (iii) remove, or allow to be removed, any ReaQta copyright, Mark, trade secret, or other proprietary rights notice from any unit of Software; (iv) transfer, assign, reuse or sub-license the Software licensed to Reseller or an End User to a third party without the prior written consent of ReaQta; and (v) make copies of the Software or related documentation.
2.3 “Limitations” All rights not expressly granted herein are reserved by ReaQta, including the right to distribute the Software in the Territory via ReaQta employees, agents, OEMs, managed service providers, value-added resellers, systems integrators or other resellers or distributors without limitation or any obligation to compensate Reseller therefore. From time to time and without incurring any liability to Reseller, ReaQta may: (i) change, add to or delete from the list of Software and Services available hereunder, (ii) change or terminate the level or type of support that ReaQta offers to Reseller upon thirty (30) days’ written notice, or (iii) request that Reseller purchase Software or other services hereunder through another ReaQta Reseller or other agent upon thirty (30) days’ written notice provided that the terms of the purchase of Software are not materially affected thereby.
3. Reseller Obligations
3.1 “Efforts” Reseller agrees that it shall use commercially reasonable efforts to promote and market the Software and related services in the Territory and to generate sales and respond to inquiries originating in the Territory concerning the Software. In furtherance of this obligation, Reseller hereby agrees to meet the Reseller requirements as set forth in Exhibit B.
3.2 “Distribution” Reseller will deliver all Software to End Users via the use of the End User License Agreement, or the Reseller’s own license agreement as defined in this Agreement. Reseller’s noncompliance with this section shall constitute a material breach of this Agreement for which ReaQta may terminate this Agreement.
3.3 “Reports” If applicable, within thirty (30) days of the end of each calendar quarter during the term of this Agreement, Reseller shall provide ReaQta with a report which includes: (i) actual Software licensed (in the format reasonably requested by ReaQta); (ii) prospective End Users contacted by Reseller by name, projected revenue amounts, and dates; (iii) a rolling sales forecast for all Software sales for the next three (3) months; (iv) marketing activities for the previous quarter and activities planned for the current quarter; (v) current Software inventory levels, if any; (vi) Software support fees activities, and (vii) any other information reasonably requested by ReaQta of Reseller to allow ReaQta to perform its obligations hereunder, including potential errors in the Software identified by Reseller in its provision of technical support which may require workarounds or bug fixes.
3.4 “Marketing Efforts” Reseller shall be provided with promotional literature and demonstration materials as ReaQta may make available from time to time as determined by the Reseller’s Partner tier, where applicable, set forth in Exhibit B. Any press releases regarding the relationship of the parties shall be mutually agreed by the parties prior to such release. Additional marketing requirements and collaboration, if any, are determined by the Reseller’s Partner tier.
3.5 “Competing Products” Prior to signing, and during the term of this Agreement, Reseller shall notify ReaQta in writing (must include Sales Team, email: email@example.com) if it is, or intends to: (i) promote or distribute software products that compete with the Software and/or Service, or; (ii) develop or localize software products that compete with the Software and/or Service. For purposes of this Section, “compete” means that an End User would not reasonably obtain a license to both the Software and the competing product under normal circumstances, or that such software products offer capabilities that are substantially similar, in whole or in significant part, to the Software and/or Service.
3.6 “Support Obligations” For all End Users that are up to date on payment, ReaQta and Reseller will each perform their required level of support based on the Reseller’s Partner Level and in accordance with Exhibit B.
3.7 “Reseller Conduct” Reseller shall at all times comply with all applicable laws and regulations governing the subject matter of this Agreement. Reseller shall conduct business in its own name and in such a manner that reflects favorably at all times on the Software and the goodwill and reputation of ReaQta. Reseller shall not: (i) make or solicit false, misleading or deceptive statements or engage in false, misleading, deceptive, or unethical advertising or practices; (ii) make representations or warranties regarding the Software inconsistent with this Agreement, the End User License Agreement, or the End User Documentation; or (iii) during the term of this Agreement, either directly or indirectly, solicit for employment or hire any individual employed by ReaQta (iv) Reseller shall conduct due diligence to ensure that they are in line with ReaQta’s modern slavery statement which can be found here http://reaqta.com/compliance/modern-slavery-statement.
4. Fees and Payment
4.1 “License Fees” Reseller shall pay ReaQta the applicable license price for the Software and/or Services ordered by or sold to Reseller’s End Users, according to ReaQta’s standard price-book and the applicable discounts determined by the Reseller’s Partner tier, where applicable, as set forth in Exhibit B. Reseller agrees to all pricing terms and conditions set forth in ReaQta’s standard price list and any pricing exhibits attached hereto.
4.2 “Annual Support and Maintenance Fees” Reseller agrees to pay ReaQta, for the Software distributed hereunder, the Professional Services, annual support and maintenance fees. These fees shall be set forth in ReaQta’s standard price list to Reseller. All upgrades, updates and fixes delivered by ReaQta to Reseller for subsequent distribution to Resellers and/or End Users shall become a part of the Software and shall be subject to all terms and conditions of this Agreement and the applicable Reseller Agreement and/or EULA. Upgrades, updates and fixes provided hereunder shall be at ReaQta’s sole discretion, and ReaQta reserves the right to modify its policies regarding the provision, pricing, or availability of upgrades, updates and fixes at any time
4.3 “Consulting Fees” If Reseller requests the services of a ReaQta consultant, ReaQta will provide such services to Reseller at ReaQta’s standard rates as detailed in the ReaQta price list. Reseller shall pay ReaQta for all such services rendered in accordance with the Payment section of this Agreement.
4.4 “Payment” All amounts invoiced to Reseller by ReaQta for the license of Software and/or Services are due and payable net thirty (30) days from the date of the invoice, and/or concurrently with Reseller’s report required in Section 3 for any items not previously invoiced by ReaQta, if applicable. If ReaQta in its sole discretion determines that Reseller’s credit rating or payment record hereunder does not merit “net 30” terms, ReaQta can require that Reseller pay all license and other fees prior to delivery of Software and/or Services. On overdue balances, ReaQta may charge Reseller an interest rate that has been stated in the MLSA and may also suspend delivery of Software and/or Services until all past due payments are made in full.
4.5 “Taxes” Taxes means all taxes, levies, imposts, duties, VAT charges, fines or other charges of whatsoever nature however imposed by any country or any subdivision or authority thereof in any way connected with this Agreement or any instrument or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by either party’s net income or property. All payments or reimbursements under this Agreement and any instrument or agreement required hereunder shall be made free and clear and without deduction for any and all present and future Taxes. Payments due to ReaQta under this Agreement and any instrument or agreement required hereunder shall be increased so that amounts received by ReaQta, after provisions for Taxes and all Taxes on such increase, will be equal to the amounts required under this Agreement and any instrument or agreement required hereunder if no Taxes were due on such payments. All sums stated in this Agreement as being payable by Reseller to ReaQta are exclusive of VAT or other similar Taxes, which amounts shall be borne exclusively by Reseller. The Reseller shall indemnify ReaQta for the full amount of Taxes attributable to the provision of the Software and/or Services under this Agreement, and any liabilities (including penalties, interest and expenses) arising from such Taxes, within thirty (30) days from any written demand by ReaQta. At ReaQta’s request, Reseller shall provide evidence that all applicable Taxes have been paid to the appropriate taxing authority. Without prejudice to the survival of any other Agreement of Reseller hereunder, the obligations of Reseller contained in this section shall survive the payment in full of all payments hereunder.
4.6 “Records: Audits” During this Agreement and for a period of five (5) years thereafter, Reseller shall keep accurate records and accounts in accordance with standard business practices in the computer industry including, but not limited to, End User orders and related information required to verify orders placed and payments made to ReaQta. During the same time period, Reseller shall permit ReaQta and/or its independent accountants to audit the applicable Reseller records and facilities in order to verify Reseller’s compliance with the terms of this Agreement. Reseller records and facilities in order to verify Reseller’s compliance with the terms of this Agreement with prior notice of five (5) working days. Any such audit will be conducted during regular business hours at Reseller facilities and will be paid for by ReaQta. However, in the event that such audit determines that Reseller underpaid ReaQta by more than five percent (5%) of the total amount actually paid ReaQta during the audit period, Reseller shall reimburse ReaQta for all reasonable audit costs in addition to the underpaid amounts and interest due thereon.
4.7 “Reseller Fees” All fees charged by Reseller to End Users for the Software, Professional Services, Support and Maintenance shall be at Reseller’s sole discretion. Reseller acknowledges and agrees that it cannot set off amounts Reseller believes are owed to Reseller by ReaQta against outstanding ReaQta invoices, and Reseller waives any right it may have to do so under applicable law.
4.8 “Price Protection” Changes to the ReaQta standard pricebook for products and services will be communicated to Reseller in writing at least thirty (30) days prior to the date such price change takes effect. In the event of a price: (i) increase, such increase shall apply to all Software units ordered after the date the price increase takes effect, and Reseller cannot purchase more Software units than it purchased in the three (3) months immediately prior to the date such a price increase takes effect, unless Reseller forecast such purchase level in advance of the increase, or (ii) decrease, such decrease shall apply to all units of Software which have been ordered but not shipped, are in transit for delivery to Reseller or are in Reseller’s inventory as of the date such price decrease takes effect. In the event of a price decrease, ReaQta shall have no obligation to refund any amount to the Reseller for Software units invoiced prior to the effective date of the decrease.
5.1 “Orders” Reseller must submit purchase orders to ReaQta for the license of Software and/or Services in a format approved by ReaQta. Such purchase order shall serve only to designate requested quantities and shipment dates; the terms of this Agreement and the End User License Agreement will govern the license of Software hereunder. All purchase orders are subject to acceptance by ReaQta. All purchase orders submitted and accepted by ReaQta are the Reseller’s binding obligation to license Software as designated on such purchase orders.
5.2 “Shipment” ReaQta will use commercially reasonable efforts to meet Reseller’s requested delivery dates; however, all ReaQta delivery dates, unless otherwise specified, are only estimates for Reseller’s planning purposes and are not binding. In its sole discretion, ReaQta may refuse to accept purchase orders, delay shipments, or reschedule shipments of Software without incurring any liability therefore. Reseller acknowledges that ReaQta will not be liable for any damages, whether direct, special, consequential or otherwise, to Reseller or to any third party for the failure to deliver Software and/or Services, or for any delay or error in the delivery of Software and/or Services for any reason whatsoever.
5.3 “Return Merchandise Authorization” If a Delivery cannot be completed due to technical issues related to ReaQta Software, should the purchase have already been paid, Reseller may request a full refund to ReaQta within thirty (30) calendar days after purchase by Reseller’s customer; provided, however that Reseller shall first give prompt written notice to ReaQta of any issue related to ReaQta Software (no later than within ten (10) business days after delivery of ReaQta Software to Reseller or discovery of issues). If Reseller fails timely to give such notice, Reseller shall be deemed to have accepted the Product.
5.4 “Return and Inventory Upgrades” With the sole exception of the conditions listed in the above 5.c article, ReaQta will not accept returns of Software units from Reseller nor will ReaQta provide Reseller with any allowance, credit or discount for Software which Reseller may wish to return, or for other fees paid or due ReaQta hereunder.
6. Title / Ownership
6.1 “Title” Title, ownership rights and all Intellectual Property Rights in the Software belong exclusively to ReaQta and/or its licensors. All references in this Agreement to the “sale” or “purchase” of the Software signify only the delivery of Software to Reseller subject to the terms set forth in this Agreement. This Agreement grants no additional express or implied license, right or interest in any copyright, patent, trade secret, trade name, Mark, invention or other Intellectual Property Right of ReaQta. Reseller will not sell, assign, lease, transfer, encumber or allow any security interest in the Software, or take any action that would cause the Software to be placed in the public domain.
6.2 “Marks” Any use of Marks must be approved in advance by ReaQta in its sole discretion. Subject to the foregoing, Reseller shall include all applicable Marks in any literature, promotion or advertising which it produces or distributes, and any such permitted use, advertising, distribution, or reproduction shall be solely in connection with Reseller’s exercise of its marketing and distribution rights hereunder. All Marks shall be in the form, location, and quality specified by ReaQta in accordance with its guidelines for the use of the Marks, a copy of which have been provided to Reseller and may be updated from time to time. The grant to use the Marks hereunder does not grant any right to assign, sub-license or otherwise permit the use of the Marks by any other party. Upon termination of this Agreement, Reseller shall have no further right to use, advertise, reproduce, or distribute such Marks and shall cease all such use of the Marks and will not thereafter use any mark which is confusingly similar to the Marks to market or distribute its products. Reseller agrees that its use of the Marks hereunder shall enure to the benefit of ReaQta and that Reseller shall not take any action inconsistent with such ownership (including any act or omission which infringe or encourage infringement of the Marks in the Software).
6.3 “Breach” Reseller agrees to use reasonable efforts to protect ReaQta’s Intellectual Property Rights, and to cooperate at ReaQta’s sole expense in efforts to protect such rights. Reseller further agrees to promptly notify ReaQta of any suspected breach of ReaQta’s Intellectual Property Rights of which Reseller becomes aware.
7.1 “Non-disclosure Obligations” Neither party shall disclose any Confidential Information of the other party without such party’s express written permission. Both parties shall use the highest commercially reasonable degree of care to protect the other party’s Confidential Information, including ensuring that its employees and subcontractors receive Confidential Information only on a need-to-know basis and have agreed in writing not to disclose the Confidential Information. Either party shall promptly notify the other party of any actual or suspected unauthorized use or disclosure of the other party’s Confidential Information, and shall provide reasonable assistance, at its cost, in the investigation and prosecution of such unauthorized use or disclosure.
7.2 “Exceptions to Non-disclosure Obligations” The obligations of each party under the foregoing section shall not apply to any materials or information that: (i) is or becomes a part of the public domain through no act or omission of the recipient or its employees or contractors; (ii) is known to it at the time of disclosure as demonstrated by written documentation pre-dating such disclosure; (iii) is disclosed to one of the parties by a third party which has a right to do so; or (iv) is required to be disclosed pursuant to an order of any competent governmental authority, court or agency, provided the party required to disclose such information shall furnish prior notice to the other party, and give that party an opportunity to oppose disclosure.
7.3 “Injunctive Relief” Monetary damages will not be an adequate remedy if this Section 7 is breached; therefore, the injured party may, in addition to any other legal or equitable remedies, seek an injunction or similar equitable relief against such breach.
8. Limited Warranties / Limitations of Liability
8.1 “Limited Warranty” ReaQta warrants that to the best of ReaQta’s knowledge, the Software does not violate any third party’s EU patents or copyrights in effect as of the Effective Date hereof.
8.2 “Indemnification by ReaQta” ReaQta shall, at its expense, indemnify and hold Reseller harmless from and against any award of damages or ReaQta-approved settlement arising from a claim based on an allegation that the Software infringes a third party’s intellectual property rights as set forth in the preceding section, provided that: (i) Reseller promptly gives ReaQta written notice of the claim; (ii) Reseller provides all reasonable assistance in the defense of the claim; and (iii) ReaQta controls the defense or settlement of the claim. If a permanent injunction is obtained against the use of the Software or if, in ReaQta’s opinion, such an injunction is likely to be obtained, ReaQta may, at its sole option, obtain the right to continued use of the Software, substitute other equivalent software, modify the Software so it is no longer infringing, or terminate the licenses in the Software units sold to Reseller, crediting Reseller an amount equal to license fees paid only for such Software licenses hereunder on a depreciated basis over a five (5) year term. The foregoing indemnity does not apply to any infringement claim arising if the Software: (i) has been modified by parties other than ReaQta or without ReaQta’s prior written authorization to do so; (ii) has been used in conjunction with other software and/or hardware which gives rise to an infringement claim if the use of the Software alone would not give rise to such infringing situation; or (iii) is other than the most current version if use of such current version would have avoided the infringing situation.
8.3 “Limitation” THE FOREGOING SECTIONS SET FORTH THE ENTIRE LIABILITY OF REAQTA AND RESELLER’S SOLE REMEDIES FOR INFRINGEMENT AND ALLEGATIONS OF INFRINGEMENT BY THE SOFTWARE OF THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY IN CONNECTION WITH THE INSTALLATION, MAINTENANCE, OPERATION, DESIGN, DISTRIBUTION OR USE OF THE SOFTWARE.
8.4 “Indemnification by Reseller” Reseller shall indemnify and hold ReaQta harmless from and against all claims or lawsuits brought against ReaQta, or damages assessed against ReaQta, arising out or related to: (i) Reseller’s failure to comply with the terms of this Agreement; (ii) Reseller’s misrepresentations to End Users or otherwise; (iii) any warranty offered by Reseller to End Users which is inconsistent with or broader than those provided by ReaQta in the Master License & Services Agreement (MLSA) which can be found here: http://reaqta.com/legal/msla; (iv) Reseller’s inadequate installation, maintenance or support of the Software; (v) the marketing or distribution of Software and/or Services by Reseller; or (vi) from any other act or failure to act by Reseller, its employees or agents regardless of the form of the action.
8.5 “No Other Warranties” EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH ABOVE, TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, RESELLER ACCEPTS THE SOFTWARE “AS IS”, WITH NO OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, OR IMPLIED BY STATUTE, COMMON LAW, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF PERFORMANCE, SERVICES TO RESELLER OR TO ANY OTHER PERSON, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS SET FORTH IN REAQTA’S END USER LICENSE AGREEMENT ACCOMPANYING THE SOFTWARE. ReaQta makes no warranties that the Software and/or Services will satisfy Reseller’s or End User’s needs or function without interruption, errors or defects. Additionally, ReaQta makes no warranties regarding the applications developed with the Software, or regarding Software which has been modified or altered by any party other than ReaQta, or to any problems caused by computer hardware or operating systems.
8.6 “Limited Liability” TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL REAQTA OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOST DATA OR LOST PROFITS) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REAQTA’S TOTAL LIABILITY TO RESELLER OR ANY THIRD PARTY FOR A CLAIM OF ANY KIND RELATED TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID TO REAQTA FOR THE SOFTWARE INVOLVED IN THIS CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY RESELLER MORE THAN ONE YEAR AFTER THE EVENTS WHICH GAVE RISE TO THE CAUSE OF ACTION.
9. Term and Termination
9.1 “Term” This Agreement shall remain in effect until the expiration date set forth in Exhibit A, unless earlier terminated or renewed for an additional period of time.
9.2 “Renewal” This Agreement may be renewed for three(3) additional periods upon mutual written agreement of the parties, although each party acknowledges that the other is not under any obligation to do so.
9.3 “Termination” This Agreement may be terminated for the following: (i) without cause, upon ninety (90) days’ written notice to the other party, (ii) by ReaQta, if Reseller fails to make any payments due hereunder within fifteen (15) days after ReaQta delivers notice of such default to Reseller; (iii) by either party on fifteen (15) days’ written notice to the other party if such party fails to perform any other material obligation required of it hereunder, and such failure is not cured within such fifteen (15) day period; or (iv) by ReaQta upon the bankruptcy, insolvency, receivership, liquidation, composition for the benefit of creditors or similar financial downturn of Reseller.
9.4 “Effect” Upon expiration or termination of this Agreement, however arising:
- (i) All licenses and other rights granted to Reseller under this Agreement will become null and void, except the otherwise valid End User licenses previously distributed by Reseller.
- (ii) Except as provided in this item (ii), Reseller shall immediately cease using, marketing, distributing and supporting the Software and/or Services, and shall promptly delete the Software from its computers and destroy all copies thereof (including End User Documentation). In either case, Reseller must provide an officer’s certificate to ReaQta that it has retained no Software or portions thereof or related documentation or materials. Notwithstanding the above, Reseller may continue to market and distribute only copies of the Software in the Reseller’s inventory as of the effective date of termination, and Reseller shall pay ReaQta for such copies as provided hereunder.
- (iii) ReaQta or its designee shall provide support and maintenance services to End Users in the Territory, and Reseller shall not attempt to contact such End Users for any purpose related specifically to the Software.
- (iv) All outstanding amounts due to ReaQta will become immediately due and payable regardless of whether longer terms had previously been agreed between the parties. Neither party will have any right to receive any compensation from the other party solely as a result of such termination, and neither party to the Agreement shall be liable to the other for compensation, reimbursement or damages on account of present or prospective profits on sales, the creation of goodwill in the Software and/or Services, or expenditures, investments or commitments made in connection with the performance of obligations hereunder.
- (v) Reseller’s payment obligations to ReaQta hereunder and the provisions of the following sections shall survive any expiration or termination of this Agreement however arising: 2.2, 4.4, 4.5, 6, 7, 8, 9.4, and 10.4.
10.1 “Independent Contractors” ReaQta and Reseller are independent contractors and shall represent themselves as such in all regards. Neither the custom nor dealing of the parties nor any provision of this Agreement shall be construed to render the parties to be joint venturers, partners, associates, master/servant or employer/employee. Neither party may bind the other in any manner except as expressly set forth herein.
10.2 “Assignment and Binding Effect” This Agreement may not be assigned by Reseller without the advance written authorization of ReaQta. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties.
10.3 “Complete Agreement, Modifications, Sever-ability and Waiver” This Agreement contains the entire agreement and understanding between the parties with respect to its subject matter, and supersedes all prior or contemporaneous oral or written agreements, negotiations, proposals and communications between the parties on the subject matter hereof. All modifications to this Agreement must be in writing and signed by both parties. If any court of competent jurisdiction determines that any provision of this Agreement is invalid, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion. If there is a conflict between this Agreement and the End User License Agreement in the Software package, or other standard ReaQta agreement, the terms of this Agreement shall prevail. Failure or delay to exercise any right or remedy by either party hereunder is not a present or future waiver of any rights or remedies under this Agreement.
10.4 “Interpretation: Attorney Fees” This Agreement is governed by the laws applicable in the respective jurisdictions as stated in Section 10j, excluding its provisions on conflicts or choice of law. The United Nations Convention on Contracts for the International Sales of Goods will not apply to this Agreement. With the exception of title to or ownership of the Intellectual Property Rights or the payment of money owed hereunder, any claim, dispute or controversy arising out of or relating to this Agreement or the breach thereof that cannot be amicably resolved between the parties shall be finally settled by arbitration in Amsterdam, in accordance with the rules of the Arbitration Act, and judgment upon the arbitral award rendered may be entered in any court having jurisdiction thereof. With respect to any judgment rendered and entered, the prevailing party shall be entitled to recover from the non-prevailing party reasonable expenses including, without limitation, reasonable attorneys’ fees and other related expenses. Nothing in this section shall prevent ReaQta from initiating any action in a court of competent jurisdiction in the Territory to obtain injunctive or other provisional relief for any breach of Sections 6 and 7 hereof or to bring an action for collection pursuant to Section 4, and the parties submit to the jurisdiction of such courts for this purpose. With respect to a suspected violation of ReaQta’s Intellectual Property Rights or Reseller’s payment obligations, ReaQta may also take action in the courts of competent jurisdiction in any state or country in which the Software is licensed as a part of a Reseller product or Reseller maintains an office. Nothing in this Agreement shall be deemed a waiver by either party of any available remedy.
10.5 “Export” This Agreement is subject to all applicable export laws and regulations of the Netherlands otherwise pursuant to such laws and regulations. Reseller hereby certifies that Reseller will not directly or indirectly, export, re-export, or transship the Software or related information, media, or products in violation of applicable laws or regulations. If at any time ReaQta reasonably determines the laws of any country are or become insufficient to protect ReaQta’s rights in the Software, ReaQta reserves the right to restrict Reseller’s rights to distribute the Software in that country, provided that ReaQta grants Reseller 24 hours written notice of such restriction.
10.6 “Governmental Approval” In the event that the approval of any government in the Territory is needed for the parties to fulfill their obligations hereunder, including without limitation to remit payments abroad, comply with exchange regulations or otherwise, it shall be the sole responsibility of Reseller to obtain such governmental approvals prior to the sale of the Reseller Product in such countries. ReaQta shall be under no obligation to ship Software units to Reseller until Reseller has provided ReaQta with satisfactory evidence of such governmental approval.
10.7 “Notices” Any notice, request, demand or other communication will be deemed to be properly given when (i) hand delivered, (ii) sent by courier or air mail or first class registered mail, postage prepaid, or (iii) sent by facsimile, with a confirmation copy delivered per clauses (i) or (ii) above (notice effective upon receipt, except for facsimile transmissions, which shall be effective one working day after receipt), or (iv) emailed (notice effective one working day after email receipt) according to the following conditions:
- (a) sender and recipient email must be specified in Exhibit A
- (b) communications sent using email will be deemed received (“email receipt”) when the message enters the recipient’s mail server
If email addresses specified in Exhibit A require any update, either party should provide fifteen (15) days’ written notice to the other party.
10.8 “Translation” Reseller acknowledges that it has read and understood this Agreement in English, and that a translation is not necessary. Reseller waives any right it may have to a translation hereof. In the event that a translation is performed, the parties acknowledge that the terms of this English version shall control the interpretation of this Agreement.
10.9 “Counterparts” This Agreement may be executed in two counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
10.10 “Governing Law and Venue: Dispute Resolution” This Agreement is to be construed in accordance with and governed by the laws of the applicable jurisdiction, as set forth in the table below (the “Applicable Jurisdiction”) without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced only in the courts of the Applicable Jurisdiction and each Party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such legal suit, action or proceeding.
Region in which Company's
Address is Located
Eruope/ Middle East (EMEA)
Asia / Pacific (APAC), including Japan and India
Singapore, Republic of Singapore