RESELLER/MSP TERMS AND CONDITIONS
Version April 2022
Agreement: Collectively, the Reseller and Managed Services Provider Agreement and these R/MSPTC.
Documentation: user documentation provided by SVA Software to End User (either directly or through Reseller) at the time of or after the delivery of Products or software or the provision of Managed Services.
Effective Date: The effective date of the Agreement as specified in the SVA Software Reseller and Managed Service Provider Agreement.
End User: an end user customer that is located within the Territory and (a) licenses Products from SVA Software through Reseller, and/or (b) receives Managed Services from Reseller.
End User Agreement: a SVA Software-provided or –approved Agreement governing an End User’s use of the Products licensed from Reseller and/or Managed Services provided by Reseller and made accessible to the End User. For Products licensed from Reseller to the End User, the End User Agreement shall be found at www.svasoftware.com under the “Terms and Conditions” hyperlink, or as otherwise communicated to Reseller by SVA Software during the Term.
R/MSPTC: These Reseller/MSP Terms and Conditions.
Managed Services: the Software and other resource that are provided by SVA Software to Reseller for Reseller to install and execute on its owned or controlled computer servers for providing network-accessible services to End Users using such Software solely for the selected Managed Services in this Agreement. Additional information regarding each Managed Service may be found in the associated Documentation.
Products: the Software and associated licenses for the selected Products in this Agreement, and corresponding Support and Maintenance Services, with the Documentation and any bug fixes or error corrections made available or provided by SVA Software to End User.
Software: the applicable object code copy of (a) the Software for the Products selected in this Agreement, if any, and made available by SVA Software to Reseller for resale to End User pursuant to this Agreement; and (b) the Software for the provision of the Managed Services to End Users that are selected in this Agreement, if any, and which are made available by SVA Software to Reseller.
Support and Maintenance Services: has the meaning set forth in SVA Software’s End User Agreement or other applicable separate SVA Software agreement addressing the support and maintenance services to be provided to the End User for licensed Products and Reseller for Managed Services..
Term: the period of time from the Effective Date of this Agreement specified herein.
Territory: means the country/ies or Region(s) set forth as the Territory in this Agreement.
2.1 Reseller Appointment for Products. Subject to all of the terms and conditions of this Agreement, during the Term, SVA Software hereby appoints Reseller as an authorized, non-exclusive reseller of the Products purchased through Reseller and for resale to End Users in the Territory and grants Reseller the non-exclusive, non-transferable, non-sub licensable right to market and distribute the Products directly to End Users, but solely (i) for use by such End Users only in the Territory and without any right of redistribution, and (ii) pursuant to an End User Agreement between each End User and Reseller.
2.2 Reseller Appointment for Managed Services. Subject to all of the terms and conditions of this Agreement, during the Term, SVA Software hereby also appoints Reseller as an authorized, non-exclusive provider of Managed Services to End Users in the Territory and grants Reseller the non-exclusive, non-transferable, non-sub licensable right to market and make such Managed Services directly available to End Users, but solely (i) for use by such End Users only in the Territory and without any right of redistribution, and (ii) pursuant to an End User Agreement between each End User and Reseller.
2.3 Appointment Restriction. Reseller shall have no right to resell any software product and/or offer Managed services not explicitly authorized in this Agreement. Any breach of this Section 2.3 will be considered a non-curable breach of this Agreement for the purposes of Section 6.2 herein.
3.1 Demonstration Software License or Not For Resale License. Subject to all of the terms and conditions of this Agreement, during the Term, Reseller shall have the right to install and use, only on its own computers, a reasonable number of copies of the Products, and Software for providing the Managed Services solely and exclusively for internal training, demonstration, and End User support purposes, but only to the extent that such End User support is pre-approved on writing by SVA Software.
(a) SVA Software is a wholly-owned subsidiary of the SVA System Vertrieb Alexander GmbH, Borsigstraße 26, 65205 Wiesbaden (“SVA”), which is one of Germany’s leading system integrators in the field of data center infrastructure. SVA Software represents to Reseller that it has received sufficient rights from SVA to SVA’s name and the applicable Product trademarks (“Trademarks”) for the grant and restrictions created in this Section 3.
(b) hereby grants Reseller a nonexclusive, limited license to use SVA’s name and the applicable Product trademarks (“Trademarks”) solely in its distribution, marketing and advertising of the Products in accordance with the terms of this Agreement. Reseller’s use of the Trademarks shall conform to SVA’s then-current trademark use policies, or as updated from time to time. All use of the Trademarks shall be subject to the review and pre-approval of SVA. Reseller shall not remove any trademarks or other proprietary notices incorporated in, marked on, or fixed to the Products. All goodwill arising from the use of the Trademarks shall be vested in and inure to the benefit of SVA. Reseller agrees that it will not register, or attempt to register, any domain name containing the word “SVA” or any product name of a SVA product, and if Reseller has, to immediately effect transfer of such domain name to SVA without charge. Furthermore, inasmuch as use of the Trademarks by Reseller is vested in and inure to the benefit of SVA Software, Reseller shall, upon request, provide SVA Software with specimens of trademark use, as necessary or desirable, and it shall otherwise reasonably cooperate with SVA Software as SVA Software seeks to maintain or perfect its rights into the relevant SVA Trademarks before any Trademark Office of competent jurisdiction.
(c) When Reseller uses the expression SVA SOFTWARE, INC. in non-textual form (that is, as a stylized logo), Reseller shall only use such logo in accordance with the trademark use policies of SVA Software, and in any event, in accordance with the following requirements:
(i) the word “SVA” shall not use a font-size larger than the accompanying words, “SOFTWARE” or “INC.”;
(ii) the term “SVA SOFTWARE, INC.” shall be accompanied by a stylized letter “S”, which stylized letter “S” shall always appear at least two times larger than “SVA” and shall immediately precede “SVA”; and
(iii) the term “SVA” shall not be more prominent or distinctive in its appearance than the terms “SOFTWARE” or “INC.” or the “S” design element by use of color, boldness, font style or any other format or appearance differential, except that it is permissible to capitalize “SVA” so long as the “S” in “Software” and the “I” in “Inc.” are also capitalized in the same size, font and overall appearance.
3.3 License Restrictions. Reseller shall not and shall not authorize or permit any End User to: (a) decompile, disassemble, or otherwise reverse engineer the Software of the Products or for providing the Managed Services or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of such Software by any means whatsoever; (b) distribute, sub-license, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Product, Managed Service and/or Software or End User’s right to use such, except as may expressly authorized hereunder; (c) remove any identification, or proprietary, copyright or other notices contained in the Product, Managed Service and/or Software; (d) modify and/or create a derivative work of the Product, Managed Service and/or Software, or incorporate the Products, Managed Service and/or Software into or with other software, except to the extent expressly authorized in writing by SVA Software; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Products, Managed Service and/or Software; and (f) use the Products, Managed Service and/or Software in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights. For the avoidance of doubt any breach of this Section 3.3 shall be deemed to be a material breach of this Agreement not capable of remedy for the purpose of Section 6.2.
3.4 Non-Exclusive. The rights granted to Reseller hereunder are non-exclusive and nothing under this Agreement shall be deemed to prohibit SVA Software from entering into any reseller, managed service provider, end-user license, services or other agreement with any party anywhere in the world either during or after the Term.
4.1 Notwithstanding anything to the contrary contained herein (and except for the license rights expressly provided herein), SVA Software and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent rights, copyrights, trade secret rights, trademarks, service marks, related goodwill, and confidential and proprietary information) in and to the Products, Software, Documentation, and all modifications to, and derivative works thereof. Notwithstanding any use of terms such as “purchase”, “sale” or likewise hereunder, all Products, Software, and deliverables are offered by SVA Software on a license basis only.
4.2 To the extent that any activity of Reseller shall result in the creation of derivative works of the Products and/or Software, Reseller hereby agrees that SVA Software is and will be the sole and exclusive owner of all right, title, and interest in and to such derivative works upon their creation (“Derivative Works”), whether or not such Derivative Works are works made for hire under the applicable copyright law. To the extent any Derivative Works do not qualify as owned by SVA Software under the first sentence of this Section 4.2, Reseller hereby irrevocably: (i) assigns, transfers, and otherwise conveys to SVA Software, all worldwide, right, title, and interest in and to such Work, including all copyrights and other intellectual property rights therein, including all registration, renewal, and reversion rights, and the right to register and sue to enforce such copyrights against infringers; and (ii) waives any and all claims Reseller may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to such Work.
5. Reseller Obligations
5.1 Representations. Reseller shall not make any representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Products or Managed Services which are in addition to or inconsistent with those set forth in the product and/or Managed services descriptions or promotional materials delivered by SVA Software to Reseller hereunder. In no event shall Reseller make any representation, warranty or guarantee by or on behalf of SVA Software. Reseller shall represent SVA Software and its Products or Managed Services in a positive and professional manner at all times.
5.2 Reseller shall not, and shall not attempt to, export the Products and/or Software to a location in any country outside of the Territory, without the prior written permission of SVA Software, and for the avoidance of doubt any breach of this Section 5.2 shall be deemed to be a material breach of this Agreement not capable of remedy for the purpose of Section 6.2.
5.3 Reseller shall, subject to reasonable prior notice, give SVA Software such access and assistance to Reseller’s systems as may be necessary to confirm that Reseller Client is using the Products and/or Software for the provision of Managed Services in accordance with this Agreement. Furthermore, at any time during the term of this Agreement, SVA Software may modify the Products and/or Software to include one or more technical measures that are intended to (i) restrict; or (ii) notify SVA Software of any unauthorized use of the Products and/or Software.
6. Term of Agreement
6.1 Term. This Agreement is effective as of the Effective Date and shall terminate upon the earlier to occur of: (i) expiration of the Term or (ii) termination in accordance with Section 6.2 herein. Unless terminated, this Agreement shall expire on the first anniversary here (such one year period, the “Term”). The Term shall automatically renew for additional one (1) year terms unless either party gives the other prior written notice of cancellation at least thirty (30) days prior to expiration of the then-current term.
6.2 Termination. Either party may terminate this Agreement with three months’ written notice without reason. Further, either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement, which is capable of being cured within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days). Termination is not an exclusive remedy and the exercise by either Party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
6.3 Effects of Termination. Upon any expiration or termination of this Agreement, Reseller shall (i) cease to be an authorized reseller of Products and/or provider of Managed Services under this Agreement, and (ii) cease use of and destroy any and all copies of the Products and Software for Managed Services. Neither Party shall have any liability to other Party of any act or omission arising after the termination of this Agreement.
6.4 Survival. Sections 1 (Definitions), 3.3 (License Restrictions), 4 (Ownership), 6 (Term of Agreement), 9 (Limitation of Remedies and Damages), 11 (Confidential Information), and 13 (General) shall survive any termination or expiration of this Agreement.
7. Limited Warranty and Disclaimer
7.1 Limited Warranty. SVA Software warrants to Reseller that for a period of ninety (90) days from SVA Software’s issuance of the license key for a Product and/or Software useable for providing the Managed Services (the “Warranty Period”) that such Product and/or Software will operate in substantial conformity to SVA Software’s applicable Documentation. SVA Software’s entire liability and Reseller’s sole and exclusive remedy for any breach of the preceding warranty will be for SVA Software, at its option to: (i) use commercially reasonable efforts to provide an error-correction or work-around which corrects the reported non-conformity, or (ii) replace the non-conforming Product with conforming.
7.2 Exclusions. The above warranty shall not apply to: (a) any modification or reconfiguration of the Products and/or Software that is not performed by SVA Software or authorized by SVA Software, (b) any use of the Products on a system that does not meet SVA Software’s explicit requirements for such Products and/or Software, (c) any software other than the Products, or (d) problems caused by End User’s or Reseller’s negligence, abuse or misapplication of Products and/or Software.
8. Support and Maintenance. Subject to Reseller’s payment of the applicable Support and Maintenance Services fee (if any), SVA Software will use reasonable commercial efforts to provide Support and Maintenance Services solely to End User for its use of Licensed Products, or the Software used by Reseller for providing Managed Services under this Agreement.
9. LIMITATION OF REMEDIES AND DAMAGES
9.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS SECTION 9.1 SHALL NOT APPLY TO EITHER PARTY WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “INDEMNIFICATION” OR “CONFIDENTIAL INFORMATION”.
9.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY RESELLER TO SVA SOFTWARE FOR THE ORDER WITH RESPECT TO WHICH THE CLAIM AROSE. THIS SECTION 8.2 SHALL NOT APPLY TO EITHER PARTY WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “INDEMNIFICATION” OR “CONFIDENTIAL INFORMATION”.
9.3 The Parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10.1 SVA Software at its expense and in its sole discretion, will defend, a third party action, suit or proceeding against Reseller (“Claim”) to the extent such Claim is based upon an allegation that a Product offered for resale or sold by the Reseller, and/or any Software provided to Reseller for Managed Services infringes a valid United States trademark or copyright. SVA Software will indemnify Reseller for any judgments, settlements and reasonable attorney’s fees resulting from a Claim as provided in this Section 10.1. SVA Software’s obligations under this this Section 10.1 are conditioned on the following: (a) Reseller promptly notifies SVA Software of the Claim in writing upon Reseller being made aware of the Claim; (b) Reseller gives SVA Software sole authority and control of the defense or settlement of the Claim; and (c) Reseller provides all information and assistance requested by SVA Software to handle the defense or settlement of the Claim. and/or as SVA Software may reasonably require in connection with the investigation, defense or settlement of such infringement Claims.
10.2 If Reseller’s resale of a Product, or use of Software for providing Managed Services, to End Users becomes the subject of a Claim, or if SVA Software reasonably believes such resale and/or use may become the subject of a Claim, SVA Software may at its sole option and expense: (a) procure for Reseller the right to continue the resale and/or use of such Product, and/or Software or the allegedly infringing part thereof; or (b) modify or amend the Product and/or Software for the Managed Services or the allegedly infringing part thereof, or replace such Product and/or Software so such the Product and/or Software or part thereof as so modified, amended or replaced has substantially the same or better capabilities as the original Product and/or Software. If neither of the foregoing (a) or (b) solutions is commercially practicable, if SVA Software may terminate this Agreement with respect to the allegedly infringing part. If SVA Software will then be released from any further obligation whatsoever to Reseller in connection with the alleged infringing part of the Product and/or Software.
10.3 SVA Software will have no defense or indemnity obligation for any Claim to the extent the alleged infringement arises as a result of or is based upon: (a) use unauthorized modified versions of the Product and/or Software; (b) unauthorized access to the Product and/or Software; (c) use of the Product and/or Software contrary in a manner not provided for in the corresponding Documentation or not expressly authorized by SVA Software; (d) Software combined with other non-SVA Software products or services not authorized by SVA Software; (e) to any release of the Product and/or Software other than a supported release; (f) to any third-party code contained within the Software; or (g) use the Product and/or Software in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights.
10.4 SECTION 10.1 THROUGH 10.3 STATE SVA SOFTWARE’S ENTIRE LIABILITY and RESELLER’s sole and exclusive remedy with respect to any infringement or misappropriation of any intellectual property rights of any other party.
10.5 Reseller at its expense will defend, a third party allegation, action, suit or proceeding against SVA Software (“Action”) to the extent such Action is based upon any action or inaction by Reseller that is not authorized by this Agreement. Reseller will indemnify SVA Software for any judgments, settlements and reasonable attorney’s fees resulting from an Action as provided in this Section 10.5. Reseller’s obligations under this this Section 10.5 are conditioned on the following: (a) SVA Software promptly notifies Reseller of the Action in writing upon SVA Software being made aware of such Action; (b) Reseller gives SVA Software sole authority and control of the defense or settlement of the Action; and (c) SVA Software provides all reasonable information and assistance requested by Reseller to handle the defense or settlement of the Action, and/or as Reseller may reasonably require in connection with the investigation, defense or settlement of such Action.
11. Confidential Information. Each Party (“Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the other 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 Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Software, Documentation, technical information and other code or data of any type provided by SVA Software shall be deemed trade secret and Confidential Information of SVA Software without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which 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; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm to the Disclosing Party that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.
12. Business Practices. Each Party agrees not to engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to the other Party and each Party agrees to comply with all applicable federal, state and local laws and regulations (including, without limitation, data protection, privacy and import and export compliance laws and regulations) in connection with such Party’s performance under this Agreement. Each Party agrees to use the Products, Software and Managed Services in compliance with all applicable laws, statutes, rules and regulations.
13.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Either Party may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such Party’s assets or voting securities. Except as expressly set forth herein, SVA Software may assign or transfer this Agreement, in whole or in part, without the prior written consent of the Reseller. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
13.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3 Governing Law; Waiver of Jury Trial. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of New York and the federal law of the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York City before one arbitrator(s). The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. By execution of this Agreement, each of the parties hereto acknowledges and agrees that it has had an opportunity to consult with legal counsel and that he/she/it knowingly and voluntarily waives any right to a trial by jury of any dispute pertaining to or relating in any way to the transactions contemplated by this Agreement, the provisions of any federal, state or local law, regulation or ordinance notwithstanding.
13.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
13.5 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.
13.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or in any other business form employed by Reseller will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
13.8 Independent Contractors. The parties to this Agreement 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.
13.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
13.10 Foreign Corrupt Practices Act. Reseller represents and warrants that (i) in connection with this Agreement, it has not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any foreign government or any agency or instrumentality thereof and (ii) it will comply in all respects with the Foreign Corrupt Practices Act.
13.11 Counterparts. This Agreement, and any part thereof, may be executed in two (2) or more identical counterparts, each of which shall be deemed to be an original and all of which when taken together shall be deemed to constitute the Agreement when a duly authorized representative of each Party has signed a counterpart. The Parties intend to sign and deliver this Agreement by electronic transmission. Each Party agrees that the delivery of the Agreement by electronic transmission shall have the same force and effect as delivery of original signatures and that each Party may use such electronically transmitted signatures as evidence of the execution and delivery of the Agreement by all Parties to the same extent that an original signature could be used.