SecureValue Partner Agreement
HIS CONTRONEX, INC. SECUREVALUE PARTNER AGREEMENT (this “Agreement”) forms a legally binding agreement and is made and entered into by Contronex, Inc., 660 Ninth Street North, Naples, FL 34102, the contracting Party, also referred to as “Contronex,” “we,” “us,” or “our”) and you, the entity you represent (“SECUREVALUE Partner”). You represent and warrant to us that you are lawfully able to enter into contracts. If you are an individual entering into this Agreement on behalf of an entity, such as the company you work for, you represent and warrant that you have the legal authority to bind that entity to this Agreement.
In consideration of the mutual promises contained in this Agreement, Contronex and SECUREVALUE Partner agree to all terms of the Agreement effective as of the Effective Date.
- Contronex is a cloud commerce marketplace that distributes cloud-based subscription services.
- Contronex has developed the Contronex SECUREVALUE Partner Program and desires to promote, market, and sell Contronex Products.
- SECUREVALUE Partner desires to obtain the right to act as an independent reseller of Contronex Products to promote, market, and sell Contronex Products as set forth herein.
1. SECUREVALUE Partner Appointment.
1.1. Appointment. Under the terms and subject to the conditions set forth herein, Contronex hereby appoints SECUREVALUE Partner as an independent, nonexclusive authorized reseller or, in the case of an MSP, a provider of Contronex Products, and SECUREVALUE Partner hereby accepts such appointment.
1.2. Promotion. SECUREVALUE Partner will use reasonable efforts to promote, market, and sell Contronex Products to Customers. SECUREVALUE Partner will make no false or misleading statements regarding Contronex Products, Contronex, or any Vendor. Further, SECUREVALUE Partner will make no warranty regarding Contronex Products, or representation on behalf of Contronex or any other Vendor. SECUREVALUE Partner will at all times perform its activities hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by Contronex. SECUREVALUE Partner will: (a) conduct business in a manner that reflects favorably at all times on Contronex Products and the good name, goodwill, and reputation of Contronex and all other Vendors; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Contronex or any other Vendor, Contronex Products, and the public; (c) make no false or misleading representations with respect to Contronex or any other Vendor or the Contronex Products; and (d) make no representations on behalf of Contronex or any other Vendor with respect to Contronex Products.
1.3. Automated Payment. Except as expressly authorized by Contronex in writing, SECUREVALUE partner must provide Contronex with a valid automated payment method as a condition of using the Contronex Products.
1.4. Compliance with Applicable Laws. SECUREVALUE Partner shall comply, and shall ensure that any third parties performing any activities related to the Contronex Products on SECUREVALUE Partner’s behalf comply, with all Applicable Laws and shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Contronex, Contronex Products, Customers or to the public. SECUREVALUE Partner represents and warrants that SECUREVALUE Partner’s sales activities and receipt of any fees under this Agreement are consistent with Applicable Laws. SECUREVALUE Partner shall promptly inform Contronex in writing upon becoming aware of any violations of Applicable Laws in connection with this Agreement. Without limiting the generality of SECUREVALUE Partner’s obligations under this Agreement, SECUREVALUE Partner hereby represents and warrants that:
(a) To the extent in violation of any Applicable Laws, no portion of any fees paid or payable to SECUREVALUE Partner will be paid to, or accrued directly or indirectly for the benefit of, any person, firm, corporation or other entity, other than SECUREVALUE Partner.
(b) SECUREVALUE Partner has not, and will not at any time, directly or indirectly, pay, offer, give or promise to pay or give, or authorize the payment of, any monies or any other thing of value to any of the following, in violation of any Applicable Laws: (i) Government Official; (ii) other person acting in an official capacity for or on behalf of any Government Official; (iii) other person, firm, corporation or other entity at the suggestion, request or direction of, or for the benefit of, any Government Official; (iv) other person, firm, corporation or other entity with knowledge that some or all of those monies or other thing of value will be paid over to any Government Official; or (v) Close Family Member of any of the foregoing. It is the intent of the parties hereto that no payments or transfers of anything of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage.
(c) Neither it, nor any of its employees, directors, officers, agents or affiliates are listed on, nor affiliated with, any entity or person that is listed on the U.S. Commerce Department’s Denied Persons List, Entity List, or Unverified List, the U.S. State Department’s Nonproliferation Sanctions List, the U.S. State Department’s Arms Export Control Act Debarred List, or the U.S. Treasury Department’s List of Specially Designated Nationals, Foreign Sanctions Evaders List, Sectoral Sanctions Identifications List, Palestinian Legislative Council List, List of Foreign Financial Institutions Subject to Part 561, and Blocked Persons List (collectively, the “Restricted Party Lists”). SECUREVALUE Partner further confirms that it does not have a business relationship with any person or entity identified on any of the Restricted Party Lists.
(d) SECUREVALUE Partner shall comply with all Applicable Laws related to import, sanctions, anti-boycott, export, and re-export control laws that apply to Contronex Products and any related products or services, as well as end-user, end-use, and destination restrictions issued by national governments, including all such laws and regulations that apply to a U.S., U.K., or EU company such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use Contronex Products. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by United Nations Security Council, the U.S. Government (e.g. the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. Contronex Products are subject to the EAR and thus may not be exported, re-exported or downloaded by any person in any controlled countries under the EAR. Moreover, Contronex Products may not be exported, re-exported or downloaded by any person or entity subject to United States or international sanctions, regardless of location. SECUREVALUE Partner should consult www.bis.doc.gov and https://home.treasury.gov/policy-issues/office-of-foreign-assets-control-sanctions-programs-and-information for the Restricted Party Lists that SECUREVALUE Partner must check before engaging in discussions with a potential Customer. SECUREVALUE Partner agrees that these export control laws govern use of Contronex Products and that no data, information, software program and/or materials resulting from Contronex Products or related products or services, will be exported, directly or indirectly, in violation of these laws.
1.5. All Rights Reserved. All rights not specifically granted by Contronex hereunder are reserved by Contronex. Without limiting the generality of the foregoing, Contronex reserves the right to advertise, promote, market and sell Contronex Products, and to appoint third parties to advertise, promote, market and resell Contronex Products worldwide, including, without limitation, within the Territory.
2. Customer Agreement, Usage, and Information.
2.1. Customer Agreement. Prior to selling any Contronex Products to a Customer, SECUREVALUE Partner must have entered into an end user agreement with the Customer that:
(a) provides Contronex with protection concerning proprietary rights, warranty disclaimers, limitations of liability and restrictions that is at least as stringent as the protection provided to Contronex under this Agreement;
(b) obtains the Customer’s consent to the Vendors’ required terms and conditions, which may be requested for each vendor (“Contronex Products – End User License Agreements”), except to the extent SECUREVALUE Partner is acting as an MSP and a particular Vendor allows or requires the MSP, instead of the Customer, to accept the terms and conditions, and;
2.2. Usage and Information. SECUREVALUE Partner’s right to sell Contronex products in the Territory is contingent on SECUREVALUE Partner’s compliance with the following additional terms:
(a) SECUREVALUE Partner will use commercially reasonable efforts to ensure that each Customer uses Contronex Products only up to the number of licenses purchased by the Customer or within other limitations on purchase (“Customer Authorized Usage”);
(b) SECUREVALUE Partner will use commercially reasonable efforts to ensure that Customer usage of Contronex Products is terminated upon the cancellation or expiration of the Customer’s subscription or other right to use Contronex Products or the transfer of such subscription or right away from SECUREVALUE Partner;
(c) SECUREVALUE Partner will provide Contronex all necessary information about the Customer and the Customer Authorized Usage as required. Such information will include, without limitation, the name and location of Customer and the Customer Authorized Usage.
3. Quoting, Ordering and Technical Support.
3.1. Quoting and Ordering. SECUREVALUE Partner is solely responsible for all quoting and ordering for its customers. Contronex reserves the right to reject a customer order.
3.2. Customer Support. SECUREVALUE Partner is solely responsible for providing support for its Customers for Contronex Products. Where a customer support issue requires Contronex involvement, SECUREVALUE Partner is responsible for contacting Contronex.
3.3. Contronex Technical Support to SECUREVALUE Partner. Subject to the terms and conditions of this Agreement, including, without limitation, the payment of all relevant fees and charges, Contronex will provide to SECUREVALUE Partner reasonable technical support for Contronex Products. Such support will be provided via email, telephone or other methods adopted by Contronex.
3.4. Customer Contact. In the event that a Customer of SECUREVALUE Partner contacts Contronex for customer support, in general or for the Contronex Product at issue, Contronex may: (a) direct the Customer to contact SECUREVALUE Partner directly, or (b) take other measures to address the situation in a commercially reasonable manner.
4. Subscription Term.
4.1. Term. Subscription Terms for Contronex Products set forth in the Contronex MSP Agreement. For Contronex Products ordered on a month-to-month basis, the Subscription Term begins on the first day of the calendar month following the order date and runs for the designated term (“Initial Term”).
4.2. Partial Month. Any fees for subscription products or services provided for a partial month prior to the beginning of the Initial Term are prorated based on the number of days remaining in the calendar month.
4.3. Renewal. The Subscription Term automatically renews for successive terms equal to the Initial Subscription Term under the same conditions and financial commitments (“Renewal Term”) unless cancelled prior to the beginning of the Renewal Term, or upon expiration or cancellation of this Agreement.
4.4. Additional Licenses. Any fees for licenses added to an existing subscription during the Initial Term or a Renewal Term shall be prorated based on the time remaining in the existing Subscription Term, such that the term for the additional licenses co-terminates with the existing Subscription Term.
5. Prices, Billing, Taxes, Charges.
5.1. Prices to SECUREVALUE Partner. Fees for Contronex Products are set forth in the Contronex MSP Agreement. SECUREVALUE Partner agrees to pay Contronex the current fees for the products/services it orders using one of the payment methods Contronex supports. Contronex reserves the right to increase the pricing of, discontinue, or reduce the availability of any or all Contronex Products and/or services set forth in the Contronex MSP Agreement upon thirty (30) days’ notice provided to SECUREVALUE Partner. Contronex reserves the right to decrease prices or add new Contronex Products or Technical Support Services without notice.
5.2. Prices to Customers. Contronex may provide Suggested Retail Prices for Contronex Products, but the prices SECUREVALUE Partner charges its Customers for Contronex products are in the sole discretion of SECUREVALUE Partner.
5.3. Customer Billing and Collections. SECUREVALUE Partner is solely responsible for billing all of its customers and collecting Customer payments. SECUREVALUE Partner acknowledges that its payment obligations to Contronex must be satisfied in full, regardless of the billing or collections status of any of SECUREVALUE Partner’s Customers.
5.4. Invoicing. Contronex will bill SECUREVALUE Partner on the first business day of the calendar month for: (a) all applicable recurring fees, and (b) any non-recurring fees incurred during the prior month. Such non-recurring fees may include, but are not limited to, any prorated amount for a partial term of a new service, overage of license usage or licenses added to an existing Customer account during the Subscription Term.
5.5. Automatic Payments. Unless another payment arrangement is approved by Contronex in advance and in writing, SECUREVALUE Partner authorizes Contronex to automatically charge its payment method when payment is due. SECUREVALUE Partner agrees that it will not dispute Contronex’ recurring billing with SECUREVALUE Partner’s financial institution so long as the transaction corresponds to the terms of the order.
5.6. Disputes. SECUREVALUE Partner may dispute a billing discrepancy within 10 calendar days of the invoice date. Disputes can be submitted by emailing Contronex at email@example.com. Disputes must include the invoice number and an explanation of the dispute. Contronex will use commercially reasonable efforts to respond to the dispute within seven (7) business days. Under no circumstances will SECUREVALUE Partner withhold payment to Contronex for any undisputed amount.
5.7. Effect of Cancellation. Canceling during a Subscription Term prevents Contronex Products from automatically renewing for an additional term. Contronex does not issue partial refunds or credits for the remaining portion of the then-current Subscription Term.
5.8. Late Payments. Amounts not paid to Contronex when due will accrue interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Upon the nonpayment of any amounts due, Contronex reserves the right to: (a) suspend Contronex Product(s) to SECUREVALUE Partner and/or its Customers; and/or (b) cease accepting new orders for Contronex Products.
5.9. Taxes. Each party is responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All amounts due and payable to Contronex hereunder will be exclusive of applicable charges, fees, levies, imposts, duties, tariffs or other assessments imposed by or payable to any federal, state, local or foreign tax or governmental authority, including without limitation, sales, use, goods, services, value added, transfer, customs, personal property, stamp duty, excise, withholding and other obligations of the same or similar nature (individually and collectively, “Taxes”) based or measured thereon. SECUREVALUE Partner will be responsible for the payment of all such Taxes, excluding Taxes based on Contronex’ income, unless SECUREVALUE Partner provides Contronex with an appropriate certificate of exemption from such taxes. SECUREVALUE Partner will indemnify and hold Contronex harmless from any obligation to pay to any governmental entity any employer statutory Taxes, withholding Taxes, social security Taxes or other Taxes in connection with SECUREVALUE Partner’s performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting therefrom.
6. Term and Termination.
6.1. Term. The initial term of this Agreement will commence on the Effective Date and will continue for a period of one year. Thereafter, this Agreement will automatically renew for successive one-year terms unless either party provides written notice of its intention not to renew the Agreement at least sixty (60) days prior to the end of the then-current term. Unless otherwise terminated as set forth herein, the initial term and each applicable renewal term will constitute the “Term” of this Agreement.
6.2. Material Breach. Either party may terminate this Agreement upon written notice to the other party if the other party breaches any material term or condition of this Agreement, and such breach is not cured to the non-breaching party’s satisfaction within thirty (30) days of the written notice specifying the breach.
6.3. Insolvency. This Agreement will terminate automatically in the event that: (a) a receiver is appointed for SECUREVALUE Partner or its property; (b) SECUREVALUE Partner makes an assignment for the benefit of its creditors; (c) any proceedings are commenced by, for, or against SECUREVALUE Partner under any bankruptcy, insolvency, or debtor’s relief law for the purpose of seeking a reorganization of SECUREVALUE Partner’s debts, and such proceeding is not dismissed within sixty (60) calendar days of its commencement; or (d) SECUREVALUE Partner is liquidated or dissolved.
6.4. Other. Either party may terminate and cancel this Agreement immediately by notice to the other if: (a) the other party ceases to carry on its business; (b) Contronex decides to terminate pursuant to Section 15.1 (Assignment); or (c) Contronex is required to terminate pursuant to any license terms of a third-party Vendor.
6.5. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement, SECUREVALUE Partner will immediately cease all marketing, promotion, sales and use of Contronex Products.
6.6. Additional Provisions Applicable to Termination. If termination of this Agreement is based on Material Breach (Section 6.2) by SECUREVALUE Partner, Insolvency (Section 6.3) of SECUREVALUE Partner, or the cessation of SECUREVALUE Partner’s business under Section 6.4(a): (a) SECUREVALUE Partner agrees that Contronex shall be expressly permitted to continue to provide Contronex Products directly to Customers; (b) SECUREVALUE Partner shall not be entitled to any further payment in connection with Contronex Products under this Agreement; and (c) SECUREVALUE Partner agrees to cooperate with Contronex to enable the continuation of service to Customers, including, without limitation, by assigning Customer Agreements to Contronex, communicating such assignment, and providing Contronex with copies of relevant communications.
6.7. No Liability for Termination. Neither party will be liable for any damages arising out of the termination of this Agreement in accordance with this Section 6. SECUREVALUE Partner acknowledges and agrees that Contronex is not responsible for SECUREVALUE Partner’s dependence on revenues hereunder, and SECUREVALUE Partner agrees to release, hold harmless and indemnify Contronex from any and all claims and liabilities relating to SECUREVALUE Partner’s revenues, financial forecasts or economic value that may result from any termination by Contronex of this Agreement as permitted hereunder.
6.8. Continuing Payment Obligation. Expiration or termination of this Agreement does not relieve SECUREVALUE Partner of payment obligations incurred during the Term of the Agreement. Contronex will invoice SECUREVALUE Partner, according to its regular billing schedule, for all outstanding fees. SECUREVALUE Partner shall remit payment by the invoice due date.
6.9. Survival. Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature would ordinarily be expected to survive the expiration or termination of this Agreement will remain in effect after the termination or expiration of this Agreement.
7. Marketing, Communications.
7.1. Marketing Materials. Contronex may make available to SECUREVALUE Partner marketing materials including, but not limited to, user manuals, training materials, documentation and other materials describing Contronex Products (“Marketing Materials”). During the Term, Contronex hereby grants SECUREVALUE Partner a non-exclusive, revocable, non-transferable right and license to use, reproduce, and distribute the Marketing Materials, solely for the purpose of promoting, marketing, and providing Contronex Products to current and prospective Customers.
7.2. Communications. SECUREVALUE Partner acknowledges that Contronex may from time to time send electronic communications, such as newsletters, service alerts, and information, to SECUREVALUE Partner, and SECUREVALUE Partner hereby consents to receiving such communications, and will not attempt to opt-out of such communications.
7.3. Press Releases. Either party may issue a press release, with the non-issuing party’s prior written consent, which may not be unreasonably conditioned, delayed or withheld.
8. Proprietary Rights.
8.1. Contronex Products. Each Vendor retains all right, title, and interest in Contronex Product(s) it supplies. Contronex Products remain the proprietary business asset of the supplying Vendor.
9.1. Definition. “Trademarks” means all names, marks, logos, designs, trade dress and other brand designations used by any Vendor or Contronex in connection with their respective products and services. Except as set forth in Section 9.2 (License), SECUREVALUE Partner is granted no right, title or license to, or interest in, any of the Trademarks. SECUREVALUE Partner acknowledges and agrees that any use of the Trademarks by SECUREVALUE Partner will inure to the sole benefit of Contronex or the relevant Vendor.
9.2. License. Contronex hereby grants SECUREVALUE Partner a license to use the Trademarks solely in connection with its advertising, promotion and resale of Contronex Products. SECUREVALUE Partner acquires no right, title, or interest in the Trademarks other than the foregoing limited license.
9.3. Ownership. Contronex and the Vendors of each Contronex Product own and retain all proprietary rights in the Trademarks. SECUREVALUE Partner agrees not to take any action to contest Contronex’ or any Vendor’s ownership of the Trademarks, or use, employ, or attempt to register in any country any trademark, service mark, or trade name that is confusingly similar to the Trademarks, including the registration of any Internet domain names using any Trademark or product name or common misspelling or variant thereof, unless authorized in advance and in writing by Contronex. If SECUREVALUE Partner acquires any rights in any of the Trademarks or any marks, names, designs or logos similar thereto, in any country in the world, by operation of law or otherwise, it will immediately, at no cost or expense to the Vendor or Contronex, assign such rights to the relevant Vendor(s) or Contronex along with all associated goodwill, and take any reasonable action, including the execution of documents, to evidence such assignment.
10. Confidential Information.
10.1. Definition. “Confidential Information” means information that is disclosed or otherwise made available by either party under this Agreement, or to which the other party has access under this Agreement, that the receiving party knows or should reasonably be expected to know is proprietary or confidential. It does not include information that is in the public domain or later becomes publicly available through no fault of the receiving party or that was or later is rightfully developed or obtained by the receiving party from independent sources free from any duty of confidentiality.
10.2. The Receiving Party’s Obligations. A party receiving Confidential Information will restrict its use to purposes necessary for the performance of the receiving party’s obligations or the exercise of the receiving party’s rights under this Agreement. During the term of this Agreement and thereafter, the receiving party will safeguard against the disclosure of the Confidential Information to third parties using the same degree of care to prevent disclosure as it uses to protect its own information of like importance, but at least reasonable care. The receiving party will limit disclosures of Confidential Information to its employees and professional advisors to those necessary to carry out this Agreement. The receiving party will inform such individuals of the limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information imposed by this Agreement and will be responsible for any breach. Except as expressly authorized in this Agreement, the receiving party will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of the disclosing party. The receiving party will notify the disclosing party immediately after learning of or having reason to suspect any breach of this Section 10. In the event that the receiving party is required to disclose Confidential Information pursuant to law, to the extent permissible under the applicable law, the receiving party will notify the disclosing party of the required disclosure with sufficient time for the disclosing party to seek relief, will cooperate with the disclosing party in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
10.3. Return of Confidential Information. Upon the expiration or earlier termination of this Agreement, the receiving party will immediately terminate all use of and return to the disclosing party all Confidential Information and all copies thereof or, at the disclosing party’s instruction, will certify in writing that it has destroyed the same.
11. Disclaimer of Warranties.
Contronex agrees to assign to SECUREVALUE Partner and/or SECUREVALUE Partner’s Customers any of the Vendors’ warranties received by Contronex and intended for end customers with respect to Contronex Products. SECUREVALUE PARTNER AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE EXTENT PERMITTED BY LAW, CONTRONEX DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES, WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY, NONINFRINGEMENT, CONDITION OR QUALITY OF ANY CONTRONEX PRODUCTS, OR THE MARKETING MATERIALS. SECUREVALUE PARTNER RECEIVES CONTRONEX PRODUCTS, OR THE MARKETING MATERIALS FROM CONTRONEX “AS-IS.” CONTRONEX SHALL NOT BE LIABLE TO SECUREVALUE PARTNER OR ANY CUSTOMER FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY ANY CONTRONEX PRODUCT, OR THE MARKETING MATERIALS OR BY THE CUSTOMER OR ANY VENDOR THEREOF, OR BY ANY REPAIR, SERVICE OR ADJUSTMENT THERETO OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF, OR FOR ANY LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED. SECUREVALUE PARTNER ACKNOWLEDGES THAT DISSATISFACTION WITH ANY CONTRONEX PRODUCTS, OR THE MARKETING MATERIALS WILL NOT RELIEVE SECUREVALUE PARTNER OF ANY OBLIGATION UNDER THIS AGREEMENT. THIS SECTION SHALL APPLY TO SECUREVALUE PARTNER AND ANY OF SECUREVALUE PARTNER’S CUSTOMERS. In addition, Contronex makes no representation or warranty as to the availability or continuation of any specific Contronex Product.
12.1. Indemnification by SECUREVALUE Partner. SECUREVALUE Partner will indemnify, defend and hold harmless Contronex from and against any proceedings, claims, demands, expenses (including reasonable attorneys’ fees) or damages of any nature arising out of or in connection with: (a) SECUREVALUE Partner’s violation of the rights and licenses granted herein; (b) any acts or omissions of SECUREVALUE Partner’s Customers and/or prospective Customers; or (c) SECUREVALUE Partner’s misrepresentations relating to Contronex, its products and services, or this Agreement, regardless of the form of action.
12.2. Additional Obligations Regarding Indemnification. Each party will provide the other party with prompt written notice of any claim, demand or action for which it is seeking or may seek indemnification hereunder. The indemnifying party will have the right to control the defense; provided that, it will: (a) keep the indemnified party fully informed concerning the status of any litigation, negotiations or settlements of any such claim, demand or action; and allow the indemnified party, at its own expense, to participate in litigation, negotiations and settlements with counsel of its own choosing; and provided further that, the indemnifying party will not have the right to settle any claim without the indemnified party’s written consent if such settlement arises from or is part of any criminal action, suit or proceeding, or contains a stipulation to, or an admission or acknowledgement of, any wrongdoing (whether in tort or otherwise) on the part of the indemnified party.
13. Limitation of Liability.
EXCEPT WITH RESPECT AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, CONTRONEX’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, IN TORT, OR UNDER ANY OTHER LEGAL THEORY, IS LIMITED TO THE AMOUNT PAID BY SECUREVALUE PARTNER HEREUNDER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CONTRONEX BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, CONTRONEX PRODUCTS, OR THE MARKETING MATERIALS (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF CONTRONEX HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, SUCH LIMITATION OF LIABILITY SHALL NOT LIMIT CLAIMS FOR INDEMNIFICATION PURSUANT TO SECTION 12 (INDEMNIFICATION).
14. Security and Data Privacy.
14.1. Without limiting Section 12 or any other provisions of this Agreement, Contronex will implement reasonable and appropriate measure designed to help secure your data or other information against accidental loss, access, or disclosure.
15.1. Assignment. Contronex is entering into this Agreement with SECUREVALUE Partner based in substantial part on the unique attributes that SECUREVALUE Partner and its business offer; therefore, neither this Agreement nor any of SECUREVALUE Partner’s rights or obligations hereunder may be assigned, subcontracted or otherwise transferred (by merger, operation of law or in any other manner) by SECUREVALUE Partner without the prior written consent of Contronex, which will not be unreasonably withheld. Any attempted assignment, subcontract or other transfer of this Agreement or any of SECUREVALUE Partner’s rights or obligations hereunder in contravention of this Section 14.1 will be void ab initio and will be considered a material breach of this Agreement. This Agreement will be binding upon and inure to the benefit of the parties and their successors and permitted assigns. Contronex may assign this Agreement to a successor in interest to all or substantially all of its business or assets.
15.2. Governing Law. The Governing Law, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
15.3. Disputes. Any dispute arising under or relating to this Agreement will be adjudicated in the Governing Institutions, and you consent to the jurisdiction and venue of the Governing Institutions, subject to the additional provisions below.
15.4. Equitable Relief. Each party acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of the other party’s Confidential Information or intellectual property, or use of the Trademarks, will result in irreparable harm for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, the non-breaching party will be entitled to seek injunctive or other equitable relief, as appropriate, without posting any bond. If the non-breaching party seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement involving an unauthorized use of its Confidential Information or intellectual property, or misappropriation of the Trademarks, the other party agrees that it will not allege in any such proceeding that the non-breaching party’s remedy at law is adequate. If the non-breaching party seeks any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will it be deemed to have made an election of remedies.
15.5. Attorney and Expert Fees. The prevailing party in any controversy arising out of this Agreement will be entitled to recover its reasonable attorney and expert fees and costs, in addition to any other relief to which it may be entitled.
15.6. Relationship of the Parties. This Agreement does not make either party the agent of the other, or create a partnership, joint venture or similar relationship between the parties. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to this Agreement, each party will be acting as an independent contractor.
15.7. Inspection. In the event Contronex is audited or reasonably believes that SECUREVALUE Partner is not in compliance with this Agreement, including, without limitation, with respect to the Customer Authorized Usage, SECUREVALUE Partner will permit Contronex or its representatives to review SECUREVALUE Partner’s facilities and records to ensure compliance with this Agreement. Contronex will give SECUREVALUE Partner at least five (5) days’ advance notice of any such inspection and will conduct any such inspection during normal business hours in a manner that does not interfere with SECUREVALUE Partner’s normal operations. Contronex undertakes to keep any information accessed during such inspection strictly confidential and to use such information only for compliance purposes. Contronex shall not provide such information to any third party and shall not use such information to directly approach or deal with any of SECUREVALUE Partner’s Customers.
15.8. Notices. All notices and consents provided for hereunder will be in writing and will be delivered (a) in person, (b) by a nationally recognized next day courier service, (c) by first class registered or certified mail, postage prepaid, (d) by any other means described in this Agreement, or (e) by electronic mail to the address of the party specified in this Agreement or such other address as either party may specify in writing. Notices shall be effective upon the earliest of: (x) receipt by the party to which notice is given, (y) on the fifth day following mailing, or (z) on the day after sending such notice by overnight courier. The parties’ current addresses are as follows:
If to Contronex:
660 Ninth Street North
Naples, FL 34102
Attn: Chief Financial Officer
If to SECUREVALUE Partner:
We may provide any notice to you under this Agreement by: (i) providing notice as described above to the name and address on this Agreement, if applicable; (ii) posting a notice on contronex.com or any successor website thereto; or (iii) sending a message to the email address then associated with your account. Notices we provide by posting to contronex.com will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
15.9. Waiver. No failure by either party to take any action or assert any right hereunder will be deemed a waiver of such right. Any waiver must be in writing.
15.10. Severability. If any provision of this Agreement is held unenforceable or invalid under any applicable law or court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.
15.11. Force Majeure. If either party is unable to perform any of its obligations under this Agreement because of natural disaster, actions or decrees of governmental bodies, communications line failure not the fault of the affected party, or other event beyond the reasonable control of the affected party (a “Force Majeure Event”), the party who has been so affected will immediately give notice to the other party and will use commercially reasonable efforts to resume performance. Upon receipt of such notice, all obligations under this Agreement will be immediately suspended for the duration of the Force Majeure Event. Notwithstanding the foregoing, payment obligations shall never be excused or suspended for a Force Majeure Event.
15.12. Entire Agreement. This Agreement (including any and all Specific Product Terms) constitutes the complete and exclusive statement of the agreement between the parties, which supersedes all prior and concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
15.13. Amendments. Except as provided herein, no amendments, modifications, or supplements to this Agreement will be binding unless they are in writing and signed by both parties hereto.
15.14. Language. Unless otherwise agreed in writing, all communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of this Agreement will control if there is any conflict.
15.15. No Third-Party Beneficiaries. Except as otherwise set forth in this Agreement, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
16.1 “Account Country” is the country associated with your account. If you have provided a valid tax registration number for your account, then your Account Country is the country associated with your tax registration. If you have not provided a valid tax registration, then your Account Country is the country where your billing address is located, except if the credit card associated with your account with Contronex that is issued in a different country and your contact address is also in that country, then your Account Country is that different country.
16.2 “Applicable Laws” means all applicable international, national, state, regional, and local laws, regulations, ordinances, and judicial administrative orders, including without limitation: (i) the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”); (ii) trademark and copyright laws; (iii) ICANN policies and procedures governing domain names; (iv) the U.S. Foreign Corrupt Practices Act of 1977, as amended, and other applicable anti-corruption laws, including the UK Bribery Act and those in the Territory; (v) data protection laws applicable in the Territory; and (vi) the U.S. Export Administration Regulations (15 C.F.R. Parts 730-774), and any other applicable export control laws, rules, regulations or orders.
16.3 “Close Family Member” means the spouse, the individual’s and the spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, first cousins, the spouses of any of these people, or any other individuals who share the same household.
16.4 “Customer” is a person or entity that purchases or may purchase Contronex Products or other information technology products or services for its own internal use. “Customer” includes both a company and its individual end users.
16.5 “EAR” means the United States Export Administration Regulations.
16.6 “Governing Law” and “Governing Institution” means, this Agreement shall be construed and enforced in accordance with the laws of the State of Florida.
16.7 “Government Official” means anyone that is, or works for or on behalf of a (i) national, regional, municipal or local government; (ii) department, agency, subsidiary or branch of a national, regional, municipal or local government; (iii) government-owned or government-controlled company (for example, a state-owned oil company, bank, airline, hospital, university, etc.); (iv) subsidiary of a government-owned or government-controlled company; (v) public international organization (for example, the International Monetary Fund, the United Nations, the World Bank, the World Trade Organization, etc.); (vi) member of a royal family; or (vii) political party, political party official, or candidate for political office.
16.8 “Managed Service Provider” or “MSP” means a company that delivers network, application, system, and e-management services across a network to third-party organizations for such organizations’ own internal business use.
16.9 “Contronex Products” are technology products and services sold by Contronex. The current list of Contronex Products and product descriptions are available on the Contronex website or by request.
16.10 “Specific Product Terms” means the license terms and conditions for specific Contronex Products, which are provided upon request (“Contronex Products – End User License Agreements”).
16.11 “Territory” means worldwide.
16.12 “Vendor” is a supplier of any product or service sold through by Contronex. Contronex is a Vendor to the extent it supplies any Contronex Product.