To register as an Indirect Channel Partner with Appalachia Group, your company must accept the terms and conditions of this Indirect Channel Partner Agreement (the "Agreement"). This Agreement applies to Registered Partners that are “Resellers” and "Professional Service Providers", as those terms are defined in Part A below.
This Agreement is entered into by and between Appalachia Group ("Appalachia "), a corporation organized under the laws of the United States having a place of business at 1026 Progress St. Suite B501, Pittsburgh, Pa, 15212 and the company you identified in the applicable Partner Registration Application ("Partner"). If Partner is also a Reseller (as defined below), Partner may also be referred to as "Reseller" in Part B of this Agreement. This Agreement shall become effective as of the date of acceptance by the Partner (the "Effective Date").
This Agreement is divided into 3 Parts, which apply as follows:
Part A, Definitions: Applies to all Registered Partners.
Part B, Reseller Terms and Conditions: Only applies to Registered Partners acting as Resellers.
Part C, General Terms and Conditions: Applies to all Registered Partners.
If Appalachia Group and Partner have signed a Pre-Existing Agreement that is in effect as of the day Partner submits this Agreement, the Pre-Existing Agreement shall take precedence over this Agreement. If no Pre-Existing Agreement exists, this Agreement comprises the complete agreement between the parties hereto concerning the subject matter herein and replaces any prior oral or written communications between the parties, all of which are excluded. In the event that a Registered Partner acting as a Reseller later executes a direct resale agreement (a “Systems Integrator Agreement”) with Appalachia Group after this Agreement is executed, such Systems Integrator Agreement shall take precedence over and supersede this Agreement. There are no other conditions, understandings, agreements, representations, or warranties, expressed or implied, which are not specified herein. This Agreement may only be modified by a written document executed by Appalachia Group and Partner, subject to Section C.13.6 below.
Part A. Definitions.
1. Added Value is the non-Appalachia Group component or portion of the total solution which Partner provides to End Users. Examples of Added Value are pre- and post-sales network design, configuration, trouble-shooting, and support and the sale of complementary products and services that comprise a significant portion of the total revenues received by Partner in respect of the total solution (including the Products) Resold by Partner. There is a presumption that resale to another Authorized Channel and resale exclusively via telesales, catalog sales, and sales over the Internet do not include Added Value if inbound communications from the prospective End User purchaser were exclusively prompted by something other than a face-to-face interaction between Partner's sales representative and such prospective End User. Partner further acknowledges that providing financing options and/or Network Services do not constitute Added Value.
2. Authorized Channel means, as further listed in the Distributor Locator as posted and updated from time to time on http://tools.Appalachiagroup.com/WWChannels/LOCATR/jsp/distributor_locator.jsp, any of the following:
3. a distributor authorized by Appalachia Group to distribute Products and Services within Europe, the Middle East and Africa (“EMEA”) in accordance with the direct purchase agreement between Appalachia Group and such distributor ("Appalachia Group Distribution Partner" or "CDP" or "Distributor");
4. a distributor ("Appalachia Group Authorized Distributor" or "CAD") authorized by Appalachia Group Distribution Partner to distribute the Products and Services within EMEA in accordance with the terms of the Appalachia Group Distribution Partner or Distributor's agreement with Appalachia Group (including, without limitation, Appalachia Group's then current guidelines relating to the appointment of and agreement with any such Appalachia Group Authorized Channel);
5. a reseller authorized to sell, support and install the Products and Services within EMEA in accordance with the terms of the Indirect Channel Partner Agreement and/or the Appalachia Group Distribution Partner or Distributor's agreement with Appalachia Group (including, without limitation, Appalachia Group's then current guidelines relating to the appointment of and agreement with any such Appalachia Group Authorized Channel);
6. a systems integrator authorized by Appalachia Group to sell, support and install Products and Services within EMEA in accordance with the terms of a direct purchase agreement between Appalachia Group and such systems integrator.
7. Appalachia Group Services means any services performed by Appalachia Group for End Users, including without limitation, Product maintenance and technical support.
8. End User is the final purchaser or licensee that: (i) has acquired Product and/or Appalachia Group Services for its own Internal Use and not for Resale, remarketing or distribution, and (ii) is identified as such purchaser or licensee by Reseller pursuant to Section B.3.1 below.
9. End User Obligations means the compliance obligations of End Users when purchasing Appalachia Group Services in addition to End User responsibilities set out in the Services Descriptions. The End User Obligations are posted at www.Appalachiagroup.com/go/servicedescriptions.
10. The European Economic Area or EEA means the then current member states of the European Union and the European Free Trade Area.
11. Internal Use is any business use of a Product for an End User's or Reseller’s own internal use; it is to be distinguished from the definition of Resale provided below. For clarification purposes, “internal use” does not mean the use of a Product or Service by Reseller for the purpose of providing managed services to a third party.
12. Marks means the Appalachia Group Registered Partner logo, and each of the Appalachia Group Certified Partner marks for which Partner qualifies. Such marks and the applicable qualification requirements are included in Appalachia Group's web site, www.Appalachiagroup.com/go/partnerlogo.
13. Network Services means providing the End User with access to the Internet, data and voice transmission, telecommunications services related to such transmission, and the management of network equipment in connection with the foregoing.
14. Non-Genuine Products are any and all products: (i) to which a Mark or other Appalachia Group trademark or service mark has been affixed without Appalachia Group’s consent; (ii) that have not been manufactured by Appalachia Group or Appalachia Group Technologies, Inc. (“CTI”) or by a licensed manufacturer of either Appalachia Group or CTI in accordance with the applicable license; (iii) are produced with the intent to counterfeit or imitate a genuine Appalachia Group Product, or (iv) Products where any form of copyright notice, trademark, logo, confidentiality notice, serial number or other product identifier have been removed, altered, or destroyed.
15. Pre-Existing Agreement means Appalachia Group's System Integrator Agreement, Two-Tier Distributor Agreement or any substantially similar Appalachia Group contract with a different title that authorizes Partner to purchase Products directly from Appalachia Group and Resell them to End Users either directly or indirectly.
16. Products means those Appalachia Group hardware products, Software, and related documentation, which Appalachia Group makes available to an Authorized Channel for Resale (in the case of Software, license grant to use such Software) to companies that have achieved Partner's level of registration, certification, and/or specialization within Appalachia Group's Channel Partner Program described at:
17. Professional Services means any pre or post-sale services performed by Partner for an End User, excluding training on Appalachia Group Products, that provide Added Value for Appalachia Group Products. Such services include without limitation pre- and post-sales network design, configuration, trouble-shooting, and support on Appalachia Group Products.
18. Professional Service Providers are Registered Partners that wish to provide their own pre and/or post- sales Professional Services to End Users.
19. Registered Partner means Professional Service Providers and/or Partners that have registered using the Appalachia Group Partner Registration Tool and accepted the terms and conditions of this Indirect Channel Partner Agreement.
20. Registered Partner Logo means the logo identified as the "Registered Partner Logo" and found at http://www.Appalachiagroup.com/partner/WWChannels/marketing_promotions/tools/logos.
21. Resale includes any of the following sales or dispositions of a Product or Service: (a) transfer of title (or, for Software, a license conferring the right to use the Software, and, for Services, the entitlement to receive such Services) to the End User of such Product or Service or (b) transfer of title (or, for Software, a license conferring the right to use the Software, and, for Services, the entitlement to receive such Services) to a financial intermediary such as a leasing company, even if such leasing company is affiliated with Reseller, where the Product or Service is used by an unaffiliated End User, (c) transfer of title to an Authorized Channel. In the case of Software, Resale includes a license to an Authorized Channel conferring the right: (i) either to license the Software to End Users in accordance with the terms of the agreement between Appalachia Group and the Authorized Channel in question or, as the case may be, between an Authorized Distributor and the Authorized Channel in question; or (ii) to license a second Authorized Channel on terms equivalent to the license between Partner and the first Authorized Channel. In the case of Services, Resale means the transfer to an Authorized Channel of the entitlement to resell such Services. “Resale” as used herein does not include the purchase, license, sublicense, distribution or use of a Product or Appalachia Group Service for the provision, to a particular customer or the general public, of any Network Services. The verb "Resell" means to engage in Resale.
22. Reseller is a Registered Partner that purchases and/or licenses Appalachia Group Services and Products from an Authorized Channel and Resells them.
23. Services means one or more of the Appalachia Group-branded services that Appalachia Group offers for sale on its price lists, and which are described at www.Appalachiagroup.com/go/servicedescriptions/.
24. Services Description means the description of Appalachia Group Services, as of the purchase date of such Appalachia Group Services, to be made available by Appalachia Group to End Users through Reseller, and the terms and conditions under which Appalachia Group provides those Appalachia Group Services. Each available Appalachia Group Service has its own Service Description, which can be found at www.Appalachiagroup.com/go/servicedescriptions/.
25. Software is the machine readable (object code) version of computer programs developed or marketed by Appalachia Group and related documentation, for which Appalachia Group grants licenses for use. No ‘sale’ of any Software is conveyed.
26. Territory means the country identified by Partner in the applicable Partner Registration Application accepted by Appalachia Group. If such country is within the European Economic Area ("EEA"), the Territory shall also include all member states of the EEA.
27. Unauthorized Appalachia Group Product means any genuine Appalachia Group Product or Appalachia Group Service that Reseller purchases or acquires from, either directly or indirectly, any party other than Appalachia Group and/or an Authorized Channel or sells to any party other than as permitted herein. Unauthorized Appalachia Group Products do not include Non-Genuine Products.
Part B. Reseller Terms and Conditions. This Part B only applies if Partner is Reselling Products and/or Appalachia Group Services.
25. Notwithstanding the foregoing, Reseller may Resell Products and Services to federal, state, provincial and local governments within the Territory, subject to this Agreement and the applicable Appalachia Group qualification and eligibility requirements, including Appalachia Group's aforementioned disclaimers of supply representations or government flow-downs.
1. Appalachia Group Authorization and Resale Rules.
2.Appalachia Group Authorization. During the term of this Agreement, Appalachia Group hereby authorizes Reseller to purchase and/or license Appalachia Group Services and Products only from an Authorized Channel, and to resell and/or redistribute such Appalachia Group Services and Products directly to End Users who deploy Products and receive Appalachia Group Services within the Territory, and to Authorized Channels.
3.No Resale Outside the Territory. To the extent Reseller's Territory is outside the EEA, Reseller agrees not to solicit Product or Service orders, engage salespersons, Resell, or establish warehouses or other distribution centers outside of the Territory.
4.Sales to End Users. Reseller agrees that its primary business model is to acquire the Products and Services for Resale with Added Value to End Users, in accordance with this Agreement, without prejudice to its right to Resell Products or Services to other Authorized Channels.
5.Non-Genuine Products or Unauthorized Appalachia Group Products. Reseller acknowledges that the purchase and Resale of Non-Genuine or Unauthorized Appalachia Group Products, or for the Resale of Services associated with any such Non-Genuine Products or Unauthorized Appalachia Group Products, is not within the scope of this Agreement and Reseller is not entitled to the rights granted herein with respect to the resale of such Non-Genuine Products and Unauthorized Appalachia Group Products..
6. Reseller further acknowledges that destroyed, stolen or damaged Products are not entitled to Appalachia Group Services, as more fully set forth in Appalachia Group’s published non-entitlement policies at the
7. http://www.Appalachiagroup.com/en/US/products/prod_warranties_listing.html, which are expressly incorporated into this Agreement.
8. If Appalachia Group determines that Reseller has Resold and/or redistributed Unauthorized Appalachia Group Products purchased from non-Authorized Channels, then Appalachia Group may, at Appalachia Group’s sole discretion: (a) audit Reseller’s purchase and resale records of Appalachia Group Product and relevant records pursuant to Section
9. C.8 and/or (b) invoice Reseller for all reasonable costs incurred by Appalachia Group in its performance of the Audit and/or (c) suspend shipments to Reseller; and/or (d) terminate this Agreement pursuant to Section C.2.2 below.
10. For all Unauthorized Appalachia Group Products, Appalachia Group reserves the right to deny or withhold any Appalachia Group Services on such products, per the non-entitlement policies referenced above
11. Renewal of Appalachia Group Services.
12. Sixty (60) Days Prior to Service Contract Expiration Date: At least sixty (60) days prior to the expiration date of a Appalachia Group Service contract, Appalachia Group, or its authorized agents, may send Appalachia Group Service contract renewal reminder notices to Reseller and/or the identified End User, and Reseller will either:
12.1. initiate the Service contract renewal process with the End User and forward to Appalachia Group the completed service contract renewal with a valid purchase order; or (ii) notify Appalachia Group in writing of Reseller’s intent to not renew the Appalachia Group Services.
13. At the Appalachia Group Service Contract Expiration Date: If, upon the expiration date of the Appalachia Group Service contract, Reseller has not renewed the Appalachia Group Services, Appalachia Group or its authorized agents may contact the End User to arrange for the renewal of such Appalachia Group Services with Appalachia Group directly or via another Appalachia Group-authorized Reseller.
14. Unsupported Products. If Reseller elects not to Resell Appalachia Group Services at the time of Product purchase or if Product becomes unsupported due for whatever reason at some point subsequent to initial deployment, Reseller shall refer End User information, including but not limited to End User name, address and phone number to Appalachia Group within ninety (90) days of Product becoming unsupported and authorizes Appalachia Group to contact the End User for the express purpose of contracting directly for support services for the unsupported Product identified by Reseller.
15. Added Value Requirement. Appalachia Group may from time to time offer special pricing in relation to each Reseller resale of Products or Services, which includes Added Value. There is a presumption that sales to other Authorized Channels are without Added Value. Reseller must be able to demonstrate products to prospective End Users at End User location and make available post-sales support for each Product Reseller Resells.
16. Reseller Obligations.
17. Point of Sale Reports. Reseller shall, in respect of a Resale to an End User, identify the complete name and address of each End User either: (i) in the applicable Product purchase order issued to the Authorized Channel; or (ii) in writing within five (5) days of receiving the applicable request from Appalachia Group or the Authorized Channel. Reseller acknowledges that its provisioning to Appalachia Group of adequate End User information is critical in order for Appalachia Group to provide any applicable warranty and/or other service support, and to verify End User’s entitlement to same. Reseller’s material and unexcused failure to timely provide such End User information may be grounds for Appalachia Group’s termination of this Agreement prior to its expiration. Additionally, Reseller must comply with any other point of sale reporting requirements published by Appalachia Group from time to time, and/or the Authorized Channel(s) from which such Reseller purchases and/or licenses Appalachia Group Services and Products.
18. Agreements with Authorized Channels. Reseller acknowledges that each Authorized Channel may require Reseller to enter into other agreement/s with an Authorized Channel. Partner acknowledges and accepts that each Authorized Channel is an independent party who is not empowered to act on behalf of Appalachia Group or bind or represent Appalachia Group in any manner. Therefore, such agreement/s will be considered executed only between Reseller and each Authorized Channel with which Reseller has entered into such agreements, except to the extent that such agreements specifically identify Appalachia Group as a third party beneficiary of such agreements. For the avoidance of doubt, this Agreement shall not constitute a sale, purchase or distribution agreement with Appalachia Group. Any arrangements between the Reseller and an Authorized Channel with respect to the sale, purchase or distribution of Appalachia Group
19. Products and/or Services will need to be defined in separate, specific agreements between Reseller and each Authorized Channel partner selected by Reseller.
20. End User Requirements. Reseller acknowledges that Resale of Products and Appalachia Group Services to particular End Users with which Appalachia Group has contracted directly (for example, state governments) may require Reseller to satisfy additional requirements and to enter into supplemental agreements with Appalachia Group.
21.Certification Requirements. Each Reseller acknowledges that Appalachia Group may require Reseller to achieve particular requirements, for example particular specializations, before permitting any Authorized Channel to make available particular Products to such Reseller.
22. Government Sales.
23.Schedule Contracts. Reseller shall not without the express prior written consent of Appalachia Group, distribute or sell, either directly or indirectly, any Products whatsoever, to any agencies, departments or entities whatsoever (whether or not within the Territory, in whole or in part, but) which either form part of, or are subject to the procurement requirements of, the federal government or any state or municipal government of any of the United States of America (including, for example, but without limitation, embassies, military bases, etc).
24.Government Terms. Appalachia Group does not accept any government flowdown provisions, including but not limited to, the United States Government Federal Acquisition Regulations ("FARs") and its supplements, Defense FARs, or NASA FARs, whether for Resale or Internal Use. Further, Appalachia Group will not provide any government-required representations or certifications to Reseller or any of Reseller's End Users.
The prices Reseller pays for Appalachia Group Services and Products will be set by the Authorized Channel from which Reseller purchases such Appalachia Group Services and Products. Subject to Appalachia Group's ability to impose maximum resale price limitations, which Appalachia Group reserves the right to impose under this Agreement, nothing in this Agreement will be construed in any sense to limit Reseller's ability to freely determine said prices.
27.Special Pricing. Appalachia Group may provide Reseller's Authorized Channel of choice with special pricing for such Authorized Channel to provide to Reseller.Such special pricing will be limited to Resales made in accordance with the terms of the special pricing offer communicated to Reseller by Authorized Channel or Appalachia Group.. Any such agreement between Appalachia Group and Reseller's Authorized Channel must be in writing, including email notification from Appalachia Group, and must specify a fixed time period during which such special pricing shall be provided. If no time limit is specified in the written agreement, the time period shall be ninety (90) days from the effective date of the written agreement regarding special pricing. If Appalachia Group offers special pricing and Reseller submits a purchase order to the Reseller's Authorized Channel based on such special pricing, Reseller accepts that Appalachia Group may condition such special pricing on Reseller's agreement to Resell the Products to specific End Users and at a price that shall not exceed particular prices determined by Appalachia Group. No such condition will prohibit Reseller from selling at any price below the prices established by Appalachia Group.
28. If Appalachia Group determines that Reseller has Resold Appalachia Group Services or Products purchased with special pricing provided pursuant to Section B.5.2 to any person or entity other than in accordance with the terms applicable to the special pricing communicated to Reseller from time to time, then Appalachia Group may, at Appalachia Group's sole discretion: (a) invoice Reseller for the difference between such additional discount and Reseller's then-current resale discount, and/or (b) audit Reseller's purchases and relevant records pursuant to Section C.8 and invoice Reseller for all reasonable costs incurred by Appalachia Group in its performance of the Audit and/or (c) suspend Reseller's access to price deviations and other Appalachia Group sales and marketing programs; and/or (d) suspend shipments to Reseller; and/or (e) terminate this Agreement pursuant to Section C.2.2 below.
29.Reseller's Distribution Rights.
30.Grant of Rights.During the term of this Agreement, Appalachia Group grants to Reseller a limited, nonexclusive, revocable license to receive from Authorized Channels and Resell to End Users or other Authorized Channels located in the Territory all proprietary rights embodied in or contained in any Product. Reseller may continue such distribution for thirty (30) days following the expiration of this Agreement. Any distribution of Products containing Appalachia Group proprietary rights (including, without limitation, all Software) outside the scope permitted by Section B.1 of this Agreement is prohibited. Products are subject to license terms which impose additional restrictions on the use, copying, or distribution of Software.
31.Rights Reserved by Appalachia Group.Except for the limited license provided to Reseller in the preceding Section B.6.1, Appalachia Group reserves all right, title, and interest in and to each proprietary right embedded in or contained in any Product. Reseller acknowledges that, except as provided in Section B.6.1 above, it shall not copy Software for the benefit of, or distribute any Software to any other person or entity, including without limitation, unauthorized resellers.
32.License Restrictions and Conditions. Reseller will not remove, alter, or destroy any form of copyright notice, trademark, logo, or confidentiality notice provided with any Product. Reseller will not copy or redistribute any item of Software except as specifically permitted in this Section B.6. Reseller agrees that it will not redistribute Software (including Software received as part of a Product) received from any source other than Appalachia Group or an Authorized Channel. Reseller will not translate, reverse compile or disassemble the Software To the extent required by law, at Reseller's request, Appalachia Group shall provide Reseller with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Appalachia Group's applicable fee. Reseller shall observe strict obligations of confidentiality with respect to such information. Reseller will transfer to each End User to which Reseller resells Products all end-user license terms and end-user documentation provided by Appalachia Group and accompanying such Products. A current copy of such end-user license terms is available at the following URL: http://www.AppalachiaGroup.com/legal/end-user-terms, which is hereby acknowledged and accepted by Partner.
Part C. General Terms and Conditions.
1.Partner Benefits.Subject to Partner’s compliance with its obligations under this Agreement, Partner shall be entitled to the following benefits:
2.Appalachiagroup.com Access.Partner shall have partner-level access to the information and tools on the Appalachiagroup.com web site (previously referred to as "CCO"), provided Partner's use of such information is subject to the terms and conditions of Appalachiagroup.com (including, without limitation, Appalachia Group’s software license terms associated with Partner’s downloading of any software from Appalachiagroup.com) and the Confidentiality obligations of this Agreement set forth in Section C.4 below;
3.Partner Locator Listing.Unless Partner tells Appalachia Group in writing that it may not do so, Appalachia Group may include Partner in the Appalachia Group Partner Locator tool within the Appalachiagroup.com web site;
4.Registered Partner Logo. Subject to Section C.3 below, Partner shall have the right to use the Registered Partner Logo to promote the sale of Products, Appalachia Group Services and Professional Services to End Users within the Territory; and
5.Partner E-Learning Access.Partner shall have the right to register on Partner E-Learning Connection, to the extent Appalachia Group makes such service available to Partner within the Territory.
6.Term and Termination.
7.Term.This Agreement will expire upon the later of (a) one (1) year after the date it is accepted by Appalachia Group, unless extended by written agreement of both parties or sooner terminated pursuant to this Agreement, or (b) the date that the Partner’s most recent certification or specialization expires.
8.Termination. Within the first thirty (30) days following the Effective Date of this Agreement, Appalachia Group may terminate this Agreement for convenience with no notice. After the first thirty (30) days following the Effective Date of this Agreement, this Agreement may be terminated for convenience, for any reason or no reason, by either party upon no less than thirty (30) days prior written notice to the other. This Agreement may be terminated by Appalachia Group for cause at any time upon Partner's material breach of the
9. Agreement, on ten (10) days notice, except that this Agreement may be terminated by Appalachia Group immediately upon Partner's breach of any provision of Sections B.1.4, B.2, B.5.2, B.5.3, B.6, C.3, C.4, C.8, C.9 and C.12.
10.Effect of Termination. Upon the termination or expiration of this Agreement, Partner's rights to purchase Appalachia Group Services and Products from any Authorized Channel shall immediately terminate, Appalachia Group shall discontinue all Partner benefits listed in Section C.1 above, and Partner shall immediately cease to represent itself as a Appalachia Group Registered Partner, and (b) cease its use of any of the Marks.
11.Use of the Registered Partner Logo and other Marks. Appalachia Group grants to Partner, during the term of this Agreement, the right to use the Marks, including the Registered Partner Logo, in the Territory, solely to promote the Resale of Appalachia Group Products and Appalachia Group Services to End Users and/or Authorized Channels, provided that such Resales are pursuant to all the terms and conditions of this Agreement. Partner shall not affix any Appalachia Group trademarks or service marks to any products.
11.1. Partner's usage of the Marks must conform to the Guidelines provided at the following URL: www.Appalachiagroup.com/go/partnerlogo .
11.2. Partner's usage of the Marks must also conform to the Trademark Usage Policy set out at the following URL: http://www.Appalachiagroup.com/logo/trademark.pdf.
11.3. Partner shall not acquire, use, promote or Resell Non Genuine Products. Additionally, Partner shall notify Appalachia Group promptly of the existence, or suspected existence, of Non-Genuine Products in possession of third parties, and further agrees that it will, at Appalachia Group's request, assist Appalachia Group to diligently pursue an action against any third party in possession of Non-Genuine Products. Partner will not remove, alter, or destroy any form of copyright notice, trademark, logo, confidentiality notice, serial number or other product identifier provided with any Product.
12. If Partner acquires, uses, promotes or Resells Non-Genuine Products, Appalachia Group may take one or more of the following actions, at Appalachia Group's discretion: (i) require Partner, within ten days of Appalachia Group's request, to recall and destroy all Non-Genuine Products that Partner has sold to End Users and/or Authorized Channels and replace such products with legitimate, equivalent Products, (ii) require Partner, within five days of receiving Appalachia Group's written request, to provide Appalachia Group with all details related to Partner's acquisition of all Non-Genuine Products, including without limitation, its suppliers, shipping details and all buyers to whom Partner resold Non-Genuine Products; (iii) decline the provisioning of any kind of service support for such Non-Genuine Products; and/or (iv) immediately terminate this Agreement pursuant to Section C.2.
13.Confidentiality and Publicity.In the event that Partner receives from Appalachia Group information that is marked as confidential, Partner shall protect that information using the same degree of care as it uses to protect its own sensitive business information, but not less than a reasonable degree of care, and shall not disclose such information to any third party without Appalachia Group's prior written consent. Partner shall only use such information in connection with the promotion and Resale of Products and Services. Upon the termination or expiration of this Agreement, Partner will promptly return any confidential information provided by Appalachia Group to Partner. Except as expressly provided in this Agreement, neither Appalachia Group nor Partner will issue press releases or make other public announcements that identify Partner as an authorized or registered Partner without the express written consent of the other party. In addition, Partner shall at no time (nor cause any third party to) take any action, publish or otherwise communicate anything which is or may be detrimental to the business reputation of Appalachia Group.
14.License to Information.Information made available to Partner through Appalachiagroup.com is made available subject to the terms contained in the Appalachiagroup.com "Important Notices" and any additional terms as Appalachia Group may notify Partner of through Appalachiagroup.com. Information provided through Appalachiagroup.com may be used only in connection with Partner's promotion and Resale of Products and Services.
15.Limited Warranty / Warranty Disclaimer.
16.Warranty.The only warranty Appalachia Group provides with respect to any Product is the written limited warranty statement provided with that Product or, if no warranty statement is provided with a Product, the Limited Warranty Statement available at the following URL:http://www.Appalachiagroup.com/en/US/products/warranty_listing.html.
17. Disclaimer. EXCEPT AS SPECIFIED IN THE LIMITED WARRANTY STATEMENT SPECIFIED IN SECTION C.6.1 ABOVE, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS OR WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF KNOWN TO APPALACHIA GROUP), NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE ARE HEREBY EXCLUDED TO THE GREATEST EXTENT ALLOWED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED TO THE 90-DAY PERIOD PROVIDED IN THE LIMITED WARRANTY STATEMENT SPECIFIED IN SECTION C.6.1 ABOVE. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
18. PARTNER SHALL NOT MAKE ANY WARRANTY COMMITMENT BEYOND THE LIMITED WARRANTY REFERENCED IN SECTION C.6.1 ON APPALACHIA GROUP'S BEHALF. Partner agrees to indemnify Appalachia Group and hold Appalachia Group harmless from any warranty made by Partner beyond the limited warranty referenced in Section C.6.1.
19. Limitation of Liability and Consequential Damages Waiver.
20.The aggregate total liability of Appalachia Group and its suppliers under or in connection with this Agreement, whether in contract, tort (including, without limitation, negligence) or otherwise, shall be limited to the higher of (i) 10.000 USD, or (ii) price paid by Partner to its Appalachia Group Distribution Partner (or Authorized Channel) for Appalachia Group Products and Services in the twelve (12) month period prior to the event or circumstances giving rise to the liability.
In no event shall Appalachia Group or its suppliers be liable for any of the following losses or damage (whether such losses were foreseen, foreseeable, known or otherwise): loss of use, interruption of business, loss of actual or anticipated profits (including, without limitation, loss of profit on contracts), loss of revenue, loss of the use of money, loss of anticipated savings, loss of opportunity, loss of goodwill, loss of reputation, loss of, damage to or corruption of data, or indirect, special, incidental or consequential loss or damage of any kind (including, without limitation, where such loss or damage is also of a type or category expressly specified in this Section C.7.2) regardless of the form of action, whether in contract, tort (including, without limitation, negligence), strict liability or otherwise. Such liabilities will be exclusively governed by the specific agreements between Partner and any Appalachia Group Distribution Partner (or other Authorized Channel) of its choice, under which specific Appalachia Group Products and/or Services are purchased.
22. Notwithstanding C.7.1 or C.7.2, nothing in this Agreement shall limit Appalachia Group's or its suppliers' liability to Partner for (1) personal injury or death caused by its negligence, (2) Appalachia Group's liability in the tort of deceit or for fraud, (3) any breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982 or (4) any liability which cannot be excluded under applicable law.
23. Audit. Partner shall keep full, true, and accurate records and accounts, in accordance with generally- accepted accounting principles, of each Appalachia Group Service and Product purchased and resold, including information regarding compliance with Appalachia Group marketing and sales programs, Software usage and transfer, and exportation. Partner shall make these records available for audit by Appalachia Group upon fifteen (15) days prior written notice, during regular business hours, at those locations where Partner may maintain relevant records. Partner shall bear all costs incurred by Appalachia Group in the performance of any audit which discloses any material breach of this Agreement. Partner additionally acknowledges that from time to time Appalachia Group or its independent auditors may conduct additional specific audits with the purpose of monitoring and ensuring compliance by Partner and its Authorized Channel with Appalachia Group's policies and applicable laws. Said audits may include, without limitation, investigations in order to prevent the acquisition, use, promotion or Resale of Non-Genuine Products and/or Unauthorized Appalachia Group Products. When requested, Partner shall collaborate with Appalachia Group's auditors and provide accurate and truthful information. In all cases, Partner agrees to bear, and/or promptly repay to Appalachia Group, all costs, fees and expenses, incurred by Appalachia Group in the performance of any such audit and/or investigation that discloses any material breach of this Agreement by Partner, including without limitation sub-sections B.1.2, B.5.2, C.3, and C.12. Partner acknowledges and accepts that, in addition to the above audit rights, Appalachia Group may directly contact any End User at anytime in order to verify and/or inform End Users about Partner's compliance or non-compliance with this Agreement, including but not limited Sections B.1, B.5, C.3 and C.11, and Appalachia Group's policies.
24. Export Restrictions and Controls. Partner acknowledges that the Products and technology or direct products thereof ("Products and Technology") it may purchase and resell under this Agreement are subject to export controls under the laws and regulations of the Territory and the United States (U.S.). Partner shall comply with such laws and regulations governing use, export, re-export, and transfer of Appalachia Group Products and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. Appalachia Group and Partner each agree to provide the other such information and assistance as may reasonably be required by the other in connection with securing such authorizations and licenses, and to take timely action to obtain all required support documentation. Partner agrees to maintain full, true, and accurate records of exports, re- exports, and transfers of the Products and Technology, purchased and deployed or distributed, according to
25. U.S. and local laws for at least five (5) years following the date of any such export, re-export, or transfer. Partner acknowledges that detailed information regarding compliance with U.S. use, export, re-export, and transfer laws may be found at the following URL: http://www.Appalachiagroup.com/wwl/export/compliance_provision.html. Partner's obligations under this clause shall survive the expiration or termination of the Agreement.
Obligation to Maintain Contacts.
26.Requirement to Maintain. Beginning September 20, 2004, and at all times thereafter, Partners are required to have at least one valid contact associated to their company at all times in the Appalachia Group Channel Partner Database.
27.Valid Contact Information.For Partner’s contacts to be “valid,” its contact profiles in Appalachia Group’s Channel Partner Database (“CPD”), as maintained via the Partner Self Service (“PSS”) data management tool, must include a First Name, Last Name, Site Address, and Email Address. Appalachia Group will remove the Partner from the CPD if the last valid contact associated with the company is removed from the CPD using the PSS tool. To regain Partner status, a user from the company must complete Partner registration as a new prospective Partner.
28.Reservation of Rights. Appalachia Group reserves the right to remove any Partner without sufficient valid contacts at such time, and using such means, as Appalachia Group may determine in its sole discretion. Whereas Appalachia Group may choose, at its option, to provide certain forms of notification regarding the removal of a Partner’s status as a result of insufficient or invalid contacts in the PSS, Appalachia Group is not under any obligation to provide notification of any kind regarding any such removal.
29.Effect of Partner Removal. If Appalachia Group removes the Partner from the CPD in accordance with the foregoing, or Partner’s status as a Partner is otherwise removed from the CPD, this Agreement shall terminate concurrently.
30. Entitlement. Partner acknowledges that Appalachia Group has the right to verify an End User’s entitlement to receipt of Services, and that End User is entitled to receive support services only on Product for which Appalachia Group has been paid the applicable license and support fees.
31. Compliance with Laws, including the Foreign Corrupt Practices Act (FCPA). In connection with the Resale or distribution of Appalachia Group Products or Services, or otherwise in carrying out its obligations under this Agreement, Partner represents and warrants the following:
32. Partner will comply with all country, federal, state and local laws, ordinances, codes, regulations, rules, policies, licensing requirements, regulations and procedures, including, without limitation, such laws and regulations related to recycling or take-back programs for packaging, Resale or use of Products, the use of Products under telecommunications laws/regulations, or anti-bribery laws, including the U.S. Foreign Corrupt Practices Act (collectively, the “Applicable Laws”);
33. Partner shall not take any action or permit or authorize any action which may render Appalachia Group liable for a violation of the U.S. Foreign Corrupt Practices Act (FCPA), and will not violate or cause Appalachia Group to violate, the FCPA in connection with the sale, performance, support or distribution of Appalachia Group Products or Services;
34. Partner will not use money or other consideration paid by Appalachia Group for any unlawful purposes, including any purposes violating the FCPA or other applicable ant-bribery laws, such as direct or indirect payments, for the purpose of assisting Appalachia Group in obtaining or retaining business, to any of the following:
35. government officials (including any person holding an executive, legislative, judicial or administrative office, whether elected or appointed, or of any public international organization, such as the United Nations or World Bank, or any person acting in any official capacity for or on behalf of such government, public enterprise or state-owned business); political parties or party officials; candidates for political office; or any person, while knowing that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to any of the above-identified persons or organizations.
36. Upon request by Appalachia Group, Partner will require that its own subcontractors, consultants, agents or representatives execute a written FCPA Compliance Statement containing substantially similar representations as are contained in this section.
37. Partner’s record keeping obligations, set forth in the “Audit” provision herein, shall equally apply to Partner’s representations and warranties in this section, and Appalachia Group’s audit rights, as set forth herein, apply to Partner’s compliance with the FCPA and other anti-corruption laws.
38. Notwithstanding any other provision in this Agreement, Appalachia Group may terminate this Agreement immediately upon written notice if Partner breaches any of the representations and warranties set forth in this section. Partner will indemnify and hold harmless Appalachia Group for any violation by Partner of any Applicable Laws.
39. Further information about the FCPA can be found at http://www.usdoj.gov/criminal/fraud/fcpa/dojdocb.html. Appalachia Group strives to maintain the highest standards of business integrity; any cause for concern regarding any business practice should be reported to Appalachia Group at ethics@AppalachiaGroup.com, or by calling Appalachia Group’s Helpline toll free number in North America 1- 877-571-1700 or the following worldwide number (reverse calling charges to Appalachia Group), 001-770- 776-5611.
41. Choice of Law. The validity, interpretation, and enforcement of this Agreement shall be governed by the laws of England, without giving effect to principles of conflicts of laws. Appalachia Group and Partner accept the exclusive jurisdiction of the English courts, provided that either party may bring an action before any court of appropriate jurisdiction for interim injunctive relief for protection of intellectual property rights and confidential information. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
42. Assignment. Neither this Agreement, nor any rights under this Agreement, may be assigned by Partner without the express prior written consent of Appalachia Group. Any attempted assignment in violation of the preceding sentence shall immediately terminate the Agreement and be without legal effect.
43. Relationship of the Parties. No Partnership. Each party to this Agreement is an independent contractor. This Agreement does not create any agency, partnership, joint venture, employment or franchise relationship. Furthermore, no labor relationship between Appalachia Group and Partner employees is created hereby. Partner shall indemnify and hold Appalachia Group harmless of any claim or judicial action whatsoever from any Partner employee. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. Notwithstanding the use of the term "Partner" in this Agreement, the parties do not intend to create any legal relationship of partnership between them, and neither will assert to any third party or otherwise claim that such a legal relationship exists between them.
44.Survival.Part A and Sections B.3, B.4, B.6.2, B.6.3, C.2, C.3.3 and C.4 through C.13 shall survive the expiration or termination of this Agreement.
45.Notices.All notices required to be provided under this Agreement shall be provided (a) by Partner, to contract-notice@AppalachiaGroup.com, and (b) by Appalachia Group, to the electronic mail address provided by Partner with its Partner Registration application. Notices shall be deemed received one business day after being sent by e-mail.
46. Enforceability.Partner agrees that the electronic mail address it has provided corresponds to a person that has the capacity and authority to execute this Agreement and any amendments on behalf of Partner. Partner and Appalachia Group each waive any defense to the validity or enforceability of this Agreement arising from the electronic submission and electronic acceptance of this Agreement by Partner. If Partner needs a physical document evidencing the Agreement, Partner may (i) print the accepted Agreement or (ii) request from Appalachia Group a signed version, in which case Reseller shall print and return to Appalachia Group two (2) printed, executed originals of the Agreement. Such printed originals shall not be deemed accepted by Appalachia Group unless Appalachia Group returns one (1) counter-signed original to Partner.
47. Misrepresentations. Subject to the provisions of this sub-section C.13.7, Partner acknowledges and agrees that in entering into the Agreement, it does not rely on, and shall have no remedy in respect of, and Appalachia Group shall have no liability in respect of any statement (including any untrue statement) whether written or oral, of any person (whether a party to this Agreement or not) other than as expressly set out or referred to in this Agreement ("Misrepresentation"). Nothing in this Agreement shall operate to exclude or limit Appalachia Group's liability in the tort of deceit or for fraud. Appalachia Group's liability for any Misrepresentation as to a fundamental matter, including as to a matter fundamental to its ability to perform any of its obligations under this Agreement shall not be excluded, but shall be subject to the limit set out in Section C.7.
48. Third Parties. The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
49. URLs. Partner hereby confirms that it has the ability to access, has accessed, has read and agrees to, the information made available by Appalachia Group at all of the world wide web sites/URLs/addresses/pages referred to anywhere throughout this Agreement. Partner acknowledges that Appalachia Group may modify any URL address or terminate the availability of any information at any address without notice to Reseller.
50.Other Remedies. All Appalachia Group remedies specified in this Agreement shall be in addition to, and shall in no way limit, any other rights and remedies that might be available to Appalachia Group, all of which Appalachia Group hereby expressly reserves.
51.Severability.In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any regulatory body or court of competent jurisdiction, such term(s) shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect. Notwithstanding the foregoing, if this paragraph becomes applicable and, as a result, the value of this Agreement is materially impaired for either party, as determined by such party in its sole discretion, then the affected party may terminate this Agreement by written notice to the other.