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CHANNEL PARTNER PROGRAM AGREEMENT
Dark Cubed partners with companies to bring our product to market (“Channel Partners”). By participating in the Dark Cubed Channel Partner Program, Channel Partners acknowledge that they have read, understand, and agree to be bound by the Dark Cubed Channel Partner Agreement (“Agreement”), which is included below.
1. Key Definitions.
“Dark Cubed” means Dark3, Inc, a Delaware corporation, with a mailing address of P.O. Box 2601, 1908 Mt Vernon Ave, Alexandria, VA 22301.
“Channel Partner” means the company, organization, or individual that Dark Cubed acknowledges has the right to resell Dark Cubed product to customers.
“Product” means the Dark Cubed Cyber Security Platform and any associated, hardware, software, or licenses, together with applicable documentation and media made available in whole or in part by Dark Cubed to customers.
“Customer” means the ultimate user of any portion of the Dark Cubed Product.
2. The Nature of Our Relationship.
This is a Channel Partner Engagement. This engagement is between Dark Cubed and a channel partner, on a non-exclusive basis for a territory as agreed upon between the parties. The Channel Partner. This engagement is entered into solely in accordance with the terms and conditions of this Agreement and the Channel Partner such engagement on the terms described herein. Channel Partner agrees only to resell the Products, alone or incorporated into a suite with third-party products, to Customers; provided, however, that Dark Cubed may, at its sole discretion, agree to private-label certain Products at Channel Partner’s request upon terms mutually agreed to between the Parties.
This Engagement is Non-Exclusive. This Agreement and the Channel Partner engagement entered into hereby, is non-exclusive and, except as otherwise agreed, nothing in this Agreement shall preclude Dark Cubed from marketing, selling, licensing, or maintaining any competitive Products to any Customers including, without limitation, end-users, Channel Partners, original equipment manufacturers or other distributors. Additionally, Dark Cubed understands that Channel Partner is making no minimum royalty, volume or New Customer commitments under this Agreement.
Contracting with Customers. An agreement for the purchase of Products by a Customer may occur directly between Dark Cubed and the Channel Partner depending on the nature of the relationship, or the agreement may be exclusively between the Channel Partner and the Customer. In the event the agreement is between the Channel Partner and the Customer, then Dark Cubed shall have no third-party rights or obligations thereunder other than with respect to its standard Product warranty terms. Dark Cubed reserves the right, in its sole discretion, to review and reject any Customer proposed by the Channel Partner. Nothing in this Agreement shall be construed to limit Channel Partner from entering contracts or other relationships that do not relate solely to the sale or purchase of the Products.
Product Pricing. Dark Cubed agrees to sell to Channel Partner the Products (which may be amended or modified from time to time in accordance herewith), in each case at the List Price agreed upon (which List Prices may likewise be amended or modified from time to time in accordance herewith). Dark Cubed may provide the Channel Partner with volume discounts from time to time or based on specific requests of the Channel Partner. Such discounts are offered at the full discretion of Dark Cubed. In the event Dark Cubed desires to amend, modify or vary the list of Products or the List Prices identified (as may be amended from time to time), Dark Cubed may elect to do so at its sole discretion upon thirty (30) days’ prior written notice delivered to Channel Partner’s appointed representative. Subject to any other term of this Agreement and/or applicable law, Channel Partner shall have sole discretion with respect to price and terms on which it elects to offer the Products for sale to its Customers.
Payment Terms. Unless otherwise agreed, Dark Cubed shall invoice Channel Partner on a monthly basis for the aggregate List Price of all Products, minus an agreed upon discounts, ordered during the relevant billing period, along with any fees, costs and/or expenses associated therewith. Unless otherwise agreed to between the Parties, Channel Partner shall pay all invoices via ACH within fifteen (15) days from the date on which the invoice is received by Channel Partner.
Handling Non-Payment of Customers. Dark Cubed understands that from time to time situations may arise where a customer may not fulfill their financial responsibilities to the Channel Partner. Dark Cubed values a long-term relationship with its Channel Partners and may, at its discretion, provide relief or agree to share the financial burden of such an incident.
Product Warranty Terms. All Products ordered by Channel Partner which may or may not be resold to Customers shall be provided along with Dark Cubed’s standard commercial warranty terms, and no warranties shall be offered that are inconsistent with such warranty terms (including those warranty terms stated in this Agreement) unless otherwise agreed to between the Parties.
3. The Responsibilities of Our Channel Partners.
Marketing Development and Sales. Channel Partner hereby agrees that it shall use its commercially reasonable best efforts to advertise, promote, quote and sell the Products in the Territory throughout the Term, consistent with Channel Partner’s and Dark Cubed’s marketing plans and strategies as discussed and agreed to prior to execution of this Agreement.
Channel Partner Service Obligations. Channel Partner hereby agrees to provide certain marketing, technical and business services to promote and expand the sale of the Products in the Territory, including, without limitation:
- performing customer liaison incident to the sale and application of Products.;
- providing sales promotional services to acquaint existing and potential customers of the established and new applications of the Products;
- maintaining an office to service customers in the territory, and providing Level 1 Customer support services by responding to initial support calls from Customers;
- providing Dark Cubed with periodic written reports, as reasonably requested by Dark Cubed from time to time, with respect to sales, marketing and service activities performed by, or requested from, Customers and non-Customers in the Territory throughout the Term; and
- determining, to the extent reasonably possible, that the Products sold to Customers in the Territory are being correctly used in accordance specifications.
Channel Partner Covenants. Channel Partner hereby covenants and agrees as follows:
- it will conduct business in its own name, maintain its own offices, clearly disclose that it is acting as Channel Partner of the Products and so describe itself in all documents, sales information and other marketing materials used or issued;
- it will avoid, at all times throughout the Term, use or commission of any deceptive, misleading, illegal or unethical practices that are or could reasonably be expected to have a detrimental or materially adverse effect on the name, brand, image or goodwill associated with Dark Cubed or any individual Product;
- it will make no false or misleading representations or warranties with regard to Dark Cubed or any Product;
- it will not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Dark Cubed or any Product;
- it will make no representation, warranty or guarantee to Customers or to the trade with respect to the specifications, features or capabilities of the Products that are inconsistent with any Dark Cubed-authorized warranty;
- it shall sell all Products in a manner that is safe an in accordance with industry standards and applicable laws, and shall comply with Dark Cubed’s instructions, if any, with respect to safety and warning labels, installation or operational instructions, and maintenance requirements. It shall likewise not remove, disconnect or negate any safety features or warning labels attached to or relating to any Product; and
- it will immediately bring to Dark Cubed’s attention any improper or wrongful use of Dark Cubed’s patents, trademarks, designs or other similar industrial or commercial property rights which comes to Channel Partner’s attention.
4. Protecting Our Collective Intellectual Property.
License and Use of Dark Cubed Intellectual Property. From the commencement of this Agreement until conclusion of the Term, Dark Cubed hereby grants to Channel Partner a non-exclusive, royalty-free license, for the duration of the Term, to use, display and incorporate, in any manner pre-approved by Dark Cubed in writing, Dark Cubed’s name, trademarks, logos and designations in the Territory solely in connection with Channel Partner’s advertisement, promotion and sales of the Products, and only in accordance with Dark Cubed’s then-current trademark usage policies, as previously provided to Channel Partner in writing. Channel Partner shall not destroy, alter or vary any copyright notices, trademarks or other proprietary markings on Products, software, documentation or other materials related to the Products. Upon termination of this Agreement, Channel Partner will not continue to advertise or promote the Products, nor will Channel Partner use Dark Cubed’s trademarks in any manner whatsoever. Dark Cubed further grants to Channel Partner a non-exclusive, royalty-free license to display, distribute and duplicate, any sales, marketing, instruction or operations materials provided to Channel Partner by Dark Cubed solely in connection with the sales or operations of Products by Customers throughout the Territory and throughout the Term. Except as otherwise described herein, Channel Partner hereby recognizes that Dark Cubed retains all intellectual property rights in and to the Products and related marketing materials or documentation. Channel Partner also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on Products.
Confidentiality. “Confidential Information” shall mean confidential or other proprietary information that is disclosed by one Party to the other Party under this Agreement, including without limitation, the Products, any hardware and software designs, specifications and documentation, business and product plans, and other confidential business information. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, a receiving Party; or (ii) is disclosed by a receiving Party with the prior written approval of the disclosing Party. Each Party agrees to observe complete confidentiality with respect to the Confidential Information; not to disclose, or permit any third party or entity access to, the Confidential Information (or any portion thereof) without prior written permission of the Party disclosing such Confidential Information; and to ensure that any employees, or any third parties who receive access to the Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or otherwise revealing the Confidential Information; provided that such Confidential Information may be disclosed to the extent required by any applicable law or judicial or governmental order, provided further that the receiving Party gives the disclosing Party sufficient prior notice to contest such order. Without limiting the foregoing, each Party agrees to employ with regard to the Confidential Information procedures no less restrictive than the procedures used by it to protect its own confidential and proprietary information.
5. What Support Will Dark Cubed Provide?
In the event Channel Partner is unable to resolve any Customer query or support request in accordance with its Level 1 Customer support obligations stated elsewhere herein, Channel Partner may contact Dark Cubed for additional Level 2 Customer support services, and Dark Cubed covenants and agrees to use commercially reasonable best efforts to resolve address such queries in a timely and professional manner. Dark Cubed, may at its’ discretion agree to a relationship where Dark Cubed may provide additional levels of support to Customers. Such an agreement shall be documented in writing, with approval by both parties.
6. How Long Will This Agreement Last and Can It Be Cancelled?
Term. This Agreement will commence on the Effective Date and will continue for a period of two (2) years (the “Initial Term”) unless terminated earlier for any of the reasons below. Following the expiration of the Initial Term, this Agreement shall automatically renew for successive periods of one (1) year (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless terminated earlier for any of the reasons below.
Termination for Convenience. Either Party may terminate this Agreement on its anniversary or annually thereafter for any reason by giving the other Party at least thirty (30) days’ prior written notice.
Termination for Cause. In the event of any material breach of this Agreement, the non-breaching Party may terminate this Agreement by giving thirty (30) days’ prior written notice to the other Party; provided, however, that this Agreement shall not terminate if the other Party has cured the alleged breach prior to the expiration of such thirty (30) day period.
Termination for Insolvency. This Agreement shall terminate, without notice, (i) upon the institution by or against either Party of receivership or bankruptcy proceedings, (ii) upon either Party’s making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
Effect of Termination. Termination of this Agreement will not affect payment of fulfillment obligations under Section 2 to the extent delivered or accrued prior to the date on which termination occurs, nor will it terminate any licenses to Customers established prior to termination of this Agreement, unless a bankruptcy court, trustee or similar body or agent (with respect to Section 5.4 termination) elect not to continue such licenses.
7. Warranties; Indemnification; Limitations.
Limited Customer Warranty. Dark Cubed provides a limited warranty statement (the “Limited Warranty Statement”) to Customers, located on Dark Cubed’s website at http://darkcubed.com/, as such may be amended or varied from time to time. Channel Partner shall, with each resale of a Product to a Customer, make available to Customer a copy of the Limited Warranty Statement, and Channel Partner shall not make any representation, warranty or statement inconsistent with such Limited Warranty Statement. Dark Cubed shall provide Channel Partner notice of any changes Dark Cubed makes to the Limited Warranty Statement.
WARRANTY DISCLAIMER. OTHER THAN AS CONTAINED IN THE LIMITED WARRANTY STATEMENT, DARK CUBED MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE PRODUCTS (OR ANY SERVICES ASSOCIATED THEREWITH), EITHER EXPRESS OR IMPLIED. ALL IMPLIED WARRANTIES AND CONDITIONS (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED. CHANNEL PARTNER MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE VOLUME OF SALES OR MARKETS REACHED.
LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO (A) CHANNEL PARTNER’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY HEREUNDER, (B) CHANNEL PARTNER’S INFRINGEMENT OF DARK CUBED’S INTELLECTUAL PROPERTY RIGHTS, OR (C) EITHER PARTY’S COMMISSION OF ONE OR MORE ACTS AMOUNTING TO FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, THE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUPPLY OF PRODUCTS HEREUNDER SHALL IN NO EVENT INCLUDE ANY CONSEQUENTIAL, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, OR COST OF PROCURING SUBSTITUTE GOODS OR SERVICES), EVEN IF THE PARTY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE ABOVE, ANY OTHER PROVISION HEREIN TO THE CONTRARY, DARK CUBED’S MAXIMUM AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE THE AMOUNT PAID BY CHANNEL PARTNER TO DARK CUBED FOR THE PRODUCTS WHICH ARE THE SUBJECT OF THE CLAIM.
Indemnification. Channel Partner shall indemnify, defend and hold Dark Cubed (and including its officers, directors, employees, shareholders and affiliated parties) harmless from and against any and all claims, damages, liabilities, costs (including reasonable attorneys’ fees) and expenses incurred by Dark Cubed (and including its officers, directors, employees, shareholders and affiliated parties), arising in connection with any act or omission of Channel Partner (including, without limitation, acts or omissions of Channel Partner’s officers, directors, employees, shareholders and affiliated parties).
8. Other Legal Details.
Assignment. Neither Party may assign, delegate, or transfer this Agreement, or any of its rights or duties hereunder, without the prior written consent of the other party. Any attempted assignment or delegation in violation of this section shall be void. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Notwithstanding the foregoing, Dark Cubed may assign its rights and duties hereunder without the prior consent of Channel Partner in connection with a merger, consolidation, spin-off, corporate reorganization, acquisition, or sale of all or substantially all the assets of Dark Cubed.
Governing Law. This Agreement shall be governed by the laws of the State of Virginia (without regard to its conflicts of law principles), excluding the United Nations Convention on Contracts for the International Sale of Goods. The Parties hereby consent to the exclusive jurisdiction of and venue in the federal and/or state courts located in the Northern District of Virginia.
No Legal Relationship. In performing their respective duties under this Agreement, each of the Parties will be operating as an independent party to the other Party. Nothing contained herein will in any way constitute any agency, association, partnership, employment engagement or joint venture between the Parties, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the power to bind the other Party or incur obligations on the other Party's behalf without the other Party's prior written consent.
Amendments and Waivers. No variance, amendment or waiver to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the Party to be charged, and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default; provided, however, that the list of Products and the corresponding List Prices may be varied from time to time by Dark Cubed in accordance with Section 2.1 above.
Notices. Any required or permitted notices hereunder must be given in writing at the address of each Party set forth in the Information Form, or to such other address as either Party may substitute by written notice to the other in the manner contemplated herein, by one of the following methods: hand delivery; registered, express, or certified mail, return receipt requested, postage prepaid; nationally-recognized private express courier; or electronic mail or facsimile. Notices will be deemed given on the date received.
Severability. If for any reason any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
Entire Agreement. This Agreement and the exhibits attached hereto constitute the entire and exclusive agreement between the parties hereto with respect to the subject matter hereof and supersede any prior agreements between the parties with respect to such subject matter.
Survival. The following Sections of this Agreement shall survive the termination or expiration of this Agreement: “Reseller Covenants” and Sections 4, 7, and 8.