IMPORTANT: PLEASE READ THESE RESELLER TERMS AND CONDITIONS CAREFULLY AND MAINTAIN A COPY FOR YOUR RECORDS.
BY SUBMITTING: (A) A user or an order, OR (B) A PROSPECTIVE user or prospective order; OR (C) ANY SIMILAR BUSINESS OPPORTUNITY OR OFFER TO ANY WEBSQL TECHNOLOGY PVT LTD ENTITY, OR BY CLICKING THE “ACCEPT” BUTTON, YOU ACCEPT AND AGREE TO BE BOUND BY THESE RESELLER TERMS AND CONDITIONS, THE DOCUMENTATION, AND THE OTHER ITEMS REFERENCED HEREIN AND THEREIN (COLLECTIVELY, THE “AGREEMENT”), ALL OF WHICH ARE INCORPORATED INTO AND FORM PART OF THE AGREEMENT WHERE (“Documentation”) means the OFFICIAL written information pertaining to the Agreement and made available by WebSQL Technology Pvt Ltd to you as updated or amended by WebSQL Technology Pvt Ltd from time to time. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THE AGREEMENT.
YOU MUST ACCEPT THE AGREEMENT BEFORE YOU CAN: (A) SUBMIT A user or an order, OR (B) SUBMIT A PROSPECTIVE user or prospective order; OR (C) SUBMIT ANY SIMILAR BUSINESS OPPORTUNITY OR OFFER TO ANY WebSQL TECHNOLOGY PVT LTD; OR (D) RECEIVE ANY PRODUCT OR CONSIDERATION OF ANY KIND FROM WEBSQL TECHNOLOGY PVT LTD. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN WebSQL TECHNOLOGY PVT LTD IS UNWILLING TO SELL ANY PRODUCT AND HAS NO OBLIGATION TO PAY ANY CONSIDERATION OR ANY AMOUNTS TO YOU.
THE AGREEMENT IS BETWEEN THE WebSQL TECHNOLOGY PVT LTD THAT ACCEPTS THE ORDER FOR THE APPLICABLE PRODUCT (“WebSQL TECHNOLOGY PVT LTD,”, “SQL Planner” “WE,” OR “US”) AND THE INDIVIDUAL OR LEGAL ENTITY THAT SUBMITS THE ORDER OR THAT CLICKS THE “ACCEPT” BUTTON (“RESELLER” “YOU,” OR “YOUR”). THE AGREEMENT MAY APPLY TO MULTIPLE WebSQL TECHNOLOGY PVT LTD WITH RESPECT TO DIFFERENT PRODUCTS PROVIDED THAT NO WEBSQL TECHNOLOGY PVT LTD ENTITY HAS THE RIGHT TO ENTER ANY CONTRACT ON BEHALF OF OR AS AGENT FOR ANY OTHER WEBSQL TECHNOLOGY PVT LTD ENTITY. IF YOU ARE PART OF OR OTHERWISE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE THE TERMS “RESELLER,” “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY.
1.0 PRODUCTS, NON-EXCLUSIVE APPOINTMENT & TERRITORY.
1.1 Products. The Agreement governs the purchase, resale and use of the IT automation software and related documentation, products, maintenance, support, features and services provided by WebSQL TECHNOLOGY PVT LTD (the “WebSQL TECHNOLOGY PVT LTD Products”) or its third party Suppliers (“Suppliers” of “Third Party Products”) (the WebSQL TECHNOLOGY PVT LTD Products and Third Party Products are referred to collectively as the “Products”) for which WebSQL TECHNOLOGY PVT LTD in its sole discretion accepts an order.
1.2 Appointment. Subject to the terms and conditions of this Agreement, WebSQL TECHNOLOGY PVT LTD hereby appoints Reseller as a non-exclusive Reseller of the Products for resale to and use by its direct customers and managed service provider customers and those who install or use Products through its direct customers or managed service provider customers (collectively “User/s”). Reseller’s territory shall be as set forth in the Documentation or as otherwise agreed by Reseller and WebSQL TECHNOLOGY PVT LTD (the “Territory”).
1.3 Non-Exclusive. Each party acknowledges and agrees that this appointment from WebSQL TECHNOLOGY PVT LTD is non-exclusive, and WebSQL TECHNOLOGY PVT LTD may appoint other Resellers and may use its own sales personnel to market, promote and sell the Products and nothing contained herein shall prohibit or otherwise restrict WebSQL TECHNOLOGY PVT LTD from soliciting or doing business with Users or marketing, promoting, or referring leads to third parties engaged in a business similar to or competitive with Reseller. Furthermore, WebSQL TECHNOLOGY PVT LTD may, at any time and in its sole discretion, refuse to approve the resale of the Products to any User for any reason or no reason without liability or payment obligation of any kind.
2.0 TERM, TERMINATION, AND SURVIVAL.
2.1 The term of the Agreement is indefinite until terminated. Either party may terminate this Agreement for convenience for any reason or no reason and with no termination liability or cost upon ten (10) calendar days written notice to the other.
2.2 Any termination of this Agreement shall not relieve either party from any obligations hereunder due and owing prior to termination of this Agreement. Upon any termination or expiration of this Agreement: (i) all rights and licenses of Reseller to sell additional Products shall terminate; (ii) Reseller shall destroy or purge any and all Products related to this Agreement from all media in Reseller’s possession or under its control on which any of the Products are stored, and each party will return or destroy the other parties’ Confidential Information and certify the above in writing to the other party; and (iii) provided that Reseller complies with this Agreement in all respects (including the requirement to timely make payments due WebSQL TECHNOLOGY PVT LTD hereunder), this Agreement shall continue in effect solely with respect to Reseller orders existing at the time of termination solely for the term of such User’s then current order (i.e. indefinitely with respect to paid up software or for the current term of the maintenance or software subscription).
2.3 The parties specifically acknowledge and agree that without any WebSQL TECHNOLOGY PVT LTD liability or obligation of WebSQL TECHNOLOGY PVT LTD to pay Reseller any amount,: (i) WebSQL TECHNOLOGY PVT LTD or its third party contractors will exclusively contract, invoice and collect payments from the Users for any orders placed after termination or for term renewals made after termination; and (ii) in cases where Reseller fails to make payments required under the Agreement, Reseller agrees to pay or assign any and all future amounts due Reseller from Users with respect to the Products to WebSQL TECHNOLOGY PVT LTD or its designee and WebSQL TECHNOLOGY PVT LTD may directly invoice and collect from all Users for amounts otherwise owed Reseller for the Products.
3.0 PRICING, PAYMENTS, TAXES, FEES & SURCHARGES.
3.1 Pricing & Payments. WebSQL TECHNOLOGY PVT LTD will charge Reseller for Products at discount from list price as set forth in the Documentation. Reseller will make payment in the currency specified by WebSQL TECHNOLOGY PVT LTD for Products according to the schedule set forth in the Product order acceptance; provided that any amount due in any month must be received by WebSQL TECHNOLOGY PVT LTD prior to the end of the following month. Unpaid amounts will be subject to a monthly late fee of 1.5% of the outstanding balance or the maximum legally allowable interest rate, whichever is lower. Reseller must notify WebSQL TECHNOLOGY PVT LTD of any disputed charges within thirty (30) days from the payment due date, otherwise Reseller hereby agrees to such charges and WebSQL TECHNOLOGY PVT LTD will not be subject to making adjustments. Payment will be made to WebSQL TECHNOLOGY PVT LTD via wire transfer / Bank transfer to the bank account as directed by WebSQL TECHNOLOGY PVT LTD. Without altering the terms of any order acceptance or waiving any rights of WebSQL TECHNOLOGY PVT LTD to collect interest or enforce the terms of the order acceptance, WebSQL TECHNOLOGY PVT LTD will make reasonable efforts to provide a monthly statement to the Reseller on the 15th of the month outlining all the payments that are due as of the end of the preceding month. Reseller agrees that WebSQL TECHNOLOGY PVT LTD may apply any amount owed by Reseller or any of Reseller’s Affiliates to WebSQL TECHNOLOGY PVT LTD or any of its Affiliates to offset any amount owed by WebSQL TECHNOLOGY PVT LTD or its Affiliates to Reseller or any of Reseller’s Affiliates.
3.2 User Pricing & Payments. Subject to the terms of this Agreement, with respect to Users, Reseller shall be solely and exclusively responsible for all contracting, price setting, charging, invoicing and collecting.
3.3 Taxes, Withholding. Reseller shall be solely responsible for any applicable VAT, sales, use or any other taxes (collectively “Taxes”) payable under, or arising out of, or in connection with, this Agreement and will not withhold any Taxes from payment to WebSQL TECHNOLOGY PVT LTD. Any prices provided by WebSQL TECHNOLOGY PVT LTD are exclusive of Taxes.
3.4 Unpaid Charges. In the event charges due are not paid in full, for any reason, within thirty (30) days from the due date, WebSQL TECHNOLOGY PVT LTD shall have the right to suspend all or any portion of the Products until such time as all undisputed charges and applicable late fees have been paid. Following such payment, WebSQL TECHNOLOGY PVT LTD may reinstate Products to Reseller only upon satisfactory assurance of Reseller’s ability to pay for Products, including modified payment terms.
3.5 Price Changes. Pricing is subject to change upon notice by WebSQL TECHNOLOGY PVT LTD to Reseller. Any changes made to such pricing shall not retroactively affect any obligation incurred hereunder prior to the time of such change. The price modifications shall take effect after notice unless Reseller provides written notice to WebSQL TECHNOLOGY PVT LTD that Reseller does not accept the proposed modifications to pricing, in which case the parties shall negotiate in good faith regarding the proposed changes. If the parties are unable to agree on the changes, then WebSQL TECHNOLOGY PVT LTD may terminate this Agreement immediately without further obligation or liability. Notwithstanding the foregoing, WebSQL TECHNOLOGY PVT LTD reserves the right to add additional charges for any new or additional Products provided to Reseller by WebSQL TECHNOLOGY PVT LTD under this Agreement at any time.
4.0 RESELLER OBLIGATIONS.
4.1 Product Promotion, Sales Goals and Business Plan. Reseller agrees to use its best efforts to promote, offer and sell the Products within the Territory. Reseller, at its own expense, agrees to: (i) maintain a webpage on the Reseller’s website with links back to https://.www.mssqlplanner.com, (ii) promote the Products through the Reseller’s website, newsletter and other forms of market awareness, and (iii) develop, evolve and implement marketing strategies that promote the Products.
4.2 Order Process and Acceptance. Reseller agrees to utilize WebSQL TECHNOLOGY PVT LTD’s standard order process as amended by WebSQL TECHNOLOGY PVT LTD from time to time and to provide all User information required by such process. WebSQL TECHNOLOGY PVT LTD will send email confirmation(s) for order acceptance including the net payment amounts and payment schedule for the order. Reseller may not cancel or amend an order once it has been received by WebSQL TECHNOLOGY PVT LTD without WebSQL TECHNOLOGY PVT LTD’s written consent.
4.3 Customer Non-solicit. Reseller, its subsidiaries, Affiliates, and agents agree that during the term of this Agreement and for one year thereafter, it shall not, directly or indirectly, refer, solicit, sell to or encourage or cause any current client of WebSQL TECHNOLOGY PVT LTD or its Resellers or agents to stop, alter or reduce its use of the Products or any products similar thereto which are directly or indirectly supplied by WebSQL TECHNOLOGY PVT LTD.
4.4 No Redistribution. Unless approved by WebSQL TECHNOLOGY PVT LTD in writing, Reseller may not allow other entities to resell or otherwise redistribute the Products and Reseller acknowledges that, in such event, WebSQL TECHNOLOGY PVT LTD or its Suppliers may, with no liability to Reseller or its Users, terminate the Products to any affected Users as well as contact such Users and offer the sale of the Products from WebSQL TECHNOLOGY PVT LTD directly.
4.5 Reseller Product and Services. Reseller shall be solely responsible for providing all products and services of Reseller or its suppliers not set forth in this Agreement and Reseller agrees to indemnify, defend and hold WebSQL TECHNOLOGY PVT LTD, its Affiliates (as defined in Rule 405 of the Securities Act of 1933) and their employees and Suppliers harmless from any Losses, as defined herein, which arise out of or result from any such products or services.
5.0 INDEPENDENT CONTRACTOR.
Reseller is an independent contractor, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venturers, co-owners agents, franchisee or franchisor or otherwise, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Reseller is not an employee of WebSQL TECHNOLOGY PVT LTD and is not entitled to any employee benefits. All financial and other obligations associated with each party’s business are the sole responsibility of such party. Reseller represents and warrants that it: (a) will not make any representation, warranties, or guarantees on behalf of WebSQL TECHNOLOGY PVT LTD, and (b) will not disparage WebSQL TECHNOLOGY PVT LTD in any manner or otherwise harm WebSQL TECHNOLOGY PVT LTD’s business or reputation.
6.0 INTELLECTUAL PROPERTY.
6.1 License. Subject to the terms and conditions of this Agreement, WebSQL TECHNOLOGY PVT LTD hereby grants Reseller and its authorized Users a license to the Products as set forth in the T&C’s; provided that Reseller’s license shall apply only to its internal use in production in Reseller’s support center and for demonstration of the Product’s to prospective Users and not for any other purpose, including providing managed services. Except as specifically set forth herein, WebSQL TECHNOLOGY PVT LTD or its Suppliers retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Products, including without limitation all technology, web addresses, software, or systems relating to the Products. Reseller agrees not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the Products.
6.2 Use Of Marketing Materials. WebSQL TECHNOLOGY PVT LTD may make available certain marketing Materials (“Materials”) to Reseller for use by Reseller in marketing the Products. Reseller acknowledges and agrees that WebSQL TECHNOLOGY PVT LTD owns the copyright in such Materials and reserves all copyright therein. Reseller may modify the marketing Materials to incorporate Reseller’s name and trademark(s); provided, however, that Reseller must obtain WebSQL TECHNOLOGY PVT LTD’s written approval prior to the use, distribution or disclosure of any modified Materials. To the extent that these modified Materials constitute a “derivative work” as that term is defined in Title 17 of the United States Code and interpreted by the Federal courts or any similar law, rule or regulation anywhere in the world, WebSQL TECHNOLOGY PVT LTD shall own all right, title, and interest in such modified Materials and all copyright therein; provided, however, that WebSQL TECHNOLOGY PVT LTD shall obtain no right, title, or interest in Reseller’s name and trademarks as such may be incorporated in the modified Materials. Reseller may use these Materials to market and promote the Products under the terms and conditions of this Agreement, but except as expressly set forth in this Section, these Materials shall not be copied, reproduced, modified, transmitted, displayed, performed, distributed, or otherwise used in whole or in part in any manner without WebSQL TECHNOLOGY PVT LTD’s prior written consent.
6.3 Surrender of Materials. Upon termination of this Agreement and as directed by WebSQL TECHNOLOGY PVT LTD, Reseller shall: (1) surrender and deliver to WebSQL TECHNOLOGY PVT LTD, at Reseller’s expense, all copies of the above Materials provided by WebSQL TECHNOLOGY PVT LTD that are in the possession, control, or custody of Reseller at the time of such termination, whether or not such Materials were modified by Reseller as provided in the previous paragraph; or (2) destroy all copies of the above Materials, and certify such destruction in writing to WebSQL TECHNOLOGY PVT LTD.
6.4 Marks. WebSQL TECHNOLOGY PVT LTD grants you a revocable, non-exclusive license to use the Materials and WebSQL TECHNOLOGY PVT LTD marks in accordance with WebSQL TECHNOLOGY PVT LTD’s Trademark Guidelines set forth. You agree that you will not directly or indirectly: (a) obtain any right, title, or interest in any WebSQL TECHNOLOGY PVT LTD mark or any string identifier, whether in the form of a Universal Resource Locator (URL) or in any other form, representing or linking with any network address, such string identifier comprising in whole, comprising in part, or in any way similar to any word portions of any WebSQL TECHNOLOGY PVT LTD mark; or (b) employ any word portion of, or any WebSQL TECHNOLOGY PVT LTD marks, including without limitation using or facilitating use of such word portion in connection with any Internet search engine, any Internet website, or any Internet browser, so as to direct or re-direct communications network traffic. You acknowledge and agree that WebSQL TECHNOLOGY PVT LTD is the owner of all right, title and interest in and to the Products, Materials and marks and that other than as set forth in this Agreement retains all such rights.
6.5 No Other Rights Granted. Except as explicitly set forth in this Section, the parties agree and acknowledge that neither party is granted any license, express or implied, to or under any patent, copyright, trademark, service mark, trade secret or other intellectual property right of the other party.
7.0 INDEMNIFICATION, LIMITED WARRANTY, AND LIMITATION OF LIABILITY.
7.1 Indemnity. Reseller shall indemnify, defend and hold WebSQL TECHNOLOGY PVT LTD, its Affiliates and their employees and Suppliers harmless from any and all third party claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees (“Losses”) arising out of, relating to, or resulting from the negligence, breach of this Agreement or violation of applicable law, rule, regulation by Reseller or your Affiliates, or their respective owners, officers, directors, employees or representatives.
7.2 Limited Warranty. RESELLER UNDERSTANDS AND AGREES THAT WEBSQL TECHNOLOGY PVT LTD’S PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. WEBSQL TECHNOLOGY PVT LTD DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
7.3 Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING COST OF COVER, LOST PROFITS, LOST GOODWILL, LOST USE OR PERFORMANCE OF ANY PRODUCTS, SERVICES, OR OTHER PROPERTY, LOSS OR IMPAIRMENT OF DATA OR SOFTWARE, OR OTHERWISE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID AND CANNOT BE LIMITED BY CONTRACT, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES SO THAT WEBSQL TECHNOLOGY PVT LTD’S MAXIMUM CUMULATIVE LIABILITY AND RESELLER’S EXCLUSIVE REMEDY FOR ANY REASON AND UPON ANY CAUSE OF ACTION OR CLAIM IN CONTRACT, TORT, FOR INDEMNIFICATION OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY RESELLER TO WEBSQL TECHNOLOGY PVT LTD UNDER THIS AGREEMENT DURING THE 2 (TWO) MONTHS PRIOR TO SUCH LIABILITY.
8.1 Compliance With Law and Export Regulations. Reseller represents that it shall comply with: (a) all laws, rules and regulations and obtain and maintain all required licenses, permits, certificates and authorizations; and (b) with the WebSQL TECHNOLOGY PVT LTD policies, conditions and workplace rules provided to you including WebSQL TECHNOLOGY PVT LTD’s Confidentiality Policy set forth as Exhibit A hereto (collectively the “Policies”) as such Policies may be updated from time to time in WebSQL TECHNOLOGY PVT LTD’s sole discretion. Reseller acknowledges that the Products are subject to controls under applicable export laws and agrees that it will not and shall not permit any User to export or re-export the Product in any form in violation of the export laws of any jurisdiction.
8.2 Advertising And Publicity. Except for Materials already made public, neither Party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement, nor use the other Party’s name or trademarks (or any variation thereof), without the other Party’s prior written consent.
8.3 Governmental Agencies. Reseller represents and warrants that the following paragraph shall be included in any contract between Reseller and the United States Government or other governmental agencies: “Use of the Products by the United States Government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in 48 CFR 52.227-14, or as “commercial computer software” or “commercial computer software documentation” under DFARS 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is WebSQL TECHNOLOGY PVT LTD ,Banglore , Karnataka, India 560099 or its Suppliers.”
8.4 Force Majeure. Neither Party shall be liable for delays and/or defaults in its performance under this Agreement (other than Reseller’s obligation to pay fees) due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of god or of the public enemy; fire or explosion; flood; actions of the elements; epidemics, telecommunication system failure; war; acts of terrorism; riots; embargoes; quarantine; viruses; strikes; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing.
8.5 Verifying Compliance And Reseller Records. Reseller will keep accurate records in the normal course relating to this Agreement including regarding amounts charged to Users. Reseller will promptly provide true and accurate copies of any such records to WebSQL TECHNOLOGY PVT LTD upon request and grants to WebSQL TECHNOLOGY PVT LTD and its independent accountants the right to examine Reseller’s books, records and accounts during Reseller’s normal business hours to verify compliance with the Agreement. In the event such audit discloses non-compliance with the Agreement, without limiting any other remedy hereunder, Reseller shall promptly pay to WebSQL TECHNOLOGY PVT LTD the appropriate fees, plus the reasonable cost of conducting the audit.
8.6 Waiver. The failure of either party to enforce or insist upon compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, shall not constitute the permanent waiver of any term or condition of this Agreement.
8.7 Assignment. Neither Reseller nor WebSQL TECHNOLOGY PVT LTD may assign or transfer any right, obligations or duty, in whole or in part, or any other interest hereunder, except that WebSQL TECHNOLOGY PVT LTD may freely assign the Agreement to an Affiliate or successor by merger, reorganization, consolidation or sale of some or all of its assets, without the prior written consent of the other party, which consent shall not be unreasonably withheld.
8.8 Severability. Should any part, term or provision of this Agreement be declared invalid, void or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the parties with all terms and provisions remaining in full force and effect.
8.9 Notices. WebSQL TECHNOLOGY PVT LTD may give notice by means of a general notice on the software or service, electronic mail to Reseller’s e-mail address on record in WebSQL TECHNOLOGY PVT LTD’s account information, or by written communication sent by first class mail or pre-paid post to Reseller’s address on record in WebSQL TECHNOLOGY PVT LTD’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
8.10 Applicable Law. This Agreement shall be governed by the laws of Jersey, Channel Islands without regard to its choice of law provisions. The parties consent to the exclusive jurisdiction and venue of the courts sitting in Jersey, Channel Islands with respect to any dispute, controversy or claim arising out of or relating to this Agreement. In any action arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and other costs in addition to any other relief that may be awarded.
8.11 Third Party Beneficiary. Except as specifically set forth herein with respect to Suppliers, no provision of this Agreement will in any way inure to the benefit of any third person (including the public, at large) so as to constitute any such person a third-party beneficiary of the Agreement or any of the terms hereof, or otherwise give rise to any cause of action in any person not a party hereto.
8.12 Entire Agreement. The Agreement constitutes the entire agreement between the Parties with regard to the subject matter herein and no other agreement, promise or practice between the Parties will be binding on the Parties.
- The Reseller acknowledges that, in connection with the Agreement, the Products or services or otherwise, the Reseller may have had access to or received or may have access to or receive information that is technical, financial, marketing, staffing and business plans and information, strategic information, proposals, requests for proposals, specifications, drawings, prices, costs, Customer Information (as defined below), procedures, proposed products, processes, business systems, software programs, techniques, services and a variety of other information and Materials (the “Confidential Information”); it being understood that Confidential Information also includes the fact that such information has been provided and any information that should reasonably have been understood by Reseller, because of legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary or confidential to WebSQL TECHNOLOGY PVT LTD, or its Affiliates and their officers, directors, employees, shareholders, customers, agents, successors and assigns. The Reseller agrees that as between Reseller and WebSQL TECHNOLOGY PVT LTD, all such Confidential Information is, and shall be considered, confidential and proprietary to WebSQL TECHNOLOGY PVT LTD. The Reseller agrees that it shall:
(a) protect and preserve the confidential and proprietary nature of all Confidential Information;
(b) not disclose, give, sell or otherwise transfer or make available, directly or indirectly, any Confidential Information to any third party (including the Reseller’s agents and contractors) for any purpose, except as expressly permitted in writing by WebSQL TECHNOLOGY PVT LTD;
(c) not use, or make any records or copies of, the Confidential Information, except as specifically needed in order to perform its obligations under the Agreement;
(d) limit the dissemination of the Confidential Information to such entities and individuals whose duties justify the need to know the Confidential Information, and then only provided that such entities and individuals are obligated to comply with all terms of this Confidentiality Policy;
(e) return (or, at WebSQL TECHNOLOGY PVT LTD’s request, destroy) all Confidential Information and any copies thereof (in whatever form) (i) as soon as it is no longer needed or (ii) immediately upon WebSQL TECHNOLOGY PVT LTD’s request, and certify to WebSQL TECHNOLOGY PVT LTD in writing that this has been done;
(f) notify WebSQL TECHNOLOGY PVT LTD immediately of any actual, potential, threatened or attempted access to, loss, misplacement or unauthorized use or disclosure of Confidential Information, in whatever form;
(g) to the extent that Customer Information is processed as part of the Agreement: (i) merely act as the data processor and the WebSQL TECHNOLOGY PVT LTD is the data controller; (ii) only process Customer Information on behalf of, and in the name of the WebSQL TECHNOLOGY PVT LTD, and only in accordance with the instructions of the WebSQL TECHNOLOGY PVT LTD; and
(h) comply with any security procedures attached to this Confidentiality Policy and any other reasonable security procedures as may be prescribed by WebSQL TECHNOLOGY PVT LTD for protection of the Confidential Information.
- Customer Information broadly means any personally identifiable information of WebSQL TECHNOLOGY PVT LTD its Affiliates and their officers, directors, employees, shareholders, customers, agents, successors and assigns including but not limited to: (a) personal data as defined in EU Directive 95/46/EC, Japanese Personal Information Protection Act and Hong Kong Personal Data (Privacy) Ordinance; (b) non-public personal information and Personal Health Information as defined, respectively, in the United States Gramm-Leach-Bliley and Health Insurance Portability and Accountability Acts; (c) personal information as defined in the Canadian Personal Information Protection and Electronic Documents Act, the New Zealand Privacy Act, and the Australian Privacy Act 1988; (d) sensitive personal data or information as defined in the Indian Information Technology Act; and (e) any information similarly designated or protected to the forgoing under any law in any jurisdiction.
- Reseller agrees to comply with all laws, orders, and regulations including all privacy confidentiality, notification and consumer protection laws including those applicable to Customer Information and the handling and processing thereof. The Reseller shall ensure and be responsible for the compliance with the terms of the Confidentiality Policy by any person or entity who obtains Confidential Information from or through Reseller.
- Except with respect to Customer Information, the obligations set forth herein shall not apply to information that can be shown by written documentation: (1) becomes generally available to the public other than as a result of a disclosure by the Reseller, (2) was available to the Reseller on a non-confidential basis prior to its disclosure by WebSQL TECHNOLOGY PVT LTD or its agents, (3) is disclosed to the Reseller on a non-confidential basis from a source other than WebSQL TECHNOLOGY PVT LTD or its agents, provided, however, that such source is not bound by a confidentiality obligation to WebSQL TECHNOLOGY PVT LTD or its agents; or (4) was independently developed without reference to or reliance upon the Confidential Information.
- In the event that the Reseller is required, by subpoena, court order, or other similar process, to disclose Confidential Information, the Reseller shall provide WebSQL TECHNOLOGY PVT LTD with prompt written notice and documentation thereof, so that WebSQL TECHNOLOGY PVT LTD may seek a protective order or other appropriate remedy and Reseller shall cooperate with WebSQL TECHNOLOGY PVT LTD in any such efforts.
- Reseller will implement and maintain at all times appropriate technical, security and organizational measures to (i) ensure the security and confidentiality of the Confidential Information, (ii) identify potential threats or hazards to the security or integrity of the Confidential Information and protect against any anticipated threats or hazards, and (iii) protect against unauthorized access to or use of the Confidential Information.
- Upon any breach of this Confidentiality Policy by Reseller, WebSQL TECHNOLOGY PVT LTD may terminate any or all of the Agreement in whole or in part without any liability or termination penalties of any kind
- In the event of any actual or threatened unauthorized access to Confidential Information or breach of this Confidentiality Policy, Reseller shall at Reseller’s expense: (a) immediately notify WebSQL TECHNOLOGY PVT LTD; (b) cooperate with WebSQL TECHNOLOGY PVT LTD to take all measures to stop or limit the access, use or damages caused thereby; (c) implement changes and safeguards to prevent further access or use; and (d) as directed by WebSQL TECHNOLOGY PVT LTD send notifications or communications to affected individuals or entities. The parties acknowledge that Confidential Information is unique and valuable, and that use or disclosure in breach of this policy will result in irreparable injury to WebSQL TECHNOLOGY PVT LTD or its clients for which monetary damages alone would not be an adequate remedy. Therefore, the Reseller agrees that WebSQL TECHNOLOGY PVT LTD, without prejudice to any rights to judicial relief it may otherwise have at law or in equity, shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach of the provisions of this policy and that the Reseller shall not oppose the granting of such relief.. The Reseller also agrees that it will not seek and agree to waive any requirement for the securing or posting of a bond in connection with WebSQL TECHNOLOGY PVT LTD’s seeking or obtaining such relief. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages. No forbearance, failure or delay in exercising any right, power or privilege is waiver thereof, nor does any single or partial exercise thereof preclude any other or future exercise thereof, or the exercise of any other right, power or privilege.
- Neither WebSQL TECHNOLOGY PVT LTD nor any of its suppliers or agents or any of their customers are making any representation or warranty as to the accuracy or completeness of the any information (including without limitation Confidential Information) provided by them. The Reseller agrees that WebSQL TECHNOLOGY PVT LTD shall have no liability resulting from the use of such information by Reseller.