This Master SaaS Reseller Agreement (“Agreement”) is entered into between Carrier Corporation, a Delaware corporation with offices at 13995 Pasteur Blvd., Palm Beach Gardens, FL 33418 (“Carrier”) and the customer identified in the applicable Order Form (“Reseller”). (collectively, the “Parties”, or individually, a “Party”). This Agreement, together with the Privacy Notice and Terms and Conditions of Use for the Service, governs and is incorporated into each Order Form (as defined below) entered hereunder between the Parties. This Agreement is effective as of the effective date set forth in the applicable Order Form as well as any future purchases made by Reseller that reference this Agreement.
This Agreement, including any Order Forms, sets forth the basic terms and conditions under which the Service (as defined below) and Professional Services (as defined below) will be available for resale by Reseller.
1. Definitions
Capitalized words used herein and not otherwise defined shall have the meanings ascribed to them in the Agreement.
1.1. “Affiliate” of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
1.2. “Authorized User” means an employee or contractor of Reseller or its Affiliate(s) who is authorized to access the Service.
1.3. “Customer” means an individual or legal entity identified by Reseller in the Order Form to which Reseller has re-sold and will have access to the Service.
1.4. Customer Data” means any data of any type that is submitted, uploaded or imported to the Service by or on behalf of Customer (including from Third Party Platforms).
1.5. “Data Privacy Laws” means applicable national, federal, state and provincial laws relating to data privacy, the protection of personal information or data, and the cross-border transfer of personal information or data, including, without limitation, the laws and regulations of the European Union member states under the General Data Protection Regulation (“GDPR”) and any European Union law or regulation that may be enacted to implement or replace the GDPR.
1.6. “Documentation” means the technical user documentation provided with the Service.
1.7. “Customer Facility” means the location identified in the Order Form where the Service will be employed.
1.8. “Order Form” means a mutually accepted, formal, transaction document, such as a quote, the invoice, or an order form, as applicable, that includes some or all of the following information: the name of the Reseller, Reseller’s address and billing information, the length of the Term (if applicable), the fees due from Reseller, if applicable, and any maintenance and support being purchased (if applicable). It may also include the name of the Customer who will employ the Service and location of the Customer Facility where the Service will be employed.
1.9. “Non-Carrier Applications” means online applications and offline software products provided by entities or individuals other than Carrier and are clearly identified as such, and that interoperate with the Services.
1.10. “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.11. "Privacy and Data Usage Notice" means the Privacy and Data Usage Notice of Carrier as published on https://www.carrier.com/carrier/en/worldwide/legal/privacy-notice/ and as may be amended from time to time by Carrier.
1.12. “Professional Services” means professional consulting services as specified in an applicable Order Form.
1.13. “Reseller” means a person or legal entity that accepts this Reseller Agreement in the dealer portal.
1.14. “Reseller Data” means any data of any type that is submitted, uploaded or imported to the Service by or on behalf of Reseller (including from Third Party Platforms).
1.15. “Sensitive Personal Data” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); or (iii) any other Personal Data of a Data Subject deemed to be in a “special category” as identified in the GDPR or any successor laws.
1.16. “Service” means the services to be provided to Reseller as specified in the Order Form(s) including access and use of Carrier’s or Carrier’s Affiliate(s) software products, features, platforms (as an API and/or web-based digital user interface), central software application environment and associated infrastructure and communication services, and associated user documentation and supplemental materials herein.
1.17. “Service Level” means the quantitative performance standards for the Service, as further specified in the Service Level Agreement.
1.18. “Service Level Agreement” means the Service Level Agreement applicable to the Service as published by Carrier on https://abound.carrier.com/en/worldwide/legal-agreements/ and as may be amended from time to time by Carrier.
1.19. “Service Security Standards” means the security settings applicable to the Service as published by Carrier at https://abound.carrier.com/en/worldwide/legal-agreements/ and as may be amended from time to time by Carrier.
1.20. “Terms and Conditions of Use” means the https://abound.carrier.com/en/worldwide/legal-agreements/ of the Service as published by Carrier and as may be amended from time to time by Carrier.
1.21. “Third Party Platforms” means any software, software-as-a-service, data sources or other products or Service not provided by Carrier that are integrated with or otherwise accessible through the Service.
2. Services
2.1. Carrier Obligations
2.1.1. Provisions of the Service.
Subject to the terms and conditions of this Agreement and the Order Form, and upon Reseller’s payment of the applicable fees, Carrier hereby appoints Reseller, and Reseller hereby accepts, for the Term (unless terminated as provided in this Agreement), a non-exclusive, non-transferable, appointment to act as a Carrier approved reseller of the Services.
2.1.2. Access to the Service.
Carrier shall provide Reseller with the Services for the purpose of the resale to Customers. Carrier shall make the Services available subject to unavailability caused by circumstances beyond Carrier’s reasonable control, including any force majeure events as contemplated in Section 12.10 and any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within Carrier’s possession or reasonable control. Reseller agrees that its purchase of a subscription to the Service for resale is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Carrier regarding future functionality or features.
2.1.3. SaaS Services Platform.
Carrier will provide the Services through Carrier’s website; any mobile, cloud, and web applications that may be provided by Carrier; Carrier’s computer system and data center facilities; and/or local hardware at for use at a Customer Facility (collectively, the “SaaS Services Platform” or “Platform”). Any element of the SaaS Services Platform may be operated by Carrier, an Affiliate, or by third parties under agreements with Carrier or Affiliates. Except for any local hardware, neither Reseller nor Customer will not have physical access to the SaaS Services Platform.
2.1.4. Service Levels.
Carrier will provide the Platform during the applicable service windows and in accordance with the applicable Service Level Agreement. In the event Carrier does not meet a service level set forth in the Service Level Agreement, Carrier shall: use commercially reasonable efforts to ensure that any unmet service level is subsequently met. Notwithstanding the foregoing, Carrier will use commercially reasonable efforts to minimize the impact or duration of any outage, interruption, or degradation of service.
2.1.5. Updates to the Service.
Carrier will upgrade and update the Service as appropriate and in Carrier’s sole determination to fulfil its obligations under this Agreement.
2.1.6. Third Party Open-Source Components.
Portions of the Service may include third party open-source components that are subject to third party terms and conditions (“Third Party Terms”). In the event there is a conflict between the Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail but solely in connection with the related third party open-source component. Notwithstanding anything in this Agreement to the contrary, Carrier makes no warranty or indemnity hereunder with respect to any third party open source component. A list of any third party open source components and related Third Party Terms will be provided upon request to Carrier.
2.2. Reseller’s Obligations
2.2.1.
Reseller shall maintain marketing and customer service standards that are appropriate in order to maintain high-quality Services and to reflect positively on Reseller’s and Carrier’s reputation. Reseller shall take every reasonable precaution not to disclose Customer information, other than as permitted by any applicable privacy laws. Reseller shall be responsible for all activities of its Customers and Reseller shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall notify Carrier promptly of any such unauthorized access or use; and (ii) comply with all applicable local, state, provincial, federal, and foreign laws in respect to the promotion and re-sale of the Services.
2.2.2.
Reseller shall not (and shall not authorize any third party) to: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services except to the extent that enforcement of the foregoing restriction is prohibited by applicable law; (b) circumvent any user limits or other timing, use or functionality restrictions built into the Services; (c) remove any proprietary notices, labels, or marks from the Services; (d) frame or mirror any content forming part of the Services ; or (e) access the Services in order to (i) build a competitive product or service or (ii) copy any ideas, features, functions or graphics of the Services
2.2.3. Reseller Terms & Conditions.
The Services shall be provided to Customer(s) on terms and conditions that are determined by Reseller, in accordance with any applicable regulations. Carrier shall have no obligations to determine such terms and conditions and Carrier shall have no obligations to deal directly with Customer(s) or for any customer service activities for or in respect to Customer(s). Reseller shall not make any representations or warranties on behalf of Carrier or in any way bind or attempt to bind Carrier contractually or otherwise with any Customer(s).
2.2.4. Carrier-Reseller Relationship.
This Agreement governs the relationship between Carrier and Reseller with respect to the resale of the Service to Customer(s). The relationship of the Reseller and Resellers’ Customer(s) (including such matters as warranties, limitation of liabilities and the like) shall be governed solely by the terms set forth in Reseller’s agreement with Customer. Nothing herein shall be deemed to enlarge, diminish or otherwise change the Customer’s rights or responsibilities under its agreement with Reseller, it being understood that Customer is not a third-party beneficiary of any provision herein.
2.2.5. Ethics and Compliance.
In addition to the aforementioned responsibilities, Reseller shall comply the ethics and compliance policies of Carrier, including, without limitation, the Carrier Code of Ethics Policy and Carrier Supplier Code of Conduct, which are available at https://www.corporate.carrier.com/suppliers/, while performing Reseller’s obligations hereunder as well as in Reseller’s relations with any third parties or representatives or in any other agreement. Reseller acknowledges having read and understood the requirements and principles of Carrier’s policies relating to business practices, which are a fundamental part of this Agreement.
2.2.6. Customer Authorization.
For the purposes set forth in this Agreement, Reseller is responsible for ensuring that Reseller or its Customer are authorized to provide Customer Data to Carrier, and Carrier is authorized to collect Customer Data on behalf of the Reseller or its Customers to provide the Service. Reseller certifies that it will obtain the Customer’s explicit authorization to permit Carrier to access and use the Customer Data to provide the Service, and for other purposes permitted by law. Reseller recognizes that failure to obtain such authorization may result in irreparable harm to Carrier and, notwithstanding anything else in this Agreement to the contrary, Reseller shall be liable for any losses, costs or expenses that Carrier may suffer from its failure to obtain such authorization.
2.3. Mutual Obligations.
Neither party shall by way of statement, act or omission, discredit or reflect adversely upon the reputation of or the quality of the other party or the products or services provided by the other party.
3. Fees & Payment
3.1. Customer Pricing & Responsibility.
All fees, rates, or charges charged by Reseller to Customer(s) shall be determined solely by Reseller. Carrier shall have no authority or responsibility to determine such fees or amounts and Carrier shall have no responsibility for billing or collecting fees or any other amounts from Customer(s). Reseller is solely responsible for payment to Carrier for all fees for the Services re-sold to Customer. In connection with such activities, Reseller will act in all respects for its own account and will be responsible for such matters as credit verification, deposits, billing, collection, bad debts and any unauthorized use of the Services by or on behalf of Customers. Carrier is obligated only to Reseller, with which it is in privity of contract and not to Customers, with whom Carrier is not in privity of contract. Customers are not to be deemed third-party beneficiaries of this Agreement.
3.2. Service Fees.
In exchange for granting Reseller a limited revocable license to resell Services to Customer(s) and/or to access and administer the Service, if relevant, including, without limitation, activation/deactivation, professional services, maintenance, and billing, the Reseller hereby agrees to pay to Carrier a fee on the types and quantities of Services delivered, activated or maintained with Carrier (the “Fee” or “Fees”). Except as otherwise specified herein or in an Order Form, (i) the fees payable for the Service are as set forth in the Order Form, (ii) fees are quoted and payable in United States dollars, (iii) fees are based on the provisions of the Order Form, and (iv) payment obligations are non-cancellable and fees paid are non-refundable unless the Agreement is terminated for cause pursuant to Section 7.4.
3.3. Fee Increases at Renewal.
The fees payable for any Renewal Term (as defined in Section 8 Term and Termination) will be set forth in the Order Form. If the Order Form does not include any pricing for a Renewal Term, then Carrier’s standard pricing available at the date of renewal will apply. Carrier may increase the fees to the then-current rate for the Service at the time of renewal.
3.4. Invoicing & Payment.
Fees will be invoiced in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due net thirty (30) days from the invoice date.
3.5. Overdue Charges.
If any amounts invoiced hereunder are not received by Carrier by the due date, then without limiting Carrier’s rights or remedies, such amounts shall accrue late interest at the rate of 2.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. 3.6. Suspension of the Service. If any undisputed charge owing by Reseller is thirty (30) days or more overdue, Carrier may, without limiting its other rights and remedies, suspend the Service until such amounts are paid in full or terminate the Agreement and Service. During any period for which access or delivery of the Services is suspended, Reseller shall continue to incur any fees and interest.
3.7. Payment Disputes.
Carrier will not exercise its rights under Section 3.5 (Overdue Charges) or 3.6 (Suspension of Service) if Reseller is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. Reseller must notify Carrier of such dispute no later than thirty (30) days after the closing date on the first billing statement to which the dispute relates.
3.8. Taxes.
Carrier’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Reseller agrees to pay all applicable Taxes levied by any tax authority on the Service or on Reseller’s sale thereof.
4. Term & Termination
4.1. Term of Agreement.
Unless otherwise terminated as provided herein, this Agreement commences on the date of purchase and continues for a period of one (1) year (“Agreement Term”). The Agreement Term will automatically renew for successive one (1) year terms (the “Renewal Term”) unless Reseller provides its written intent not to renew at least sixty (60) days prior to the end of the Agreement Term or subsequent Renewal Term(s).
4.2. Term of Subscriptions.
Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one (1) year terms, unless either party gives the other written notice (email acceptable) at least sixty (60) days before the end of the relevant subscription term. Customer’s notices of its intent not to renew shall be sent directly to the Carrier contact identified in the Order Form. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Carrier’s applicable list price in effect at the time of the applicable renewal, unless otherwise expressly stated in the Order Form. Notwithstanding anything to the contrary in this Agreement, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
4.3. Termination for Convenience.
This Agreement or any subscription may be terminated during any Term by Carrier at any time without cause by giving written notice to the other party, not less than thirty (30) days in advance.
4.4. Termination for Cause.
Except as otherwise provided herein, a Party may terminate this Agreement (or an Order Form) (i) for cause upon thirty (30) days’ written notice to the other Party, if such other Party commits a material breach of this Agreement or such Order Form and such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors
4.5. Effects of Termination.
Upon any termination of service for cause by Reseller, or for convenience by Carrier, Carrier shall refund Reseller a portion of prepaid fees covering the unused amount of the subscription term, less 15% of the prepaid value and $500 per instance for transfer of Customer Data to the Customer. Upon any termination for cause by Carrier, Reseller shall pay any unpaid fees covering the remainder of the subscription term after the effective date of termination. In no event shall any termination relieve Reseller of its obligation to pay any fees payable to Carrier for the period prior to the effective date of termination. Upon termination, Carrier may, in its sole discretion, terminate Reseller and Customer’s account resulting in termination of Reseller, Customer’s and any Authorized Users’ use and access of the Service. Carrier reserves the right to solicit, contact and/or respond to queries to/from Customer of Reseller using the Services and may direct such Customers to authorized resellers for the future purchasing of Services. In addition, Reseller understands and agrees that Customer, whose access to the Services is managed by Reseller, shall have the option to transfer the management of their access of Services to another reseller. Such transfer shall be conducted and finalized by Carrier in coordination with the Customer. Reseller understands that Carrier desires to serve the Customer using Carrier’s Service and shall support Carrier’s efforts in directing such Customers to authorized resellers in the territory, whether they are competitors of Reseller.
4.6. Survival.
The following sections shall survive the expiration or termination of this Agreement: 1 (Definitions); 3 (Payments); 4.5 (Effects of Termination); 5 (Proprietary Rights); 6 (Confidentiality); 7 (Indemnification); 8 (Representations and Warranties); 9 (Warranty Disclaimer); 10 (Limitation of Liability); 11 (General Provisions); and any other section or provision which by its nature is intended to survive expiration or termination hereof.
5. Proprietary Rights
5.1. Reservation of Rights.
Subject to the limited rights expressly granted in this Agreement, Carrier and its suppliers and licensors own all of the worldwide rights, title, and interest in and to the Services, Platform, and Feedback (as defined below), all underlying data compilations and information, and all related materials, as well as all intellectual property derived by the provision of the Services, and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Reseller, Customers, or Authorized Users under this Agreement with respect to the Service. Carrier owns any future worldwide rights, title, and interest therein and thereto, including all associated intellectual property rights, moral rights, and good will, and any modification, enhancement, derivative work or other improvement, whether developed by or for Carrier, Reseller, or Customer. Reseller acknowledges that it is obtaining only a limited and revocable right and license to resell, access and use the Service as set forth in this Agreement. The Service is licensed, not sold. No rights are granted to Reseller other than as expressly set forth in this Agreement.
5.2. Suggestions.
Reseller may provide comments, suggestions, statements, or ideas to Carrier, directly or indirectly, about the Service, including how to improve the Service ("Feedback"). Reseller agrees that Feedback submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Carrier under any fiduciary or other obligation. Carrier is not obligated and makes no commitment to treat or maintain as confidential any Feedback which Reseller submits. Reseller will not receive any type of payment or remuneration from Carrier for Feedback. All documents and materials submitted through this Agreement to Carrier in connection with Feedback become the property of Carrier unless Carrier agrees otherwise in writing. Carrier shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual right and license to use, copy, modify, publish, or redistribute Feedback and its contents for any purpose, including the right and license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other Feedback provided by Reseller relating to the Service. Reseller waives all moral rights Reseller may have in the Feedback.
6. Confidentiality
6.1. Confidential Information.
The Parties may obtain nonpublic information from each other that is confidential and/or proprietary (“Confidential Information”). Each party (as “Receiving Party”) agrees that Confidential Information includes, but is not limited to: code, inventions, know-how, business, technical, financial information, technical or non-technical data, formulas, patterns, compilations, prototypes, models, sample products, equipment, patent applications, concepts, ideas, programs, software, devices, methods, techniques, drawings, designs, functional specifications, processes, financial data, financial plans, product or service plans or lists of actual or potential customers or suppliers it obtains from the disclosing party (“Disclosing Party”) constitute the Confidential Information of the Disclosing Party, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Carrier technology, performance information relating to the Service, and the terms and conditions of this Agreement will be deemed Confidential Information of CARRIER without any marking or further designation. Each Party retains all ownership rights in and to its Confidential Information.
6.2. Use of Confidential Information.
Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than as stipulated herein, and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section. The Receiving Party’s confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6.3. Disclosures Required by Law.
The Parties may disclose each other’s Confidential Information if required to do so as a matter of law, regulation, or court order, provided that the disclosing Party: (i) shall use reasonable efforts to provide the other Party with prompt notice prior to such disclosure reasonably sufficient to allow the disclosing Party the opportunity to apply for a protective order or other restriction regarding such disclosure; (ii) shall disclose only that portion of the Confidential Information that is legally required to be furnished; and (iii) shall use reasonable efforts to seek a commitment from the recipient to which the information must be disclosed that it not further disclose the Confidential Information.
7. Indemnification
7.1. Indemnification by Carrier
7.1.1. Carrier Indemnification.
Carrier agrees to defend Reseller from and against any claim by a third party alleging that the Service when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark. If there is an adverse final judgment (or settlement to which Carrier consents) from the lawsuit, Carrier will pay it for Reseller. Carrier’s obligations are subject to the following conditions: (i) Reseller must promptly notify Carrier in writing of the claim (but in any event notice in sufficient time for Carrier to respond without prejudice); (ii) Carrier’s exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Reseller.
7.1.2. Exclusions of Carrier Indemnification.
The foregoing indemnification obligation of Carrier will not apply: (1) if the Service or any part thereof is modified by any party other than Carrier, but solely to the extent the alleged infringement is caused by such modification; (2) if the Service is combined with products or processes not provided by Carrier, to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Service; (4) to any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Service but instead by features common to any similar product or service or building management system the Service is used with; or (6) if Reseller settles or makes any admissions with respect to a claim without Carrier’s prior written consent. THIS SECTION SETS FORTH CARRIER’S AND ITS SUPPLIERS’ SOLE LIABILITY AND RESELLER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
7.2. Indemnification by Reseller.
Notwithstanding the foregoing, Reseller will defend, indemnify, and hold harmless Carrier from and against any claim by a third party related to or arising out of (i) use of the Service in breach of this Agreement, including but not limited to failure to keep API keys, user ID and password information strictly confidential, (ii) any misrepresentation of the Service or issuance of any warranty not contemplated under this Agreement, (iii) any unauthorized access to or disclosure of End User Data by Reseller, or (iv) any negligent or intentional misconduct related to the marketing and resale of the Service.
8. Representations & Warranties
8.1. Reseller Warranties.
Customer warrants: (i) it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement and this Agreement, when executed and delivered, shall be a valid and binding obligation of it enforceable in accordance with its terms; and (ii) it shall comply with all applicable federal, state, local, international, or other laws and regulations applicable to the performance by it of its obligations under this Agreement and shall obtain and maintain all applicable permits, certificates, licenses, approvals, or other authorizations required of it in connection with its obligations under this Agreement
8.2. Carrier Warranties.
Carrier warrants that the Service will operate in substantial conformity with the applicable Documentation. Carrier’s sole liability (and Reseller’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Reseller, for Carrier to use commercially reasonable efforts to correct the reported non-conformity.
9. Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.2, ALL SERVICE, SUPPORT, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS”. NEITHER CARRIER NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CARRIER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, ONSITE NETWORK OR CONTROLLER COMMUNICATION FAILURE, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CARRIER.
10. Limitation of Liability
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY OR ITS SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. CARRIER’S MAXIMUM DIRECT LIABILITY UNDER THIS AGREEMENT IS LIMITED TO MONEY DAMAGES NOT EXCEEDING THE FEES ACTUALLY PAID BY RESELLER TO CARRIER DURING THE 12 MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO A CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS MADE WITHIN THE 12-MONTH PERIOD ARE AGGREGATED TO DETERMINE THE LIMIT AND THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THIS LIMIT.
11. General Provisions
11.1. Entire Agreement.
This Agreement constitutes the entire, complete and exclusive agreement between the Parties and supersedes all previous agreements or representations, oral or written, relating to the subject matter hereof. In the event of conflict or inconsistency between any such terms and conditions, the following order of precedence will apply: 1) the Order Form, 2) this Agreement and 3) any other terms or documentation attached hereto or referenced herein. No purchase order or ordering documents which purports to modify or supplement this Agreement will add to or vary the terms of this Agreement.
11.1. Assignment.
Except as otherwise provided in this Agreement, neither Party may assign or transfer this Agreement or any Order Form without the other Party’s prior written consent. The prohibition against assignment shall not apply to a Change in Control of either Party. Subject to the restrictions in this Section 11.2, this Agreement shall be binding on and for the benefit of the Parties’ successors and permitted assigns.
11.2. Modifications.
Carrier may update this Agreement from time-to-time at its sole discretion by posting the updated terms to this site or a successor site. The version of this Agreement in place at the time each Order is submitted is the version that will govern such Order. Except as provided in this Section 11.3, all changes or amendments to this Agreement require the written agreement of you and Carrier.
11.3. Relationship of the Parties.
The Parties are independent contractors. The Parties acknowledge that no partnership, joint venture, agency, fiduciary, or employment relationship is intended or created by this Agreement. Neither Party is the legal representative or agent of, nor has the power or right to obligate, direct, or supervise the daily affairs of the other Party, and neither Party shall act, represent, or hold itself out as such. There are no third-party beneficiaries to this Agreement.
11.4. Governing Law and Forum.
This Agreement and any Order shall be interpreted in accordance with the plain English meaning of its terms and the construction thereof shall be governed by the laws in force in the State of New York, USA without regard to conflicts of law principles, except that Sections 5-1401 and 5-1402 of the New York General Obligations law will apply and except that the United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980, as amended to date, will not apply. The state and federal courts located in New York City, New York shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.
11.5. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6. International Trade Compliance.
Reseller agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Reseller represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Reseller will access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Reseller will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
11.7. Subcontractors.
Carrier may use the services of subcontractors and permit them to exercise the rights granted to Carrier in order to provide the Service under this Agreement, provided that Carrier remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Service as required under this Agreement.
11.8. Expenses.
Unless otherwise expressly provided herein, all expenses incurred by either party in connection with the formation or implementation of this Agreement shall be the sole responsibility of that party and neither party shall have any claim for such expenses against the other.
11.9. Notices.
Notices relative to this Agreement shall be given in writing and sent by email or certified mail, return receipt requested. Any such notice sent by Reseller to Carrier, or sent by Carrier to Reseller, shall be addressed to the entities identified in the Order Form.
11.10. Force Majeure.
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, including strike, blockade, an act of war, hostility, sabotage, terrorism or riot; natural disaster, pandemic, failure or diminishment of power or telecommunications or data networks or services, government restrictions, or refusal of a license by a government agency.