This Partner Resale Agreement, including all applicable terms referenced herein, (collectively, this “Agreement”) applies to the purchase from Uvation (or from an authorized Uvation distributor) for the resale of Uvation Products and Services to End Users in North America, either the United States (50 states and Washington, D.C.) or Canada, whichever is the country where Partner places the Order (see definition of “Territory” below). This Agreement is not applicable to the purchases of Uvation Products and Services for Partner’s own internal end use (in such case Uvation’s Commercial Terms of Sale at www.uvation.com/cts shall apply).
“Uvation” means Uvation Inc., with offices at [INSERT ADDRESS].
For Partner Program benefits, Partner acknowledges to have read and accepted the terms and conditions of the Uvation Partner Program (the “Partner Program”) which supplement this Agreement and are available via the Uvation Partner Portal (the “Partner Portal”) and which include the Uvation Partner Code of Conduct.
This Agreement consists of the main body with the terms and conditions applicable to all Offerings that are in scope, as may be supplemented by additional schedules, containing terms applicable to all or only specific Offerings and shall form an integral part of this Agreement (“Schedule(s)”). This Agreement does not establish a commitment of Partner to procure, nor an obligation of Uvation or its Affiliates to supply, any Offerings unless the parties have agreed on an Order.
Each section of the Agreement is intended to apply to all resale transactions in the Territory, unless regional exceptions are specifically addressed within that section, a footnote, or the applicable Schedule(s).
By placing Orders, Partner accepts and is bound to the terms and conditions of this Agreement.
Contents
1. Subject Matter and Parts of the Agreement
1.1 Scope
Subject to compliance with local laws and the terms and conditions of this Agreement:
1.2 Restrictions
Notwithstanding section 1.1 “Scope” above and subject to prior written Uvation approval and compliance with local laws, Partner shall not directly or knowingly indirectly market or resell Products or Services:
Partner shall not stock Products for future sales unless agreed otherwise by Uvation for a specific order. Partner shall not refurbish Products for resale or marketing. Furthermore, Partner shall not market or sell refurbished or previously owned or used Products, including used Products that Partner has obtained from any third party.
1.3 Order of Precedence
This Agreement, including the documents referenced herein, shall apply to the exclusion of all other general terms and conditions incorporated in or referred to in any documentation submitted by Partner to Uvation. Preprinted terms and conditions contained on any Partner Order shall not apply.
Subject to the foregoing, in case of any conflict or inconsistency the following order of precedence shall apply:
2. Definitions
2.1 “Affiliate”
“Affiliate” means a legal entity that is controlled by or is under common “control” of a related entity. Transactions under this Agreement may also involve affiliated companies of the Parties. “Control” means more than 50% of the voting power or ownership interests. With respect to Uvation, Affiliate means Uvation Inc. or Uvation Inc.’s direct or indirect subsidiaries.
2.2 “Delivery”
“Delivery” for Product occurs:
Delivery for Software occurs:
2.3 “Dispute”
“Dispute” means any dispute, claim, or controversy (whether in contract, tort, or otherwise) related to or arising out of the Agreement or any Quote or Order.
2.4 “Documentation”
“Documentation” means Uvation’s then current, generally available user manuals and online help for Products.
2.5 “End User”
“End User” means any entity, within the Territory, purchasing Products, Services, or both from Partner for its own internal end-use and not for resale, distribution, remarketing, sub-licensing, to others.
2.6 “End User Agreement”
“End User Agreement” means the agreement executed with the End User which will include terms in accordance with the applicable sections (all of which may be collectively referred to herein as “End User Agreement”), including but not limited to: Software, Services Flow-down Terms, Prevention and Mitigation, Trade Compliance, and System Data.
2.7 “Excluded Data”
“Excluded Data” means:
2.8 Products and Services
“Products” are either:
“Services” are:
“Third Party Products” means hardware, software, products, or services that are not “Uvation” branded. Third Party software is licensed by a third party under its own terms of use. Products exclude Services and Third Party Products. Products, Services, and Third Party Products (if applicable) may be collectively referred to herein as “Offerings.”
2.9 “Territory”
“Territory” means the geographical area, country, or countries, within which Partner may resell the Products and distribute the Services authorized by Uvation in accordance with this Agreement and applicable local law.
2.10 “Unauthorized Parts”
“Unauthorized Parts” means any third party parts which were not:
3. Quoting and Ordering
3.1 Process
Partner may request a quote from Uvation or its Affiliate (depending on the Offerings purchased), either in the form of a written quotation or online via www.uvation.com or any other online process (“Quote”). Quoted prices are effective until the expiration date of Uvation’s quote. Uvation reserves the right to modify pricing (including quotes) due to shortage of materials or products, increase in costs, pricing or other error, currency and exchange rate fluctuations, or other factors beyond Uvation’s control.
Partner may order the Offerings quoted by:
Partner shall place Orders for Products and Services in the country where the End User is located. Orders are subject to credit approval and are subject to Uvation’s acceptance. Acceptance of one Order is independent from acceptance of any other Order. Any variation to an accepted Order must be agreed in writing between Partner and Uvation.
3.2 Product and Service-Specific Terms
Scope and details of Product and Service-specific terms are specified in the applicable standard service description that is attached to or referred in a Schedule or Quote or is made available through the then-current Uvation website for product or service-specific terms, currently located at www.uvation.com/offeringspecificterms (“Offering Specific Terms”). Such standard descriptions are from time to time referred to as “Service Description(s)” or “Service Briefs.” The version of the applicable document that is effective as of the date of the applicable Quote shall be deemed incorporated into the Order.
Scope and details of customized Professional Services not covered by such a standard description shall be documented in a mutually agreed Statement of Work (“Statement of Work” or “SOW”). When selling or providing any such offerings, Partner shall inform and require the End User to agree to the applicable Offering Specific Terms, and Partner will provide written evidence of doing so upon receipt of request from Uvation.
3.3 Revision of Offerings
Uvation may revise its Offerings, including after Partner places an Order, but prior to Uvation’s shipment or performance. As a result, Offerings which Partner receives may differ from those ordered, provided they still substantially meet or exceed the specifications as per the documentation of the originally ordered Offerings.
3.4 Cancellation
Partner may not cancel Orders except with Uvation’s written approval. Orders for Third Party Products are subject to availability and are cancellable only by Uvation. If Partner purchases a multi-year software license and related support or maintenance, and Partner and Uvation agree to make installment payments of the purchase price over the term of the license, then Partner shall make all such installment payments in full, and the purchase is non-cancellable over the term of the license.
Uvation is not responsible for pricing, typographical, or other errors in any offer or quote, and reserves the right to cancel any Order arising from such errors. In addition, Uvation may cancel Orders due to shortage of products or materials, increases in the costs of manufacturing, or any event beyond Uvation’s control.
4. Product Delivery
4.1 Shipment
Unless otherwise agreed, Uvation may ship parts of an Order separately, choose the common carrier, and shall arrange for shipment of the ordered Products to the ship-to address indicated in the Order, through a common carrier designated by Uvation.
Partner is responsible for inspecting the package(s) upon delivery and must note any visible damage on the proof of delivery (POD) or other delivery receipt Partner may be requested to sign. Uvation will not be responsible for any visible shipping damages not noted on the delivery receipt.
Partner must notify Uvation within 21 days of the invoice date if any part of the Order is missing, wrong, or damaged. Uvation is not liable for any damage or loss to the Product when non-Uvation-provided shipping method is used for shipping from Uvation to Partner or End User. Shipping and Delivery dates are indicative. Software may be provided by delivery of physical media or through electronic means.
4.2 Transfer of Risk of Loss and Title
Unless otherwise indicated in a respective attached Schedule, risk of loss and title for Products and licensed Software transfers to Partner or its representative upon Delivery. Title to and ownership of Software does not pass to Partner or End User. Software is licensed, not sold.
4.3 Acceptance
All Products and Third Party Products will be deemed to be accepted upon Delivery. Notwithstanding such acceptance, Partner retains all rights and remedies under the warranty terms stated below.
4.4 No Returns
Neither Partner nor any of Partner’s End Users may return Products to Uvation, except as expressly permitted under this Agreement or otherwise agreed in writing by Uvation.
4.5 Security Interest
Where permitted by local law, Partner will hold Hardware on a fiduciary basis as Uvation’s bailee, until full payment is received, including any late payment fees and costs of collection. Partner agrees Uvation may file any financing statements or related filings for protecting this security interest as Uvation reasonably deems necessary or appropriate.
5. Software
5.1 License Grant for Resale Purposes
Subject to Partner’s compliance with the terms of the Agreement, Uvation grants to Partner a non-exclusive, non-transferable right to resell and distribute Software procured from Uvation for resale purposes to the respective End User, for End User’s internal business operations only. The quantity and definition of Software licensing units provided for resale, and any other usage conditions and restrictions, are agreed upon between Uvation and Partner for each Order (usually provided in Uvation’s Quote), and Partner shall ensure that these are accurately reflected and detailed in the End User Agreement.
5.2 EULA-based Licensing
End User’s rights to use the Software delivered by Uvation are governed by the terms of the applicable end user license agreement. Unless different terms have been agreed between the Parties, the terms posted on www.uvation.com/eula (the “EULA”) shall apply. Uvation will provide a hard copy of the applicable terms upon request.
Partner will ensure that each End User is notified that Software is subject to and governed by the EULA, and Partner will ensure the End User agrees and accepts such terms. Partner may not modify the EULA. Unless expressly otherwise agreed, microcode, firmware, or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions is licensed for use solely on such Equipment.
5.3 Third Party Software
Without limiting the generality of the foregoing EULA-based Licensing section above, for any Third Party Software, Partner shall comply with the applicable license terms and requirements of the applicable third party licensor. Partner will ensure all End Users are notified that the Third Party Software is subject to and governed by the applicable third party licensor’s own license terms, and Partner will ensure the End User agrees and accepts such terms.
5.4 Activation Codes
If Partner receives activation or registration codes or license keys (“Activation Codes”), Partner shall distribute the Activation Codes as directed by Uvation and to activate:
Partner shall not reuse Activation Codes for multiple End Users or for multiple Software copies for the same End User. Partner must not use Activation Codes from any source other than Uvation or an authorized representative.
5.5 Installation of Software by Partner on Behalf of End User
Before Partner downloads, installs, or otherwise uses Software on behalf of an End User, Partner shall:
5.6 License Compliance Management
Partner will immediately notify Uvation if it becomes aware of any End User’s violation of the End User license terms or Partner’s license terms agreed with the End Users as they relate to the Software provided hereunder, and Partner shall refrain from waiving any rights or remedies against the End User in that regard.
Partner will ensure that Uvation has the ability to review and audit End User’s usage of the Software for compliance with the applicable terms and shall collaborate with Uvation in good faith on any audits conducted in relation to End User’s usage. Uvation may, without waiving any other rights or remedies and without liability to Partner or End User, suspend or terminate the provision of any Software license to End User in response to End User’s violation or where Uvation has valid reasons to believe that a violation has occurred.
5.7 Limitations
Except for any Software license expressly granted to Partner in this Agreement, all rights in and to the Software provided for resale are retained by Uvation or the respective third party, and no additional rights are granted, and none shall be implied. All Software licenses are for use of object code only unless expressly provided otherwise in the applicable End User license terms.
Unless expressly agreed otherwise, microcode, firmware, or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions is licensed for use solely on such Equipment item. Without Uvation’s prior written consent and except as otherwise permitted by mandatory law, Partner shall not, and Partner shall not permit End User or any third party to do any of the following:
6. Services
6.1 Support Services
A. Availability of Support Services is governed by Uvation’s applicable “End-of-Service-Life” and release support policies available at www.uvation.com/support or as otherwise communicated by Uvation (“Support Policies”). Unless otherwise agreed, Support Services will terminate at the earlier of:
B. Support Services do not cover:
C. Tools and Parts Storage.
Uvation may store tools and spare parts for diagnostic or remedial activities in connection with Services at Partner’s or End User’s site or on their systems for use by Uvation’s authorized personnel.
7. Invoicing; Payment Terms and Taxes
7.1 Invoicing
Uvation shall invoice in the currency agreed in the Order. If Uvation is obligated by applicable law to collect and remit any taxes or fees, then Uvation will add the appropriate amount to the invoices as a separate line item in accordance with statutory requirements. Uvation may invoice parts of an Order separately or may invoice purchases of Products and Services in one (1) invoice. Additional charges will apply if Partner requests customized invoicing, consolidated invoicing, or other special billing arrangement or statements.
All invoice terms will be deemed accurate unless Partner advises Uvation in writing of a material error within ten (10) days from the date of such invoice. If Partner advises Uvation of a material error, (i) any amounts corrected or modified by Uvation in writing must be paid within fourteen (14) days of the correction, and (ii) Partner shall pay all other undisputed amounts by the invoice due date.
7.2 Payment Terms
Partner shall pay Uvation’s invoices in full per the account, currency, payment, time period, and credit conditions stated in Uvation’s invoice. Where an invoice does not specify a payment term, payment is due within 30 days after the date of the invoice, subject to continuing credit approval by Uvation (such approval may be revoked by Uvation without notice).
Where permitted by local law, payments occurring after the invoice due date may generate late payment fees and interest. If not restricted by local statutory provision, Uvation shall, without waiving any other rights or remedies, be entitled to charge interest, recovery costs, expenses, costs of collection, or administrative fees (“Fees”) on overdue amounts. Late payment fees and/or interest will be recalculated every 30 days thereafter based on the current outstanding balance at the lesser of 1.5% per month (18% per annum) or the maximum rate permitted by law.
7.3 Taxes
Unless expressly stated otherwise in a Quote, the charges due hereunder are exclusive of, and Partner shall pay or reimburse Uvation for, all value added (VAT) sales, use, property, excise, withholding, and other similar taxes, governmental fees, customs, import duties, and/or other applicable levies, resulting from Partner’s purchase, except for taxes based on Uvation’s net income, gross revenue, or employment obligations. If Partner qualifies for a tax exemption, Partner must provide Uvation with a valid certificate of exemption or other appropriate proof of exemption within 60 days of remittance to the applicable tax authority.
8. Equipment Warranty, Exclusions, and Disclaimers
8.1 Equipment Warranty
Uvation warrants that Equipment, under normal usage and with regular recommended service, will be free from material defects in material and workmanship, and that Equipment will perform substantially in accordance with the corresponding standard documentation issued by Uvation for the applicable Equipment. Unless provided otherwise in a Schedule, additional terms governing the limited warranties for Products and Services are found at www.uvation.com or in the applicable documentation for the specific Equipment.
8.2 Support Services/Tag Transfer
As permitted by Uvation, Partner may transfer the asset/service identification number to the End User that is associated with the Equipment purchased for resale. If Partner transfers the asset/service identification number, Partner must comply with the process found at www.uvation.com/support, which process Uvation may change from time to time.
Partner’s failure to properly transfer the asset/service identification number of the Equipment will result in the End User’s inability to receive Support Services from Uvation for such Equipment, and Uvation will not be liable to Partner or to any End User for any such failure.
8.3 Equipment Warranty Exclusions
Uvation Product warranties do not cover problems that arise from:
8.4 Warranty Disclaimer
Other than the warranties set forth in this Agreement, its Schedules, and to the maximum extent permitted by applicable law, Uvation and its Affiliates, and their providers:
9. Indemnity
9.1 Uvation Intellectual Property Indemnity
Uvation will:
In addition, should any Product or Support Service become, or in Uvation’s opinion be likely to become, the subject of such a Claim, Uvation may, at its expense and in its discretion:
9.2 Exclusions from Indemnity
Uvation has no obligation under section “Uvation Intellectual Property Indemnity” above:
9.3 Partner Indemnity
Partner will defend and indemnify Uvation and its Affiliates against any third party claim resulting or arising from:
9.4 Indemnification Process
A party’s duty to defend and indemnify under this section is contingent upon:
10. Limitation of Liability
10.1 Limitations on Direct Damages
UVATION’S TOTAL LIABILITY FOR DISPUTES IS LIMITED TO THE AGGREGATE DOLLAR AMOUNT UVATION RECEIVED UNDER THIS AGREEMENT DURING THE TWELVE MONTHS BEFORE THE DATE THAT THE DISPUTE AROSE FOR THE SPECIFIC PRODUCTS, SERVICES, OR BOTH THAT ARE THE SUBJECT OF THE DISPUTE, BUT EXCLUDING AMOUNTS RECEIVED AS REIMBURSEMENT OF EXPENSES OR PAYMENT OF TAXES.
10.2 No Indirect Damages
EXCEPT FOR PARTNER’S PAYMENT OBLIGATIONS AND VIOLATION OF UVATION’S OR ITS AFFILIATES’ INTELLECTUAL PROPERTY RIGHTS, NEITHER UVATION NOR PARTNER HAS LIABILITY TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR LOST PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE, OR PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
10.3 Regular Back-ups
Partner and its End Users are solely responsible for their data. Partner shall, and cause its End Users to, back up their data before Uvation performs any remedial, upgrade, or other work on production systems. If applicable law prohibits exclusion of liability for lost data, then Uvation will only be liable for the cost of the typical effort to recover the lost data from Partner’s or End Users’ last available back-up.
11. Confidentiality
11.1 Definition
“Confidential Information” means any information, pricing, technical data, or know-how furnished in connection with Quotes, Orders, and Offerings that are governed by these Terms of Sale, whether in written, oral, electronic, website-based, or other form, by a Partner or a Partner Affiliate to Uvation or a Uvation Affiliate or vice versa and that:
Confidential Information does not include information that:
11.2 Protection of Confidential Information
Each Party will ensure that, where it or one of its Affiliates is the receiver of Confidential Information hereunder, the receiver will:
11.3 Permitted Disclosures
Notwithstanding the foregoing, either Party and its Affiliates may disclose Confidential Information:
12. Data Privacy
12.1 Compliance
Parties will comply with all data protection laws and regulations applicable to the processing of personal data under these Terms of Sale. In this section “personal data”, “controller”, “processor” and “processing” will have the meaning set out in the applicable data protection legislation.
12.2 Processing Terms
To the extent that Uvation processes any personal data on behalf of Partner in the performance of its obligations under these Terms of Sale, Uvation will only do so as required to fulfill its legal obligations pursuant to these Terms of Sale and either:
12.3 Partner Responsibilities
13. Trade Compliance
13.1 Export Control Compliance
Partner is subject to and responsible for compliance with the export control and economic sanctions laws of the United States, the European Union, and other applicable jurisdictions (collectively, “Applicable Trade Laws”). Partner agrees, without limitation, to abide by, and to assume sole responsibility for obtaining, and complying with the requirements of, all required export, re-export, in-country transfer, and import licenses, registrations, and other government authorizations relating to the Products and Services provided under this Agreement.
13.2 Restrictions
Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except in compliance with such laws, including, without limitation:
13.3 Partner Representations
Partner represents and warrants that it is not:
13.4 Compliance Controls
14. Term and Termination
14.1 Term
This Agreement shall continue until terminated in accordance with its terms.
14.2 Termination for Convenience
Either Party may terminate this Agreement at any time upon sixty (60) days’ written notice to the other Party.
14.3 Termination for Cause
Uvation may terminate this Agreement, its Schedules, Service Agreements, or licenses for Software immediately upon written notice if:
14.4 Effect of Termination
15. General Provisions
15.1 Governing Law
This Agreement and any Disputes shall be governed by the laws of the State of Texas, excluding conflicts of law rules. The parties submit to the exclusive jurisdiction of the state and federal courts in Texas.
15.2 Assignment
Neither Party may assign this Agreement without the other Party’s prior written consent, except Uvation may assign to its Affiliates.
15.3 Force Majeure
Neither Party will be liable for delays or failures due to circumstances beyond reasonable control, except for payment obligations.
15.4 Independent Contractors
The Parties are independent contractors. No partnership or joint venture is created.
15.5 Notices
All notices must be in writing and sent to the addresses specified in the Agreement.
15.6 Entire Agreement
This Agreement constitutes the complete agreement between the Parties and supersedes all prior agreements regarding its subject matter.
15.7 Severability
If any provision is held invalid, the remaining provisions remain in effect.
15.8 No Waiver
Failure to enforce any provision will not constitute a waiver.
15.9 Survival
Provisions relating to payment, confidentiality, liability, data privacy, and any other provisions that by their nature should survive, will survive termination.
Last Updated: October 26, 2024
