Reseller Agreement

Reseller Agreement

(updated as of November  12, 2020) or (version #)

 

This Reseller Agreement (this “Agreement”) is made and entered into as of (name) (the “Effective Date”) by and between Sevco Security, Inc., a Delaware corporation (“Sevco”), and (name) , a corporation maintaining its principal place of business at (name)

(“Reseller”). Capitalized terms used but not defined herein shall be as set forth in the Terms and Conditions (as defined below).

WHEREAS, Sevco is a developer, owner and licensor of cybersecurity situational awareness software-as-a- service (“SaaS”) solutions for IT and security operations teams;

WHEREAS, Reseller is engaged in the business of marketing and selling SaaS solutions; and

WHEREAS, the parties desire that Reseller, on the terms and conditions set out herein, serve as a non-exclusive reseller of the Services (as defined below) in the geographical area of (the “Territory”);

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties hereto agree as follows:

  1. DEFINITIONS.
    1. Customer” shall mean an end-user of the Services in the Territory, ordering the Services from Reseller through the Reseller Order Form.
    1. Reseller Order Form” shall mean the Reseller’s Order Form which includes the subscription of the Services and incorporates the Terms and Conditions.
    1. Services” shall mean the cybersecurity situational awareness SaaS solutions for IT and security operations teams, such solutions as listed in Exhibit A, and any subsequent updates and upgrades thereto in Sevco’s sole discretion, and any accompanying and associated Documentation, which Reseller shall market and sell in the Territory.
    1. Terms and Conditions” shall mean the Sevco Security, Inc. SaaS Services Agreement Terms and Conditions available at https://sevco.io/msa.
    1. Trademarks” shall mean the trademarks, service marks, trade names and logotypes authorized from time to time by Sevco for Reseller use pursuant to this Agreement.
  1. APPOINTMENT.
    1. Appointment. Sevco hereby appoints Reseller, and Reseller hereby accepts appointment, as Sevco’s non-exclusive reseller of the Services in the Territory during the Term.
    1. License Grant. Subject to the terms and conditions of this Agreement, Sevco hereby grants to Reseller a non-exclusive and non-transferable right and license during the Term in the Territory only to (a) market, promote, advertise and sell the Services directly to Customers; (b) use the Service to provide demonstrations to prospective Customers, so long as such access to the Services is at all times under the control of Reseller and not given to the prospective Customer; and (c) upon prior approval from Sevco as to a specific prospective Customer, provide Trial Access to the Services free of charge to such prospective Customer, subject to Section

1.4 of the Terms and Conditions.

    1. Restrictions. Reseller shall not (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the Software (except as allowed by and in compliance with applicable law); (b) use the Services or Software other than in connection with its performance as a reseller under this Agreement; (c) cause or permit others to access or use the Services or Software in order to build or support, and/or assist a third party in building or supporting, software or services competitive to Sevco;

(d) without Sevco’s prior written consent, perform on the Services or Software network discovery, port and service identification, vulnerability scanning, remote access testing or penetration testing; (e) modify, translate or create derivative works based on the Services or Software (except to the extent expressly permitted by Sevco or authorized within the Services); (f) use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or

(g) remove any proprietary notices or labels from the Services or Software.

    1. Trademark License. In connection with Reseller’s activities authorized pursuant to this Agreement, Sevco hereby grants Reseller a non-transferable, non-exclusive right to use the Trademarks in accordance with instructions and trademark guidelines given from time to time by Sevco. Reseller shall not attach any additional trademarks, service marks, or trade names to any Services and shall not use the Trademarks as part of Reseller’s trademarks, service marks or trade names or in any other manner that would imply that Reseller has an affiliation with Sevco other than as set forth in this Agreement.
    1. Title. Sevco and its licensors retain the ownership of all right, title and interest in and to the Services, Software, Documentation, Trademarks, and all patents, copyrights and other proprietary rights therein, and

Reseller shall acquire no rights therein except as expressly set forth in this Agreement. Sevco shall own all rights, title and interest in all developments of and enhancements to the Services. Reseller shall take no action which may adversely affect or impair Sevco’s ownership of such materials and rights.

  1. RESELLER’S GENERAL OBLIGATIONS.
    1. Identification as Reseller. Reseller is authorized to identify itself in the marketplace as a “Sevco authorized reseller.”
    1. Marketing. Reseller shall promote and market the Services, using only materials provided to Reseller by Sevco or otherwise approved by Sevco. Reseller will use its best efforts to further the interests of Sevco and to maximize the markets for the Services in the Territory, including all local advertising, and including taking the necessary actions to protect against improper copying. Furthermore, Reseller shall use due diligence in safeguarding the interests of Sevco and shall keep Sevco informed of its activities as well as market conditions within the Territory.
    1. Pricing. Pricing of Services to Customers shall be at the discretion of Reseller.
    1. Reseller Order Form; Terms and Conditions. Reseller shall require Customers to enter into a Reseller Order Form with Reseller that includes the Services. Reseller shall ensure that Customers agree in the Reseller Order Form (a) to be bound by the Terms and Conditions, and (b) that Sevco is a third-party beneficiary of the Reseller Order Form with the power and authority to enforce Sevco’s rights against the Customers under the Reseller Order Form, including without limitation the Terms and Conditions. If a Customer breaches the Reseller Order Form or the Terms and Conditions, upon Sevco’s request, Reseller shall cooperate with Sevco in obtaining all appropriate relief. Reseller’s foregoing obligations shall survive expiration or termination of this Agreement.
    1. Compliance with Laws. Reseller shall comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement (“Applicable Law”).
    1. Customer Satisfaction. Reseller agrees that high Customer satisfaction is a condition of its continued authorization by Sevco. In order to help ensure high Customer satisfaction, Reseller agrees to (a) report to Sevco promptly and in writing all suspected and actual problems with any Service; (b) maintain a delivery report identifying the Customer, the Service sold, the date of sale, and other relevant details of the sale; (c) retain all sales reports for three years after the date of sale, and assist Sevco, upon request, in tracing a Service to a

Customer in distributing critical product information, or in discovering unauthorized marketing or infringing acts; (d) conduct business in a manner that reflects favorably at all times on the Services, and Sevco’s goodwill and reputation; (e) avoid deceptive, misleading or unethical practices that are or might be detrimental to Sevco or the Services; (f) refrain from making any false or misleading representations with regard to Sevco or the Services; and

(g) refrain from making any representations, warranties or guarantees to customers with respect to the specifications, features or capabilities of the Services that are inconsistent with the Documentation and marketing materials distributed by Sevco.

    1. Quarterly Revenue Forecast. Reseller agrees to provide Sevco with a quarterly revenue forecast for each upcoming quarter during the Term at least ten business days prior to the beginning of such upcoming quarter.
  1. SEVCO’S GENERAL OBLIGATIONS.
    1. Marketing Materials. Sevco agrees to provide, upon reasonable request, internally developed Service marketing communications materials via electronic media in the English language to Reseller. Sevco hereby grants to Reseller the non-exclusive, non-transferable right to reproduce and use any such materials during the Term for the purposes of this Agreement, but not to modify such materials without Sevco’s prior consent.
    1. Compliance with Laws. Sevco shall comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement.
  1. SUPPORT TO CUSTOMERS. Reseller shall be solely responsible for providing all support to Customers for any sales and payment issues with the order for the Services, and Sevco shall be solely responsible for providing all support to Customers for any technical issues with the Services. Reseller shall direct all technical support requests from Customers to Sevco, and Sevco will provide such technical support to Customers based on and pursuant to the Service Level Agreement and the Support Agreement.
  1. NOTIFICATION, REGISTRATION AND ORDERING.
    1. Notification. Prior to marketing or selling directly to any potential Customer, Reseller shall notify Sevco of its intent to market or sell to such potential Customer. Should Sevco then notify Reseller within five business days that Sevco or another third party is already marketing or selling directly to such potential Customer, then Reseller shall not market or sell to such potential Customer.
    1. Service Registration. Reseller is required to register all Customers of Services with Sevco in

accordance with then-current Sevco registration procedures.

    1. Ordering. Reseller shall order Services from Sevco on a Customer by Customer basis, by means of the Order Form via electronic communications in accordance with the standard Sevco ordering procedures for resellers. All orders shall be subject to Sevco’s acceptance, which shall not be unreasonably withheld, and no orders shall be valid until Customer has signed a Reseller Order Form with Reseller and agreed to the Terms and Conditions as required under this Agreement.
  1. PAYMENT TERMS.
    1. Pricing and Payment Terms. Sevco shall make Services available to Reseller at a [__ ] percent discount to Sevco’s then-current list prices, which list prices Sevco may change from time to time on 30 days’ written notice to Reseller. Sevco shall issue an invoice for ordered Services, which invoice shall be payable by Reseller within 30 days of receipt. Late payments shall accrue interest at the rate of 1.5% per month, or the maximum rate permitted under law, and Reseller shall reimburse Sevco for all costs of collection incurred, including reasonable attorneys’ fees. Payment by Reseller to Sevco is due regardless of when or whether Reseller is paid by Customers, and Reseller is solely responsible for collecting payment from Customers.
    1. Taxes. All payments due hereunder are exclusive of all sales taxes, use taxes, value added taxes and any other similar taxes imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon Sevco’s net income. When Sevco has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Reseller unless Reseller provides Sevco with a valid tax exemption certificate authorized by the appropriate taxing authority. In the event that any withholding taxes or any other similar taxes are imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, Reseller shall pay such taxes in such amounts as are necessary to ensure that Sevco receives the full amount of the payment required under Section 7.l hereof.
    1. Audit Rights. Reseller agrees to allow Sevco to examine its books and records to determine compliance or noncompliance with this Agreement and verify Customer orders. Any examination will be conducted only by a Sevco employee or an authorized representative of Sevco, such representative to be a qualified third party, and will occur during regular business hours at Reseller’s offices and will not interfere unreasonably with Reseller’s business activities. A regional or national Certified Public Accounting firm or a law firm will automatically be deemed to be a qualified third party.  Sevco will give

Reseller at least five business days’ prior written notice of the date of the examination and the name of Sevco’s employee or authorized representative who will be conducting the examination. In the event the audit reveals any underpayment to Sevco, Reseller shall pay Sevco all amounts due within 30 days of the audit, including late fees per Section 7.1 hereof. The audit will be conducted at Sevco’s expense unless the results of such audit establish that inaccuracies in the period audited have resulted in underpayment to Sevco of more than 5% of the amount due in such period, in which case Reseller, within 30 days of the audit, shall pay to Sevco the expenses of the audit in addition to the amounts due and late fees.

  1. LIMITED WARRANTY; INDEMNFICATION; DISCLAIMER OF WARRANTIES.
    1. Limited Warranty. Sevco warrants as follows:
  1. Sevco is the owner or licensee of all intellectual property rights in and to the Services and there is no pending litigation against Sevco which could materially impact upon its ability to perform its obligations under this Agreement.
  1. Sevco has full power and right to license the Services and perform all other terms of this Agreement, and to Sevco’s knowledge, the use of the Services, or the exercise of the licenses granted hereunder, will not violate or interfere with the intellectual property or contractual rights of any third party, including without limitation, those rights arising under copyright, trademark, trade secret or patent law, provided, however that Sevco shall not be liable for breach of representation and warranty if a violation or interference occurs by reason of software or content supplied by Reseller, Customer or other third parties.
    1. Indemnification by Sevco. Sevco agrees to indemnify and hold harmless Reseller from and against any and all third party claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney’s fees), arising as a result of or in connection with (a) Sevco’s breach of any of the representations and warranties in Section 8.1 hereof or (b) the negligent or intentional acts or omissions of Sevco, its employees or agents, provided (i) Reseller promptly gives written notice of any claim to Sevco, (ii) at Sevco’s expense, Reseller provides any assistance which Sevco may reasonably request for the defense of the claim, and (iii) Sevco has the right to control of the defense or settlement of the claim. Notwithstanding the foregoing, Sevco shall not be obligated to indemnify Reseller to the extent the claim would not have arisen but for Reseller’s negligent or wrongful act or omission.
    1. Indemnification by Reseller. Reseller agrees to indemnify and hold harmless Sevco from and against

any and all third party claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney’s fees), arising as a result of or in connection with (a) any breach by Reseller of its obligations under this Agreement; (b) the negligent or intentional acts or omissions of Reseller, its employees or agents; (c) any unauthorized representation, warranty, promise or assurance made or granted by Reseller to a Customer or prospective customer or (d) Reseller’s failure to comply with Applicable Law, provided (i) Sevco promptly gives written notice of any claim to Reseller, (ii) at Reseller’s expense, Sevco provides any assistance which Reseller may reasonably request for the defense of the claim, and (iii) Reseller has the right to control of the defense or settlement of the claim.

    1. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 HEREOF, SEVCO MAKES NO WARRANTIES TO RESELLER, EXPRESS, STATUTORY, IMPLIED, OR OTHERWISE, AND SEVCO SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES          AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  1. LIMITATION OF LIABILITY. EXCEPT FOR SEVCO’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8 HEREOF OR FOR A BREACH OF SEVCO’S CONFIDENTIALITY OBLIGATIONS AS SET FORTH IN SECTION 10 HEREOF, IN NO EVENT SHALL SEVCO AND ITS LICENSORS BE LIABLE TO RESELLER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER SEVCO HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE. EXCEPT FOR SEVCO’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 8 HEREOF OR FOR A BREACH OF SEVCO’S CONFIDENTIALITY OBLIGATIONS AS SET FORTH IN SECTION 10 HEREOF, SEVCO’S AND ITS LICENSORS’ TOTAL CUMULATIVE LIABILITY FOR ANY DAMAGES TO RESELLER OR ANY OTHER ENTITY SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY RESELLER TO SEVCO HEREUNDER DURING THE 12- MONTH PERIOD PRECEDING THE CLAIM.
  1. CONFIDENTIALITY.
    1. Non-Disclosure. The parties agree that any Confidential Information provided under this Agreement by a party to the other party shall be held and maintained in strict confidence by such other party. Each party agrees to protect the confidentiality of such information in a

manner consistent with the way a reasonable person would protect similar Confidential Information. “Confidential Information” means the information and materials noticed or marked by Sevco or Reseller as confidential and proprietary, or which should reasonably be understood as confidential and proprietary given the nature of the information or materials. “Confidential Information” does not include information that (a) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (b) becomes publicly known without fault of the receiving party, (c) is independently developed by the receiving party, (d) is approved for release in writing by the disclosing party, (e) is disclosed without restriction by the disclosing party to a third party, or (f) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties.

    1. Legal Action. At Sevco’s request, Reseller shall cooperate fully with Sevco in any legal actions taken by Sevco to protect its rights in the Services and in the Sevco Confidential Information.
  1. TERM AND TERMINATION.
    1. Term. This Agreement shall take effect on the Effective Date and shall continue in force for one year (the “Initial Term”). Thereafter, it will be automatically renewed for one-year renewal terms unless terminated by either party in accordance with this Section 11. The Initial Term and all renewal terms are collectively referred to herein as the “Term”.
    1. Termination. Either party may terminate this Agreement for any or no reason upon 30 days prior written notice to the other party. Either party may terminate this Agreement at any time by giving notice in writing to the other party, which notice shall be effective upon receipt, should the other party (a) be in material breach of this Agreement and fail to cure such breach within ten days of written notice thereof, (b) file a petition of any type as to its bankruptcy or (c) be declared bankrupt, become insolvent, make an assignment for the benefit of creditors, or go into liquidation or receivership or otherwise lose control over all or substantially all of its business.
    1. Rights and Obligations on Termination or Expiration.
  1. Termination or expiration of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.
  1. Upon termination or expiration of this Agreement, Reseller shall: (i) immediately return to Sevco or destroy

(A) all media containing the Services; (B) all originals and copies of the Services, manuals, Documentation, product

literature, fee schedules, and other written materials provided by Sevco; and (C) all Confidential Information and other property of Sevco, provided that such materials or information are in Reseller’s possession or under its control; (ii) immediately discontinue holding itself out as a reseller of the Services, (iii) destroy all materials in its possession or control bearing any Trademarks, and remove all signs bearing Trademarks or otherwise identifying Reseller as a representative of Sevco; and (iv) deliver to Sevco a document executed by a corporate officer of Reseller certifying Reseller’s compliance with this Section.

  1. Termination or expiration of this Agreement does not affect any Services purchased by Customers from Reseller in accordance with this Agreement prior to such termination or expiration, provided that Sevco shall assume all direct relationships and customer support for such Customers. Sevco shall not be required to pay Reseller should any such Customer renew their subscriptions to the Services or purchase additional Services from Sevco.
  1. The following Sections shall survive any termination of this Agreement: 2.3, 2.5, 3.4, 3.5, 3.6, 7-10,

11.3 and 12.

  1. MISCELLANEOUS. This Agreement does not make either party the employee, franchisee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to this Agreement each party shall be acting as an independent contractor. This Agreement constitutes the entire agreement between Sevco and Reseller with respect to the subject matter herein and supersedes all prior agreements between the parties hereto with respect to the subject matter contemplated by this Agreement, provided that if and to the extent there is a pre-existing nondisclosure agreement between the parties, such agreement shall not be affected hereby with respect to the information disclosed thereunder. No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties. In the event that any provision or provisions of this Agreement will be held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Reseller shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Sevco. Any prohibited assignment shall be null and void. Sevco may transfer its rights and obligations hereunder to any company or other legal entity that is controlled by, controls or is under common control with Sevco. This Agreement shall inure to the benefit of and shall be binding on the successors and permitted

assigns of the parties. This Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of laws principles. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. No entities not a party to this Agreement shall be deemed third party beneficiaries hereunder. This Agreement may be executed in two or more counterparts, and each such counterpart shall be deemed an original hereof.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first above written.

Sevco Security, Inc.:

By: Name: Title:  

Reseller:

By: Name: Title:  

Exhibit A Services

(list of services)