USHER STRATEGIC RESELLER TERMS AND CONDITIONS
These Usher Strategic Reseller Terms and Conditions (the “Terms and Conditions” and, together with the Registration Form, and all other terms and conditions incorporated by reference herein and therein, the “Agreement”) govern the relationship between Usher and the Usher Strategic Reseller. For purposes of these Terms and Conditions, “Usher Strategic Reseller” and “you” mean the entity that submitted the Registration Form, “Usher” means Usher Incorporated or the Affiliate of Usher that accepted your Registration Form, and “we” and “us” mean Usher together with its Affiliates. Capitalized terms used but not defined in these Terms and Conditions have the meanings ascribed to them in the Registration Form.
1.1 “Agent” means, with respect to either you or us, any of your or our respective officers, directors, employees, contractors, representatives or agents.
1.2 “Affiliate” means, with respect to either you or us, any other entity that directly or indirectly controls, is controlled by or is under common control with you or us.
1.3 “Business Associates” means, with respect to either you or us, any of your or our respective subcontractors, sublicensees, suppliers, vendors or customers.
1.4 “Consulting Services” means any consulting services described at www.usher.com.
1.5 “Customer” means an entity that purchases a license to or a subscription for Products or Services for use or access in accordance with an agreement with you or us.
1.6 “Documentation” means, with respect to a Product, the Usher user manual(s) on installation and/or use of the Product that are distributed with the Product and any software development tools and/or documents provided by us related to the Products.
1.7 “Education Services” means any of our education offerings as described at www.usher.com, provided in accordance with our then-current training guidelines (which we will provide at your request).
1.8 “Effective Date” means the date of the Acceptance Email.
1.9 “Intellectual Property” means all current and future legal and equitable rights and interests in know-how; patents; copyrights (registered and unregistered, and including moral rights); trademarks, tradenames and service marks (in each case, registered and unregistered), and any goodwill associated with any of the foregoing; domain names; source code; object code; utility models; circuit layouts; mask works; trade secrets; inventions (whether patentable or not), and other intellectual activity, and applications of or for any of the foregoing.
1.10 “Usher IP” means: (a) all Intellectual Property and Work Product owned or licensed for use by us as of the Effective Date and any derivative works thereof; (b) all Intellectual Property and Work Product developed by us independently from you after the Effective Date; (c) all Intellectual Property and Work Product developed that relate to the Products or Services; and (d) any Intellectual Property in or to any feedback that we receive from you regarding the Products or Services, and all improvements to any of the foregoing arising from such feedback. For the avoidance of doubt, the Products and any derivative works thereof are Usher IP.
1.11 “Services” means the Consulting Services, Technical Support Services, Education Services, and other services provided to you or a Customer pursuant to this Agreement.
1.12 “Technical Support Services” means any of our technical support and maintenance services provided to you or a Customer in connection with the use of the Products.
1.13 “Work Product” means any and all work product and other information, developments and all intermediate and/or partial versions thereof, all works-of-authorship, inventions, processes, formulas, materials, software, databases, specifications, documentation, systems, drawings, sketches, models, layouts, algorithms, programs, research, technical and business information and data, translations, schematics, pictorial and graphic works, and improvements to any of the foregoing, whether or not patentable or subject to copyright.
2. Resale of Products
2.1 Rights to Permit Evaluation by Customers; Market and Demonstrate Products and Resell Products. We grant you a non-exclusive, non-transferable right, during the Term, to (i) distribute or otherwise provide access to non-production versions of the Products to Customers and prospective customers solely for evaluation purposes (each for a period not to exceed ninety (90) days), as provided by and in a manner prescribed by us, (ii) market and demonstrate the Products to Customers and prospective customers, as provided by us and in a manner prescribed by us and (iii) resell the Products (as listed on an Order placed pursuant to this Agreement) to any Customer directly in connection with an Approved Opportunity. In connection with marketing and demonstrating the Products to Customers and prospective customers pursuant to this Agreement, we will make each Product available to you for an agreed upon number of users for such marketing and demonstration purposes. Your use of each of the Products in connection with marketing and demonstration to Customers and prospective customers will be governed by the terms of this Agreement and our standard terms and conditions for such Product.
2.2 Order Fulfillment. Each Order placed pursuant to these Terms and Conditions will include the following documents: (i) an executed copy of an ordering document in a form provided by us and (ii) an executed copy of the Exhibit A generated from our automated quote generation system (or another form of price quotation provided by us).
2.3 Customer Agreements. Except as otherwise set forth in these Terms and Conditions, each Order placed pursuant to these Terms and Conditions will include a Customer Agreement in a form provided by us, executed by the Customer. “Customer Agreement,” as used herein, means an agreement between us and a Customer that prescribes terms and conditions governing the use of the Products by (and, as applicable, the provision of Services to) the Customer.
2.4 Survival of Customer Licenses and Subscriptions. All licenses to and subscriptions for the Products resold by you to a Customer (or, as applicable, licensed by you from us and hosted on Customers’ behalf) under these Terms and Conditions will survive the termination or expiration of this Agreement, and will terminate or expire in accordance with the terms of the applicable Customer Agreement.
3. Systems Integration
We grant you a non-exclusive, non-transferable right, during the Term, to perform systems integration services using Products in support of your activities under this Agreement and otherwise in accordance with the terms of this Agreement.
4. Resale of Services
We grant you a non-exclusive, non-transferable right, during the Term, to resell Services (as listed on an Order placed pursuant to this Agreement) to any Customer directly in connection with an Approved Opportunity.
We grant you the right, during the Term, to sublicense any of the rights granted to you in this Agreement to third parties (each, a “Sub-Distributor”) who have entered into a written agreement with you containing terms and conditions substantially similar to, but at least as protective of us (including with respect to Usher IP and the Products) as, the terms and conditions of this Agreement. You will be responsible to us for any Sub-Distributor’s noncompliance with such terms. This Section does not permit a Sub-Distributor to sublicense any of the rights granted to it pursuant to this Section. Any purported sublicense of any of the rights set forth in this Section not expressly authorized by this Section is unauthorized and shall be null and void. Each such sublicense shall be terminable at will by us, with or without cause, and shall terminate immediately in the event we provide written notice of such termination to you. In such event, you will inform the affected Sub-Distributor of such termination and take any additional actions that may be necessary to effectuate the termination.
6. Consulting Services.
6.1 Consulting Services. All Consulting Services provided by us pursuant to Orders placed by you under this Agreement (including Orders placed on behalf of a Customer) are provided solely and directly to you (and not to the Customer). You are solely and fully responsible for all obligations (including payment obligations) of, and for any claims for redress brought by, a Customer in connection with a Consulting Services engagement made pursuant to this Agreement.
6.2 License to Work Product. Subject to payment for the applicable Consulting Services, we hereby grant you a non-exclusive, sublicensable license to the Work Product developed by us and delivered to you as part of Consulting Services for use by you (or, as applicable, your Customer) in connection with the resale of Products in connection with an Approved Opportunity.
6.3 Cancellation Fees. If you cancel a confirmed Consulting Services engagement within ten (10) business days prior to the agreed-upon commencement date of the engagement, we reserve the right to charge a cancellation fee calculated as (a) (i) fifty percent (50%) of the number of hours in the committed resource engagement up to a maximum of twenty (20) hours multiplied by (ii) the applicable hourly rates for the committed resources for such engagement plus (b) any non-cancelable travel expenses.
7. Business Development and Marketing
7.1 Forecasting. You will, at our request and no more frequently than monthly, provide us any information reasonably requested in connection with our forecasting efforts, including a list of all prospective sales opportunities and participate in sales forecasting reviews with our sales management team.
7.2 Marketing, In connection with our marketing of the Products, you grant us the right to prepare and distribute materials describing your and your Customers’ experience with the Products and Services. Upon our request, you will provide reasonable assistance in (i) our preparation of white papers and case studies and (ii) obtaining referrals or ambassadors, in each case, for the Products and Services.
8. Use of Trademarks
We grant you a non-exclusive, non-transferable (except as otherwise set forth in the Agreement), royalty-free license, during the Term, to use the Usher Trademarks in connection with your authorized activities under the Agreement. Each such use shall be in accordance with our quality control and branding standards, and subject to our advance written consent in our sole discretion prior to each such use. You will submit to us any proposed advertising, promotion, publicity, or other materials in which any Usher Trademarks are used with sufficient advance written notice to give us a reasonable opportunity to review them before your use is proposed to begin. You will cease any particular use of the Usher Trademarks promptly upon our request. You will include the appropriate trademark and other proprietary notices when referring to us or the Products and Services in advertising, promotional, publicity, or other materials.
During and after the Term, you and we (i) will not disclose, orally or in writing, any Confidential Information to any person, other than your or our Agent bound by terms at least as restrictive as those set forth in the Agreement with a need to know such Confidential Information and (ii) will each hold the other's Confidential Information in confidence and protect the same with at least the same degree of care, but no less than reasonable care, with which you or we protect your or our own similar confidential information. You and we will immediately report in writing to the other, and will cooperate with the other in the investigation of, any unauthorized copying, use, or disclosure of the other’s Confidential Information that is known to or reasonably suspected by you or us. Neither you nor we will use the other's Confidential Information for any purpose except to exercise your or our rights or to perform your or our obligations under the Agreement. Notwithstanding the foregoing, you or we may make such disclosures as are required by legal, accounting, or regulatory requirements and state publicly or list in advertising and marketing materials the fact that you and we are working together under the Agreement. "Confidential Information" means any data, information or materials disclosed by you or us to the other or its representatives that is either identified by the disclosing entity before its disclosure as being confidential or understood by the recipient, exercising reasonable business judgment, to be confidential. Notwithstanding the foregoing and in all cases whether or not marked “confidential” or otherwise identifiable as confidential, (i) the Products, (ii) any Work Product and (iii) pricing terms, manuals and technical specifications that we provide or make available to you relating to the Products, will be deemed to be our Confidential Information. In addition, the following information will be deemed Confidential Information of the disclosing entity: inventions, technical specifications, technical know-how, product development plans, program flowcharts, education materials, pricing, marketing plans, results of benchmark tests and customer lists. Further, any written agreement executed between you (and/or any Affiliate of yours) and us (and/or any Affiliate of ours), including the Agreement, all Opportunity Registration Forms and all Orders hereunder, will be deemed to be the Confidential Information of both you and us. Notwithstanding the foregoing, “Confidential Information” does not include any information that: (a) is already in the public domain or becomes available to the public through no breach of the Agreement by the receiving entity; (b) was in the receiving entity’s possession prior to receipt from the other party, as proven by the receiving entity’s written records; or (c) is received by the receiving entity from a third party free to disclose such information to the receiving entity.
10. Usher Intellectual Property
10.1 Ownership by Usher.
(a) You acknowledge and agree that, as between you and us, we are the sole and exclusive owner of all Intellectual Property rights in and to the Usher IP and all Work Product related to the Products and Services. You will not acquire any right, title or interest in or to the Usher IP or any Work Product related to the Products and Services. To the extent that you participate in the creation of any Usher IP or you otherwise acquire any right, title or interest in or to any Usher IP or any Work Product related to the Products and Services, you hereby assign, without further consideration from us, your entire right, title and interest in and to such work (or any part or element thereof) and any Usher IP and such Work Product to us. You will take no action or position inconsistent with our ownership of such work (or any part or element thereof), the Usher IP and all Work Product related to the Products and Services.
(b) To the extent that you, your Affiliates, your Business Associates or any of your or their respective Agents has or obtains any rights of paternity, integrity, disclosure, attribution, withdrawal and/or any other rights that may be known or referred to as “moral rights” in any Usher IP, such “moral rights” will be deemed assigned to us as of the date any other Intellectual Property rights in such Usher IP first vests in us. To the extent such “moral rights” cannot be assigned under applicable law and/or to the extent such assignment is not allowed by the laws in various countries where “moral rights” exist, you hereby waive (and will cause your Affiliates, Business Associates, and your and their respective Agents to waive) such “moral rights” and consent to any action that would violate such “moral rights” in the absence of such consent. You and we agree that in no event will you, your Affiliates, your Business Associates, or any of your or their respective Agents be deemed a joint owner of any Usher IP or Work Product related to the Products and Services.
10.2 Trademarks. As between you and us, we are the sole and exclusive owner of all Usher trademarks, tradenames, service marks (the “Usher Trademarks”) and all goodwill associated with any of the foregoing. All use of the Usher Trademarks by you, and all goodwill associated with any Usher Trademark, will inure solely to our benefit. Except as expressly permitted under the Agreement, you will not use any Usher Trademark without our prior written consent. As between you and us, we will have the exclusive right, but not the obligation, to apply for registrations of any Usher Trademark in our sole discretion. All Usher Trademark registrations and applications for registration (including intent-to-use applications) will be in our name or the name of our designee. As between you and us, we will have sole authority over any Usher Trademarks used in connection with the Products or Services.
You will not: (a) copy, display, distribute, or otherwise use the Products in any manner or for any purpose not expressly authorized by the Agreement; (b) reverse engineer, decompile or disassemble the Products or the metadata created by the Products; (c) disclose results of any benchmarking tests without our prior written consent; or (d) use the Products for outsourcing, or provide any access to the Products through a service bureau, time-sharing, or ASP arrangement, except as expressly authorized by the Agreement. We are not responsible for, and do not have any obligations to you for, internet infrastructure, network equipment, websites, platforms, social networks, systems and end user and other devices, technologies or services that we do not exclusively control.
12. Limited Warranties and Remedies
12.1 Mutual Warranty. Both you and us warrant to each other that any individual who signs the Agreement, any Opportunity Registration Form and any Order (or other agreement) governed by the Agreement on behalf of you or us has the authority to enter into the Agreement or any such Opportunity Registration Form or Order (or other agreement) on behalf of you or us, as applicable.
12.2 Your Warranties. You warrant that (a) you will refrain from deceptive, misleading, unlawful or unethical practices related to the Products and Services and will make no false or misleading representations or advertisements with regard to the foregoing; (b) you will not purport to bind us to any contractual or other commitment to any third party or represent yourself as our agent with authority to bind us; and (c) you will not use the Products in a manner that violates an individual’s privacy or similar right set forth by statute, rule, regulation or other applicable law.
12.3 Our Warranty. We warrant that our Agents and subcontractors will perform the Services listed on an Order in a manner conforming to generally accepted industry standards and practices. For any breach of this warranty, your exclusive remedy, and our entire liability, will be re-performance of the Services by us at no additional cost to you.
12.4 Warranty Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN THE AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED BY US OR ANY OF OUR AFFILIATES IN CONNECTION WITH THE AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS OR SERVICES PROVIDED BY US OR ANY OF OUR AFFILIATES IN CONNECTION WITH THE AGREEMENT, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEMS INTEGRATION, TITLE, SATISFACTORY QUALITY AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR QUIET ENJOYMENT OF THE PRODUCTS OR SERVICES, OR AGAINST INFRINGEMENT. WE DO NOT WARRANT THAT USE OF ANY PRODUCT OR SERVICE OR ANY PORTION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE PRODUCT OR SERVICE WILL MEET ANY OF YOUR OR YOUR CUSTOMERS’ NEEDS OR REQUIREMENTS. THE PRODUCTS AND SERVICES ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU AND YOUR CUSTOMERS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE DOCUMENTATION OR OTHER INFORMATION OR MATERIALS PROVIDED TO YOU UNDER THE AGREEMENT, IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.
13.1 Indemnification by Us. Usher agrees to defend you against any claim, demand, suit, or proceeding made or brought by a third party (a "Claim") against you alleging that the use of the Products infringes or misappropriates the United States or European Union Intellectual Property rights of a third party, and Usher will indemnify you for any damages finally awarded by a court to the third party claimant or agreed to by us in settlement of the Claim. If your use of a Product is or may be enjoined in connection with the Claim or a potential Claim, we may choose to either modify the Product to be non-infringing (while substantially preserving its utility and functionality) or obtain a license to allow for continued use of such Product; if these alternatives are not commercially reasonable, we may terminate your use of the Product and, in the case of non-perpetual licenses, refund the license fees for the then-current Term, prorated as of the date you reported the breach or, in the case of perpetual licenses, refund the license fees paid as of the date of such breach less depreciation (calculated using the straight-line depreciation method on a seven year depreciation schedule) or any unused, prepaid fees paid for the Product, provided that the Product is returned to us or destroyed (with such destruction certified to us in writing) and you terminate all sublicenses to the Product. Notwithstanding the foregoing, Usher will have no indemnification obligation pursuant to the Agreement for any Claim arising from or based upon: (a) the misuse or unauthorized use of a Product or the use of a Product outside the scope of use identified in the Documentation for such Product, if the Claim would not have arisen without such use; (b) any modification of a Product, if the Claim would not have arisen without such modification; (c) the combination of a Product with any third party component, if the Claim would not have arisen without such combination; or (d) use of a prior version of any Product, if use of a newer version of the Product would have avoided such Claim. This Section 13.1 states Usher’s sole liability to you, and is your exclusive remedy against us, for any type of Claim described in this Section 13.1.
13.2 Indemnification by You. You agree to defend us (and our Affiliates and Agents) from and against any Claims brought against us by a third party due to or arising out of (i) conduct by you or your Customers, as applicable, described in clauses (a) – (d) of Section 13.1, (ii) your breach of the Agreement, (iii) the violation of any law or the Intellectual Property or other rights of a third party by you or any of your Customers (other than any violation of Intellectual Property rights for which we are obligated to indemnify you pursuant to Section 13.1), or (iv) the products and/or services provided by you, including any Claims for, or related to, false advertising, injuries, illnesses, damages, liabilities, costs, or death, whether caused directly or indirectly by you, in full or in part, and you will indemnify us for any damages finally awarded by a court to the third party claimant or agreed to by you in settlement of the Claim.
13.3 Indemnification Procedures. In the event that we or you are obligated to indemnify the other pursuant to this Section 13, the non-indemnifying party will (a) promptly give written notice of the Claim to the indemnifying party; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnifying party may not settle any such Claim unless it unconditionally releases the non-indemnifying party of all liability and contains a statement that the other party admits no liability); and (c) provide to the indemnifying party all available information and reasonable assistance necessary for the indemnifying party to defend or settle the Claim.
14. Limitation of Liability
WE AND OUR AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES RELATED TO DELAYS, LOSS OF DATA, INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR PROFITS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE MAXIMUM CUMULATIVE LIABILITY THAT WE HAVE TO YOU RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO THE GREATER OF (I) THE FEES WE EARNED AND RECEIVED FROM YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER AND (II) ONE THOUSAND U.S. DOLLARS. THIS IS AN AGGREGATE LIMIT REGARDLESS OF THE NATURE OR NUMBER OF CLAIMS. IN ADDITION TO THE FOREGOING, WE WILL NOT BE LIABLE IN ANY MANNER FOR ANY LOSS, HARM OR DAMAGE ARISING OUT OF YOUR OR YOUR END USERS’ DISCLOSURE OR SHARING WITH THIRD PARTIES OF DIGITAL CREDENTIALS (INCLUDING KEYS), AND YOU HEREBY RELEASE US FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, OBLIGATIONS OR LIABILITIES ARISING FROM OR RELATING TO SUCH DISCLOSURE, SHARING OR RELATED ACTIVITIES.
You will keep accurate and complete records relating to the Agreement, including records regarding the sale and distribution of the Products and Services, and, as applicable the use, licensing, download, installation, uninstallation and other activity of or relating to the Products or Services, in accordance with generally recognized accounting principles and practices consistently applied. We will have the right, on our own or through our independent auditors or advisors, to audit such records and/or your facilities upon five (5) business days’ advanced notice to confirm your compliance with all terms of the Agreement. You will provide us with access to your personnel that were involved in the preparation of the documents that are being audited, and are otherwise requested by us to confirm your compliance with the Agreement. We will conduct any such audit during regular business hours at your facilities. We may conduct any audit under this Section 15 during the Term and for two (2) years after expiration or termination of the Agreement. You will maintain all such records documenting your compliance with the terms of the Agreement for two (2) years after its expiration or termination. In the event that any audit reveals an inaccuracy in any Invoice Report provided to us by you, you will immediately pay us the amount attributable to such inaccuracy, if any.
These Terms and Conditions may be modified by us from time to time. We will provide advance notice of such modifications by email to you unless such modifications are in response to changes in laws and it is not practicable for us to provide advance notice, in which case, we will post such modification online at www.usher.com/reseller-terms. All modifications pursuant to this Section 16 will become effective on the applicable date specified in a notice or on the date posted, as applicable. Orders accepted by us prior to the date specified in a notice or the date a modification is posted, as applicable, will not be subject to such modified terms unless the parties agree otherwise in writing.
17.1 Termination Without Cause. We or you may terminate the Agreement for convenience with no less than 30 days’ advance written notice.
17.2 Termination With Cause. We or you may terminate the Agreement by providing the other party advance written notice at any time if: (i) a receiver is appointed for the other party or any of its property; (ii) the other party makes an assignment for the benefit of its creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor’s relief law; (iv) the other party is liquidated or dissolved; or (v) the other party breaches a material provision of the Agreement and fails to cure the breach within ten (10) days following written notice of such failure or default. If we provide notice of modifications to these Terms and Conditions pursuant to Section 16 above and such modifications are significantly adverse to your rights under this Agreement, you will have the right to terminate this Agreement during the period from the time we provide such notice until the time such modifications become effective pursuant to the notice. We may terminate this Agreement at any time if you are sold to or otherwise become an Affiliate of a competitor of ours (in our sole discretion).
17.3 Effects of Expiration or Termination. If the Agreement expires or is terminated for any reason (a) all rights, appointments and licenses granted to you under the Agreement will immediately terminate and (b) you will return to us, or destroy and certify in writing to us the destruction of, all of our Confidential Information and marketing materials in your possession.
17.4 Survival. Your obligations to pay us all amounts due hereunder, as well as all other Sections that would reasonably be expected to survive, will survive any expiration or termination of the Agreement.
18. Compliance with Laws
18.1 Compliance with Export and Other Laws. The Products are subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control and other U.S. agencies, and export controls of Switzerland and the European Union. You represent that you, your Affiliates, your Business Associates and each of your and their respective Agents are not a “Restricted Party”, which means any person or entity: (1) located or established in, a national of, or controlled by the government of Cuba, Iran, North Korea, Sudan, Syria, or other country as to which the United States, Switzerland or European Union maintains an embargo; (2) on the U.S. Department of Commerce Denied Person's List, Entity List, Unverified List or Table of Denied Orders; U.S. Department of the Treasury List of Specially Designated Nationals and Blocked Persons; or U.S. Department of State List of Debarred Parties; (3) engaged in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or biological weapons; or (4) affiliated with or a part of any non-U.S. military organization. The lists of countries, persons and entities that are Restricted Parties are subject to change without notice. You agree to strictly comply, at your sole expense, with all applicable U.S., Swiss and E.U. export controls, including without limitation all licensing, authorization, documentation and reporting requirements relating to your import, use, export and re-export of the Products. You will not sell, resell, loan, disclose, or otherwise transfer any Products to any Restricted Party. If you become or learn that a current Customer has become a Restricted Party, you will notify us immediately and we will have the right to terminate the relevant transactions. You will impose equivalent conditions on any resellers, distributors, end users, or other persons to whom Products are provided or disclosed. The Products may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. If you use the Products outside of the United States, Switzerland and the European Union, you are solely responsible for compliance with all applicable laws, including export and import controls, of such other countries.
18.2 FCPA and Related Matters. We are committed to maintaining high ethical standards in the conduct of our business, and expect the same commitment to integrity from our Business Associates. Accordingly, as a Business Associate of ours, you agree to comply with the following requirements (the “Anti-Corruption Policy”):
(a) You will, in connection with transactions and other activities relating to the sale, distribution, provision or marketing of our products and services comply fully with all applicable anti-mafia, anti-bribery and anti-corruption statutes, rules or regulations of any national, federal, state or local jurisdiction anywhere in the world, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the U.K. Bribery Act of 2010, and you hereby acknowledge that the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010 (in force on July 1, 2011) and other anti-bribery, anti-mafia and anti-corruption laws may apply to your actions.
(b) You will not, in connection with transactions and other activities relating to the sale, distribution, provision or marketing of our products or services, directly or indirectly, offer, give, pay, promise, or authorize the offer, gift or payment or promise of bribes or anything that could be construed or perceived as a bribe to any person or entity doing or seeking to do business with us or to any Government Official. Moreover, you will not, in connection with transactions and other activities relating to the sale, distribution, provision or marketing of our products or services, directly or indirectly, request, agree to accept, or accept bribes or anything that could be construed or perceived as a bribe from any person or entity doing or seeking to do business with us or from any Government Official. The term "bribe" is broadly defined and includes anything of value, such as a payment, gift or benefit, of any kind, offered or given with the purpose of influencing a decision, action or omission. Notwithstanding the foregoing, this Anti-Corruption Policy does not prohibit you from:
(i) providing Anything of Value that is clearly de minimus in nature and is not in the form of cash, checks, wire transfers, gift certificates, credit card use, and other cash or monetary equivalents, such as a cup or a pen bearing your company’s logo or payment of a shared cab ride to a business meeting;
(ii) paying for business meals or entertainment expenses or other business expenses, so long as such expenses do not exceed USD 150 per person (or such other amount as may be approved by us in writing) per event and such expenses are not paid for more than twelve (12) events for any one person in any calendar year; and
(iii) providing free or reduced admission passes to Usher events that showcase our products, technology or services; provided that you do not undertake such actions for the purpose of influencing, inducing or otherwise affecting an official act, decision or omission thereof, securing any improper advantage, or assisting in obtaining or retaining business for or with, or directing business to, any person or entity.
(c) Upon sixty (60) days’ prior written notice, we have the right to require that your employees participate in a training provided by us (including periodic refresher trainings) regarding compliance with the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010 (in force in July 1, 2011) and/or other applicable anti-bribery and anti-corruption laws.
(d) You will, at your own expense, cooperate with any investigation conducted by us in connection with your compliance with this Section 18.2. Such cooperation will include participating in interviews conducted by us and/or our designee(s) and providing any information requested by us and/or our designees.
(e) You are responsible for ensuring that each of your Business Associates involved in the sale, distribution, or provision of our products or services agrees to be bound by the terms and conditions of this Anti-Corruption Policy to the same extent as you.
(f) You will ensure the compliance of your Agents and Business Associates with the terms and conditions of this Anti-Corruption Policy. You will promptly notify us, in writing, of any known or suspected breach of any provisions of this Anti-Corruption Policy by you, your Agents or your Business Associates.
(g) We may, on reasonable advance written notice, examine your corporate books and records that relate or are related to your interactions with Government Officials in connection with transactions and other activities relating to the sale, distribution or provision of our products or services.
(h) Notwithstanding anything to the contrary in the Agreement, we will have the right, in our reasonable judgment, to determine whether you have breached the terms or conditions of this Anti-Corruption Policy and may immediately terminate the Agreement by providing you with written notice of any such breach.
(i) The term “Anything of Value” means any of the following: (i) cash, checks, wire transfers, gift certificates, credit card use, and other cash or monetary equivalents; (ii) tangible and intangible gifts, favors, services, and benefits; (iii) donations or other charitable contributions; (iv) payments to cover travel and entertainment expenses or (v) anything else of value.
(j) For purposes of this Section 18, "Government Official" means any of the following, regardless of rank: (i) an officer or employee of a government or a governmental department, agency, or instrumentality (in other words, someone who holds a legislative, administrative or judicial position of any kind, whether appointed or elected); (ii) a political party, a party official or candidate for political office; (iii) an officer or employee of a government owned or controlled entity or company; (iv) a member of a military; (v) an officer or employee of a public international organization (such as the United Nations or the World Bank); or (vi) any person exercising a public function or acting in an official capacity for or on behalf of any of the foregoing.
18.3 No Government Officials. You represent and warrant that (a) you are not bound by any agreement that conflicts with your obligations under the Agreement, (b) none of your directors or officers (or individuals holding functionally equivalent positions) is a Government Official and (c) you are not a government owned or controlled entity or company or Government Official.
19. General Terms
19.1 Order of Precedence. In the event of a conflict between a provision of these Terms and Conditions, the Registration Form, an Opportunity Registration Form, an Order, and/or a document located at a URL referenced herein or in the Registration Form, the order of precedence to be applied to resolve the conflict will be as follows (in decreasing order of precedence): (a) the Order (but only with respect to that Order); (b) the Opportunity Registration Form; (c) the Registration Form; (d) these Terms and Conditions; and (e) other documents located at a referenced URL. The terms of the Agreement and any applicable Order will supersede the terms in any purchase order or other ordering document submitted by you. Any terms of trade stated or referenced in a purchase order submitted by you (except for names, quantities and addresses) will not be binding on us.
19.2 Approval. Any Registration Form, Opportunity Registration Form, Order or other document submitted to us by you for our approval and not approved by us within 30 days of submission will be deemed rejected.
19.3 No Solicitation. During the Term and for one (1) year following the expiration or termination of the Agreement, neither party will, directly or indirectly, solicit any Agent of the other party to terminate or modify the Agent’s relationship with a party in any way, and neither party will hire any Agent of the other party. Notwithstanding the foregoing, it will not be considered a breach of this Section 19.3 for a party to hire an Agent of the other party responding to publicly advertised job opening announcements.
19.4 Force Majeure. Neither party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond such party’s control, including acts of God or nature, labor disputes, civil commotion, terrorism, sovereign acts of any federal, state, or foreign governments, or shortage of materials.
19.5 Notices. All notices required or permitted to be provided to you under the Agreement will be in writing and will be deemed to have been given when: (a) personally delivered; (b) sent by electronic facsimile transmission, sent to the email address provided by you to us when you register with us or otherwise in the Agreement, or other direct written electronic means with confirmed receipt; or (c) (i) sent by registered mail, postage prepaid (which notice will be deemed to have been received on the third (3rd) business day following the date on which it is mailed) or (ii) sent overnight by a commercial overnight courier that provides a receipt (which notice will be deemed to be received on the next business day after mailing), to the address set forth on the title page of the Agreement (or such other designee/address a party may provide by giving notice to the other party in compliance with the Agreement). Unless otherwise specified in the Agreement, all notices required or permitted to be provided to us will be sent to the following address: Usher Incorporated, Attention: General Counsel, c/o 1850 Towers Crescent Plaza, Tysons Corner, VA 22182, USA. All notices will be deemed delivered two (2) days after being sent by an internationally recognized express courier service or immediately if sent by facsimile, email or through the interface for the Products.
19.6 Export of Personal Data. You acknowledge that if you elect to provide us with personal data during the Term, we may transfer such personal data to other countries, including the United States, in order to fulfill our obligations under the Agreement. You agree (on behalf of yourself and, to the extent applicable, your Customers) to such export of such data by us in order to allow us to fulfill our obligations under the Agreement. It is your sole responsibility to advise us of any requirements that must be fulfilled in order to comply with all applicable laws relating to data protection in connection with any such transfer, so that all processing or export of personal data by us will be carried out in compliance with applicable laws relating to data protection.
19.7 Other Provisions.
(a) Performance of Obligations. Whenever we accept any Opportunity Registration Form or Order, receive any payment, or grant any license or other right under the Agreement, such act is performed by the Usher entity that has the right to perform such act. We may elect to have one of our Affiliates perform such acts under the Agreement as its agent. Each of you and us will pay all costs and expenses incurred in the performance of your and our obligations under the Agreement. We reserve all rights not expressly granted in the Agreement.
(b) Invoicing. All fees set forth in any invoice are net of any taxes, which will be your responsibility, except for taxes on our income. Any dispute to an invoice from us to you must be raised within thirty (30) days from the date of invoice or the invoice shall be deemed correct. If any undisputed invoice governed by this Agreement remains unpaid for 30 or more days after it is due, we may, without limiting our other rights and remedies, accelerate all unpaid fee obligations under Orders placed under this Agreement so that all amounts payable by you become immediately due and payable, and any amounts which remain unpaid after the due date shall be subject to a late charge equal to one and one-half percent (1.5%) per month or the highest rate allowable by law, whichever is lower, from the due date until such amount is paid.
(c) Governing Law; Choice of Forum. The Agreement and all matters arising out of or relating to the Agreement will be governed by the laws of the Commonwealth of Virginia excluding its conflicts of laws principles; the U.N. Convention on Contracts for the International Sale of Goods does not apply. Each of you and we submits to the exclusive jurisdiction of, and agree that venue is only proper in, state or federal courts with jurisdiction over Fairfax County, Virginia in any legal action or proceeding relating to the Agreement; provided, however, that we may institute proceedings against you relating to the protection of our Intellectual Property or other proprietary rights or our Confidential Information in any other court in order to enforce our rights through specific performance, injunction or other equitable relief. Except for an action by us for nonpayment or underpayment by you or for breach of the provisions of the Agreement that protect our Intellectual Property rights or Confidential Information, neither you nor we may bring an action, regardless of form, arising out of or related to the Agreement more than one (1) year after the cause of action has accrued.
(d) Amendment; Waiver; Integrated Agreement; Severability. Except as otherwise set forth in Section 16, this Agreement may be amended only by a written instrument signed by a duly authorized representative of each party; no other act, document, usage or custom will be deemed to amend or modify the Agreement. No single or partial exercise of any right will preclude the further or full exercise of such right. No provision of the Agreement may be waived unless such waiver is in writing and signed by the party against which the waiver is to be effective. No waiver of any provision of the Agreement by either party will be deemed to be a waiver of another provision or a future waiver of the same provision by such party. The Agreement constitutes the entire agreement of the parties with respect to its subject matter and supersedes all oral communications and prior writings with respect thereto. If a provision of the Agreement is invalid or unenforceable, the remaining provisions of the Agreement will continue to be valid and in full force.
(e) Assignment; Nature of Relationship; No Third Party Beneficiaries. The Agreement: (a) may not be assigned by you (with a change of control or merger constituting an assignment) without our prior written consent and any other purported assignment by you is void; (b) may be assigned by us or our successors or assignees without your consent; (c) will be binding upon the respective permitted successors and assignees of each party; (d) does not permit you to bind us to any contracts or obligations with any person or entity and does not create a partnership, joint venture, agency, employment or other similar relationship between or among any parties to the Agreement; (e) does not create an exclusive arrangement; and (f) gives no other person or entity, other than you and us and the respective permitted successors and assignees of the parties hereto, any right, remedy or claim with respect to the Agreement. You and we are acting as independent contractors.
(f) Taxes; Government Contracts. You agree to pay, or ensure that your applicable Customer pays, any taxes, levies or duties imposed by any governmental authority in connection with the Agreement, including any sales, use and other taxes or fees charged for your or your Customers' use of the Products. You will be responsible and liable for all actions and omissions of your Agents and others in connection with your or their use of the Products as well as all actions and omissions of anyone while accessing any Products through your Customers’ user credentials, in each case to the same extent as if those actions or omissions were yours. Products acquired with United States Federal Government funds or intended for use within or for any United States federal agency are provided in accordance with FAR 12.212, Computer Software (October 1995), 52.227-19, Commercial Computer Software Restricted Rights (June 1987), and DFARS part 227.7202, Commercial Computer Software and Commercial Computer Software Documentation (October 1998).
(g) Interpretation. Use of the terms “resell,” “purchase” and “price” will not connote transfer of title or ownership. The term "including" means "including without limitation". Any fees contemplated by the Agreement do not include any taxes. Captions and headings are for convenience only and will not affect the construction of the Agreement.
(h) Counterparts. Any Order or other agreement subject to these Terms and Conditions may be executed in two (2) or more counterparts, each of which is deemed an original, but which together constitute one (1) contract or document. Signed facsimile copies of Orders and other associated documents, including attachments, and amendments will legally bind the parties to the same extent as original documents.