SaaS AND RESELLER AGREEMENT
Effective date: April 4, 2021
These terms and conditions (“Agreement”) cover the use of all STREAMETRIC-related software-as-a-service offerings quoted by I2M LLC (“Provider”) to its customer (“Customer”). Customer accepts the terms and conditions in this Agreement by accepting a quote referencing the Agreement, through use of the software-as-a-service, or by continuing to the software-as-a-service after being notified of a change to the Agreement.
1. Services Access and Use
a. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use its proprietary monitoring and analysis software-as-a-service offering as described in Quotes which reference this Agreement (the “Service”) during the Term, solely for use by Customer in accordance with the terms and conditions herein. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
b. Use Restrictions Customer shall not use the Services and Hardware for any purposes beyond the scope of the access granted in this Agreement unless, in each case, Provider agrees otherwise in writing in advance. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to (i) copy, modify, create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services in whole or in part: (iv) remove any proprietary notices from the services; or (v) use the services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. For purposes of this Agreement, “Authorized Users” means Customer’s employees, consultants, contractors, agents, and third-parties (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder (“End-User”).
c. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the intellectual property of Provider.
d. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services. Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2. Third-Party Hardware
a. Hardware Reseller. Provider shall supply a third-party router, related hardware and related device management software as set forth in Quotes which reference this Agreement (collectively the “Hardware”) to Customer for use by Customer or for resale to End-User customers in the territory that purchase for their own end use and not for resale, distribution or incorporation into another product. Customer or End-User will be responsible for installation and maintenance of the Hardware at the End-User’s site. Customer, or Customer’s End-User customer, will own or lease the Hardware. Provider does not manufacture or provide any warranties which respect to the Hardware. The Hardware is covered by the manufacturer's warranty, which can be found on the manufacturer’s website at the following link: PROVIDER DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE HARDWARE, INCLUDING WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
b. Non-exclusive Appointment. Provider hereby appoints Customer, and Customer accepts the appointment, to act as a non-exclusive Reseller of Hardware to End Users located in the Territory during the Term solely in accordance with the terms and conditions of this Agreement.
c. Right to Resell Competitive Products. This Agreement does not preclude either Party from entering into an agreement with any other party related to the sale, resale, or distribution of other goods or products, including those that are similar to or competitive with the Hardware; provided, however, if the Customer enters into a competitive transaction, Customer must notify Provider in writing within [NUMBER] business days of Customer's decision to sell, resell, or distribute any product that is similar to or competitive with the Hardware.
3. Pricing and Fees.
a. Quote. All pricing and rates payable by Customer are independently set forth in any Quotes provided by Provider which reference this Agreement. Any additional terms in a Quote are hereby incorporated into this Agreement.
b. Taxes. All amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
4. Intellectual Property Rights.
a. Raw Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display any information, data, and other content in any form or medium, other than Personal Data, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an End-User (collectively the “Raw Customer Data”) through the Services as may be necessary for Provider to provide the Services to Customer.
b. Usage Data. As between Customer and Provider, Provider owns all right, title and interest including all intellectual property rights in any data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (collectively the “Usage Data”). Usage Data does not include Raw Customer Data.
d. Reservation of Rights. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest including all intellectual property rights of the Provider (“Provider IP”) and, with respect to third-party Hardware, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the third-party Hardware.
e. Analytics and Modeling. Customer agrees and acknowledges that Provider will generate data analytics and data modeling using Raw Customer Data to provide Services to Customer and Customer hereby grants to Provider a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use Raw Customer Data in an aggregate and anonymized manner to generate data analytics and data modeling. Provider owns all right, title, and interest, including all intellectual property rights of said generated data analytics and data modeling. Customer acknowledges that Provider may aggregate Raw Customer Data of Customer with any data or information related to a Party who is not a party to this Agreement and may use data analytics and data modeling generated using Raw Customer Data for purposes other than providing Services to Customer.
5. Confidentiality Customer agrees to keep confidential and will not reproduce, distribute, and otherwise use or displace any Confidential Data it received from the Provider, other than for the purpose of receiving the Services, unless specifically instructed by the Provider in writing to do so or as required by law. “Confidential Data” means any data or information that has intrinsic value to the Provider, its employees, or other parties with which Provider has a relationship, or that may provide Provider with a competitive advantage, including, without limitation: trade secrets; inventions (whether or not patentable); formulas; flow charts; computer programs; access codes or other systems information; algorithms; analytics; technology and business processes; business, product or marketing plans; sales and other forecasts; financial information; client lists or other intellectual property; or information relating to sales, compensation and benefits. Confidential Data does not include any information which is publicly available or generally available for use within the industry. Provider Confidential Data may be in any medium or form, including, without limitation, physical documents, computer files or discs, electronic communications, videotapes, audiotapes, and oral communications.
6. Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the one-year of the commencement of the Monitoring Services, unless sooner terminated pursuant to Section 7 below (the “Initial Term”). Following the Initial Term, unless this Agreement has been terminated under and in accordance with Section 7 below, this Agreement shall renew automatically for successive [one-year] periods. Each renewal term after the Initial Term is referred to herein as a “Renewal Term,” and the Initial Term and any Renewal Terms shall be collectively referred to herein as the “Service Period.”
7. Termination. Customer may terminate this Agreement at any time by providing Provider with a written notice of termination. The termination by Customer will be effective at (i) the end of the Initial Term or the Renewal Term then in effect (as applicable), if such notice is provided by Customer at least thirty days prior to the end of the current term, or (ii) the end of the next successive Renewal Term if such notice is provided after such date. Notwithstanding any other provision of this Agreement to the contrary, either Customer or Provider may terminate this Agreement following a material breach by either under this Agreement (which will, in the case of the Customer, include a failure to pay any required amounts at the times required under Section3) by providing the other party with written notice of such termination and providing reasonable details regarding the reasons therefore and the nature of the breach, though, if Customer is the party seeking termination as a result of Provider’s alleged material breach, such termination shall not be effective if Provider cures its default within fifteen days of receiving such notice of termination. Upon termination of this Agreement, all of the rights and obligations of the parties hereunder shall terminate and be of no further force or effect, provided, however, that (i) Customer’s obligation to pay for any Services performed prior to the date of termination shall survive such termination, (ii) Sections 1, 2, 4, 5, 6, 7, and 9, of this Agreement, and this Section 7 shall survive such termination and (iv) following such termination, Provider shall have no obligation to (A) maintain data or reports regarding Customer or Customer’s operations (B) provide Customer with access to the Customer Interface, or (C) otherwise provide Customer any further access to such data or reports to Customer.
8. Independent Contractor. It is understood and acknowledged that in providing the Services, Provider acts in the capacity of an independent contractor and not as an employee or agent of the Customer. Provider shall control the conditions, time, details, and means by which Provider performs the Services.
9. Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (collectively, “Losses”) relating to/arising out of any injury or bodily harm to any of Provider’s employees, contractors, personnel or other representatives that occurs while any such employee, contractor, personnel or other representative is present at the Site for the purpose of performing any Services, which injury or bodily harm relates to/arises out of the negligence or willful misconduct of Customer or any of its employees, contractors, personnel or other representatives. Provider shall indemnify, defend, and hold harmless Customer and its officers, directors, employees, agents, affiliates, successors, and permitted assigns against any and all Losses relating to/arising out of or resulting from the gross negligence or willful misconduct of the Provider or any of its employees, contractors, personnel or other representatives during the provision of Services under this Agreement. A party seeking indemnity hereunder shall provide the party from whom indemnification is sought with prompt notice of any claim, suit, action or other matter covered by this indemnity. Customer shall cooperate and provide reasonable assistance to Provider in Provider defending any claim, suit, action or other matter for which indemnity is sought hereunder and relating to a third-party claim against Provider.
10. DISCLAIMER AND LIMITATION OF LIABILITY. THE SERVICES AND THE HARDWARE ARE BOTH PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
a. Notice. Each Party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and addressed to the other Party at the addresses set forth beneath the signature of the party to this Agreement below (or to such other address that the receiving Party may designate from time to time in accordance with this section).
b. Governing Law; Jurisdiction; Dispute Resolution. This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by, and construed in accordance with, the laws of North Carolina (including its statutes of limitation, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Raleigh, NC. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY: (A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; AND (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; (C) WAIVES ANY RIGHT TO TRIAL BY JURY; AND (D) WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NORTH CAROLINA LAW. Except when either party reasonably seeks temporary injunctive relief to avoid significant injury, it is expressly agreed that prior to initiating any litigation in connection with this Agreement, the party seeking relief shall have reasonably exhausted those alternative means available to it for resolution of the dispute, including an arrangement pursuant to which the parties shall meet, negotiate in good faith and attempt to resolve amicably any such controversy or claim.
c. Entire Agreement and Severability. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
d. Terms of Agreement Prevail Over Customer's Purchase Order. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Customer's general terms and conditions contained in any purchase order or other document issued by Customer.
e. Amendment and Remedies. The Parties may not amend this Agreement except by written instrument signed by the Parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the Party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.
f. Assignment and Third-Party Beneficiaries. Neither party may directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of the other party. Any purported assignment [or delegation] in violation of this Section shall be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Except for the Parties, their successors and permitted assigns, there are no third-party beneficiaries under this Agreement.
g. Force Majeure. Provider shall not be liable for failure to perform any of its obligations hereunder when such performance is prevented by riots, wars or hostilities between any nations, acts of God, fires, storms, floods, earthquakes, strikes, shortages or curtailments of raw materials, power or other utility services and other causes beyond the reasonable control of the parties hereto, provided that Provider acts reasonably and prudently in light of the circumstances.
h. Counterparts and Headings. This Agreement may be executed in counterparts. The section headings contained in this Agreement are inserted only for convenience and shall not affect the meaning or interpretation of this Agreement.