This VORTEX Reseller Agreement (“Agreement”) is hereby entered into between VIVOTEK, Inc. a Taiwan corporation, having its principal office at 6F, No. 192, Lien-Cheng Rd., Chung-Ho, New Taipei City, Taiwan, ("VIVOTEK") and the VORTEX reseller, (“Reseller”) that accepts these terms as indicated below (each of VIVOTEK and Reseller, a “Party”, and collectively, the “Parties”).
Reseller accepts the Agreement and agrees to be bound by the terms hereof by clicking a box indicating its acceptance or navigating through the login page of Reseller Portal where a link to this Agreement is provided. If Reseller and VIVOTEK have executed a written agreement governing Reseller’s right to resell the Products, then the terms of such signed agreement will govern and will supersede this Agreement.
This Agreement is effective as of the date that Reseller accepts the terms of this Agreement as indicated above (“Effective Date”). VIVOTEK reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) 30 days from the date of such update or modification and (ii) Reseller’s continued participation in VORTEX Reseller program following such update.
The Parties hereby agree as follows:
“Claim” means any and all claims, suits, legal actions or proceedings against a Party, including by another Party, a third party, or by an employee of a Party.
“Confidential Information” means all know-how, specifications, pricing information, maintenance, data sheets, sales, service and technical bulletins, customer lists, sales and marketing programs, price lists, cost data, and all other publications and information, whether or not reduced to writing, relating to the formulation, manufacture, use, marketing and sale of the Products, as well as any other information relating to the business of a Party which may be divulged to the other Party in connection with this Agreement.
“Documentation” means documentation provided by VIVOTEK to Reseller relating to the Products, their functionality, and their use, available at https://www.vortexcloud.com/ and https://reseller.vortexcloud.com/
“End Customer” means Reseller’s customer and the entity licensed under the End User Agreement to use the Products for its own internal purposes and not for resale, lease, loan, or redistribution to, or use on behalf of, other third parties.
“End User Agreement” means VIVOTEK’s End User Agreement, available at https://www.vortexcloud.com/pages/end-user-agreement or another written license agreement, entered into between VIVOTEK and the End Customer, governing the End Customer’s use of the Products.
“Firmware” means the software VIVOTEK developed and maintained that runs on the Hardware which perform functionalities such as video and audio encoding or streaming, VCA features and communications to the Hosted Software.
“Hardware” means the VIVOTEK hardware products which can communicate with VORTEX, including network cameras, NVR, etc.
“Hosted Software” means, known as “VORTEX,” and related infrastructure made available to User to manage and control the Hardware.
“Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks and Marks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Liabilities” means any and all damages, liabilities, settlement amounts, expenses and costs in connection with a Claim.
“License”: Please see VORTEX End User Agreement section 2.1
“License Term” means the length of time indicated in the License SKU set forth on the applicable Purchase Order.
“Marks” means a Party’s trade names, trademarks, service marks, symbols, and logos.
“Order” means a written purchase order Reseller will submit to VIVOTEK for the purchase of Products to be used by End Customers.
“Reseller Indemnified Parties” means Reseller, its affiliates, and each of their officers, directors, employees and contractors.
“Reseller Portal” means the website maintained by VIVOTEK that provides device status dashboard, licensing management and purchasing for Reseller, available at https://reseller.vortexcloud.com.
“Products” means the whole VORTEX System, VIVOTEK Software-as-a-Service solution including Software and Hardware as well as Video Content Analysis features, the VORTEX Mobile App for iOS and Android OS.
“Reseller Price List” means the price list for the Products setting forth the various discounts available to Reseller. Reseller Price Lists are available at the Reseller Portal and may vary by region.
“Software” means the Firmware and Hosted Software.
“Taxes” means applicable duties, sales tax, value added tax or any equivalent tax and any applicable withholding taxes, customs, duties and other charges and fees related to the sale of the Products.
“VORTEX Training Program” means the training course for VORTEX regularly hosted by VIVOTEK.
“VIVOTEK Indemnified Parties” means VIVOTEK, and each of their officers, directors, employees and contractors.
Subject to Reseller’s continued compliance with this Agreement, VIVOTEK appoints Reseller as a non-exclusive reseller and/or dealer of the Products found on the Reseller Price List. Reseller will buy and sell the Products in its own name and for its own account and risk. Reseller will be subject to the terms of VORTEX End User Agreement while Reseller uses the Products to provide video monitoring and managed services. Reseller will act as an independent entity and is not authorized to represent VIVOTEK or to act on behalf or in the name of VIVOTEK.
- Reseller Obligations
3.1 Promotion and Marketing Reseller is expected to undertake promotional activities, conduct advertising and sales campaigns with respect to the Products using a variety of promotional methods including press releases, exhibition panels, show boards, tradeshow, roadshow, mailings, website information, and catalogues, and assist in any such campaigns instituted by VIVOTEK. VIVOTEK shall have the continuing right to inspect and review Reseller’s advertising and sales materials for the Products and to disapprove same or require such modifications as VIVOTEK deems advisable.
Reseller should include VIVOTEK on their websites. Subject to VIVOTEK’s prior approval, VIVOTEK hereby grants to Reseller the limited right to list VIVOTEK’s or VORTEX’s name and approved logo on Reseller’s website. Upon VIVOTEK’s written request, Reseller will promptly remove VIVOTEK’s or VORTEX’s name and logo from its marketing materials and website. Reseller will promptly notify VIVOTEK of: (a) any use by any third party of VIVOTEK’s or VORTEX’s name and logo; or (b) any use by any third party of similar trademarks which may constitute an infringement.
Reseller is to make best efforts to participate in case studies and press releases. The Parties may undertake joint tradeshows from time to time.
3.2 Technical support Reseller will provide the Product configuration, installation, implementation and Software update and patch services for End Customers, and provide first line support services for the Products to its End Customers in accordance with the terms of Annex A. Reseller shall ensure that all technical support engineers who are providing technical support for the Products are certified by VIVOTEK. Reseller shall provide VIVOTEK with a list of its trained and certified sales personnel and technicians and regularly update the list as contacts change. Reseller will also keep VIVOTEK informed as to any problems encountered with the Products and to communicate promptly to VIVOTEK any and all modifications, design changes or improvements of the Products suggested by any customer, employee or agent.
3.3 Training Reseller must have an appropriate number of pre-sales and post-sales support personnel trained and accredited by VIVOTEK to use, operate, and demonstrate the Products and otherwise carry out Reseller’s obligations under this Agreement. Reseller shall cause all appropriate sales personnel to take sales and web training seminars offered by VIVOTEK before the marketing and use of the Products. Reseller must ensure all appropriate first line support technicians and field service technicians attend necessary training courses (VORTEX Certified Reseller Certification Program) for the Products and receive certification from VIVOTEK on the Products within sixty (60) days of the Effective Date. After the initial certification, the Reseller must ensure the technicians providing technical support (first line and field service) have “up to date” certifications, and will attend scheduled training on a regular basis for new Product feature releases and to maintain their certification every two years.
3.4 Restrictions Except as expressly authorized by this Agreement, Reseller may not: (a) modify, copy, disclose, alter or create derivative works of any of the Products, the Documentation, or VORTEX’s Trademarks; (b) license, sublicense, resell, distribute, lease or otherwise dispose of any of the Products, the Documentation, or VORTEX’s Trademarks; (c) use any of the Products or the Documentation, or allow the transfer, transmission, export or re-export any of the Products, in violation of the export control laws or regulations of the United States or any other country; (d) adopt, use or register any words, phrases or symbols that are identical to or confusingly similar to any of VORTEX’s Trademarks within any territory.
3.5 Ownership and Reservation of Rights VIVOTEK owns all right, title and interest in and to VORTEX’s Trademarks and the Intellectual Property Rights associated with the Products. VIVOTEK reserves all rights not expressly granted in this Agreement, and no licenses are granted by VIVOTEK to Reseller under this Agreement. Further, all references in this Agreement to the “purchase” or “sale” of the Products means, with respect to each of the Products which are covered by Intellectual Property Rights owned by VIVOTEK (or to which VIVOTEK has rights), the acquiring or granting, respectively, of a license to use such Products, and to exercise any other rights pertaining to such parts which are expressly set forth herein. Reseller and its customers are not entitled to receive any source code or source documentation relating to the Product.
3.6 Compliance Reseller will: (i) comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of privacy and use of video surveillance; (ii) not engage in, or acquiesce in, any extortion, kickbacks, or other unlawful or improper means of obtaining business or promoting the Products; (iii) promptly inform VIVOTEK of any claim, action, or proceeding, whether threatened or pending, that comes to Reseller’s attention and involves VIVOTEK or the Products; and (iv) immediately notify VIVOTEK of any known or suspected breach of the End User Agreement or other unauthorized use of the Products by an End Customer.
As an authorized reseller of the Products, Reseller will be entitled to purchase the Products at the various discounted prices set forth on the then-current Reseller Price List, depending on an opportunity initiated whether by VIVOTEK or Reseller. There is also additional benefits as well as responsibilities defined in the VORTEX Reseller Program listed in the Reseller Portal which might be changed by VIVOTEK annually. Prices are described exclusive of any excise taxes, sales taxes or any other taxes that would apply to the Products. Licensing crossing regions is not allowed. License purchased from one region can only be deployed for the camera installed in that region. Depending on the Reseller’s country or regions, taxes may be exempted upon providing a valid tax exemption proof. Reseller will advertise the Products only at the list prices set forth in the applicable Reseller Price List, however Reseller may sell the Products at a price agreed upon between Reseller and the End Customer.
- Product Orders
5.1 There will be two parts for the Orders for the Product. For Hardware Orders, Reseller will follow the purchase flow based on existing distributors of VIVOTEK. For Software Licensing Orders, the website http://reseller.vortexcloud.com/ is for Reseller to purchase and manage License for their End Customers. Reseller and End Customers must purchase Licenses to use the Hosted Software no less than the number of the Hardware units which are to be manages with the Hosted Software, but unlimited number of Users to access and use the Hosted Software is allowed. If additional Licenses are purchased for either purchase of new Hardware units or renewal of Licenses for existing Hardware units, the overall License Term will be adjusted so that the License Term for total Licenses purchased will expired on the same date.
5.2 Reseller understands that the End Customer’s use of the Products is subject to the terms of the End User Agreement. VIVOTEK makes warranties regarding the Products directly to End Customers via the End User Agreement. VIVOTEK will not be liable for any different or additional warranties or other commitments Reseller makes to End Customers.
VIVOTEK makes warranties regarding the Products directly to End Customers, not to Reseller, via the End User Agreement. VIVOTEK warranties the Hardware on the terms set forth in the End User Agreement, generally for a period of specified in the applicable product datasheet (“Warranty Period”). End Customer may contact Reseller to return either the defective Hardware within the Warranty Period or the non-defective Hardware within the 30-day return period for any reason, pursuant to the terms of the End User Agreement. For detail of standard process of Return Materials Authorization (“RMA”), Please refer to the link: https://www.vivotek.com/support/warranty-rma. For the return of the non-defective Hardware within 30 days period specified in the End User Agreement, Reseller can initiate the return in the Reseller Portal with options of sales return or replacement. For detail of non-defective Hardware return process, please refer to the information in the Reseller Portal link: http://reseller.vivotekcloud.com.
7.1 VIVOTEK will indemnify Reseller Indemnified Parties from and against Liabilities incurred by Reseller Indemnified Parties arising out of the infringement of valid third party intellectual property right by the Products sold to Reseller pursuant to this Agreement, unless the third party claim, action or proceeding arises out of: (i) combination or use of the Products with any product, service or process not provided by VIVOTEK; (ii) VIVOTEK’s compliance with any requirements or specifications provided by Reseller or the End Customer; or (iii) any modification made to a Product by any person or entity other than VIVOTEK. (iv) where Reseller continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (v) where Reseller's use of the Product is incident to an infringement not resulting primarily from the Product or (vi) where Reseller's use is not strictly in accordance with this Agreement and all applicable licenses and documentation.
7.2 Reseller will indemnify VIVOTEK Indemnified Parties from and against Liabilities incurred by any VIVOTEK Indemnified Parties arising out of: (a) any improper use or disposition of the Products by Reseller, or any modification, installation, service or repair of the Product not performed by VIVOTEK or under VIVOTEK’s direction, (b) any written or oral warranty to End Customers with respect to the Products not authorized by VIVOTEK or in the End User Agreement; (c) any violation of applicable law by Reseller; or (d) any fraud, gross negligence, or intentional misconduct by Reseller or any of its representatives.
- Term and Termination
8.1 This Agreement will continue in force for one (1) year after the Effective Date. After the initial one (1) year term, the Agreement will automatically renew for consecutive one (1) year periods, unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.
8.2 A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach including fail to fulfill the responsibility of technical support if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.3 In the event of any termination, VIVOTEK has the option to continue or terminate any order then pending. Reseller may continue to distribute Products in its inventory on the date of termination under the terms and conditions of this Agreement for one hundred and eighty (180) days after such termination (but if termination if for Reseller’s breach, such continued activity will only be with VIVOTEK’s written consent – email is sufficient)
8.4 Termination, expiration, cancellation, or abandonment of this Agreement through any means and for any reason shall not relieve the Parties of any obligation accruing prior thereto and shall be without prejudice to the rights and remedies of either Party with respect to any antecedent breach of any of the provisions of this Agreement.
8.5 Upon termination of this Agreement for any reason: (a) all licenses and other rights granted to Reseller under this Agreement will become null and void (b) Reseller will surrender all copies of Confidential Information, catalogs, literature and other materials of the Product in its possession or control, or at VIVOTEK’s option, destroy such materials; (c) all outstanding obligations or commitments of either party to pay amounts to the other party, if any, will become immediately due and payable; and. Sections 7 through 11 of this Agreement will survive termination.
Reseller agrees that all source code, inventions, algorithms, designs, know-how, ideas, technologies and all business, marketing plans, strategies, and financial information it obtains from VIVOTEK are the confidential property of VIVOTEK (“Confidential Information”). Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in User’s possession at the time of disclosure; (ii) is independently developed by Reseller without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Reseller’s improper action or inaction; Reseller agrees that the Confidential Information may include VIVOTEK’s valuable trade secrets.
Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument as long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
- Disclaimer of Warranties; Limitation of Liability
10.1 Except as expressly set forth in this agreement, VIVOTEK makes no express warranties and expressly disclaims all implied warranties and conditions, including without limitation warranties of non-infringement, merchantability and fitness for a particular purpose, with respect to the products under this agreement, which are otherwise provided “as is”, or that the products will be timely, uninterrupted, or error-free.
10.2 In no event will either party be liable to the other party for any special, incidental, consequential, exemplary, punitive, multiple, lost profits or other indirect damages arising out of this agreement, whether based upon warranty, contract, tort, strict liability or otherwise, even if such party has been advised of the possibility of such damages or losses.
10.3 Except for either party’s respective indemnification obligations under this agreement, for either party’s breach of confidentiality, gross negligence or intentional misconduct, or any liability associated with Reseller’s performance, in no event will either party’s total liability to the other for all damages, losses and causes of action arising out of or relating to this agreement exceed the amount of fees paid or payable by Reseller to VIVOTEK under this agreement in the twelve (12) month period preceding the events that give rise to the applicable claim.
This Agreement and the rights hereunder are not transferable or assignable by Reseller without the prior written consent VIVOTEK. VIVOTEK may freely assign or transfer this Agreement and the rights hereunder.
11.1 All notices under this Agreement shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed fax, or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth on an Order or such other address as such party last provided to the other by written notice.
11.2 The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
11.3 This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. Changes or modifications of this Agreement by VIVOTEK are deemed effective when a Reseller click a box indicating its acceptance or navigating through in the login page of Reseller Portal where a link to this Agreement is provided.
11.4 If any provision of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal the other provisions will remain in force and effect. If any invalid, unenforceable or illegal provisions would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
11.5 This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the UN Convention on the International Sale of Goods). Except for claims for injunctive or equitable relief, which may be at any time brought before any court of competent jurisdiction, all disputes arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by one arbitrator appointed in accordance with such rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. For all purposes of this Section, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees
Reseller Technical Support Responsibilities
- During the lifetime of the Product, Reseller shall establish and maintain the organization and processes to provide first line support of the Products to its End Customers. The Reseller has the sole responsibility for managing and supporting the End Customers, which responsibilities include but are not limited to:
- VIVOTEK FAE will provide Second Line Support to Reseller which includes:
- Where Reseller requires VIVOTEK’s on-site support, Reseller will: (a) provide reasonable assistance at Reseller’s site to VIVOTEK and its personnel, agents, and/or subcontractors to assist in the diagnosis of reported problems including, where possible, providing system data in machine-readable form to enable VIVOTEK to reproduce the problem in a laboratory environment; and (b) arrange physical and/or remote access to Reseller and/or End Customer’s site, as the case may be, for VIVOTEK technical support engineers as necessary to carry out problem diagnosis and resolution activities and for the proper performance of VIVOTEK’s obligations under this Agreement. In respect of (b), Reseller shall arrange for and ensure adequate working space, heat, light, ventilation, a safe work environment, electrical currents and outlets, and such other facilities, as may be reasonably required to perform on-site support services. An End Customer representative shall be present at all times during which on-site support services are provided by VIVOTEK under this Agreement. All parts are included during the applicable warranty period. Travel and living expenses will be invoiced by VIVOTEK to RESELLER separately at cost.
- Reseller will make available, at no charge to VIVOTEK, adequate data communications facilities, remote access, telephone and modem connections, as VIVOTEK may reasonably determine necessary, to allow for the execution of remote diagnostic procedures and system audits. Reseller is responsible for providing VIVOTEK electronic access to the computer systems on which the Software resides in order to support problem diagnosis and resolution activities for the Software. If Reseller is unable to provide or arrange such access and, as a result, VIVOTEK performs additional work, VIVOTEK may bill the Reseller, and Reseller agrees to pay for such additional work on a time, expense, and materials basis at VIVOTEK’s then current rates.
- The ability of VIVOTEK to provide Second Line Support depends on Reseller fulfilling the responsibilities defined in this Annex. Failure of Reseller to fulfill these responsibilities will release VIVOTEK of any obligations and liabilities during the period in which the Reseller’s responsibilities remain unfulfilled. In addition, VIVOTEK reserves the right to downgrade Reseller level of the VORTEX Reseller Program and re-assign End Customer to alternative Reseller to provide service once Reseller fails to fulfill the responsibilities of technical support.