CitiXsys Reseller Agreement (USA)

This CitiXsys Reseller Agreement (the “Reseller Agreement“) is between the applicable reseller (“you” or “Reseller“), and CitiXsys Americas Inc. (EIN: 03-0612492). If you are agreeing to this Reseller Agreement not as an individual but on behalf of your company, then “Reseller” or “you” means your company, and you are binding your company to this Reseller Agreement.

This Reseller Agreement is a separate agreement from the agreement that CitiXsys has with its end users (as may be modified by CitiXsys from time to time, “CitiXsys Customer Agreement“). For convenience and consistency, however, the definitions of certain terms related to our products and services (namely Software, Hosted Services, Products, and Authorized Users) will be the same as those in the CitiXsys Customer Agreement.

This Reseller Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by clicking on the “I agree” (or similar button) that is presented to you at the time of your order.

1. Order Requirements.

To the extent that we make Products available for resale, You may order such Products for resale by following the directions set forth on our website. You must provide all of the requested information including, without limitation, the identity of the end user, the end user’s business and email addresses, and the specific Software licenses, Hosted Services subscriptions, or other Products to be resold in your order (“Reseller Order“). All such information must be accurate and complete and must reflect bona fide orders you have received from end users.

2. Limited Right to Resell.

2.1 Right to resell. Subject to this Reseller Agreement, we grant you a non-exclusive, non-transferable right to resell the Products specified in your Reseller Order to the end user specified in the Reseller Order, solely for use by such end user in accordance with the CitiXsys Customer Agreement.

2.2 Partnership Levels. Subject to Partner levels as defined in the Partner Program Guide, Resellers can engage with CitiXsys from ordering of Software including iVend Cloud subscription licensing and related Services and the implementation of other services solely within the terms and conditions of the CitiXsys Partner Program guide with compliance to;

2.2.1 Sales Partner cannot invoice Software licencing including iVend Cloud and related services to the End User. CitiXsys will invoice the End User for Software licensing including subscription fees for iVend Cloud. This also extends and includes other services that are governed by separate service level agreement such as a Scope of Works and of Professional Services in nature such as support and implementation services, but not limited to. All such other services above the standard services included with iVend Cloud subscription licensing are to be delivered by CitiXsys or in partnership with a Gold or Platinum authorised Reseller. CitiXsys reserves the right to engage a Gold or Platinum partner to work with the Sales partner to engage in sales and services in relation to Software including iVend Cloud.

2.2.2 Gold Partner can invoice Software licencing including iVend Cloud and related services to the End User. CitiXsys will invoice Reseller for Software licensing including subscription fees for iVend Cloud. It is the Reseller’s responsibilities to comply with the guidelines of the CitiXsys Partner Program in relation to training and certification in order to deliver other services for Software and or iVend Cloud which also extends to support level 1 and level 2 support.

2.2.3 Platinum Partner can invoice Software licencing including iVend Cloud and related services to the End User. CitiXsys will invoice Reseller for Software licensing including subscription fees for iVend Cloud. It is the Reseller’s responsibilities to comply with the guidelines of the CitiXsys Partner Program in relation to training and certification in order to deliver other services for Software and or iVend Cloud which also extends to support level 1 and level 2 support.

3. Enforcement of CitiXsys Customer Agreement.

3.1. End User Terms. All use of the Products by end users is subject to the CitiXsys Customer Agreement, and you may not purport to impose any other terms pertaining to their use of the Products. You are responsible for ensuring that each end user enters into the CitiXsys Customer Agreement (which includes all limitations on Authorized Users and other quantity restrictions applicable to the end user’s order) in a manner that is legally binding upon the end user. This may require you to (a) notify each end user that CitiXsys products are subject to the CitiXsys Customer Agreement and that by placing an order with Reseller the end user agrees to the CitiXsys Customer Agreement, (b) include either a copy of or link to the CitiXsys Customer Agreement in each quotation and order form you issue to the end user, and (c) obtain from each end user written confirmation of acceptance of the CitiXsys Customer Agreement prior to the earlier to occur of acceptance of the order by Reseller or delivery of the Product. You must provide evidence of such acceptance by the end user to CitiXsys upon request.

3.2. Enforcement Cooperation. You agree to immediately notify us of any known or suspected breach of the CitiXsys Customer Agreement or other unauthorized use of the Products and to assist us in the enforcement of the terms of the CitiXsys Customer Agreement.

4. Identification as Reseller.

Subject to this Reseller Agreement, you are permitted to identify yourself as an CitiXsys “Reseller” solely in connection with your resales of Products. You may use an appropriate CitiXsys partner logo or service mark (“CitiXsys Marks”) in your website and business collateral as per the terms and conditions set forth in the CitiXsys Partner Program guide on the iVend Service Portal. All goodwill arising from your use of CitiXsys Marks inures to the benefit of CitiXsys.

5. Payment and Delivery.

5.1. Cloud Products, Subscription Fees and renewals.

Cloud Products and Subscriptions are non-refundable and non-cancelable payment to CitiXsys and are due when you submit your Reseller Order. iVend Cloud or other Subscriptions will be activated within 2 days of payment received by us. Unless Reseller or end-customer gives CitiXsys notice in writing at least 30 days prior to the contract expiry, the subscription will automatically renew for the same term. Reseller is responsible for contacting the End User prior to expiration of iVend Cloud subscription. If Reseller fails to pay CitiXsys licenses fees for the subscription period in accordance with payment terms on the invoice, access to iVend Cloud and related services will be terminated and all access removed from the end user.

5.2. Delivery. Upon receipt of payment, we will deliver the applicable Software license key, Hosted Services login information, or other information necessary for end users to use or access the applicable Products directly to the delivery contact specified in the Reseller Order in accordance with our standard delivery procedures. If we deliver the license keys or logins to you, you agree that you will, in turn, deliver them directly to the end user specified in the Reseller Order, and not to use or access the Software, Hosted Services, or other Products in any way. You must either delete all license keys promptly thereafter or maintain them in confidence.

5.3. Perpetual License Fees and Software Assurance Fees.

Reseller shall collect (a) the License Fee for each copy of the Software or renewal license ordered, licensed, distributed, or otherwise transferred by Reseller, and (b) the Software Assurance Fee for each Software Assurance ordered, in each case on behalf of and in trust for CitiXsys for the purpose of further remittance to CitiXsys.

Based on the commercial discussions including but not limited to business plans, investments in trained resources and marketing between the reseller and CitiXsys Channel Director/ Manager, a fixed discount on the licenses will be agreed for the reseller. This discount will determine the price at which the Reseller will buy licenses and Software Assurance from CitiXsys. The Software Assurance Fee is normally a percentage of the license price.

On receiving an order from the customer, the Reseller shall place a Purchase Order on CitiXsys for the applicable Software, Software Assurance and any related support package. Invoiced amounts are due net thirty (30) days after the date of CitiXsys’ invoice. In no case shall CitiXsys be obligated to deliver the Software or perform any services until and unless it has received from the Reseller the applicable fees, determined in accordance with the provisions herein, for licensing of the Software and its associated Software Assurance. Unless otherwise set forth in this Agreement, all fees paid to CitiXsys shall be non- refundable.

Following receipt of a valid purchase order and receipt of full payment of fees by Reseller, CitiXsys will provide Reseller, within 15 days of such receipt, through electronic mode or shipment or any other mode determined at sole discretion of CitiXsys, the Software and/or ActivationID(s). Reseller will use reasonable efforts to use CitiXsys’ standard purchase order form if provided to Reseller.

5.4 Software Assurance Purchases and Renewals.

End Users may purchase, renew, or resume Software Assurance through Reseller. Under no circumstance shall CitiXsys be obliged to deliver Software Assurance to Reseller with respect to any End User until and unless it has received from Reseller the applicable fee for purchase, renewal or resumption of the Software Assurance, as applicable. Each End User must enter into Software Assurance during the first year of its license of the Software. If an End User has discontinued Software Assurance and subsequently wishes to resume it, then CitiXsys shall not be obliged to deliver Software Assurance to Reseller until and unless it has received from the Reseller the Software Assurance Fee for the then-current term as well as the fee for the entire preceding period during which the Software Assurance was inactive along with a reinstatement fee of 15% of the Software Assurance Fee per year. With respect to the Subscription Licenses, the Software Assurance will cease automatically after the specified period. CitiXsys will not take any responsibility if the Software Assurance is not renewed on time or is not applied in time.

5.5. Taxes. Payments made by you under this Reseller Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by CitiXsys, you must pay to CitiXsys the amount of such taxes or duties in addition to any fees owed under this Reseller Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to CitiXsys any such exemption information, and CitiXsys will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.

6. Feedback.

If you provide any feedback, comments, suggestions, ideas, description of processes, or other information to us about or in connection with the Products or our Reseller program, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback“), then you grant us a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this Reseller Agreement (including without limitation Section 12 (Confidentiality)) limits CitiXsys’ right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

7. Support365 Program.

Entering into this Reseller Agreement does not qualify you as an user of Support365 program, or grant you any related rights. If you are interested in our separate Support365 program, please contact us at sales@citixsys.com.

8. No Use Rights; CitiXsys Reserved Rights.

Only the end user customer of the Products (and its Authorized Users) may use the Products. You are not permitted to use any Products resold under this Reseller Agreement for your own benefit. To the extent that you nevertheless gain any access to the Products, all license restrictions in the CitiXsys Customer Agreement apply to you. Notwithstanding anything to the contrary contained in this Reseller Agreement, except for the limited resale right in Section 2 above, CitiXsys and its suppliers have and will retain all rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all Products, service descriptions, documentation, and underlying technology (“CitiXsys Technology“), and all copies, modifications and derivative works thereof, including without limitation as may incorporate Feedback. You acknowledge that you are obtaining only a limited right to resell the Products and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Reseller Agreement or otherwise.

9. Reseller Obligations and Liability.

9.1. End User Relationships; Business Practices. You agree not to represent yourself as an agent or employee of CitiXsys and agree that we will have primary control over any end user communication regarding the Products once you submit a Reseller Order. You will not make any representations regarding CitiXsys, on CitiXsys’ behalf, or about any Products. You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to CitiXsys or its products and agree to comply with all applicable federal, state and local laws and regulations while operating under this Reseller Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and any similar laws or regulations in any applicable jurisdiction. You further agree to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.

9.2. Indemnity. You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Products. You will indemnify, hold harmless and (at CitiXsys’ option) defend CitiXsys from and against any claim, loss, cost, liability or damage, including attorneys’ fees, for which CitiXsys becomes liable arising from or relating to: (a) any breach or alleged by you of any term of this Reseller Agreement, (b) the issuance by you of any warranty or representation regarding CitiXsys or its products or services not specified in the CitiXsys Customer Agreement, or (c) any of your other acts or omissions in connection with the marketing or resale of the Products under this Reseller Agreement.

10. Termination.

10.1. Termination. We may terminate this Reseller Agreement if you materially breach any provision in this Reseller Agreement and fail to cure such breach within five (5) days of written notice of such breach. In addition, either party may terminate this Reseller Agreement for any reason or no reason upon thirty (30) days’ written notice to the other party. CitiXsys may also terminate this Reseller Agreement immediately upon notice to you if (a) it ceases to offer the current Reseller program or (b) it reasonably believes that continuing hereunder could result in business or legal liability for CitiXsys or otherwise harm CitiXsys or its end users.

10.2. Effect of Termination. You expressly agree that CitiXsys will have no obligation or liability to you resulting from termination or expiration of this Reseller Agreement in accordance with its terms. Upon termination or expiration of this Reseller Agreement: (a) you must immediately cease identifying yourself as an CitiXsys Reseller and using CitiXsys Marks in connection with your resale activities hereunder, (b) you must destroy all Confidential Information in your possession and certify destruction (unless we request that you return such materials to us) and (c) Sections 5 (Payment and Delivery) (but only with respect to Reseller Orders completed during the Term), 6 (Feedback) and 8 (No Use Rights; CitiXsys Reserved Rights) through 17 (General) will survive.

11. Changes to Agreement.

From time to time, we may modify this Reseller Agreement. The version of this Reseller Agreement in place at the time you submit each Reseller Order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication, but we also suggest that you bookmark this Reseller Agreement and read it periodically.

12. Confidentiality.

Except as otherwise set forth in this Reseller Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as “Receiving Party“) from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any CitiXsys Technology and any performance information relating to the Products shall be deemed Confidential Information of CitiXsys without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

13. CitiXsys Commitments; DISCLAIMER OF WARRANTIES.

For the avoidance of doubt, any and all commitments, indemnities and other terms and conditions offered by CitiXsys with respect to use of the Products are made directly by CitiXsys to the end user in accordance with the CitiXsys Customer Agreement and do not extend to you as a Reseller. We make NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, TO you as a RESELLER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE AND NON-INFRINGEMENT.

14. LIMITATION OF LIABILITY.

14.1. Waiver of Consequential Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER CITIXSYS NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

14.2. Liability Cap. TO THE FULLEST EXTENT ALLOWED BY LAW, CITIXSYS’ AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY UNDER THIS RESELLER AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY RESELLER TO CITIXSYS IN RESPECT OF THE RESELLER ORDER THAT IS THE SUBJECT OF THIS RESELLER AGREEMENT.

15. Dispute Resolution; Governing Law

15.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Reseller Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Reseller Agreement shall proceed to binding arbitration in accordance with Title 9 of the US Code (United States Arbitration Act) and the Commercial Arbitration Rules of the American Arbitration Association. The seat of arbitration shall be New York. Reseller hereby waives any objection which it may have at any time to the laying of the venue of such arbitration and also waives any claim that such arbitration is in an inconvenient forum and further waives any right to object that the Arbitration Tribunal does not have jurisdiction over such Party. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. All negotiations and arbitration proceedings pursuant to this Section 15.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.

15.2. Governing Law; Jurisdiction. This Agreement shall be interpreted according to the laws of the State of New York without regard to or application of choice of law rules or principles.

15.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section 15, nothing in this Reseller Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

15.4. Exclusion of UN Convention and UCITA. The parties expressly agree that the terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Reseller Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Reseller Agreement regardless of when or where adopted.

16. Government End Users.

The Products are commercial computer software. If the user or licensee of the Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Reseller Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defence Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.

17. General.

This Reseller Agreement is the entire agreement between you and CitiXsys relating to the resale of CitiXsys products as described in this Reseller Agreement and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Reseller Agreement. If any provision of this Reseller Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Reseller Agreement may not be modified or amended except as described in Section 11 (Changes to Agreement) or otherwise with the written agreement of CitiXsys (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, “including” (and its variants) means “including without limitation” (and its variants). If either party to this Reseller Agreement breaches any provision of this Reseller Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Reseller Agreement. No failure or delay by the injured party to this Reseller Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Reseller Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.

Should you have any questions concerning this Reseller Agreement, or if you desire to contact CitiXsys for any reason, please contact us.