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Reseller Agreement

Download here: BluBØX Reseller Agreement - 9.2.pdf

 

 

RESELLER’S AGREEMENT

TABLE OF CONTENTS

                                                                                                                                          PAGE

1.     Defined Terms..................................................................................................................1

2.     Purchase and Sale of Products.....................................................................................1

        a.     Appointment and License

        b.     Purchase and Sale of Products

        c.      No Exclusivity

        d.     Discontinuation and Modification of Products

        e.     Trial Equipment

        f.      Demonstration Equipment

3.     Purchase Prices................................................................................................................2

        a.     Amount

        b.     Changes to Product List

        c.      Resale Prices

        d.     Orders 

4.     Shipment and Delivery...................................................................................................3

        a.     General

        b.     Shipping Dates Approximate

        c.      Installments; Substitute Goods

5.     Acceptance.......................................................................................................................4

        a.     Hardware

        b.     Software

6.     Terms and Method of Payment. .................................................................................4

7.     Product Returns..............................................................................................................5

8.     Reseller’s Obligations.....................................................................................................6

        a.     Promotion of Products

        b.     Leads Provided by BluBØX

        c.      Reseller’s Responsibilities

        d.     Preservation of BluBØX Goodwill

        e.     BluSKY Licenses

        f.      Distribution of Hardware & Firmware

        g.     Quotas

        h.     First-line Technical Support

        i.       Compliance with Export Control Laws

        j.       Compliance with Laws Generally

        k.     Reseller Services

9.     Training and Technical Support....................................................................................8

        a.     Training

        b.     Technical Support

10.     Limited Warranty..........................................................................................................8

        a.     Warranty

        b.     Sole and Exclusive Remedies

        c.      Recurring Revenue Licenses and RTU Agreements

        d.     Disclaimers

        e.     Take Overs

11.   “Term-of the-Agreement” and Termination of the Agreement............................10

        a.     Term-of the Agreement

        b.     Termination for Material Breach

        c.      Termination for Insolvency

        d.     Effects of Termination

        e.     Inactive Reseller Status

        f.      Survival

12.  Indemnification. ..............................................................................................................12

        a.     Indemnification by BluBØX

        b.     Conditions

        c.     Exceptions

        d.     Disruption of Use

        e.     Sole Remedies

        f.      Indemnification by Reseller

13.  Limitation of Liability......................................................................................................13

        a.     No Consequential Damages

        b.     Limitations, Exclusions and Disclaimers 

14.  Confidentiality..................................................................................................................14

        a.     Previous Agreements

        b.     Confidentiality and Non-use Obligations

        c.      Equitable Relief

15.  Intellectual Property Rights...........................................................................................14

        a.     Ownership

        b.     Restrictions

        c.      Notice of Breach

        d.     Notice of Infringement

        e.     Cooperation

16.  Limited Trademark License............................................................................................15

17.  General Provisions. .........................................................................................................15

      SIGNATURES ....................................................................................................................19

EXHIBIT A - DEFINED TERMS............................................................................................21

EXHIBIT B - RESELLER’S AGREEMENT TERMS & CONDITIONS..............................25

1.     Committed number of employees .............................................................................25

2.     Reseller Staff Training and Certification....................................................................25

3.     Demonstration Materials...............................................................................................27

4.     Approved Territories.......................................................................................................27

5.     Authorized Products.......................................................................................................28  

6.     Annual Purchase Commitment and Discounts.........................................................28

Partner Program ......................................................................................................................29

        7.     Sales Volume and Discount Levels ....................................................................29

SIGNATURES............................................................................................................................30

EXHIBIT C - BluSKY LICENSE AGREEMENT....................................................................31

1.     Definitions........................................................................................................................31

2.     User License Agreements.............................................................................................31

        a)     The “Sponsor’s User License Agreement” (SULA)

        b)     The “End User License Agreement” (EULA):  

3.     Term of the Sponsor User License Agreement” (SULA).........................................32

4.     Renewal of the SULA – New Term.............................................................................32

5.     License Fees....................................................................................................................33

        a)     Scope of the License Fees 

        b)     User-based License Fees 

        c)     Device-based License Fees 

        d)     Application-based License Fees 

6.     Additional Licenses.........................................................................................................33

7.     Monthly Invoicing...........................................................................................................34

8.     Cancellation of a License...............................................................................................34

9.     Suspension of an Account ............................................................................................34

10.  Full Termination of an Account.....................................................................................35

11.  Terms & Prices..................................................................................................................35

12.  Failure to Pay....................................................................................................................36

13.  Availability.........................................................................................................................36

14.  BluBØX will schedule Planned Downtime.................................................................36

SIGNATURES..................................................................................................................37

 

RESELLER’S AGREEMENT

The Effective Date of this Agreement is the date of signature that appears on Page 17 below.

This Agreement IS ____   IS NOT __X_ subject to the PSA Addendum

 

THIS RESELLER AGREEMENT is made as of the Effective Date, by and between:

BluBØX Systems, Inc., a Massachusetts company with offices at 9 Bartlet Street, Suite 334, Andover, MA 01810 (“BluBØX”), and 

Aritex IT, LLC., a Delaware Limited Liability Company with offices at 1155 S. Logan St., Denver, CO 80210.

(The “Reseller”)

 

_____________________________________________________________________________________

 

______________________________________________________________________    (The “Reseller”)

 

Background

BluBØX designs, manufactures, distributes, markets, sells, advertises and promotes, and otherwise exploits for commercial purposes proprietary and third-party technology that serves the physical security market, together with other such related businesses, services, investments and ventures as may be agreed-on by its Shareholders from time-to-time.  Reseller is regularly engaged in and has expertise in the marketing, sale, license, distribution and support of security systems. BluBØX wishes to establish a network of Resellers to resell its security products and solutions in the Territory (as hereinafter defined) and Reseller desires to resell such products and solutions to End Users (as hereinafter defined) in the Territory, all in accordance with and subject to the terms and conditions of this Agreement.

Agreement

Accordingly, for and in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge BluBØX and Reseller agree as follows:

The Initial Term of this Agreement shall be three (3) years as defined in Section 9 below.

1.     Defined Terms.  

Certain capitalized terms used in this Agreement are defined in the list of “Defined Terms” attached hereto as Exhibit A.  Other capitalized terms are defined elsewhere in this Agreement. 

 

2.     Purchase and Sale of Products.

a.     Appointment and License. Subject to the terms and conditions of this Agreement, BluBØX hereby appoints Reseller as its non-exclusive reseller of the Products throughout the Territory during the Term.  Subject to the terms and conditions of this Agreement, BluBØX grants Reseller a limited, non-exclusive, non-assignable right and license during the Term and throughout the Territory to: (i) market, promote, offer, demonstrate, resell and distribute to End Users, and install, service and maintain BluBØX Hardware, (ii) market, promote, offer, demonstrate, resell, and distribute BluSKY Software Licenses to End Users, and (iii) provide first-line technical support for the Products to End Users.  Reseller will not, directly or indirectly, resell Products or Licenses outside of the Territory, unless approved in advance in writing by BluBØX. Reseller may not delegate or subcontract its rights or obligations under this Agreement without the prior written consent of BluBØX, except that Reseller may subcontract portions of the installation under its supervision.  Nothing in this Agreement gives Reseller any rights with respect to other products that BluBØX may develop, manufacture, or market in the future.

b.     Purchase and Sale of Products.  Subject to the terms and conditions of this Agreement, during the Term, BluBØX agrees to sell and/or license to Reseller the Products ordered by Reseller pursuant to Order Forms or Purchase Orders accepted by BluBØX in accordance with Section 3 below. This Agreement is neither a requirement nor an output contract.

c.      No Exclusivity. 
All rights granted to Reseller under this Agreement are non-exclusive.  BluBØX reserves the right to market, promote, distribute, sell and license the Products within and outside the Territory, and nothing in this Agreement will be construed as limiting in any manner BluBØX’s right to appoint other distributors, resellers, licensees or agents within and outside the Territory.

d.     Discontinuation and Modification of Products.  
BluBØX may, in its sole discretion, discontinue the sale and/or license of any of the Products and any parts/accessories therefor (except where continued availability is required by law) and make such changes affecting their form, fit or function as BluBØX, in its sole discretion, determines, by giving Reseller prior written notice thereof but without incurring any liability to Reseller therefor. BluBØX will use commercially reasonable efforts to provide such notice at least sixty (60) days in advance.    

e.     Trial Equipment.  
BluBØX may from time-to-time, in its sole discretion, periodically loan Products to Reseller for trial and evaluation purposes with its prospective End Users under conditions stipulated in an Equipment Loaner Agreement in form and substance satisfactory to BluBØX and Reseller.

f.      Demonstration Equipment. 
BluBØX may from time-to-time, in its sole discretion, make available certain Products for purchase by Reseller for demonstration and training purposes.

3.     Purchase Prices.

a.     Amount.  
BluBØX will sell and/or license the Products to Reseller at the price set forth in BluBØX’s then-current Product Price List, less Reseller’s applicable Discount.  BluBØX’s Product List is made available to Reseller by way of Price Lists that are published periodically and made available to Reseller via its knowledge base “BluINFO’ and/or e-mail, and Reseller will keep itself up-to-date throughout the Term with respect to BluBØX’s current Product List and standard Product Price List.   

b.     Taxes. 
The prices are exclusive of all taxes, including sales, use, excise or value added taxes where applicable. Upon presentation of invoices by BluBØX, Reseller will pay any and all such taxes imposed or levied by any government or agency. Any claimed exemption from such taxes must be supported by proper documentary evidence delivered to BluBØX prior to shipment.

c.      Changes to Product List.    
BluBØX Resellers will order materials and services by reference to BluBØX’s most current Price List. Changes to product listings and associated prices shall appear by way of a new Price List.  BluBØX shall have the right to conduct reviews of the entire price list from time-to-time, and any new prices that derive from the review shall be reflected in a new revision of BluBØX’s Price List, and shall become effective immediately upon release of the new Price List. Reasonable commercial efforts shall be made by BluBØX to advise Resellers with sixty (60) days’ notice of upcoming price changes.  BluBØX will post an advisory anytime a price review has occurred.

d.     Resale Prices. 
Reseller is free to determine the price at which Reseller resells the Products or Licenses therefor, as applicable, to End Users.  Reseller will be solely responsible for collecting payment from its End Users, and Reseller’s payments to BluBØX will be due regardless of Reseller’s collection of payment from its End Users.

e.     Orders. 
Reseller may place orders for the Products hereunder by submitting a Purchase Order in a form acceptable to BluBØX.  Each Order must contain the following information: 1) a Purchase Order number, and 2) for each Product listed thereon: (a) the BluBØX product number and product name, (b) the quantity ordered, (c) the purchase price for each Product, (d) the shipping instructions and delivery destination, and (e) the requested shipping date.  No order will be binding upon BluBØX unless and until accepted by BluBØX.  The terms and conditions of this Agreement are hereby incorporated by reference into each order submitted by Reseller hereunder.  Nothing contained in any order by Reseller will in any way modify or add to the terms of this Agreement. ANY TERMS OR CONDITIONS SUBMITTED ON ANY FORM BY RESELLER THAT DIFFERS FROM OR ALTER THE TERMS AND CONDITIONS STATED HEREIN ARE SPECIFICALLY REJECTED BY BLUBØX.  BLUBØX’S ACCEPTANCE OF AN ORDER, OR ITS FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM RESELLER WILL NOT BE A WAIVER OF THE PROVISIONS HEREOF. Special orders or custom orders defined as orders containing items that are not listed on the then-current BluBØX Price List are, once made, NOT MODIFIABLE, CANNOT BE CANCELLED, and are NON-REFUNDABLE.

 

4.     Shipment and Delivery.

d.     General. 
Generally, BluBØX ships orders via UPS Ground within five (5) business days from the time the order is accepted by BluBØX. All shipments will be F.O.B. BluBØX’s factory or warehouse and title and liability for loss or damage thereto will pass to Reseller upon BluBØX’s delivery of the goods to a carrier for shipment to Reseller. Any loss or damage thereafter will not relieve Reseller from any obligation hereunder.  Reseller is responsible for costs of freight, insurance and transportation costs and, in the event of a shipment to a foreign country, for all import duties, taxes, and any other expenses incurred or licenses or clearance required at port of entry and destination.

e.     Shipping Dates Approximate.    
Scheduled or stipulated shipping dates are approximate and based upon prompt receipt of all necessary information from Reseller. BluBØX will not be liable for any loss or expense, whether by way of contract or tort (consequential or otherwise) incurred by Reseller if BluBØX fails to meet the specified estimated delivery schedule.

f.      Installments; Substitute Goods. 
BluBØX may deliver Hardware in installments. BluBØX may substitute goods manufactured to new specifications - so long as the substituted goods are of equal or greater quality.

 

5.     Acceptance.

a.     Hardware. 
Acceptance of the Hardware will occur on the earlier of: (i) communication of acceptance by Reseller, (ii) use of the Hardware in a commercial or production environment, or (iii) fifteen (15) days after shipment from BluBØX.

b.     Software.  
There is no “acceptance” of the BluSKY Software: acceptance is de-facto upon the first element being recorded in the BluSKY databases.

 

6.     Terms and Method of Payment

a.     If non-recurring revenue items are delivered in installments, Reseller will pay separately for each installment. Payment will be made for all Hardware without regard to whether Reseller has made or plans to make an inspection thereof.

b.     Recurring revenue items shall be invoiced monthly on the first of the month to reflect usage in the prior month.  The invoice will cover ALL of Reseller’s installations, one line item per installation. 

c.      Where BluBØX has extended credit to Reseller, the terms of payment will be Net thirty (30) days from the date of invoice.

d.     Where BluBØX has not extended, or has suspended or withdrawn credit from Reseller, orders must be paid either cash-in-advance or by credit card at the time of order.  

e.     Reseller is required to maintain good financial standing with BluBØX.  Amounts remaining unpaid more than sixty (60) days from date of invoice will bear interest at the lesser of 1½% per month or the maximum rate permitted by law. 

f.      Uncontested non-recurring revenue invoices:    
If Reseller fails to make full payment on one or more such invoices within forty five (45) days from the date of the invoice, BluBØX may, upon five (5) days written notice (in addition to any other remedies available hereunder or at law or equity), (i) change Reseller’s payment terms for all new invoices of any type to cash-in-advance or by credit card only, and or ii) suspend performance under this Agreement in whole or in part.

g.     Uncontested items of recurring revenue invoices:  
If Reseller fails to make payment on any uncontested items of a recurring revenue invoice within forty five (45) days from the date of the invoice, BluBØX may, upon five (5) days written notice (in addition to any other remedies available hereunder or at law or equity), i) change Reseller’s payment terms for all new invoices of any type to cash-in-advance or by credit card only, and ii) terminate BluSKY support for the Reseller’s End User accounts for which Licenses remain unpaid.

 

7.     Product Returns

a.     An RMA must be requested by Client and received from BluB0X before an item is returned.

b.     Only items that are moving reasonably out of BluB0X inventory or are returnable to the OEM shall be accepted for return - BluB0X’s sole determination.

c.      Restocking fee will be 33%.

d.     Returned items must be like-new when received and in their original shipping boxes.   Items received that do not meet these criteria will not be credited and must be picked-up from BluB0X’s dock by Client’s shipper within 30 days or they will be disposed of.

e.     Freight charges and insurance in any direction are the Client’s responsibility.

f.      Any damage in shipment is the Client’s responsibility.  There is no refund for damaged products.

g.     Refunds are strictly in the form of credits.  Not cash.

h.     Client is encouraged not to return items, but to consider putting them into service inventory or hold them for future sale.

 

8.    Reseller’s Obligations.

a.       Promotion of Products. 
Reseller will actively promote and resell the Products in the Territory during the Term and will install and service such Products in the Territory to the reasonable satisfaction of BluBØX.  Reseller will promptly establish and maintain during the Term an adequate number of full-time salespersons, installers and service technicians, duly trained and competent in such work, so that the marketing, installation and service of the Products will be at all times of the highest standard.  During the Term, Reseller will at all times adhere to any then-current BluBØX Certification Programs and Reseller Program Guides both of which shall be commercially reasonable. 

b.   Leads Provided by BluBØX.  
Reseller will not supply any competitive products to a lead that was furnished by BluBØX unless authorized in writing by BluBØX.

c.     Reseller’s Responsibilities. 
Reseller will pay all costs and expenses by Reseller in connection with the fulfillment of its obligations hereunder, including but not limited to commissions or payments made to sales representatives or employees of Reseller and any expenses incurred in connection with the fulfillment of such obligations.  Reseller will purchase, resell, license, distribute, install and service the Products in its own name and on its own behalf and will operate its business at its own risk.  Reseller will not be and will not hold itself out in any manner whatsoever, as an agent of BluBØX.

d.     Preservation of BluBØX Goodwill. 
Reseller agrees to conduct business in a manner that reflects favorably at all times on the reputation of BluBØX and its Products, and not to engage in deceptive, misleading or unethical practices.  Reseller will not make any representations, warranties or guarantees with respect to the Products that are inconsistent with those made by BluBØX in its published literature.    

e.     BluSKY Licenses. 
Reseller will sell BluSKY licenses to its new End-User clients per the general terms and conditions of the BluSKY License Agreement appearing as Exhibit C to this Agreement.

f.     Distribution of Hardware & Firmware.  

i.     Reseller will resell BluBØX Hardware only for use with the BluSKY website.  

ii.     Price Category A BluBØX Hardware must be purchased from BluB0X and installed in conjunction with the BluSKY software.  Substitutions are not allowed and shall be considered a violation of this Agreement.  

iii.     Take-overs that are registered with BluBØX are not subject to clause 7.f. ii. above.  

iv.     BluBØX grants Reseller a non-exclusive and, except as provided below, non-transferable “Right-To-Use license” (the “RTU License”) for the firmware that is embedded or installed in any component of Hardware where no separate price is stated in the Product List for such firmware.  When reselling Hardware in accordance with the terms and conditions of this Agreement, Reseller may sublicense the RTU License to its End Users. The RTU License: (i) will be perpetual, starting when Reseller pays BluBØX the full purchase price for the Hardware item.

g.      Quotas.  
Reseller will use commercially reasonable efforts to satisfy the applicable quotas for each Quota Period, as specified in Exhibit B.  For the avoidance of doubt, the failure by Reseller to satisfy such quotas will be a material breach of this Agreement by Reseller.

h.      First-line Technical Support. 
BluBØX Reseller will provide End Users first-line technical support services relating to the Products provided by Reseller to End Users.  

i.      Compliance with Export Control Laws. 
The license and distribution of the Products hereunder is subject to the export control laws of the United States which may include, without limitation, the U.S. Export Administration Regulations, the Trading With the Enemy Act, the International Emergency Economic Powers Act, the Arms Expert Control Act and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), as amended from time-to-time (collectively, the “Export Control Laws”).  All actions taken by Reseller in furtherance of fulfillment of this Agreement will be in compliance with applicable Export Control Laws.  Reseller will not export, re-export or license any Product to any parties located in Iran, Cuba, North Korea, Syria, Sudan or any other countries prohibited under U.S. embargoes or sanctions programs maintained by the OFAC or otherwise prohibited under the Export Control Laws.  In addition, Reseller will not export, re-export or license any Product to any parties that are named as a “Specially Designated National” or “Blocked Person” as designated by the OFAC (which is currently published under the Internet address http://www.treas.gov/offices/eotffc/ofac). Reseller further agrees that it will cooperate fully with BluBØX in furnishing BluBØX with all necessary information and certificates, including End User certificates, that BluBØX may require in order to obtain licenses, comply with export recordkeeping requirements and otherwise comply with the Export Control Laws.

j.     Compliance with Laws Generally. 
Reseller will comply with all laws, rules and regulations applicable to Reseller and the performance of Reseller’s obligations under this Agreement. Reseller will obtain and maintain in full force and effect all applicable permits and/or licenses necessary to comply with all applicable requirements of law related to the conduct of its business and affairs and the purchase, receipt, sublicense and resale of the Products, as applicable, and the installation, use, operation, and support thereof.k.     Reseller Services.  
Reseller warrants that all services that it provides related to the resale of the Hardware (including installation, service and warranty support) and the fulfillment of its first-line technical support service obligations as an authorized BluBØX reseller will be provided in a timely, professional and workmanlike manner. 

 

9     Training and Technical Support.

a.      Training. 
BluBØX will provide sales and technical training in accordance with Exhibit B – Section 2.  Further training, specialty training or certification and re-certification training shall be delivered through regularly-scheduled on-line courses at BluBØX’s then-current rates for training services.  Optionally Reseller can arrange specific training for members of its staff, either on-line or on-premises, and such training shall be delivered at BluBØX’s then-current hourly rates for training services, plus reimbursement for instructor’s travel and living costs, if any.  

b.     Technical Support. 
Subject to the terms and conditions of this Agreement, during the Term BluBØX will provide Reseller, free of additional charge, technical helpdesk and email support for the Products from 8AM to 9PM (Eastern Time) Monday through Friday, excluding BluBØX holidays.    

 

10.     Limited Warranty.

a      Warranty.  
BluBØX warrants that the BluBØX Hardware will be free from material defects in materials and/or workmanship for a period of one (1) year from the date of shipment (the “Warranty Period”). There is no warranty for the BluBØX Hardware after the Warranty Period.  BluBØX does not warrant Third-Party Hardware that it may sell to Reseller.  Third Party products shall be covered by the original manufacturer’s warranty (if any).    

b.     Sole and Exclusive Remedies. 
BluBØX’s sole and exclusive liability for any warrantied Hardware will be (at BluBØX’s option) to i) credit Reseller’s account for the original purchase price of the Hardware, or to i) either repair or replace the Hardware.  Repairs shall be completed with new, reconditioned, or factory-rebuilt parts at BluBØX’s sole option.  Warranty benefits shall be extended only if: (i) BluBØX is promptly notified by Reseller in writing upon discovery (and within the applicable Warranty Period) that the BluBØX Hardware was found to have failed or be defective – and the notification contains a detailed explanation of any alleged deficiencies, (ii) such BluBØX Hardware is returned to BluBØX, F.O.B. BluBØX’s factory or warehouse, and (iii) BluBØX’s examination of the returned Hardware indicates that the alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing.  If the returned Hardware is found to be defective, BluBØX will reimburse Reseller for the reasonable transportation charges paid by Reseller for the return of the Hardware.  Reseller must fill-in a Return Materials Authorization form (RMA) for the return of the Hardware and must obtain an RMA number from BluBØX before returning the Hardware.  The Hardware must be returned with complete identification, freight prepaid, and in accordance with BluBØX’s instructions or it will not be accepted.  In no event will BluBØX be responsible for goods returned without proper authorization.

c.     Recurring Revenue Licenses and RTU Agreements.  
Any warranty with respect to a BluSKY Monthly License Agreement that was sold by Reseller to its End Users, or to a Right-To-Use Agreement (RTU) that was sub-licensed by Reseller to its End Users, will run directly from BluBØX to the End User, as set forth in the BluSKY License Agreement or RTU Agreement.  In regard to these Agreements, Reseller will not make (i) any representation or warranty whatsoever on behalf of BluBØX, (ii) any representation or warranty concerning the quality, performance or other characteristics of the Products other than those which are consistent in all respects with, and do not expand the scope of, the warranties provided by BluBØX, (iii) any commitment to modify the BluBØX Product, or (iv) any statement, representation or act indicating that Reseller owns or otherwise has any rights in or to the Products. Reseller hereby agrees to indemnify and hold BluBØX harmless from and against any damage or expense (including reasonable attorneys’ fees) resulting from any representation, warranty or commitment made by Reseller in violation of this Section 9(c).

d.       Disclaimers.  
BluBØX does not warrant that: (i) the Products will meet Reseller’s requirements, (ii) the operation of BluSKY or any other BluBØX product will be uninterrupted or error free, or (iii) the BluSKY or other BluBØX products will operate in combination or be compatible to other hardware or software not supplied by BluBØX, except as expressly approved in writing by BluBØX.  

e.       Take Overs. 
In the event of a take-over, Reseller must provide a written identification of the system components as part of an “Application for Takeover-Approval” and BluBØX will determine whether the system qualifies for takeover.  Professional fees will be charged.   In time, BluBØX will be able to publish a list of components that are approved for take-over.  At that time, Reseller shall be able to move forward with a take-over without consultation with BluBØX.  However, Professional fees will be charged.    

f.     EXCEPT FOR THE LIMITED WARRANTIES ABOVE, THE PRODUCTS AND DOCUMENTATION ARE PROVIDED “AS IS”. THE LIMITED WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR TERMS, WHETHER EXPRESS OR IMPLIED BY STATUTE, TRADE USAGE OR COURSE OF DEALING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR TITLE.  THE LIMITED WARRANTIES ABOVE DO NOT COVER NON-DEFECT DAMAGE, DAMAGE CAUSED BY IMPROPER INSTALLATION, OPERATION OR CARE (INCLUDING, BUT NOT LIMITED TO ABUSE, MISUSE, FAILURE TO PROVIDE REASONABLE AND NECESSARY MAINTENANCE, OR ANY ALTERATIONS OR MODIFICATIONS TO THE PRODUCT), LABOR CHARGES FOR REMOVING OR REINSTALLING A REPAIRED OR REPLACED ITEM, OR REPLACEMENT BATTERIES. 

 

11.     “Term-of the-Agreement” and Termination of the Agreement.

a.     Term-of the Agreement. 
Unless sooner terminated pursuant to Sections 10(b)-(d) below, the initial term of this Agreement will commence on the Effective Date and will continue thereafter for a period of three (3) years (the “Initial Term”). Following the expiration of the Initial Term, this Agreement will be automatically renewed for consecutive three (3) year periods (each a “Renewal Term”) on each anniversary of the Effective Date.  The Initial Term and any Renewal Terms are collectively referred to herein as “the Term-of-the Agreement”.

b.     Termination for Material Breach.  
Either party may immediately terminate this Agreement effective upon delivery of written notice to the other party if such other party materially breaches this Agreement and fails to cure such breach within a period of thirty (30) days after delivery of written notice thereof.

c.      Termination for Insolvency. 
Either party may immediately terminate this Agreement effective upon delivery of written notice to the other party if such other party: (i) admits in writing its inability to pay its debts generally as they become due, (ii) makes a general assignment for the benefit of creditors, (iii) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it, (iv) is adjudicated by a court of competent jurisdiction as being bankrupt or insolvent, (v) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization, or (vi) has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee, or assignee in bankruptcy or in insolvency covering all or substantially all of its property or providing for the liquidation of its property or business affairs. 

d.     Effects of Termination.  

Upon termination or expiration of this Agreement:

i.     Reseller shall be classified as an Inactive Reseller.   See Section 10. e below for a description of Inactive Reseller rights.

ii.     Reseller will cease to act as an active Reseller of the Products, 

iii.    All sums due to BluBØX but not yet paid will become immediately due and payable, 

 iv.   Reseller will return to BluBØX all BluBØX Proprietary Information (and all copies thereof) in the possession or under the control of Reseller and all sales promotion material obtained in accordance with this Agreement. Upon request by BluBØX, a duly authorized representative of Reseller will certify in writing to BluBØX that all such materials have been returned to BluBØX.   

v.  Reseller agrees, if so requested by any of its End-Users, to cooperate as reasonably-required to transition the End-User and any ongoing contractual responsibilities it has with such End User to an authorized BluBØX Reseller or partner of End-User’s choice.

e. Inactive Reseller Status

i.     Resellers shall be classified as “Inactive” when their right to pursue new clients has expired.

ii.    Inactive Resellers may continue to collect recurring revenue from their clients, and must promptly pay BluBØX’s monthly invoices for such services.

iii.   Inactive Resellers may order BluBØX hardware items and Professional Services for their existing clients as needed to expand existing systems.  The associated monthly licenses will be automatically added to the monthly invoices.

iv.   Inactive Resellers must pay their invoices promptly, else they shall be subject to the penalties and remedies provided for Active Resellers in this Agreement.

f.      Survival. 
Notwithstanding the termination or expiration of this Agreement, it is acknowledged and agreed that those rights and obligations which by their nature are intended to survive such termination or expiration will survive, including without limitation Sections 10(e) and (f), and 11-17 (inclusive).

 

12.  Indemnification.

a.     Indemnification by BluBØX.

i.  Subject to the provisions of Sections 11(b) and (c) below, BluBØX will indemnify Reseller and hold Reseller harmless against any and all direct damages finally awarded against Reseller by a court of competent jurisdiction or agreed to in a written settlement agreement signed by BluBØX arising out of any claim by a third party that any Product directly infringes any U.S. copyright or trademark, or misappropriates any trade secret, of such third party.

ii.   BluBØX shall indemnify and hold harmless Reseller and all of its respective Affiliates, officers, employees, directors, distributors , suppliers, customers and agents from and against any and all liability, loss, damage, or expense, including legal fees and costs of defense, arising from any claim, demand, action, or cause of action asserted against Reseller as a result of:  (i) BluBØX’s breach of this Agreement; (ii) negligence or willful misconduct on the part of BluBØX, its employees, subcontractors, or agents; and/or (iii) BluBØX’s failure to comply with federal, state, local, or other applicable law.

b.     Conditions. 

BluBØX’s indemnification obligations under Section 11(a) are subject to the following conditions: (i) Reseller will provide BluBØX with prompt written notice of any claim, (ii) Reseller will permit BluBØX to assume and control the defense and settlement of any claim at BluBØX’s cost and expense, (iii) Reseller will not prejudice the defense of the claim, and (iv) Reseller will provide BluBØX with such assistance, documents, authority and information as it may reasonably require in relation to the claim and defense or settlement thereof.

c.      Exceptions. 
BluBØX will have no liability to Reseller under Section 11(a) for any claim that: (i) arises out of any unauthorized use, reproduction, or distribution of any Product, (b) arises out of any modification or alteration of any Product by anyone other than BluBØX; (c) arises out of the use of any Product in combination with any other software or hardware not approved in writing by BluBØX, or (d) could have been avoided by use of the then-current version or release of any Firmware or Locally installed software.

d.      Disruption of Use. 
In addition, if any BluBØX Application becomes, or in BluBØX’s opinion is likely to become, the subject of an infringement or misappropriation claim that may disrupt End User’s use of the BluBØX Application, BluBØX may, at its own expense and option, elect to either: (i) procure the right for the End User to continue using the BluBØX Application in accordance with the provisions of this Agreement, the applicable EULA or Subscription Agreement, (ii) make such alterations, modifications or adjustments to the BluBØX Application so that the infringing BluBØX Application becomes non-infringing without incurring a material diminution in performance or function, (iii) replace the BluBØX Application with a non-infringing substantially similar substitute, or (iv) if neither (i), (ii) nor (iii) can be achieved after the exercise of commercially reasonable efforts, terminate the license or service involving the affected BluBØX Application and refund to Reseller an amount equal to all amounts paid by Reseller to BluBØX as license or subscription fees with respect to the affected BluBØX Application, less an amount equal to depreciation of such license or subscription fees calculated on a three-year straight-line basis from the delivery or commencement date.

e.     Sole Remedies. 
SECTIONS 11(a)-(d) STATE BLUBØX’S ENTIRE LIABILITY, AND RESELLER’S SOLE REMEDIES, FOR INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS IN RELATION TO THE PRODUCTS.

f.      Indemnification by Reseller.  
Reseller will indemnify, defend, and hold BluBØX harmless against any and all damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by BluBØX in connection with any third-party suit, action, claim or proceeding arising out of or in connection with: (i) Reseller’s failure to comply with applicable laws, rules, or regulations, (ii) Reseller’s breach of this Agreement, or (iii) the negligence or intentional misconduct of Reseller or its employees and agents, including, without limitation, faulty installation of Products.

 

13.  Limitation of Liability.

a.     No Consequential 
Damages. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR COVER DAMAGES, HOWSOEVER ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE, OR INABILITY TO USE, ANY PRODUCT, EVEN IF BLUBØX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

i.     Cap on Liability. 
EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER, NEITHER PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR damages (regardless of the form of action, whether in contract, tort or otherwise) WILL exceed the amount of fees paid by Reseller under this Agreement and, if such damages relate to particular PRODUCTS, such liability WILL be limited to the ­fees paid for such PRODUCTS.

ii.     End User Content.  
BLUBØX IS NOT RESPONSIBLE FOR THE CONTENT OF ANY AUDIOVISUAL RECORDINGS RECORDED WITH THE USE OR AID OF, OR STORED ON OR WITHIN, THE PRODUCTS.  RESELLER ACKNOWLEDGES AND AGREES THAT THE PRODUCTS ARE PROHIBITED FROM USE IN CONNECTION WITH ANY OFFENSIVE, SEXUAL, DEFAMATORY, OR ILLEGAL CONDUCT.

b.     THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

14.  Confidentiality.

a.     Previous Agreements. 
If the parties have previously signed any agreements governing the disclosure of Confidential Information, those prior agreements will remain in full force and effect to the extent they apply prior to the date of this Agreement or relate to subject matter not covered by this Agreement.

b.     Confidentiality and Non-use Obligations. 
The Receiving Party will keep confidential all Confidential Information of the Disclosing Party during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement, and will only use such Confidential Information in connection with the performance of this Agreement.  Each party will protect the other’s Confidential Information from unauthorized distribution or use using the same degree of care it uses to protect its own like information, but no less than a reasonable degree of care.  All Confidential Information supplied by the Disclosing Party to the Receiving Party pursuant to the provisions of this Agreement, together with all copies thereof, will remain the property of the Disclosing Party.

c.      Equitable Relief. 
Each party acknowledges and agrees that, due to the unique nature of the Confidential Information, there can be no adequate remedy at law for breach of this Section 13 and that such breach would cause irreparable harm to the non-breaching party; therefore the non-breaching party will be entitled to seek immediate injunctive relief, in addition to any remedies otherwise available at law or under this Agreement.


15.  Intellectual Property Rights.

a.     Ownership. 
All Intellectual Property Rights and other rights relating to the Products and any modifications of or Derivative Works based in whole or in part thereon (whether or not authorized) will at all times be the exclusive property of BluBØX or its licensors, and all use of such rights will accrue to the benefit of BluBØX. Reseller will not challenge BluBØX’s title to such intellectual property, including, without limitation, the BluBØX Marks, oppose any registration thereof, or challenge the validity of this Agreement. Furthermore, Reseller will not register, nor attempt to register, any trade name, trademark, service mark, design or domain name which, in whole or in part, incorporates or is confusingly similar to the BluBØX Marks, without the prior written consent of BluBØX. Nothing contained in this Agreement will constitute or be construed as a transfer of ownership of any of the Intellectual Property Rights of BluBØX or its licensors or to otherwise give Reseller any proprietary rights to any of the Intellectual Property Rights of BluBØX or its licensors. Reseller will have no right, title or interest in the Products except as expressly set forth in this Agreement.    

b.     Restrictions.  
Reseller will not (nor will it permit any third party under its control to): (i) copy or manufacture any BluBØX software, whether installed in the Cloud or locally, or any portion thereof, (ii) translate, modify, adapt, enhance, extend, decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of any BluBØX software, by any means whatsoever, (iii) except as authorized in connection with the BluSKY Monthly License, use BluBØX software and BluSKY in particular to provide any hosting facility management, bureau service, or Software as a Service (SaaS) or otherwise use BluBØX software to process the data of any third party, or (iv) modify, or create Derivative Works based on or including (in whole or in part), the BluBØX software, and BluSKY in particular without written consent of BluBØX.

c.      Notice of Breach.  
Reseller will promptly notify BluBØX of any and all material breaches of any License Agreement that may come to Reseller’s attention, and Reseller will assist BluBØX, at BluBØX’s expense, in all steps reasonably necessary to terminate any breached license if the breach is not curable or if it is not cured promptly within any applicable cure period.

d.     Notice of Infringement.  
Reseller will promptly notify BluBØX of any actual, threatened or suspected infringement of the BluBØX Marks or BluBØX’s other Intellectual Property Rights relating to the Products, as well as any claims or allegations that the Products infringe the rights of any third party.

e.     Cooperation.  
Reseller agrees to use reasonable efforts to protect BluBØX’s Intellectual Property Rights and to cooperate in BluBØX’s efforts to protect its Intellectual Property Rights.  At BluBØX’s request, Reseller will execute any instruments requested by BluBØX to perfect BluBØX’s or its licensors’ ownership rights in the Intellectual Property Rights relating to the Products.

 

16.  Limited Trademark License.  BluBØX grants Reseller a non-exclusive, non-transferable license during the Term to use the BluBØX Marks to promote and market the Products in the Territory in accordance with any written visual or usage guidelines provided from time-to-time by BluBØX. Reseller will also have the right during the Term to identify to the public that it is an authorized reseller of the Products.

 

17.  General Provisions.  

a.     Entire Agreement.  
This Agreement and its Exhibits constitute the entire arrangement and understanding between the parties and supersede all prior agreements, negotiations and discussions relating to the subject matter of this Agreement, whether written or verbal. Each party acknowledges that in entering into and performing this Agreement it does not do so on the basis of, and does not rely on any statement or representation or warranty or understanding other than as expressly contained in this Agreement at the date hereof or subsequently included within this Agreement pursuant to Section 16(b).

b.     Amendments and Waivers.  
In order to be valid, amendments and supplements to this Agreement must be made in writing and signed by both parties.  In no event will any delay, failure or omission of a party in enforcing, exercising or pursuing any right, claim or remedy under this Agreement be deemed as a waiver thereof, unless such right, claim or remedy has been expressly waived in writing.

c.      Notices. 
Except as otherwise specifically set forth herein, all notices and other communications given or made pursuant to this Agreement will be in writing and will be deemed effectively delivered: (i) if sent by certified or registered mail, on the date received, (ii) if sent by a nationally recognized overnight courier, on the date delivered, and (iii) if sent by e-mail on the date of confirmed electronic transmission.  All notices and communications will be sent to the respective parties in accordance with the contact information set out on the signature page of this Agreement.  Either party may change its contact information by delivering written notice to the other party in the manner provided above.

d.     Force Majeure.  
BluBØX will have no liability under this Agreement to the extent that it is delayed, prevented or hindered in performing any of its obligations under this Agreement as a result of a Force Majeure Event.  Notwithstanding the foregoing, Reseller may terminate this Agreement effective immediately upon delivery of written notice to BluBØX if the period that BluBØX is delayed, prevented or hindered from performing its obligations because of a Force Majeure Event is for more than three (3) months.

e.     Headings. 
Headings are used in this Agreement for convenience only and will not affect any construction or interpretation of this Agreement.

f.      Partial Invalidity.  
If any provision of this Agreement or the application of it will be declared or deemed void, invalid or unenforceable in whole or in part for any reason, the parties will amend this Agreement in order to give effect to, so far as is possible, the intent of this Agreement. If the parties fail to amend this Agreement, the provision, which is void, invalid or unenforceable, will be deemed deleted and the remaining provisions of this Agreement will continue in full force and effect.

g.     Governing Law; Venue; Jurisdiction. 
This Agreement will, in all respects, including all matters of construction, validity and performance, be governed by the laws of the State of Massachusetts, United States (excluding the United Nations Convention on Contracts for the International Sale of Goods), without regard to any conflicts of law principles which may result in the application of the laws of another jurisdiction.  Any suit, action or proceeding arising in connection with this Agreement will be brought in the state or federal courts sitting in the State of Massachusetts and the parties hereby expressly submit to the jurisdiction of such courts for the purpose of any such suit, action, or proceeding.  The parties hereby irrevocably consent to the service of process in any suit, action or proceeding in said courts by the mailing thereof by registered or certified mail, postage prepaid, to the parties’ respective addresses pursuant to Section 16(c) of this Agreement.  Each party hereby irrevocably waives any objections which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement if brought in Massachusetts, and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

h.     Assignment.  
Reseller may not assign this Agreement or its rights and obligations hereunder, either in whole or in part, without the prior written consent of BluBØX; provided, however, that Reseller may assign its rights under this Agreement in whole to a successor in interest in the event of a sale of all or substantially all of Reseller’s assets; provided further that if any such proposed successor is (a) in BluBØX’s sole discretion, a competitor of BluBØX, or (ii) an entity with which BluBØX has had a Reseller, dealer or other channel partner relationship within the past two years, the provisions of Section 16(i)  will apply as if the asset sale was a “Transfer”. Any attempted assignment or delegation by Reseller in violation of this will be null and void and will constitute a material breach of this Agreement.  

i.       Change of Control.  
Reseller will comply with the following procedure in the event of a transfer, conveyance or other change in control and/or majority ownership of Reseller (a “Transfer”), including, but not limited to, all Transfers requiring a change in Reseller’s federal income tax employer’s identification number:

i.   Not less than thirty (30) days prior to the closing or other effective date of the Transfer, Reseller will give BluBØX notice of the Transfer.  The notice will include a detailed explanation of the circumstances surrounding, and reasons for, the Transfer.

ii.  In the event that the Transfer is to any competitor of BluBØX (as determined in the reasonable discretion of BluBØX) or to any former reseller, dealer or other partner of BluBØX, BluBØX may elect, within sixty (60) days of the earlier of: (1) the date of receipt of Reseller’s notice of such Transfer, or (2) the effective date of the Transfer, to terminate this Agreement by delivering a written notice of termination to Reseller specifying the date of termination.

j.     BluBØX’s rights to terminate this Agreement as set forth in this Section are in addition to those set forth elsewhere in this Agreement.

k.       UCITA. 
THE PARTIES AGREE THAT THE UNIFORM COMPUTER TRANSACTIONS ACT OR ANY VERSION THEREOF, ADOPTED BY ANY STATE, IN ANY FORM ("UCITA"), WILL NOT APPLY TO THIS AGREEMENT.  TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S) CONTAINED THEREIN.

l.     Waiver of Jury Trial.  
The Parties expressly waive any right to a jury trial regarding disputes related to this Agreement.

m.       No Publicity. 
Reseller may not issue any press release announcing Resellers relationship with BluBØX without the prior written consent of BluBØX.  BluBØX may not issue any press release announcement.

n.   Government Contracts. 
The BluBØX Software and Hardware, and the related Documentation are "Commercial Items" as defined in 48 C.F.R. 2.101 consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12,212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.

o.     Counterparts.  
This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which, taken together, will constitute one and the same instrument.  The exchange of a fully executed Agreement (counterparts or otherwise) by electronic means will be sufficient to bind the parties to the terms and conditions of this Agreement.

 

 

SIGNATURES ON PAGE BELOW

 

IN WITNESS WHEREOF, the parties have caused this Reseller Agreement to be signed by their duly authorized representatives as of the Effective Date.

BluBØX Systems, Inc.

 

_______________________________________

Patrick deCavaignac

Sr. Vice President and COO

AND:

 

_______________________________________

Reseller Company

 

_______________________________________

Signature

 

_______________________________________

Name

 

_______________________________________

Title

 

_______________________________________

Date of Signature / Effective Date of Agreement

 

PLEASE BE SURE TO FILL-IN THE INFORMATION BELOW:

Primary Contact Name:

E-Mail Address:

Phone #:

Landline:

 

Accounting Contact Name:

E-Mail Address:

Phone #:

Landline:

 

 

 

 

EXHIBIT A

DEFINED TERMS

 

The following terms are used in the Agreement and will have the following meanings:

BluBØX Website” means the BluBØX-hosted website for use by the public, Resellers, and End-Users to learn about BluBØX and its products, as the same may be modified by BluBØX from time-to-time.

BluBØX Hardware” means the hardware, equipment, parts, components, and accessories that are proprietary to BluBØX, as set forth in Exhibit B, and a as may be amended by BluBØX from time-to-time.

BluBØX Marks” means the trademarks, service marks, trade names, logos, designs, or slogans used by BluBØX to identify the Products, whether or not specifically recognized, registered or perfected under the laws in the Territory. 

BluBØX Network” means the telecommunications network over which certain Hardware components of a BluBØX System transmits and receive data to and from the Cloud.

 “BluBØX Servers” means the computer servers located in Microsoft Azure TM that host and operate the BluBØX Applications, BluBØX Web Site, and User Interface.

BluBØX Technology” means, collectively, the applicable BluBØX Applications, BluBØX Network, BluBØX Server, BluBØX Web Sites, and User Interface used by BluBØX to provide the Subscription Service(s).

BluBØX Web Sites” means the Internet web sites that are or will be designed, developed, hosted, operated, and maintained by or on behalf of BluBØX, including BluSKY, BluINFO and BluBUY, that run on the BluBØX Servers and which are currently located at URLs: www.BluBØX.comhttps://knowledge.blub0x.com/,https://BluSKY.BluB0X.com and any additional, successor or replacement web sites.

“BluBUY” means BluBØX’s hosted online software that, integrated with other BluBØX software, provides BluBØX’s customers with a comprehensive e-commerce site.

 “BluSKY” means BluBØX’s hosted online software that, integrated with BluBØX hardware, provides the BluBØX integrated security solution.

“BluSKY Monthly License” shall mean a license sold by the Reseller to its End User clients for the use of the BluSKY cloud-based software.

“BluCHIP Hardware” shall mean those devices that have been fabricated by BluBØX, even if they contain one or more non-proprietary components.

"Commitment Levels" measure the value of Products to be purchased by Reseller over a period of one (1) year.  Commitment levels are listed in Exhibit B, as hereafter amended by the parties from time-to-time.

 “Confidential Information means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with this Agreement which is disclosed in writing, verbally or by inspection and is identified as “confidential” or “proprietary” by the Disclosing Party, or which the Receiving Party should have reason to believe is treated as confidential or proprietary by the Disclosing Party. Any information, in whatever form, disclosed by BluBØX to Reseller that relates to the Products and that is not publicly known is “Confidential Information.”  Confidential Information does not include information that: (a) enters the public domain through no fault of the Receiving Party, (b) is communicated to the Receiving Party by a third party under no obligation of confidentiality, (c) has been independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party, (d) was in the Receiving Party’s lawful possession prior to disclosure and had not been obtained either directly or indirectly from the Disclosing Party, or (e) is required to be disclosed by law, provided the Receiving Party has promptly notified the Disclosing Party in writing of such requirement and allowed the Disclosing Party a reasonable time to oppose such requirement.

Data Center” means the Cloud-based facilities used by BluBØX to provide the licensed services.

Derivative Works” has the meaning set forth in the United States Copyright Act. 

Discount Level” means the amount of discount from BluBØX’s then-current standard list (MSRP) price that is applied to licenses or purchases of Products made by Reseller hereunder.  Discount Levels in effect as of the Effective Date are listed in Exhibit B, which may hereafter be amended by the parties from time-to-time.

Documentation” means the then-current user documentation published by BluBØX for the Products in BluINFO or in other electronic form, as the same may be modified by BluBØX from time-to-time.

End User” means any organization or person to whom Reseller has licensed or resold Products for actual use and not for resale in accordance with the terms and conditions of this Agreement.  For the avoidance of doubt, the term “End User” does not include other BluBØX resellers or third-party resellers, sub-resellers or distributors.

Excused Downtime” means any period of unavailability or inoperability caused by a Force Majeure Event.

Force Majeure Event” means any circumstance or occurrence beyond the reasonable control of BluBØX, including, without limitation, acts or omissions by a public authority, acts of God, strikes, blockades, acts of terrorism, riots, storms, earthquakes, explosions, fires, floods, Internet or telecommunications failures/outages/delays, third-party hosting facility failures, denial of service attacks, or other similar occurrences.

Hardware” means, individually and collectively, the BluBØX Hardware and the Third-Party Hardware sold by BluB0X.

Intellectual Property Rights” means, collectively, any and all: (a) patents and inventions, (b) trademarks, service marks, trade names, trade dress and logos, (c) copyrights, (d) trade secrets, (e) moral rights, and (f) all other intellectual and industrial property or proprietary rights, in each case, whether now existing or created or arising hereafter, in any jurisdiction world-wide. 

 “Order Form” means a document pursuant to which Reseller orders Products pursuant to the terms and conditions of this Agreement, and which is executed by the parties, in a form provided by BluBØX from time-to-time.

Planned Downtime” means any period during which any Subscription Service is unavailable for maintenance, including for updates, enhancements, patches, fixes, or error corrections. 

"Products" mean, individually and collectively, the authorized Hardware, Services, Subscription Service(s), and such other products and services as the parties may mutually agree to add to Exhibit B from time-to-time.

"Product List" means the list of the Products available for sale by BluBØX to Reseller for resale pursuant to the terms and conditions of this Agreement and BluBØX’s respective list (MSRP) prices therefor, as are in effect from time-to-time. 

Purchase Order” means a written purchase order from Reseller in a form acceptable to BluBØX which incorporates by reference the terms and conditions of this Agreement. 

 “Services” means, individually and collectively, the services specified in Exhibit B, including, without limitation, Professional Services and System Support Services, as hereafter amended by the parties from time-to-time.

System Support Services” means the maintenance and support services made available by BluBØX, at the prices set forth in the Product List.

"Term-of-the-Agreement” means the time that this Reseller Agreement is in effect, as defined in Section 10.  It is not to be confused with the “Term” of a BluSKY License” which means the time that a License Agreement is in effect as defined in Exhibit C: BluSKY License Agreement”.

“Territory" means the geographic areas and/or markets listed in Exhibit B, as hereafter amended by the parties from time-to-time.

Third-party Hardware” means the third-party hardware, equipment, parts, components, and accessories sold but not manufactured by BluBØX as set forth in the Product List.

User Interface” means the web page designed, developed, hosted, operated, and maintained by or on behalf of BluBØX on the BluBØX Servers and BluBØX Web Sites.

 

 

EXHIBIT B

RESELLER’S AGREEMENT TERMS & CONDITIONS

The Effective Date of this Exhibit B is the date of signature that appears on Page 17 above.

1.     Committed number of employees with basic BluBØX Certification that Reseller shall maintain:

a.     Reseller shall ramp-up the number of employees with BluBØX certification as shown in the table below:

STAFFING COMMITMENT TABLE

 

Period 1

(to end of current Year)

 

Year 2

 

Year 3

# of Sales Persons

 

 

 

# of Technical Staff

 

 

 

b.     The actual number of certified staff on-hand will be reviewed and adjusted annually when this Agreement comes up for renewal.

 

2.     Reseller Staff Training and Certification

a.     BluBØX shall offer several levels of certification for Resellers’ Sales Executives and Technical Staff.  

b.     Certifications are for individuals and cannot be transferred from one to the other.  Certifications follow individuals, wherever they are employed. 

c.      Resellers may obtain training and certification for their authorized sub-contractors through the regular BluBØX training and certification program.

d.     BluBØX’s training consists of on-line “Instructor-led” courses only at this time.  As the training function gathers experience and momentum, BluBØX will institute an on-line self-training option.   

e.     Training can also be delivered “On-Premises” for a fee and via special arrangements.  

f.      Sales Executives must attend the Sales training courses and the Technical staff will attend the technical courses – (the courses are different).   

i.     Sales training is expected to consume 8 hours.  It will be delivered in 2-hour modules.  Sales Executives who have attended all the Sales modules shall receive Basic Certification.  Later, BluBØX may propose advanced training courses on designated topics of interest (such as Destination Control or Real-time Control).  

ii.     Technical training is expected to consume 16 hours.  Each class will cover all the modules.  Each module will take 1 to 3 hours.  Some classes may be delivered over a period of 4 days (4 hours per day); others may consist of just two (2) full days.  Technical Staff must subscribe to a certain class and cannot jump from one to the other.   Technical Staff who have attended all the Basic Technical Training Modules shall receive a Basic Certification.  Later, BluBØX will schedule advanced training courses on designated topics of interest (such as Destination Control or Real-time Control).   Completion of these courses shall earn the related Advanced Certification.  

g.     The schedule for the training courses will be published in a calendar that will be made available to all Resellers.  Resellers must register their staff to take the courses.  The number of seats per course is limited: reservations shall be on a first-come / first-served basis.

h.     Some Sales classes may sometimes be dedicated to a particular Reseller’s Sales staff, others may combine Resellers.  Reseller needs to advise a preference when the class is being booked.  

i.       Initial training courses shall be provided free of charge for up to ten (10) people so long as they attend no more than 120 days after the effective date of this Agreement.    

j.       Additional training for people beyond the above referenced ten (10), or to cover advanced topics shall be delivered on a fee basis per the then-current BluBØX Price List.  

k.      On-Premises courses must be arranged with BluBØX Professional Services.  They shall be delivered on a fee basis per the then-current BluBØX Price List plus travel and expenses for the instructor.

l.       BluBØX Sales Certifications shall be automatically delivered to all Sales people who complete the Sales training course.

m.    BluBØX Basic Technical Certifications shall initially be provided free-of-charge to all Reseller’s technical staff who complete the full Basic Technical training course stream.  

n.     When the On-Line Certification Program comes live, Technical Staff will have to take a Certification Exam to achieve certification.  The exam will be made available free of charge to Reseller’s Technical staff who have just completed a he full Basic Technical training course stream.

o.     Certification Renewals: All certifications are valid for one (1) year.  Individuals wishing to renew their BluBØX certification may go straight to the on-line certification exam, or take the appropriate courses to receive refresher and updated information.   The certification exams and the refresher courses shall be provided for a fee as shown in the BluBØX Price List.

 

3.     Demonstration Materials

a.     BluBØX Demo Databases

i.     Upon execution of this Agreement, BluBØX will make log-in credentials available to the Reseller that access the BluSKY demo databases.  These databases are for general use and must be kept pristine.  But they offer a quick path to support customer demos.

b.     Reseller Account: Upon execution of this agreement, BluBØX will create the Reseller’s “Integrator Account”.   This account gives access to the Integrator’s own BluSKY environment where wholly-owned demo databases can be created.  This environment will also support all the Reseller’s clients.

 

4.     Approved Territories

a.     Reseller is generally authorized to sell BluBØX products within the United States and its territories.

b.     The designated Territories are shown below:  

APPROVED TERRITORIES TABLE

 

Reseller’s Initials

Approved Territory

Office Address or other significant presence

1

 

 

 

2

 

 

 

3

 

 

 

4

 

 

 

5

 

 

 

Minimally, Reseller must have an office or other form of significant presence in the designated Territories.

 

5.     Authorized Products:  

a.     The Reseller is authorized to re-sell the following BluBØX products:

 X   License for use of BluSKY Software                         BluCHIP Hardware

 X   Third Party Hardware                                             Replacement Parts

 X   Associated Technical Services

 

6.     Annual Purchase Commitment and Discounts

a.     During the Term of this Agreement, Reseller and BluBØX shall agree by the last day of the current year on the next year’s Purchase Commitment level.

b.    The size of the commitment made will determine the Reseller Class as shown in the Table below:   

c.    The commitment levels shall include all so-called “one-time” items, exclusive of recurring revenue, and shall be calculated on the basis of the Reseller’s discounted prices. 

d.    The discount levels for each Reseller Class and each category of product are shown in the Table below.  The discount levels are applied to BluBØX’s then-current published MSRP Prices thus yielding the Reseller’s purchase price for each product. 

RESELLER CLASS TABLE

 

Initial

Selected

Class

RESELLER CLASS

Annual Purchase Commitment

A Level 

Product

B Level 

Product

C- Level 

Product

 

Elite

 

$350K or more

 

42%

 

25%

 

15%

 

 

Premier

 

$200K or more

 

35%

 

20%

 

12%

 

 

Certified

 

$50K or more

 

28%

 

15%

 

10%

 

 

Partner

 

N/A

 

15%

 

15%

 

10%

 

 

In addition, certain parts that are widely available from other sources and normally sold at low margins are available from BluB0X for the Reseller’s convenience and classified as U-10, U-15, U-20 and U-25.  Such parts are sold at 10%, 15%, 20% and 25% discounts respectively or at the C-level discount, whichever is smaller.

Partner Program - This is a special program intended to support smaller integrators or deal with special projects where a higher level of BluBØX participation is needed.  Under the program, BluBØX will produce the system design and associated end-user quotation in close cooperation with Reseller’s Sales staff.  BluBØX will fully project-manage the installation of the BluBØX system(s) and Reseller will provide needed on-site staff.    

 

7.     First Year Sales Volume and Discount Levels will be managed as follows:

i.     Initial Period: During the period from the date of this Agreement until the end of the current calendar year, unless agreed otherwise, the Reseller shall be established as a “Premier Reseller”. 

ii.     The Reseller’s anticipated actual volume shall be the proposed Annual Volume pro-rated to the number of days between the Effective date of this Agreement and December 31st - less 3 months (for start-up).  

Example: Effective date = 4/5/2015.   Add 3 months = 7/5/2015.  Days to the end of the year = 179 days.  Percent = 179/365 = 49%.  “Pro Rata Premier” = $200K x 49% = $98K commitment.   

iii.     Follow-on Periods: For each succeeding year thereafter, the Reseller's Classification will be established based on the prior period’s actual purchases.  Achievement of sales quotas is material to this agreement. 

 

SIGNATURES 

The signatures below indicate that the parties agreement to this Exhibit B of this Reseller Agreement.  The signatories confirm that they are duly authorized by their companies to engage their companies per the terms of this Exhibit B. 

BluBØX Systems, Inc.

 

 

_______________________________________

Patrick deCavaignac

Sr. Vice President and COO

 

 

AND:

 

 

_______________________________________

Reseller Company

 

 

_______________________________________

Signature

 

 

_______________________________________

Name

 

 

_______________________________________

Title

 

 

_______________________________________

Date of Signature / Effective Date of Exhibit

 

 

 

 

END OF EXHIBIT B
EXHIBIT C

BluSKY LICENSE AGREEMENT

GENERAL TERMS AND CONDITIONS

The Effective Date of this Exhibit C is the date of signature that appears on Page 17 above.

 

Reseller will sell BluSKY licenses to its new End-User clients. 

1.     Definitions:

An “Active” Record is one that exists in the BluSKY databases and has not been marked as deleted.  Note that records are never really deleted in the databases: they are hidden.  No license fee is due for records that have been “deleted” in this way.  Deleted records are held for reporting and historical purposes, but they can also be “undeleted”, in which case they become Active again. 

A “Facility” in BluSKY is a designated property that is serviced by a BluSKY system.  A “Facility” might be a building (in the case of a base-building system) or a tenant company office space inside a building (in the case of a system that serves the specific office space).   

A “Feature” designates a specific capability of the BluSKY system that is subject to a monthly license fee.

A License Fee” is the monthly fee that is levied on a licensable Feature when it is in use at a Facility.  License fees are levied on Facilities.  In most cases, there is only one Facility per BluSKY System, but some Systems can support more than one Facility.

 

2.     User License Agreements – Any person who is a user of BluSKY is subject to a User License Agreement.  There are two forms of User License Agreements:  

a)     The “Sponsor’s User License Agreement” (SULA)

i)      Must be signed by an executive of every End User Customer who is the paying sponsor of the system.  The person who signs on behalf of the sponsor must have proper signing authority.  

ii)     The best practice is to include the SULA with the quotation to the Customer and request that a signed copy be returned with the Customer’s Purchase Order. 

iii)    Reseller must cause the SULA to be signed before Reseller creates a record for this customer in the BluSKY databases. 

iv)    Reseller must forward a copy of the signed SULA to BluBØX immediately after it is signed.

v)     One SULA may cover any and all Facilities or Systems that are installed by Reseller for the specific End User Customer.

b)     The “End User License Agreement” (EULA):  

i)      All Users of the BluSKY databases must click-acknowledge the EULA when they first access the BluSKY databases.  BluSKY will maintain appropriate evidence of each User’s acceptance of the EULA.

ii)     The EULA is permanent and covers any usage of BluSKY by the signatory in perpetuity. 

 

3.     Term of the Sponsor User License Agreement” (SULA)

The SULA is evergreen.  It is valid over consecutive 12 month Terms.   However, it can be cancelled at any time.  The sole purpose of the Terms is to provide customers with license fee stability over thee Term s explained below.

a)     The Initial Term of the SULA covers twelve (12) monthly invoices. 

b)     The first monthly invoice for a Facility shall be rendered for the month in which the Facility record was first created in BluSKY.  It shall include the applicable Platform License and fees for any licensable item that was activated during that month.   Monthly Invoices shall then continue monthly, reflecting all the features that were active in the covered month.    

c)     The monthly license fee for each item shall remain fixed during the Term.   Obviously, the number of active features may change month-to-month, and so shall the overall license fees due, but the per-feature license fees shall remain fixed for the Term.   This provides customers with fixed pricing for the entire duration of the Term. 

d)     The billing for an Active item License can be terminated at any time during the Term by deleting the underlying record in BluSKY.  

 

4.     Renewal of the SULA – New Term

a)     The SULA shall renew automatically at the end of the Initial Term, or any subsequent Term, for a new Term of 12 billing cycles.

b)     The per-feature License Fees that shall be billed during a new Term shall be fixed, and shall be the fees that are published in the version of BluBØX’s Recurring Licenses Price List that is current when the new Term begins.  

c)     The billing for an Active Feature License can be terminated at any time during the Term by deleting the underlying record in BluSKY.  

 

5.     License Fees: 
Several items in the BluSKY databases are the basis for the recurring monthly license fees that are charged in return for the customer’s use of BluSKY.

a)     Scope of the License Fees:  License fees are charged per “Facility”.  Each Facility is defined in the BluSKY databases by way of a “Facility” record.   Most often, a Facility record defines a building.  

b)     User-based License Fees are based on the number of active user records that exist in the Facility’s databases on the last day of the month being billed.  Examples of User-based Licenses:  the Hosted Platform License or the Visitor Management License.

c)     Device-based License Fees are based on the number of active device records that exist in the Facility’s databases on the last day of the month being billed irrespective of the date the devices were installed.  Each Device License is pro-rated to the number of days that the device was active during the month.  Examples of Device-based Licenses: the Card Reader Licenses or the Camera Licenses.  

Definition of “Active”: a device is “Active” in the databases if the record exists and has not been marked as “deleted”.  

Definition of “Deleted” or “Inactive” Records: Records are never really deleted in BluSKY: when deleted, they are actually kept in the databases and only marked as deleted. The act of deleting a record in the databases causes the record to become “inactive”.   

d)     Application-based License Fees are based upon whether the application was active in the system that serves the Facility during the month being billed.  Application licenses are billed if the application was active at any time during the month.  Examples of Application-based Licenses: Alarm Notification via SMS or e-Mail; Elevator Destination Dispatch; Single Sign-On.

 

6.     Additional Licenses:  

a)     Reseller may sell additional Licenses for an existing Facility at any time.  The end of the Term for these licenses shall be the same as the end of the Term for all the Facility’s existing licenses.   

b)     Reseller may sell additional Hardware components for an existing Facility.  If the addition of such hardware components entails additional Licenses, the definition of such additional Hardware components in the BluSKY databases shall constitute authority for BluBØX to bill the associated License fees, and the end of the Term for these licenses shall be the same as the end of the Term for all the Facility’s existing licenses.   

 

7.     Monthly Invoicing:

a)     BluBØX will invoice Reseller the License Fees for each of Reseller’s Facilities effective the last day of every month.  Each invoice will include all the individual item Licenses that pertain to the Facility, based on the previous month’s “usage” of the features.

 

8.     Cancellation of a License:  

a)     The Reseller or the End-User Client (depending on permissions) can cancel a License at any time.  

b)     In most cases, the cancellation can be accomplished by simply deleting the underlying record in the databases.  

c)     The cancellation of some licenses may require BluBØX Professional Services.  If this is the case, Reseller must give BluBØX thirty (30) days’ written notice of the desired cancellation so BluBØX has the time to schedule and perform the applicable work.  

d)     Where cancellation notices are required, BluBØX will acknowledge Resellers’ notices promptly, but it is Reseller’s responsibility to insure that BluBØX has acknowledged their notices.  Unacknowledged notices shall not become effective, and the cancellation shall be subject to a new notice (and a new date). 

e)     The invoice that covers the month in which the cancellation has occurred will reflect the cancellation per the Usage policy described in Section 5 above.

f)      All licenses will continue to be billed until the underlying records have been made inactive  in the BluSKY databases. 

 

9.     Suspension of an Account 

a)     Resellers may suspend their client’s use of the BluSKY Services for a designated System at any time.  

b)     Reseller must notify BluBØX of any suspension promptly and indicate the reason for the suspension.  

c)     In response, BluBØX shall reduce the monthly billings that pertain to the suspended system by 50% for a period of three (3) months.

d)    Thereafter, BluBØX shall have the right to terminate the account.

 

10.  Full Termination of an Account 

a)     Resellers may terminate their BluSKY Services for a designated Facility at any time by providing BluB0X thirty (30) days’ written notice of the desired cancellation so BluBØX has the time to schedule and effect the applicable work.  BluBØX will acknowledge the notice promptly, but it is Reseller’s responsibility to insure that BluBØX has acknowledged the notice.  Unacknowledged notices shall not become effective and the cancellation of the feature shall be subject to a new notice (and a new date). 

b)     The final billing shall be equal to the previous month’s billing, but pro-rated to cover the time from the first of the month to the date of termination.  It shall also include any Professional Fees that are needed to terminate the account.

 

11.  Terms & Prices: 

a)     Every Facility system must be covered by a SULA, and every user of the BluSKY databases must have signed a EULA.

b)     Reseller shall NOT purchase Licenses on a regular Purchase Order.  Instead, Licenses shall be invoiced monthly and automatically at the beginning of every month, with each invoice covering the past month’s usage as set forth above.    

c)     Users may only access and use the Licensed product(s) via the User Interface that is provided by BluBØX.

d)     From time-to-time, BluBØX may modify the terms and prices contained in the Licenses Price List.   BluBØX shall maintain a current copy of the Licenses Price List on BluBUY, and Reseller shall keep itself up-to-date throughout the Term with respect thereto.     

e)     The then-current pricing shall be applied to any invoicing that starts a New Term.  That pricing will be maintained for the duration of the Term for all features that are in place at the beginning of the term and all features that are added during the term.

 

12.  Failure to Pay.

a)     BluBØX reserves the right to suspend or cancel a License in the event Reseller fails to pay for such License in accordance with the terms and conditions of this Agreement.  

 

13.  Availability.

a)     BluBØX will make reasonable efforts to make the Licensed product(s) available 24 hours a day, 7 days a week.

b)     Exceptions are: (i) Planned Downtime, and (ii) Excused Downtime.  

c)     BluBØX will make reasonable efforts to provide Reseller at least eight (8) hours’ notice of Planned Downtime.

 

14.  Planned Downtime.

a)     BluBØX will schedule Planned Downtime outside of regular business hours to the extent reasonably practicable

 

 

 

 

 

 

SIGNATURE PAGE BELOW

 

 

 

The signatures below indicate the parties agreement to this Exhibit C of this Reseller Agreement.  The signatories confirm that they are duly authorized by their companies to engage their companies per the terms of this Exhibit C. 

BluBØX Systems, Inc.

 

 

_______________________________________

Patrick deCavaignac

Sr. Vice President and COO

 

 

AND:

 

 

_______________________________________

Reseller Company

 

 

_______________________________________

Signature

 

 

_______________________________________

Name

 

 

_______________________________________

Title

 

 

_______________________________________

Date of Signature / Effective Date of Exhibit

 

 

 

 

END OF EXHIBIT C