CloudOak develops and distributes products and services (“Products”) and Reseller wishes to resell the Products. In consideration of their obligations in this Agreement and for other valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1.1 “Agents” means a party’s officers, employees and independent contractors.
1.2 “Confidential Information” means information that is of value to its owner and regarding which its owner uses reasonable efforts to keep confidential from third parties.
1.3 “Customer” means a third party that purchases Products from Reseller.
1.4 “Intellectual Property Rights” means any and all ownership rights in intangible intellectual property, whether arising under patent law, copyright law, trademark law, trade secret law, or other statutory or common-law rights.
1.6 “Products” means Cloud Oak ’s products identified in Schedule 1.
1.7 “Proprietary Information” means Confidential Information and Trade Secrets.
1.8 “Cloud Oak Marks” means registered or unregistered trademarks, trade names and logos owned or used by Cloud Oak in connection with the Products.
1.9 “Cloud Oak Software” means Cloud Oak ’s proprietary software in object-code format, whether embedded as firmware in a physical Product, distributed for on-premises installation in third-party hardware by end users, or “Software-as-a-Service” made available by Cloud Oak for access by end users over the Internet or other network. Cloud Oak Software does not include Third-Party Software.
1.10 “Territory” means all of North America
1.11 “Third-Party Software” means third-party proprietary software in object-code format that is distributed by Cloud Oak to end users under the terms of a separate license agreement between the third-party supplier and the end user.
1.12 “Trade Secrets” means information that is entitled to protection as a trade secret under applicable law.
2. Reseller Appointment and Licenses.
2.1 Resale of Products. Subject to the terms of this Agreement, Cloud Oak grants Reseller the non-exclusive, personal right to distribute and resell the Products solely to Customers located within the Territory. Reseller shall not market or sell Products to any other reseller, distributor, dealer or other third party, and shall not sublicense, distribute, transfer, or transmit the Products except as expressly permitted under this Agreement. Cloud Oak reserves the right to market and make direct sales to customers worldwide.
2.2 Use of Proprietary Marks. Cloud Oak grants Reseller a limited, non-exclusive, personal license to use the Cloud Oak Marks to advertise and market the Products. All goodwill associated with Reseller’s use of the Cloud Oak Marks will be for the benefit of Cloud Oak.
2.3 Software License. During the Term of this Agreement, and subject to any additional license terms included with the Cloud Oak Software, Cloud Oak grants to Reseller a nonexclusive, personal, non-transferable, revocable license to use the Cloud Oak Software solely to support Reseller’s duties under this Agreement, including without limitation, as reasonably necessary to demonstrate and implement Products for Customers, and to provide training and warranty services that Reseller is authorized to perform under this Agreement. All Customer rights in Cloud Oak Software are governed by the applicable license terms included with the Cloud Oak Software. Reseller shall not, and shall not authorize or permit any other party to, copy, modify, reverse engineer, decompile, disassemble, or create derivative works of the Cloud Oak Software or other Products, unless expressly permitted in the applicable Cloud Oak Software license terms.
3. Cloud Oak Rights and Responsibilities.
3.1 Modifications. Cloud Oak may, in its sole discretion, elect to change its Product offerings (including without limitation the applicable warranties and service policies related to any Product) from time to time, with at least thirty (30) days advance written notice to Reseller. Cloud Oak is the sole owner of all Intellectual Property Rights in Products and modifications to Products that in any way result from comments submitted to Cloud Oak by Reseller or its Customers.
3.2 Recalls. In its sole discretion, Cloud Oak may elect from time to time to institute Product recalls. Reseller shall fully cooperate with Cloud Oak in facilitating any Product recall, including without limitation, (i) by providing Cloud Oak with requested information regarding Customers who purchased recalled Products, (ii) notifying Customer of applicable recalls of purchased Products, and (iii) by installing replacement Products at Customers’ premises at favorably discounted time-and-materials rates.
4. Reseller Rights and Responsibilities
4.1 Marketing and Representations. Reseller shall use commercially reasonable efforts to promote Products to potential Customers in the Territory at its expense. Reseller shall not make any warranties or guarantees regarding the Products, and shall not make any representations that exceed those in Cloud Oak’s applicable marketing materials and documentation. Reseller has no authority to bind Cloud Oak to any undertaking or performance with respect to the Products, except as expressly provided in this Agreement, or as otherwise agreed by Cloud Oak in writing. Reseller shall not engage in any activities, practices or business endeavors that would be likely to adversely impact Cloud Oak’s or its suppliers’ reputation or established goodwill.
4.2 Subcontracting. Reseller may elect to use Agents to provide services offered by Reseller regarding the installation and implementation of Products at Customer locations. Reseller will ensure Agents abide by the obligations of this Agreement with respect to the Products and all confidential and proprietary information of Cloud Oak, and must abide by all applicable laws. Reseller is primarily liable to Cloud Oak for its full performance under this Agreement, and solely responsible for obligations performed by, and owed to, its Agents. Reseller shall not (by contract or otherwise) limit any Agent’s right to contract directly with Cloud Oak or any of its affiliates.
4.3 Compliance with Laws. Reseller covenants and warrants that it and its Agents shall comply with all applicable laws, regulations, and ordinances in all jurisdictions and political subdivisions in which they conduct activities in any way related to the Products or this Agreement, including without limitation applicable export and import laws and regulations, the Foreign Corrupt Practices Act and other similar laws.
4.4 Training and Services. Except as otherwise provided in this Agreement, Reseller is solely responsible for providing all Product-related support and training to its Customers.
5. Ordering and Payments.
5.1 Placing Orders. Reseller is to submit all purchase orders to Cloud Oak via email to email@example.com, and will accept and fulfill all orders submitted by Reseller via email. Cloud Oak will not substitute any Products without written approval from Reseller. From time to time, Cloud Oak may ask for a revised purchase order and may use alternative delivery methods upon at least thirty (30) days written notice to Reseller. Reseller may not cancel or modify accepted Purchase Orders without Cloud Oak’s prior written approval.
5.2 Terms of Sale. Except as otherwise provided in this Agreement, all Product sales are final. During any time when Cloud Oak has not received full payment for Products shipped to Reseller, Reseller grants Cloud Oak, under this Agreement, a purchase-money security interest in the Products, and Reseller shall execute the applicable financing statement at Cloud Oak’s request.
5.3 Shipment and Risk of Loss. Cloud Oak is responsible for all shipping charges prior to the arrival of the Products to Cloud Oak’s facility. Reseller will be responsible for the shipping charges between Cloud Oak’s offices located at 400 – 700 Dorval Drive, Oakville, Ontario, Canada, L6K 3V3 and Reseller’s location.
5.4 Returns. Cloud Oak will accept returns of Products in its’ sole discretion. All Returns should be approved by Cloud Oak prior to any physical returns. A restocking fee up to 25% may be charged on returns.
5.5 Payments for Products. Unless otherwise agreed in writing Reseller shall pay Cloud Oak the purchase price for all purchased Products within thirty (30) days of invoice date. Prices for all Products will be calculated according to Schedule 1 as net amounts to be paid to Cloud Oak by Reseller. Reseller is responsible for all applicable sales taxes, duties, and other charges of any kind imposed in connection with the sale and purchase of the Products under this Agreement. Reseller shall make all payments to Cloud Oak in Canadian dollars via company check, bank check or wire transfer drawn on a Canadian bank to a Canadian bank account designated by Cloud Oak. Cloud Oak may require pre-payment for Products based on Cloud Oak’s evaluation of Reseller’s creditworthiness from time to time. Cloud Oak shall invoice Reseller for the Products and any services provided by Cloud Oak, and Reseller alone (not its Customers or Agents) is obligated to pay Cloud Oak directly. Reseller is solely responsible for invoicing and collecting all amounts due from its Customers. Reseller shall pay interest on any overdue amounts at twenty-four (24) percent per annum or the maximum rate permitted by law if less. Reseller shall reimburse Cloud Oak for all costs, expenses, and legal fees incurred in collecting any past due amounts.
6. Term and Termination.
6.1 Term. This Agreement begins on the Effective Date and will remain in effect for an initial term of one (1) year from the Effective Date. Thereafter, this Agreement will automatically renew for an unlimited number of successive one (1) year renewal terms (the initial term together with all renewal terms, collectively the “Term”), unless either party gives written notice of non-renewal at least sixty (60) days prior to the anniversary of the Effective Date.
6.2 Termination for Default. Without prejudice to any other remedies, Cloud Oak may terminate this Agreement upon written notice if Reseller fails to meet any sales performance goals that the parties may mutually agree to, and fails to remedy the deficiency by a certain time period as the parties may mutually agree. Either party may terminate this Agreement upon written notice for a “Default” by the other party, meaning the occurrence of any one or more of the following events:
(a) Involuntary or voluntary filing for bankruptcy or similar filing, insolvency, or the making of a general assignment for the benefit of creditors;
(b) Failure to pay any amounts due hereunder, when the failure has continued thirty (30) days past the due date; or
(c) Failure to perform any other material obligation under this Agreement, when the failure has not been cured to the non-defaulting party’s reasonable satisfaction within thirty (30) days after written notice describing the failure.
6.3 Rights on Termination. Upon the expiration or earlier termination of the Term, all rights of either party under this Agreement shall immediately be at an end, subject to the transition period described below, and the parties shall comply with the following:
(a) On the date of the termination, all rights of the Reseller under this Agreement shall cease and the Reseller shall immediately cease to use, by advertising or otherwise, the signs, slogans, symbols, Cloud Oak Marks and any and all materials which in any way relate to any of the Products, and Cloud Oak shall immediately cease to use Reseller Marks in any manner;
(b) Reseller shall not in any way hold itself out as being associated with Cloud Oak and Cloud Oak shall not in any way hold itself out as being associated with Reseller;
(c) Any termination shall not relieve the Reseller and Cloud Oak from any obligation existing under this Agreement prior to the date of termination, including but not limited to any payment obligations and the fulfillment of all Cloud Oak accepted Purchase Orders;
(d) Cloud Oak may elect to repurchase all or any portion of Reseller’s inventory of Products at the cost equal to the amount Reseller actually paid to Cloud Oak for such inventory;
(e) Reseller will return all copies of Cloud Oak’s Proprietary Information to Cloud Oak, regardless of whatever form or media in which such information is stored or maintained by Reseller, or provide written confirmation that it has destroyed all Cloud Oak Proprietary Information, and Cloud Oak will return all copies of Reseller’s Proprietary Information to Reseller, regardless of whatever form or media in which such information is stored or maintained by Cloud Oak, or provide written confirmation that it has destroyed all Reseller Proprietary Information; and
(f) All Customers’ rights and obligations under any applicable agreement between the Customer and Cloud Oak (including without limitation license rights to any embedded software, and extended warranty, service, and payment rights and obligations) shall remain in effect according to the terms of such agreements, and Cloud Oak will have the exclusive rights to assume and/or provide all extended warranties, services and other rights and obligations of Cloud Oak under its respective agreement with the Customer, either directly or at Cloud Oak’s election through any other reseller, agent, or other Cloud Oak channel or designee.
6.4 Survival of Terms. Upon termination or expiration of this Agreement, and in addition to any provisions that expressly provide to survive any termination of this Agreement, the provisions regarding ownership, Intellectual Propriety Rights, Proprietary Information, and the terms and conditions in Sections 1, 5.5, 6.4, 7-8 and 10-12, shall survive and remain effective.
Each party shall maintain the confidentiality of Proprietary Information disclosed to it or its Agents by the disclosing party and shall not make such Proprietary Information available to any person other than the receiving party’s Agents, when necessary. Each party shall ensure that any Agent granted access to the disclosing party’s Proprietary Information has signed a non-disclosure agreement with terms no less protective of the disclosing party than those in this Agreement. Each party shall protect the confidentiality of the disclosing party’s Proprietary Information with the same level of care it protects its own Proprietary Information, but not less than with reasonable care. Neither party is liable for the disclosure of Proprietary Information that:
(a) is known to the receiving party without confidentiality obligations prior to being received from the disclosing party;
(b) is or becomes publicly known through no wrongful act of the receiving party;
(c) is obtained by the receiving party lawfully from a third party not having an obligation to maintain confidentiality and not being in wrongful possession of the disclosing party’s Proprietary Information;
(d) is independently developed by the receiving party without breach of this Agreement and by Agents not having any access to or use of the disclosing party’s Proprietary Information; or
(e) is disclosed by Reseller with Cloud Oak’s prior written approval. If a receiving party is obligated to disclose Proprietary Information by law, then the receiving party shall promptly notify the disclosing party to give the disclosing party an opportunity to seek a protective order prior to disclosure, and shall assist the disclosing party in obtaining such a protective order.
Each party’s obligations under this Section will continue during the Term of this Agreement:
(a) with respect to Confidential Information, for so long as the disclosing party uses reasonable efforts to maintain the confidentiality of such information from third-parties; and
(b) with respect to Trade Secrets, for so long as such information is entitled to protection as a trade secret under applicable law.
Reseller acknowledges Cloud Oak’s ownership to Intellectual Property Rights in and to the Products, including without limitation all software provided, and shall remain the sole property of Cloud Oak and its suppliers and licensors. Subject to the rights and licenses granted to Reseller under this Agreement, Reseller transfers and assigns to Cloud Oak, and automatically grants to Cloud Oak, all Intellectual Property Rights in and to all modifications and enhancements to the Products and all materials relating to the Products, whether authorized or unauthorized, created by Reseller. Reseller agrees to take such actions as may be reasonably requested to effectuate the above, including but not limited to the making of further written assignments in a form reasonably requested by Cloud Oak. As between Cloud Oak and Reseller, all right, title, and interest in and to the Products, Cloud Oak Marks, and associated Cloud Oak promotional materials and documentation, including without limitation all derivatives of such no matter made by whom, together with all copyrights, patent rights, trademark and service mark rights, trade secret rights and other Intellectual Property Rights and rights to register the same, are and will remain the exclusive property of Cloud Oak, and all such items may only be used as expressly permitted under this Agreement. Without limiting the above, Reseller’s rights under this Agreement do not include any license under patents of Cloud Oak, its suppliers or licensors with respect to the manufacture of Products. Reseller shall not remove, alter or otherwise modify any copyright or other notices of proprietary interest contained in or on the Products and any Product-related materials or documentation.
9.1 Warranties of Reseller. Reseller represents and warrants to Cloud Oak that (i) Reseller is not subject to any obligation, liability, legal or governmental requirement, or other impairment that would prevent or restrict Reseller from entering into or performing its obligations under this Agreement; (ii) no approval, action or authorization by any other person, entity, governmental authority or agency is required for Reseller’s execution and performance of this Agreement or, if it is, such approval, action or authorization has been obtained and written evidence of same has been provided to Cloud Oak; (iii) Reseller and its Agents will fully and in good faith perform Reseller’s obligations under this Agreement; and (iv) all implementation, warranty and other services provided by Reseller and its Agents shall be provided in a professional and workmanlike manner and in accordance with Cloud Oak’s then-current implementation policies and any training provided by Cloud Oak. Reseller represents and warrants that it is an independent business with the experience necessary and appropriate to be able to effectively resell the Products, and acknowledges that Cloud Oak has entered into this Agreement in reliance upon Reseller’s representations, warranties, and commitment to Reseller’s obligations set out in this Agreement.
9.2 Warranties of Cloud Oak. Cloud Oak does not provide any extended warranty whatsoever under this Agreement; any extended warranty obligations to Customers are the sole responsibility of Reseller unless expressly provided in writing by Cloud Oak. EXCEPT AS EXPRESSED IN THIS PARAGRAPH, CLOUD OAK MAKES NO WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, AND STATUTORY OR OTHER¬WISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
Reseller agrees to defend, indemnify and hold harmless Cloud Oak, its affiliates, and its and their directors, officers, shareholders, members, employees and agents from and against any claims, damages, liabilities, injuries and expenses (including without limitation legal fees and costs) arising out of or resulting from any action or inaction by Reseller or its Agents relating to the Products in connection with this Agreement or the provision of the Products or the services to Customers. Cloud Oak will provide prompt notice to Reseller of any such claims, and reasonably cooperate with Reseller in the defence and any settlement of such claims. Without limiting the above, Reseller will indemnify and hold Cloud Oak harmless with respect to any breach by Reseller or its Agents of Reseller’s obligations under this Agreement and any violation of applicable laws, regulations or governmental requirements, whether by Reseller or Reseller’s Agents.
11. Limitations of Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, BUSINESS OR GOODWILL, ARISING OUT OF OR RELATED TO THE PRODUCTS OR THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. A PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PRODUCTS SHALL NOT EXCEED THE AMOUNTS PAID BY RESELLER TO CLOUD OAK FOR PRODUCTS WITHIN ONE (1) YEAR PRIOR TO THE DATE OF THE FIRST CLAIM. The parties agree that these limitations represent a reasonable allocation of the risks and benefits between the parties under this Agreement.
12.1 Assignment. Except as otherwise provided in this Agreement, neither party may assign any of its rights or delegate any of its duties under this Agreement, and may not assign this Agreement, by operation of law or otherwise, without the prior written consent of the other party, and any such attempted assignment without consent shall be void. Without limiting the above, a transfer of over fifty percent (50%) of the outstanding stock or membership interest of Reseller, a sale of substantially all the assets of Reseller, or a transfer of control shall be deemed to be an assignment. Subject to the above, this Agreement shall inure to the benefit of and shall be binding upon the parties, their permitted assigns and successors, heirs as applicable and legal representatives.
12.2 Remedies. Reseller acknowledges that the provisions of this Agreement protecting Cloud Oak’s Intellectual Property Rights and Proprietary Information are necessary for the protection of the legitimate business interests of Cloud Oak. Reseller agrees that Cloud Oak will or would suffer irreparable injury if Reseller were to violate any such provisions, and that in the event of a breach by Reseller of those provisions, Cloud Oak shall (in addition to all other rights and remedies available to it, including without limitation recovery of damages) be entitled to an injunction restraining Reseller from such breach or continued breach. Except for the limitations of liability set out in this Agreement, the remedies contained in this Agreement shall be nonexclusive, and all other remedies at law shall be available to the parties.
12.3 Governing Law and Jurisdiction. The construction and performance of this Agreement shall be governed by and construed and enforced in accordance with applicable Canadian federal laws and the laws of the province of Ontario, excluding its conflicts and choice of law provisions. In any legal action the successful party shall be entitled to all legal fees on a substantial indemnity basis, court costs, and expenses in addition to any other relief to which it may be entitled. THIS AGREEMENT WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, THE APPLICATION OF WHICH IS EXPRESSLY EXCLUDED.
12.4 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument.
12.5 Relationship of Parties. The parties are independent contractors; no agency, employee, franchise, joint venture, or partnership relationship is intended or created, or shall be construed, by this Agreement or any performance under it.
12.6 Non-Solicitation. Neither party shall solicit for employment, or directly or indirectly induce the termination of employment of any of each other’s personnel who are involved in this Agreement or any fulfillment of a party’s obligations under this Agreement, during the term of this Agreement and for one (1) year afterward.
12.6 Entire Agreement. The Agreement constitutes the entire agreement between Cloud Oak and Reseller and shall not include any other representation, promise, or warranty other than those set out in this Agreement.
12.7 Notices. Any notice required or permitted under this Agreement is effective upon actual receipt addressed to the receiving party and delivered by courier service. Reseller’s notice address is the address listed on the Signature Page above. Cloud Oak’s notice address is: 400 – 700 Dorval Drive, Oakville, Ontario, Canada, L6K 3V3. Either party may change its notice address by providing written notice to the other party.
12.8 Severability. If any portion of this Agreement is found to be unenforceable by a court of competent jurisdiction, the remainder of this Agreement will still have full force and effect.
12.9 Force Majeure. If performance by either Cloud Oak or Reseller, other than payment of amounts owed, is prevented, restricted or interfered with by any force majeure event, such as but not limited to war, acts of God, revolution, terrorism, civil commotion, riot, fire, flood, disaster, acts of public enemies, blockade or embargo, strikes, failure of the internet, any law, order, proclamation or requirement having a legal effect of any government or any judicial representative or authority, or any other event beyond the reasonable control of the affected party (each, a “Force Majeure Event”), such party shall upon giving written notice to the other party be excused from such performance for the duration of such Force Majeure Event; provided that the affected party shall use commercially reasonable efforts to promptly correct such failure or delay in performance. However, if such Force Majeure Event continues for ninety (90) days or more, the unaffected party may by written notice terminate this Agreement, and neither party shall have any further obligation except those provisions which expressly survive the termination of this Agreement.
12.11 Compliance with All Laws. The parties agree to comply with all applicable laws in the performance of its obligations under this Agreement.