Code42 one-time resale agreement

1. Definitions

1.1 "Customer" means the entity identified on the Quote to whom you may resell the Offerings for use by that entity (and not for further distribution).

1.2 "Intellectual Property Rights" means all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications and moral rights, whether registered or unregistered.

1.3  “Master Services Agreement” means the master services agreement between your Customer and Code42, or if no such agreement exists, the Code42 Master Services Agreement available at https://support.code42.com/Terms_and_conditions/Legal_terms_and_conditions/Master_services_agreement.

1.4 "Offerings" means all products and services that Code42 provides to you under this Agreement.

1.5 "Order" means a signed Quote or other ordering document that you issue to Code42 in response to a Quote.

1.6 "Subscription Term" means the term during which your Customer may use the Offerings.

1.7 "Quote" means Code42's written description of the Offerings and applicable terms that Code42 issued to you.

2. Resale of the offerings

You may purchase the Offerings and resell them to your Customer. You are solely responsible for determining the price at which you resell the Offerings. You will notify your Customer prior to the time of sale that the Customer's use of the Offerings is for the Subscription Term and subject to the applicable Master Services Agreement. As between you and Code42, Code42 retains all right, title and interest in and to the Offerings and all related Intellectual Property Rights. Your Customer's rights to use the Offerings are only those expressly granted in the Master Services Agreement. All software is licensed and not sold, even if Code42 uses words like "sale" or "purchase" in sales materials.

3. Ordering and payment

3.1 Orders. Purchase orders do not need to be signed to be valid and enforceable. No terms or conditions of any Order, purchase order, acknowledgment or other business form used in connection with any purchase from Code42 will have any effect on the terms of this Agreement regardless of either party's failure to object to such terms or conditions. Each party rejects all additional or conflicting terms or conditions. No Order is binding on Code42 until Code42 makes an ordered Offering available to you or your Customer. All Orders are non-refundable and non-cancelable except as expressly provided in this Agreement.

3.2 Payment. Code42 will invoice you for the fees stated on your Quote after accepting your Order. You will pay all fees in the amount and currency specified on your invoice within 30 days of the invoice date. You will pay any delinquent amounts within 30 days of Code42's written notice identifying a delinquency, and if you do not, then Code42 may suspend your Customer's access to the Offerings.

3.3 Disputed Payments. Code42 will not exercise its suspension rights under section 3.2 (Payment) if you are disputing the applicable charges reasonably and in good faith, you are cooperating diligently to resolve the dispute, and you have paid any undisputed fees in accordance with section 3.2 (Payment).

3.4 Taxes. All fees owed under this Agreement are exclusive of any Taxes. "Taxes" means any sales, VAT, GST (Goods and Services Tax), use, gross receipts, business and occupation, and other taxes (other than taxes on Code42's income), export and import fees, customs duties and similar charges imposed by any government or other authority. You will pay or reimburse Code42 for all Taxes arising out of the transactions occurring under this Agreement. If you are required to pay or withhold any Tax for payments due under this Agreement, you will gross up your payments to Code42 so that Code42 receives all sums due in full and free from any deductions. Code42 can rely on the name and address you provide to Code42 as being the place of supply for sales tax, income tax, and VAT purposes.

3.5 Refund. If Code42 provides your Customer a refund under a Master Services Agreement, Code42 will issue the refund to you based on the amount that Code42 received from you for the refunded portion of the Offering. You will refund your Customer a proportional amount based on the amount you received from the Customer for the refunded portion of the Offering.

4. Warranties

4.1 Offering Warranty. Code42 will provide any warranty for the Offerings directly to your Customer. This warranty is described in the Master Services Agreement or a separate agreement between Code42 and your Customer. You will not make any warranties to your customer regarding the Offering.

4.2 Disclaimer. To the extent permitted by law, Code42 disclaims all other warranties, whether express, implied or statutory (including any implied warranties of merchantability, fitness for a particular purpose, title or noninfringement), and any warranties arising from usage of trade, course of dealing or course of performance. Code42 does not warrant that the Offerings will meet your Customer's requirements or that they will be accurate or operate without interruption or error. 

5. Code42 indemnification

5.1 Subject to the remainder of section 5 (Code42 Indemnification), Code42 will defend you against any unaffiliated third party claim that your sale or distribution of the Offerings infringe any patent, trademark or copyright, or misappropriate a trade secret, of that third party under the laws of (A) the United States, (B) Canada, (C) the United Kingdom, (D) Australia, and (E) any European Economic Area member state ("Infringement Claim"). Code42 will indemnify you from the resulting costs and damages finally awarded against you to that third party by a court of competent jurisdiction or agreed to in settlement. Code42's obligations only apply if you: (1) promptly notify Code42 of the Infringement Claim in writing, (2) allow Code42 sole control over the defense for the claim and any settlement negotiations, and (3) reasonably cooperate in response to Code42's requests for assistance. You may not settle or compromise any Infringement Claim without Code42's prior written consent.

5.2 Code42 will not have any obligation under section 5.1 (Code42 Indemnification) with respect to any claim or award based on (A) a combination of Offerings with non-Code42 products; (B) any modification to the Offerings by anyone other than Code42; (C) any Offerings provided on a no charge, beta or evaluation basis; or (D) the value of any non-Code42 data, product, services or business process.

5.3 This section 5 (Code42 Indemnification) is your sole exclusive remedy and Code42's entire liability for any infringement claims or actions.

6. Limitations of liability

6.1 Exclusion of Damages. Neither Code42 nor you are liable for any lost profits or business opportunities, loss of use, business interruption, or any indirect, special, punitive, incidental or consequential damages under any theory of liability. This exclusion applies regardless of whether Code42 or you have been advised of the possibility of those damages and regardless of whether any remedy fails of its essential purpose.

6.2 Cap on Monetary Liability. The maximum aggregate liability for Code42 or you for claims under this Agreement will not exceed an amount equal to the total fees paid or payable to Code42 for your Order accepted under this Agreement.

6.3 Further limitations. Code42's licensors and third party service providers have no liability of any kind under this Agreement, and you may not bring a claim directly against any of them under this Agreement.

6.4 Exclusions. The exclusions and limitations in section 6 (Limitations of Liability) will not apply to: (A) either party's violation of the other party's or its licensor's Intellectual Property Rights; (B) Code42's obligations in section 5 (Code42 Indemnification); (C) your payment obligations under section 3 (Orders and Payment); (D) either party's obligation to pay fees, costs and expenses under section 9.2 (General: Governing Law and Venue); (E) either party's liability for death or personal injury caused by its negligence; or (F) any liability that cannot be excluded under applicable law.

7. Confidential information

7.1 Obligations. "Confidential Information" means non-public information provided in connection with this Agreement that is labeled "confidential"or the like, or is provided under circumstances reasonably indicating its confidentiality. Code42's Confidential Information includes this Agreement, your pricing, and product roadmaps. A party ("recipient") may use Confidential Information of the other party ("discloser") solely to exercise its rights and perform its obligations under this Agreement. Code 42 and you will each protect the other party's Confidential Information in the same manner as it protects its own Confidential Information of a similar nature, but in any event with not less than reasonable care.

7.2 Exclusions. The recipient's obligations under section 7.1 (Confidential Information: Obligations) will terminate with respect to any Confidential Information that the recipient can show: (A) was already rightfully known to the recipient without any obligation of confidentiality at the time of disclosure; (B) was disclosed to the recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; (C) was at the time of disclosure, or through no fault of the recipient has become, generally available to the public; or (D) was independently developed by the recipient without access to or use of the discloser's Confidential Information.

7.3 Permitted Disclosures. The recipient may disclose Confidential Information only to its employees, professional advisors, service providers or contractors who have a need to know the Confidential Information and who are under a similar duty of confidentiality. The recipient may also disclose Confidential Information to the extent required by law or regulation, in which case the recipient will notify the discloser as soon as practicable and if permitted by law or regulation. At the discloser's request and expense, the recipient will take reasonable steps to contest and to limit the scope of any required disclosure.

7.4 Remedies. The discloser may seek an injunction to prevent the actual or threatened unauthorized disclosure of Confidential Information without the necessity of proving irreparable injury or the inadequacy of monetary damages.

8. Term and termination

8.1 Term. This Agreement applies solely to your purchase and resale of the Offerings in the Order to which this Agreement applies and expires automatically upon Code42's receipt in full of your payment for the Offerings.

8.2 Survival. The following sections will survive termination or expiration of this Agreement: 3.2 (Ordering and Payment: Payment); 4.2 (Warranties: Disclaimer); 5 (Code42 Indemnification); 6 (Limitations of Liability); 7 (Confidentiality); 8 (Term and Termination); and 9 (General).

9. General

9.1 Assignment. Neither party may assign its rights or obligations under this Agreement or any Order, by operation of law or otherwise, without the prior written consent of the other party. But either party may assign this Agreement without consent to its affiliates or to any successor or assign that has acquired substantially all of its business relating to this Agreement. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any purported assignment in violation of this section is void.

9.2 Governing Law and Venue. If you are domiciled in North America, this Agreement is governed by the laws of the State of New York without regard to its principles of conflicts of law, and any dispute arising out of this Agreement will be exclusively resolved in the State or Federal courts located in Hennepin County, Minnesota. If you are domiciled outside of North America, this Agreement is governed by the laws of England and Wales without regard to its principles of conflicts of law, and any dispute arising out of this Agreement will be exclusively resolved in the English courts. Any party may seek injunctive relief in any jurisdiction. The 1980 U.N. Convention on Contracts for the International Sale of Goods will not apply. If any legal action is brought by a party to enforce this Agreement, the prevailing party is entitled to receive its reasonable attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.

9.3 Compliance with Laws. Each party will comply with any statutes and regulations that apply to it in its performance under this Agreement.

9.4 Export Compliance. The Offerings are of United States origin, are provided subject to the U.S. Export Administration Regulations, and may be subject to export control laws. You are not, and are not acting on behalf of: (A) any person who is a citizen, national, or resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; or (B) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List. You are not subject, either directly or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole or in part, your United States export privileges.

9.5 Anti-Corruption Regulation. Code42 and you will each comply with the U.S. Foreign Corrupt Practices Act and all other anti-bribery laws. Neither you, Code42, nor any of the respective agents or employees will offer, pay, promise or authorize any direct or indirect payments, or provide anything of value to any Official for the purpose of obtaining business involving the Offerings. An "Official" means (A) any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, (B) any official or employee of any public international organization, such as the United Nations or World Bank, (C) any person acting in any official capacity for or on behalf of a government, public enterprise or state-owned business, (D) any political party or party official, (E) any political candidate, or (F) any person or entity whom Code42 or you has reason to believe will give part of the payments to any of the previously mentioned categories of people.

9.6 Data Processing. Code42 collects account-related data relating to your purchase and resale of the Offerings ("Administrative Data"). Code42 uses the Administrative Data and uses it to provide the Offerings, bill you for the Offerings, advise you of new Code42 products and services, and comply with Code42's contractual obligations and applicable law. Code42 is an independent controller of the Administrative Data and will process the Administrative Data under the Code42 privacy statement available at: https://www.code42.com/privacy-statement/.

9.7 U.S. Government Rights. Code42 provides the Offerings, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Offerings include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Code42 to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

9.8 Notice. All notices will be in writing and deemed given the second business day after mailing if sent by a recognized overnight courier (receipt requested). Code42 will send notices to you at the address in your Quote. You will send notices to Code42 at: Code42 Software, Inc., 100 Washington Ave., 20th Floor, Minneapolis, MN 55401, United States of America, Attention: General Counsel. Except for notices of termination or indemnification, notices may also be delivered by email and are effective the business day after sending. Code42 will email billing-related notices to the billing contact that you designate. Code42 will email Offering-related notices to the system administrator that you designate. You will email all notices to Code42 at legal@code42.com.

9.9 Force Majeure. Neither party will be liable for any delay or failure to perform any obligations under this Agreement or any Order (except for payment obligations), due to any cause beyond its reasonable control including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, supply failures by third party service providers (including internet service provider failures or delays, or denial of service attacks), earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism or war.

9.10 Entire Agreement. The Agreement as it may be modified from time to time is the entire agreement of the parties regarding its subject matter. The Agreement supersedes all prior or contemporaneous communications, understandings and agreements, whether written or oral, between the parties regarding its subject matter. In the event of a conflict, the descending order of precedence is: (A) the Quote and (B) the Agreement.

9.11 Counterparts. Each party may sign this agreement using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies.

9.12 Waiver and Amendment. The waiver of a breach of any provision of the Agreement will not constitute a waiver of any other provision or any later breach. Any modification of this Agreement must be in writing and signed by the party against whom the modification will be enforced.

9.13 Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture or agency relationship. Neither party has any authority to assume or create any obligation of any kind in the name of or on behalf of the other party.

9.14 Third Party Rights. Other than as expressly provided in the Agreement, the Agreement does not create any rights for any person who is not a party to it, including under the Contracts (Rights of Third Parties) Act of 1999. No person who is not a party to the Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it. But Code42's licensors and third party service providers are beneficiaries of the warranty disclaimers and limitations of liability in the Agreement.

9.15 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in force the maximum extent feasible or permitted by law.

9.16 Construction. The Offerings will be provided in the English language. The word "including" means "including but not limited to." Section headings are for convenience only and are not to be used in interpreting this Agreement.

End of Agreement