Reseller Agreement - Resilio, Inc.

Date of last revision: January 25, 2017

This Resilio Reseller/Affiliate Partner Agreement (the "Reseller Agreement") is between the applicable reseller ("you" or “Affiliate Partner” or "Reseller"), and Resilio, Inc. If you are agreeing to this Reseller Agreement not as an individual but on behalf of your company, then "Reseller" or “Affiliate Partner” or "you" means your company, and you are binding your company to this Reseller Agreement. Notwithstanding anything to the contrary, any rights granted to you hereunder are subject to your first obtaining approval by Resilio as a Reseller under this Reseller Program.

This Reseller Agreement is a separate agreement from the agreement that Resilio has with its end users at https://www.resilio.com/legal/eula-subscription (as may be modified by Resilio from time to time, "Resilio Subscription EULA"). For convenience and consistency, however, the definitions of certain terms related to our Software and services will be the same as those in the Resilio Subscription EULA.

This Reseller Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by clicking on the "I agree" (or similar button) that is presented to you when applying to become a Reseller/Affiliate Partner.

1. Order Requirements.

To the extent that we make Software licenses available for resale, You may order such Software licenses for resale directly from Resilio by following the directions set forth on our website http://www.resilio.com/legal/reseller and all orders shall be subject to acceptance at Resilio’s discretion. You must provide all of the requested information including, without limitation, the identity of the end user, the end user’s business and email addresses, and the specific Software licenses, to be resold in your order ("Reseller Order"). All such information must be accurate and complete and must reflect bona fide orders you have received from end users.

2. Limited Right to Resell.
Subject to this Reseller Agreement, we grant you a one-time, non-exclusive, non- transferable right to resell the Software licenses specified in your Reseller Order to the end user specified in the Reseller Order, solely for use by such end user in accordance with the Resilio Subscription EULA. This right to resell does not apply to any other end user or Software (including without limitation any sale to any related party, organization or affiliate, or to any subsequent, additional or renewal sale to the same party).

3. Enforcement of Resilio Subscription EULA.
3.1 End User Terms.
All use of the Software by end users is subject to the Resilio Subscription EULA, and you may not purport to impose any other terms pertaining to their use of the Software. You are responsible for ensuring that each end user enters into the Resilio Subscription EULA in a manner that is legally binding upon the end user. This may require you to (a) notify each end user that Resilio Software is subject to the Resilio Subscription EULA and that by placing an order with Reseller the end user agrees to the Resilio Subscription EULA, (b) include either a copy of or link to the Resilio Subscription EULA in each quotation and order form you issue to the end user, and (c) obtain from each end user written confirmation of acceptance of the Resilio Subscription EULA prior to the earlier to occur of acceptance of the order by Reseller or delivery of the Product. You must provide evidence of such acceptance by the end user to Resilio upon request.

3.2 Enforcement Cooperation.
You agree to immediately notify us of any known or suspected breach of the Resilio Subscription EULA or other unauthorized use of the Software and to assist us in the enforcement of the terms of the Resilio Sync Subscription EULA.

4. Identification as Reseller.
Subject to this Reseller Agreement, you are permitted to identify yourself as a "Reseller of Resilio Sync Pro or Resilio Sync Business" or "Reseller of Resilio Connect", as applicable based on Resilio’s approval of your participation as a reseller of such Software and solely in connection with your resales of such Software. You may not use any Resilio trademark, logo or service mark ("Resilio Marks") except for the aforementioned purpose. All goodwill arising from your use of Resilio Marks inures to the benefit of Resilio.

5. Payment and Delivery.
5.1. Fees.
Your non-refundable, non-cancelable payment to Resilio is due when you submit your Reseller Order.

5.2. Delivery.
Upon receipt of payment (for Resilio Sync Pro or Resilio Sync Business), or upon our receipt and acceptance of a Purchase Order (for Resilio Connect), we will deliver the applicable Software license key, or other information necessary for end users to use or access the applicable Software, directly to you in accordance with our standard delivery procedures. Once the Software license is issued to you, the subscription term will begin as defined at: https://www.resilio.com/legal/eula-subscription. When we deliver the license keys to you, you agree that you will, in turn, deliver them directly to the end user specified in the Reseller Order, and not to use or access the Software, in any way. You must either delete all license keys promptly thereafter or maintain them in confidence.

5.3. Taxes.
Payments made by you under this Reseller Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Resilio, you must pay to Resilio the amount of such taxes or duties in addition to any fees owed under this Reseller Agreement.

5.4. End User Pricing and Payment; Refunds.
You will independently set your own pricing to each end user. You bear all risk of non-payment by end users, and you are solely responsible for all of your costs and expenses. You may not terminate a Reseller Order or receive any refunds due to non-payment by an end user. If Resilio provides any refund to an end user under our standard return policy, Resilio, at its option, will refund the applicable amounts either directly to the end user or to you for distribution to the end user but will have no obligation to do so. You agree to cooperate with Resilio in connection with any such refund. Furthermore, you may not re-use or re-sell any license to the Software once it has been initially provided to an end user, even if such end user has been issued a refund.

5.5.
Resilio accepts certain debit and credit cards as well as other forms of cash payment (e.g., Paypal transfers) as payment methods (each, an “Accepted Payment Method”) for Products, subject to the procedures and rules contained in these Terms and any applicable contract with the Accepted Payment Method. Accepted Payment Methods may vary by country, by Product and may change from time to time. When you purchase with an Accepted Payment Method, the fees for your Product will be billed on the date of your purchase or, for Products that are not delivered or made available on the date of purchase, when your Product is shipped or becomes available to you, as described below. If you purchase a subscription for a Product that renews automatically, such as monthly or annually, you agree that we may process your Accepted Payment Method on each monthly, annual or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the commencement of your Premium Service or Product subscription, as applicable. In addition, you agree that we have permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms we retain in the future) information regarding your purchase and your submitted payment information in order to process your purchase. If your Product subscription began on a day not contained in a subsequent month (e.g., your service began on January 30, and there is no February 30), Resilio will process your payment on the last day of such month. See below for information describing what you must do to change your Accepted Payment Method.

5.6. Changes in Fees.
We may change the price of any Product from time to time, and add new fees and charges for certain features or to reflect a change in business or legal rules, but we will send advance notice of changes in recurring subscription fees by email to the address in your account information. Any increase in charges for the same Product would not apply until the expiration of your then current billing cycle, unless otherwise specifically provided in our notice to you, and would become effective no sooner than the next time you would be charged for that Product. If you do not agree to pay the new price or other applicable charges, you may elect not to renew the Product subscription before the price change goes into effect, which cancellation would be effective at the expiration of your then current billing cycle. See “Subscription Cancellation” below for information on how you must cancel a Product subscription.

5.7. Changes to Payment Methods and Account Information.
You are responsible for ensuring that all of your account information, including your email address and all payment information (address, debit or credit card number and expiration date), is accurate and up to date at all times. You may change this information at any time. If you have a Product subscription, you may notify Resilio’s customer service by making the changes at http://orders.resilio.com. If your credit card expires or the information is otherwise invalid, or you make changes to your billing account too close in time to when we charge for any Product subscription (so we cannot reasonably act on your changes prior to billing), we will probably not be aware of this, and we will bill the current charges to the card we had on record; the continuation of your Product subscription constitutes your authorization for us to do so, and you remain responsible for any uncollected amounts and any charges incurred by you or us as a result of billing to an invalid card.

5.8. Subscription Cancellation.
You may elect to cancel a Product subscription at any time. Any cancellation of a Product subscription will be effective as of the end of the then-current billing period. If you desire to cancel your subscription for the Product as of the end of the current billing period, you may do so at https://orders.resilio.com/account/me/login/6. No Use Rights; Resilio Reserved Rights.Only the end user customer of the Software may use the Software. You are not permitted to use any Software resold under this Reseller Agreement for your own benefit. To the extent that you nevertheless gain any access to the Software, all license restrictions in the Resilio Subscription EULA apply to you. Notwithstanding anything to the contrary contained in this Reseller Agreement, except for the limited resale right in Section 2 above, Resilio and its suppliers have and will retain all rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all Software, service descriptions, documentation, and underlying technology ("Resilio Technology"), and all copies, modifications and derivative works thereof. You acknowledge that you are obtaining only a limited right to resell the Software and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to you under this Reseller Agreement or otherwise.

7. Reseller Obligations and Liability.
7.1. End User Relationships; Business Practices.
You agree not to represent yourself as an agent or employee of Resilio and agree that we will have primary control over any end user communication regarding the Software once you submit a Reseller Order. You will not make any representations regarding Resilio, on Resilio’s behalf, or about any Software. You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Resilio or its Software and agree to comply with all applicable federal, state and local laws and regulations while operating under this Reseller Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and any similar laws or regulations in any applicable jurisdiction.

7.2. Indemnity.
You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Software. You will indemnify, hold harmless and (at Resilio’s option) defend Resilio from and against any claim, loss, cost, liability or damage, including attorneys’ fees, for which Resilio becomes liable arising from or relating to: (a) any breach or alleged breach by you of any term of this Reseller Agreement, (b) the issuance by you of any warranty or representation regarding Resilio or its Software or services not specified in the Resilio Subscription EULA, or (c) any of your other acts or omissions in connection with the marketing or resale of licenses to the Software under this Reseller Agreement.

7.3. Support.
Resilio does not have an obligation to provide free support to end users and will at its own discretion provide support under the standard terms of its then- current support policy. Reseller will use their best efforts to offer end user support for the Software.

8. Termination.
8.1. Termination.
We may terminate this Reseller Agreement if you materially breach any provision in this Reseller Agreement and fail to cure such breach within five (5) days of notice of such breach to the address (including but not limited to e-mail address) provided to us. In addition, either party may terminate this Reseller Agreement for any reason or no reason upon thirty (30) days’ notice to the other party. Resilio may also terminate this Reseller Agreement immediately upon notice to you if (a) it ceases to offer the current Reseller program or (b) it reasonably believes that you have breached Sections 6, 7, 10 or 14 or that continuing hereunder could result in business or legal liability for Resilio or otherwise harm Resilio or its end users.

8.2. Effect of Termination.
You expressly agree that Resilio will have no obligation or liability to you resulting from termination or expiration of this Reseller Agreement in accordance with its terms. Upon termination or expiration of this Reseller Agreement: (a) you must immediately cease identifying yourself as an Resilio Reseller and using Resilio Marks in connection with your resale activities hereunder, (b) you must destroy all Confidential Information in your possession and certify destruction (unless we request that you return such materials to us) and (c) Sections 5 (Payment and Delivery) (but only with respect to Reseller Orders completed during the Term), 6 (No Use Rights; Resilio Reserved Rights) through 13 (General) will survive.

9. Changes to Agreement.
From time to time, we may modify this Reseller Agreement. The version of this Reseller Agreement in place at the time you submit each Reseller Order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication, but we also suggest that you bookmark this Reseller Agreement and read it periodically.

10. Confidentiality.
Except as otherwise set forth in this Reseller Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as "Receiving Party") from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Resilio Technology and any performance information relating to the Software shall be deemed Confidential Information of Resilio without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

11. Resilio Commitments; DISCLAIMER OF WARRANTIES.
For the avoidance of doubt, any and all commitments, indemnities and other terms and conditions offered by Resilio with respect to use of the Software are made directly by Resilio to the end user in accordance with the Resilio Subscription EULA and do not extend to you as a Reseller. We make NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, TO you as a RESELLER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE AND NON-INFRINGEMENT.

12. LIMITATION OF LIABILITY.
12.1. Waiver of Consequential Damages.
TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER RESILIO NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

12.2. Liability Cap.
TO THE FULLEST EXTENT ALLOWED BY LAW, RESILIO’S AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY UNDER THIS RESELLER AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY RESELLER TO RESILIO IN RESPECT OF THE RESELLER ORDER THAT IS THE SUBJECT OF THIS RESELLER AGREEMENT DURING THE SIX MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

13. Dispute Resolution; Governing Law.
13.1. Dispute Resolution; Arbitration.
In the event of any controversy or claim arising out of or relating to this Reseller Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Reseller Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in San Francisco, CA (USA). All negotiations and arbitration proceedings pursuant to this Section 13.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.

13.2. Governing Law; Jurisdiction.
This Reseller Agreement will be governed by and construed in accordance with the applicable laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 13.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in San Francisco, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Francisco, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, Resilio may bring a claim for equitable relief in any court with proper jurisdiction.

13.3. Injunctive Relief; Enforcement.
Notwithstanding the provisions of this Section 13, nothing in this Reseller Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

13.4 Exclusion of UN Convention and UCITA.
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Reseller Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Reseller Agreement regardless of when or where adopted.

14. Export.
You acknowledge and agree that the Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use, destination restrictions issued by national governments or similar bodies, and restrictions on embargoed nations. In the US the Internet Communications Software is controlled under ECCN 5D992 of the Export Administration Regulations (“EAR”) under Encryption Registration Number (“ERN”) R111961 and thus may not be exported or re exported from the US to or downloaded by any person in any countries controlled for anti terrorism reasons under the EAR, which include Iran, North Korea, Cuba, Syria and Sudan. Moreover, the Internet Communications Software may not be exported or re exported from the US to or downloaded by any person or entity subject to US sanctions regardless of location. See http://www.bis.doc.gov/index.php/policy-guidance/lists-of- parties-of-concern and EAR Part 736. Resilio is making the Software available to you for download only on the condition that you certify that you are not such a person or entity and that the download is not otherwise in violation of US export control and sanctions regulations.

15. Government End Users.
The Software are commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Reseller Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software were developed fully at private expense. All other use is prohibited.

16. General.
You may not assign any part of this Reseller Agreement without the prior written consent of Resilio. Any attempted assignment without such consent will be void. If any provision of this Reseller Agreement is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Reseller Agreement will not be affected. No failure of either party to exercise or enforce any of its rights under this Reseller Agreement will act as a waiver of those rights. Except as expressly set forth in this Reseller Agreement, the exercise by either party of any of its remedies under this Reseller Agreement will be without prejudice to its other remedies under this Reseller Agreement or otherwise. This Reseller Agreement is intended for the sole and exclusive benefit of you and Resilio and is not intended to benefit any third party. This Reseller Agreement constitutes the entire agreement between the parties hereto in relation to its subject matter, and supersedes all prior or contemporaneous agreements between the parties in relation to its subject matter. This Reseller Agreement cannot be modified, supplemented, or rescinded except in a writing signed by both parties. Nothing herein will constitute any association, partnership, or joint venture between the parties, and neither party will have the power to legally bind the other party.

Should you have any questions concerning this Reseller Agreement, or if you desire to contact Resilio for any reason, please contact us at legal@resilio.com.