We need partners! Privacy Central truly believes in having a healthy and feedback oriented partner channel. We plan to service customers all over the world and will need "feet on the ground".
If you are interested in becoming a partner and sharing our vision, email email@example.com.
PRIVACY CENTRAL, INC
NON-EXCLUSIVE CHANNEL PARTNER AGREEMENT
THIS NON-EXCLUSIVE CHANNEL PARTNER AGREEMENT (THE “AGREEMENT”) APPLIES TO THE PROMOTION, MARKETING AND DISTRIBUTION OF ANY SOFTWARE PROVIDED DIRECTLY OR INDIRECTLY BY PRIVACY CENTRAL, INC. (“PRIVACYCENTRAL”), A DELAWARE CORPORATION WITH A PLACE OF BUSINESS AT 315 S. COAST HIGHWAY 101 SUITE U-241 ENCINITAS, CA 92024. BY FOLLOWING THE ONLINE ACCEPTANCE PROCESS PROVIDED BY PRIVACYCENTRAL, YOU AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT. A CONTRACT IS THEN FORMED BETWEEN PRIVACYCENTRAL AND THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT (“CHANNEL PARTNER”).
- 1.1. Appointment. Upon acceptance of this Non-Exclusive Channel Partner Agreement (the “Agreement”) by PRIVACY CENTRAL, INC. (“PRIVACYCENTRAL”), PRIVACYCENTRAL hereby grants Channel Partner for the term of this Agreement a non-exclusive, non-transferable, non-sublicensable right and license to promote, market, and distribute PRIVACYCENTRAL software products (the “Products”) as designated on the PRIVACYCENTRAL Partner Portal (“Partner Portal”), solely to End Users subject to the requirements of this Agreement and the Partner Portal. PRIVACYCENTRAL may refer to Channel Partner’s appointment as our reseller for marketing, publicity and reference purposes.
- 1.2. End Users. An End User is an entity that acquires Products for such entity’s internal business purposes and not for sale, resale, sublicense, lease or any other form of distribution to third parties.
- 1.3. Products. PRIVACYCENTRAL may revise, add or delete Products upon thirty (30) days prior written notice to Channel Partner. Any revision will apply to all orders accepted after the effective date of the revision. Channel Partner agrees that despite any use of the terms “purchase” and “sale” in connection with software Products, such software is not and shall not be sold, nor shall title thereto be transferred to Channel Partner or End Users.
- 1.4. PRIVACYCENTRAL End User Agreement. All sales to End Users are subject to the End User’s acceptance of the terms of the then-current PRIVACYCENTRAL license agreement, located at http://www.privacycentral.com/home/eula/ (collectively the “PRIVACYCENTRAL End User Agreement”). If the End User fails to accept such terms, they will not be able to use the Products, and in such case PRIVACYCENTRAL shall not refund any fees paid under this Agreement. Channel Partner has no authority to modify the terms of the PRIVACYCENTRAL End User Agreement, or to bind PRIVACYCENTRAL to any terms, or make any representation or warranty on behalf of PRIVACYCENTRAL. PRIVACYCENTRAL shall be an express third-party beneficiary of Channel Partner’s agreement with the End User, and shall have the sole right and authority to enforce the terms of the PRIVACYCENTRAL End User Agreement. Channel Partner shall, upon PRIVACYCENTRAL’s request and at PRIVACYCENTRAL’s expense, take all actions reasonably requested to assist in such enforcement.
- 1.5. Standards. Channel Partner shall conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill, and reputation of PRIVACYCENTRAL. Channel Partner shall avoid deceptive, misleading, or unethical practices that are or might be detrimental or disparaging to PRIVACYCENTRAL or its Products. Channel Partner shall not publish or employ or cooperate in the publication or employment of any misleading or deceptive materials relating to the Products. Channel Partner shall make no covenants, representations, warranties or guarantees to End Users or to the trade with respect to the specifications, features, or capabilities of the Product which are inconsistent with the literature distributed by Channel Partner, or which are inconsistent with the then current PRIVACYCENTRAL End User Agreement. Channel Partner will notify PRIVACYCENTRAL immediately of any knowledge or suspicion of any violations of PRIVACYCENTRAL’s patents, copyrights, trademarks, or other proprietary rights.
- 1.6. Proprietary Rights. Channel Partner acknowledges and agrees that the Products and all other items provided hereunder and all copies thereof constitute valuable trade secrets of PRIVACYCENTRAL, or are proprietary and Confidential Information of PRIVACYCENTRAL, and title thereto remains in PRIVACYCENTRAL. All applicable copyrights, trade secrets, patents and other intellectual and property rights in the Products and all other items provided hereunder are and remain in PRIVACYCENTRAL. All other aspects of the Products and all other items provided hereunder, including without limitation, programs, methods of processing, and specific design of individual programs and their interaction and unique programming techniques employed therein as well as screen formats shall remain the sole and exclusive property of PRIVACYCENTRAL and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by Channel Partner, to any person, company or institution whatsoever other than for the purposes set forth herein. It is expressly understood that no title to or ownership of the Products, or any part thereof is hereby transferred to Channel Partner. Channel Partner shall not reverse engineer, decompile, disassemble or otherwise derive source code from the Products. All rights not expressly granted herein are reserved to PRIVACYCENTRAL.
2. SOFTWARE LICENSE
- 2.1. Trademark. PRIVACYCENTRAL hereby grants to Reseller, and Reseller hereby accepts, a non-exclusive, non-transferable right and license to use and display the Software and PRIVACYCENTRAL name and trademarks only for the following purposes; (i) marketing, promotional or demonstration, (ii) providing technical support of the Software to Customers and (iii) training Reseller's marketing and support personnel. Channel Partner shall submit to PRIVACYCENTRAL all representations of the Marks that Channel Partner intends to use in connection with the Products, for PRIVACYCENTRAL’s approval of design, color, and other details.
- 2.2. Ownership of Trademarks. If Channel Partner, in the course of performing its services hereunder, acquires any goodwill in any of the Marks, all such goodwill will automatically vest in PRIVACYCENTRAL and Channel Partner shall take all such actions or execute any documents necessary to make effective such vesting. Channel Partner shall not contest the validity of any of the Marks or PRIVACYCENTRAL’s exclusive ownership of the Marks. Channel Partner shall not adopt, use, or register, whether as a corporate name, trademark, service mark or other indication of origin, any of the Marks, or any word or mark confusingly similar to the Marks in any jurisdiction. Channel Partner shall not remove or efface any proprietary notices on the Products.
- 2.3. Software. PRIVACYCENTRAL hereby grants to Reseller, and Reseller hereby accepts, a non-exclusive, non-transferable right and license to market, resell and support the Software to its Customers. Reseller shall make its reasonable efforts to ensure that the PRIVACYCENTRAL End User Agreement shall be executed by end users of the Software.
- 2.4. Ownership of Software. PRIVACYCENTRAL shall have and retain exclusive ownership of all Intellectual Property Rights in the Software and Documentation.
- 2.5. Distribution. Except as expressly authorized by this Agreement, Reseller shall not use, duplicate, copy, display, transfer or distribute any of the Software.
- 2.6. Reverse Engineering. Reseller shall not in any case modify, reverse engineer, reverse compile, decompile or disassemble the Software. Notwithstanding these restrictions, Reseller may translate the Documentation into language other than English, with the prior written permission of PRIVACYCENTRAL.
3. DUTIES AND RESPONSIBILITIES
3.1. Reseller Duties. In addition to the duties of Reseller set forth elsewhere in this Agreement, Reseller agrees as follows:
- 3.1.1. Trademarks. Any use of PRIVACYCENTRAL name or trademarks (whether or not such trademark or name is formally filed or registered with the United States Patent and Trademark Office or any other governmental or territorial trademark registration entity) shall be subject to Reseller’s compliance with PRIVACYCENTRAL’ written instruction to be provided by PRIVACYCENTRAL to Reseller within seven (7) days of Effective Date. Reseller may use its own trademarks to indicate that the Software is distributed by Reseller, and any such trademarks of Reseller shall remain the sole property of Reseller.
- 3.1.2. Representations. Reseller shall make no representations, warranties or claims regarding the Software, which are false, misleading, or inconsistent with the Software specifications, warranties or descriptions provided by PRIVACYCENTRAL with the software and contained in this Agreement, and the Documentation. To the extent that Reseller makes any such false, misleading, or inconsistent representations, warranties or claims, Reseller shall defend, hold harmless and indemnify PRIVACYCENTRAL for any damages, losses or expenses relating to such claims.
- 3.1.3. Support. Reseller shall be solely responsible for providing support and maintenance services for their added services, if any and Reseller may provide ongoing maintenance services for their services under separate maintenance agreements. PRIVACYCENTRAL will provide a web support login account directly to the customer for support of the Software as part of its Premium Support and Maintenance if contracted and purchased by the customer. Reseller shall provide front line support to Customers who have entered into a software maintenance agreement with Reseller for the maintenance of the Software.
- 3.1.4. Legal Compliance. Reseller agrees to comply with all federal, state and local laws and regulations that are applicable to Reseller’s sale and distribution of the Software and performance of this Agreement (including but not limited to the laws applicable to the Reseller’s location’s of operation). Reseller shall obtain all required governmental approvals and certificates pertaining to the sale and distribution of the Software.
- 3.1.5. Copyright. Any copy of the Software made by Reseller shall include a reproduction of any copyright and patent notices of PRIVACYCENTRAL appearing in or on such Software. Reseller shall not remove any copyright or patent notices, which PRIVACYCENTRAL has placed in or on the Software, and a copyright notice designated by PRIVACYCENTRAL shall be included in appropriate locations in the Documentation provided with the Software that is delivered by Reseller to its Customers.
- 3.1.6. Benchmarking. Reseller shall not disclose results of any Software benchmark tests without PRIVACYCENTRAL’ prior written consent. The Software may not be used for purposes of competitive analysis or development of a competitive product.
- 3.1.7. Export Restrictions. Either party agrees to comply with any laws or regulations in countries or jurisdictions in which they operate and regulations regarding its right to sell, resell, transfer, distribute, download, install, import, export, possess or use the Software. Either party acknowledges and agrees that the Software is controlled for export purposes and that its sale, distribution and transfer of the Software may be subject to audit to ensure compliance with the terms of this Agreement. Either party agrees to strictly comply with all United States export laws and regulations, including, but not limited to the U.S. Department of Commerce (DOC) Export Administration Regulations (EAR 15 CFR 730‐774), the Office of Foreign Asset Control (OFAC) regulations as administered by the Department of Treasury, and all other treaties, Executive Orders, laws, statutes, amendments, or supplements thereto, including all applicable international, national, state, regional and local laws, and regulations. Either party further agrees that it will not export, re‐export or transfer, directly or indirectly, the Software to any prohibited country outlined in the Export Administration Regulations, or to any denied person, entity, or against any general denial order, as listed with the DOC as follows: Denied Persons List, Entities List, the Unverified List, and General Order No. 3 to Supplement No. 1 to Part 736 of the Export Administration Regulations, or on any OFAC list, currently the Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists. Either party further agrees that is will not export, or re‐export the Software to any military entity or military end‐use not authorized under the applicable provision of the Export Administration Regulations. Either party further agrees not to export or re‐export into Cuba, Iran, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. Either party further agrees not to license, sell, provide or distribute the Software for any prohibited use or to any prohibited end user, including but not limited to uses relating to any nuclear, chemical or biological weapons, rocket systems, space launch vehicles, sounding rockets, or unmanned air vehicle systems unless authorized by the U.S. Government by regulation or specific license. PRIVACYCENTRAL agrees to cooperate with Reseller with respect to any application for any required licenses and approvals, however Reseller acknowledges it is Reseller’s ultimate responsibility to comply with any and all export and import laws applicable to Reseller
3.2. PRIVACYCENTRAL Duties
- 3.2.1. Delivery. Delivery of the Software ordered by Reseller hereunder shall be made via the internet with a license key to be provided by PRIVACYCENTRAL to Reseller with an email and all risk of loss of and damages to the Software shall pass to Reseller upon such delivery. In addition to the duties of PRIVACYCENTRAL set forth elsewhere in this Agreement, PRIVACYCENTRAL agrees as follows:
- 3.2.2. Support. PRIVACYCENTRAL agrees to provide to Reseller back line support for the Software in accordance with the terms and conditions set forth in Exhibit A, for Reseller providing such front-line support. Other than the terms and obligations that are defined in Exhibit A, PRIVACYCENTRAL shall have no other obligation to provide any ongoing support or maintenance of the Software.
- 3.2.3. Solutions and workarounds. PRIVACYCENTRAL shall provide to Reseller such programming and/or documentation corrections for the Software, or such reasonable "workaround" solutions, to satisfy its express warranty set forth in Section 6 of this Agreement and for providing the back line support. Except for the obligation set forth in the preceding sentence, PRIVACYCENTRAL shall have the option, but not the obligation, to make design modifications or enhancements to the Software. All such enhanced, corrected, or otherwise modified Software delivered to Reseller shall be included in the definition of "Software" herein, and shall be subject to the terms and conditions of this Agreement.
- 3.2.4. Demonstration. All Software demonstration code which may be provided by PRIVACYCENTRAL to Reseller is for Reseller's internal use for demonstration, training and marketing purposes only. Such Software demonstration code will be provided without warranty of any kind, provided, however, PRIVACYCENTRAL shall have obligation to provide any corrections, updates, modifications, enhancements, support or maintenance of such demonstration code immediately after making the same.
4. ORDERS AND DELIVERY
- 4.1. Orders and Acceptance. Channel Partner may initiate purchases under this Agreement only by submitting purchase orders via fax to 650-350-4335 or by e-mail to firstname.lastname@example.org, with each purchase order to specify: (a) name of End User company; (b) the name, e-mail address and telephone number of the technical/buyer contact at End User; (c) the quantity and type of Products ordered identified by the PRIVACYCENTRAL part number; and (d) the number of Users/Seats for each Product. All purchase orders placed with PRIVACYCENTRAL for Products by Channel Partner shall be subject to acceptance in writing/email by PRIVACYCENTRAL referencing Channel Partner’s purchase order number. Without limiting the above, all purchase orders will be governed by the terms and conditions of this Agreement and the terms and conditions of either party’s forms of purchase order, acknowledgement or the like shall have no force or effect.
- 4.2. Delivery and Shipping. PRIVACYCENTRAL shall use reasonable efforts to deliver the Products on the delivery date specified in the Channel Partner purchase order. PRIVACYCENTRAL shall mark all Products for shipment to Channel Partner’s address set forth above or to the address specified in the Channel Partner purchase order, and shall deliver the Products to a carrier or forwarding agent chosen by PRIVACYCENTRAL or specified in the Channel Partner purchase order. Shipment will be F.O.B. PRIVACYCENTRAL’s shipping point, at which time risk of loss as to the Products passes to Channel Partner. Channel Partner shall pay all freight, insurance and other shipping expenses. PRIVACYCENTRAL will deliver software-only Products via electronic delivery.
- 4.3. Limitations. From time to time, PRIVACYCENTRAL may directly sell to its direct accounts. Channel Partner will register deals to avoid channel conflict. Guidelines for registering deals are provided in the Partner Portal (“Deal Registration Program”). Compliance with the Deal Registration Program is essential to minimize any perceived or real channel conflict, PRIVACYCENTRAL will work with Channel Partner to resolve any disputes, but shall have sole discretion and authority to resolve any such disputes. PRIVACYCENTRAL reserves the right to restrict or prohibit re-sales to any party in its sole discretion. In particular, Channel Partner is prohibited from reselling any PRIVACYCENTRAL Products or rights to any party that Channel Partner knows, or should reasonably suspect to be a competitor (or an agent of a competitor) of PRIVACYCENTRAL, or a party who intends to use the Products for any purpose other than file transfer (such as parties who might use the Products to reverse engineer, decompile or copy or reuse such information). If Channel Partner has any concern that any transaction might violate the foregoing restriction, Channel Partner should obtain advance written approval of such sales from PRIVACYCENTRAL.
5. PRICING AND PAYMENT
- 5.1. Prices. Subject to PRIVACYCENTRAL’s approval of Channel Partner’s creditworthiness (which approval may be withdrawn at any time), PRIVACYCENTRAL shall charge and Channel Partner shall pay the fees for the Products according to the terms of the PRIVACYCENTRAL Partner Program detailed in the Partner Portal. Channel Partner will complete all forms and certifications reasonably requested by PRIVACYCENTRAL. PRIVACYCENTRAL may revise the fees for the Products upon thirty (30) business days’ prior written notice to Channel Partner. Revisions will apply to all orders accepted by PRIVACYCENTRAL after the effective date of the revision.
- 5.2. Price Changes. All of PRIVACYCENTRAL list prices are subject to change in the sole discretion of PRIVACYCENTRAL. Reseller will be notified of any change at no less than 60 days from the effective date. Notwithstanding the foregoing, any price decrease shall be effective immediately upon PRIVACYCENTRAL notifying Reseller and shall be applicable to then unfulfilled orders. Where list prices are subject to price increases, PRIVACYCENTRAL agrees that where Reseller has quoted to a Customer based on the original list price prior to the new list price effective date, PRIVACYCENTRAL will honor the original list price on which such quotation shall be based.
- 5.3. Reseller Pricing. Although PRIVACYCENTRAL has established the current list price, Reseller is entirely free to determine its own resale and support prices unilaterally. No PRIVACYCENTRAL employee, representative, or anyone associated or affiliated with PRIVACYCENTRAL has any authority to dictate Reseller's resale and support prices for the Software and the front-line support or inhabit in any way Reseller's pricing discretion.
- 5.4. Records. Reseller shall keep adequate and accurate records of its sales and distribution of the Software under this Agreement and otherwise maintain appropriate books and records in accordance with local laws applicable to Reseller. PRIVACYCENTRAL shall have the right to audit Reseller's books and records once a year during the term of this Agreement to verify Reseller's full performance of the terms and conditions of this Agreement and the accuracy of all payments required to be made to PRIVACYCENTRAL under this Agreement. Such audit shall be subject to sixty (60) days prior written notice issued by PRIVACYCENTRAL to Reseller, and shall be conducted during the Reseller's ordinal business hours and in the manner which shall not interfere with Reseller's businesses unreasonably. Any underpayment or misrepresentation of the fees more than five percent (5%) of correct amount due to PRIVACYCENTRAL under this Agreement shall constitute a material breach of this Agreement. If PRIVACYCENTRAL' audits of Reseller's books and records reveal an underpayment with respect to any Customer by more than five percent (5%) of the correct amount payable by Reseller under the terms of this Agreement, Reseller shall reimburse PRIVACYCENTRAL for its costs and expenses of conducting such audit.
- 5.5. Payment. All payments are non-refundable and due within thirty (30) days of the date of invoice unless alternative credit terms apply. PRIVACYCENTRAL may choose to extend due date in its sole discretion upon providing written notice to Channel Partner. Payment is due in U.S. Dollars. Alternative currencies (CAD, GBP, EURO, SGD or AUD) may be used upon separate agreement with PRIVACYCENTRAL. If Channel Partner fails to pay within ninety (90) days of the date of shipment, or fails to obtain return of Product from End User to PRIVACYCENTRAL in that time, PRIVACYCENTRAL reserves the right to seek payment or return of Product directly from the respective End Users. Payments made after their due date will incur interest at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is lower.
- 5.6. Taxes. The fees payable by Channel Partner hereunder do not include any and all present and future taxes (including any excise, sales, use, value added, withholding, and similar taxes), customs duties, tariffs, or similar fees, and all payments made by Channel Partner to PRIVACYCENTRAL hereunder are payable in full without reduction for any such items. Channel Partner shall be the “importer of record” for all Order Forms under this Agreement. Channel Partner shall be responsible for and shall indemnify PRIVACYCENTRAL against any such taxes and fees required to be paid by PRIVACYCENTRAL, based on payments to PRIVACYCENTRAL hereunder or on the use or possession by Channel Partner of the Products, but excluding United States federal, state and local taxes based on PRIVACYCENTRAL’s net income.
- 5.7. Credit Terms. PRIVACYCENTRAL reserves the right at all times either generally or with respect to any specific order to vary, change or limit the amount or duration of credit to be allowed Channel Partner. At the time of submission of any order for Products hereunder, PRIVACYCENTRAL may require Channel Partner to either: (i) pay by certified check or wire transfer to a bank account designated by PRIVACYCENTRAL the amount of the aggregate purchase price of the Products ordered (plus any applicable taxes, shipping and other charges); or (ii) cause to be issued by a bank acceptable to PRIVACYCENTRAL, and confirmed by a bank designated by PRIVACYCENTRAL, one or more irrevocable stand-by letters of credit covering the aggregate purchase price of the Products (plus any applicable taxes, shipping and other charges). If Channel Partner defaults in any of its payment obligations to PRIVACYCENTRAL, including failure to comply with credit terms established by PRIVACYCENTRAL from time to time in its sole discretion, PRIVACYCENTRAL may declare, upon written notice to Channel Partner, all sums immediately due and payable.
- 5.8. Unauthorized Deductions and Late Payments. Invoiced amounts are not subject to offset, discount or deduction unless expressly authorized by PRIVACYCENTRAL in writing. If any amount payable by Channel Partner is not paid when due, then without limiting any other rights which PRIVACYCENTRAL may have as a result of such late payment, the amount unpaid shall bear interest until paid at a monthly rate of one and one-half percent (1.5%) or the maximum amount permitted under law, whichever is less, with such interest to be paid on demand together with all costs incurred by PRIVACYCENTRAL to collect the amounts due hereunder, including but not limited to reasonable attorneys’ fees and disbursements.
6. WARRANTY, DISCLAIMER & LIMITATIONS OF LIABILITY
- 6.1. Limited Warranty. PRIVACYCENTRAL warrants, for a period of thirty (30) days following shipment (the “Warranty Period”), that the Products will perform substantially in accordance with the specifications in the documentation shipped with the Products. PRIVACYCENTRAL’s sole obligation and Channel Partner’s and/or End User’s sole remedy for any breach of the foregoing warranty is to repair or replace the Products, provided however that if PRIVACYCENTRAL, in its sole discretion, determines that it is not able to repair or replace the Products, PRIVACYCENTRAL shall refund to Channel Partner that portion of the purchase price paid for the Products that Channel Partner is obligated to refund to the End User as a result of such breach of warranty. As a condition to the foregoing warranty, the Channel Partner and/or End User must provide PRIVACYCENTRAL with written notice of such Error within the Warranty Period. Misuse or modification of the Product by End User, Channel Partner or any third party will void all warranties.
- 6.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, PRIVACYCENTRAL HEREBY DISCLAIMS ANY AND ALL WARRANTIES ON THE PRODUCTS, MAINTENANCE AND SUPPORT, AND PROFESSIONAL SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT.
- 6.3. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, PRIVACYCENTRAL’S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNTS PAID BY CHANNEL PARTNER TO PRIVACYCENTRAL WITHIN ONE HUNDRED EIGHTY (180) DAYS PRIOR TO THE DATE OF THE CLAIM GIVING RISE TO SUCH LIABILITY. PRIVACYCENTRAL WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION), WHETHER OR NOT PRIVACYCENTRAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. TERM AND TERMINATION
- 7.1. Term. This Agreement will commence in force on the Effective Date and will continue for a term of two (2) years, unless terminated earlier as provided in this Agreement. This Agreement will automatically renew for successive one (1) year terms unless terminated by either party upon no less than thirty (30) days written notice prior to the termination of the initial or any renewal term
- 7.2. Termination for Cause. Either party may terminate this Agreement at any time upon written notice if the other party: (i) is in material breach of its obligations hereunder and fails to cure such breach within thirty (30) days following written notice of such breach, or (ii) becomes insolvent or files or has filed against it a petition under bankruptcy or insolvency law which is not dismissed within ninety (90) days, makes an assignment for the benefit of creditors or takes any similar action under applicable bankruptcy or insolvency law. A party will notify the other party promptly if it becomes subject to an Insolvency Event.
- 7.3. Termination on Other Grounds. This Agreement may be also terminated: (i) by either party for any or no reason and without liability upon sixty (60) days written notice; and (ii) by PRIVACYCENTRAL upon thirty (30) days advance written notice if Channel Partner fails to achieve the yearly minimum revenue commitment set forth in the PRIVACYCENTRAL Partner Program.
- 7.4. Effect of Termination. On expiration or termination of this Agreement, PRIVACYCENTRAL may cancel any or all unfilled orders. Any orders which are not canceled will be fulfilled per the terms of the Agreement. Upon expiration or termination, each party shall return to the other any materials of the other, including without limitation all Confidential Information. Termination or expiration shall not relieve either party of the obligation to pay any sums due hereunder. Notwithstanding this provision and for the avoidance of doubt, PRIVACYCENTRAL shall not have a duty of such warranty, support and maintenance which is in excess of and beyond them set forth in this Agreement and PRIVACYCENTRAL Software License Agreement. Other obligations which shall survive for a period of five (5) years from the termination of expiration of this Agreement include: indemnities and limitation of liability. Obligations regarding export control regulations and U.S. government end users shall survive indefinitely. The warranty and confidentiality provisions shall remain in effect for their stated durations. Neither party shall be liable to the other for any damages, expenditures, loss of profits or prospective profits or goodwill on account of the termination or expiration of this Agreement pursuant to its terms. Channel Partner expressly waives any and all rights provided by law or statute for any indemnity or compensation from PRIVACYCENTRAL by reason of termination or non-renewal of this Agreement.
- 7.5. Surviving Provisions. Sections 6 (Warranty & Disclaimers), 15 (Export), 7 (Term and Termination) , 8 (Confidential Information), 10 (Limitation of Liability), and 12 (General Provisions) of this Agreement shall survive termination of this Agreement or any Exhibit hereto.
8. CONFIDENTIAL INFORMATION
- 8.1. “Confidential Information” means any information disclosed by one party to the other pursuant to this Agreement which is marked “Confidential,” “Proprietary,” or which, under the circumstances surrounding disclosure, would reasonably be expected to be confidential. Each party shall treat as confidential all Confidential Information of the other party, and shall not use such Confidential Information except to exercise its rights or perform its obligations under this Agreement and shall not disclose such Confidential Information to any third party. This paragraph will not apply to any Confidential Information which is generally known and available, or in the public domain through no fault of the receiver.
- 8.2. Compliance. Each party agrees to effectuate, by agreement, instruction or otherwise, compliance with these confidentiality obligations by its employees, agents, consultants and others who are permitted access or use (in accordance with the terms herein) of the Confidential Information of the other party.
- 8.3. Breach. Each party agrees to notify the other promptly in the event of any breach of its security under conditions in which it would appear that Confidential Information of the other party was compromised or is exposed to loss. Each party shall, upon request from the other party, take reasonable steps to recover any compromised or lost Confidential Information.
- 8.4. Reasonable Protection. The parties hereto acknowledge that the Confidential Information is valuable, special and unique to either parties business, that either parties business depends on the Confidential Information, that the Confidential Information is proprietary to each respective party, and that each party wishes to protect the Confidential Information by keeping it secret and confidential for its sole use and benefit. Both parties shall take the same or similar steps which it uses to protect the confidentiality of its own Confidential Information, and in any event not less than reasonable manner to ensure that all of the Confidential Information is kept secret and confidential for its sole use and benefit.
- 8.5. Ownership. All records and other materials pertaining to the Confidential Information shall be and remain the exclusive property of the disclosing party. Upon termination of this Agreement or at any other time the disclosing party may in writing so request, the receiving party shall promptly deliver to the disclosing party all proprietary information and all materials concerning or constituting any Confidential Information, copies thereof and any other materials of the disclosing party which are in the receiving party's possession or control, and no person shall make or retain any copy or extract thereof. Notwithstanding anything contained herein to the contrary, receiving party shall be entitled to retain the Confidential Information (i) pursuant to automatic back up and archiving systems, (ii) in order to comply with any legal, regulatory, or compliance policies or procedures. Any Confidential Information retained shall continue to be held confidential according to the terms of this Agreement.
- 8.6. Remedy. Each party agrees that if there is a breach or threatened breach of the provisions of this Agreement, the other party may have no adequate remedy in money or damages and accordingly shall be entitled to seek injunctive relief and any other appropriate equitable remedies for any such breach without proof of actual injury. Each party further agrees that it will not oppose the granting of such relief and that it will not seek, and agree to waive any requirement for, the posting of any bond in connection therewith. Such remedies shall not be deemed to be the exclusive remedies for any breaches of this Agreement by a party or its representatives, and shall be in addition to all other remedies available at law or in equity.
- 9.1. Infringement Indemnification. PRIVACYCENTRAL shall, at its own expense, defend or settle any suit or proceeding that is instituted against Channel Partner to the extent such suit or proceeding alleges that any Product sold by PRIVACYCENTRAL hereunder infringes any duly issued patent or copyright of the United States or the Channel Partner’s headquarter office and shall pay all damages awarded therein against Channel Partner or agreed upon in settlement by PRIVACYCENTRAL; provided that Channel Partner (i) gives PRIVACYCENTRAL immediate notice in writing of any such suit, proceeding or threat thereof, (ii) permits PRIVACYCENTRAL sole control, through counsel of PRIVACYCENTRAL’s choice, to defend and/or settle such suit and (iii) gives PRIVACYCENTRAL all the needed information, assistance and authority, at PRIVACYCENTRAL’s expense, to enable PRIVACYCENTRAL to defend or settle such suit. In the event the use or sale of any Product purchased from PRIVACYCENTRAL is enjoined, or in the event PRIVACYCENTRAL wishes to minimize its potential liability hereunder, PRIVACYCENTRAL may, at its sole option and expense: (i) procure for Channel Partner the right to distribute such Product; (ii) substitute a functionally equivalent, non-infringing unit or version of the Product; (iii) modify such Product so that it no longer infringes but is substantially equivalent in functionality; or (iv) if none of the foregoing are commercially feasible, take back such Product and refund the purchase price paid by Channel Partner for such Product. PRIVACYCENTRAL shall in no event be obligated to accept new orders for Products which are subject to a claim of infringement covered under this section. THIS SECTION 9.1 STATES THE SOLE LIABILITY OF PRIVACYCENTRAL WITH RESPECT TO ANY INFRINGEMENT BY THE PRODUCTS OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY CLAIM
- 9.2. Exclusions. PRIVACYCENTRAL’s obligations under Section 9.1 shall not apply to and PRIVACYCENTRAL shall have no liability or obligation for any infringement arising from: (i) any modification, servicing or addition made to the Product by anyone other than PRIVACYCENTRAL, (ii) the use of such Product as a part of or in combination with any devices, parts or software not provided by PRIVACYCENTRAL, (iii) compliance with Channel Partner’s design requirements or specifications, (iv) the use of other than the then current unaltered release of the software Product available from PRIVACYCENTRAL or (v) the use of such Product to practice any method or process which does not occur wholly within the Product. The above exclusions apply to the extent that the infringement would have been avoided but for such modifications, combinations, compliance with specifications, use of other than the current release or practice of such method or process.
- 9.3. Channel Partner Indemnification. Channel Partner will defend, indemnify and hold PRIVACYCENTRAL harmless from and against any and all damages, liabilities, costs and expenses (including but not limited to attorneys’ fees) arising out of or incurred by PRIVACYCENTRAL in connection with or as a result of any claim arising out of or relating to any acts or omissions of Channel Partner in connection with this Agreement.
10. COMPLIANCE WITH LAWS
- 10.1. Compliance. Channel Partner agrees to comply with all applicable laws of the United States and all other applicable governmental entities including, without limitation, (i) the Foreign Corrupt Practices Act of 1977, (ii) all export laws, restrictions and regulations of the Department of Commerce or other United States or foreign agency or authority. Channel Partner agrees not to export, or allow the export or re-export of any PRIVACYCENTRAL Products, or of information regarding PRIVACYCENTRAL Products in violation of any such restrictions, laws or regulations.
- 10.2. Audit Rights. During the term of this Agreement and for a period of two (2) years following any expiration or termination of this Agreement (“Auditing Period”), Channel Partner shall maintain full and complete records of its provision of the Products to End Users (the “License Records”). For the purpose of verifying the accuracy of License Records, PRIVACYCENTRAL shall, at any time during the Auditing Period, be entitled to audit such License Records by providing Channel Partner with fifteen (15) business days prior written notice; provided, however, that no more than one (1) audit may be conducted in any twelve (12) month period. Both parties shall mutually agree upon an independent third party auditor to conduct the audit and such auditor shall sign a standard confidentiality agreement with both parties. Any audit performed pursuant to this Section 10.4 shall be conducted during normal business hours and at PRIVACYCENTRAL’s expense; provided, however, that the cost of such audit shall be paid by Channel Partner if the audit reveals an underpayment by Channel Partner of more than five percent (5%) of the amounts payable by Channel Partner to PRIVACYCENTRAL in any twelve (12) month period.
11. GOVERNING LAW; JURISDICTION; ARBITRATION
- 11.1. Jurisdiction. This Agreement shall be subject to and construed in conformity with the laws of the State of California, United States of America (U.S.A.) without regard to its principles of conflicts of laws or the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising between the parties shall be settled by arbitration under the rules of the Judicial Arbitration and Mediation Services, Inc (“JAMS”) of Los Angeles, CA, Los Angeles, California, U.S.A. before arbitrator(s) selected under the rule. The arbitral language shall be English. The arbitral award may be enforced in any court having jurisdiction.
- 11.2. Enforcement. This provision for arbitration shall be specifically enforceable by the parties and, except as otherwise provided by applicable law, the decision of the arbitrator in accordance herewith shall be final and binding. The arbitrator shall have the power to issue and grant permanent injunctive relief and other equitable orders and remedies. Any such arbitration shall be conducted in confidence and in accordance with the confidentiality provisions of this Agreement. Each party shall pay its own expenses of arbitration and the expenses of the arbitrator shall be equally shared.
- 11.3. Breach. Reseller acknowledges and agrees that PRIVACYCENTRAL will be irreparably harmed in the event of its breach or threatened breach of the PRIVACYCENTRAL Intellectual Property Rights as set out in provision numbered 10 of this Agreement. Therefore, Reseller acknowledges and agrees that, notwithstanding anything contained herein to the contrary, PRIVACYCENTRAL may commence an action in any court of competent jurisdiction, to obtain equitable relief to prevent such breach or threatened breach at any time prior to the commencement of an arbitration proceeding and, if an arbitration proceeding has been commenced, at any time until an arbitration award is rendered in such arbitration proceeding or the claim or dispute is otherwise resolved. If PRIVACYCENTRAL prevails in such an action Reseller shall reimburse PRIVACYCENTRAL for all fees, costs and expenses including, without limitation, attorneys’ fees, costs and expenses incurred by PRIVACYCENTRAL in taking such court action to obtain equitable relief. PRIVACYCENTRAL shall not be deemed to have waived its right to arbitrate any dispute, claim or controversy by reason of seeking such equitable relief.
12. GENERAL PROVISIONS
- 12.1. Agreement. This Agreement, including all referenced and attached Exhibits, constitutes the complete and final agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, representations and agreements, oral or written, between the parties with respect thereto.
- 12.2. Modification. This Agreement may be modified only by a writing signed by the authorized representatives of both parties.
- 12.3. Warrants. Each party warrants that it has the authority, power and capability to enter into and to perform its obligations under this Agreement and that its obligations under this Agreement are binding and enforceable.
- 12.4. Headings. Headings included in this Agreement are for convenience only and are not to be used to interpret the agreement between the parties.
- 12.5. Relationship of the Parties. Neither party shall be considered or deemed to be an employee, agent or partner of the other in connection with this Agreement. Neither party shall have any right or authority to assume or create any obligation or responsibility, either express or implied, on behalf of the other party. The parties shall be and remain independent contractors with respect to this Agreement.
- 12.6. Force Majeure. Neither party is responsible for delays or failures to perform its responsibilities under the Agreement due to causes beyond its reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, Malicious Code, denial of service attacks, and inability to obtain energy (each a "Force Majeure Event"); provided, however, that it will resume performance as soon as reasonably practicable.
- 12.7. Assignment. This Agreement may not be assigned by Channel Partner without PRIVACYCENTRAL’s prior written consent. Subject to the preceding sentence, this Agreement will inure to the benefit of the parties’ successors and assigns. The relationship between PRIVACYCENTRAL and Channel Partner established by this Agreement is that of independent contractors. The contract relationship created hereby is between specific entities and does not include corporate subsidiaries or affiliates, and none of the rights of either party hereunder are assignable, nor are any obligations imposed upon either party hereunder delegable, without the prior written permission of the other party. Any permitted assignment shall be binding on a party’s successors and assigns.
- 12.8. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under the Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- 12.9. Severability. If any provision of this Agreement is determined to be illegal or invalid, such illegality or invalidity will have no effect on the other provisions of this Agreement, which will remain valid, operative and enforceable.
12.10. Notices. Notices to PRIVACYCENTRAL under this agreement must be in writing and sent by registered or certified mail, return receipt requested, or receipted courier service at the address below or to such other address (including facsimile or electronic) as specified in writing and will be effective upon receipt. Notices to Customer shall be addressed to Customer's signatory of this agreement unless otherwise designated in writing. Notice shall be effective upon receipt.
Privacy Central, Inc
315 S. COAST HIGHWAY 101
ENCINITAS, CA 92024
This Section shall apply for formal notices only and shall not limit the parties' ability to communicate via electronic mail or other methods as agreed to by the parties for routine communications.
- 12.11. Distribution. Channel Partner covenants and agrees not to threaten, file or pursue any action against PRIVACYCENTRAL arising from or relating to a claim of agency or similar claim based on the distribution relationship and agrees to indemnify, defend, and hold PRIVACYCENTRAL and its affiliated companies, and their respective officers, directors, employees and agents, harmless from and against all claims, liability, damages, fees and costs (including fees and costs of attorneys and other experts), arising from or relating to such claim.
- 12.12. Transmission. Both parties expressly consent and agree that this Agreement may be executed by electronic transmission through an electronic signature service, or by click-through acceptance by Channel Partner with PRIVACYCENTRAL’s confirmation of acceptance, and that such execution by electronic transmission or confirmation of acceptance will represent final and binding execution and acceptance of the terms and conditions contained in this Agreement. Any copy of this Agreement made by reliable means (such as PDF, photocopy or facsimile) shall be considered an original.
- 12.13. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
- 12.14. Public Disclosure. Neither party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) except as required by law or any governmental or regulatory authority (including, without limitation, any relevant securities exchange) or by any court or other authority of competent jurisdiction.