Channel Partner Program Agreement
FX Labs, Inc., [APISec.ai] offers Channel Partner the opportunity to use the Channel Partner Portal and participate in the Channel Partner program only ON THE CONDITION THAT Channel Partner agrees to BE BOUND BY the terms and conditions in the FX Labs, Inc., [APISec.ai] Channel Partner Program Agreement (“Agreement”). By PARTICIPATING IN THE CHANNEL PARTNER PROGRAM, Channel Partner acknowledges that it has read, understands and agrees to be bound by the Agreement.
“Channel Partner” means the individual or company that FX Labs, Inc., [APISec.ai] acknowledges has a limited, non-exclusive right to m`arket and resell Products, obtained from FX Labs [APISec.ai] or an authorized FX Labs, Inc., [APISec.ai] distributor, in the Territory, directly to End Users.
“Database Updates” means changes to the content of the Databases.
“Documentation” means the Product installation instructions, user manuals, setup posters, release notes, and operating instructions prepared by FX Labs Inc., [APISec.ai], in any form or medium, as may be updated from time to time by FX Labs Inc., [APISec.ai] and made generally available to End User.
“End User” means the ultimate user of the Products.
“End User Agreement” means the agreement between FX Labs, Inc., [APISec.ai] and End User (e.g. FX Labs, Inc., [APISec.ai] Subscription Agreement) governing End User’s use of the Products in accordance with the terms therein.
“FX Labs, Inc., [APISec.ai]” means FX Labs, Inc., a Delaware Corporation with a principal place of business at 845 Market St. – Suite 450 San Francisco, CA 94103, USA.
“Order” means a purchase commitment mutually agreed upon between (1) FX Labs, Inc., [APISec.ai] and Channel Partner, or (2) a FX Labs, Inc., [APISec.ai] authorized distributor and Channel Partner.
“Products” means Hardware, Subscription to the Software, Subscription to SaaS, and the right to receive Database Updates, Software Upgrades, together with applicable documentation and media, and packaged service offerings, made available by FX Labs, Inc., [APISec.ai] and purchased pursuant to an Order.
“Software” means proprietary software applications, in object or binary code only and not source code, made available by FX Labs, Inc., [APISec.ai] and purchased pursuant to an Order.
“Software Upgrades” means certain modifications or revisions to the Software.
“Subscription” means a non-exclusive, non-transferable right to use the Products in accordance with the End User Agreement and the Order.
“Subscription Fees” means the agreed upon fees in an Order.
“Subscription Key” means an encrypted access code that allows End Users to access the Databases and use the Software.
“Subscription Term” means the agreed upon time period in an Order.
“Territory” means: (i) with respect to Channel Partners of FX Labs, Inc., [APISec.ai] LLC, the United States, Canada, Southeast Asia, Africa and the Middle East are subject to the export restrictions in this Agreement.
2. Channel Partner Obligations
3. Non Compete
Channel Partner agrees that during the term of this agreement, will not enter into any contract with any organisation or any other third party where the subject matter of such contract is related to the business of FX Labs, Inc., [APISec.ai] and/or the transactions contemplated hereunder, including the services, products and solutions offered by FX Labs, Inc., [APISec.ai], without the prior written consent of FX Labs, Inc., [APISec.ai] Channel Partner acknowledges that the nature of transactions contemplated under this Agreement involves absolute confidentiality and agrees to engage with FX Labs, Inc., [APISec.ai] only for the nature of transactions or arrangement entered under this agreement.
4.Marketing of the products
Channel partner shall use its best efforts to promote the sale of the product and/or services throughout the territory ,to satisfy market demand for such products and/ or services. channel partner shall take reasonable measures to safeguard the interest of FX Labs, Inc., [APISec.ai] as set forth in this agreement. subject to the review and approval by FX Labs, Inc., [APISec.ai], channel partner hereby agrees to display the appropriate FX Labs, Inc., [APISec.ai] logo on its websites for the purpose of marketing.
In connection with the promotion and Marketing of the products and/or services, the channel partner shall at its own cost:
(i) Maintain an active and suitably trained sales force and ensure that such salesforce is continually trained with current technological developments relevant to the products or services.(ii) provide to FX Labs, Inc., [APISec.ai], for prior formal written approval, draft copies of all sales or marketing materials, including press releases press invitations, catalogues, brochures, pamphlets, or manuals, used by the Channel Partner which otherwise include or relate to the Products or Services.(iii) make clear, in all dealings with customers and prospective customers, that it is acting as an independent provider of the Products or Services, and is not acting as an agent or representative of FX Labs, Inc., [APISec.ai](iv) comply with any and all federal, state, and local statutes, rules, regulations, and ordinances relating to the advertisement, storage, delivery, sale, export, and installation of the Products or Services.(v) not promote or sell the Products from any medium whose content, domain name, or other affiliation is likely to degrade, as determined by FX Labs, Inc., [APISec.ai]in its sole discretion, the reputation or goodwill of FX Labs, Inc., [APISec.ai]and its Products or Services; (vi) seek prior written approval from FX Labs, Inc., [APISec.ai]in relation to any proposed uses of copyrighted images or content owned or held by FX Labs, Inc., [APISec.ai]; and (vii) not use any images to promote the Products or Services, other than those images supplied or otherwise approved by FX Labs, Inc., [APISec.ai]
5. Invoices, Payments, and Delivery
If Channel Partner obtains approval to obtain Products directly from FX Labs, Inc., [APISec.ai] , Channel Partner: (a) will provide FX Labs, Inc., [APISec.ai] with a purchase order with (i) the End User’s full legal name, address, and contact information, (ii) the Product part number for the Product ordered and the licensed capacity (e.g. number of Seats, Users, Devices, or appliances), and (iii) the Product price per unit (e.g. Seat, User, Device, or appliance); (b) accepts title to the Hardware and acknowledges risk of loss of or damage to the Products passes to Channel Partner upon (i) delivery to a common carrier at FX Labs, Inc., [APISec.ai] ’s point of shipment of (A) the media containing the Software or (B) the Hardware, or (ii) FX Labs, Inc., [APISec.ai] electronically sending the Subscription Key for the Product to the Channel Partner or End User; and (c) will pay FX Labs, Inc., [APISec.ai] the fees for each Product and Subscription provided under this Agreement. All Product purchase orders placed with FX Labs, Inc., [APISec.ai] by Channel Partner are subject to acceptance in writing by FX Labs, Inc., [APISec.ai], at FX Labs, Inc., [APISec.ai] ’s sole discretion. Invoices will be sent to Channel Partner at its current address on file with FX Labs, Inc., [APISec.ai] , or as otherwise directed by Channel Partner in writing. From time-to-time FX Labs, Inc., [APISec.ai] may obtain credit reports on Channel Partner to ascertain its credit worthiness. In the event FX Labs, Inc., [APISec.ai] determines, in its sole discretion, Channel Partner’s credit is not worthy of the payment terms allowed for hereunder, FX Labs, Inc., [APISec.ai] may change those terms in order to meet its assessment of the relative risk.
Unless otherwise required by law, Channel Partner shall pay all applicable country, state, municipal and other taxes including, without limitation, sales, use, value added, withholding and other taxes, and customs and import duties on Products, other than taxes based upon FX Labs, Inc., [APISec.ai] ’s net income. Should tax law in the Territory require the withholding or imposition of tax by Channel Partner on any of Channel Partner’s payments to FX Labs, Inc., [APISec.ai] , then Channel Partner shall increase any affected FX Labs, Inc., [APISec.ai] invoice by an amount such that FX Labs, Inc., [APISec.ai] receives, net after withholding or other taxes imposed, one hundred percent (100%) of the original invoiced amount. For any withholding taxes that are deducted by the Channel Partner from its payments to FX Labs, Inc., [APISec.ai] and remitted to tax authorities in accordance with applicable law, Channel Partner will provide all such assistance as FX Labs, Inc., [APISec.ai] may require in order to eliminate or minimize such withholding taxes including providing any necessary information and assistance required by FX Labs, Inc., [APISec.ai] to enable a claim to be made under any relevant double taxation agreement for the reduction of such withholding taxes. Channel Partner will also provide documentary evidence acceptance to FX Labs, Inc., [APISec.ai] of any withholding tax amounts being paid to the relevant tax authority to include a receipt issued to Channel Partner by the relevant tax authority.
7. Limited Warranty
As between FX Labs, Inc., [APISec.ai] and channel partner, the products and any materials provided pursuant to this agreement are provided “as is,” and to the maximum extent allowed by law, there are no other warranties, express or implied, including but not limited to, the implied warranties of merchantability, non- infringement, title or fitness for a particular purpose with respect to the products or materials.
Channel Partner may not make any additional representations or warranties with respect to the Products other than the limited warranties made by FX Labs, Inc., [APISec.ai] in this Agreement.
8. Limitation of Liability
In no event FX labs, Inc., [APISec.ai] shall be liable to channel partner or to its clients or to any other person or entity by whatsoever name it has been called for any direct, indirect, consequential, special or incidental damages or losses of any kind whatsoever including but not limited to, lost profits, penalties, or liquidated damages, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, even if advised of the possibility of such loss or damages or such loss or damage could have been reasonably foreseen.
9. Confidential Information
“Confidential Information” means, whether provided orally, in writing or electronically, and whether or not such information is expressly stated to be confidential or marked as such: (i) any knowledge, information, or data that is proprietary or confidential to a Party or its business, and (ii) any information that is disclosed by a Party to the other Party pursuant to or in connection with this Agreement, including but not limited to any and all Business Plans executed between the Parties and the information contained
therein or disclosed thereto. Unless otherwise provided in writing to the receiving Party, “Confidential Information” shall not refer to any promotional or marketing material relating to the Products and/or Services that is disclosed to Party specifically for distribution or release to third-parties, including customers, vendors, or the public at large, the Parties shall, at all times during the term of this Agreement, and for a period of five (5) years after its termination: (a) keep all Confidential Information confidential and not disclose any Confidential Information to any third-party except to the officers, employees, consultants, or agents of the receiving Party who have a need to know the Confidential Information and who are otherwise under an obligation to keep such Confidential Information confidential; and (b) not use any Confidential Information for any purpose other than for the performance of the obligations of the Party under this Agreement. Notwithstanding the foregoing, if any Confidential Information contains or is comprised of any trade secret (as defined under the Uniform Trade Secrets Act), then the receiving Party shall not disclose, or permit to be disclosed, such Confidential Information for a period of five (5) years or until such Confidential Information no longer contains or is comprised of a trade secret, whichever is later. The Parties shall keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own Confidential Information. If a receiving Party makes copies of Confidential Information, then such copies shall also constitute Confidential Information. Neither Party shall reverse engineer, disassemble, or decompile any Confidential Information. The Confidential Information disclosed by a Party shall remain confidential under the terms of this Agreement unless, and then only to the extent that: (a) The Confidential Information is supplied to the receiving Party by a third party as a matter of right and not in violation of any confidential relationship or obligation with the disclosing Party; or (b) The Confidential Information is in the possession of the receiving Party before the receipt from the disclosing Party, as evidenced by written documents or records of the receiving Party; or (c) The Confidential Information is required to be disclosed in a judicial or administrative proceeding pursuant to a court order by a court of competent jurisdiction, or is otherwise requested or required to be disclosed by law or regulation; provided, however , that the receiving Party shall promptly notify the disclosing Party of such disclosure, and, upon written request of the disclosing Party, shall cooperate in all reasonable respects to contest or limit such disclosure or otherwise obtain a protective order; or (d) Disclosure of the Confidential Information by the receiving Party is authorized in writing by the disclosing Party. Each receiving Party shall, upon termination or conclusion of this Agreement, or at any earlier time upon the request of the disclosing Party, immediately return or destroy all Confidential Information received from the disclosing Party, and information developed therefrom and copies thereof, and retain none for its files. Each Party shall be completely responsible for maintaining the secrecy and confidentiality of the Confidential Information conveyed to it by the other Party in accordance with the terms of this Agreement. Each Party shall be responsible in this regard for the actions and activities of all of its officers, employees or agents working with or otherwise having access to the Confidential Information received hereunder and shall take reasonable measures, including requiring the execution of appropriate confidentiality agreements, to protect against unauthorized use or disclosure of Confidential Information belonging to the other Party.
10. Intellectual Proprietary Rights
For the purpose of this Agreement “Intellectual Property Rights” include, Copyrights, trade and service marks, trade names, rights in designs, database rights, trade secrets, methodologies and techniques. All rights, title, and interest, including, copyright, Trade Mark, to any deliverables, ideas, know-how, inventions, software, documentation, processes or any other Intellectual Property Rights shared by FX Labs, Inc., [APISec.ai] under this Agreement shall be exclusive property of FX Labs, Inc., [APISec.ai] . Enabling any business transaction by using these Intellectual Property Rights by channel partner shall not entitle any rights to the channel partner and permissions to use these Intellectual Property of FX Labs, Inc., [APISec.ai] shall not be construed as assignment or transfer of these rights to Channel Partner. The Channel Partner in particular hereby undertakes not to decipher or disclose the application, method and processes thereof in any manner to third parties or disclose any confidential information provided to channel partner and inform all their employees, contractors, consultants and other relevant third parties of the proprietary and confidential nature thereof.
11.Trademark and Trade Name
Channel Partner may not in its name obtain protection for or register trademarks, trade names or other designations of FX Labs, Inc., [APISec.ai] or such trademarks, trade names or other designations which are identical or similar to those of FX Labs, Inc., [APISec.ai]. Channel Partner is prohibited from using the trademarks, trade names, symbols, advertising slogans, or other designations belonging to FX Labs, Inc., [APISec.ai], except as otherwise provided in this Agreement or agreed to in writing by FX Labs, Inc., [APISec.ai]. Any and all trademarks and trade names which FX Labs, Inc., [APISec.ai] uses in connection with the rights granted hereunder are and remain the exclusive property of FX Labs, Inc., [APISec.ai]. This Agreement gives the Channel Partner no right therein except a limited right to reproduce trademarks and trade names as necessary for the sole purpose of allowing Channel Partner to fully promote and market FX Labs, Inc., [APISec.ai] Products pursuant to the terms of this Agreement. FX Labs, Inc., [APISec.ai] ’s artwork may be requested and used by Channel Partner for the duration of this Agreement. If Channel Partner becomes aware of any third party infringement of the intellectual property rights of FX Labs, Inc., [APISec.ai], then Channel Partner shall inform FX Labs, Inc., [APISec.ai] of such infringement immediately. Channel Partner shall cooperate with FX Labs, Inc., [APISec.ai] in relation to any such infringement and shall take all action reasonably requested by FX Labs, Inc., [APISec.ai]. If the infringement has not been caused directly or indirectly by the Channel Partner, then FX Labs, Inc., [APISec.ai] shall bear the costs of any action undertaken by Channel Partner requested by FX Labs, Inc., [APISec.ai].
12. No assignments and Transfer of Rights
Each Party represents and warrants to the other Party that this Agreement has been duly executed and delivered, and constitutes the legal, valid, and binding obligations of such Party enforceable against such Party in accordance with its terms. Channel Partner
shall not assign its rights and obligations under this Agreement to any third-party without the prior written consent of FX Labs, Inc., [APISec.ai] During the term of this Agreement, Channel Partner shall promptly notify FX Labs, Inc., [APISec.ai] of any significant or material change in the operational management or ownership of Channel Partner that may occur, including, without limitation, any material change in the managers, directors, or owners of Channel Partner that arises as a result of new owners joining or present owners leaving its company.
13. Applicable Law; Equitable Relief
This Agreement shall be governed by the laws of the USA without reference to or application of its choice of law or conflicts of law rules or principles. Each Party agrees that a material breach by the other Party of this Agreement may cause the non- breaching Party irreparable injury for which it would have no adequate remedy at law, and that such non-breaching Party shall be entitled to specific performance or preliminary or other injunctive relief in addition to any and all remedies the non- breaching Party may otherwise be entitled to at law, in equity, or pursuant to this Agreement. Acknowledging that the damages sustained by either party as a consequence of any breach by the other party of any of its obligations under this Agreement may be difficult or impossible to measure in monetary terms, each party hereby agrees that the other party shall be entitled to seek (i) an injunction temporarily and/or permanently restraining the commission or continuation of any such breach without any requirement to give an undertaking as to damages or in any way providing a bond or security for costs, (ii) an award of damages in an appropriate amount, and (iii) other available remedies, all remedies here under being cumulative.
14. Term and Termination
This Agreement may be terminated for convenience by either party upon thirty (30) days written notice to the other party. This Agreement may be terminated immediately by written notice from FX Labs, Inc., [APISec.ai] in the case of (1) any material breach by Channel Partner, including Channel Partner’s breach of any clause of this Agreement, or (2) Channel Partner being declared insolvent or bankrupt. Channel Partner shall remain obligated to pay the fees for all Products shipped or provisioned to Channel Partner or End User. All sums due to FX Labs, Inc., [APISec.ai] shall become immediately due and payable on the date of termination. Upon termination of this Agreement, Channel Partner shall promptly return all FX Labs, Inc., [APISec.ai] proprietary and Confidential Information including, but not limited to, the Products (and any demonstration or evaluation units) and any copies thereof, and shall permanently erase any machine-resident portions of the Products.
Channel Partner agrees to defend, indemnify and hold FX Labs, Inc., [APISec.ai] harmless from and against any and all damages, liabilities, costs and expenses (including but not limited to attorneys’ fees) arising out of, related to or incurred by FX Labs, Inc., [APISec.ai] in connection with or as a result of any claim or proceeding made or brought against FX Labs, Inc., [APISec.ai] with respect to any allegation that (i) any product(s) other than the Products infringes upon any intellectual property
right, (ii) any product(s) other than the Products fails to perform, (iii) the combination of the Products with any other products infringes upon any intellectual property right; (iv) relates to Channel Partner’s sales and marketing efforts and activities, or (v) there is any material breach or default by Channel Partner in the performance of its obligations under agreements with FX Labs, Inc., [APISec.ai] , its distributors or End Users.
16. Compliance with Laws
In performing its obligations under this Agreement, channel partner agrees to comply with all laws, rules and regulations of the land in which the activities required under this Agreement are to be performed that are applicable or may hereafter become applicable, and to indemnify and hold FX Labs, Inc., [APISec.ai] harmless from any failure to do so. Channel partner also agrees and undertakes that it shall at all times advise and notify FX Labs, Inc., [APISec.ai]and keep FX Labs, Inc., [APISec.ai] informed from time to time about all requirements that FX Labs, Inc., [APISec.ai] is required to comply with or may be required to comply with under the applicable laws of the land in relation to the arrangement contemplated under this Agreement.
17. Governing law and Jurisdiction
This Agreement shall be governed by, and construed and enforced in accordance the laws of USA and shall be subject to the exclusive jurisdiction of courts at California, without giving effect to the principles of conflict of laws thereof. All actions and proceedings arising out of or relating to this Agreement may be heard and determined solely in any State or federal court of competent jurisdiction located in the State of California. All rights, remedies, and obligations under this Agreement, including matters of construction, validity, and performance, shall be governed exclusively by the laws of the State of California without regard to California’s choice of law provisions This Agreement shall be enforceable in any state or federal court of competent jurisdiction. Provided, that each party specifically consents to, and agrees that such party is subject to, the jurisdiction of the state and federal courts of the State of California with respect to any actions for enforcement of or breach of this Agreement.
18. Dispute Resolution
The parties agree that any dispute or difference regarding the meaning or interpretation of the terms and conditions of this Agreement, and any breach of this agreement the same shall be amicably settled between the parties and in the event the dispute and differences not being resolved or settled, the same shall be referred to Arbitration by a sole Arbitrator to be appointed by the Company. The Arbitration proceedings shall be conducted in accordance with the provisions of The Arbitration and Conciliation Act, 1996. Any award so passed by the Arbitrator shall be binding on both the parties. The Venue of Arbitration shall be decided by the FX labs, Inc., [APISec.ai] and the proceeding shall be in English language.
Channel Partner shall keep and maintain its books, records and accounts in reasonable detail to accurately reflect Channel Partner activities and transactions in relation to this Agreement or the Products. FX Labs, Inc., [APISec.ai] or its designated agent
shall have the right, upon reasonable notice and at FX Labs, Inc., [APISec.ai] ’s expense, to inspect and copy the accounts, books, and records of Channel Partner which may reasonably be related to Channel Partner’s activities or transactions in relation to this Agreement or the Products.
20. Notices and Service
Any notice or other documents to be given under this Agreement shall be in writing and delivered either (i) electronically, (ii) in person, postmarked, stamped and sent by certified mail, postage prepaid, or (iii) sent and delivered by common overnight courier, to the Party concerned at the address or electronic address as one Party may from time to time designate to the other Party.
- Each Party acknowledges that, in entering into this Agreement, it does not do so on the basis of and does not rely on any representation, warranty or other provision except as expressly provided in this Agreement.
- This Agreement is intended for the exclusive benefit of the Parties to this Agreement. Nothing contained in this Agreement shall be construed as creating any rights or benefits in or to any third-party.
- No Party shall be deemed to be in violation of this Agreement if prevented from performing any obligations hereunder by reason of acts of God or other acts of war, flood, storm, strikes, terrorism, epidemics, and the like beyond the control of such Party, nor shall a Party be required to act in violation of law or regulation.
- Severability – Each term, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. If there is any conflict between any term, condition or provision, by law or regulation, the latter shall prevail; provided, that any such conflicting term, condition, or provision shall be curtailed and limited only to the extent necessary to bring it within the legal requirements and the remainder of this agreement shall not be affected thereby.
- This Agreement contains the entire agreement between the Parties with respect to its subject matter and supersedes and cancels all prior agreements between them whether oral, written or implied.
- No amendment or addition to this Agreement shall be binding on the Parties unless it is in writing and is signed on behalf of each of the Parties by their duly authorized representatives.
- If any provision of this Agreement, or any part of any provision, is held to be invalid or unenforceable, that provision is deemed to be amended to apply to the extent enforceable and the balance of the Agreement shall be valid and binding.
- No failure of either Party to enforce any provision of this Agreement shall be construed as waiver of such provision or of a right of such Party thereafter to enforce same. Any waiver by either Party of a breach of any provision of this Agreement shall not be considered as a waiver of any subsequent breach of the same or any other provision of it.
- Except where expressly so provided, nothing in this Agreement shall create, or be deemed to create, a joint venture, franchise, partnership or the relationship of principal and agent or employer and employee between the Parties.
- This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same document.
IN WITNESS WHEREOF, this Agreement has been executed by the Parties on (the “Effective Date”).