This Reseller Agreement (“Agreement”) by and between JOBLYT LLC, an Arizona limited liability company with principal place of business at 515 East Grant Street, Phoenix, Arizona 85004 (“Company”) and the Reseller (“Reseller”) who shall be identified by an associated Order Form (“Order Form”). Company and Reseller are each individually referred to as a “Party” and collectively as the “Parties”.
A. Company is in the business of developing and commercializing proprietary ZyraTalk customer engagement and lead-generation software, including, without limitation, all versions, features, functionality, and services incorporated therein or related thereto (collectively, the “Software”).
B. Unless otherwise noted in an associated Order Form, Reseller desires to “white label” and resell the Software to its customers and potential customers upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein, the Parties agree as follows:
1. Defined Terms:
- 1.1 “Company Brand” means any or all of Company’s trademarks, service marks, logos, trade names, promotional materials, trade dress, product or service names presently existing or adopted, obtained or introduced by Company during the term of this Agreement.
- 1.2 “Company Technology” means the Software, systems and technology owned or licensed by Company, including all improvements, derivatives, updates, upgrades and additions to the foregoing and all associated Intellectual Property Rights.
- 1.3 “Confidential Information” means any information that disclosed by Company to Reseller that is marked as confidential or would normally be considered confidential under the circumstances, including, without limitation, trade secrets, technology, data, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. Confidential Information shall not include information that: (a) is already known to Reseller without restriction on use or disclosure prior to receipt of such information from Company; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, Reseller; (c) is developed by Reseller independently of, and without use of or reference to, any Confidential Information of Company; or (d) is received by Reseller from a third Party who is not under any obligation to Company to maintain the confidentiality of such information. Both Parties agree that the terms and conditions of this Agreement will be treated as Confidential Information, although this will not be interpreted to prevent Company from entering into substantially similar agreements with other entities or persons.
- 1.4 “End User” means a user of the White Label Software.
- 1.5 “End User Data” means any data, information, or other materials of any nature whatsoever, provided to Reseller by an End User in the course of the demonstration or use of the White Label Software, including any data otherwise captured or generated by the White Label Software.
- 1.6 “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
- 1.7 “Reseller Brand” means any or all of Reseller’s trademarks, service marks, logos, trade names, promotional materials, trade dress, product or service names presently existing or adopted, obtained or introduced by Reseller during the term of this Agreement for use in connection with the White Label Software.
- 1.8 “Reseller Fees” means the non-refundable fully-earned fees payable by Reseller to Company pursuant to Section 3.7.
- 1.9 “Territory” means the countries of the United States of America, Australia, and Canada.
- 1.10 “Use Policy” means Company’s then current Use Policy, available at www.zyratalk.com, as amended from time to time, in Company’s sole and absolute discretion.
- 1.11 “White Label Software” means the Software developed and provided by Company and sold by Reseller under the Reseller Brand as the same may be determined by Reseller in its sole discretion.
- 1.12 “Effective Date” means the commencement date of this agreement as stated in the associated Order Form.
2. Term of Agreement: Unless otherwise noted in the associated Order Form, this Agreement shall commence as of the Effective Date and shall continue thereafter for one year (the “Initial Term”), unless sooner terminated pursuant to Section 13. Thereafter, the Initial Term shall be extended for successive one-year periods (each a “Renewal Term”) unless either Party provides written notice of non-renewal at least 30 days prior to the end of the Initial Term or any Renewal Term (the Initial Term and any Renewal Term shall be collectively referred to as the “Term”).
3. Terms and Conditions for Reseller:
- 3.1 Appointment: Subject to Reseller’s compliance with the terms and conditions of this Agreement, Company appoints Reseller as an independent, non-exclusive, authorized reseller of the White Label Software. Reseller will use commercially reasonable efforts to market and promote the White Label Software to potential customers. During the Term, Reseller will not sell, market, distribute, or otherwise promote any software which is competitive with the Company Technology.
- 3.2 License Grant, Scope: Subject to the terms and conditions of this Agreement, Company hereby grants to Reseller a non-transferable, non-exclusive, non-sublicensable license to provide the White Label Software to End Users. Except for integrations directly related to Reseller’s implementation of the Reseller Brand, which have been previously approved by Company in writing, Reseller will not and will not attempt to alter, modify, edit or other change the source code or object code underlying the White Label Software.
- 3.3 Pricing: Subject to Reseller’s compliance, at all times, with the terms of this Agreement, Reseller may resell the White Label Software at such prices as Reseller determines in its sole discretion.
- 3.4 End User Agreements: Reseller will ensure that all End Users of the White Label Software agree to and comply with the Use Policy. Reseller will not alter, modify, edit, or otherwise change the Use Policy.
- 3.5 Independent Contractor: Reseller acknowledges and agrees that this Agreement does not create any joint venture, partnership, agency, or employment relationship between the Parties. Reseller and Company are independent contractors with respect to one another under the terms of this Agreement. Neither Party will have the authority to legally bind the other Party to any contract, proposal, or commitment or to incur any debt or create any liability on behalf of the other. Reseller agrees not to do anything which misrepresents its relationship with Company.
- 3.6 Reservation of Rights: Company owns and retains all worldwide right, title and interest in and to Company Technology, including, without limitation, the Software, Company Brand and all Intellectual Property Rights arising from or relating thereto. Any use of the Company Brand by Reseller will inure to the benefit of Company. Further, Reseller will: (i) not assert any ownership interests in or contest the validity of the Company Brand or Company Technology or any Intellectual Property Rights arising from or relating thereto; (ii) comply with written guidelines that Company may provide to Reseller from time to time; (iii) not, at any time during the Term of this Agreement, register or cause to be registered the Company Brand or Company Technology or any trademarks, service marks, logos, trade names or trade dress confusingly similar to the Company Brand; and (iv) not use the Company Brand in any manner that is likely to cause confusion, mistake, or deception. Except as expressly provided herein, nothing in this Agreement will confer upon Reseller any rights to the Company Brand and Company Technology. Reseller owns and retains all worldwide right, title and interest in and to Reseller Brand and all Intellectual Property Rights arising from or relating thereto. Any use of the Reseller Brand by Company will inure to the benefit of Reseller.
- 3.7 Reseller Fees, Reports, Audit Rights: Unless otherwise stated in the associated Order Form, Reseller shall be solely responsible for invoicing and collecting payments from its customers in connection with sales of the White Label Software. Reseller shall pay Reseller Fees, on a monthly basis. These fees will reflect the agreed upon payment terms found in the Order Form. Reseller Fees shall be paid to Company within thirty (30) days of the end of each calendar month. Further, Reseller shall submit monthly reports to Company, within thirty (30) days of the end of each calendar month, which include sufficient details to allow Company to confirm the accuracy of the Reseller Fees owed, including, without limitation, the total number of White Label Software subscriptions sold by Reseller, End User totals for each sale, and the price(s) paid.
- 3.8 Payment Resolution: If Reseller disputes any payment obligation under this Agreement, Reseller must provide Company with a written statement explaining the basis for its position within ten (10) days following the date payment was made. Reseller will cooperate with Company by providing documents, explanations, and other information as requested by Company in good faith in an attempt to resolve the dispute. If Reseller fails to provide notice within ten (10) days, or if Reseller does not cooperate in Company’s investigation of the dispute, Reseller forever waives any and all rights associated with such payment obligation.
- 3.9 End Users are Joint Customers: Reseller acknowledges and agrees that End Users are considered to be the customer of both Reseller and Company. For avoidance of doubt, End Users will be considered to be primarily the customer of Reseller for software implementation, training, and support purposes. Reseller acknowledges and agrees that communication between Company and End Users may be required in the normal course of business to provide the White Label Software to End Users. This would include the Company providing any assistance with any of the tasks listed above.
- 3.10 Company Approval of Sales: Reseller agrees that all sales of the White Label Software under this Agreement are subject to final acceptance and approval by Company.
- 3.11 Ensuring End User Satisfaction: Reseller acknowledges that onboarding, implementation, training, and support services provided by Reseller (“Professional Services”) are a critical part of providing the White Label Software to an End User, and that Professional Services provided by Reseller are necessary to achieve and maintain End User satisfaction in using the White Label Software. Company agrees to assist in these Professional Services to ensure success to the End User and Reseller.
- 3.12 Compliance with Laws, Non-solicitation and Non-interference: Reseller will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use or promotion of the White Label Software, including without limitation those related to privacy, electronic communications, and anti-spam legislation. Reseller will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Reseller will not in any way express or imply that any opinions contained in Reseller’s promotional activities are endorsed by Company, unless such promotional activities have in advance been endorsed in writing by Company. Reseller will not solicit, directly or indirectly, any persons or entities which Reseller knows to be (or should reasonably know to be) a Company customer for any purpose, except for the purpose of promoting products and services not provided by Company. Reseller will not scan Company web site, purchase Company keywords, or otherwise engage in activities which interfere in Company’s relationships with its customers. Reseller will not engage in conduct or activities which diminish or otherwise damage the reputation or goodwill of Company, the Company Brand, the Company Technology and any other of Company’s Intellectual Property Rights.
- 3.12 Reseller’s Rights to End User Data: Reseller acknowledges and agrees that Reseller has shared rights to End User Data entered or processed via the White Label Software.
- 3.12 Non-Exclusivity: Reseller acknowledges and agrees that this Agreement is non-exclusive, and that Company reserves the right to offer and sell the White Label Software directly to its customers and to retain other resellers within or outside of the Territory.
4. Company’s Obligations:
- 4.1 Delivery of White Label Software: During the Term, Company will provide Reseller with: (i) a custom software dashboard developed by Company for use in connection with Reseller’s sale of the White Label Software; (ii) necessary training and ongoing technical support as determined by Company in its sole discretion; and (iii) access to the White Label Software sufficient for Reseller to perform its obligations under this Agreement and provide the White Label Software to End Users.
- 4.2 Demonstration Account License Grant: Subject to the terms and conditions of this Agreement and Reseller’s End Users complying with, at all times, the Use Policy, Company grants Reseller during the Term a non-exclusive, limited, non-sublicensable, non-transferable and terminable license within the Territory to use and display one (1) demonstration account of the White Label Software solely for demonstration purposes in order to promote and sell to End Users the White Label Software. In addition to any other rights or remedies Company might have, the rights granted to Reseller in this paragraph are provided to Reseller predicated and conditioned upon Reseller agreeing, and Reseller hereby agrees, to not (and not allowing any third party to) copy, modify, create a derivative work of, combine with other software, reverse engineer, reverse assemble, disassemble, or decompile any Company Technology, including, without limitation, any part of the White Label Software, or otherwise attempt to discover any source code, modify the White Label Software, or any software associated or related therewith, in any manner or form, or use unauthorized modified versions of the White Label Software, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the White Label Software.
- 4.3 Trademark License Grant: Subject to the terms and conditions of this Agreement, Company hereby grants Reseller, a non-exclusive, non-sublicensable, nontransferable, royalty-free, license within the Territory to use the Company Brand, solely during the term of this Agreement as necessary to perform the marketing and promotional obligations required by this Agreement within the Territory. Any use of Company Brand is subject to Company’s right to review and approve or reject in advance each proposed use of the Company Brand, and will conform with any trademark usage guidelines, polices, or requirements provided by Company. Reseller will submit to Company for Company’s review and approval all items that will contain Company Brand prior to Reseller’s use of the Company Brand. Any rights not expressly licensed herein are reserved by Company, and all use by Reseller will accrue to the benefit of Company. Reseller will not take any action that would conflict with or be contrary to Company’s rights and interest in its Company Brand.
5. Marketing/Advertising: Company hereby authorizes Reseller to include in its marketing or product distributions, marketing materials about the White Label Software, which Company has prepared and provided to Reseller for this purpose. Reseller will not alter modify or otherwise change any such material provided to it by Company. Reseller may also use other marketing materials of its own to promote the White Label Software, however, all such marketing materials must be approved in advance in writing by Company. Company shall not unreasonably withhold approval.
6. Publicity: The Parties will jointly determine whether a press release announcing the establishment of the Parties’ relationship is warranted. The Parties further agree to reasonably cooperate as necessary to effectuate any such press release.
- 7.1 Reseller agrees:
- 7.1.1 Not to disclose or otherwise make available Confidential Information of Company to any third party without the prior written consent of Company; provided, however, that Reseller may disclose the Confidential Information of Company to its officers, employees, consultants and legal advisors who have a “need to know”, who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 7;
- 7.1.2 To use the Confidential Information of Company only for the purposes of performing its obligations under the Agreement, and Reseller will not reverse engineer, decompile, de-encrypt, or otherwise seek to discover or access materials containing Confidential Information that was not disclosed to Reseller; and
- 7.1.3 To immediately notify Company in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Company.
- 7.2 If Reseller becomes legally compelled to disclose any Confidential Information, Reseller shall provide:
- 7.2.1 Prompt written notice of such requirement so that Company may seek, at its sole cost and expense, a protective order or other remedy; and
- 7.2.2 Reasonable assistance, at Company’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, Reseller remains required by law to disclose any Confidential Information, Reseller shall disclose no more than that portion of the Confidential Information which, on the advice of Reseller’s legal counsel, Reseller is legally required to disclose and, upon Company’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
8. Non-Solicitation: During the Term of this Agreement and for a period of twelve (12) months thereafter, Reseller shall not, directly or indirectly, in any manner solicit or induce for employment any person who is then in the employment of Company. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this Section 8, and the hiring of any such employees or independent contractor who freely responds thereto shall not be a breach of this Section 8.
- 9.1 Authority to Contract: Each Party warrants that it is duly organized, validly existing and in good standing and has the full and unrestricted power and authority to execute and deliver this Agreement and to carry out the transactions contemplated hereby. Each Party further warrants that the execution of this Agreement and the performance of any work and delivery of any products will not conflict with or violate any commitment, agreement or understanding the Party has with any other person or entity and there is nothing that will prevent the Party from performing its obligations under the terms and conditions imposed on it by this Agreement. Each Party represents and warrants that the Agreement has been duly authorized by all necessary action and constitutes a valid obligation, binding and enforceable in accordance with the terms hereof. Reseller warrants that the information provided in its application is accurate and complete.
- 9.2 Standard of Work: Reseller warrants that it will promote White Label Software and provide Professional Services in good faith, in a professional manner, with a quality of service that meets or exceeds industry standards, in compliance with all laws and regulations. Reseller represents and warrants that it will render all work in a professional and timely manner and that qualified personnel will perform all work provided hereunder in a good and workmanlike manner in accordance with professional practices applicable to the work being performed. In the event of a breach of this warranty, Reseller agrees to timely engage in the re-performance of such work at no extra charge to any End User until the work performed is in accordance with this warranty.
- 9.3 No Warrant on Behalf of Company: Reseller will not make any representation or warranty, express or implied, binding or purporting to bind Company in connection with the White Label Software, including, but not limited to, any representation or warranties related to the performance, condition, title, non-infringement, merchantability, fitness for a particular purpose, system integration, or data accuracy of any of the foregoing.
10. Disclaimer of Warranties: EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN SECTION 9 OF THIS AGREEMENT, THE PARTIES SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
11. Limitations of Liability: EXCEPT FOR BREACHES OF SECTIONS 3.6, 3.7, 3.13, 3.14, 7 AND 8, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 12 AND BREACHES OF SECTIONS 3.6, 3.7, 3.13, 3.14, 7 AND 8, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF RESELLER’S PAYMENT OBLIGATIONS TO COMPANY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST DATE AN EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
- 12.1 Reseller shall defend, indemnify and hold harmless Company and its officers, managers, employees, agents, successors and permitted assigns (each, a “Company Indemnitee”) from and against all losses arising out of or resulting from any third-party claim, suit, action or proceeding (each, an “Action”) from:
- 12.1.1. Reseller’s performance of Professional Services to customers;
- 12.1.2 Reseller’s material breach of any representation, warranty or obligation of Reseller set forth in this Agreement; and
- 12.1.3 any claim that Reseller’s brand features or other Intellectual Property Rights used in connection with the White Label Software or Reseller’s performance under this Agreement infringes any Intellectual Property Right of a third party arising under the laws of the United States; provided, however, that Reseller shall have no obligations under this Section 12.1.3 with respect to claims to the extent arising out of any instruction, information, designs, specifications or other materials provided by Company in writing to Reseller.
- 12.2 The Company Indemnitee seeking indemnification hereunder shall promptly notify the indemnifying Party in writing of any Action and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying Party shall not settle any Action in a manner that adversely affects the rights of the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party’s failure to perform any obligations under this Section 12.2 shall not relieve the indemnifying Party of its obligations under this Section 12.2 except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified Party may participate in and observe the proceedings at its own cost and expense.
- 12.3 Company shall defend, indemnify and hold harmless Reseller and its officers, managers, employees, agents, successors and permitted assigns from and against all losses arising out of or resulting from any third-party claim, suit, action or proceeding (each, an “Action”) to the extent that it is based on a claim that the White Labeled Software or any Intellectual Property Right of Company infringes any patent, copyright, trademark, trade secret or other Intellectual Property right of the third party arising under the laws of the United States.
- 12.4 The Reseller Indemnitee seeking indemnification hereunder shall promptly notify the indemnifying Party in writing of any Action and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying Party shall not settle any Action in a manner that adversely affects the rights of the indemnified Party without the indemnified Party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified Party’s failure to perform any obligations under this Section 12.3 shall not relieve the indemnifying Party of its obligations under this Section 12.3 except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified Party may participate in and observe the proceedings at its own cost and expense.
- 13.1 In the Event of Breach: Either Party immediately may terminate this Agreement upon thirty (30) days written notice to the other Party in the event of a breach of any provision of this Agreement by the other Party, if the breaching Party fails to cure such breach during such thirty (30) day period. If a breach is incapable of being cured, termination will be effective upon receipt of the written notice.
- 13.2 Bankruptcy: Either Party may terminate this Agreement if the other Party becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, that is not vacated within sixty (60) days, or seeks the protection of, or has a proceeding instituted against it, that is not dismissed within sixty (60) days, under the bankruptcy code, or any similar statute.
- 13.3 Effect on Payment Obligations: The termination or expiration of this Agreement shall not affect or terminate any payment obligations that have accrued or arisen prior to the date of termination or expiration.
- 13.4 Effect of Termination on End Users: Upon termination of this Agreement, any and all then existing agreements between End Users and Reseller will remain in full force and effect, and Reseller shall be permitted to retain a license to the White Label Software solely for the purpose of providing continued support to End Users using the White Label Software until the conclusion of their respective End User agreements.
- 13.5 Effect of Termination on Reseller: Effective immediately upon termination of this Agreement: (i) any access and/or administration rights to End Users’ accounts or End User Data will be limited by Company to allow for proper service of End Users who were acquired during the Term of this Agreement by the Reseller; (ii) Reseller will no longer be permitted to promote or sell the White Label Software; and (iii) Reseller shall continue to collect payments from customers acquired during the Term and shall continue to pay all Reseller Fees as set forth in the associated Order Form or in Section 3.7 with regards to such customers; Within thirty (30) day of termination of this Agreement, Reseller and Company shall return to the other Party any Confidential Information possessed or controlled as a Receiving Party in a tangible medium and permanently erase all Confidential Information from computer systems it owns or controls, and certify in writing within 5 days of the other Party’s request that it has complied with the terms of this Section 13.6 . Those provisions of this Agreement required to effect the intent of this Section 13.6 shall survive termination or expiration of this Agreement.
- 14.1 Neither Party will be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery date of Professional Services will be extended to the extent of any delay resulting from any force majeure event.
- 14.2 Each Party shall, upon the reasonable request of the other Party, execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
- 14.3 All notices, payments, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by electronic transmission (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses indicated on the associated Order Form or at such other address for a Party as shall be specified in a notice given in accordance with this Section 14.3.
- 14.4 For purposes of this Agreement: (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (1) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (2) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Any Exhibit referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
- 14.5 This Agreement, together with the Order Form, all Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Exhibit, the terms of this Agreement shall prevail.
- 14.6 Reseller may not assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of Company; provided, that, upon prior written notice to Company, Reseller may assign the Agreement to an affiliate of such Party, or to a successor of all or substantially all of the assets of Reseller through merger, reorganization, consolidation or acquisition so long as such successor is not a competitor of Company engaged in the business of customer engagement or lead-generation software. No assignment shall relieve Reseller of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. Company may freely assign this Agreement. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
- 14.7 This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
- 14.8 The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
- 14.9 This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- 14.10 If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- 14.11 This Agreement shall be governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule (whether of the State of Arizona or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Arizona. Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in the city of Phoenix and County of Maricopa, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
- 14.12 EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
- 14.13 Each Party acknowledges that a breach by a Party of Sections 3.6 or 7 may cause the non-breaching Party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
- 14.14 In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.