Fortra Distributor - Associate Reseller Terms

BY PARTICIPATING IN FORTRA, LLC’S (OR ANY OF ITS AFFILIATES’) PARTNER POGRAM AS AN AUTHORIZED RESELLER OF AN AUTHORIZED FORTRA DISTRIBUTOR (A “FORTRA DISTRIBUTOR”), OR MARKETING OR PERFORMING ANY RESELLING ACTIVITIES FOR ANY OF FORTRA’S SOLUTION(S), AS DEFINED HEREIN, TO BE ORDERED THROUGH A FORTRA DISTRIBUTOR, OR BY REQUESTING A QUOTE OR PLACING AN ORDER FOR FORTRA’S SOLUTION(S) THROUGH A FORTRA DISTRIBUTOR, YOU REPRESENT AND WARRANT THAT YOU HAVE LEGAL AUTHORITY TO ACT ON BEHALF OF THE COMPANY OR ENTITY (THE “ASSOCIATE RESELLER”), THAT YOU AGREE ON BEHALF OF THE ASSOCIATE RESELLER THAT THE ASSOCIATE RESELLER IS BOUND BY THESE ASSOCIATE RESELLER TERMS (THESE “ASSOCIATE RESELLER TERMS”), AND THE ASSOCIATE RESELLER IS ENTERING INTO THESE ASSOCIATE RESELLER TERMS WITH FORTRA, LLC ON BEHALF OF ITSELF AND ITS AFFILIATED ENTITIES (“FORTRA”) EFFECTIVE ON THE EARLIER OF THE DATE ASSOCIATE RESELLER REQUESTS A QUOTE, PLACES AN ORDER, ENTERS INTO AN AGREEMENT WITH A FORTRA DISTRIBUTOR FOR THE RESALE OF ANY OF FORTRA’S SOLUTION(S) OR COMMENCES ANY MARKETING OR RESELLING ACTIVITIES FOR ANY OF FORTRA’S SOLUTION(S) TO BE ORDERED THROUGH A FORTRA DISTRIBUTOR.

Section 1. License

  • 1.1 Appointment. During the term hereof, and only if Fortra’s has provided the Fortra Distributor prior written consent and approval, Associate Reseller may act as a non-exclusive reseller to market and resell, in the Territory, Fortra’s Solution(s) approved by the Fortra Distributor and Fortra to end user customer(s) (each, a “Customer” and collectively, the “Customers”) under, and pursuant to, a Fortra Distributor’s authorized program to distribute the Solution(s) to Associate Reseller. Associate Reseller shall market and resell the Solution(s) to its Customers subject to payment of the applicable fees, and each Customer’s affirmative written acceptance of (a) the Fortra Master Solutions Agreement (the “MSA”) located at www.fortra.com/legal, or any successor url and (b) Fortra’s right to deny or suspend a Customer’s access to the Solution(s) pursuant to Section 3.4. The MSA may be updated by Fortra, in its sole discretion, without prior notice to Associate Reseller. Associate Reseller acknowledges and agrees that Fortra’s obligation to provide the Solution(s) to a Customer is subject to the terms and conditions set forth in the MSA and subject to the Fortra Distributor making timely payment in full of undisputed fees to Fortra for the applicable Customer. “Solution(s)” means the applicable Fortra products, solutions and maintenance, professional and/or managed services that the Fortra Distributor and Fortra have specifically authorized Associate Reseller to resell. “Territory” means the territory set forth in the agreement between Associate Reseller and but at no time shall mean any territory outside of the Territory in which the Fortra Distributor is authorized by Fortra to distribute.    
  • 1.2 Ordering. Associate Reseller shall order certain Solution(s) as approved by the Fortra Distributor and Fortra hereunder from the Fortra Distributor. If Professional services are purchased for resale, a statement of work, description of services, or similar document (an “SOW”) may be attached to Fortra’s or Distributor’s standard ordering document. In the event that Associate Reseller delivers a purchase order or any other ordering document (“Associate Reseller Document”) to Fortra in connection with an order for Solution(s), then notwithstanding anything to the contrary contained in such Associate Reseller Document, any terms or conditions contained on or referenced in the Associate Reseller Document are expressly rejected by Fortra, are void and non-binding on Fortra regardless of whether (x) Fortra requests any terms (such as payment terms) to be revised in such Associate Reseller Document, (y) Fortra issues an invoice that references the Associate Reseller Document and/or (z) Fortra executes the Associate Reseller Document. Fortra’s acceptance of any Associate Reseller Document issued by Associate Reseller is for administrative purposes only and shall not constitute Fortra’s agreement to any terms and conditions contained on, or referenced in, such Associate Reseller Document. For the avoidance of doubt the parties agree that in the event of a conflict between the terms of these Associate Reseller Terms and any document associated with ordering as noted above, the terms of these Associate Reseller Terms shall govern. Associate Reseller warrants that prior to placing an order for a Solution(s) with the Fortra Distributor, Associate Reseller will obtain the applicable Customer’s affirmative acceptance of (a) any entitlement restrictions contained in the Quote (such as user types, quantities, copy and transfer restrictions, and restrictions on use of the Solution(s) on multiple devices), (b) any additional terms required to be provided to Customer pursuant to an order, (c) any applicable SOW, (d) the Fortra MSA, and (e) Fortra’s right to deny or suspend a Customer’s access to the Solution(s) pursuant to Section 3.4.  Associate Reseller will be responsible for paying any additional fees incurred by a Customer under the MSA.  Upon request, Associate Reseller will provide evidence of Customer(s) affirmative written acceptance of the MSA.
  • 1.3 Existing Fortra Partner. If Associate Reseller, or its affiliate, has an existing agreement of any kind with Fortra to resell any Solution in any manner, regardless if any schedule(s) or any exhibit(s) attached to such agreement are expired, (an “Existing Partner Agreement”), then unless otherwise approved by Fortra in writing, the Associate Reseller, and its affiliates, may not resell any Solution it is, or any of its affiliate are, specifically authorized to resell under such Existing Partner Agreement through the Fortra Distributor. Notwithstanding anything contrary in the terms of the Existing Partner Agreement, Associate Reseller further acknowledges and agrees that Fortra, in its sole discretion, may (a) terminate such Existing Partner Agreement at any time upon notice to Associate Reseller with termination effective on the date specified on such notice and Associate Reseller shall consent to such termination, (b) require Associate Reseller to resell some or all of the Solution(s) it is authorized to sell under the Existing Partner Agreement through its agreement with the Fortra Distributor instead, and/or (c) require some or all of the orders for Customers under the Existing Partner Agreement to be transitioned under its agreement with the Fortra Distributor. Unless otherwise agreed to in writing by Fortra, if Fortra terminates the Existing Partner Agreement, all amounts outstanding will become due and payable upon the termination date of the Existing Partner Agreement.  
  • 1.4 License to Use Trademark and Trade Name. Any and all trademarks and trade names that Fortra uses in connection with the license granted hereunder are and remain the exclusive property of Fortra. These Associate Reseller Terms gives Associate Reseller no right therein, except a limited license to reproduce trademarks and trade names as necessary for and for the sole purpose of allowing Associate Reseller to promote and market the Solution(s) pursuant to these Associate Reseller Terms.  Fortra may, at its sole option, review all Associate Reseller’s promotion and advertising prior to and/or after the promotion or advertising event utilizing any of Fortra's trademark or trade names, and Associate Reseller shall withdraw and retract any such promotion or advertising materials that Fortra finds unsuitable.
  • 1.5 Promotion and Marketing Obligations. Associate Reseller, as part of its activities to promote the marketing of the Solution(s), in a manner as directed by Fortra and the Fortra Distributor, may only use marketing and promotional materials that are provided by Fortra or pre-approved by Fortra. Additionally, Associate Reseller:
    1. agrees it shall not make any representations or warranties regarding Fortra or about any Solution.
    2. agrees not toengage in any deceptive, misleading, illegal, or unethical practices that are or might be detrimental to Fortra or its Solution(s), and will refrain from making any derogatory, false or misleading representations with regard to Fortra and its Solution(s). 
    3. will designate each Solution by the correct name as directed by Fortra and identify each Solution as a product, service, or solution as directed by Fortra when marketing such Solution to Customers
    4. acknowledges that any warranty or other undertaking extended by Fortra to Customers represents Fortra’s sole liability and obligation to any party with respect to defective Solution(s), support and any other items or services provided by Fortra to Customers. 
    5. agrees that the form and content of all materials produced or to be distributed by Associate Resellers in connection with the Solution(s), Fortra, and Associate Reseller’s appointment as reseller of the Solution(s) shall be solely as provided by Fortra or pre-approved in writing by Fortra.
  • 1.6 Non-Exclusive Relationship. Nothing in these Associate Reseller Terms shall prevent Fortra from selling, marketing or distributing to or contracting with another party to fulfill sales orders of its Solution(s) to any Customer, distributor, reseller, or managed service provider or any other third party, or prevent Fortra from dealing or contracting directly with Customers or prospects, within or outside the Territory at any time during and after the term of these Associate Reseller Terms. Nothing in these Associate Reseller Terms shall impair Associate Reseller’s rights at all times to use or resell, without obligation to Fortra, similar products, solutions or services which have been independently developed and submitted by others to Associate Reseller provided they do not infringe upon Fortra's intellectual property or confidential information. 
  • 1.7 Cooperation. Associate Resellers shall cooperate with Fortra on all potential or existing opportunities with Customers for the resale of a Solution in a manner as directed by Fortra. Associate Reseller shall keep Fortra informed of all communications, meetings, and other dealings with a potential or existing Customer as directed by Fortra and allow Fortra to attend and fully participate in all such communications, meetings and other dealings in a manner determined by Fortra.      
  • 1.8 Term. These Associate Reseller Terms shall continue in full force and effect for a period of one (1) year from the date these Associate Reseller Terms was entered into as specified above and will thereafter automatically be renewed for additional periods of one (1) year, unless terminated pursuant to the terms hereof. 
  • 1.9 Inspection and Audit rights. Fortra shall have the right, through its employees or designated agents, upon five (5) days prior notice, to conduct a review of Associate Reseller’s accounting books and records relating to Associate Reseller performance under these Associate Reseller Terms.

Section 2. Quotes, Training and Support; Consulting Fee

  • 2.1 Quotes/Discounts. Fortra will provide quotes for orders to the Solution(s) directly to the Fortra Distributor. The Fortra Distributor shall provide quotes for Solution(s) to Associate Reseller pursuant to its agreement with the Fortra Distributor. 
  • 2.2 Support.  Fortra will provide all necessary Customer support.
  • 2.3 Consulting Fee. All Customer custom training, support services and consulting, beyond that provided as part of the Solution(s) fee, including travel and expenses, shall be at an additional fee in accordance with Fortra’s standard rates and shall be billed to Associate Reseller via the Fortra Distributor.

Section 3.     Ownership and Proprietary Rights.

  • 3.1 Proprietary Rights. Associate Reseller acknowledges and agrees that the Solution(s) and all copies thereof constitute valuable intellectual property of Fortra or proprietary and confidential information of Fortra and title thereto remains in Fortra. All applicable copyrights, trade secrets, patents and other intellectual and property rights in the Solution(s) are and remain property of Fortra. All other aspects of the Solution(s), including without limitation, methods of processing, specific design and structure of individual Solution(s) and their interaction and unique programming techniques employed therein as well as screen formats shall remain the sole and exclusive property of Fortra and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by Associate Reseller to any person, company or institution whatsoever other than for the purposes set forth herein. It is expressly understood that no title to or ownership of the Solution(s), or any part thereof is hereby transferred to Associate Reseller.  Fortra shall have sole and exclusive ownership of all right, title, and interest in and to any Solution(s) derivations, modifications and enhancements thereto (including but not limited to ownership of all intellectual property rights).  
  • 3.2 Restrictions.  Associate Reseller specifically agrees not to (a) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Solution(s) or any portion thereof; (b) remove any of Fortra’s, or its vendors’, copyright notices and proprietary legends; (c) attempt to circumvent, disable or defeat the limitations on use of the Solution(s) which are encoded into the Solution(s) and/or third-party software’s key; (d) use the Solution(s) and/or third-party software (i) to infringe on the intellectual property rights of any third party or any rights of publicity or privacy; (ii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (iii) to propagate any virus, worms, trojan horses or other programming routine intended to damage any system or data; (iv) in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or in any life support applications, devices or systems; and/or (v) such that the total number of licenses are in excess of the total licenses allocated as reflected in the applicable Invoice; (e) file copyright or patent applications that include the Solution(s) or related third-party software or any portion thereof; and/or (f) use the third-party software within any other applications or products other than with the Solution(s).
  • 3.3 Unauthorized Copying. Associate Reseller agrees that it will not copy, modify or reproduce the Solution(s) in any way without prior written consent of Fortra. Associate Reseller agrees to notify Fortra promptly of any circumstances of which Associate Reseller has knowledge relating to any unauthorized use or copying of the Solution(s) by any person or entity not authorized to do so. Associate Reseller agrees to take, at Associate Reseller's expense, but at Fortra's option and under Fortra's control and discretion, any legal action necessary to prevent or stop the unauthorized use of the Solution(s) by any third party or entity who or which has accessed the Solution(s) due in substantial part to Associate Reseller's fault or negligence.
  • 3.4 Denial or Suspension of Solution(s). Associate Reseller acknowledges and agrees that Fortra reserves the right, in its sole discretion, without recourse to Associate Reseller or its Customers, to immediately deny or suspend access to, or delivery of, the Solution(s) if (a) Associate Reseller fails to make payment for the Solution(s) as required by the Fortra Distributor and/or (b) the Fortra Distributor fails to make payment for the Solution(s) as required by Fortra; provided, however, that Fortra shall provide prompt notice to the Fortra Distributor of any such action and such notice shall be deemed notice to the Associate Reseller. Associate Reseller shall indemnify, defend and hold Fortra harmless if Fortra denies or suspends the Customer’s access to the pursuant to this Section 3.4(a). During the period Fortra is denying or suspending a Customer’s access to any Solution(s) pursuant to this Section 3.4, or, if Fortra elects not to deny or suspend Customer’s access to the Solution(s), during any period the Fortra Distributor is not compliant with its payment obligations to Fortra or Associate Reseller is not compliant with its payment obligations to the Fortra Distributor, Fortra may deal and contract directly with the applicable Customer and Associate Reseller shall provide Fortra with any requested Customer contact information, account details and any other information reasonably requested by Fortra. For clarity, Fortra shall have no obligation to deny or suspend access to Solution(s) to any Customer for nonpayment of fees owed to the Fortra Distributor or Associate Reseller. 

Section 4.             Warranties and Limited Liabilities.

Disclaimer of Warranties and Limited Liabilities. THE SOLUTION(S) AND ITS RELATED DOCUMENTATION ARE PROVIDED TO THE ASSOCIATE RESELLER AND ALL CUSTOMERS "AS IS," EXCEPT AS EXPRESSLY SET OUT IN THE MSA TO THE CUSTOMER. FORTRA OFFERS NO WARRANTIES, CONDITIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY STATUTE, USAGE, CUSTOMER, TRADE OR OTHERWISE WITH RESPECT TO THE SOLUTION(S), INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF WORKMANSHIP, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FORTRA WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES DUE TO LOSS OF DATA OR ANY OTHER REASON, EVEN IF FORTRA OR THEIR AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FORTRA BE LIABLE FOR ANY DAMAGES, REGARDLESS OF THE FORM OF THE CLAIM, EXCEPT FOR A BREACH OF THESE ASSOCIATE RESELLER TERMS. ALL LIABILITY BY FORTRA HEREUNDER IS EXPRESSLY LIMITED TO ANY AMOUNTS PAID TO FORTRA FOR THE APPLICABLE CUSTOMER UNDER THESE ASSOCIATE RESELLER TERMS IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.

 

Section 5. Termination.

  • 5.1 Events Causing Termination; Effect of Termination. These Associate Reseller Terms may be terminated immediately by the Fortra Distributor or Fortra under any of the following conditions:
    • (a) if Associate Reseller is declared insolvent or bankrupt; or
    • (b) if a petition is filed in any court to declare one of the parties bankrupt or for a reorganization under the Bankruptcy Law or any similar statute; or
    • (c) Associate Reseller engages in any pricing or business practice that is unethical, unfair or contrary to reasonable commercial business standards; or
    • (d) if Associate Reseller is in breach of these Associate Reseller Terms and/or it breaches its payment obligations for the Solution(s).
  • Additionally, if the Fortra Distributor’s agreement with Fortra appointing it as a distributor and granting it rights to appoint Associate Reseller as reseller of Fortra’s Solution(s) is terminated for any reason or expires, or if Associate Reseller’s agreement with the Fortra Distributor appointing Associate Reseller as a reseller of the Solution(s) is terminated for any reason or expires, Associate Reseller acknowledges and agrees that Fortra shall have the option, in its sole discretion, to (a) terminate these Associate Reseller Terms and Associate Reseller must cease its reselling activities of the Solution(s); (b) terminate these Associate Reseller Terms and require Associate Reseller to enter into an agreement with Fortra on the same terms and conditions as these Associate Reseller Terms and on the terms of Fortra’s then-current reseller program, including but not limited to payment terms and program discounts; (c) terminate these Associate Reseller Terms and require Associate Reseller to enter into an agreement with a replacement distributor on the same terms and conditions as these Associate Reseller Terms or (d) require the Associate Reseller to consent to assign its agreement with the Fortra Distributor to a successor distributor appointed by Fortra. Additionally, Fortra may terminate these Associate Reseller Terms for convenience upon 30 days written notice to the Fortra Distributor.
  • 5.2 Effect of Termination.  Unless Associate Reseller has entered into a separate agreement with Fortra or a successor distributor appointed by Fortra for the resale of the Solution(s) in the Territory pursuant to Sections 5.1(b)-(c), or unless otherwise agreed to in writing by Fortra, upon expiration or termination of these Associate Reseller Terms for any cause, the Associate Reseller agrees (a) to cooperate with Fortra in good faith in order to effect an orderly termination of its relationship as a reseller of Fortra’s Solution(s), (b) unless otherwise determined by Fortra, that the terms and conditions of these Associate Reseller Terms will continue to survive with respect to any then-current orders, and any renewals thereof made pursuant to the MSA, for Solution(s) with Associate Reseller’s Customers, (c) to immediately cease representing itself as an Associate Reseller of the Solution(s), (d) to pay any amounts owed for the Solution(s) in a manner directed by Fortra such that Fortra receives its proportional amounts owed for the Solution(s) in full (which may include payment to the Fortra Distributor for any amounts owed to it for the Solution(s) who shall then pay Fortra its proportional amounts owed for the Solution(s)), (e) to provide Fortra with contact information for Customers that purchased the Solution(s) from the Associate Reseller, and (f) to return all copies of promotional materials, marketing literature, written information and reports pertaining to the Solution(s) that have been supplied by Fortra and destroy all copies of the Solution(s) that have not been purchased by Associate Reseller. Nothing shall prevent Fortra from contracting directly with any Customers upon expiration or termination of these Associate Reseller Terms. Sections 3, 4, 5, 6, and 7 shall survive termination. 

SECTION 6.  Notices. All notices shall be in writing and delivered as set forth below by email with confirmation.     

Fortra: Attn: Legal, with a copy to [email protected].  Notices shall be deemed delivered upon receipt.

Notice from Fortra to the Fortra Distributor constitutes notice to the Associate Reseller for purposes of these Associate Reseller Terms and shall deemed delivered upon receipt by the Fortra Distributor.

Associate Reseller agrees to immediately provide notices received from the Fortra Distributor on behalf of Fortra to Customers. Associate Reseller agrees to immediately send any notices it receives from its Customers relating to (a) formal notice of non-renewal or termination from the Customer under the MSA, (b) any potential or alleged breach of the MSA, (c) Fortra’s and/or a  Customer’s indemnification obligation, (d) a Customer’s claim for refund or credit under the MSA, (e) any matter that may expose Fortra to damages, and (f) any other notices Fortra directs Associate Reseller to send to Fortra. Associate Resellers further agrees immediately to send any notice received from Fortra to its Customers.

Notices under the MSA on behalf of its Customer shall be sent to Fortra. Associate Reseller acknowledges and agrees that in order for notices given by Associate Reseller on behalf of its Customer to Fortra under the MSA to be deemed valid, Associate Reseller must (a) obtain prior written consent from the Customer to provide such notice under the MSA, (b) obtain prior written consent from the Customer for the Associate Reseller to provide such notice on its behalf, (c) provide such written consents from the Customer under (a) and (b) to Fortra, (d) provide such notice under the MSA within the timeframe set forth in the MSA and (e) comply with Section 6 (Notices). Any notices sent on behalf of a Customer by Associate Reseller that do not comply with this Section 6 will be deemed null and void. Associate Reseller may not send notices on behalf of a Customer relating to an order for a Solution if such Customer does not have a current agreement with Associate Reseller for such Solution.   

SECTION 7.   General.

  • 7.1 Confidentiality and Ownership. Associate Reseller and Fortra may from time to time disclose to the other party confidential information relating to its business and affairs whether or not marked confidential (“Confidential Information”). Neither Party will disclose Confidential Information of the other to any third party without the express written consent of the other party, nor disclose or make use of any Confidential Information other than in the performance of these Associate Reseller Terms. Each party shall use at least the same degree of care to avoid disclosure of Confidential Information as it uses with respect to its own Confidential Information but not less than reasonable care. Either party may seek injunctive relief to enforce its rights under this section.  The restrictions in this section shall not apply to information that (a) has become publicly known through no breach by Associate Reseller of the confidentiality obligations hereunder; (b) has been rightfully received from a third party authorized to make such disclosure without restriction; (c) was known by Associate Reseller prior to disclosure; or (d) is required to be disclosed pursuant to legal, judicial, or administrative proceedings, or otherwise required by law, subject to the recipient using reasonable efforts to provide prior notice to allow the disclosing party to seek protective or other court orders. 
  • 7.2 Insurance. Associate Reseller shall, at all times during the term of these Associate Reseller Terms, maintain a valid and appropriate insurance policy from a reliable insurance company with not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate for commercial general liability. Associate Reseller shall provide Fortra with evidence of insurance coverage in the form of a certificate of insurance acceptable to Fortra or a certified copy of the relevant insurance policy upon request.
  • 7.3 Anti-Corruption. Neither Associate Reseller nor any employee or agent of Associate Reseller has taken or will take any action that could place Fortra, its members, shareholders, directors, officers, agents, and employees in violation of anticorruption laws and regulations, including but not limited to the U.S. Foreign Corrupt Practices Act (“FCPA”) or UK Bribery Act.  In particular, neither Associate Reseller nor any employee or agent of Associate Reseller will, directly or indirectly, make or promise to make payments or loans or give any other thing of value on behalf of itself or Fortra, or either of their members, shareholders, directors, officers, agents and employees to or for the use of any of the following persons for the purpose of influencing an act or decision in an official capacity or inducing an official to use influence in order to obtain business, retain business, or to direct business to Fortra and/or Associate Reseller: any government official (including officials of government-owned enterprises); political party or party official; any candidate for public office; or any officer, employee, agent, or representative of any client or potential client of Fortra or Associate Reseller.   
  • 7.4 Export Control.  The Solution(s) are subject to U.S. export control laws, including the Export Administration Regulations, of the Bureau of Industry and Security (“BIS”), U.S. Department of Commerce; and the economic sanctions administered by the Office of Foreign Assets Control (“OFAC”), of the U.S. Department of the Treasury. Associate Reseller agrees to comply strictly with all such laws and regulations as they relate to the Solution(s), and, to the extent consistent with these Associate Reseller Terms, to obtain any necessary license or other authorization to export, reexport, provide, import, or transfer the Solution(s).  Without limiting the foregoing, Associate Reseller agrees not to export, reexport, provide, import, or transfer the Solution(s) to countries and regions subject to comprehensive U.S. sanctions (currently, the Crimea region of Ukraine, the so-called Donetsk People’s Republic and Luhansk People’s Republic, Iran, North Korea, or Syria); to the governments of these countries, wherever located, or to the Government of Venezuela; to any person or entity identified on BIS’s Denied Persons List, Entity List, or Unverified List, or OFAC’s Specially Designated Nationals List, Sectoral Sanctions Identifications List, and List of Consolidated Sanctions; to any end user with knowledge or reason to know that the Solution(s) will be used for any prohibited end use including nuclear, chemical, or biological weapons proliferation, or for missile-development purposes; or to any person with knowledge or reason to know that they will export, reexport, provide, import, or transfer the Solution(s) other than in compliance with the foregoing restrictions. Associate Reseller acknowledges that the Solution(s) licensed pursuant to these Associate Reseller Terms may also be subject to export controls applicable to cybersecurity items under the U.S. Export Administration Regulations (“EAR”).  Associate Reseller shall not use the Solution(s), or allow the same to be used, to affect the confidentiality, integrity, or availability of information or information systems, without authorization by the owner, operator, or administrator of the information system (including the information and processes within such systems).  Associate Reseller further represents and warrants that it will not export, reexport, or transfer (in country) the Solution(s) to be used to affect, without authorization, the confidentiality, integrity, or availability of information or information systems; nor does Associate Reseller know or have reason to know that the Solution(s) will be put to such use. If applicable, the resale of Cobalt Strike, Core Impact and Outflank Security Tooling (each an “OSS Solution”, collectively, the “OSS Solutions”) may be subject to additional restrictions, terms and/or conditions under applicable export laws, including the registration and screening of Customers. Associate Reseller agrees to provide Fortra with all requested information, including completing any necessary forms, regarding the resale of an OSS Solution. Associate Reseller further acknowledges and agrees that Fortra has the sole authority to approve or reject the resale of the OSS Solutions to any Customer. 
  • 7.5 Additional Obligations. Associate Reseller shall indemnify, defend and hold Fortra harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including attorney's fees, directly or indirectly resulting from any (a) claimed infringement or violation of any copyright, patent or other intellectual property right with respect to use of the Solution(s) in combination with Associate Reseller’s or a third party’s software or hardware by Associate Reseller,  (b) breach of its obligations or negligent or intentional acts of Associate Reseller arising from these Associate Reseller Terms or (c) failure to obtain Customer’s affirmative acceptance of the MSA.
  • 7.6 Force Majeure. Fortra shall not be liable or deemed to be in default for any delay or failure in performance under these Associate Reseller Terms, the MSA or any order for any Solution to Customer or interruption of service resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party.
  • 7.7 Jurisdiction and Venue. These Associate Reseller Terms shall be governed by and construed in accordance with the laws of the State of Delaware. Exclusive jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with these Associate Reseller Terms, or breach thereof shall be only in a Federal or State court with competent jurisdiction located in the State of Delaware.
  • 7.8 Independent Contractors. It is expressly agreed that Fortra and Associate Reseller are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. These Associate Reseller Terms shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except to the extent and for the purposes provided for herein.
  • 7.9 Attorneys' Fees. In any action between the parties to enforce any of the terms of these Associate Reseller Terms, the prevailing party shall be entitled to recover expenses, including reasonable attorneys' fees.
  • 7.10 Severability. If any provision of these Associate Reseller Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of these Associate Reseller Terms.
  • 7.11 Assignment. These Associate Reseller Terms are not assignable without the prior written consent of Fortra.  These Associate Reseller Terms shall be binding upon and inure to the benefit of the Associate Reseller and its respective successors. 
  • 7.12 Order of Precedence; Updates. In the event of a conflict between the terms and conditions of these Associate Reseller Terms, and any terms in Associate Reseller’s agreement with the Fortra Distributor, with respect to Fortra and the Solution(s), the order of precedence shall be (a) these Associate Reseller Terms and (b) terms and conditions in the Associate Reseller’s agreement with the Fortra Distributor. Fortra may revise these Associate Reseller Terms at any time by publishing revised Associate Reseller Terms online.  The revised Associate Reseller Terms automatically supersede the prior version and apply prospectively from the date they are posted. 
  • 7.13 Waiver. No waiver by Fortra of any breach of any provision hereof shall constitute a waiver of any other breach of that or any other provision hereof. The waiver by Fortra of any performance requirements by Associate Reseller, or any of Fortra’s rights hereunder, shall not be deemed a waiver of any subsequent obligation of performance requirements, duty or right of the same or similar kind.