Abound Master SaaS Reseller Agreement

This Master SaaS Reseller Agreement (“Agreement”) together with the Privacy and Data Usage Policy and Terms and Conditions of Use for the Service permits Reseller (as defined below) to purchase for resale subscriptions to the Service (as defined below) and related Professional Services (as defined below) from Carrier Corporation (“Carrier”) pursuant to mutually executed Order Forms (as defined below) and sets forth the basic terms and conditions under which the Service and Professional Services will be delivered and performed. This Agreement will govern Reseller’s initial purchase on the Effective Date as well as any future purchases made by Reseller that reference this Agreement.

Definitions
Carrier Services
Maintenance and Support
Fees And Payment
Data Privacy and Security
Proprietary Rights
Term and Termination
Limited Warranty and Exclusions
Indemnification
Limitation of Liability and Damages
Confidentiality
General Provisions

1. Definitions

Capitalized words used herein and not otherwise defined shall have the meanings ascribed to them in the Agreement.

"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.
"Documentation" means the technical user documentation provided with the Service.
"End User" means a legal entity identified by Reseller in the Order Form that will have access to the Service.
"End User Data" means any data of any type that is submitted, uploaded or imported to the Service by or on behalf of End User (including from Third Party Platforms).
"End User Facility" means the location identified in the Order Form where the Service will be employed.
"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, the maximum number of End User’s Permitted Users authorized to access and use the Service(s), if applicable, and any maintenance and support being purchased (if applicable). It may also include the name of the End User who will employ the Service and location of the End User Facility where the Service will be employed.
"Permitted User" means an employee or contractor of Reseller or its Affiliate(s) who is authorized to access the Service.
"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.
"Privacy and Data Usage Notice" means the Privacy and Data Usage Notice of Carrier as published on abound.carrier.com/privacy and as may be amended from time to time by Carrier.
"Professional Services" means professional consulting services as specified in an applicable Order Form.
"Reseller" means the legal entity that accepts this Reseller Agreement in the Abound Dealer portal.
"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).
"Sensitive Personal Information" 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.
"Service" means the Abound platform delivered to the Reseller as an API and/or web-based digital user interface, as described in the Order Form.
"Service Level" means the quantitative performance standards for the Service, as further specified in the Service Level Agreement.
"Service Level Agreement" means the service level agreement applicable to the Service as published by Carrier on abound.carrier.com/service and as may be amended from time to time by Carrier.
"Service Security Standards" means the security settings applicable to the Service as published by Carrier on abound.carrier.com/security and as may be amended from time to time by Carrier.
"Terms and Conditions of Use" means the Terms and Conditions of Use of the Service as published by Carrier on abound.carrier.com/terms and as may be amended from time to time by Carrier.
"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.
"User Login" means a unique username and associated password provisioned by Reseller or End User to Permitted Users to permit them to access the Services.

2. Carrier Services

2.1 Appointment as Reseller.

This Agreement governs the relationship between Carrier and Reseller with respect to the resale of the Service to End User(s). The relationship of the Reseller and Resellers’ End-User(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 End User. Nothing herein shall be deemed to enlarge, diminish or otherwise change the End User's rights or responsibilities under its agreement with Reseller, it being understood that End User is not a third-party beneficiary of any provision herein.

Subject to the terms and conditions of this Agreement, Carrier appoints Reseller as a non-exclusive Reseller of the Service. 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.

2.2 Access to the Service.

Upon execution of this Agreement, Reseller shall be authorized to provide access to the Service to its End Users by submitting an Order Form to Carrier. Upon Carrier’s acceptance of the Order Form, Reseller, the End User listed on the Order Form and their Permitted Users can access the Service through issued User Logins provided by Carrier. Use of and access to the Service is permitted only for Permitted Users, the quantity of which shall be designated in the Order Form. Reseller will require that all of its Permitted Users keep API keys and User Login information strictly confidential and not share such information with any unauthorized person. User Logins are granted to individual, named persons and may not be shared. Reseller will be responsible for any and all actions taken using Reseller’s and its Permitted User’s accounts and passwords. If any Permitted User who has access to a User Login is no longer an employee or contractor of Reseller or End User, Reseller shall notify Carrier to terminate such Permitted User’s access to the Service.

2.3 Reseller Responsibilities.

Reseller shall (i) purchase and resell the Service directly to End Users, (ii) no later than thirty (30) days after the Effective Date enroll at least one (1) employee who will be servicing and supporting the Service in Carrier’s technical training, which shall be provided upon acceptance of the Order Form, (iii) be responsible for Reseller’s and Permitted Users’ compliance with this Agreement, Carrier’s Privacy and Data Usage Policy and Terms and Conditions of Use that govern Reseller’s and Permitted Users’ use of the Service and all applicable laws and regulations, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Carrier promptly of any such unauthorized access or use, (v) be responsible for Reseller’s and Permitted Users’ use of the Service, including, without limitation, Reseller shall solely be responsible for any use of the Service that is in violation of this Agreement, applicable laws, regulations, Reseller’s policies and/or Carrier’s Privacy and Data Usage Policy and Terms and Conditions of Use for the Service. Prior to enabling access to the Service for Permitted Users and End User, Reseller shall be solely responsible for obtaining and documenting Permitted User consents required to access or use the Service and for ensuring that such consents are freely and validly provided by each Permitted User.

In addition to the aforementioned responsibilities, Reseller shall not impugn the image and reputation of Carrier, and shall comply with (a) all laws governing the performance of its obligations hereunder, and (b) 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 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.

2.4 General Restrictions.

Reseller will not (and will not permit any third party including its Permitted Users to): (a) make the Service available to anyone other than End Users and Permitted Users; (b) sell, resell, rent, lease, provide access to or sublicense the Service to a third party; (c) interfere with or disrupt the integrity or performance of the Service or any content contained therein; (d) attempt to gain unauthorized access to the Service or the underlying systems or networks; (e) use the Service or data derived therefrom to provide, or incorporate the Service into, any unauthorized product or service provided to a third party, or to create a competing offering; (f) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance notice to Carrier); (g) circumvent any technical limitations in the Service that limit or restrict access to or use of Service or any content, file, or other work, except as expressly permitted by applicable law notwithstanding this limitation; (h) degrade, impede access, copy or modify the Service or any Documentation, or create any derivative work from any of the foregoing; (i) remove or obscure any proprietary or other notices contained in the Service; (j) publicly disseminate information regarding the performance of the Service; (k) use any Carrier or other third party name or trademarks referenced in the provision of the Service in any manner without Carrier’s written consent; or (l) use the Service in manner outside of its intended purpose.

2.5 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.

3. Maintenance and Support

3.1 Service Level Agreement.

Carrier will provide the Service in accordance with the Service Levels as defined in the Service Level Agreement except as otherwise specified herein.

3.2 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.

4. Fees and Payment

4.1 Service Fees.

In exchange for granting Reseller a limited revocable license to resell Services to End Users 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.

Reseller shall independently determine the fee it will charge End Users for access to the Service. Reseller shall be solely responsible for collecting its fees from its End Users. Any non-payment by End Users to Reseller will not relieve Reseller of its obligation to pay the fees set forth in the Order Form.

4.2 Fee Increases at Renewal.

The fees payable for any Renewal Term (as defined in Section 7, 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. Carrier will provide a 90-day notice of any standard pricing increase.

4.3 Invoicing and Payment.

Fees will be invoiced in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due forty-five (45) days from the invoice date. If any amounts invoiced hereunder are not received by Carrier by the due date, then 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.

4.4 Suspension of the Service.

Reseller may charge any End User of Services for access to Services, however in the event that full payment of the Fee is not timely received by Carrier from Reseller, Carrier may, in its sole discretion, place an activation or service hold on Reseller’s and/or End User’s account resulting in a suspension of Reseller, End User’s and any Permitted Users’ use and access of the Services. Without prejudice to any other rights Carrier may have under this Agreement, Terms of Use, applicable law or in equity, Carrier expressly reserves the right, in its sole discretion, to refuse to permit future activations of, or to suspend current usage of Services, by or through Reseller until all outstanding fees have been paid in full by Reseller. This Section 4.4 shall survive any termination of the Agreement. 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.

4.5 Taxes.

Reseller agrees to pay all applicable taxes levied by any tax authority on the Service or on Reseller’s use thereof, which shall be separately invoiced, excluding any and all taxes based on the net income of Carrier.

5. Data Privacy and Security

5.1 Processing of Personal Data.

The Parties acknowledge and agree that in the execution and the administration of the Agreement, Personal Data of either party will be collected and processed, as independent data controllers, for invoicing and contract management purposes, in accordance with applicable Data Privacy Laws, and that where a party provides the other party with any Personal Data for such purpose, it will ensure that it has the legal right to do so, including obtaining consent and providing notice to the individuals whose Personal Data it has provided to the other, if needed. The Parties further acknowledge and agree that Carrier's provision of the Service requires Carrier to process Personal Data of Data Subjects, which may include the Personal Data of Reseller and its Permitted Users. Where Carrier processes Personal Data in relation to providing the Service, it will do so in accordance with the Privacy and Data Usage Notice.

5.2 No Sensitive Personal Data.

Reseller specifically agrees not to use the Service to collect, store, process or transmit any Sensitive Personal Information. Reseller acknowledges that Carrier is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Service are neither HIPAA nor PCI DSS compliant. Carrier will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.

5.3 Security.

Carrier agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Reseller Data, as further described in Carrier’s Service Security Standards. However, as the Service is to be provided over the internet, Carrier will have no responsibility for errors in transmission, unauthorized third-party access, interruptions due to a failure of third-party communication technologies or any other causes beyond Carrier’s control.

6. Proprietary Rights

6.1 Reservation of Rights.

This is a subscription reseller agreement for End User and its Permitted User’s access to and use of the Service. 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. As between the parties, the Service (including without limitation, any updates, upgrades, modifications, customizations, and improvements thereto) and all intellectual property rights therein, are and will remain the sole property of Carrier and/or Carrier’s partners, suppliers and licensors, 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, End User or their Permitted Users under this Agreement with respect to the Service. Reseller’s, and any Permitted Users’, access and use of the Service does not transfer to Reseller, any Permitted User, or any third party any rights, title, or interest in or to such intellectual property rights. Carrier and its suppliers reserve all rights not expressly granted to Reseller in this Agreement.

6.2 Suggestions.

Reseller and its Permitted Users may choose to, or may be invited to submit, comments, suggestions, or ideas 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 may use, copy, modify, publish, or redistribute Feedback and its contents for any purpose. 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 and its Permitted Users relating to the Service. Reseller waives all moral rights Reseller may have in the Feedback. Reseller also agrees that Carrier does not waive any rights to use similar or related ideas previously known to Carrier, developed by its employees, or obtained from other sources.

7. Term and Termination

7.1 Term of Agreement.

Unless otherwise terminated as provided herein, this Agreement commences on the Effective Date 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).

7.2 Term of Subscriptions.

Unless otherwise terminated as provided herein, the term of a subscription to the Service shall be set forth in the Order Form (“Subscription Term”). Subscriptions will automatically renew for successive one (1) year terms (the “Subscription Renewal Term”) unless Reseller provides its written intent not to renew at least sixty (60) days prior to the end of the Subscription Term or subsequent Subscription Renewal Term. Reseller’s notices of its intent not to renew shall be sent directly to the Carrier contact identified in the Order Form.

7.3 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.

7.4 Termination for Cause.

A party may terminate this Agreement or any subscription for cause (i) upon thirty (30) days written notice to the other party of a material breach if 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.

7.5 Effects of Termination; Refund or Payment upon 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 End User Data to the End User. 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 End User’s account resulting in termination of Reseller, End User’s and any Permitted Users’ use and access of the Service. Carrier reserves the right to solicit, contact and/or respond to queries to/from End User of Reseller using the Services and may direct such End Users to authorized Carrier resellers for future purchasing and/or servicing of Products. In addition, Reseller understands and agrees that End User, whose access to the Services is managed by Reseller, shall have the option to transfer the management of their access of Services to another Carrier reseller. Such transfer shall be conducted and finalized by Carrier in coordination with the End User. Reseller understands that Carrier desires to serve the End User using Carrier’s Products and shall support Carrier’s efforts in directing such End Users to authorized Carrier resellers in the territory, whether or not they are competitors of Reseller.

7.6 Surviving Provisions.

Sections 2.4 (General Restrictions), 4 (Fees and Payment), Section 5 (Data Privacy and Security), 6 (Proprietary Rights), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 9 (Indemnification), 10 (Limitation of Liability and Damages) and 11 (Confidentiality) shall survive any termination or expiration of this Agreement.

8. Limited Warranty and Exclusions

8.1 Limited Warranty.

Carrier warrants, for Reseller’s benefit only, 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, or if Carrier determines such remedy to be impracticable, either party may terminate the applicable subscription term set forth in the Order Form (“Subscription Term”) and Reseller will receive as its sole remedy a refund of any fees Reseller has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 8.1 will not apply: (i) unless Reseller makes a claim within thirty (30) days of the date on which Reseller first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or Service, or (iii) if use was provided on a no-charge, trial or evaluation basis.

8.2 Warranty Disclaimer.

EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.1, 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 DOES NOT WARRANT THAT RESELLER’S USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CARRIER WARRANT THAT IT WILL REVIEW THE RESELLER’S DATA FOR ACCURACY OR THAT IT WILL MAINTAIN THE RESELLER’S DATA WITHOUT LOSS OR CORRUPTION. 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.

8.3 Exclusions.

The information provided pursuant to the Service is general in nature and should not be considered medical, legal, insurance or any other professional advice. In all cases you should consult with professional advisors familiar with your particular factual situation before making any decisions. In no event will Carrier in any way whatsoever, be liable to you, or anyone else, for your use of the information provided pursuant to the Service, or for any decision(s) made or action(s) taken in reliance upon the information provided pursuant to the Service.

9. Indemnification

9.1 Carrier Indemnification.

Carrier will defend Reseller from and against any claim by a third party alleging that the Service when used as authorized under this Agreement infringe a U.S. patent, U.S. copyright, or U.S. trademark and will indemnify and hold harmless Reseller from and against any damages and costs finally awarded against Reseller or agreed in settlement by Carrier (including reasonable attorneys’ fees) resulting from such claim, provided that Carrier will have received from Reseller: (i) prompt written notice of such claim (but in any event notice in sufficient time for Carrier to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Reseller.

9.2 Reseller Indemnification.

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.

9.3 Remedy for Infringement.

If Reseller’s use of the Service is (or in Carrier’s opinion is likely to be) enjoined, if required by settlement or if Carrier determines such actions are reasonably necessary to avoid material liability, Carrier may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Reseller the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund to Reseller the fees paid by Reseller for the portion of the Term that was paid by Reseller but not rendered by Carrier.

9.4 Exclusions of 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 Reseller Data or End User 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.

10. Limitation of Liability and Damages

10.1 Damages Waiver.

Under no circumstances shall Carrier or its suppliers be liable for any indirect, incidental, special or consequential damages, including loss of revenue, loss of use of equipment or facilities, loss of data, failure of security mechanism, interruption of business, or economic damages howsoever arising.

10.2 Liability Cap.

To the extent permitted by law, Carrier’s aggregate liability for any reason including, to the greatest extent permissible under applicable laws, for gross negligence, whether in contract, tort, breach of statutory duty or otherwise, will be limited to the total amount paid and payable by the Reseller to Carrier under this Agreement in the 12-month period preceding the commencement of the event or events.

11. Confidentiality

11.1 Confidential Information.

Each party (as “Receiving Party”) agrees that all 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 Resellers or suppliers it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), 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.

11.2 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.

12. General Provisions

12.1 Entire Agreement, Assignment.

This Agreement contains the complete and exclusive statement of the Agreement between the parties and supersedes all previous or contemporaneous, oral or written, statements. Reseller may assign this Agreement only with Carrier’s prior written consent. Orders shall be binding upon Carrier when accepted in writing by an authorized representative of Carrier. CARRIER’S ACCEPTANCE OF RESELLER’S ORDER IS CONDITIONED UPON RESELLER’S ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH HEREIN (THIS “AGREEMENT”) AND RESELLER’S AGREEMENT TO BE BOUND BY AND COMPLY WITH THIS AGREEMENT. THIS AGREEMENT AND ALL REFERENCED ATTACHMENTS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN CARRIER AND RESELLER, AND NO AMENDMENT OR MODIFICATION SHALL BE BINDING ON CARRIER UNLESS SIGNED BY AN OFFICER OR AUTHORIZED EMPLOYEE OF CARRIER. THE FAILURE OF CARRIER TO OBJECT TO PROVISIONS CONTAINED IN ANY PURCHASE ORDER OR OTHER DOCUMENT OF RESELLER SHALL NOT BE CONSTRUED AS A WAIVER BY CARRIER OF THE TERMS IN THIS AGREEMENT OR AN ACCEPTANCE OF ANY OF RESELLER’S PROVISIONS. ANY CONFLICTING OR ADDITIONAL TERMS OR CONDITIONS SET FORTH BY RESELLER IN A PURCHASE ORDER OR OTHER DOCUMENT SHALL NOT BE BINDING UPON CARRIER, AND CARRIER HEREBY EXPRESSLY OBJECTS THERETO.

12.2 Modifications.

Reseller acknowledges and agrees that Carrier may modify this Agreement at any time and Reseller’s continued use of the Service after being notified of a change to the Agreement shall constitute acceptance and agreement to such modified Agreement. This Agreement applies to any updates to the Service as well as any applications (if any) used to access the Service that Carrier may, in its sole discretion, provide or make available to Reseller ("Update"). From time to time, Carrier may, without additional notification, automatically “push” or deliver an over-the-air Update to Reseller’s and/or Permitted Users’ Service or other computing devices (“Automatic Update”). You acknowledge and agree that Automatic Updates may occur at Carrier’s sole discretion, that Reseller’s continued use of the Service may be conditioned upon your acceptance of Automatic Updates, and that you consent to Automatic Updates by acceptance of this Agreement. If Carrier provides additional Agreement terms along with an Update, those terms will apply to the Update. If Carrier provides you an Update, Carrier may, at its sole discretion, require you to use the Update version and cease use of earlier versions. Carrier reserves the right to update, modify or discontinue any product or service made available to you through use of the Service.

12.3 Relationship of the Parties.

The Parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.4 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, NY shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement.

12.5 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.

12.6 International Trade Compliance.

In its use of the Service, 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 not (and will not permit any of its Permitted Users to) 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.

12.7 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.

12.8 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.

12.9 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.

12.10 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.