DENSITY INC.
RESELLER AGREEMENT
Effective as of March 1, 2024
THIS RESELLER AGREEMENT (THIS “RESELLER AGREEMENT”) WILL GOVERN YOUR RESALE OF DENSITY PRODUCTS (EACH AS DEFINED BELOW) AND IS ENTERED INTO BETWEEN DENSITY INC. (“DENSITY”) AND ANY PERSON OR ENTITY WHO EXECUTES AN ORDER FORM OR SIMILAR DOCUMENT (EACH, AN “ORDER DOCUMENT”) OR OTHER WRITTEN AGREEMENT IN ORDER TO RESELL THE DENSITY PRODUCTS (TOGETHER WITH THEIR AFFILIATES, AGENTS, PERSONNEL AND REPRESENTATIVES, COLLECTIVELY, “RESELLER”, “YOU” OR “YOUR”). YOU WILL BE DETERMINED TO HAVE AGREED TO AND ACCEPTED THESE TERMS BY EITHER EXECUTING AN ORDER DOCUMENT OR OTHER WRITTEN AGREEMENT REFERENCING THIS RESELLER AGREEMENT, CLICKING THE CHECK BOX LINKING TO THIS RESELLER AGREEMENT, ACCESSING OR RESELLING DENSITY PRODUCTS OR OTHERWISE ENTERING INTO A COMMITMENT TO RESELL DENSITY PRODUCTS. YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THE RESELLER TO THIS RESELLER AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN ANY ORDER FORM, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN RESELLER AND DENSITY WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER DENSITY’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY WILL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF RESELLER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS. ANY TERMS USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASCRIBED THERETO IN THE APPLICABLE ORDER DOCUMENT.
The parties agree as follows:
1. DEFINITIONS
1.1 “Density Products” means Density’s products and services identified in an order form referencing this Reseller Agreement.
1.2 “Documentation” means any documentation or materials provided or made available by Density to Reseller under this Reseller Agreement.
1.3 “Integration Tools” means the contents of any file, disk, or other media provided or made available by Density to Reseller under this Reseller Agreement, including any application programming interface and Documentation.
2. APPOINTMENT AS RESELLER AND GENERAL OBLIGATIONS
2.1 Appointment. Subject to the terms of this Reseller Agreement, Density hereby appoints Reseller as a non-exclusive reseller of the Density Products. Reseller may offer the Density Products for sale directly to End Users (defined below) in accordance with the terms of this Reseller Agreement. Reseller is not authorized to appoint sub-resellers or non-employee sales agents to offer the Density Products for sale on Reseller’s behalf without the prior written consent of Density, which may be withheld in Density’s sole discretion. Subject to Section 3 below, Reseller is permitted to offer the Density Products together with Reseller services and products. Reseller will use all commercially reasonable efforts to promote and market Density Products and to increase sales of Density Products.
2.2 End User Terms. Reseller agrees that the end users to which Reseller makes the Density Products available (each an “End User”) must be subject to an “End User Reseller Agreement” that (i) contains terms and conditions that are at least as protective of Density and the Density Products as Density’s then-current Terms of Service (available at: https://www.density.io/legal/terms-of-service) as well as the terms and other agreements referenced therein; (ii) is binding upon each End User; (iii) names Density as an intended third party beneficiary with the right to enforce the terms of the agreement; and (iv) terminates upon the expiration or termination of this Reseller Agreement. Reseller will be fully responsible for the enforcement of the End User Reseller Agreements (including collecting all payments from End Users) and any breach by the End Users with respect thereto. For the avoidance of doubt, Reseller is responsible for ensuring that End Users are made aware of the End User Reseller Agreement and that such End Users accept the End User Reseller Agreement by way of click-through or other enforceable contract formation mechanisms.
2.3 Account Manager. Each party will designate a single point of contact within its organization to manage the relationship established by this Reseller Agreement (“Account Manager”). Either party may change its Account Manager by providing written notice to the other party. The Account Managers will meet as necessary to discuss the business relationship and manage the activities contemplated by this Reseller Agreement. Disputes that cannot be resolved by the Account Managers will be escalated to more senior executives for resolution.
2.4 Compliance with Laws. Reseller agrees to comply with all applicable laws and regulations in the performance of its obligations under this Reseller Agreement. Reseller shall obtain and maintain in full force and effect throughout the continuance of this Reseller Agreement all permits, certifications, licenses, approvals and other government authorizations required under all applicable laws to perform under this Reseller Agreement
2.5 Direct Sales by Density. Density reserves the unrestricted right to market and sell the Density Products worldwide, including without limitation through distributors, resellers, and other third party intermediaries and directly to any End User.
3. INTEGRATION TOOLS LICENSE GRANT AND RESTRICTIONS
3.1 License Grant. Subject to the terms and conditions of this Reseller Agreement, Density hereby grants to Reseller a limited, non-exclusive, non-sublicensable, non-transferable, royalty-free license to internally use a reasonable number of copies of the Integration Tools in strict accordance with the Documentation solely to develop and test integrations or bundles with Reseller products or services that are capable of interconnection with the Density Products.
3.2 Integration Tools Restrictions. Except as otherwise expressly stated in this Reseller Agreement, the licenses granted to Reseller in this Reseller Agreement do not include any right to, and Reseller will not: (a) modify the Documentation, change any of the interfaces described in the Documentation, or extend any interfaces except as described in the Documentation; (b) implement the Integration Tools in any software or to support any interfaces between computing devices or computing functions other than as expressly required interconnect with the Density Products; (c) modify, translate, or create a derivative work of any portion of the Density Products or the Integration Tools; (d) sell, lease, loan, provide, distribute or otherwise transfer any portion of the Integration Tools to any third party; (e) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of the Density Products except to the extent permitted by applicable law; (f) display or disclose any portion of the Integration Tools to any person except to Reseller’s employees and contractors who are required to use the Integration Tools in order for Reseller to integrate or bundle Reseller’s products or services with the Density Products; (g) remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Integration Tools or the Density Products; (h) use the Integration Tools to create or develop any command set, application or other application programming interface or software that can be used with any service or product other than the Density Products; (i) create or develop any application or other software that exposes or discloses any Integration Tools to end users; (j) interfere with the normal operation of any Integration Tools; (k) disable or circumvent any security features of the Density Products; or (l) cause or permit any third party to do any of the foregoing.
3.3 Updates. Density may, in its sole discretion, provide replacements, updates, modifications, or bug fixes for the Integration Tools to Reseller and any End User (“Updated Integration Tools”). Each Updated Integration Tool will be deemed part of the Integration Tools and subject to the terms of this Reseller Agreement.
3.4 Feedback. If Reseller or any End User provides any feedback to Density concerning the functionality or performance of the Integration Tools or Density Products (including identifying potential errors and improvements), Reseller hereby assigns to Density all right, title, and interest in and to the feedback, and Density is free to use the feedback without payment or restriction.
4. RESALE OF DENSITY PRODUCTS
4.1 Reseller Purchase Orders. If required by Reseller’s processes, Reseller shall initiate all orders for Density Products with (i) a written purchase order submitted to Density that sets forth the details for the order (e.g., type and quantity of Density Products ordered, delivery destination, requested shipment date) (each, a “Reseller Purchase Order”) or (ii) such other method as Density may determine from time to time. Density reserves the right to accept or reject orders in its sole discretion or to cancel any order previously accepted if Density determines that Reseller is in default of this Reseller Agreement. No partial acceptance of an order will constitute the acceptance of the entire order. The terms of this Reseller Agreement will govern each Reseller Purchase Order. The terms of a Reseller Purchase Order or any other document submitted by Reseller that conflicts with, or in any way purports to amend or supplement, any of the terms of this Reseller Agreement are hereby specifically objected to and will be of no force or effect.
4.2 Fulfillment of Reseller Purchase Orders. Density will use commercially reasonable efforts to fill all orders by Reseller no later than the date stated in the applicable Reseller Purchase Order, upon acceptance by Density. Unless otherwise set forth in the General Terms, Density will not be liable for any failure to deliver Density Products by any particular date. Reseller will remain liable for all of its obligations in Reseller Purchase Orders regardless of any failure, delay, or non-performance by an End User.
4.3 Shipment Terms. All physical computer and other data processing hardware and sensors provided by Density (“Hardware”) ordered pursuant to this Section 4 will be suitably packed for shipment in Density’s standard shipping cartons, marked for shipment, and shipped to Reseller or its carrier agent to the address set forth in the applicable Reseller Purchase Order or Order Document, at which time title and risk of loss will pass to Reseller; provided, however, that in the event of delay caused by Reseller, (a) risk of loss to the Hardware shall pass to Reseller upon the original shipment date set forth in the applicable Reseller Purchase Order, (b) the Hardware shall be deemed to have been delivered in accordance with the terms of the Reseller Purchase Order, and (c) Density, at its option, may store the Hardware in its own or third party storage solutions, whereupon Reseller shall be liable for all related fees and expenses, including, without limitation, storage and associated insurance premiums. Density will select the carrier, unless the carrier chosen by Density will not fulfill the delivery, in which case Reseller’s choice of substitute carrier is subject to Density approval. Reseller will pay all freight, insurance, and other shipping expenses, as well as any special packing expenses.
4.4 Export Restrictions. Reseller will not sell the Density Products in any foreign territory where any of the terms of the applicable End User Reseller Agreement governing the use of the Density Products would be unenforceable or where such terms would not provide the protections to Density and the Density Products intended under this Reseller Agreement. Reseller will not make available the Density Products outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory.
4.5 Forecasts. During the term of this Reseller Agreement, Reseller will forecast its anticipated volume of Density Products and Hardware (including a breakdown of each) that Reseller reasonably anticipates to sell or distribute for the next full calendar quarter and will provide Density with such written forecast (“Initial Forecast”) in an agreed upon or otherwise easily demonstrable format at least one full calendar quarter ahead of the start of the calendar quarter for which the Forecast is made. On or before the thirtieth (30th) day prior to the then applicable quarter to which the Initial Forecast applies, Reseller will update the Initial Forecast (each, a “Revised Forecast”) and shall provide the written Revised Forecast to Density, inclusive of a description of changes from the Initial Forecast. Each forecast, whether an Initial Forecast or Revised Forecast, is for informational and planning purposes only. The forecasts are subject to change and are not a commitment to buy.
4.6 Pricing. For all Reseller Purchase Orders accepted by Density, Reseller will pay to Density the prices for the Density Products set forth in the applicable Order Document. Density may change its pricing upon 15 days’ prior written notice to Reseller. Reseller will set the price for the Density Products at its sole discretion but subject to, and in accordance with, the minimum pricing guidelines provided by Density from time to time. Reseller may offer the Density Products in connection with other Reseller services or products for a single price. Reseller shall not, under any circumstance, advertise pricing solely for Density’s Products and shall be permitted only to communicate such pricing in a confidential communication to a current or prospective client.
5. PROPRIETARY RIGHTS AND NOTICES
5.1 Proprietary Rights. Title to and ownership of all copies of the Density Products and Integration Tools, whether in machine-readable or printed form, and including, without limitation, derivative works, compilations, or collective works thereof and all related technical know-how and all rights therein (including without limitation rights in patents, patents pending, copyrights, and trade secrets applicable thereto), are and will remain the exclusive property of Density and its suppliers. Reseller will not act to jeopardize, limit, or interfere in any manner with the other party’s or its suppliers’ ownership of, and rights with respect to, the Density Products or Integration Tools. Reseller will have only those rights in or to the Density Products and Integration Tools granted to it pursuant to this Reseller Agreement.
5.2 Proprietary Rights Notices. Reseller and its employees and agents will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the Density Products or related documentation delivered by Density.
6. TERMINATION
6.1 Term. This Reseller Agreement will remain in effect for so long as any Order Documents between Reseller and Density for the benefit of End Users are in effect.
6.2 Suspension; Termination for Cause. Density may immediately suspend Reseller’s and its End Users’ access to the Density Products if Reseller fails to make any payment to Density when due. If either party fails to perform any of its material obligations under this Reseller Agreement, including payment in accordance with Section 6, the other party may terminate this Reseller Agreement by giving 30 days’ prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period. If either party commits or suffers (voluntarily or involuntarily) an act of bankruptcy, receivership, liquidation, or similar event, the other party may immediately terminate this Reseller Agreement.
6.3 Termination for Third Party Provider Failure. Density may terminate this Reseller Agreement immediately upon provision of written notice to Reseller if any third party provider upon which Density relies for the provision of the Density Products ceases to perform on Density’s behalf for any reason.
6.4 No Liability for Termination. Except as expressly required by law, in the event of termination of this Reseller Agreement by either party in accordance with any of the provisions of this Reseller Agreement, neither party will be liable to the other, because of such termination, for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of Density or Reseller. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
6.5 Effects of Termination
(a) Upon termination, Reseller’s licenses under this Reseller Agreement will end and Reseller will cease all use of the Density Products and any portion of the Integration Tools, and will return or destroy all copies of the Integration Tools and all notes or other materials that reference or contain any portion of the Integration Tools or were created in developing integrations or bundles. Density, in its discretion, may continue to provide the Density Products directly to any End User for a duration to be determined by Density.
(b) Following notification of non-renewal or termination by either party of this Reseller Agreement, the parties will develop a mutually agreeable transition plan to transition End Users from Reseller to Density and Density may elect to extend this Reseller Agreement for an additional 90 days (the “Wind-Down Period”) to facilitate such transition. Reseller will cooperate to wind-down obligations under this Reseller Agreement in a manner that is least disruptive to, and with a view to preserve Density’s continuity of relationships with, End Users (i.e., with as little disruption or delay in supply, service, or support as reasonably practicable) during the Wind-Down Period.
(c) In addition, the following provisions will survive any expiration or termination of this Reseller Agreement: Sections 3.4, 4.6, 6.4, 6.5(c), 7, 9, 12, 13, 14 and 15. The termination or expiration of this Reseller Agreement will not relieve Reseller of: (i) the obligation to pay any fees that are due to Density under this Reseller Agreement; and (ii) Reseller’s obligation to indemnify Density as specified in this Reseller Agreement.
7. LIMITED WARRANTIES AND DISCLAIMER
7.1 Warranties.
- Hardware Purchase Warranty. This section applies only if the resale is for a ‘Hardware Purchase’ and, in such instance, Section 7.1(b) (PaaS Warranty) shall have no force or effect. Subject to Section 7.2, Density warrants to the End User that the Density Hardware shall be and shall remain free from defects in design, material and workmanship (the “Hardware Warranty”) for a period ending five (5) years from the date of shipment if, and only if, the End User maintains an active and continuous subscription to the Density Subscriptions for the entirety of the period (the “Hardware Warranty Period”). If the End User’s subscription to the Density Subscriptions terminates, for any reason, prior to such five (5) year period from the date of shipment, then the Hardware Warranty will automatically, and without any further action required by Density, terminate as of the same date. This Hardware Warranty does not cover the Relocation Period (as defined in Section 7.2), defects or malfunction caused by neglect, misuse, abuse, vandalism or accident; use in an improper environment or failure to follow installation, un-installation, relocation, maintenance or operating instructions. This Hardware Warranty will not apply to damage caused by unauthorized alteration, modification or repair of the Density Hardware in violation of or otherwise inconsistent with the terms and conditions of any applicable Order Document. This Hardware Warranty applies only to the End User and is non-transferable and non-assignable. Any attempted transfer or assignment shall automatically and without any further action required by any party void the Hardware Warranty.
- Platform as a Service (“PaaS”) Warranty. This section applies only if the resale is for a ‘PaaS’ purchase’ and, in such instance, Section 7.1(a) (Hardware Warranty) shall have no force or effect. Subject to Section 7.2, Density warrants to the End User that the Density Hardware shall be and shall perpetually remain free from defects in design, material and workmanship (the “PaaS Warranty”) if, and only if, the End User maintains an active and continuous subscription to the Density Subscriptions for the entirety of the period (the “PaaS Warranty Period”). If the End User’s subscription to the Density Subscriptions terminates, for any reason, then the PaaS Warranty will automatically, and without any further action required by Density, terminate as of the same date. This PaaS Warranty does not cover the Relocation Period (as defined in Section 7.2), defects or malfunction caused by neglect, misuse, abuse, vandalism or accident; use in an improper environment or failure to follow installation, un-installation, relocation, maintenance or operating instructions. This PaaS Warranty will not apply to damage caused by unauthorized alteration, modification or repair of the Density Hardware in violation of or otherwise inconsistent with the terms and conditions of any applicable Order Document. This PaaS Warranty applies only to the End User and is non-transferable and non-assignable. Any attempted transfer or assignment shall automatically and without any further action required by any party void the PaaS Warranty.
7.2 Relocation of Sensors. If, during the Hardware Warranty Period or the PaaS Warranty Period (as applicable, the “Warranty Period”), the End User elects to relocate, transfer, uninstall and/or reinstall Density Hardware (the “Relocation Period”), the Hardware Warranty or the PaaS Warranty (as applicable, the “Warranty”) shall cease to apply and no coverage shall be provided under the Warranty until such time that (i) the Density Hardware has been re-installed and calibrated (the “Relocated Density Hardware”) and (ii) Density confirms in writing that the Density Hardware is operational and functioning as intended. All costs and expenses associated with or arising from a relocation of Density Hardware shall be borne by the End User, including, without limitation, installation and calibration costs. For the avoidance of doubt, in the case of the Hardware Warranty, the Hardware Warranty Period shall not exceed five (5) years from the date of shipment and shall not be extended for any given Relocation Period.
7.3 Warranty Remedies. If, during the Warranty Period, any Density Hardware fails, is nonoperational or defective, or is otherwise found faulty, the End User may submit a request to Density for replacement of the faulty Density Hardware; provided that such request is received before the end of the Warranty Period. Density will evaluate any such request, and if Density determines, in its sole discretion, that the Density Hardware is covered by the terms of this Warranty, Density will replace the Density Hardware. the End User will promptly return any or otherwise defective faulty Density Hardware to Density, but in no event later than thirty (30) days after receipt of replacement Density Hardware. Replacement of the Density Hardware is the End User’s sole remedy, and Density’s sole liability, under this Warranty.
7.4 Warranty Disclaimer. OTHER THAN AS SET FORTH IN THIS AGREEMENT, DENSITY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. DENSITY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. DENSITY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE DENSITY PRODUCTS OR AGAINST INFRINGEMENT. DENSITY DOES NOT WARRANT THAT THE DENSITY PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE DENSITY PRODUCTS WILL BE SECURE OR UNINTERRUPTED. DENSITY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED ON AN END USER’S USE OF THE DENSITY PRODUCTS. DENSITY PRODUCTS ARE NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE DENSITY PRODUCTS COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. DENSITY RECOMMENDS AGAINST, AND DISCLAIMS ANY LIABILITY FOR, USE OF THE DENSITY PRODUCTS IN ANY SUCH MANNER.
8. PAYMENTS AND PURCHASE ORDERS; RECORDS.
8.1 Payment Terms. Unless per mutual agreement of the parties, the Reseller will pay all amounts due within 60 days of the date of the applicable invoice, irrespective of whether or not the End User has remitted, or whether the Reseller is in actual receipt of, payment for the use of the Density Products. All payments will be made in U.S. dollars. Late payments will accrue interest at the lesser of 1.5% per month and the highest rate allowed by applicable law.
8.2 Taxes. The Reseller will be responsible for, and will pay in a timely manner, all such taxes and charges levied against Density, excluding taxes on the income of Density. When Density has the legal obligation to pay or collect such taxes, the appropriate amount will be invoiced to Reseller, excluding taxes on the income of Density, and paid by Reseller within 60 days of the date of invoice unless Reseller provides Density with a valid tax exemption certificate authorized by the appropriate taxing authority. All payments by Reseller will be made free and clear of, and without reduction for, any withholding taxes. Any such taxes that are otherwise imposed on payments to Density will be the sole responsibility of Reseller. The Reseller will provide Density with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Density to establish that such taxes have been paid.
8.3 Fulfillment of Purchase Orders. To the extent that the Reseller submits a purchase order under this Reseller Agreement and notwithstanding any Reseller Delay, Density shall invoice the Reseller for (a) all fees, costs and expenses as set forth in a purchase order and (b) all fees, costs, and expenses incurred by Density in connection with, arising from or otherwise relating to a Reseller Delay. In the event that a delay in subscription commencement is due to a Density Delay, Density shall (i) not invoice the Reseller for the subscriptions and/or services until shipment of any applicable hardware or products in accordance with the terms set forth in the purchase order and (ii) provide prompt written notice to the Reseller setting forth the revised shipment date of the applicable hardware or products and commencement of any subscriptions or services, which such revised date(s) set forth in the written notice shall be binding on the parties and shall be deemed to amend and supersede any dates set forth in the applicable purchase order (collectively, the “Density Obligations”). Other than the Density Obligations, and provided that Density utilizes commercially reasonable efforts to remedy the circumstances resulting in the Density Delay, Density shall have no liability to the Reseller for any associated damages, claims, penalties, fees, costs or expenses, and the Reseller waives any rights or remedies not expressly set forth herein. As used in this Section, “Reseller Delay” means a delay in product shipment or subscription commencement due to the fault or request of the Reseller, including for reasons of change orders initiated by the Reseller and not otherwise waived by Density therein in writing, delays, failures to promptly respond to any Density requests, including sign offs, or other actions or inactions of Reseller. As used in this Section, “Density Delay” means a delay in product shipment or subscription commencement caused by or resulting solely from acts or omissions of Density in contravention of its obligations under a purchase order, but excluding any delays arising out of, related to or occurring in connection with either a Reseller Delay or a force majeure event.
8.4 Records. During the term of this Reseller Agreement and for three years after, Reseller will maintain at its primary place of business full, true, and accurate books of account (kept in accordance with generally accepted accounting principles) and records concerning all transactions and activities under this Reseller Agreement.
9. CONFIDENTIAL INFORMATION
9.1 “Confidential Information” means any proprietary information of a party disclosed by one party to the other that is in written, graphic, machine readable, or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature. If a Reseller Agreement is in effect, the Integration Tools (as defined in the Reseller Agreement) will be deemed to be the Confidential Information of Density whether marked as such or not. Confidential Information may also include oral disclosures provided that such information is designated as confidential at the time of disclosure and reduced to a written summary by the disclosing party within 30 days after its oral disclosure, which is marked in a manner to indicate its confidential nature and delivered to the receiving party.
10.2 Exceptions. Confidential Information will not include any information that (a) was publicly known and made generally available prior to the time of disclosure by the disclosing party, (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party, (c) is already in the possession of the receiving party at the time of disclosure, (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality, or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
10.3 Non-Use and Non-Disclosure. Each party will (a) treat as confidential all Confidential Information of the other party, (b) not disclose such Confidential Information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section 10, provided that the disclosing party has obtained the written consent to such disclosure from the other party, and (c) will not use such Confidential Information except in connection with performing its obligations or exercising its rights under the Reseller Agreement. Each party is permitted to disclose the other party’s Confidential Information if required by law so long as the other party is given prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting such information from public disclosure.
11. PROFESSIONAL SERVICES
11.1 Provision of Professional Services. Density may, from time to time and upon request by Reseller, offer certain additional professional services related to the Reseller Agreement (“Professional Services”). Such Professional Services will be provided at Density’s then-current time and materials rate, unless otherwise agreed by the parties. Subject to the terms of the Reseller Agreement, Density will use commercially reasonable efforts to provide the applicable Professional Services to Reseller as agreed in an order form, purchase order or similar document, in each case, on the terms set forth in the Reseller Agreement and such other document.
11.2 Deliverables. Density retains all right, title, and interest, including all intellectual property rights, in and to any work product or other materials created by Density in connection with its performance of Professional Services (“Deliverables”). If Density provides any Deliverables to Reseller pursuant to the Professional Services, Density hereby grants to Reseller a non-exclusive license under Density’s rights in the Deliverables to use such Deliverables in connection with the Reseller Agreement.
12. INTELLECTUAL PROPERTY INFRINGEMENT
12.1 Infringement Defense. Density will defend Reseller and its employees, directors, agents, and representatives (“Reseller Indemnified Parties”) from any actual or threatened third party claim that a Density product infringes or misappropriates any U.S. patent issued as of the Effective Date or any copyright, trademark, or trade secret of any third party during the term of the Reseller Agreement if: (a) the applicable Reseller Indemnified Party gives Density prompt written notice of the claim; (b) Density has full and complete control over the defense and settlement of the claim; (c) the applicable Reseller Indemnified Party provides assistance in connection with the defense and settlement of the claim as Density may reasonably request; and (d) the applicable Reseller Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
12.2 Infringement Indemnification. Density will indemnify each of the Reseller Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 12.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Density’s consent after Density has accepted defense of such claim); and (c) if any proceeding arising under Section 12.1 is settled, all amounts to any third party agreed to by Density in settlement of any such claims.
12.3 Mitigation of Infringement Action. If Reseller’s sale or use of a Density product is, or in Density’s reasonable opinion is likely to become, enjoined as a result of a proceeding arising under Section 12.1, then Density will either: (a) procure the continuing right of Reseller to sell or use the Density product; (b) replace or modify the Density product in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Density is unable to do either (a) or (b), Density may (c) terminate the Reseller Agreement.
12.4 Exclusions. Density will have no obligation under this Section 12 for any infringement to the extent that it arises out of or is based upon: (a) the combination, operation, or use of software by Reseller or any end user with a Density product; (b) designs, requirements, or specifications for a Density product required by or provided by Reseller; (c) sale or use of a Density product outside of the scope of the Reseller Agreement; or (d) Reseller’s failure to comply with instructions provided by Density. Reseller will reimburse Density for any costs or damages that result from these actions.
12.5 Exclusive Remedy. This Section 12 states Density’s sole and exclusive liability, and the Reseller Indemnified Parties’ sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by a Density product or Reseller’s marketing, use or sale of a Density product.
13. RESELLER INDEMNIFICATION
13.1 Defense of Claims. Reseller will defend Density and its affiliates and their employees, directors, agents, and representatives (“Density Indemnified Parties”) from any actual or threatened third party claim arising out of or based upon Reseller’s performance or failure to perform under the Reseller Agreement or its negligence or willful misconduct if: (a) the applicable Density Indemnified Party gives Reseller prompt written notice of the claim; (b) Reseller has full and complete control over the defense and settlement of the claim; (c) the applicable Density Indemnified Party provides assistance in connection with the defense and settlement of the claim as Reseller may reasonably request; and (d) the applicable Density Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).
13.2 Indemnification. Reseller will indemnify each of the Density Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 13.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Reseller’s consent after Reseller has accepted defense of such claim); and, (c) if any proceeding arising under Section 13.1 is settled, Reseller will pay any amounts to any third party agreed to by Reseller in settlement of any such claims.
13.3 Exclusions. Reseller will have no obligation under this Section 13 to the extent that Density is obligated under Section 13.1 to defend Reseller against such third party claim.
14. LIMITATION OF LIABILITY
14.1 DISCLAIMER OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, DENSITY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE RESELLER OR ANY END USER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THE Reseller Agreement, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF DENSITY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
14.2 CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL DENSITY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY THE RESELLER TO DENSITY UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
14.3 INDEPENDENT ALLOCATIONS OF RISK. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY DENSITY TO THE RESELLER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE RESELLER AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
15. MISCELLANEOUS
15.1 Independent Contractors. The relationship of the parties established by the Reseller Agreement is that of independent contractors, and nothing contained in the Reseller Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party. Nothing in the Reseller Agreement will create a joint venture, joint enterprise or partnership, or any relationship other than that of independent contractors, which is the only relationship intended by the parties.
15.2 Subcontractors. Density may utilize subcontractors or other third parties to perform its duties under the Reseller Agreement so long as Density remains responsible for all of its obligations under the Reseller Agreement.
15.3 Non-Assignability and Binding Effect. The Reseller may not assign its rights and obligations under the Reseller Agreement without the prior written consent of Density. Subject to the foregoing, the Reseller Agreement (as assigned) will be binding upon and inure to the benefit of the parties and their successors and assigns.
15.4 Notices. Any notice required or permitted to be given under the Reseller Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Reseller Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
15.5 Force Majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
15.6 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with Density’s corporate policies regarding foreign business practices, the Reseller and its employees and agents will not directly or indirectly make and offer payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government within the territory where Density products are being resold or the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Density in obtaining, retaining, or directing any such business.
15.7 Governing Law and Litigation. The laws of the State of California govern the Reseller Agreement without giving effect to provisions related to choice of laws or conflict of laws. Venue and jurisdiction of any lawsuit involving the Reseller Agreement exists exclusively in the local and state and federal courts in San Francisco County, California, unless either party seeks injunctive relief that, in that party’s reasonable and good faith judgment, would not be effective unless obtained in some other venue. The application of the United Nations Convention on the Sale of Goods is not applicable and expressly disclaimed by the parties. The prevailing party in any lawsuit arising from or relating to the Reseller Agreement is entitled to recover its costs, including reasonable attorney fees.
15.8 Remedies Cumulative. The remedies provided to the parties under the Reseller Agreement are cumulative and will not exclude any other remedies to which a party may be lawfully entitled.
15.9 Waiver and Severability. The waiver by either party of any breach of the Reseller Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation under the Reseller Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of the Reseller Agreement. If any part of the Reseller Agreement is unenforceable, the remaining portions of the Reseller Agreement will remain in full force and effect.
15.10 Entire Agreement. The Reseller Agreement, the Order Documents and the Documentation, if any, constitute the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding these matters. For the avoidance of doubt, an executed Order Document (or similar change orders referencing the same) under the Reseller Agreement may modify the terms of the Reseller Agreement; provided that the work order explicitly states the section of the Reseller Agreement intended to be revised.
15.11 Updates to this Reseller Agreement. From time to time, Density may change, modify, add, or remove portions of this Reseller Agreement (each an “Update”), and reserves the right to do so in its reasonable discretion. Subject to the terms of this Section, each Reseller and End User shall be bound by such Updates. If Density Updates this Reseller Agreement, it will make the Update available here, and the Update will indicate the date of the latest revision. Each Reseller and End User has the obligation and is encouraged to review this Reseller Agreement periodically for changes. All Updates take effect as of the date first written above, except that any disputes between either the Reseller or the End User, on the one hand, and Density, on the other, which have been communicated in writing to the applicable party prior to the date that such Updates take effect will be governed by the version of this Reseller Agreement that was in effect on the date the disputing party provided notice to the other of the dispute. For the avoidance of doubt and notwithstanding anything to the contrary contained herein, under no circumstances do the provisions of Section 15.11 make available to either Reseller or End User any termination rights not otherwise expressly available to it under the applicable Order Documents and any terms that may otherwise apply including, without limitation, this Reseller Agreement. In the event the Reseller or End User continues to access or use the Density Products following an Update which has become effective, such continued access or use constitutes the Reseller’s and End User’s respective acknowledgement and agreement to the Reseller Agreement in effect containing such Updates.
Posted on March 1, 2024