Reseller Authorization Agreement (“Agreement”)
This Agreement is between FoodChain ID Group, Inc. including its subsidiary Decernis LLC (“Company” or “FoodChain ID”) and the reseller (“Reseller”) and establishes the terms and conditions for Reseller’s participation in the Company Reseller Program (the “Program”). Under the Program, Company will provide marketing and promotional support to Reseller as specified in this Agreement related to Reseller’s purchase and license of Company products for resale. “Product(s)” are software products that Reseller is authorized to resell as detailed under the Program.
- Reseller Qualification
- In order to ensure adequate technical and marketing support to end-users, eligibility to resell Company Products is subject to meeting certification requirements as described in the Program Materials (the elements and general policies are contained within the reseller portal site). These Program Materials contain a detailed description of the benefits to a Reseller as well as the requirements of a Reseller under this program. Reseller will not sell Company products without arranging for adequate post-sales support.
- Relationships
- Reseller is an independent contractor engaged in purchasing Company Products for resale to its customers. Reseller is not an agent or legal representative of Company for any purpose, and has no authority to act for, bind, or commit Company.
- Reseller has no authority to make any commitment on behalf of Company with respect to quantities, delivery, modifications, interfacing capability, suitability of the software, or suitability in specific applications. Reseller has no authority to modify the warranty offered with Company Products. Reseller will indemnify Company from liability for any modified warranty or other commitment by Reseller not specifically authorized by Company.
- Reseller will not represent itself in any way that implies Reseller is an agent or branch of Company. Reseller will immediately change or discontinue any representation or business practice found to be misleading or deceptive by Company immediately upon notice from Company.
- Term, Limitations, Termination
- The term of this Agreement is twelve (12) months from the date of acceptance by and Company. This Agreement shall automatically renew on each subsequent year for a one-year term unless it is terminated earlier in accordance with this Agreement.
- Company or Reseller may terminate this Agreement without cause at any time upon thirty (30) days written notice or with cause at any time upon fifteen (15) days written notice, except that neither the expiration nor earlier termination of this Agreement shall release either party from any obligation which has accrued as of the date of termination.
- Company may, from time to time, give Reseller written notice of amendments to this Agreement (inclusive of the Program or Program Materials). Any such amendment will automatically become a part of this Agreement ten (10) days from the date of the notice unless otherwise specified in the notice.
- Upon expiration, non-renewal, or termination of this Agreement, all interests in agreed and committed marketing funds (if any) will automatically lapse.
- Reseller Programs
- Company Reseller program will contain various participation levels. Company will invite Reseller from time to time to participate in the cooperative advertising, market development, and promotional programs offered by Company as defined in the Program Materials. Reseller may, at its option, participate in such programs during the term of this Agreement. Company reserves the right to terminate or modify such programs at any time at its sole discretion.
- Reseller shall exert best efforts to market Company Products and is able to use promotional materials supplied by Company.
- As defined in the Program Materials, Reseller shall have sufficient technical knowledge of the Company Products in general and will have access to appropriate Company sales and technical training.
- Company does not represent that it will continue to provide any Product solution (or product module) indefinitely or even for any specific period. Company specifically reserves the right to modify any of the specifications or characteristics of its Products, remove any Product from the market, and/or cease providing such services or supporting applicable Products.
- Reseller is expected and encouraged to advertise and promote the sales of Company Products through all appropriate media including trade show exhibits, catalogs, direct mailings, space advertising, educational meetings, sales aids, etc. Company must approve all original materials that use Company name or trademarks (aside from modifying existing Company supplied template materials). Company will assist Reseller in advertising and promoting Company Products in accordance with the then-current Company guidelines as published in the partner portal.
- Patent, Copyright, and Trade Secret Indemnity.
- Company shall defend Reseller against (or at Company’s option settle) any and all third-party claims, demands, suits or proceedings made or brought against Reseller on the issue of infringement of a patent or copyright by the Product licensed to or offered by Reseller, and shall reimburse Reseller for all judgments, damages, costs or expenses payable by Reseller to the party bringing such action. Reseller agrees that Company shall be relieved of its obligations under this Section 5 to the extent that any delay by Reseller in notifying Company of such action prejudices Company in the defence thereof. Reseller will give Company the authority to proceed as contemplated herein, and, at Company’s expense (except as provided below), give Company proper and full information in its possession and assistance to settle or defend any such claim, demand, suit or proceeding.
- Company assumes no liability for any infringement claims with respect to: any Product in, or with which, any of the Products may be used; the modification or translation of the Products, or any part thereof, when the infringement would not have occurred but for such modification or translation, unless such modification or translation is made by Company; nor the combination of the Products with any other product that is not a product of Company, when the infringement would not have occurred but for such combination.
- THE FOREGOING PROVISIONS OF THIS CLAUSE 5 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF COMPANY AND THE EXCLUSIVE REMEDY OF RESLLER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF ANY PATENT OR COPYRIGHT OR ANY OTHER INTELLECTUAL PROPERTY RIGHT BY THE PRODUCTS OR ANY PART THEREOF.
- Limitation of Liability
- UNDER NO CIRCUMSTANCES, INCLUDING ANY INFRINGEMENT CLAIMS, SHALL COMPANY BE LIABLE TO RESELLER OR ANY OTHER PARTY FOR ANY RE-PROCUREMENT COSTS, LOST REVENUE OR PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE.
- In no event shall Company’s, or its officers’, employees’, suppliers’, directors’, parent’s, or subsidiaries’, liability to Reseller arising out of or related to this Agreement, or the licensing, delivery, use or performance of the Products or services provided under this Agreement or any breach of this Agreement, whether based on an action or claim in contract or tort, including negligence, misrepresentation (whether innocent or negligent), except in respect of fraud, fraudulent misrepresentation, or death or personal injury caused by Company’s negligence, exceed the annual fees paid by Reseller to Company for the Products giving rise to such liability.
- Use of Company Trademarks
- Reseller acknowledges the following:
- Company owns all rights, titles, and interests in the Company names and logotypes.
- Company is the owner of certain other patents, trademarks and tradenames used in connection with certain Product lines and software.
- Reseller will acquire no interest in any such patents, trademarks or tradenames by virtue of this Agreement, its activities under it, or any relationship with Company.
- During the term of this Agreement, Reseller may indicate to the trade and to the public that it is an Authorized Reseller of the Company Products. Reseller may also use the Company trademarks and trade names to promote and solicit sales or licensing of Company Products if done so in strict accordance with Company guidelines. Reseller will not adopt or use such trademarks or tradenames, or any confusingly similar word or symbol, as part of its company name or allow such marks or names to be used by others.
- At the expiration or termination of this Agreement, Reseller shall immediately discontinue any use of the Company and Company names or trademarks or any other combination of words, designs, trademarks, or tradenames that would indicate that it is or was a reseller of the Company Products.
- Reseller acknowledges the following:
- Product Warranty
- The warranty terms and conditions will be as specified in the Company License Agreement Terms and Conditions (“License Agreement”) found here: https://www.foodchainid.com/license-agreement-online-terms-and-conditions/. In no event shall Reseller make any representation, guarantee or warranty concerning Company or any Company Product or service except as expressly authorized in writing by Company.
- COMPANY MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
- Software
- The software license terms will be specified in Company License Agreement entered into by the parties (e.g., Reseller entering into a contract with the customer/end user). Reseller shall, at a minimum, have the customer agree to terms and conditions at least as protective as Company’s License Agreement terms and conditions, located here: (https://www.foodchainid.com/license-agreement-online-terms-and-conditions/).
- If Reseller fails to comply with Section 9(a), then Reseller shall indemnify and hold Company harmless for any costs and damages incurred by Company as a result of such failure.
- Confidential Information
- Company and Affiliate will disclose to each other certain information which may be considered confidential or proprietary (“Confidential Information”), and each party recognizes the value and importance of the protection of the other’s Confidential Information. All Confidential Information of one Party (the “Disclosing Party”) disclosed to the other Party (the “Receiving Party”) shall remain solely the property of the Disclosing Party, and its confidentiality shall be maintained and protected by the Receiving Party with at least the same effort used to protect its own confidential information of a similar nature. Each party represents and warrants that such effort is and will be reasonably calculated to protect such Confidential Information. Except to the extent required by this Agreement, both parties agree not to duplicate in any manner the other’s Confidential Information or to disclose it to any third party or to any of their employees not having a need to know for the purposes of this Agreement. The parties further agree not to use each other’s Confidential Information for any purpose other than the performance of this Agreement. Confidential Information may include, but is not limited to, trade secrets, processes, formulae, specifications, software, test results, technical know-how, methods and procedures of operation, business or marketing plans, proposals, and licensed documentation, whether belonging to a party or to a party’s prospective customer, customer or supplier. Notwithstanding the foregoing, there shall be no restriction on use or disclosure of information that is not Confidential Information.
- Confidential Information shall not include information which falls within one of the following categories: (i) information that is released into the public domain by an authorized representative of the Disclosing Party; (ii) information that was in the Receiving Party’s lawful possession prior to the disclosure and had not been subject to limitations on disclosure or use, as shown by the Receiving Party’s files existing at the time of disclosure; (iii) information that is independently developed by the Receiving Party by persons who had no knowledge of Confidential Information at the time it is independently developed; or (iv) is lawfully disclosed hereafter to the Receiving Party, without restriction, by a third party who did not acquire the information directly or indirectly from the Disclosing Party. Notwithstanding anything to the contrary in this Agreement, the FoodChain ID Products or services and/or any information about or provided by (or on behalf of) FoodChain ID’s customer’s (“Customer Data”) shall at all times remain the Confidential Information of FoodChain ID. Notwithstanding anything in the Agreement to the contrary, no Customer Data may be kept or maintained by Affiliate.
- In the event that the Receiving Party or any of its representatives becomes legally compelled (or requested by an applicable regulatory body) to disclose any of the Confidential Information, the Receiving Party will provide the Disclosing Party with prompt written notice, unless providing such notice would violate applicable law or regulation, so that the Disclosing Party may seek a protective order or other appropriate remedy (and if the Disclosing Party seeks such an order, the Receiving Party will provide such cooperation as the Disclosing Party reasonably requests) and/or waive compliance with the provisions of this Agreement. In the event that such a protective order or other remedy is not obtained, or if the Disclosing Party waives compliance with the provisions of this Agreement, the Receiving Party will furnish only that portion of the Confidential Information which is legally required (in the opinion of its counsel).
- Export Controls
- Regardless of any disclosure made by Reseller to Company or Distributor of an ultimate destination of Company Products, Reseller shall not export, either directly or indirectly, any documentation, Company Products, or system incorporating such Company Products to any locations on the excluded export list. The following are the locations: Any countries included on the Bureau of Industry and Security (BIS) and the Office of Foreign Assets Control (OFAC) then-current sanctions list. Reseller shall indemnify and hold company harmless for any breaches of this provision.
- Compliance with Laws
- Reseller agrees to comply with all laws and regulations that are applicable to the business that Reseller transacts. Reseller agrees to indemnify and hold Company harmless for all liability or damages caused by Reseller’s failure to comply with the terms of this provision.
- Government Contract Conditions.
- In the event that Reseller elects to sell Company Products or services to the Government (national, regional, or local), Reseller does so solely at its own option and risk and agrees not to obligate Company as a subcontractor or otherwise to the Government. Reseller remains solely and exclusively responsible for compliance with all statutes and regulations governing sales to the Government. Company makes no representations, certifications, or warranties whatsoever with respect to the ability of its goods, services or prices to satisfy any such statutes and regulations.
- Miscellaneous
- Notices under this Agreement must be sent by telegram, telecopy, registered or certified mail, or e-mail if receipt of the e-mail is acknowledged to the appropriate party at its location submitted during the reseller application (or to a new address if the other has been properly notified of the change). A notice will not be effective until the addressee actually receives it.
- Reseller may not assign, sublicense, sub-contract, or otherwise transfer this Agreement, or any rights or obligations under it, without FoodChain ID’s prior written consent. FoodChain ID may assign or transfer this Agreement, or any rights or obligations hereunder, either to an Affiliate or to a successor to all or substantially all of the business or assets of FoodChain ID and this Agreement shall be binding upon such successor or assignee.
- This Agreement and its schedules represent the entire agreement between the parties regarding this subject. This Agreement supersedes all previous oral or written communications between the parties regarding the subject, and it may not be modified or waived except in writing and signed by an officer or other authorized representative of each party. Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from a cause beyond its reasonable control. If any provision is held invalid, all other provisions shall remain valid, unless such invalidity would frustrate the purpose of this Agreement.
- This Agreement shall be governed by the substantive laws of the State of Delaware. This Agreement is the entire agreement and may be amended only by the parties to it. All notices must be sent via certified mail, or by email (if the receiving party acknowledges receipt). In the event a party initiates any legal proceeding with regard to the interpretation or enforcement of this Agreement, the parties hereby agree to submit to the exclusive jurisdiction of the appropriate state and federal courts of the State of Delaware.
By submitting the Reseller application, you acknowledge that you have read the Agreement terms and conditions, understand, and agree with them.
