Last updated: February 27, 2024
This Forward Networks Reseller Agreement (“Agreement”) is between Forward Networks (defined below) and the entity electing to join the Forward Networks reseller program (“Reseller”). The terms of this Agreement apply to Reseller’s resale of the Forward Networks’ products and services. This Agreement takes effect on the date Reseller executes this Agreement, submits or accepts an ordering document that references this Agreement (such as an invoice, order, purchase order, or quote), or clicks an “Accept” button or check box, whichever occurs first (“Effective Date”).
- Forward Networks
1.1 Forward Networks Materials. Forward Networks may provide to Reseller various Forward Networks Materials. Forward Networks Materials may include guidance on how to implement Forward Networks Services, technical documentation, and the Portal. Reseller must only use Forward Networks Materials for reselling Forward Networks Services in accordance with the terms of this Agreement.
1.2 Co-Selling Support. Forward Networks may, at its discretion, support Reseller’s sales efforts as they relate to Forward Networks Services, including by participating in joint sales activities and case studies, giving access to technical and marketing materials, or providing product and sales training. Each party is responsible for its own costs and expenses in connection the Program and this Agreement, except as Reseller and Forward Networks otherwise agree in writing.
1.3 Marketing Incentives. Forward Networks may, at its discretion, provide funding to Reseller to support marketing of Forward Networks Services. Reseller’s access to this funding is subject to this Agreement, including all eligibility requirements and other additional terms made available to Reseller, if any.
1.4 New Business Incentive Program. Forward Networks may, at its discretion, provide incentives for Reseller to sell Forward Networks Services (each prospective customer or sale a “Lead” and each actual user of Forward Networks Services as a result of a sale by Reseller a "Customer"). Reseller’s access to these benefits is subject to this Agreement, including all eligibility requirements and other additional terms made available to Reseller, if any.
- Resales of Forward Networks Services by Reseller.
2.1 The parties will specify the price and terms for each Lead in a separate document in the form of Exhibit A (each a "Quote"). Forward Networks may change the terms of any Quote by providing 30 days' notice of the change. Any orders submitted before the notice period is up will be under the previously agreed upon terms in the Quote.
2.2 Orders. Reseller's orders for the Services must be in writing, identify the Customer (and any additional resellers) and reference this Agreement. Each order is subject to acceptance by Forward Networks. Forward Networks must accept or reject an order by an order acknowledgment within 10 business days of actual receipt by Forward Networks. The terms and conditions of this Agreement (including without limitation the Quote) apply to all Reseller orders and supersede any different or additional terms on any Reseller orders.
2.3 Forward Networks may choose to enter a relationship with each Lead at its sole discretion. The Lead must execute an agreement for the Forward Networks Services directly with Forward Networks before the Forward Networks Services will be provided and the Lead becomes a Customer.
2.4 Changed or Cancelled Orders. Following acceptance of an order by Forward Networks, the order may only be changed or canceled with Forward Networks' written consent and, if so, is subject to change or cancellation charges. Cancellation charges may include, among other things, compensation for specific expenses and commitments already incurred or made in connection with the orders and a reasonable allowance for overhead, general and administrative expenses, and profit. Change orders may also change the delivery dates. Forward Networks reserves the right to cancel any orders placed by Reseller and accepted by Forward Networks as set forth above, or to refuse or delay installation/provisioning, if Reseller (i) fails to make any payment as provided in this Agreement or under the terms of payment set forth in any invoice or otherwise agreed by Forward Networks and Reseller, or (ii) otherwise fails to comply with the terms and conditions of this Agreement. No such cancellation, refusal, or delay by Forward Networks may deemed a breach of this Agreement.
2.5 Forward Networks will invoice Reseller upon Product delivery to Customer. Regardless of whether Customer pays Reseller, Reseller must pay the amounts set forth in Forward Networks' invoice within 30 days from date of Forward Networks' invoice. Forward Networks may issue one or more invoices for an order. Late payments bear interest from the due date at a rate of, the lesser of: 2% per month and the highest amount allowed by law. Payment must be made in U.S. dollars. If Reseller is materially late to pay any Forward Networks invoice, then Forward Networks has the following rights and remedies: (i) demand payment and suspend its performance until full payment is received; (ii) terminate Customer's license(s) and disable any software so that the Services are no longer usable by Customer; (iii) initiate legal action under this Agreement; and/or (iv) take all other necessary actions under law and equity. Reseller is responsible for Forward Networks’ costs of collection including without limitation any collections fees, legal fees, and court costs.
2.6 Each party will be responsible, as required under Law, for identifying and paying all taxes and other governmental fees and charges (and any related penalties or interest) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. Forward Networks may deduct or withhold any taxes that Forward Networks determines it is obligated to withhold from any amounts payable to Reseller under this Agreement, and payment to Reseller as reduced by such deductions or withholdings will constitute full payment and settlement to Reseller of such amounts. Throughout the Term, Reseller must provide Forward Networks with any forms, documents, or certifications as may be required for Forward Networks to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
2.7 Limitations on Resale. Reseller may resell the Services only to Customers, and not to other resellers or distributors unless approved by Forward Networks in writing. Reseller must ensure in its Customer agreements that the Services are resold to Customers subject to Forward Networks standard terms or other Services terms negotiated between Forward Networks and Customer, which will be provided upon request. Reseller must not sell, transfer, publish, disclose, display, or otherwise make available or offer the Services to others except as expressly permitted in this Agreement. Reseller must coordinate Lead requests for evaluation orders with Forward Networks and must ensure in writing that any evaluation orders are subject to Forward Networks' evaluation license, which will be provided upon request.
- Reseller Responsibilities
3.1 Forward Networks Account. Reseller must create a Forward Networks account, maintain it throughout the Term, and register any sales and potential sales.
3.2 Payment. Reseller must pay Forward Networks for the Forward Networks Services provided by Forward Networks according to the applicable Quote and Section 2.5-2.6 above. Reseller may not modify the terms of the Quote with the Lead or Customer. Reseller is responsible for paying for the Forward Networks Services regardless of whether Customer pays Reseller.
3.3 Code of Conduct. While marketing Forward Networks’ Services, Reseller must (a) not make any misrepresentations to or mislead any third party; (b) avoid any conflict of interest or engage in any unethical conduct; and (c) not cause any reputational harm to the Program or Forward Networks.
3.4 Compliance with Laws. Reseller represents as of the Effective Date, and warrants at all times during the Term, that it complies with all Laws that apply with respect to this Agreement, including (a) Laws implementing sanctions and export controls (such as those implemented by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State, and the U.S. Department of Commerce, the U.K.’s His Majesty’s Treasury, the United Nations, the European Union, and all other jurisdictions relevant to Reseller); and (b) Laws addressing public and private corruption, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and other similar Laws.
3.5 Export Compliance. Reseller acknowledges that the Products are subject to the Export Administration Regulations (“EAR”) of the United States. Reseller may not export or re-export the Products except in compliance with the EAR and related rules and regulations and similar non-U.S. government restrictions, if applicable. Reseller shall not and shall not allow any third party to remove or export from the United States or allow the export or re-export of any Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed country (at the time of this Agreement, the Crimea, Donetsk, or Luhansk regions of Ukraine, Cuba, Iran, North Korea, and Syria); (b) to anyone on the U.S. Commerce Department’s prohibited parties lists (including but not limited to the Entity List, Denied Persons List, and Unverified List); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Reseller agrees to the foregoing and warrants that it has appropriate systems and processes in place designed to ensure its compliance with (a)–(d) above. The Products are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior permission of the U.S. government
3.6 Sanctions Compliance. Reseller represents, warrants, and agrees that it shall not and shall not allow any third-party to sell or perform any services related to any Products to any individual or entity (“Person”) that is (a) listed on, or owned or controlled by a Person listed on, or acting on behalf of a Person listed on, the List of Specially Designated Nationals and Blocked Persons (“SDN List”) maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) or any similar list maintained by, or public announcement of sanctions designation made by, the United States Department of State or any other U.S. government entity, the European Union and its member States, the United Nations Security Council, any United Nations Security Council Sanctions Committee, or His Majesty’s Treasury of the United Kingdom (each a “Sanctions List”); (b) located in, incorporated under the laws of, or acting on behalf of a person located in or organized under the laws of, a country or territory which is itself the target of any country-wide or territory-wise sanctions laws (at the time of this Agreement, the Crimea, Donetsk, or Luhansk regions of Ukraine, Cuba, Iran, North Korea, and Syria) (each a “Sanctioned Jurisdiction”); or (c) otherwise a target of the economic or financial sanctions or trade embargoes imposed, administered, or enforced from time to time by the (i) U.S. government, including but not limited to OFAC or the U.S. Department of State, (ii) the European Union and its member States, (iii) the United Nations Security Council, and (iv) His Majesty’s Treasury of the United Kingdom, collectively “Sanctions.” Neither Reseller nor its personnel have violated Sanctions, and Reseller agrees and warrants that it will comply with Sanctions and that: (i) is not located in, under the control of, or a national or resident of any Sanctioned Jurisdiction, on the SDN List or any other Sanctions List, or owned 50 percent or more by one or more individuals or entities on the SDN List or any other Sanctions List; and (ii) it has appropriate systems and processes in place designed to ensure its compliance with Sanctions and these provisions.
3.7 Lead and Sales Data.
(a) Reseller represents as of the Effective Date, and warrants at all times during the Term, that when it provides Lead Data to Forward Networks (a) it has provided all required notices and has obtained the necessary rights to allow Forward Networks to process and use Lead Data as authorized under this Agreement; and (b) the Lead Data and Forward Networks' authorized processing of Lead Data does not infringe or violate the intellectual property, publicity, privacy, data protection, or other rights of any third party under Law.
(b) Reseller must obtain clear and affirmative consent from a Lead to disclose its Lead Data to Forward Networks and for Forward Networks to use this Lead Data in accordance with the Forward Networks Privacy Policy. Reseller must ensure that the consent satisfies all relevant requirements under Law. As an example, in some jurisdictions, Reseller can present the Lead’s representative with the following statement to get clear and affirmative consent from the Lead’s representative:
“By checking this box/submitting this form, I consent to you providing my contact information to Forward Networks, Inc. and its affiliates, as applicable (“Forward Networks”), and for Forward Networks to send marketing information to me related to Forward Networks' services, events and any special offers by email, post, and telephone. I may unsubscribe from receiving further marketing communications from Forward Networks at any time by notifying you at [your unsubscribe notice email address] and Forward Networks at privacy@forwardnetworks.com. I understand Forward Networks will process my information in accordance with Forward Networks' Privacy Policy.”
Reseller must promptly notify Forward Networks at privacy@forwardnetworks.com if the Lead’s representative revokes its consent or wishes to exercise any other rights it may have under Law. Reseller must not market any Forward Networks Services to the Lead after the Lead’s representative has revoked its consent. Reseller must maintain all necessary documentation and evidence to demonstrate compliance with this Agreement, including the date on which each Lead’s representative gave consent, and the exact language of the consent. Forward Networks may audit Reseller’s compliance with this Section at any time on reasonable notice. Reseller must cooperate with Forward Networks in conducting the audit. If an audit identifies that Reseller has breached this Section, then Reseller must remediate the breach and Forward Networks may, at its discretion, require Reseller to share its remediation plan.
- Co-Marketing and Intellectual Property
4.1 Forward Networks Materials; Forward Networks Marks. “Marks” (or the singular “Mark”) means any of our names, logos, icons, design elements, trade dress, or anything else (whether registered or unregistered) that we may use to identify and distinguish our goods or services from those of others. Subject to the terms and conditions of this Agreement, Forward Networks grants to Reseller a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license during the Term to use (a) the Forward Networks Marks to identify itself as a Forward Networks Reseller; and (b) the Forward Networks Materials as part of any authorized marketing activities under this Agreement. When using the Forward Networks Marks, Reseller must comply with the Forward Networks Marks Usage Agreement, if any, and all other usage guidelines that Forward Networks provides to Reseller in writing. If any Forward Networks Marks or Forward Networks Materials are separately licensed, the terms of those licenses will apply to, and control in case of conflict with this Agreement as to, those Forward Networks Marks or Forward Networks Materials, as applicable. Reseller must promptly comply with all reasonable instructions and limitations relating to the Forward Networks Marks and Forward Networks Materials that Forward Networks communicates to Reseller. Reseller must not remove or in any manner alter any copyright, trademark, or other proprietary rights notice in the Forward Networks Marks or Forward Networks Materials.
4.2 Reseller Materials; Reseller Marks. Subject to the terms and conditions of this Agreement, Reseller grants to Forward Networks a non-exclusive, non-transferable (other than as allowed in Section 9.4), non-sublicensable, worldwide, royalty-free license during the Term to use (a) Reseller’s name and Marks to identify Reseller as a Forward Networks partner or participant in Forward Network’s reseller program; and (b) Reseller Materials as part of any marketing activities under this Agreement. This includes use on Forward Networks' websites that identify partners, in Forward Networks' sales and marketing materials and communications, and in Forward Networks' financial disclosure documents. When using Reseller’s name, Marks, and Reseller Materials, Forward Networks must comply with usage guidelines that Reseller provides to Forward Networks in writing. Reseller represents as of the Effective Date, and warrants throughout the Term, that (i) Reseller Marks and Reseller Materials do not violate or infringe upon any third-party rights, including intellectual property rights; and (ii) Reseller has obtained, as applicable, all necessary rights and permissions to enable Forward Networks to use Reseller Materials in connection with this Agreement.
4.3 General. Nothing in this Agreement assigns or transfers ownership of any intellectual property or proprietary rights to the other party. All rights not expressly granted in this Agreement are reserved. All goodwill generated from the use of the grantor party’s name and Mark will inure to the benefit of the Mark owner.
4.4 Marketing; NFR License. Reseller will use reasonable commercial efforts to promote and market the Forward Networks Services. Subject to the terms of this Agreement, Forward Networks hereby grants Reseller a nontransferable, non-exclusive license to use the Forward Networks Services to demonstrate Forward Networks Services: a) to bona fide Leads, and b) for internal training to support sales of the Forward Networks Services. Reseller will not make any representations regarding Forward Networks Services. Reseller must obtain Forward Networks' prior written approval for all advertisements and promotional materials used in connection with marketing the Forward Networks Services and Forward Networks will not unreasonably withhold, condition, or delay its approval.
4.5 Notice to United States Government End Users. If Reseller is the U.S. Government or if Reseller is a contractor or subcontractor (at any tier) of the U.S. Government and is accessing the Services (such as for the NFR license in the preceding section) for use by the U.S. Government or in connection with any contract or other transaction with the U.S. Government, Reseller acknowledges that the Services and all associated software and technology of Forward Networks qualify as commercial computer software and that any associated documentation qualifies as commercial computer software documentation within the meaning of the applicable governmental acquisition regulations. The Services were developed fully at private expense. The terms and conditions of this Agreement are fully applicable to the U.S. Government’s use of the Services and associated software and documentation, and supersede any conflicting terms or conditions, unless otherwise prohibited by federal law or regulation. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All other use is prohibited.
- Data Use; Privacy; Confidentiality
5.1 Lead Data Use. To the extent Law permits, Forward Networks will use Lead Data to (a) market Forward Networks Services and conduct other reseller program activities; (b) exercise Forward Networks' rights and perform Forward Networks' obligations under this Agreement; and (c) comply with applicable Law.
5.2 Privacy. Each party must comply with its own privacy policy and applicable Law when processing personal data.
5.3 Confidentiality. Each party (“Receiving Party”) must protect the Confidential Information disclosed by the other party or its Affiliate (“Disclosing Party”) using the same degree of care that the Receiving Party uses to protect the confidentiality of its own confidential information (but not less than reasonable care). The Receiving Party must (a) not use the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; and (b) except as the Disclosing Party otherwise authorizes in writing, limit access to the Disclosing Party’s Confidential Information to the Receiving Party’s employees, agents and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective than those in this Agreement. If the Receiving Party is required by Law (including by the U.S. Security Exchange Commission or other regulators) or court order to disclose Confidential Information, then the Receiving Party must, to the extent legally permitted, provide the Disclosing Party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone may not be a sufficient remedy, and the Disclosing Party would be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
5.4 Exclusions. The restrictions and obligations in Section 5.3 will not apply with respect to any information that the Receiving Party documents (a) is, through no improper action or inaction by the Receiving Party or its Affiliate, agent, consultant, or employee, generally available to the public; (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it by a third party without breach of any obligation of confidentiality; or (d) was independently developed by the Receiving Party’s employees who have had no access to the information.
- Disclaimer and Limitation of Liability
6.1 Disclaimer. Forward Networks provides the reseller program and any Materials “AS IS” and “AS AVAILABLE”. To the maximum extent permitted by Law, Forward Networks does not make any, and expressly disclaims all, warranties (other than those expressly stated in this Agreement) and statutory guarantees with respect to its performance under this Agreement,Forward Networks Materials, the Forward Networks Services, and Forward Networks Confidential Information, including as related to availability, the implied warranties of fitness for a particular purpose, merchantability and non-infringement, and the implied warranties arising out of any course of dealing, course of performance or usage in trade. Forward Networks is not liable for any losses, damages, or costs that Reseller or others may suffer arising out of or relating to hacking, tampering, or other unauthorized access or use of any online platforms, websites, or accounts or the Forward Networks Services, or Reseller’s failure to use or implement anti-fraud or data security measures. Further, Forward Networks is not liable for any losses, damages, or costs that Reseller or others may suffer arising out of or relating to (a) Reseller’s access to, or use of, any online platforms or accounts in a way that is inconsistent with this Agreement; (b) unauthorized access to servers or infrastructure, or to Lead Data; (c) interruptions or stoppages in the availability of any online platforms or accounts or the Forward Networks Services; (d) errors, inaccuracies, omissions or losses in or to any Lead Data; or (e) the defamatory, offensive, or illegal conduct of others.
6.2 Indirect Damages. Except for damages a party incurs that arise out of the other party’s breach of Section 5.3, to the maximum extent permitted by Law, neither party will be liable to the other party in relation to this Agreement during and after the Term, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for any lost profits, personal injury, property damage, loss of data, business interruption, indirect, incidental, consequential, exemplary, special, reliance, or punitive damages, even if advised of the possibility of these losses, damages, or costs.
6.3 Limitation of Damages. To the maximum extent permitted by Law, Forward Networks will not be liable to Reseller in relation to this Agreement during and after the Term, whether in contract, negligence, strict liability, tort or other legal or equitable theory, for losses, damages, or costs exceeding $500 USD in the aggregate.
- Indemnification
7.1 Indemnification. Each party (the “Indemnifying Party”) will defend the other party and its directors, employees and agents (each, an “Indemnified Party”) against any claim, demand, government investigation, or legal proceeding brought by a third party (“Claim”) that the Indemnifying Party’s Mark or Materials licensed under this Agreement infringes the copyright or Mark of a third party, and will indemnify the Indemnified Parties against all amounts finally awarded by a court of competent jurisdiction to the third party making a Claim (these amounts, “Losses”). Further, Reseller (as the Indemnifying Party) will defend the Forward Networks Indemnified Parties against all Claims arising from Reseller’s breach or alleged breach of Section 2 or 3, and will indemnify the Forward Networks Indemnified Parties against resulting Losses and any legal and other fees and costs incurred by Forward Networks.
7.2 Process of Indemnification. The Indemnified Party must promptly notify the Indemnifying Party of the Claim for which the Indemnified Party seeks indemnification; however, any delay or failure to notify will not relieve the Indemnifying Party of its obligations under this Section except to the extent it has been prejudiced by the delay or failure. The Indemnifying Party will have sole control and authority to defend and settle the Claim, but (a) the Indemnified Party may participate in the defense and settlement of the Claim with counsel of its own choosing at its own expense; and (b) the Indemnifying Party will not enter into any settlement that imposes any obligation on the Indemnified Party (other than payment of money, which the Indemnifying Party will pay) without the Indemnified Party’s consent. If a Claim under Section 7.1 is made or threatened regarding the Indemnifying Party’s Marks or Materials licensed under this Agreement, the Indemnified Party will stop using allegedly infringing materials at the Indemnifying Party’s written request. The Indemnified Party must reasonably assist the Indemnifying Party in defending a Claim.
- Term and Termination
8.1 Term. This Agreement begins on the Effective Date and continues until terminated under Section 8.2 (the “Term”).
8.2 Termination. Either party may terminate this Agreement at any time, for any reason or no reason, on 30 days’ notice. If either party breaches a provision of this Agreement other than Section 5.3, the nonbreaching party may terminate this Agreement immediately on notice if the breaching party has not cured the breach within 14 days after receiving notice of the breach. Either party may terminate this Agreement immediately on notice if the other party breaches Section 5.3. Forward Networks may immediately terminate this Agreement if Forward Networks believes that Reseller is engaged in a business, trading practice, or other activity that presents an unacceptable risk to Forward Networks.
8.3 Damages Associated With Exercising Termination Rights. Neither party will be liable to the other party for any claims or damages of any kind arising out of a party exercising the termination rights described in this Agreement, and each party hereby waives, and covenants to the other that it will not pursue, any compensation or reparation associated with a termination, whether compensation or reparation results by operation of law or otherwise. For clarity, this subsection is not intended to affect any remedies a party is entitled to seek in connection with a breach of this Agreement, nor does it affect the obligation of Forward Networks to pay fees due to Reseller for Leads obtained prior to the effective date of termination.
9.4 Survival. Provisions that by their nature are intended to survive termination (including Sections 2.4-2.7, 4.3, 4.5, 5, 6, 7, 9, and this Section 8.4) will survive termination of this Agreement.
- Miscellaneous
9.1 Notices. Forward Networks may give notices under this Agreement by email, or posting the notice in any online platform created for use by resellers. Unless this Agreement states otherwise, Reseller must submit its notices to Forward Networks by providing a copy by email to legal@forwardnetworks.com.
9.2 Feedback. Reseller may provide suggestions, comments, or other feedback to Forward Networks with respect to its reseller program or the Forward Networks Services (“Feedback”). Feedback is voluntary, and Reseller, on behalf of itself, grants to Forward Networks a perpetual, worldwide, non-exclusive, irrevocable, royalty-free license to exploit the Feedback for any purpose, including developing, manufacturing, marketing, selling and maintaining Forward Networks' products and services. All Feedback is considered Forward Networks' Confidential Information.
9.3 Governing Law and Venue. The laws of the State of California will govern this Agreement, without giving effect to its conflicts of law principles. Each party irrevocably submits to the exclusive personal jurisdiction of, and will bring all suits and actions under or in connection with this Agreement exclusively in, the courts located in Santa Clara County, California, and waives all objections to that jurisdiction and venue. The United Nations Convention on the International Sale of Goods does not apply.
9.4 Assignment. Neither party may assign or transfer any obligations or benefit under this Agreement without the other party’s consent, except (a) Forward Networks may, without Reseller’s consent, assign and transfer this Agreement, including any of its rights and obligations under this Agreement, to any Forward Networks Affiliate; and (b) Reseller may, with Forward Networks' consent, which Forward Networks will not unreasonably withhold, delay or condition, assign and transfer this Agreement, including any of its rights and obligations under this Agreement, to any of its Affiliates. Any attempt to assign in violation of the foregoing sentence will be void in each instance. This Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties and their permitted assigns.
9.5 Force Majeure. Neither party will be liable for any loss or damage to the other party, or delays in performance, to the extent caused by a Force Majeure Event.
9.6 Order of Precedence. If there is any conflict between the terms in the following list, the terms earlier in the list will prevail to the extent of the inconsistency: (a) this Agreement; (b) and (c) other terms incorporated by reference in this Agreement.
9.7 Construction and Interpretation. If any court or Governmental Authority determines any provision of this Agreement to be unenforceable, the parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable. Unless stated, or context requires otherwise (a) “days” means “calendar days”; and (b) references to “includes” or “including” not followed by “only” or a similar word mean “includes, without limitation” and “including, without limitation,” respectively. This Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed to favor either party. This Agreement has been executed in English, which will be the sole and controlling language used to interpret or construe its meaning (unless Law requires otherwise).
9.8 Non-Exclusivity. This Agreement is non-exclusive, and either party may enter into any alliance, partnership, referral, resale, customer, or other agreement with any third party at any time.
9.9 Relationship of the Parties. Each party is an independent contractor to the other and has no authority to act on behalf of or bind the other, and this Agreement does not create any other relationship (e.g., employment, partnership, agency, or franchise).
9.10 Cumulative Rights. The rights and remedies of the parties under this Agreement are cumulative, and each party may enforce any of its rights or remedies under this Agreement, along with all other rights and remedies available to it at law or in equity.
9.11 Waivers; Entire Agreement. No waiver of any breach will waive any other breach, and only written waivers are effective. This Agreement (a) is the parties’ entire agreement on Reseller’s activities as a reseller for Forward Networks and supersedes all oral understandings, representations, prior discussions, letters of intent, or preliminary agreements to the extent related to this subject; and (b) may be modified only as expressly provided in this Agreement. The Forward Networks Agreement governs Reseller’s access to and use of Forward Networks Services, if applicable. Nothing in this Agreement modifies or supersedes the Forward Networks Agreement, if applicable.
- Definitions
10.1 “Affiliate” means a legal entity that controls, is controlled by, or is under common control with a party.
10.2 “Collateral” means the images, documentation, case studies, and similar materials that either party provides to the other for use as part of any marketing activities under this Agreement.
10.3 “Confidential Information” means non-public information, know-how, and trade secrets in any form, that a reasonable person knows or reasonably should understand to be confidential based on the nature of the disclosure, or that the Disclosing Party designates as confidential.
10.4 “Force Majeure Event” means an event beyond a party’s control, including a strike or other labor dispute; labor shortage, stoppage or slowdown; supply chain disruption; embargo or blockade; telecommunication breakdown; power outage or shortage; inadequate transportation service; inability or delay in obtaining adequate supplies; weather; earthquake; fire; flood; act of God; riot; civil disorder; civil or government calamity; epidemic; pandemic; state or national health crisis; war; invasion; hostility (whether war is declared or not); terrorism threat or act; Law; or act of a Governmental Authority.
10.5 “Governmental Authority” means a regulator or other governmental agency or entity with jurisdiction over the Agreement, Forward Networks or Reseller, as applicable.
10.6 “Law” means all applicable laws, rules, regulations and other binding requirements of a Governmental Authority.
10.7 “Lead Data” means the data Reseller (and its agents, if any) provides to Forward Networks about a Lead in connection with this Agreement, including personal data such as contact information of Leads’ representatives.
10.8 “Mark” means a trademark, service mark, design mark, logo, or stylized script.
10.9 “Materials” means all materials and Collateral that one party provides or makes available to the other in relation to this Agreement.
1.10 “Forward Networks” means Forward Networks, Inc., a Delaware corporation.
10.11 “Forward Networks Agreement” means Reseller’s agreement with Forward Networks under which Reseller has access to Forward Networks Services.
10.12 “Forward Networks Services” or "Services" means the services (including without limitation professional services or hosted software as a service) or software that Forward Networks offers to Customers as specified in the Quote.
