These Dealers Terms of Sale, including all applicable terms referenced herein, (collectively, this “Agreement”) apply to your purchase and resale of Products and Services, unless you have a separate written agreement with KeepSolid Inc. that expressly applies to your purchase and resale of such Products and Services. This Agreement does not apply to you if you are buying Products and Services for your own internal end-use.
“You” or “your” means the entity that places an order for Products and/or Services with KeepSolid Inc. for purpose of resale to an End-User (defined below). "Software" means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation. Software includes software delivered electronically, pre-installed on an appliance, or locally installed on hardware systems, and software accessed through the Internet or other remote means (such as websites, portals and "cloud-based" solutions). “KeepSolid Inc. Software” means Software licensed by KeepSolid Inc. KeepSolid Inc. Software products are collectively referred to as “KeepSolid Inc. Product.” “Services” means services provided by KeepSolid Inc. as described in one or more Service Agreements. “Third Party Product” means any non-KeepSolid Inc.-branded products and services and non-KeepSolid Inc.-licensed software products. KeepSolid Inc. Products and Third Party Products are collectively referred to as “Products”.
By placing your order, you accept and are bound to the terms and conditions of this Agreement.
A. General. Subject to the terms and conditions of this Agreement and your compliance therewith, you may resell certain Products and Services to End-Users. “End-User” means any entity purchasing or otherwise obtaining Products and/or Services from you for its own internal end-use and not for reselling, distributing, or sub-licensing to others. You shall not market, resell, or use Products or Services other than as expressly permitted in this Agreement. You understand that not all Products and Services may be purchased for resale under this Agreement. Certain activities require that you enter into a separate written agreement with KeepSolid Inc., including but not limited to (i) use of KeepSolid Inc. Software to provide services to and on behalf of End-Users, (ii) use and reproduction of KeepSolid Inc. Software to combine with your software products or other products to create one unified product (“Bundled Product”) and marketing, distribution and sublicensing of KeepSolid Inc. Software to End-Users as part of the Bundled Product, and (iii) selling renewals of certain KeepSolid Inc. Software maintenance services.
B. Restrictions to Appointment. Notwithstanding Section 1.A., and unless and to the extent that you are expressly granted such rights under the KeepSolid Inc. Dealers Program or in a separate written agreement between you and KeepSolid Inc., you shall not market or resell Products or Services (i) to any consumers, resellers, distributors, or third-party sales agents; (ii) through retail storefronts, online stores, or auction or resale websites; or (iii) to any government (including federal, provincial, state, or local government), healthcare, or education end-users. You shall not market or resell Products or Services to anyone outside the United States or Canada, whichever is the country covered by the KeepSolid Inc. entity from which you purchased such Products and Services.
C. Non-Exclusive. This Agreement is not exclusive. KeepSolid Inc. may appoint third parties (including those who may compete with you) to sell or market Products and Services to anyone. KeepSolid Inc. may sell or market (whether directly or indirectly through a third party) Products and Services at any price KeepSolid Inc. chooses without any obligation or liability to you. This Agreement does not guarantee that you will make any sales of Products or Services.
D. Additional Requirements. Your eligibility to resell certain Products and Services may be subject to additional obligations or conditions not outlined in this Agreement, including additional training, specialization requirements, contractual agreements, and other conditions. You agree to provide KeepSolid Inc. with information and reports pertinent to your relationship with KeepSolid Inc. as may reasonably be requested by KeepSolid Inc.
2. PRICING & TAX
A. Pricing. Prices for Products and Services will be as specified in the applicable KeepSolid Inc. Agreement. Before KeepSolid Inc. issues an Agreement, KeepSolid Inc. may require you to provide information concerning the End-User and you agree to provide such information. KeepSolid Inc. reserves the right to modify pricing due to increase in costs, pricing or other error, currency and exchange rate fluctuations, or any event beyond KeepSolid Inc.’s control, without liability to you. Taxes, shipping and handling charges and any government mandated or other regulated environmental disposal surcharges are not included in prices for Products and Services, unless expressly indicated at the time of sale.
B. Unless you and KeepSolid Inc. have agreed to a different discount structure, KeepSolid Inc.'s standard pricing policy for a solution that includes products, software, and services in one discounted price, allocates the discount off list price applicable to the services portion of the solution to be equal to the overall percentage discount off of the list price of the entire solution. If KeepSolid Inc. offers you certain discounts off of KeepSolid Inc.’s standard list price, such discounts do not apply to special product promotions and cannot be combined with other offers.
C. Taxes. The charges stated in any KeepSolid Inc. quote or invoice will include all duties, levies or any similar charges and will exclude VAT, sales, use, or equivalent taxes. You are responsible for the payment of all taxes and fees assessed or imposed on Products and Services in any geography in which you or an End User receives the benefit of the Products and Services, including any sales, use, excise, value-added or comparable taxes, but excluding taxes for which you have provided a valid resale or exemption certificate. You will defend and indemnify KeepSolid Inc. Parties (defined below) from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action relating to tax liabilities that are your responsibility. If you are required by law to make any withholding or deduction in respect of any payments that you are required to make to KeepSolid Inc. under this Agreement, additional amounts shall be simultaneously payable such that KeepSolid Inc.’s nominated bank account receives (after that withholding and deduction) those amounts which KeepSolid Inc. would have received if no withholding or deduction had been required. Upon request, you will supply to KeepSolid Inc. evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of KeepSolid Inc., that you have accounted to the relevant authority for the sum withheld or deducted.
D. Dealers Pricing. You are free to determine and set your resale pricing of Products and Services.
3. PURCHASE ORDERS
A. Orders. Each order must reference the requested Products and Services, the End-User’s name and address, and any other information requested by KeepSolid Inc. You shall submit Orders on KeepSolid Inc. designated webpage. Orders for certain Software may require purchase of related services. All orders and transactions are subject to acceptance or cancellation by KeepSolid Inc., in KeepSolid Inc.’s sole discretion. Each accepted order will be interpreted as a single agreement, independent of any other orders.
B. Cancellation. If you purchase a multi-year software license and related support or maintenance, and you and KeepSolid Inc. (and, if applicable, the third-party licensor of the software) agree to make installation payments of the purchase price over the term of the license, then you shall make all such installation payments in full and such purchase is non-cancellable over the term of the license. KeepSolid Inc. is not responsible for pricing, typographical, or other errors in any offer or quote, and reserves the right to cancel any order arising from such errors. In addition, KeepSolid Inc. may cancel orders due to increases in the costs of manufacturing, or any event beyond KeepSolid Inc.’s control.
C. No Return. All sales are final. Neither you nor any of your End-Users may return Products to KeepSolid Inc., except as expressly permitted in Section 5.D. or to the extent that you are expressly granted return rights under the KeepSolid Inc. Dealers Program.
D. Security Interest. You hereby grant KeepSolid Inc., and KeepSolid Inc. hereby retains, a first priority security interest and lien on any and all of your rights, title, and interest in Products, wherever located, and all replacements or proceeds of the Products, until the invoice for the applicable Products is paid in full, including any late payment fees and costs of collection. You agree KeepSolid Inc. may file any financing statements or related filings for protecting this security interest as KeepSolid Inc. reasonably deems necessary or appropriate.
KeepSolid Inc. provides you with the dedicated webpage in your User Office at my.keepsolid.com where you can order any Product or Service in any quantity. In order to access your User Office you must register a Solutions ID. To purchase any Product or Service you should have either an Amazon ID or PayPal account, as we currently support these payment systems. All operations with both Amazon and PayPal systems must be done according the respected rules of these systems.
A. Use of Software by the End-User is subject to and governed by the end-user software license agreement that is shipped with, included in (e.g., part of a product installer or an executable document), made available by download, or otherwise accompanies such Software or Products. If no such agreement is shipped with, included in, made available by download, or otherwise accompanies the Software or Products, and there is no separate license agreement between End-User and the manufacturer or owner of such software, then the KeepSolid Inc. Software shall be governed by and subject to the applicable Terms and Conditions located at https://www.keepsolid.com/terms.
B. If you take possession of the Products, you shall pass on the end-user software license agreement to the End-User to which you resell such Products. You may not modify in any way the terms of any software license agreement or purchase acknowledgment form.
C. Notwithstanding anything contrary in this Agreement, you have no right under this Agreement to sublicense the KeepSolid Inc. Software. You may use, install or download KeepSolid Inc. Software for your internal use. If you are installing, downloading, or otherwise using Software on behalf of an End-User, then prior to the installation or download, you shall obtain the End-User’s written authorization to accept the terms of the end-user software license agreement on behalf of the End-User. Additionally, you shall comply with the terms of the software license agreement and, for Canadian based End-Users, you shall obtain all End-User consents required under applicable law to install the Software on an End-User’s system).
D. For KeepSolid Inc. Software, if (i) the End-User does not agree to be bound by the KeepSolid Inc. Terms&Conditions, (ii) the KeepSolid Inc. Terms&Conditions provides End-User a specific right of return in the event End-User does not accept the KeepSolid Inc. Terms&Conditions, (iii) the End-User has not downloaded, installed, activated or otherwise used the software and, (iv) you will be entitled to get a refund; provided, however, your right to return and obtain a refund, as permitted in this Section, expires twenty-one (21) days from the date of KeepSolid Inc.’s invoice to you, and further provided that KeepSolid Inc. may require documentation from End-User of its objection to the software license agreement and its receipt of refund from you.
F. If you receive activation or registration codes or keys (“Redeem Codes”), you shall distribute the Redeem Codes as directed by KeepSolid Inc. and to activate (i) only the particular Software copy for which the Redeem Codes are intended by KeepSolid Inc. to be used and (ii) only as many copies of the Software as licenses you have purchased and resold to an End-User. You shall not reuse Redeem Codes for multiple End-Users or for multiple Software copies for the same End-User.
A. KeepSolid Inc. Terms and Conditions Applicable to End-Users. You shall communicate to the End-User in writing (in each quote and in your own agreement with such End-User for the sale of Services (such agreement, the “End-User Agreement”)) that the provision and performance of such Services are subject to and will be governed by the applicable Service Agreements. You acknowledge and agree that KeepSolid Inc. is a third party beneficiary of the End-User Agreement and may enforce the provisions thereof directly against the End-User or through you, and you shall require the End-User to acknowledge and agree to such in the End-User Agreement. Additionally, you acknowledge and agree that KeepSolid Inc. may present or, if requested by KeepSolid Inc., you shall present, all applicable Service Agreements directly to the End-User and KeepSolid Inc. is not required to provide or perform any Services for such End-User unless and until such End-User has agreed to be bound by all such Service Agreements, as may be determined in each case by KeepSolid Inc. in its sole discretion. You shall immediately notify KeepSolid Inc. if you become aware of any End-User’s violation of any of the Service Agreements. KeepSolid Inc. reserves the right, in its sole discretion, to suspend or terminate the provision of any one or more of the Services to an End-User in response to such End-User’s violation, or suspected violation, of any of the applicable Service Agreements, and KeepSolid Inc. will have no liability to you as a result of any such suspension or termination.
B. Services Delivery. All Services will be performed by KeepSolid Inc. or its subcontractors. You may not use, provide, or perform any Services, including in your capacity as a managed services provider, absent a separate written agreement with KeepSolid Inc. expressly authorizing the same.
A. Limited Warranty on KeepSolid Inc. Products and Services. KEEPSOLID INC. MAKES NO WARRANTIES TO YOU UNDER THIS AGREEMENT. YOU UNDERSTAND THAT WITH RESPECT TO KEEPSOLID INC. SOFTWARE, END USER WARRANTIES MAY BE FOUND IN THE APPLICABLE KEEPSOLID INC. TERMS & CONDITIONS. You shall not make any warranty on KeepSolid Inc.’s behalf. You are solely responsible for, and you shall indemnify and hold KeepSolid Inc. harmless from any claims related to, any warranty you grant that is beyond the KeepSolid Inc. end user warranties described in this paragraph.
B. Third Party Products. Third Party Products may carry a limited warranty from the third-party publisher, provider or original manufacturer of such Third Party Products. KeepSolid Inc. is not responsible for fulfillment of any Third Party Product warranty or for problems attributable to the use of Third Party Products. KeepSolid Inc. does not warrant that any Product will function in any specific configuration that includes any Third Party Products, or that any Product will function to produce a particular result, even if the specific configuration or the result has been discussed with KeepSolid Inc. ALL THIRD PARTY PRODUCTS ARE PROVIDED BY KEEPSOLID INC. ON AN “AS IS” BASIS.
C. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.A., AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, KEEPSOLID INC. (INCLUDING KEEPSOLID INC. AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, SUCCESSORS AND ASSIGNS), ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH KEEPSOLID INC., THE “KEEPSOLID INC. PARTIES”), DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
D. Support Services. Each End-User must have a properly registered and activated account on KeepSolid Inc.’s website (e.g. Solutions ID) to get the access to the KeepSolid Inc’s technical support. Your failure to properly inform or guide the End-User to getting such Solutions ID will result in the End-User’s inability to receive support services from KeepSolid Inc. for such KeepSolid Inc. Products, and KeepSolid Inc. will not be liable to you or to any End-User for any such failure.
8. HIGH RISK APPLICATIONS
You understand that KeepSolid Inc. Products have been designed, manufactured, and tested by KeepSolid Inc. or its suppliers for use in general-use office/business environments. KeepSolid Inc. has not tested or certified KeepSolid Inc. Products for use in any high-risk applications, including the operation of nuclear facilities, aircraft navigation, air traffic control, emergency communications systems, life support machines, weapons systems, or any other application where the failure or malfunction of any KeepSolid Inc. Products can reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm (“High Risk Applications”). The Services are not fault-tolerant and are not designed or intended for use in, and you shall not use any Services in, any hazardous environments requiring fail-safe performance or in any High Risk Applications. You understand and agree that KeepSolid Inc. makes no warranties or assurances that the Products and Services are suitable for any High Risk Applications and you shall defend and indemnify KeepSolid Inc. from any claims made by third parties resulting from any such High Risk Applications. As between you and KeepSolid Inc., you are responsible for the design and implementation of configurations, systems, networks, and services suitable for the risks involved in the End-User applications and operating environments into which you sell.
9. EXCLUDED DATA
The Products and Services have not been designed with security and access management for the processing and/or storage of the following categories of data: (a) data that is classified and/or used on the U.S. Munitions list, including software and technical data; (b) articles, services and related technical data designated as defense articles and defense services, (c) ITAR (International Traffic in Arms Regulations) released data; and (d) personally identifiable information that is subject to heightened security requirements as a result of your or End-User’s internal policies or practices, industry-specific standards or by law (collectively referred to as “Excluded Data”). You are solely responsible for reviewing data that you will provide to KeepSolid Inc. (or to which KeepSolid Inc. will have access) to ensure that it does not contain Excluded Data.
10. INTELLECTUAL PROPERTY
A. Trademarks and Copyrights. You may use the “KeepSolid Inc.” name and the names of KeepSolid Inc. Products and Services (collectively, “Names”) solely for the purpose of accurately identifying the KeepSolid Inc. Products and Services you market or sell under this Agreement. You shall not use any of the Names for any other purpose, and shall not use any other KeepSolid Inc. trademarks, services marks, logos, or copyrighted works, unless and to the extent you are expressly granted such usage right under the KeepSolid Inc. Dealers Program. You agree to change or correct, at your own expense, any materials or activity that KeepSolid Inc. decides is inaccurate, objectionable or misleading, or is a misuse of any of the Names, trademarks, service marks, logos, or copyrighted works. You are prohibited from using KeepSolid Inc.’s logos, referring to yourself as an authorized reseller of KeepSolid Inc., or creating the impression that KeepSolid Inc. is affiliated with you, other than as expressly permitted by the terms of the KeepSolid Inc. Dealers Program. You shall not claim or imply or create an impression that you and KeepSolid Inc. are legal partners or that KeepSolid Inc. has sponsored, authorized, approved, or endorsed your business or any offer or marketing, advertising, or promotion thereof in any manner. You will clearly and prominently identify yourself in all your offers and advertising, marketing, and promotional materials. You may not register or use any domain name or business name containing or confusingly similar to any name or mark of KeepSolid Inc.’s. Additionally, you may not use any Names or KeepSolid Inc. marks in search engine advertising, either as a keyword or in advertisements appearing on search engines or in email addresses, without KeepSolid Inc.’s prior written permission.
B. Intellectual Property Ownership and Reservation of Rights. All right, title and interest in and to the intellectual property rights in KeepSolid Inc. Products and Services, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, and any derivative works thereof, belong solely and exclusively to KeepSolid Inc., KeepSolid Inc. Affiliates or their licensors or suppliers, and you have no rights whatsoever in any of the foregoing other than the rights expressly set forth in this Agreement. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in any of the intellectual property rights in or to any KeepSolid Inc. Products or Services, in whole or in part.
C. Discontinued or Changed Services. KeepSolid Inc. reserves the right to revise or discontinue any Service offering at any time without notice to you or the End-User. Changes to KeepSolid Inc. Services may occur after you place an order but before KeepSolid Inc. performs the Services, or before the end of the Service subscription. In that case your End-User will be eligible to get a refund.
D. Confidential Information. The term “KeepSolid Inc. Confidential Information” means any confidential or proprietary information pertaining to or provided by KeepSolid Inc., including, without limitation, product plans, software, pricing, discounts, marketing and sales information, business plans, customer and supplier data, financial and technical information, “know-how,” trade secrets, and other information, whether such information is in written, oral, electronic, web-based, or other form. You will keep all KeepSolid Inc. Confidential Information confidential for a period of three years from the date of KeepSolid Inc.’s disclosure to you, and use at least the same degree of care as you use to protect your own confidential information but no less than reasonable care. Notwithstanding anything to the contrary in this Agreement, your confidentiality obligations with respect to customers’ personally-identifiable information and KeepSolid Inc. trade secrets shall never expire. You may not disclose KeepSolid Inc. Confidential Information to any third party without KeepSolid Inc.’s prior written consent. You may share KeepSolid Inc. Confidential Information with only your employees who have a need to know and who are subject to legally binding obligations of confidentiality no less restrictive than those imposed by this Agreement. These confidentiality obligations do not apply to any KeepSolid Inc. Confidential Information that (i) you can demonstrate was in your possession before receipt from KeepSolid Inc.; (ii) is or becomes publicly available through no fault by you; or (iii) you rightfully received from a third party without a duty of confidentiality. If you are required by a government body or court of law to disclose any KeepSolid Inc. Confidential Information, you agree to give KeepSolid Inc. reasonable advance notice so that KeepSolid Inc. may contest the disclosure or seek a protective order. You may use the KeepSolid Inc. Confidential Information solely for the purpose of, and in connection with, your business relationship with KeepSolid Inc. No license or conveyance of any rights under any patent, copyright, trade secret, trademark or any other intellectual property right to KeepSolid Inc. Confidential Information is granted under this Agreement except the limited rights to use the KeepSolid Inc. Confidential Information as expressly set forth in this paragraph. KeepSolid Inc. makes no warranties as to the accuracy or completeness of the KeepSolid Inc. Confidential Information. ALL KEEPSOLID INC. CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. To the extent permitted by law, KeepSolid Inc. disclaims all express, implied and statutory warranties and conditions, and assumes no liability to you for any damages of any kind in connection with the KeepSolid Inc. Confidential Information or any intellectual property in them. Upon KeepSolid Inc.’s written request, you will promptly return all KeepSolid Inc. Confidential Information, together with all copies, or certify in writing that all such KeepSolid Inc. Confidential Information and copies thereof have been destroyed. You acknowledge that damages for improper disclosure of KeepSolid Inc. Confidential Information may be irreparable and that KeepSolid Inc. shall be entitled to seek equitable relief, including injunction and preliminary injunction, in addition to all other remedies available at law or in equity. You agree to adhere to all applicable United States, Canadian and foreign export control laws and regulations and will not export or re-export any technical data or products, to any proscribed country listed in the U.S. Export Administration regulations, or foreign national thereof, unless properly authorized by the U.S. Government.
11. YOUR RESPONSIBILITIES
In addition to your other obligations set forth in this Agreement, you are responsible for the following:
A. End- User Documentation. You will provide each End-User with appropriate software license agreements and other materials that KeepSolid Inc. includes with its Products.
B. Business Conduct. At all times you shall conduct business in a manner, which reflects favorably on the Products, Services, and goodwill and reputation of KeepSolid Inc. In your marketing and sales of Products and Services, you will conduct your business in an ethical manner and avoid any business practices that may be perceived as deceptive, misleading, or otherwise improper. You shall not make any false or misleading statement concerning KeepSolid Inc. or any Products or Services in any of your advertising, marketing or promotional materials or in any content. Furthermore, you shall not make any representations, warranties, or guarantees with respect to the specifications, features or capabilities of KeepSolid Inc. Products or Services that are inconsistent with or absent from KeepSolid Inc.’s published product specifications at www.keepsolid.com and other KeepSolid Inc.’s websites. You shall comply with all laws and regulations applicable to your activities in connection with this Agreement, including your marketing and sale of Products and Services.
C. At KeepSolid Inc., we are committed to winning business only on the merits and integrity of our products, services and people. We do not tolerate bribery or corruption, regardless of where we are located or where we do business. “Anti-Corruption Laws” means the anti-corruption or anti-bribery laws in effect in jurisdictions where you market or sell KeepSolid Inc. products or services, and Anti-Corruption Laws specifically include the Foreign Corrupt Practices Act of the United States and, if you conduct business in Canada, the Corruption of Foreign Public Officials Act of 1999.
(i) You agree to comply with the Anti-Corruption Laws. You acknowledge that the Anti-Corruption Laws apply to transactions conducted under this Agreement and prohibit the following acts, and agree that you will not engage in such activities in connection with this Agreement,
(a) offer, promise, or give any financial or other advantage to any persons (public or private): (1) in order to induce a person to improperly perform a relevant function or duty; (2) to reward a person for such improper activity; or (3) where the person knows or believes that the acceptance of the advantage is itself an improper performance of a function or duty, or
(b) offer, promise, or give any financial or other advantage to a public official, either directly or through a third party intermediary, with the intent to obtain or retain business or an advantage in the conduct of business by either (1) influencing the official in his official capacity, (2) inducing such foreign official to do or omit to do any act in violation of his lawful duties, (3) securing any improper advantage; or (4) inducing the official to use his influence with a government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.
(ii) You agree that in the event that you subcontract the provision of any element of this Agreement to any person, or receive any services in connection with your performance of this Agreement from any person (each such person being an "Associated Person"), you shall impose upon such Associated Person Anti-corruption obligations that are no less onerous than those imposed upon you in this Agreement.
(iii) You warrant and represent that neither you nor any of your officers or employees has been convicted of any offense involving bribery, corruption, fraud or dishonesty.
(iv) You shall (a) maintain, throughout the duration of dealings between you and KeepSolid Inc., your own anti-corruption policies and procedures, including without limitation, adequate procedures designed to ensure that you and your Associated Persons comply with the Anti-Corruption Laws; (b) provide a copy of such policies and procedures to KeepSolid Inc. on request; and (c) monitor and enforce such policies and procedures as appropriate. You shall provide information, documentation and reasonable assistance to KeepSolid Inc. and its authorized representatives for purposes of ensuring your compliance with the Anti-Corruption Laws or to support an inquiry or investigation of a suspected violation of those laws.
(v) KeepSolid Inc. may immediately terminate this Agreement or suspend its performance under this Agreement if it has reasonable belief that you have breached, or refused to provide information requested by KeepSolid Inc. to confirm your compliance with, this Section 11.C.
A. IP Indemnity. KeepSolid Inc. shall defend and indemnify you against any third-party claim or action (provided that such third party is not affiliated with you) that the KeepSolid Inc. Products and Services prepared or produced by KeepSolid Inc. and delivered pursuant to this Agreement infringe or misappropriate that third party's U.S. (or, if you are in Canada, Canadian) patent, copyright, trade secret, or other U.S. (or, if you are in Canada, Canadian) intellectual property rights (collectively, “Indemnified Claims”). In addition, if KeepSolid Inc. receives prompt notice of an Indemnified Claim that, in KeepSolid Inc.'s reasonable opinion, is likely to result in an adverse ruling, then KeepSolid Inc. shall, at its option and expense: (a) obtain a right for End-User to continue using such KeepSolid Inc. Products or allow KeepSolid Inc. to continue performing the Services; (b) modify such KeepSolid Inc. Products or Services to make them non-infringing; (c) replace such KeepSolid Inc. Products or Services with a non-infringing substitute; or (d) terminate any allegedly infringing Service and the applicable Service Agreement, and refund any pre-paid fees for such allegedly infringing Service on a pro rata basis for the period of time that such Service has not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing KeepSolid Inc. Products. Notwithstanding the foregoing, KeepSolid Inc. shall have no responsibility for, and no obligation to defend or indemnify you for, any claim resulting or arising from (1) any Third Party Products; (2) any open source software; (3) modifications of the KeepSolid Inc. Products or Services that were not performed by or on behalf of KeepSolid Inc.; (4) the combination, operation, or use of any of the KeepSolid Inc. Products or Services with any Third Party Product (where such combination, operation or use causes the claimed infringement); (5) KeepSolid Inc.’s compliance with any of your written specifications or directions, including the incorporation of any materials, processes, or Third Party Products provided by or requested by you; or (6) any circumstance for which you are required to indemnify any KeepSolid Inc. Party. KeepSolid Inc. shall have no responsibility to defend or indemnify you for any claim that would have been avoided if not for your failure to incorporate free Product updates or upgrades provided by KeepSolid Inc. KeepSolid Inc.’s duty to indemnify and defend under this paragraph is contingent upon: (i) KeepSolid Inc. receiving prompt written notice of the third-party claim or action for which KeepSolid Inc. must indemnify you, (ii) KeepSolid Inc. having the right to solely control the defense and resolution of such claim or action, and (iii) your cooperation with KeepSolid Inc. in defending and resolving such claim or action. KeepSolid Inc. has no obligation to defend or indemnify any End-User or any other third party. This paragraph states your exclusive remedies, and KeepSolid Inc.’s sole liability, for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate KeepSolid Inc. to provide any greater indemnity to you.
B. Your Indemnity to KeepSolid Inc. You shall defend and indemnify the KeepSolid Inc. Parties against any third-party claim or action resulting from or relating to (a) your failure to obtain or maintain any appropriate license, intellectual property rights, or other permissions, regulatory certifications or approvals associated with any product, software, data or other materials you provide, request or direct to be installed or integrated as part of the Products or Services; (b) your misuse or modification of any Products or Services; (c) your combination, operation, or use of any of the Products or Services with any Third Party Product, where such combination, operation or use infringes or misappropriates any intellectual property right or trade secret of a third party; (d) your fraud, misrepresentation, gross negligence, willful misconduct, or breach of any provision of this Agreement; or (e) the provision of your own products, software, or services.
13. LIMITATION OF LIABILITY
A. KEEPSOLID INC. WILL NOT BE LIABLE FOR (A) ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, (B) LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR BUSINESS OPPORTUNITY, (C) BUSINESS INTERRUPTION OR DOWNTIME, (D) LOST OR CORRUPTED DATA OR SOFTWARE, OR (E) LOSS OF USE OF ANY PRODUCTS OR SERVICES. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR ON KEEPSOLID INC.’S WEB SITE TO THE CONTRARY, KEEPSOLID INC. IS NOT RESPONSIBLE FOR INFORMATION OR DATA YOU PROVIDE TO US UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT TO THE CONTRARY. KEEPSOLID INC. DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH IN THIS AGREEMENT.
B. KEEPSOLID INC.’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER SHALL NOT EXCEED THE AGGREGATE DOLLAR AMOUNT YOU PAID TO KEEPSOLID INC. UNDER THIS AGREEMENT FOR SUCH PRODUCTS OR SERVICES THAT CAUSED THE LIABILITY IN THE PREVIOUS 12 MONTHS PRIOR TO SUCH CLAIM FOR LIABILITY. The existence of more than one claim will not increase or otherwise alter these limitations on KeepSolid Inc.'s liability.
C. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES OR LIABILITY, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. YOU AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR KEEPSOLID INC.'S SALE OF PRODUCTS AND SERVICES TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF KEEPSOLID INC. HAS BEEN ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LIABILITIES.
If any Products or Services are resold in violation of the restrictions in this Section 14, KeepSolid Inc. is not obligated to provide any warranty service or technical support. Nothing in this Section 14 shall be construed as authorization by KeepSolid Inc. for you to market or resell Products and Services in violation of Section 1.B.
A. You acknowledge that the Products and Services provided under this Agreement are subject to the export control laws and regulations of the United States, and may also be subject to the export control laws and regulations of the country(ies) in which the Products or Services are manufactured and/or sold (together these laws and regulations are referred to herein as the “Export Laws”). You shall comply with the Export Laws. The Products and Services may not be exported, re-exported, sold, leased or otherwise transferred to restricted end-users or to restricted countries (as defined by the Export Laws). In addition, the Products and Services may not be exported, re-exported, sold, leased or otherwise transferred to, or utilized by, an end-user engaged in any activities related to weapons of mass destruction, including without limitation any activities related to the design, development, production or use of (a) nuclear weapons, materials, or facilities, (b) missiles or the support of missile projects, or (c) chemical or biological weapons. You agree to apply the requirements of Section 14.A. to any agreement you enter with any party for the resale or distribution of the Products or Services provided under this Agreement.
B. You shall indemnify, defend, and hold KeepSolid Inc. harmless from any claims, causes of action, or legal proceedings (including any investigations or proceedings by a governmental agency or entity) arising out of or in connection with your inaccurate representation regarding the existence of an export license or your violation or alleged violation of any applicable Export Laws.
15. DISPUTE RESOLUTION - ARBITRATION. YOU AND KEEPSOLID INC. ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR, WHERE APPLICABLE, TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
A. The parties will attempt to resolve any claim, dispute, or controversy (whether in contract, tort or otherwise, whether pre-existing, present or future, and including statutory, consumer protection, common law, intentional tort and equitable claims) between you and KeepSolid Inc. Parties arising from or relating to any purchase of Products or Services, this Agreement or any Service Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from such written agreements (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), the KeepSolid Inc. Dealers program, the reseller or channel partner program, KeepSolid Inc.’s advertising, or any related purchase (each a "Dispute") through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator.
B. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION administered by the International Institute for Conflict Prevention and Resolution (CPR), the American Arbitration Association (AAA), or JAMS (for Canadian resellers, arbitration will be at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration located at www.adrchambers.com). Arbitration proceedings shall be governed by this Dispute Resolution – Arbitration section and the applicable procedures of the selected arbitration administrator in effect at the time the claim is filed. The arbitration will be limited solely to the individual dispute or controversy between you and KeepSolid Inc.
C. You agree to arbitration on an individual basis. Where enforceable, NEITHER YOU NOR KEEPSOLID INC. SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER RESELLERS OR PARTNERS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (BUT IN NO CASE SHALL THERE BE A CLASS ARBITRATION).
D. The arbitration hearing shall take place in New York City, NY (unless the arbitrator orders otherwise), and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrator shall base its award on the terms of any written Agreement(s), and will follow the law and judicial precedents. The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this Dispute Resolution – Arbitration section.
16. GOVERNING LAW
You agree that this Agreement, any purchase hereunder and any Dispute will be governed by the laws of the State of New York, without regard to its conflict-of-laws rules or to the United Nations Convention on Contracts for the International Sale of Goods.
A. Headings, Interpretation and Language. The section headings used herein are for convenience and reference only and are not to be considered in construing or interpreting this Agreement. All references herein to “Sections” will be deemed references to sections of this Agreement. The words “include” and “including”, and other variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation”. The parties confirm that it is their wish that this Agreement, as well as other documents relating to this Agreement, including all notices, have been and will be drawn up in the English language only.
B. Independent Contractors. No provision of this Agreement will be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between you and KeepSolid Inc., or impose a trust, partnership, or fiduciary duty, obligation, or liability on or with respect to such entities. You and KeepSolid Inc. are independent contractors. Neither party will make any representations or warranties, or assume any obligations, on the other party’s behalf. Neither party is or will claim to be a legal representative, franchisee, agent or employee of the other party.
C. U.S. Government End Users. The software and documentation provided with Products and Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein.
D. No Third Party Beneficiaries. Except as otherwise expressly provided herein, nothing in this Agreement is intended to, or will be deemed or construed to, create any rights or remedies in any third party.
E. Limitation Period. Neither party may institute any action in any form arising out of this Agreement more than two (2) years after the cause of action has arisen, or in the case of non-payment, more than two (2) years from the date of last payment.
F. Assignment; Subcontracting. You shall not assign this Agreement, in whole or in part, whether by operation of law, merger or stock or asset sale, or otherwise, without the prior written consent of KeepSolid Inc. Any attempt to assign this Agreement without KeepSolid Inc.’s written consent will render the purported assignment null and void. KeepSolid Inc. has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that KeepSolid Inc. will remain responsible for the performance of Services under this Agreement.
G. Force Majeure. KeepSolid Inc. shall not be liable to you for any delays or failure to perform any of its obligations under this Agreement during any period in which such performance is delayed or prevented by circumstances beyond its reasonable control including fire, flood, war, embargo, strike, riot or the intervention of any governmental authority.
H. Waiver. Failure by KeepSolid Inc. to enforce any provision of this Agreement will not operate or be construed as a waiver of any future enforcement of that or any other provision of this Agreement. No waiver will be effective against KeepSolid Inc. unless in writing and signed by an authorized representative of KeepSolid Inc.
I. Severability. If any provision of this Agreement is declared or found to be illegal, invalid or unenforceable, then such provision will be stricken or modified to the extent necessary to make it legal, valid, and enforceable while preserving the parties’ original intent to the maximum extent possible. The remaining provisions of this Agreement will remain in full force and will not be terminated.
J. Entire Agreement. This Agreement (including all online terms referenced herein) constitutes the entire integrated agreement between you and KeepSolid Inc. regarding its subject matter, and supersedes all prior or contemporaneous, written or oral understandings, communications or agreements between you and KeepSolid Inc. regarding such subject matter. This Agreement may not be altered, supplemented or amended by you via the use of any other document(s) unless otherwise agreed to in a separate written agreement signed by an authorized representative of KeepSolid Inc. Any use of your pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms set forth therein that are in addition to, inconsistent or in conflict with the terms of this Agreement shall be given no force or effect.
K. Agreement Updates. KeepSolid Inc. reserves the right to update this Agreement (including all applicable terms referenced herein) at any time, effective upon posting an updated version of the Agreement to the KeepSolid Inc. website. You shall monitor the revision date/version number, and any change to its posted date/version number will be deemed notice to you that the terms have been updated. However, subject to Section 10.C., your rights and obligations with respect to any particular Products or Services will be as provided in the version of this Agreement executed by you or available to you at the time of your purchase of such Products or Services or, when applicable, at the time of renewal of any Services or software license.
L. Notices. Any notice to KeepSolid Inc. relating to this Agreement must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address below or to such other address (including facsimile or e-mail) as specified by KeepSolid Inc. in writing, and will be effective upon receipt. Notice from KeepSolid Inc. may be sent to you by facsimile telecommunication or electronic mail to the address and contact information provided by you to KeepSolid Inc. in connection with this Agreement.
3220 Arlington Ave. Suite 5A, New York, 10463, NY