HYAS RESALE AGREEMENT
Last Updated: November 13, 2023
PLEASE READ CAREFULLY. BY COMPLETING AN ORDER THAT REFERENCES THIS RESALE AGREEMENT YOU AGREE TO BE BOUND BY THESE TERMS.
This Resale Agreement (this “Agreement”) may be modified by HYAS from time to time in its sole discretion with or without notice to you. Any modifications shall be effective upon the Last Updated date above.
This Agreement is made by and between HYAS Infosec Inc., located at 408 - 55 Water Street, Office 8536, Vancouver, British Columbia, V6B 1A1, Canada ("HYAS"), and the reseller identified in the Order linking to this Agreement ("Reseller"), and is made effective as of the last date that the Order is signed (the "Effective Date"). Each of HYAS and Reseller is a "Party" and, collectively, they are the "Parties".
WHEREAS, HYAS designs, develops, licenses, and distributes proprietary risk mitigation and cyber-threat intelligence SaaS applications, including mechanisms enabling access to cloud platforms, APIs, software plugins, code, libraries, protocols, agents, and related materials ("HYAS Products");
WHEREAS, Reseller is in the business of marketing and selling a variety of cyber-threat intelligence products, and Reseller wishes to sell certain HYAS Products as part of Reseller’s product offering;
AND WHEREAS, subject to the terms and conditions of this Agreement, HYAS wishes to appoint Reseller as a non-exclusive reseller of certain HYAS Products.
NOW, THEREFORE, in consideration of the mutual commitments herein, and for other valuable consideration, the Parties hereby agree as follows:
(a) "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, such Person, and the term “control” (including the terms "controlled by" and "under common control with") refers to a direct or indirect power to direct or cause the direction of the management and policies of a Person, via the ownership of voting securities, by contract, or otherwise;
(b) "Applicable Law" means all applicable national, federal, provincial, state, and local laws, rules, ordinances, compulsory guidelines, and regulations;
(c) "Client" means a Person that has acquired a HYAS Product through Reseller pursuant to this Agreement and for its own internal use and not for resale, remarketing, or distribution;
(d) “Documentation" means any HYAS Product user manuals or help guides provided by HYAS to Reseller or a Client;
(e) "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under, or related to, any patent, copyright, trademark, trade secret, or other intellectual property rights laws and all similar or equivalent rights or forms of protection, in any part of the world;
(f) "Order Term" means the relevant HYAS Product subscription term found in a Purchase Order;
(g) "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity;
(h) “Trademarks” means a Party’s and its licensors’ trademarks, product and service marks, trade dress, trade names, brand names, logos, corporate names, domain names, and other designations of source, sponsorship, or origin, whether or not registered, anywhere in the world;
(i) “Wind-down Period” means the time period that commences on the Termination Date and ends when all HYAS Product subscriptions that correspond to Purchase Orders effective on or before the Termination Date have expired.
2.1 Non-Exclusive Appointment as Reseller
Subject to the terms and conditions of this Agreement, Reseller may act as a non-exclusive sales representative of HYAS Products to Clients, during the Term.
2.2 Registered Lead Approvals
(a) Prior to entering any Purchase Order, Reseller will submit to HYAS, via the HYAS Partner Portal, a resale registration request (a "Registration Request"), and HYAS will indicate in writing, whether Reseller may (1) market, advertise, promote, and solicit the sale of HYAS Products to the prospective client and (2) enter into a Purchase Order with the prospective client.
(b) HYAS may request additional information in considering its acceptance or denial of any prospective client (when accepted, a "Registered Lead"). If HYAS fails to respond to a Registration Request after five (5) business days of Reseller’s submission, then the outstanding Registration Request is deemed denied. Reseller may re-initiate its request.
(c) Should Reseller fail to submit a Purchase Order involving a Registered Lead to HYAS, Registered Lead status will expire one hundred and eighty (180) days from HYAS’ last approval of such status, unless expressly waived by HYAS in writing.
2.3 HYAS Product Support Services
HYAS will provide Clients and proof-of-concept participants with standard HYAS Product support.
3.1 Reseller Services Reseller will provide the following services (the “Reseller Services”) to HYAS:
(a) In connection with the acquisition of Clients: (i) market, advertise, promote, and solicit the sale of HYAS Products to prospective clients consistent with good business practice, in each case, using its best efforts to maximize HYAS Product sales volume and in a manner that reflects favorably on the name, goodwill, and reputation of HYAS; (ii) identify prospective clients and timely request HYAS’ approval of such prospects; (iii) observe all directions and instructions provided by HYAS relating to the marketing, advertisement, and promotion of HYAS Products; (iv) submit any information that HYAS may reasonably require related to the marketing of HYAS Products pursuant to this Agreement; (v) identify Reseller’s legal or trade name and that it is an authorized reseller of HYAS Products, when initially contacting a prospective client; and (vi) liaise between Clients and HYAS in matters requiring HYAS’ participation.
(b) In connection with the post-sales support for each Client: (i) promptly notify HYAS of a complaint of which Reseller becomes aware, and upon HYAS’ reasonable request, provide assistance to address or investigate any complaint about any HYAS Product; (ii) transmit information between HYAS and Client and assist HYAS personnel with technical support efforts related to Client quality or service claims; and (iii) communicate ideas, feature suggestions, feedback, and other useful information for the improvement, enhancement, or modification of HYAS Products, HYAS’ business practices, and other existing HYAS platforms ("Feedback") to HYAS. The Parties expressly agree Feedback is not Reseller’s Confidential Information. HYAS has the right to use Feedback for any purpose it sees fit, including (i) to improve or enhance its products and services, (ii) develop new products or services, and (iii) for marketing purposes. Nothing herein will restrict HYAS’ right to use, profit from, disclose, publish, or otherwise exploit Feedback, without compensation to Reseller.
3.2 Compliance with Applicable Law
Reseller will comply with and ensure that its employees and contractors comply with Applicable Law, including anti-bribery and data protection laws. Reseller is responsible for obtaining and maintaining, at Reseller’s own expense, all certifications, credentials, licenses, and permits necessary for Reseller to conduct business relating to its obligations under this Agreement. Reseller shall employ appropriate security measures to protect any information that relates to an identified or identifiable individual (“Personal Data”) it may have access to during the Agreement. Reseller shall only access personal data necessary to perform in accordance with this Agreement. Reseller will immediately notify HYAS in writing in the event of any actual or suspected unauthorized access, disclosure, or destruction of Personal Data. Reseller will also immediately notify HYAS of any actual or suspected unauthorized access or use of HYAS Products.
(a) Except as expressly permitted in this Agreement, Reseller will not: (i) access or use HYAS Products for any unlawful or fraudulent purpose, or for any purpose that is not expressly permitted by this Agreement; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, market, export, or otherwise commercially exploit or make HYAS Products or any Intellectual Property Rights therein available to any third-party; (iii) send or store, on or through HYAS Products, viruses, worms, time bombs, trojan horses, or other harmful or malicious code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of HYAS Products; (v) attempt to gain unauthorized access to or use of any HYAS Product; (vi) remove or modify any HYAS markings or any notice of HYAS’ proprietary rights; (vii) modify, create any derivative works of, disassemble, reverse compile, or reverse engineer any HYAS Products or any part thereof or make any improvements thereto; (viii) access or use HYAS Products in order to build or support, or assist a third party in building or supporting, competitive products or services; (ix) disclose the results of any product or program benchmarking tests related to HYAS Products without HYAS’ prior written consent; (x) market, distribute, license, or otherwise make available any HYAS Products to or through any Person without the express prior written approval of HYAS; (xi) perform any act, or fail to perform any act the omission of which, infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or violates any Applicable Law.
(b) Notwithstanding anything to the contrary herein, Reseller will not, and will cause its personnel to not, directly or indirectly: (i) make any representations, warranties, guarantees, indemnities, or other commitments on behalf of HYAS with respect to HYAS Products, which are in addition to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, or other commitments in this Agreement; (ii) engage in any unfair, anti-competitive, misleading, or deceptive practices respecting HYAS Products, including any product disparagement; or (iii) offer any gifts, incentives, or benefits to prospective clients or Active Clients which are contrary to Applicable Law.
AGREEMENTS & RESALE PURCHASE ORDERS
4.1 Client Agreement
If Reseller attempts to sell HYAS Products to anyone other than a Registered Lead or an “Active Client” (a Client identified within an existing Purchase Order whose Order Term had not expired within the last one hundred and eighty (180) days), then HYAS is not obligated to approve the Purchase Order. Any Purchase Order not authorized by HYAS is null and void. Before HYAS delivers HYAS Products under a Purchase Order, HYAS and the relevant Client must execute HYAS’ User License Agreement (a “Client Agreement”). HYAS will provide the HYAS User License Agreement after execution of this Agreement.
4.2 Resale Purchase Orders
Subject to Reseller having first completed the Client approval process outlined within Section 2.2, Reseller must place an order for HYAS Products using the Form Resale Purchase Order; HYAS will provide this form after execution of this Agreement. To be considered effective, the Form Resale Purchase Order must be completed and executed by both Parties.
HYAS PRODUCT PRICING & PAYMENT OF FEES
5.1 Product Pricing
Reseller may purchase HYAS Products at the pricing described in the Purchase Order for each Client. To be effective, such Purchase Order must be executed by both Parties (“HYAS Product Pricing”).
5.2 Calculation & Payment of Fees
(a) The total fee payable with respect to any Purchase Order (the "Fee") will be calculated based on the applicable HYAS Product Pricing for the initial term of each Client Agreement.
(b) Reseller will pay all taxes, duties or charges of any kind (including without limitation, withholding or value added taxes) imposed by any federal, provincial, state or local governmental entity for HYAS Products, excluding only taxes based solely on HYAS’ net income. If HYAS has the legal obligation to pay or collect taxes for which Reseller is responsible under any Purchase Order, the appropriate amount will be invoiced to and paid by Reseller.
(c) All invoices will be in USD and will be due and payable in full within thirty (30) days of receipt of each such invoice. Late payments will incur an interest penalty of 1.5% per month or the maximum charge permitted by law, whichever is less. All Purchase Orders are final and non-refundable.
INTELLECTUAL PROPERTY RIGHTS
6.1 Use of Trademarks
Reseller is authorized to use HYAS’ Trademarks in connection with Reseller’s promotion and marketing of HYAS Products, provided Reseller may not place its own Trademarks (or business styles, industrial designs, insignia, or other commercial symbols) on Documentation or HYAS-produced promotional materials, without HYAS’ prior written approval. Reseller will use HYAS’ Trademarks only as stipulated by HYAS in writing, or as HYAS’ Trademarks appear on HYAS Products, Documentation, or any other documentation or promotional materials that may be provided to Reseller in connection with this Agreement. Reseller’s use of HYAS' Trademarks is subject to HYAS’ standard brand design reference guidelines as may be provided by HYAS to Reseller from time to time.
6.2 HYAS Intellectual Property
Except as expressly set forth herein, nothing in this Agreement grants any right, title, or interest in or to any Intellectual Property Rights in or relating to the property and materials of HYAS and its licensors delivered hereunder, including any modifications, enhancements, or adaptations thereof (collectively "HYAS Intellectual Property Rights"). All right, title, and interest in and to HYAS Intellectual Property Rights is retained by HYAS and its respective licensors. To the extent that any right, title, or interest in or to any HYAS Intellectual Property Rights, derivative works thereof, or Feedback provided by Reseller do not automatically vest in HYAS or its licensors, Reseller unconditionally and irrevocably transfers, assigns, and conveys all such right, title, and interest to HYAS or its licensors, as applicable. Reseller will promptly take any action and execute any documents necessary to vest full title in such interests in HYAS or its licensors as directed by HYAS. Reseller will use HYAS Intellectual Property Rights solely to perform its obligations hereunder, and only in accordance with HYAS’ instructions. Reseller will not: (i) make any claim or take any action adverse to HYAS’ ownership of any Intellectual Property Rights; or (ii) register or apply for a registration of a HYAS Trademark or any other Trademark that is like a HYAS Trademark or that incorporates a HYAS Trademark in whole or in part.
TERM & TERMINATION
7.1 Initial Term
The term of this Agreement will commence on the Effective Date and shall continue for a period of one year, unless and until terminated as provided under this Agreement (the "Initial Term").
7.2 Renewal Term
Upon expiration of the Initial Term, this Agreement will renew for additional successive one-year terms (each, a "Renewal Term", and together with the Initial Term, the “Term”) under the same terms and conditions, unless either party gives written notice of cancellation at least thirty (30) days before the expiration of the Term or the Agreement is terminated as provided hereunder.
7.3 Right to Terminate
(a) Either Party may terminate this Agreement or any Purchase Order, for cause, with written notice, under the following conditions: (i) a material breach of this Agreement by the other Party which remains uncured for thirty (30) days after written notice of the breach; or (ii) the other Party becomes subject to insolvency proceedings.
(b) HYAS can immediately suspend or terminate Reseller’s access to HYAS Products if Reseller violates Article 3 or Article 6. HYAS may also terminate this Agreement immediately if Reseller’s Fees are over 90 (ninety) days past due and remain unpaid for 15 (fifteen) days after notice. Additionally, HYAS reserves the right to refuse or cancel any Purchase Order due to conflicts with Applicable Law, and it may unilaterally terminate this Agreement or request an amendment to the Renewal Term with at least ninety (90) days’ notice before the current Renewal Term ends.
(c) Termination under Section 7.3 is effective on the “Termination Date” specified in the termination notice, subject to minimum notice periods as outlined in subsections (a) and (b).
7.4 Effect of Expiration or Termination
(a) Upon the expiration or earlier termination of this Agreement, all rights, consents, and licenses granted by either Party to the other hereunder will immediately terminate, and Reseller will promptly: (i) cease all display and use of HYAS’ Trademarks; (ii) cease to represent itself as HYAS’ authorized Reseller; (iii) return to HYAS all documents and tangible materials containing, reflecting, incorporating or based on HYAS’ Confidential Information; (iv) destroy or erase all of HYAS’ Confidential Information from Reseller’s computer systems at the conclusion of the Wind-down Period; and (v) certify to HYAS, in writing, that it has complied with the requirements contained herein.
(b) No termination of this Agreement shall be deemed to cancel: (i) any Purchase Order submitted by Reseller to HYAS in accordance with Section 4.1, before the effective date of termination, and subject to HYAS having received timely payment of the amounts due and payable thereunder; (ii) HYAS’ obligation to continue to provide HYAS Products to Clients per the terms and conditions of any ULA; or (iii) any other obligation incurred or accrued by a Party prior to the effective date of such termination, which the Parties agreed, in writing, would not be affected by the termination of this Agreement.
(c) Subject to Section 7.4(a) and unless a Party terminates this Agreement pursuant to a material breach, neither Party will be liable to the other Party for Losses incurred by the other Party by reason of the expiration or earlier termination of this Agreement.
8.1 Confidential Information strong>
“Confidential Information” means the information of a Party ("Disclosing Party") disclosed to the other Party (the "Receiving Party"), whether orally or in writing, that reasonably would be considered confidential or proprietary to the Disclosing Party, including the terms and conditions of this Agreement and any Purchase Orders, information disclosed via HYAS Products, and information consisting of or relating to the Disclosing Party’s business and marketing plans, software code, technology, product designs, business processes, trade secrets, know-how, strategies, clients, and pricing, in each case whether or not marked, designated, or otherwise identified as “confidential”, excluding information that the Receiving Party can demonstrate is, without breach of any obligation owed to the Disclosing Party: (a) generally known to the public; (b) known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) independently developed by the Receiving Party; or (d) received from a third party in good faith. The Receiving Party will not, and will not permit any party to, disclose the Disclosing Party’s Confidential Information, or use the Disclosing Party’s Confidential Information, except as necessary for the performance of its obligations under this Agreement. Each Party agrees to protect the confidentiality of the other Party’s Confidential Information in the same manner that it protects the confidentiality of its own proprietary information, but in no event using less than reasonable care. The Parties agree that any unauthorized use or disclosure of Confidential Information may cause irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach by the Receiving Party, the Disclosing Party, in addition to other remedies which may be available in law, equity, or otherwise, may seek equitable relief, including injunctive relief, without any requirement to prove actual damages or show irreparable harm. If the Receiving Party is compelled by court order or by Applicable Law to disclose the Disclosing Party’s Confidential Information, it will provide the Disclosing Party with: (i) advance notice to sufficiently allow the Disclosing Party to object to the compelled disclosure; and (ii) reasonable assistance, at the Disclosing Party's cost, should the Disclosing Party wish to contest such disclosure.
NON-COMPETITION & NON-SOLICITATION
During the Term and for two (2) years after the Termination Date (the "Restricted Period"), Reseller will not interfere in any material respect with the business relationships between: (i) HYAS and past Clients or Active Clients; (ii) HYAS and any other HYAS clients; or (iii) HYAS and its vendors.
During the Restricted Period, Reseller will not hire or solicit any HYAS employee or encourage any such employee to leave such employment, except pursuant to a general solicitation which is not directed specifically to any such employees.
10.1 Warranty and Disclaimer
HYAS PRODUCTS ARE PROVIDED AS-IS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HYAS DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND MAKES NO WARRANTY THAT HYAS DATA OR HYAS PRODUCTS ARE ACCURATE, COMPLETE, SUITABLE FOR THE PURPOSES INTENDED, UNINTERRUPTED, OR WITHOUT ERROR.
Reseller will indemnify, hold harmless, and defend HYAS and its officers, directors, employees, agents, Affiliates, successors, and assigns (collectively, the “HYAS Indemnitees”) from and against any and all losses, damages, and costs, including reasonable legal fees (collectively, "Losses"), incurred in connection with any claim, action, suit, or proceeding made or brought against HYAS Indemnitees by a third-party arising out of or related to: (i) any claim by a Client not directly caused by such Clients’ use of HYAS Products; (ii) Reseller’s breach of any representations, warranties, or covenants set forth herein; and (ii) any inaccurate representations or warranties made to Clients by Reseller or Persons for whom Reseller is responsible in relation to the performance or specifications of HYAS Products.
10.3 Limitation of Liability
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID OR PAYABLE BY RESELLER HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (B) LOSS OF SAVINGS, PROFIT, USE, GOODWILL, OR REPUTATION; (C) BUSINESS INTERRUPTION; OR (D) COSTS OF REPLACEMENT SERVICES; ARISING OUT OF, OR IN ANY WAY CONNECTED TO, THE SERVICES OR THIS AGREEMENT.
10.4 Exceptions to Limitation of Liability and Disclaimer
Section 10.3 will not apply to liability arising from: (i) Reseller’s breach of its indemnification obligations; (ii) Reseller’s infringement or misappropriation of HYAS’ Intellectual Property Rights; (iii) a Party’s failure to comply with Applicable Law; (iv) a Party’s breach of its confidentiality obligations; and (v) a Party’s gross negligence.
11.1 Reseller is an Independent Contractor
Reseller is an independent contractor of HYAS. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
11.2 Further Assurances
The Parties will execute, and will cause the execution of, all documents and instruments necessary to implement and to carry into effect this Agreement to its full extent.
11.3 Entire Agreement
This Agreement and all orders and other documents required to be delivered or completed pursuant to this Agreement, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, whether written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by both Parties.
Subject to the limitations and other provisions of this Agreement, Article 1, Section 3.1(b), Section 3.3, Section 6.2, Section 7.4, Article 8, Article 9, Article 10, and Article 11. as well as any other provision that to give proper effect to its intent should survive the expiration or termination, will survive the expiration or earlier termination of this Agreement.
11.5 Publicity & Marketing
Each Party agrees to use the other Party’s logos following their usage guidelines. HYAS may identify Reseller, by name and logo, as an authorized Reseller. The Parties will mutually agree to content developed for joint marketing or promotional activities. Neither Party will publish a press release or make public announcement related to this Agreement without the prior written consent of the other Party.
11.6 No Assignment
Neither Party may assign any of its rights or delegate its obligations under this Agreement without the prior written consent of the other Party, and absent such consent, any purported assignment will be null, void, and have no effect. Notwithstanding the foregoing, HYAS may assign this Agreement with notice to Reseller, in connection with any change of control, merger or acquisition, or sale of all, or substantially all, of HYAS’ assets or stock. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
11.8 Governing Law
This Agreement and any action related thereto will be governed by the laws of the Province of British Columbia and the federal laws of Canada. Any disputes will be resolved in the provincial and federal courts in Victoria, British Columbia. However, HYAS may initiate legal action to collect unpaid Fees or protect its Intellectual Property Rights in any jurisdiction. The prevailing Party in a proceeding may recover reasonable attorneys’ fees and costs from the non-prevailing Party.
All notices, requests, consents, or other communications required hereunder must be emailed to HYAS at firstname.lastname@example.org.
If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such provision will be amended and interpreted to achieve as nearly as possible the intent of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
11.11 Force Majeure
Except expressly provided in this Agreement, neither Party will be liable for any failure to perform its non-monetary obligations under this Agreement if such failure arises out of circumstances beyond that Party’s reasonable control (a “Force Majeure Event”), including acts of God, acts of government, flood, fire, earthquakes, pandemic, epidemic, civil unrest, acts of terror, the passage of Applicable Law, any action taken by a governmental or public authority (including for example imposing an export or import restriction or prohibition), computer, telecommunications, Internet service provider or hosting facility failures, or delays involving hardware, software or power systems, and such Party promptly informs the other Party by written notice, of such event(s). The Party affected by the Force Majeure Event will make reasonable efforts to perform the portions of its obligations not prevented by the Force Majeure Event.