THIS MANAGED SERVICES AND RESELLER AGREEMENT (THE “AGREEMENT”) IS A LEGAL CONTRACT BETWEEN “YOU” (“RESELLER”) AND BLACKPOINT HOLDINGS, LLC (“BLACKPOINT,” “US,” “OUR”). BY CLICKING AN “ACCEPT” BUTTON, OR BY EXECUTING A MANAGED SERVICES RESELLER PARTICIPATION OR ORDER THAT INCLUDES THESE TERMS BY REFERENCE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION AND ‘RESELLER’ REFERS TO THAT ENTITY AND ALL THE USERS OF THAT ENTITY. IF YOU/RESELLER DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS THE MANAGED SERVICES OR ACCEPT THIS AGREEMENT. EACH OF BLACKPOINT AND RESELLER ARE A “PARTY” AND COLLECTIVELY THE “PARTIES”. Terms not otherwise defined are set forth in Section 12.
Blackpoint and Reseller hereby agree as follows:
1. Rights of Resale.
1.1. Appointment. During the Term, and with respect to the Blackpoint Services only, Blackpoint hereby appoints you as an authorized, non-exclusive reseller of Access Rights to the Blackpoint Services, for use in providing managed services for the benefit of certain of its customer(s) that are identified as such in Blackpoint’s Platform (“Customers”); and Blackpoint hereby grants to Reseller the rights to use Blackpoint Services as part of its managed services offerings (the “Managed Services”).
1.2 Licenses. Further, during the Term of this Agreement and subject to the terms and conditions herein and with respect to the Blackpoint Services only, Blackpoint hereby grants Reseller a personal, limited, non-exclusive, non-transferable, non-assignable, revocable right to distribute Access Rights to Blackpoint Services to Customer(s). Blackpoint, directly or through other resellers or sales agents, may also market and distribute the Services. Reseller understands and agrees that any purchase and sale of Access Rights is subject to Blackpoint’s acceptance of the Customer and shall not be final and binding until such time as, in accordance with the terms hereof, both parties execute an Order. Reseller agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Blackpoint regarding future functionality or features. Subject to the terms and conditions of this Agreement, Blackpoint grants to Reseller a non-exclusive, non-transferable license, during the term of this Agreement, solely for the purposes of providing the Managed Services, to use and reproduce a reasonable number of copies of the Documentation solely to support Reseller’s use (and Customers use) of the Services.
1.3. Standard Support. Blackpoint will provide Reseller with training and second tier support. Reseller is solely responsible for first tier support and preparing its systems and facilities for accessing the Services. During the term of this Agreement, Blackpoint may, in its sole discretion, provide Reseller with Updates. Updates (if any) will be deemed to be part of the Services under this Agreement. Blackpoint is not obligated to provide any Updates to the Services.
1.4. Limitations. The Blackpoint Property, including but not limited to all manuals, reports, records, programs, data (excluding the Reseller Data) and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of Blackpoint and its suppliers. Reseller agrees that it will not, and will not permit any of its employees or other party to: (a) permit any party to access the Blackpoint Platform or Documentation or use the Services, other than as authorized under this Agreement; (b) modify, adapt, alter or translate the Blackpoint Property, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer or grant access to the Blackpoint Platform or Documentation to any third party (other than to Customers pursuant to the terms and conditions hereof); (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Blackpoint Platform, except and only to the
extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (e) use or copy the Blackpoint Platform or Documentation except as expressly allowed under this subsection; (f) disclose or transmit any data contained in the Blackpoint Platform to any individual other than a Reseller employee, except as expressly allowed herein, (g) use the Services to conduct or promote any illegal activities; (h) use the Services to generate unsolicited email advertisements or spam; (i) use the Services to stalk, harass or harm another individual; (j) use any high volume automatic, electronic or manual process to access, search or harvest information from the Services (including without limitation robots, spiders or scripts); (k) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (l) use any Mark of Blackpoint’s in metatags, keywords or hidden text; (m) use any portion of the Services in any manner that may give a false or misleading impression, attribution, or statement as to Blackpoint, or any third party; or (n) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the Blackpoint Property. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Reseller regarding the Blackpoint Property or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Blackpoint Platform.
1.5. No Further Resellers or Distributors. Reseller agrees that it may not resell Access Rights to any third party other than the applicable Customers. Reseller acknowledges that it does not have the right, and it agrees not to, appoint any further tiers of resellers or distributors.
2. Responsibilities of Reseller.
2.1. Obligations. (a) Reseller shall: (i) use its best efforts to market, promote and maximize sales of the Blackpoint Services; (ii) maintain, at its expense, sufficiently trained and qualified personnel for providing first tier support to Customers, and (iii) conduct its business so as to maintain and increase the goodwill and reputation of Blackpoint and to reflect favorably on the parties and the Blackpoint Services at all times. (b) Reseller shall not (i) engage in any unfair or deceptive business practices with respect to the Blackpoint Services and (ii) without prior written approval from an authorized representative of Blackpoint, make any representation, contract or commitment on behalf of Blackpoint except as expressly permitted herein.
2.2. Customer Agreements. If applicable, you shall enter into enforceable written agreements with each Customer, which agreements shall contain contractual protections in favor of Blackpoint that are no less protective than those set forth in this Agreement (each a “Customer Agreement”). The Customer Agreements shall contain provisions that authorize Blackpoint to access the Customer’s network for purposes of the provision of Services and which fully release Blackpoint from any and all liability arising out of the provision of the Services to such Customer, and you agree to obtain the Customer’s accord to any other terms that Blackpoint shall require from time to time. You may not amend or modify any such terms which protect Blackpoint without Blackpoint’s written approval.
2.4. Marketing. Blackpoint may provide Reseller with information describing the Services in reasonable detail, as well as sales and marketing materials related to the Services. Reseller acknowledges that Blackpoint may, in its sole discretion, amend or modify any of the foregoing from time to time, and Blackpoint will, on an ongoing basis throughout the Term, notify Reseller of any such amendments or modifications as soon as commercially practicable after implementation thereof.
3. Fees and Expenses; payments.
3.1. Fees. In consideration for the access rights granted to Reseller and the services performed by Blackpoint under this Agreement, Reseller will pay to Blackpoint all fees set forth on each Order (the “Fees”). Blackpoint will invoice the Reseller periodically in accordance with the Order. Unless otherwise agreed pursuant to an
Order, fees for Services shall be payable annually in advance and shall be due within thirty (30) days after delivery by Blackpoint of an invoice for such Fees.
3.2. Payment Terms. ALL PAYMENT OBLIGATIONS ARE NON-CANCELLABLE AND ALL AMOUNTS PAID ARE NON-REFUNDABLE. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. Blackpoint shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. Blackpoint’s fees are exclusive of all taxes, value added tax, levies or duties imposed by taxing authorities, and Reseller shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Blackpoint’s income. Reseller agrees to provide Blackpoint with complete and accurate billing information and contact information. Reseller agrees to update this information within thirty (30) days of any change to it. If the contact information Reseller has provided is false or fraudulent, Blackpoint may terminate Reseller’s access to the Services in addition to other legal remedies.
3.3. Resale Pricing. Reseller shall have sole discretion to establish the prices that it will charge to each Customer for resale of Access Rights to the Services or Managed Services, provided that, notwithstanding the price that Reseller charges, Reseller shall nevertheless be obligated to pay to Blackpoint all applicable fees required by the applicable Order related thereto.
3.4. Pricing. Blackpoint reserves the right to update its published list prices for Services at any time. In the event that Blackpoint increases its list prices, all Services purchased on or after the effective date of the price increase shall be at the new higher price.
4. Ownership; licenses.
4.1. Ownership. As between Blackpoint and Reseller, the Blackpoint Property and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Blackpoint and its suppliers. All rights not expressly granted to Reseller in this Agreement are reserved by Blackpoint and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Reseller regarding the Blackpoint Property or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Blackpoint Platform.
4.2. Reseller Data. On behalf of itself and each of its Customers, Reseller grants Blackpoint a non-exclusive, worldwide, royalty-free and fully paid license to use the Reseller Data (a) as necessary for purposes of providing the Services and to perform its obligations under this Agreement; and (b) for research and development purposes, including but not limited to measuring and improving the effectiveness of the Blackpoint’s products and services. Blackpoint may use and disclose Reseller Data in an aggregated, non-identifiable format; provided, however, Blackpoint agrees that Reseller Data may not be used in a manner that would allow any third parties to identify the source of the data contributions. The Reseller Data hosted by Blackpoint as part of the Services is the exclusive property of Reseller or its Customers, as applicable. All rights in and to the Reseller Data not expressly granted to Blackpoint in this Agreement are reserved by Reseller.
4.3. Limited Trademark License and Obligations. Subject to the terms and conditions of this Agreement, Blackpoint grants to Reseller a limited license to use and display the Blackpoint Marks in association with Blackpoint and the Services, solely as required by the express provisions of this Agreement in connection with marketing the Services to prospective customers, and subject to the trademark usage guidelines that may be provided in writing from time to time. This license is non-exclusive, non-assignable, may not itself be sublicensed, in whole or in part, and remains effective only during the Term. The scope of this license is defined by the terms and conditions of this Agreement, and this license is granted subject to those terms and conditions. Notwithstanding the foregoing, Reseller may use the Blackpoint Marks only with the prior written consent of Blackpoint after it has received an opportunity to review in advance the proposed use of the same.
4.4. Non-Competition. Throughout the Term, Reseller shall refrain from developing any product or service directly competitive to the Services. Reseller shall in any event continue to abide by the surviving confidentiality restrictions set forth in Section 7 should Reseller desire to engage in any competitive activities following the termination of this Agreement.
5. Warranties and Disclaimers
5.1. Warranties. Reseller represents and warrant to Blackpoint that (a) Reseller has the authority to enter into this agreement; (b) Reseller shall represent Blackpoint in a professional manner in conformance with industry standards; (c) any Reseller Data provided to Blackpoint as part of the Services, shall not (i) infringe any copyright, trademark, or patent; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, worms or other malicious computer programming codes intended to damage Blackpoint’s system or data; or (v) otherwise violate the rights of a third party. Blackpoint is not obligated to back up any Reseller Data; the Reseller is solely responsible for creating backup copies of any Reseller Data at Reseller’s sole cost and expense. Reseller agrees that any use of the Services contrary to or in violation of the representations and warranties of Reseller in this section constitutes unauthorized and improper use of the Services.
5.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BLACKPOINT PROPERTY AND SERVICES ARE PROVIDED “AS IS,” AND BLACKPOINT MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE BLACKPOINT PROPERTY OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO RESELLER BY BLACKPOINT. BLACKPOINT DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE BLACKPOINT PLATFORM AND SERVICES SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO RESELLER. RESELLER AGREES THAT IN NO EVENT WILL BLACKPOINT BE LIABLE TO RESELLER IN CONNECTION WITH ANY WEBSITES OR SERVICES OF ANY THIRD PARTY.
6. Exclusions and limitations of liability.
6.1 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION OF CERTAIN DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCLUDING RESELLER’S OBLIGATION TO PAY FEES WHEN DUE, EACH PARTY’S INDEMNIFICATION OBLIGATIONS AND EACH PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO BLACKPOINT BY THE RESELLER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE CASE OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF A PARTY, BREACHES OF CONFIDENTIALITY BY RESELLER OR FOR ANY DAMAGES ARISING OUT OF INDEMNITY OBLIGATIONS. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
6.2. Essential Basis of the Agreement. Reseller acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 6 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
7.1. Confidential Information. During the term of this Agreement, each party (the “Discloser”) may provide the other party (the “Recipient”) with certain information regarding the Discloser’s business, technology,
products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Discloser will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, all information that would reasonably be considered confidential to Discloser, will be considered Confidential Information of the Discloser. The Blackpoint Platform, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Blackpoint.
7.2. Protection of Confidential Information. The Recipient agrees that it will not use or disclose to any third party (other, in the case of Reseller, to Customers) any Confidential Information of the Discloser, except as expressly permitted under this Agreement. The Recipient will limit access to the Confidential Information to those employees of the Recipient (or, in the case of Reseller, of the Customer) who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. Reseller shall be fully responsible for the acts and omissions of its Customers in protecting Blackpoint’s Confidential Information, to the full extent as if such end users are Reseller’s employees or agents acting on Reseller’s behalf within the scope of their duties. In addition, the Recipient will protect the Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Discloser’s request or upon termination of this Agreement, the Recipient will return to the Discloser or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Recipient does not have a continuing right to use under this Agreement, and the Recipient shall provide to the Discloser a written affidavit certifying compliance with this sentence.
7.3. Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Recipient; (b) is lawfully provided to the Recipient by a third party free of any confidentiality duties or obligations; (c) was already known to the Recipient at the time of disclosure; or (d) the Recipient can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Recipient who had no access to the Confidential Information. In addition, the Recipient may disclose Confidential Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser if the Discloser seeks an appropriate protective order.
7.4. System Use Information. Blackpoint may use and disclose, in its discretion, any aggregated and de-identified information regarding Reseller’s use or Customers’ use of the Services or included in Reseller’s accounts, including Reseller Data. Any disclosure of such information will not identify Reseller (or the Customer) or any specific use by Reseller (or the Customer). Such information will include, for example, failure rates for a specific type of equipment across all Blackpoint subscribers.
Reseller agrees to defend or settle any claim brought against Blackpoint by any third party arising from (i) Reseller’s gross negligence or willful misconduct; (ii) claims that the Reseller Data, or Reseller’s use of the Services in breach of this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights, rights of privacy or rights of publicity or violates applicable laws, (iii) claims based upon a breach of Section 1.4, Section 2.1, Section 4, and Section 7. Reseller shall pay all amounts that are finally awarded against Blackpoint based on any such claims by a court of competent jurisdiction or any amounts that Reseller has agreed to pay in settlement of the relevant third-party claim. With respect to any claim, demand or action for which an indemnity is provided under this section, the party to be indemnified (the “Indemnified Party”) shall: (i) give prompt written notice to the indemnifying party (the “Indemnifying Party”) of the claim, demand or action for which an indemnity is sought (provided, however, that failure of Indemnified Party to provide such notice will not release the Indemnifying Party from any of its indemnity obligations except to the extent that the Indemnifying Party’s ability to defend such claim is prejudiced thereby), (ii) reasonably cooperate in the defense or settlement of any such claim, demand or action, at the expense of the Indemnifying Party; and (iii) give the Indemnifying Party sole control over the defense or settlement of any such claim; provided, however, the Indemnifying Party shall not enter into any settlement without the Indemnified Party’s express consent that (1) assigns, imparts or imputes fault or responsibility to the Indemnified Party or its affiliates, (2) includes a consent to an injunction or similar relief binding upon the Indemnified Party or its
affiliates, (3) fails to contain reasonable confidentiality obligations protecting the confidentiality of the settlement, or (4) provides for relief other than monetary damages that the Indemnifying Party solely bears.
9. Term and termination.
9.1. Term of Agreement. This Agreement commences on the Effective Date and continues for a period of 12 months, or for such period of time as agreed by the Parties (the “Initial Term”). After the expiration of the Initial Term, this Agreement may be renewed by mutual agreement for successive 1 year terms, or such other period of time as mutually agreed to (each a “Renewal Term” and together with the Initial Term, the “Term”).
9.2. Termination for Cause. Blackpoint may cancel, suspend or block your use of the Blackpoint Property without notice if there has been a breach of this Agreement by Reseller. This Agreement may be terminated immediately for cause by either party in the event the other party: (i) shall become insolvent; (ii) admits in writing its inability to pay its debts as they mature; (iii) ceases to function as a going concern or to conduct its operations in the normal course of business; (iv) fails to perform any of its obligations under this Agreement so as to be in default hereunder and fails to cure such default within thirty (30) days after written notice thereof.
9.3. Termination for Convenience. Blackpoint shall have the right to terminate this Agreement, without cause, upon thirty (30) days written notice to you. Customers may terminate their Access Rights at any time subject to section 3.2, i.e. no refunds are provided upon cancellation.
9.4. Effects of Termination. Reseller’s right to use the Blackpoint Property will end once Reseller’s Account has been terminated, and any data that Reseller may have stored on the Services, including Reseller Data, may be unavailable later, unless Blackpoint is required to retain it by law. Each Party agrees to comply with Section 7.2 regarding Confidential Information upon termination. Reseller’s payment obligations and Sections 2.1., 4, 5.2, 6, 7, 8, 9.4, 11 and 12 shall survive the termination of this Agreement.
As used in this section, “Anti-Corruption Laws” means the Foreign Corrupt Practices Act of 1977 (FCPA) (15 U.S.C. § 78dd-1, et seq.) as well as any anti-bribery or anti-corruption related provisions in criminal and anti-competition laws and/or anti-bribery or anti-corruption laws of the jurisdiction in which Reseller provides the services, together with any amending, consolidating or successor legislation or case law which has effect from time to time in the relevant jurisdiction.
Reseller agrees that it shall comply with, and that the services will be performed in accordance with, the Anti-Corruption Laws and that it shall not cause, by act or omission, Blackpoint to be in breach of any Anti-Corruption Laws. Blackpoint shall have the right to suspend and/or terminate this Agreement for material breach immediately, or on such other time specified by Blackpoint, upon written notice to Reseller if: (i) Reseller, or any person employed by it or acting on its behalf while in the course of performing services (whether with or without the knowledge of Reseller) fails to comply with any of the Anti-Corruption Laws, or (ii) Blackpoint has documented evidence that an occurrence as specified in clause (i) of this Section 10 has occurred. Regardless of any other provision in this Agreement, Blackpoint shall not be obliged to do, nor obliged to omit to do, any act which would, in its reasonable opinion, put it in breach of any Anti-Corruption Laws.
11.1. Governing Law and Venue. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN FAIRFAX COUNTY, MARYLAND. To that end, each Party irrevocably consents to the exclusive jurisdiction of, and venue in, such court(s), and waives any, (i) objection it may have to any proceedings brought in any such court, (ii) claim that the proceedings have been brought in an inconvenient forum, and (iii) right to object (with respect to such proceedings) that such court does not have jurisdiction over such Party.
11.2. Export. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving
exports, and (ii) Reseller shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
11.3. Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address provided for legal notifications by a Party, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.4. General. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. To the extent any mutually agreed upon Order conflicts with the terms of this Agreement, the terms of the Order shall supersede and control. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Reseller acknowledges that the Services, Blackpoint Platform, and Documentation contain valuable trade secrets and proprietary information of Blackpoint, that any actual or threatened breach of the section titled Confidentiality or any other breach by Reseller of its obligations with respect to Intellectual Property Rights of Blackpoint may constitute immediate, irreparable harm to Blackpoint for which monetary damages would be an inadequate remedy. In such case, Blackpoint may be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Blackpoint Platform, Documentation, or any portions thereof, that Reseller attempts to import into any country or territory be seized, impounded and destroyed by customs officials. Reseller shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Blackpoint, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. Reseller’s relationship to Blackpoint is that of an independent contractor, and neither party is an agent or partner of the other. Reseller will not have, and will not represent to any third party that it has, any authority to act on behalf of Blackpoint. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Reseller and the Blackpoint. The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.
“Access Rights” are contractual rights to access and receive Services according to the technical procedures and protocols established according to this Agreement. The scope of any particular Access Rights may be defined by the terms the applicable Order, including the Access Term and other use restrictions applicable to such Access Rights.
“Access Term” means the period of time during which particular Access Rights remain valid, as stated in the applicable Order pursuant to which such Access Rights are purchased. For avoidance of doubt, particular sets of Access Rights purchased under separate Orders may have differing Access Terms.
“Blackpoint Marks” means Blackpoint’s trademarks, service marks, logos, trade names, domain names, and other branding features, registered and/or in use.
“Blackpoint Platform” means the software programs, hosted platform and any associated user interfaces and related technology, access to which Blackpoint makes available pursuant to this Agreement for provision of the Blackpoint Services.
“Blackpoint Property” means the Services, Blackpoint Platform, Documentation, Blackpoint Marks, and all systems, networks, APIs, websites or other materials that are either owned or operated by Blackpoint, or provided to Reseller in connection with this Agreement.
“Blackpoint Services” or “Services” means the online, web-based software applications and platform to which Access Rights are sold by Reseller, for the performance of cyber security services to be performed by means of Blackpoint’s proprietary methodologies and systems, and to which access is provided via the Blackpoint Platform.
“Documentation” means the technical materials provided by Blackpoint to Reseller in hard copy or electronic form describing the use and operation of the Software.
“Error” means a reproducible failure of the Software to substantially conform to the Documentation.
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
“Order” means any physical, electronic or online document or onboarding process executed by Reseller identifying and/or ordering Services to be made available by Blackpoint pursuant to this Agreement.
“Reseller Data” means any content or data submitted by Reseller or Customers via the Service or Blackpoint Platform.
“Update” means an update, upgrade, enhancement or any other improvement to the Services that, in its discretion, Blackpoint makes generally available to other subscribers as part of the standard Services.
THE AGREEMENT (AND ITS ORDERS AND OTHER DOCUMENTS INCORPORATED BY REFERENCE) SETS FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES WITH RESPECT TO ITS SUBJECT MATTER AND, EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SUPERSEDES AND MERGES ALL PRIOR ORAL AND WRITTEN AGREEMENTS, DISCUSSIONS AND UNDERSTANDINGS BETWEEN THE PARTIES WITH RESPECT TO ITS SUBJECT MATTER, AND NEITHER OF THE PARTIES WILL BE BOUND BY ANY CONDITIONS, INDUCEMENTS OR REPRESENTATIONS OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN. ANY PURCHASE ORDER ISSUED BY RESELLER IS MERELY FOR THE ADMINISTRATIVE CONVENIENCE OF RESELLER AND COMPANY SHALL NOT BE BOUND BY ANY PRE-PRINTED TERMS, CONDITIONS OR OTHER PROVISIONS OF RESELLER’S PURCHASE ORDER.