NETWORK OPTIX™, INC.
HD WITNESS® RESELLER AGREEMENT
This Reseller Agreement is between Network Optix, Inc. (“Company”) and the reseller filling
the online form to create a partner account (the “Reseller”).
Company is the licensor of the Product (as defined below) consisting of software and related
documentation. Reseller desires a nonexclusive, nontransferable, non-assignable and limited right
and license to market and resell licenses for the Product solely as set forth herein, and Company
agrees to grant to Reseller such rights and license solely as set forth herein. As an authorized HD
Witness® reseller you will be approved to purchase and resell HD Witness® licenses.
PLEASE READ CAREFULLY: BY CLICKING AN ONLINE ACCEPTANCE BUTTON
BELOW, YOU CONSENT TO BE LEGALLY BOUND BY ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT
ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU
HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS
AGREEMENT, IN WHICH CASE THE TERM “RESELLER” SHALL REFER TO SUCH ENTITY
AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT
AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND
MAY NOT RESELL THE HD WITNESS® SOFTWARE.
COMPANY MAY, IN ITS SOLE DISCRETION, MODIFY OR REVISE THIS
AGREEMENT AT ANY TIME BY UPDATING THIS POSTING. YOU ARE BOUND BY ANY
SUCH MODIFICATION OR REVISION AND SHOULD THEREFORE VISIT THIS PAGE
PERIODICALLY TO REVIEW THIS AGREEMENT. YOUR CONTINUED RESALE OF OUR
SOFTWARE AFTER ANY MODIFICATION INDICATES YOUR ACCEPTANCE OF SUCH
MODIFICATION AND, IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR
SOLE REMEDY AND RECOURSE IS TO IMMEDIATELY DISCONTINUE RESELLING OUR
SOFTWARE.
1.
DEFINITIONS. Terms not otherwise defined in this Agreement will have the
meaning and definition as specified below:
1.1
“Confidential Information” means information, other than Trade Secrets, that
is of value to its owner and is treated as confidential.
1.2
“End User” means a customer obtaining a Product in accordance with the End
User Agreement solely for its own internal business purposes and not for further distribution or resale.
1.3
“License Key” means an authorization key that enables an End User to
activate and use the Software (as defined below) in a pre-determined manner.
1.4
“Marks” means any trademarks, service marks or trade names of Company
associated with the Product as designated by Company.
C-1
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1.5
“Orders” means written orders of Reseller for License Keys identifying,
among other things, the End User, the quantities desired and the End User location where the Media
Player will be installed.
1.6
“Product” means the version and release of Company’s proprietary HD
Witness® software, in object code, machine readable form only, and any subsequent revisions or
releases thereof (the “Software”), including the License Key and related documentation.
1.7
“Proprietary Information” means Trade Secrets and Confidential Information.
1.8
“Trade Secrets” means information which: (a) derives economic value, actual
or potential, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy.
1.9
All references in this Agreement to the “purchase” or “sale” of a Product shall
mean, with respect to all parts of such Product which are covered by intellectual property rights owned
by the Company or its licensors, the acquiring or granting, respectively, of a license to use such parts,
and to exercise any other rights pertaining to such parts which are expressly set forth here.
2.
GRANT.
2.1
Company grants Reseller a nonexclusive, nontransferable, non-assignable and
limited right and license to market and distribute the Product to End Users, solely as set forth in this
Agreement. Reseller shall be entitled to distribute the Product directly to End Users solely.
2.2
Company grants Reseller a nonexclusive, nontransferable, non-assignable and
limited right and license to use the Marks in marketing the Product solely in accordance with Section 4
and Section 11 of this Agreement.
2.3
Except as specifically set forth in the Agreement, no express or implied
license or right of any kind is granted to Reseller regarding the Product or the Marks, including, but not
limited to, any right to know, use, produce, receive, reproduce, copy, market, sell, distribute, transfer,
translate, modify, adapt, disassemble, decompile, or reverse-engineer the Product or create derivative
works based on the Product or any portions thereof, or obtain possession of any source code or other
technical material relating to the Product.
2.4
The Company shall have the right to appoint additional agents, resellers,
vendors or any other manner of representatives to sell, market and support the Product without notice
or liability to Reseller.
3.
RESELLER’S OBLIGATIONS.
3.1
Reseller will use its best efforts to market and promote the Product to End
Users. Reseller will cause its personnel to become proficient in the use, installation and demonstration
of the Product to potential End Users. Reseller will have the authority to market the Product under the
terms and conditions of the Minimum Advertised Policy (MAP) set forth below. Reseller has and will
exercise no authority to make any alterations to the Minimum Advertising Policy.
3.2
Reseller has and will exercise no authority to make statements, warranties or
representations concerning the Product that exceed or are inconsistent with the marketing materials or
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technical specifications provided to Reseller by Company. Reseller has and will exercise no authority
to bind Company to any undertaking or performance with respect to the Product.
3.3
Reseller may offer directly to End Users, separate and independent of its
functions as a Reseller of Product under this Agreement, appropriate ancillary products or services.
The terms, conditions and charges for such products or services will be established by Reseller with
End Users. Reseller will inform End Users that Company’s obligations are limited to those contained
in the End User Agreement with End Users solely and that products or devices of Reseller are offered
on Reseller’s own account and that Reseller remains solely responsible for such ancillary products or
services.
3.4
Reseller shall initiate purchases of the License Keys under this Agreement by
submitting Orders to Company. No Order shall be binding upon Company until accepted by Company
in writing and Company reserves the right to reject Orders in whole or in part. This Agreement shall
govern all orders placed by Reseller for units of the License Keys. No terms on purchase orders,
invoices or like documents produced by Reseller shall alter or add to the terms of this Agreement.
3.5
Reseller shall not in any manner reproduce, copy or alter any Product or any
portion thereof, and Reseller shall use all lawful means possible to prevent persons affiliated with
Reseller from doing so without the express written consent of Company.
4.
LICENSE FEES AND PAYMENT.
4.1
Reseller will pay Company the license fees of $75 per license for the Product
ordered by Reseller as set forth here at payment terms specified by Company. Reseller will pay
Company within thirty (30) days of the date of invoice from Company. Interest may be charged by
Company on delinquent accounts at the rate of one and one-half percent (1½%) per month or the
maximum amount allowed by law, whichever is less, commencing with the date payment was due.
Reseller will pay to Company any amounts actually incurred by Company in collection of any such
delinquent accounts, including attorneys’ fees. Company reserves the right to modify the license fees
specified above at any time, in Company’s sole discretion, by providing Reseller with an amended
Reseller Agreement specifying the new license fees. Any such change will be effective immediately
(but will not affect orders already accepted by Company prior to the effectiveness of the price change).
4.2
All payments from Reseller to Company will be in U.S. Dollars and shall be
made as specified by Company. Subject to credit approval (at Company’s discretion), Reseller will
pay Company by means of a Company check, bank check, credit card, Pay Pal® or wire transfer to
Company’s bank.
4.3
The amounts due to Company as set forth in this agreement are net amounts
to be received by Company, exclusive of all taxes, and are not subject to offset or reduction because of
any costs, expenses, or liabilities incurred by Reseller or imposed on Company in the performance of
this Agreement or otherwise due as a result of this Agreement.
4.4
Reseller will be responsible for and will pay directly, any and all taxes, duties
and charges incurred in the performance of this Agreement, including, but not limited to, sales and use
taxes, withholding taxes, duties and charges imposed by federal, state or local governmental authorities
in the United States or elsewhere, but excluding U.S. corporate income taxes of Company. Reseller
will also be responsible for payment of any license fee, assessment, duty, tax, levy, or similar charge
DOCSOC/1571608v1/101959-0000
imposed by any foreign government as a result of this Agreement or the transactions contemplated by
the parties hereunder. Reseller will provide its sales tax exemption number and related documentation
(including resale exemption certificate) to Company as required by state law.
5.
MINIMUM ADVERTISED PRICE POLICY.
5.1
This Minimum Advertised Pricing policy (MAP) covers all resellers,
distributors, and exclusive distributors of Company. Although resellers, distributors, and exclusive
distributors remain free to establish their own resale prices, Company will, without assuming any
liability, unilaterally impose sanctions as described in this policy, against resellers, distributors, and
exclusive distributors who advertise applicable Products at prices below those specified herein.
5.2
Company will not discuss any conditions of acceptance related to this MAP
policy, as it is non-negotiable, and will not be altered for any reseller, distributor, and exclusive
distributor. Company neither solicits, nor will it accept, any assurance of compliance with this MAP
policy.
5.3
MAP applies only to minimum advertised prices and does not apply to the
price at which the products are actually sold, or to advertised prices higher than the unilateral minimum
resale prices established by Company from time to time.
Minimum Advertised Price:
HD Witness®
MANUFACTURED SUGGESTED RETAIL PRICE: $150 per license
5.4
The MAP policy applies to all advertisements of Product in, and all media
including, without limitation, flyers, posters, coupons, mailers, inserts, newspapers, magazines,
catalogs, mail order catalogs, Internet or similar electronic media, television, radio and public signage.
5.5
In the event resellers, distributors, or exclusive distributors choose not to
follow the Company’s MAP policy, sanctions will be unilaterally imposed by Company.
5.6
Company reserves the right at any time to modify, suspend, or discontinue the
MAP policy in whole or in part.
6.
NONDISCLOSURE AND CONFIDENTIALITY.
6.1
Each party (“Disclosing Party”) hereunder may disclose to the other party
(“Recipient”) certain Trade Secrets and Confidential Information.
6.2
Recipient agrees to hold the Proprietary Information of Disclosing Party in
strictest confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture,
duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary
Information of Disclosing Party to any third party, or utilize the Proprietary Information of Disclosing
Party for any purpose whatsoever other than as expressly or impliedly contemplated by this
Agreement. With regard to the Trade Secrets, this obligation will continue for so long as such
information constitutes a trade secret under applicable law. With regard to the Confidential
Information, this obligation will continue for the term of this Agreement and for a period of three (3)
years thereafter
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7.
PROPRIETARY RIGHTS.
7.1
Reseller acknowledges that nothing herein gives it any right, title or interest
in the Product or the Marks except for Reseller’s limited express rights pursuant to Section 3 of this
Agreement.
7.2
Reseller acknowledges and agrees that Company or its suppliers maintain
exclusive ownership of the Product in all forms (both object code and source code) and all copies and
all portions thereof and the Marks, including, without limitation, any and all worldwide copyrights,
patents, trademarks, service marks, trade names, trade secret, proprietary and confidential information
rights and other property rights associated with the Product and the Marks.
8.
WARRANTIES.COMPANY DOES NOT MAKE ANY EXPRESS OR
IMPLIED WARRANTIES TO RESELLER, WITH RESPECT TO THE PRODUCT, ANY
COPIES THEREOF, ANY SERVICES PROVIDED HEREUNDER OR OTHERWISE
REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF
MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT AND
THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
9.
LIMITATION OF LIABILITY.
9.1
RESELLER ACKNOWLEDGES AND AGREES THAT IN NO EVENT
SHALL COMPANY OR ANY AFFILIATE OF COMPANY, OR ANY OF COMPANY’S
OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS OR REPRESENTATIVES BE
LIABLE TO RESELLER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES IN ANY WAY RELATING TO THIS AGREEMENT, EVEN IF COMPANY HAS
BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2
IN NO EVENT WILL COMPANY’S LIABILITY FOR ANY DAMAGES
TO RESELLER OR TO ANY THIRD PARTY EVER EXCEED THE AMOUNT OF FEES PAID BY
RESELLER TO COMPANY HEREUNDER, REGARDLESS OF THE FORM OF ACTION
WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCT LIABILITY
OR OTHERWISE.
10.
INDEMNIFICATION.
10.1
Company will defend, at its expense, any action (or portion thereof) brought
against Reseller based solely on a claim that the Product infringes upon a United States copyright or
violate the trade secret rights of any third party. Company will indemnify and hold harmless Reseller
against damages and costs including reasonable attorneys’ fees, penalties and interest finally awarded
against Reseller in such actions directly attributable to such claims. Company will not be obligated to
indemnify any claim of infringement if such infringement arises out of the use or combination of the
Product with other software.
10.2
Reseller agrees to indemnify, defend and hold harmless Company, its
affiliates, and their directors, officers, shareholders, employees and agents from and against any claims,
liabilities, losses, damages, causes of action or injuries, together with costs and expenses, including
reasonable attorneys’ fees, arising out of or resulting from:
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(a)
Any actions or omissions on the part of Reseller in
distributing or marketing the Product;
(b)
Any statements, claims, representations or warranties made by
Reseller or its employees, agents or representatives, relating to the Product, other than as
authorized by Company in writing or made in Company’s own writings; or
(c)
Any failure on the part of Reseller to pay any taxes, duties or
assessments due hereunder or other amounts as set forth in Section 5.
10.3
The indemnification set forth in Sections 10.1 and 10.2 is conditioned upon
the indemnified party providing the indemnifying party (i) notice of any claim or cause of action upon
which the indemnified party intends to base a claim of indemnification hereunder, and (ii) the
indemnified party providing reasonable assistance and cooperation to enable the indemnifying party to
defend the action or claim hereunder. The indemnifying party will have the right to defend any action
or proceeding involving a claim that the indemnifying party is obligated to indemnify hereunder. The
indemnifying party will not be obligated to any claim that is settled by the other party with the prior
written consent of the indemnifying party.
11.
USE OF MARKS.
11.1
In connection with the use of the Marks as permitted in Section 3, Reseller
agrees to comply in all respects with any guidelines or directions provided by Company with respect to
proper usage of the Marks. At the request of Company, Reseller will submit to Company any and all
materials bearing or including any of the Marks, for prior review and approval by Company. Upon the
request of Company, Reseller agrees to discontinue the use of (i) any Marks being used by Reseller in a
manner determined by Company in its sole discretion to be inconsistent with the guidelines set forth
above, or (ii) any trademark, service mark, or trade name deemed by Company to create a likelihood of
confusion with a Mark. Reseller agrees and acknowledges that Company owns all right, title and
interest in and to the Marks. Reseller covenants and agrees not to file or prepare any application for
registration of any of the Marks. Reseller agrees not to adopt, use, file for registration, or register any
trademark, service mark, or trade name which may be an infringement of any one or more of the Marks
or result in a likelihood or confusion with a Mark.
11.2
Reseller agrees not to commit any acts, directly or indirectly, which may
contest, dispute, or otherwise impair the rights, title or interest of Company in or to the Marks.
Reseller agrees not to claim or assert any rights, title or interest in or to the Marks in any way. The
parties agree that all uses of the Marks by Reseller will be in such a manner as to inure at all times to
the benefit of Company. Reseller will not use any language or display any Marks in such a manner as
to create the impression that the Marks belong to and are owned by Reseller. Reseller may not use the
Marks in combination with any other trademarks, trade names, service marks, or other designations,
without the prior written approval of Company.
12.
SUPPORT.
12.1
Reseller shall be solely responsible for providing level 1 and level 2 technical
support for all of its End Users, as described below. Reseller may provide this support as a billable
service. If an End User problem cannot be resolved through level 1 and level 2 support and Company
and Reseller agree that the problem requires level 3 support, Company shall provide level 3 support
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directly to Reseller, or directly to the End User if Company and Reseller agree that direct support is
needed.
12.2
Level 1 support means the initial response (and any follow-up response as
appropriate) to an End User initiated support request. Level 2 support means a second, higher level of
technical support and consists of, but is not limited to, problem isolation, identification, and
replication; providing remedies for both new and known complex problems and escalating unresolved
problems to Level 3 Support.
12.3
Level 3 support means a third, higher level of technical support in addition to
Level 1 Support and Level 2 Support described above that may include technical assistance requiring
knowledge of product code source and consists of problem isolation, identification, and replication for
complex problems; providing new fixes and workarounds to problems; providing remedies for both
new and known complex problems; and resolution of problems through generation of formal fixes.
13.
TERM AND TERMINATION.
13.1
This Agreement commences on the effective date of approval and acceptance
by Company and will continue until terminated in accordance with the provisions herein.
13.2
Either party may terminate this Agreement with or without cause upon thirty
(30) days written notice to the other party.
13.3
Termination or expiration of this Agreement for any reason will automatically
accelerate the due date of all invoices and any other monies due to Company by Reseller, which will
become immediately due and payable on the effective date of termination or expiration.
13.4
Upon termination or expiration of this Agreement, the provisions of this
Agreement providing for payment of royalties or fees to Company, protection of Company’s
proprietary rights, warranties, the limitation of liability, indemnities, arbitration and other provisions of
this Agreement concerning the ongoing interests of Company, including, but not limited to, Sections 5,
6, 7, 8, 9, 10 and 12 will continue and survive in full force and effect.
14.
ASSIGNMENT. This Agreement and all rights and obligations hereunder are
personal to the parties hereto and may not be assigned in whole or in part by either party
without the prior written consent of the other. Notwithstanding the foregoing, Company will
have the right to assign its rights and obligations hereunder, (i) to any controlled subsidiary of
Company, (ii) to any joint venture in which Company is a participant, (iii) to any entity
which is the survivor in a merger of Company with or into such other entity, or (iv) to any
acquirer of all or substantially all of the assets of Company.
15.
INDEPENDENT PRINCIPALS. Company and Reseller are independent
principals in all relationships and actions under and contemplated by this Agreement. This
Agreement will not be construed to create any employment, partnership, joint venture,
franchise or agency relationship between the parties or to authorize Reseller to enter into any
commitment or agreement binding on Company, and Reseller covenants and agrees that it
will never contend to the contrary. Reseller will not make any warranties, guarantees or any
other commitment on behalf of Company.
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16.
FORCE MAJEURE. Neither party will be in default by reason of any failure
in performance of this Agreement if such failure arises, directly or indirectly, out of causes
reasonably beyond the direct control or foreseeability of such party, including, but not limited
to, default by subcontractors or suppliers, acts of God or of the public enemy, U.S. or foreign
governmental acts in either a sovereign or contractual capacity, fire, flood, epidemic,
restrictions, strikes, and/or freight embargoes.
17.
NO WAIVER. Any failure by either party to detect, protest, or remedy any
breach of this Agreement will not constitute a waiver or impairment of any such term or
condition, or the right of such party at any time to avail itself of such remedies as it may have
for any breach or breaches of such term or condition. A waiver may only occur pursuant to
the prior written express permission of an authorized officer of the other party.
18.
EQUITABLE REMEDIES AND SPECIFIC PERFORMANCE. Reseller
acknowledges that each provision in this Agreement providing for the protection of
Company’s copyrights, Proprietary Information and other proprietary rights is material to this
Agreement. The parties acknowledge that any threatened or actual breach of Company’s
copyrights or other proprietary rights by Reseller will constitute immediate, irreparable harm
to Company, for which equitable remedies may be awarded by a court of competent
jurisdiction.
19.
GOVERNING LAW. This Agreement will be governed by, construed, and
interpreted in accordance with the laws of the State of California without giving effect to its
conflict of law rules. In any civil action by either party relating to this Agreement, the
prevailing party will recover from and be reimbursed by the other party for all costs,
reasonable attorneys’ fees, and related expenses.
20.
SEVERABILITY. If any provision hereof is declared invalid by a court of
competent jurisdiction, such provision will be ineffective only to the extent of such
invalidity, so that the remainder of that provision and all remaining provisions of this
Agreement will continue in full force and effect.
21.
ENTIRE AGREEMENT. This Agreement supersedes and cancels any
previous understandings, representations, or agreements between the parties relating to the
subject matter hereof and expresses the complete and final understanding with respect to the
subject matter hereof and supersedes and cancels all previous and contemporaneous written
and oral agreements and communications relating hereto.
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