This Resale Agreement (this “Agreement") governs the purchase and use of hardware, applications, and software (the “Products”) resold by Novedge, between Novedge LLC, a California limited liability company (“Novedge”), and you, the end customer and user of the Products resold by Novedge (“Customer”).
By accepting this Agreement, whether by clicking a box indicating its acceptance, navigating through a login page where a link to this Agreement is provided, or executing a Purchase Order that references this Agreement, Customer agrees to the terms of this Agreement. If Customer and Novedge have executed a written agreement governing Customer’s access to and use of a Product, then the terms of such signed agreement will govern and will supersede this Agreement.
This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses any of the Products (the “Effective Date”). Novedge reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) thirty (30) days from the date of such update or modification and (ii) Customer’s continued use of the Products.
Novedge and Customer hereby agree as follows.
The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.
“Customer Data” means data provided by Customer via the Products.
“Documentation” means the online or hard copies of documentation regarding any of the Products.
“Hardware” means, collectively, any hardware resold by Novedge, Documentation related to such hardware, and all modifications, updates, and upgrades thereto, and derivative works thereof.
“License” has the meaning ascribed to it in Section 2.1.
“License Term” means the length of time indicated in the License SKU set forth on the applicable Purchase Order.
“Software” means, collectively, any software resold by Novedge, Documentation related to such software, and all modifications, updates, and upgrades thereto and derivative works thereof.
“Product Producer” means any third party from which Novedge resells any of the Products.
“Purchase Order” means each order document submitted to Novedge by Customer, and accepted by Novedge, indicating Customer’s firm commitment to purchase the Products and for the prices listed thereon.
“Users” means employees of Customer, or other third parties, each of whom are authorized by Customer to use the Products.
RESALE AND LICENSE
2.1 Purchase of the Products. Subject to the terms of this Agreement, Customer is agreeing to purchase Products provided by a Product Producer through Novedge. Novedge is a reseller of such Products, and does not manufacture or produce such Products in any way. Customer agrees that, upon the execution of any Purchase Order of the Products, Customer shall additionally be subject to the terms and conditions of the Product Producer’s End User Agreement, which can be found or requested at such Product Producer’s website. Customer hereby acknowledges that Novedge is not a party to the Product Producer’s End User Agreement, and that the Product Producer’s End User Agreement provides all rights and responsibilities related to the Products, other than those provided herein. Novedge shall not be liable for any rights or responsibilities related to such Product Producer’s End User Agreement, the suitability or performance of any Products, or any claims of any kind related thereto.
2.2 License to Novedge. Customer grants Novedge a non-exclusive right and license to use, reproduce, modify, store, and process Customer Data solely to provide the Products to Customer. Customer represents and warrants that it possesses the necessary rights and consents to grant Novedge the rights set forth in this Section 2.2 with respect to Customer Data.
3.1 Disclaimer. As a reseller of the Products, Novedge disclaims any representation or warranty that the Products will be substantially free of defects.
3.2 Remedies. In the event of any defects in the Products, Customer’s sole and exclusive remedy will be controlled by the Product Producer’s End User Agreement, and Novedge shall have no liability related thereto. In the case of any such defects, Customer understands that they should contact the Product Producer for any remedy.
3.3 Returns. Except as otherwise stated herein, Novedge does not accept returns for any Hardware purchases. Subject to any return or refund restrictions imposed by any Software Producer, Novedge may, in its sole and absolute discretion, consider any reasonable refund or return requests for any Software purchased by Customer. For the avoidance of doubt, each Software Producer’s refund and return policy is different, which may preclude Novedge’s ability to offer any refund or remedy entirely. Thus, it is Customer’s responsibility to ensure that the Products they purchase are compatible with their needs. For any returns or refunds beyond the scope of this Agreement, Customer must reach out to the Product Producer directly for any warranty, refund, or return policies.
Notwithstanding the foregoing, if you believe you have received any Products in error, or wish to consult with Novedge regarding your purchase, please contact us at email@example.com.
4.1 General. Novedge is responsible for fulfilling Purchase Orders of the Products in conformance with this Agreement, the Purchase Order(s), and applicable Documentation.
4.2 Support. If Customer experiences any errors, bugs, or other issues in its use of the Products, Customer shall reach out to the applicable Product Producer for support, and not Novedge.
5.1 Compliance. Customer will use the Products only: (i) in accordance with the Documentation; (ii) as provided in the Product Producer’s End User Agreement; and (iii) in compliance with all applicable laws, including the export laws and regulations of the United States or any other country. Customer will ensure that none of the Products are directly or indirectly exported, re-exported, or used to provide services in violation of such export laws and regulations. If Customer operates in a regulated industry, Customer has obtained all necessary local and state licenses and/or permits necessary to operate its business and is in compliance (and will use its best efforts to remain in compliance) with all local, state, and (if applicable) federal regulations regarding the conduct of its business.
5.2 Computing Environment. Customer is responsible for the maintenance and security of its own network and computing environment that it uses to access or use the Products.
TERM AND TERMINATION
6.1 Term. The term of this Agreement will commence on the Effective Date and will continue as provided in the relevant Purchase Oder.
6.2 Termination. For any Product purchased on a license, Customer shall contact the Product Producer directly for termination at any time.
FEES AND SHIPPING
7.1 Fees. Customer shall pay the fees for the Products set forth on the applicable Purchase Order. Any terms included by Customer on a Purchase Order that conflict with the terms of this Agreement will not be binding on Novedge. For Products purchased directly through Novedge’s website, payment is due immediately at the point of sale. For any Product purchases conducted with Novedge directly, payment will be due as agreed upon between Customer and Novedge at the time of such purchase (the “Due Date”).
7.2 Overdue Charges. If any undisputed, invoiced amount is not received by Novedge by the Due Date, then (i) those charges shall accrue late interest at the rate of 3.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and (ii) Novedge may condition the purchase of future Products on receipt of payment for previous Products and/or payment terms shorter than those specified on the previous Purchase Order.
7.3 Taxes. The fees payable hereunder are exclusive of any sales taxes (unless included on the invoice), or similar governmental sales tax type assessments, excluding any income or franchise taxes on Novedge (collectively, “Taxes”) with respect to the Products provided to Customer. Customer is solely responsible for paying all Taxes associated with or arising from this Agreement and shall indemnify, hold harmless and reimburse Novedge for all Taxes paid or payable by, demanded from, or assessed upon Novedge.
8.1 Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Novedge’s Confidential Information includes the Products. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the receiving party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
8.2 Confidentiality Obligations. Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.
8.3 Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
9.1 Security. Novedge secures Customer Data in accordance with its privacy practices available here. Any protections provided by a Product Producer can be requested or reviewed at such Product Producer’s website.
9.2 No Access. Except for the Customer Data, Novedge does not (and will not) collect, process, store, or otherwise have access to any information or data, including personal information, about Users, Customer’s network, or users of Customer’s products or services.
10.1 Licensed Product Ownership. In the case of licensed Products, Product Producers of such licensed Products, and not Novedge, own and retain all right, title, and interest in and to such Products, and all intellectual property embodied therein. Novedge does not by means of this Agreement or otherwise transfer any rights in such licensed Products to Customer, and Customer will take no action inconsistent with Product Producers’ intellectual property rights in the Products.
10.2 Purchased Product Ownership. In the case of any Products that are purchased, rather than licensed, Customer is the owner of the particular Products purchased. Notwithstanding the foregoing, Product Producers of such purchased Products, and not Novedge or Customer, own and retain all right, title, and interest into all intellectual property embodied therein. Novedge does not by means of this Agreement or otherwise transfer any intellectual property rights in such purchased Products to Customer, and Customer will take no action inconsistent with Product Producers’ intellectual property rights in such purchased Products.
10.3 Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Novedge, except for the limited license set forth in Section 2.2.
11.1 By Customer. Customer will indemnify, defend, and hold harmless Novedge, its affiliates, and their respective owners, directors, members, officers, and employees (together, the “Novedge Indemnitees”) from and against any claim, action, demand, suit or proceeding (each, a “Claim”) related to (a) Customer’s or a User’s engaging in a Prohibited Use, (b) Customer’s breach of its obligations in Section 5.1, and (c) any and all acts or omissions of its Users. Customer will pay any settlement of and any damages finally awarded against any Novedge Indemnitee by a court of competent jurisdiction as a result of any such Claim so long as Novedge (i) gives Customer prompt written notice of the Claim, (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Novedge’s prior written consent which will not be unreasonably withheld), and (iii) provides to Customer all reasonable assistance, at Customer’s request and expense.
LIMITATIONS OF LIABILITY
12.1 Disclaimer. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, NOVEDGE MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED DIRECTLY OR INDIRECTLY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, NOVEDGE HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. NOVEDGE DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS, THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.
CUSTOMER UNDERSTANDS AND AGREES THAT ALL PRODUCT PRODUCERS ARE THIRD PARTIES OVER WHICH NOVEDGE DOES NOT HAVE ANY CONTROL. NOVEDGE SHALL NOT BE LIABLE FOR ANY ACT OR FAILURE TO ACT OF ANY PRODUCT PRODUCER, OR ANY OF SUCH PRODUCT PRODUCER’S EMPLOYEES, OFFICERS, DIRECTORS, SERVICES PROVIDERS, OR AGENTS, WHATSOEVER. NOVEDGE SHALL NOT INCUR ANY LIABILITY RELATED TO THE PERFORMANCE OR FITNESS OF THE PRODUCTS, OR ANY SERVICES OR SUPPORT RELATED THERETO. NOVEDGE SHALL NOT BE LIABLE FOR ANY CLAIMS RELATED TO THE TERMS OF SERVICE OR PRIVACY POLICIES OF ANY PRODUCT PRODUCERS. NOVEDGE SHALL NOT BE LIABLE TO CUSTOMER IF ANY PRODUCT PRODUCER DISCONTINUES A PARTICULAR PRODUCT, DECLARES BANKRUPTCY, OR DISCONTINUES ITS BUSINESS IN ANY WAY.
12.2 Limitation of Liability. EACH PARTY HERETO AGREES THAT WITH THE EXCEPTION OF THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, THE CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, AND ABSENT GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE OTHER PARTY (COLLECTIVELY, “EXCLUDED CLAIMS”), NEITHER THE OTHER PARTY NOR ITS AFFILIATES NOR THE OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM WILL BE LIABLE TO SUCH PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
12.3 Liability Cap. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS, AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO NOVEDGE UNDER THIS AGREEMENT DURING THE 24-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. IN THE CASE OF EXCLUDED CLAIMS, SUCH LIMIT WILL BE EQUAL TO THE TOTAL AMOUNT PAID BY CUSTOMER TO NOVEDGE UNDER THIS AGREEMENT DURING THE TERM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT’S SOLE AND EXCLUSIVE REMEDY.
This Agreement is the entire agreement between Customer and Novedge and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by authorized personnel by both parties. Customer and Novedge are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Novedge. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in San Francisco County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent either (i) by overnight courier or certified mail (receipt requested), in the case of Customer to Customer’s address on record in Novedge’s account information and in the case of Novedge, to the address listed above, or (ii) by electronic mail to Customer’s email address on record in Novedge’s account information or to Novedge at firstname.lastname@example.org. If any provision of this Agreement is found unenforceable, the Agreement will be construed as if such provision had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets.
Date of Last Revision: June 17, 2021
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