Reseller Terms and Agreements

Authorized Reseller Terms and Conditions

              THESE TERMS AND CONDITIONS CREATE A CONTRACT (the “Agreement”) BETWEEN YOU (the “Reseller”) AND ZEKTECK, INC. (the “Provider”).  PLEASE READ THIS AGREEMENT CAREFULLY.  TO CONFIRM YOUR UNDERSTANDING AND ACCEPTANCE OF THIS AGREEMENT, CLICK “AGREE.” 

Recitals

              WHEREAS, Provider is engaged in the business of providing compliance and data security services; and

              WHEREAS, Reseller desires to resell certain of Provider’s products on the terms and conditions set forth in this Agreement.

              NOW THEREFORE, Provider and Reseller agree as follows:

1. Non-Exclusive Right to Sell Products. Subject to and conditioned upon Reseller’s compliance with the terms and conditions of this Agreement, Provider hereby appoints Reseller as an independent, non-exclusive, authorized reseller of the Products identified on Schedule 1 (the “Products”), and Reseller hereby accepts such appointment. Reseller may advertise, promote, and resell the Products solely to third-party End Users within the United States.  For purposes of this Agreement, the term “End User” means a person or entity that desires to use or acquire the Products for its own use, rather than for resale or distribution.  Reseller may not authorize or appoint any dealers, sub-resellers, agents, representatives, subcontractors, or other third parties to advertise, promote, resell, or distribute the Products.  Provider reserves all rights not specifically granted to Reseller in this Agreement.  Without limiting the foregoing, Provider reserves the right to advertise, promote, market, and distribute the Products, and to appoint third parties to advertise, promote, market, and distribute the Products, worldwide.  Further, Provider reserves the right, in its sole discretion, at any time and from time to time, to modify any or all Products and Services it offers, or to discontinue the service, support, or publication, distribution, sale or licensing of any or all of the Products without liability to Reseller of any kind. 

2. Consideration. Reseller’s initial price (“Price”) for the Products shall be as set forth on Schedule 1, which may be amended unilaterally by Provider from time to time by publishing updated prices at www.zekteck.com/pricing.  Reseller acknowledges that Provider has the right, at any time, to modify any or all of the Product Prices.  Provider shall provide Products to Reseller upon acceptance of Reseller’s written order and Reseller’s payment in full, except as may otherwise be mutually agreed in writing by the Parties.  Reseller shall pay in U.S. dollars in immediately available funds using a Visa, MasterCard, or American Express credit card, by wire transfer, or in such other manner as Provider may approve.  Except as may otherwise be mutually agreed in writing, Reseller shall be responsible for all costs associated with its performance under this Agreement.  All freight, insurance, taxes, or duty applicable to Reseller’s purchase and sale of the Products shall be paid by Reseller.  Reseller shall indemnify and hold Provider harmless from any and all obligations to pay any governmental entity any employer statutory taxes, withholding taxes, social security taxes, or other taxes, levies, or duties in connection with Reseller’s performance under this Agreement, and from any and all damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs of litigation) arising out of or resulting therefrom. 

3. Marketing and Promotion of Products. Reseller will perform each of the marketing, promotion, and advertising obligations identified on Schedule 1 (“Marketing Efforts”).  While engaged in Marketing Efforts, Reseller will (a) conduct its business in a manner that reflects favorably at all times on the Products and the good name, reputation, and goodwill of Provider; (b) avoid deceptive, misleading, or unethical practices that are or might be detrimental to Provider, the Products, or the public, including disparagement of Provider or the Products; (c) make no false or misleading representations with respect to Provider or the Products; and (d) make no representations with respect to Provider or the Products that are inconsistent with Provider’s end user license agreement or service agreement for the Products, promotional material and other literature distributed by Provider, including all liability warranties, liability limitations, and disclaimers contained in such materials.  Reseller consents to the use of its name, address, phone number, and website in such advertising and promotional materials as Provider may determine, in its sole discretion, necessary, including product literature and Provider’s website.  During the term of this Agreement, Provider may provide to Reseller promotional materials with respect to Products.  Reseller may not use the promotional materials for any purpose other than advertising and promoting the Products to End Users.  Notwithstanding anything to the contrary herein, Reseller may not distribute any Reseller-created promotional materials with respect to Provider or the Products without Provider’s prior written approval of such materials.

4. Permits, Licenses, and Compliance with Laws. Reseller will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules and regulations. 

5. Privacy and Data Collection. Reseller will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any End User data that it collects, accesses, or possesses in connection with this Agreement against unauthorized or unlawful use, disclosure, processing, or alteration.  Reseller will act only on Provider’s instructions in relation to the collection, use, disclosure, and processing of any such End User data, but in all instances in accordance with all applicable laws, rules and regulations. 

6. Resale of Products. Provider shall provide copies of its end user license agreement and service agreement to Reseller upon written request.  Reseller may charge End Users for Products at prices determined by Reseller in its sole discretion.  Reseller may distribute Products solely by sale of Packages.  For purposes of this Agreement, a “Package” means physical or electronic media containing a particular Product, related user documentation, and Provider’s end user license and/or service agreement, as each may be modified by Provider from time to time.  The relationship between the End User and Provider shall be as specified in the applicable Provider end user license and/or service agreement.  Notwithstanding the foregoing, as between Provider and Reseller, Reseller shall be solely responsible for providing customer support to End Users. Reseller will notify Provider immediately in the event that it is unable to respond effectively to any End User request for support. 

7. Ownership. As between Provider and Reseller, all right, title and interest in and to the Products and associated Provider promotional materials and documentation, including all copyrights, patent rights, trademark and service mark rights, trade secrets, and other intellectual property rights, are and will remain property of Provider, and such items may only be used by Reseller as expressly permitted in this Agreement.  Reseller shall not remove, alter, or otherwise modify any copyright, trademark, or other notices of proprietary interest contained in the Products, Provider’s promotional materials, and/or other documentation.  Reseller shall not, and shall not permit, anyone to: (i) copy or republish the Products, (ii) modify or create derivative works based upon the Products, (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the software used in connection with the Products, except and only to the extent such activity is expressly permitted by applicable law; or (iv) access or use the Products to build a similar product or competitive product. 

8. Term and Termination.

8. The term of this Agreement shall begin on the date it is accepted by Reseller and shall continue until terminated by either party as outlined in this Section 8.

1. Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within 30 days after receipt of notice of said breach.

1. Reseller may terminate this Agreement at any time by providing Provider with written notice of Reseller’s intent to terminate at least 60 days prior to the date Reseller intends to terminate this Agreement.

1. Provider reserves the right to suspend performance under this Agreement if Reseller fails to timely pay any undisputed amounts due to Provider under this Agreement, but only after Provider notifies Reseller of such failure and such failure continues for 15 days. Suspension of this Agreement shall not release Reseller of its payment obligations under this Agreement.  Reseller agrees that Provider shall not be liable to Reseller or to any third party for any liabilities, claims, or expenses arising from or relating to the suspension of this Agreement resulting from Reseller’s nonpayment. 

1. Provider reserves the right to suspend performance under this Agreement if Provider reasonably concludes that Reseller’s resale of the Products is causing immediate and ongoing harm to Provider or others. In the extraordinary case that Provider must suspend performance under this Agreement, Provider shall immediately notify Reseller of the suspension and the parties shall diligently attempt to resolve the issue.  Provider shall not be liable to Reseller or any third party for any liabilities, claims, or expenses arising from or relating to any suspension of performance under this Agreement in accordance with this Section 8(e).  Nothing in this Section 8(e) will limit Provider’s rights under Section 8(f) below.

1. Upon termination of this Agreement, Provider shall immediately cease performance under this Agreement and all usage and other rights granted under this Agreement shall terminate. If Provider terminates this Agreement due to a breach by Reseller, then Reseller shall immediately pay to Provider all amounts then due under this Agreement.  If Reseller terminates this Agreement due to a breach by Provider, then Provider shall immediately repay to Reseller all pre-paid amounts for any work under this Agreement not yet performed by Provider and scheduled to be performed after the termination date. Upon termination of this Agreement and upon subsequent written request by the disclosing party, the receiving party of Confidential Information (as defined in Section 9 below) shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

9. Confidential Information.

1. “Confidential Information” means all proprietary, business, financial, technical and proprietary information of a party which is received by the other party under this Agreement, regardless of whether it is marked as such, but does not include information that (i) is known publicly at the time of disclosure or becomes publicly known after disclosure through no fault of the receiving party, (ii) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (iii) is independently developed by the receiving party without the use of Confidential Information as demonstrated by the written records of the receiving party. Each party (a “Receiving Party“) will hold in confidence, using at least that same degree of care it uses to protect its own confidential information, the Confidential Information of the other party (the “Disclosing Party“). The Receiving Party will hold in confidence and not use or disclose the Confidential Information of the Disclosing Party except to the extent such use or disclosure is reasonably necessary to perform its obligations under this Agreement. The Receiving Party may only disclose the Confidential Information of the Disclosing Party to its employees, agents and representatives who have a need to know such Confidential Information in order for the Receiving Party to perform its obligations under this Agreement and provided that such persons are bound by confidentiality obligations at least as stringent as those contained herein. The Receiving Party will not distribute, copy, reverse engineer, modify or otherwise use or exploit for any commercial purpose or gain the Confidential Information of the Receiving Party.

1. These obligations of confidentiality will extend after the termination of this Agreement, but will not apply with respect to information that is independently developed by the parties, lawfully becomes a part of the public domain, or of which the parties gained knowledge or possession free of any confidentiality obligation.

10. Warranties and Disclaimers.

1. EXCEPT FOR THE EXPRESS WARRANTIES, IF ANY, MADE IN THE END USER LICENSE AND/OR SERVICE AGREEMENT, PROVIDER MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS, EXPRESS OR IMPLIED. PROVIDER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OR ANY KIND THAT THE PRODUCTS OR DELIVERABLES, OR THE USE OF ANY OF THE FOREGOING WILL MEET WITH RESELLER’S OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF RESELLER’S OR ANY THIRD PARTY’S PRODUCT, SOFTWARE, SYSTEM, NETWORK OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE FROM HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

1. PROVIDER SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES. NO WARRANTIES MADE BY ANY THIRD PARTY SHALL BE PASSED THROUGH TO RESELLER, NOR SHALL RESELLER CLAIM TO BE A THIRD PARTY BENEFICIARY OF ANY SUCH WARRANTIES.

11. Limitation of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOSS OF BUSINESS, PRODUCTION, PROFIT OR REVENUE; (b) CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED OR PUNITIVE DAMAGES; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY RESELLER TO PROVIDER FOR THE PRODUCTS GIVING RISE TO SUCH LOSSES OR DAMAGES DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

12. Indemnification. Reseller shall indemnify, hold harmless and, at Provider’s option, defend Provider and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, claims, damages, liabilities, actions, judgments, settlements, interest, awards, penalties, fines, costs and expenses of whatever kind, including attorney’s fees and expert witness fees (collectively, “Losses“), arising out of any third party claim, action, suit or proceeding resulting from an acts or omissions of Reseller relating to its activities in connection with this Agreement, Reseller’s breach of this Agreement, Reseller’s misrepresentation’s relating to Provider, the Products, or this Agreement, regardless of the form of action.  Reseller will be responsible for any claims, warranties, and representations made by Reseller or Reseller’s representatives or agents. 

13. Infringement. Provider agrees to defend, or at its option, settle any claim or action against Reseller to the extent arising from a third party claim that a permitted use of a Product by End Users infringes any U.S. patent or copyright, provided that Provider has control of such defense or settlement negotiations and Reseller gives Provider prompt notice of any such claim and provides reasonable assistance in its defense.  Provider will not be liable under this Section 13 if the infringement arises out of Reseller’s activities. 

14. Relationship of the Parties. The relationship of the parties is that of independent contractors. Nothing contained herein will create or imply an agency, partnership, joint venture or other form of joint enterprise, employment of fiduciary relationship between Provider and Reseller, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever. 

15. Non-Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party; provided, however, that Provider may assign this Agreement to a successor of all or substantially all of the assets of Provider, whether through merger, reorganization, consolidation or acquisition. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.

16. In the event Reseller defaults on any of its obligations under this Agreement, including, but not limited to, nonpayment of services provided, Reseller agrees to pay all of Provider’s costs and expenses, including reasonable attorney fees, incurred by Provider in enforcing the provision of this Agreement and/or collecting past due amounts owed.

17. Severability. If a court of competent jurisdiction holds any provision of this Agreement invalid, the other provisions hereof shall not be affected thereby and shall remain in full force and effect.

18. Notices. All notices to be provided hereunder must be in writing.  Notices to Reseller will be sent to the email address on file and notices to Provider may be sent to [email protected]. A party may designate another email address by giving the other party written notice of its new email address. A notice properly addressed to a party will be deemed effective on receipt.

19. Force Majeure. Provider is not responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond Provider’ s reasonable control.

20. Non-Waiver. The wavier by any party of any breach of this Agreement will not be construed to be a waiver of a succeeding breach or any other provision hereof.  All waivers must be in writing, and signed by the party waiving its rights.

21. Amendment. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties. 

22. Entire Agreement. This Agreement and any attachments and exhibits referred to herein, the recitals and preamble, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, proposals, quotations, negotiations, representations and communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not specifically stated herein. Furthermore, each party acknowledges that it has had an opportunity to review the provisions of this Agreement with an attorney of its choice and therefore the rule of contract interpretation construing an ambiguity against the drafting party is hereby waived.

23. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. Any dispute arising from or related to this Agreement shall be brought exclusively in the state and federal courts located in Reno, Nevada.  Each party hereby irrevocably waives the right to a trial by jury in any action arising from or related to this Agreement. 

24. Equitable Relief. Reseller acknowledges that any breach or threatened breach of this Agreement involving the unauthorized use of Confidential Information or Provider’s intellectual property will result in irreparable harm to Provider for which damages would not be an adequate remedy, and therefore, in addition to the rights and remedies otherwise available at law, Provider will be entitled to seek injunctive relief or other equitable relief, as appropriate, and Reseller hereby waives the right to require Provider to post a bond.  If Provider seeks injunctive or other equitable relief, Reseller agrees that it will not allege in any such proceeding that Provider’s remedy at law is adequate.  If Provider seeks any equitable remedy, it will not be precluded or prevented from seeking additional remedies at law, nor will Provider be deemed to have made an election of remedies. 

25. Non-Competition. Reseller is strictly prohibited from selling, offering to sell, marketing for sale on any sales channel (whether online or offline), any other product that is the same or substantially similar or otherwise competes with Provider’s Products at any time during the term of this Agreement and for a period of twenty-four (24) months after termination of this Agreement.  Reseller will be liable for all damages (including consequential, special, attorneys’ fees, and other damages) arising from its breach of this Section 25 unless Reseller notifies Provider of any potential conflicts prior to execution of this Agreement. 

              In Witness Whereof, the Parties have executed this Agreement in duplicate as of the day and year first written above.

SCHEDULE 1

List of Products: HIPAA Compliance Platform

Advanced Security Services

Premium Security Services

Marketing Efforts:

Zekteck  logo on reseller website

Backlink to our website