Terms & Conditions
among
and
dated as of MARCH 1, 2024
This Reseller Agreement (the "Agreement"), dated March 1, 2024, is entered into by and between UBC JV., a joint venture comprising 12316421 CANADA INC. and 10574104 CANADA INC. (jointly, the "Supplier"), and the Reseller party identified as such in each purchase email, ("Reseller", and together with Supplier sometimes may be referred to as the "Parties", and each, a "Party").
and
these Products to End Users (as defined below), subject to the terms and conditions of this Agreement; and
Capitalized terms have the meanings set out in this ARTICLE I, or in the Section in which they first appear in this Agreement.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, investigative, regulatory, or other, whether at law, in equity or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, this Person.
"Claim" means any Action made or brought against a Person entitled to indemnification under ARTICLE XV.
"Confidential Information" has the meaning set out in Section 13.01.
"Control" (and with correlative meanings, the terms "Controlled by" and "under common Control with") means, regarding any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract or otherwise.
"Effective Date" means the date first set out above.
"End User" means the final purchaser that (a) has acquired a Product from Reseller for
its own [and its [Affiliates']] internal use and for possible resale, remarketing or distribution or (ii) incorporation into its own products.
"Governmental Authority" means any federal, provincial, territorial, local or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non- governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or
"HST" means harmonized sales tax, or goods and services tax, imposed under the HST Act (or any provincial or territorial legislation imposing sales tax, harmonized sales tax or goods and services tax.
"HST Act" means Part IX of the Excise Tax Act (Canada).
"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) industrial designs and industrial design registrations; (f) Trade Secrets and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction in any part of the world.
"Law" means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
"Notify" means to give Notice.
"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates and patent utility models).
"Person" means any individual, partnership, corporation, trust, unlimited liability company, unincorporated organization, association, Governmental Authority, or any other entity.
"Personnel" means agents, employees, or subcontractors engaged or appointed by Supplier or Reseller.
"Representatives" means a Party's Affiliates, employees, officers, directors, partners, shareholders, agents, counsel, third-party advisors, successors, and permitted assigns.
"Reseller Contract" means any [material] contract or agreement to which Reseller is a party or to which any of its material assets are bound.
"Supplier's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to Supplier.
"Supplier's Trademarks" means all Trademarks owned by or licensed to Supplier.
"Taxes" means any commodity tax, including sales, use, excise, value-added, HST, consumption or other similar tax, including penalties or interest, imposed, levied, or assessed by any Governmental Authority.
"Trademarks" means all rights in and to Canadian and foreign trademarks, service marks, trade dress, trade names, business names, brand names, logos, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.
This Agreement is expressly limited to the terms of this Agreement. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Reseller's general terms and conditions issued by Reseller.
market, advertise, promote, and resell the Products to End Users in accordance with good business practice;
develop and execute a marketing plan sufficient to fulfil its obligations under this Agreement;
observe all of Supplier's reasonable directions and instructions in relation to the marketing, advertising and promotion of the Products;
market, advertise, promote, and resell Products and conduct business in a manner that at all times reflects favourably on Products and the good name, goodwill, and reputation of Supplier;
only resell any software or accessories sold, bundled or packaged with any Product on those terms and conditions as Supplier may, from time to time, require.
respond to the End Users regarding the general operation and use of the Product, including:
acting as a liaison between the End User and Supplier in matters requiring Supplier's participation;
providing general Product information and configuration support on standard protocols and features; and
Except as explicitly authorized in this Agreement or in a separate written agreement with Supplier, Reseller may not service, repair, modify, alter, replace, reverse engineer, or otherwise change the Products it sells to End Users.
make any representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments:
actually, apparently or ostensibly on behalf of Supplier, or
to any End User regarding the Products, which representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then- existing representations, conditions, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or any written documentation provided by Supplier to Reseller;
engage in any unfair, competitive, misleading or deceptive practices respecting Supplier, Supplier's Trademarks or the Products, including, but not limited to, the following:
offering the Product as part of disparagement or "bait-and-switch" practice;
Offering any rebates or cashback offers to incentivize purchase of the Product;
Offering any discounts to the Product;
Offering any incentives or bundled offerings of the Product, including, but not limited to, add on products, “sneak peaks" or "template" offerings;
Offering any modified version of the Product;
Use or sell this product in a dime sale event;
Offer for sale, the Product on an auction site (such as eBay.com);
sell, either directly or indirectly, or assign or transfer, any Products to any Person when Reseller knows or has reason to suspect that the Person may resell any or all of the Products to a third party where such third party may breach this Agreement.
Section 6.01 Supplier Performance Obligations. During the Term, the Supplier may:
(a) provide any information and support that may be reasonably requested by Reseller regarding the marketing, advertising, promotion, and sale of Products sold to Reseller under this Agreement; and
remove Products without Notice to Reseller;
add to the Products without Notice to Reseller; and
without Notice to Reseller, effect changes to any Products,
in each case, without obligation to modify or change any Products previously delivered or to supply new Products meeting earlier specifications.
The Prices are exclusive of all applicable Taxes (including HST and provincial sales tax). Each Party will be responsible for the payment of and will pay any applicable taxes, duties, and levies levied on that Party from time to time in relation to this Agreement.
any and all Supplier's Intellectual Property Rights are the sole and exclusive property of Supplier or its licensors;
Reseller shall not acquire any ownership interest in any of Supplier's Intellectual Property Rights under this Agreement;
any goodwill derived from the use by Reseller of Supplier's Intellectual Property Rights enures to the benefit of Supplier or its licensors, as the case may be;
if Reseller acquires any Intellectual Property Rights in or relating to any product (including any Product) purchased under this Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by either Party; and
Reseller shall use Supplier's Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of Supplier.
take any action that interferes with any of Supplier's rights in or to Supplier's Intellectual Property Rights, including Supplier's ownership or exercise thereof;
challenge any right, title or interest of Supplier in or to Supplier's Intellectual Property Rights;
make any claim or take any action adverse to Supplier's ownership of Supplier's Intellectual Property Rights;
register or apply for registrations, anywhere in the world, for Supplier's Trademarks or any other Trademark that is similar to Supplier's Trademarks or that incorporates Supplier's Trademarks in whole or in confusingly similar part;
use any mark, anywhere, that is confusingly similar to Supplier's Trademarks;
engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including Products) or any Supplier Trademark;
misappropriate any of Supplier's Trademarks for use as a domain name without prior written consent from Supplier; and
alter, obscure, or remove any of Supplier's Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including Products), marketing materials or other materials that Supplier may provide.
is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this ARTICLE XIII by Receiving Party or any of its Representatives;
is or becomes available to Receiving Party on a non-confidential basis from a third-party source; provided that such third party is not and was not prohibited from disclosing such Confidential Information;
was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party;
was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party's Confidential Information; or
must be disclosed under applicable Law. Receiving Party shall of such Confidential Information:
protect and safeguard the confidentiality of Disclosing Party's Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
not use Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
not disclose any such Confidential Information to any Person, except to Receiving Party's Representatives who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
Receiving Party shall be responsible for any breach of this ARTICLE XIII caused by any of its Representatives. The provisions of this ARTICLE XIII shall survive termination or expiration of this Agreement for any reason for a period of one (1) year after such termination or expiration.
In the event of any conflict between the terms and provisions of this ARTICLE XIII and those of any other provision in this Agreement, the terms and provisions of this ARTICLE XIII will prevail.
it is duly licensed or registered to carry on business in every jurisdiction in which such qualification is required for purposes of this Agreement;
it has all necessary power and capacity to enter into this Agreement, to grant the rights and licences granted under this Agreement and to perform its obligations under this Agreement;
has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Supplier;
has been reconstructed, repaired or altered by Persons other than Supplier or its authorized Representative; or
has been used with any Third-party Product, hardware or product that has not been previously approved in writing by Supplier.
WARRANTY MADE BY SUPPLIER, OR ANY OTHER PERSON ON SUPPLIER'S BEHALF.
relating to a breach or non-fulfilment of any representation, condition, warranty or covenant under/representation, condition or warranty set out in this Agreement by Reseller Indemnifying Party or Reseller Indemnifying Party's Personnel;
alleging or relating to any negligent act or omission of Reseller Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
relating to a purchase of a Product by any Person purchasing directly or indirectly through Reseller Indemnifying Party and not directly relating to a claim of Limited Warranty breach.
(CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(a) Subject to ARTICLE IV, this Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, conditions and warranties, both written and oral, regarding such subject matter.
No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving its right.
Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion.
None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement:
any failure or delay in exercising any right, remedy, power or privilege, or in enforcing any condition under this Agreement; or
any act, omission, or course of dealing between the Parties.
(a) This Agreement benefits solely the Parties and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.