AVIATRIX RESELLER AGREEMENT
This Aviatrix Reseller Agreement (“Agreement”), effective as of the last date of signature below (“Effective Date”) and by and between Aviatrix Systems, Inc. (“Aviatrix”) and reseller who has accepted the applicable Cloud Provider Partner Program authorization form (“Reseller”), governs Reseller’s appointment to the Aviatrix global partner program (“Global Partner Program”) as a nonexclusive reseller of Aviatrix’s software subscriptions and related consulting services (“Aviatrix Offerings”) to end customers (“Customers”) in the authorized territory set forth below (“Territory”) during the term set forth below and any renewal periods (“Term”). “Party” and “Parties”, means, collectively and individually, as applicable, Aviatrix and Reseller.
Reseller’s Global Partner Program appointment as of the Effective Date
√ Cloud Solutions Provider
Territory: United States unless otherwise established on Cloud Provider Partner Program authorization form
Term: One (1) Year
Reseller must meet the certification requirements of the applicable Global Partner Program(s) identified above and will receive the corresponding benefits for the applicable Global Partner Program(s), as set forth in the Aviatrix partner portal website. If Aviatrix agrees to any subsequent Global Partner Program appointment(s) based on Reseller’s achievement of the necessary certification status, any such appointment shall not be effective until Aviatrix has accepted Reseller’s application in writing or through its partner portal website.
1. APPOINTMENT. Aviatrix hereby appoints Reseller as a nonexclusive reseller of the Aviatrix Offerings to Customers, where such appointment may be further conditioned under the terms and conditions of the Global Partner Program. Aviatrix may further authorize Reseller to participate in a reseller program made available by a public cloud provider (“Cloud Provider Partner Program”) where Aviatrix is already authorized and enabled to transact directly with end users in the respective cloud provider’s marketplace. Reseller may participate in an Aviatrix recommended Cloud Provider Partner Program at its discretion; however, Reseller acknowledges and agrees that certain Customers may only be willing to procure the Aviatrix Offerings through an Aviatrix enabled cloud provider’s marketplace and therefore Reseller may not be able to transact with certain Customers unless it: (a) chooses to participate in the applicable Cloud Provider Partner Program recommended by Aviatrix; (b) accepts Aviatrix’s Cloud Provider Partner Program resale authorization forms(s) under mutually agreeable offer terms; (c) makes offers to Aviatrix approved Customers based on mutually agreed Cloud Provider Partner Program resale authorization form(s); and (d) accepts Customer billing by, and payment from, the respective cloud provider for both Aviatrix and Reseller. Cloud Provider Partner Program participation is governed by separate terms published by the respective cloud provider; however, this Agreement will govern and control, including with respect to conflict of terms and conditions with a Cloud Provider Partner Program, for any resale of Aviatrix Offerings that Aviatrix authorizes to be transacted through a Cloud Provider Partner Program. Aviatrix may authorize a single Customer resale transaction or general resale to any Aviatrix approved Customer under a Cloud Provider Partner Program and may rescind any such authorization in its sole discretion, provided that Aviatrix shall not unreasonably withhold Reseller’s participation in a Cloud Provider Partner Program that it makes generally available to other Resellers with the same status in the Global Partner Program. Under no circumstances shall Reseller’s independent participation in a Cloud Provider Partner Program compel Aviatrix to participate in that same program. In the event that Aviatrix appoints Reseller as a managed services partner either above or in a written authorization separate from this Agreement, then Reseller shall be deemed a Managed Services Provider as defined in the Terms of Use and Reseller agrees to, and is subject to, the applicable terms and conditions for a Managed Services Provider as set forth therein.
2. RESELLER RESPONSIBILITIES AND RESTRICTIONS.
2.1. Customer Terms of Use. The software component of the Aviatrix Offerings is licensed directly to each Customer and not sold and will be electronically delivered by Aviatrix to Customers. Reseller shall subject each Customer in writing to Aviatrix’s Customer Term of Use (“Terms of Use”) located at aviatrix.com and shall not resell to any Customer who has not agreed to the Terms of Use. Aviatrix may negotiate the Terms of Use directly with any Customer at its discretion, including when such Customer will not accept the Terms of Use by reference on Reseller’s order form. Reseller acknowledges and agrees that Aviatrix will be responsible directly to Customer(s), and not as a subcontractor to Reseller, for any planning, design, implementation, and technical support services component(s) of the Aviatrix Offerings resold hereunder pursuant to the Terms of Use with such Customer. Notwithstanding the foregoing, Aviatrix may expressly authorize Reseller to provision certain of these services directly to Customer under the Global Partner Program where Reseller has achieved the necessary certification status, in which case Customer’s recourse for the provision of such services shall be with Reseller under terms between Reseller and Customer.
2.2. Responsibilities. Reseller shall: (a) use commercially reasonable efforts to promote, market and resell the Aviatrix Offerings to Customers; (b) use Aviatrix Offerings designated not-for-resale to provide lab, evaluation, and other related services to potential Customers; (c) conduct business in a competent and professional manner that reflects favorably at all times on the Aviatrix Offerings and the goodwill and reputation of Aviatrix; (d) avoid deceptive, misleading or unethical practices that are or might be detrimental to Aviatrix and/or the Aviatrix Offerings, or to the public in general; (e) not make any false or misleading representations, warranties or guarantees with respect to Aviatrix and/or the Aviatrix Offerings; (f) coordinate with Aviatrix and Customer as reasonably necessary for the provision of the Aviatrix Offerings to such Customer; and (g) comply with all applicable laws (foreign and domestic) and obtain any necessary registrations or approvals required pursuant to any applicable federal, state, regional or local laws and regulations related to the performance of its obligations hereunder.
2.3. Restrictions. Reseller shall not: (a) resell the Aviatrix Offerings to any other reseller or distributor unless expressly authorized by Aviatrix in writing; (b) resell to any Customer that does not have its headquarters or a principal office within the Territory; (c) use any Cloud Provider Partner Program to circumvent or otherwise violate the terms and conditions of this Agreement, including the Global Partner Program; (d) resell or use an Aviatrix Offering designated as not-for-resale to provide production services for itself or to any third party, (e) disassemble, decompile or otherwise reverse engineer the Aviatrix Offerings, or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Aviatrix Offerings; (f) copy or modify the Aviatrix Offerings; (g) remove any names, designations or notices from the Aviatrix Offerings; or (h) make any statements to any Customer that purports to be by or on behalf of Aviatrix in a manner that may legally bind Aviatrix. All restrictions herein will also apply to all Aviatrix provided documentation and other materials, including documentation related to the Aviatrix Offerings (“Documentation”).
3. RESERVED RIGHTS. Aviatrix reserves the right at any time to: (i) change, modify, or discontinue the Global Partner Program; (ii) discontinue or modify its participation in a Cloud Provider Partner Program; (iii) choose whether it will make an offer to Reseller directly or through a Cloud Provider Partner Program; (iv) change, modify, or discontinue any of the Aviatrix Offerings; (v) solicit orders directly from and sell directly to any end user; and (vi) appoint other sales representatives or resellers to sell, resell or distribute the Aviatrix Offerings to end users, including end users in the Territory. Nothing in this Agreement shall be construed as limiting in any manner Aviatrix’s selling, marketing or distribution activities or its appointment of other representatives, resellers, agents of any kind.
4. PROPRIETARY RIGHTS. Aviatrix and its licensors retain all right, title and interest, including all related intellectual property rights, in and to the Aviatrix Offerings, the Documentation, its Confidential Information, and all derivative works, improvements or modifications thereto by whomever made. No rights are granted to Reseller hereunder other than as expressly set forth in this Agreement, and any rights that may be established under the terms and conditions of a Cloud Provider Partner Program are null and void. If Reseller provides Aviatrix with any suggestions, ideas, improvements or other feedback with respect to the Aviatrix Offerings or Documentation, including any provided by a Customer (“Feedback”), Reseller hereby grants Aviatrix, its successors, and assigns a non-exclusive, perpetual, irrevocable, sub-licensable, transferrable, royalty-free, fully paid-up worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, sublicense, distribute and otherwise exploit such Feedback for any purpose, including without limitation, using and incorporating such Feedback into the Aviatrix Offerings, Documentation or other Aviatrix products and services, without any obligation of accounting or any payment of royalties or other consideration to Reseller.
5. FEES; PAYMENT TERMS.
5.1. Prices; Price Changes. Prices payable by Reseller to Aviatrix for the Aviatrix Offerings are those set forth on the quote issued by Aviatrix pursuant to Section 5.2 below or as may be established as standard discounts offered to Reseller in the Global Partner Program or a Cloud Provider Partner Program resale authorization form. In the case of a Cloud Provider Partner Program transaction where the respective cloud provider bills the customer and pays both Aviatrix and Reseller their applicable portions of total Customer fees, the portion payable to Aviatrix shall be established on the applicable Cloud Provider Partner Program resale authorization form. Aviatrix does not control the prices that Reseller charges Customers for the Aviatrix Offerings whether directly to Reseller or through a Cloud Provider Partner Program. Aviatrix shall have the right, in its sole discretion, at any time to change its list prices as well as discounts offered through the Global Partner Program, a Cloud Provider Partner Program, or on a custom offer basis; provided, however, Aviatrix shall honor the pricing and discounts on any Aviatrix quote for the quote validity period established on such quote.
5.2. Orders. For any Aviatrix Offerings that Reseller desires to resell to a prospective Customer, Reseller shall request from Aviatrix either (a) a quote or (b) a Cloud Provider Partner Program resale authorization form, unless such a form is already in effect, in which case Reseller shall request written approval from Aviatrix to resell certain Aviatrix Offerings under the existing authorization, with each subject to the terms and conditions of this Agreement. Aviatrix quotes shall include (a) the name of the Customer, (b) the Aviatrix Offerings being purchased by the Customer, (c) the applicable Aviatrix Offerings subscription term; (d) any related one time consulting services; (e) the level of technical support services selected as included in the license subscription fees; and (f) the applicable prices for the Aviatrix Offerings for such Customer that Reseller is to pay Aviatrix, or in the case of a Cloud Provider Partner Program where the cloud provider bills the Customer, the portion of such fees that are owed to Aviatrix. Such quote must be accepted in writing by an authorized representative of Reseller or through the acceptance processes of the Cloud Provider Partner Program, as the case may be. Following acceptance of such order or Cloud Provider Partner Program resale authorization form by Reseller, such order cannot be changed or canceled without the prior written consent of Aviatrix.
5.3. Payment Terms. Unless otherwise agreed in writing, Aviatrix will invoice Reseller for the Aviatrix Offerings specified in the quote upon order acceptance. In the case where the order is processed through a Cloud Provider Partner Program and the respective cloud provider bills the Customer under the terms of that program, then payment shall be as established under the applicable Cloud Provider Partner Program. For invoices issued directly by Aviatrix, Reseller shall pay all amounts invoiced within thirty (30) days from invoice date. Payments shall be made in U.S. Dollars. Late payments shall bear interest that accrues at a rate of the lower of one and one half per cent (1.5%) per month or the highest rate permitted by law, whichever is lower. If Reseller is materially late in payment of any Aviatrix invoice, Aviatrix may, at its discretion demand payment and suspend its performance and/or take all other actions under law or equity, without any liability, including, without limitation, suspending the applicable Customer’s access to and use of the Aviatrix Offerings.
5.4. Taxes. All pricing and fees under this Agreement are exclusive of taxes. As required by applicable law, Reseller shall pay any federal, state, county, local taxes, duties and other governmental assessments, including, without limitation, any sales and use taxes or any VAT, and any penalties, or interest for failure to pay such taxes in a timely manner.
5.5. Records and Audit. During the term of this Agreement and for two (2) years after termination or expiration, Reseller will keep all proper records and books of account relating to the Aviatrix Offerings that Reseller resells pursuant to this Agreement, including through a Cloud Provider Partner Program. Upon reasonable notice and during Reseller’s normal business hours, Aviatrix shall have the right to audit Reseller’s books of account and business records as necessary to verify Reseller’s compliance with this Agreement, including but not limited to, the accuracy of the fees paid pursuant to this Agreement. Reseller shall promptly pay the difference (plus interest) if such audit reveals an underpayment. If such audit reveals an underpayment of more than five per cent (5%), Reseller shall also promptly reimburse Aviatrix for the reasonable costs and expenses of such audit.
6. CONFIDENTIALITY. Each Party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. This Agreement, the Documentation, the Aviatrix Offerings, fees and pricing information and any performance information (e.g., benchmarking results) relating to the Aviatrix Offerings shall be deemed Confidential Information of Aviatrix. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence Confidential Information, taking precautions that it would take for its own Confidential Information of a similar nature but not less than reasonable care, and (b) not disclose or use any Confidential Information except in furtherance of this Agreement and as otherwise expressly permitted herein. Reseller may disclose Aviatrix’s Documentation (other than any documentation related to Aviatrix fees and pricing information) to a Customer so long as such disclosure is made to Customer on a need to know basis for the marketing and reselling of Aviatrix Offerings and such disclosure is subject to terms of confidentiality no less restrictive than the terms set forth herein. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become generally available to the public through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may disclose the Disclosing Party’s Confidential Information if it is required to do so pursuant to any applicable law, rule or regulation of any court or government agency of competent jurisdiction, or any legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose prior to such disclosure, reasonable assistance in opposing or limiting such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process. Each Party acknowledges that disclosure of Confidential Information of the Disclosing Party would cause immediate and irreparable harm to the Disclosing Party and that, in such event, the Disclosing Party shall be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief, without the posting of a bond or the necessity of showing actual monetary damages.
7. WARRANTIES.
7.1. Aviatrix Warranties. Aviatrix represents and warrants that it has all right, power and authority to execute this Agreement and grant Reseller the rights it grants hereunder. EXCEPT AS SET FORTH IN THIS SECTION 7.1, AVIATRIX PROVIDES WARRANTIES DIRECTLY TO CUSTOMER AND MAKES NO WARRANTIES TO RESELLER WITH RESPECT TO THE AVIATRIX OFFERINGS OR THE DOCUMENTATION AND DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NONINFRINGEMENT.
7.2. Reseller Warranties. Reseller represents and warrants that (a) it has all right, power and authority to execute this Agreement and perform its obligations herein; (b) it is and will be in compliance with all applicable laws relating to its performance under this Agreement (including without limitation the United States Foreign Corrupt Practices Act, the U.K. Bribery Act of any other applicable anti-bribery law or regulation) and (c) it will obtain and keep in effect all licenses, permits, approvals and authorizations required for its performance under this Agreement.
8. INDEMNIFICATION. Reseller shall defend, indemnify and hold harmless Aviatrix from and against any and all third party claims arising out of or related in any way to its obligations under this Agreement or any breach thereof.
9. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO ANY BREACH OF SECTION 2 (RESELLER RESPONSIBILITIES AND RESTRICTIONS), 4 (PROPRIETARY RIGHTS) OR 6 (CONFIDENTIALITY) OR ANY OBLIGATION OF INDEMNIFICATION HEREIN, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY (A) LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID AND PAYABLE BY RESELLER UNDER THIS AGREEMENT TO AVIATRIX DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
10. TERM AND TERMINATION.
10.1. Term. This Agreement begins on the Effective Date and will remain in full force and effect for the Term unless terminated earlier pursuant to this Section 10. This Agreement will automatically renew for additional one (1) year periods after the initial term specified on the signature page unless either Party provides written notice to the other Party of non-renewal at least thirty (30) days prior to the start of the next renewal term.
10.2. Termination. Either Party may terminate this Agreement as follows: (a) upon thirty (30) days written notice if the other Party breaches any material provision of this Agreement and does not cure such breach before the end of such cure period; or (b) effective immediately and without notice if the other Party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment hereunder
10.3. Effect of Termination. Upon any termination or expiration of this Agreement, (a) all licenses and other rights granted to Reseller under this Agreement shall immediately cease, (b) Reseller shall immediately cease promoting, marketing or reselling the Aviatrix Offerings and (c) Receiving Party shall destroy or, if requested by Disclosing Party, return all Confidential Information in its possession.
10.4. Survival. The following Sections shall survive any expiration of termination of this Agreement: Sections 2.2 (Reseller Restrictions), 3 (Reserved Rights), 4 (Proprietary Rights), 5 (Fees; Payment Terms), 6 (Confidentiality), 7 (Warranties), 8 (Indemnification), 9 (Limitations of Liability), 10.4 (Survival), 11 (Relationship of Parties) and 13 (Miscellaneous).
11. RELATIONSHIP OF THE PARTIES. The Parties hereto expressly understand and agree that Reseller is an independent contractor in the performance of this Agreement and no partnership is formed hereunder. Reseller is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and is responsible for and will indemnify Aviatrix from any and all claims, liabilities, damages, debts, settlements, costs, attorneys’ fees, expenses, and liabilities of any type whatsoever that may arise on account of Reseller’s activities, or those of its employees or agents, including without limitation, providing unauthorized representations or warranties (or failing to disclose all limitations on warranties and liabilities set forth herein on behalf of Aviatrix) to its customers or breaching any term, representation or warranty of this Agreement.
12. EXPORT. Reseller expressly agrees that it shall not export, directly or indirectly, re-export, divert, or transfer the Aviatrix Offerings, Documentation, Aviatrix Confidential Information to any destination, company or person restricted or prohibited by applicable export laws and regulations, including but not limited to the U.S. Export Administration Regulations.
13. MISCELLANEOUS. Reseller may not assign this Agreement or any of its rights, by operation of law or otherwise, or delegate any of its obligations hereunder, without Aviatrix prior written consent. Aviatrix may assign or transfer this Agreement without Reseller’s consent. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement shall be governed by the laws of the United States and the laws of the State of California, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement or to the transactions contemplated herein. The Parties hereby submit to the exclusive jurisdiction of, and waive any venue jurisdiction or venue objections against, the state and Federal courts located in Santa Clara County, California. All notices required to be sent hereunder shall be in writing to the address set forth above and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. The addressee for Aviatrix shall be the Legal Department. No modification, or amendment of this Agreement shall be effective and binding, unless in writing signed by the duly authorized representatives of both Parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative of the Party claimed to have waived. This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Purchase orders (and similar documents) issued by Reseller are for administrative purposes only, e.g. setting forth products and services ordered and associated fees, and any additional or different terms or conditions contained in any such order shall not apply, even if the order is accepted or performed on by Aviatrix. This Agreement may be executed electronically and in counterparts such as via DocuSign, which taken together shall form one legal instrument.
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