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ThreatModeler

Online Reseller Agreement


THE PRODUCTS ARE PROVIDED FOR RESALE ONLY PROVIDED THAT RESELLER AGREES TO THE TERMS AND CONDITIONS IN THIS AGREEMENT AND THE MATERIALS REFERENCED HEREIN (“AGREEMENT”) BETWEEN RESELLER AND THREATMODELER. BY ACCEPTING THIS AGREEMENT OR RESELLING THE PRODUCTS, RESELLER ACKNOWLEDGES IT HAS READ, UNDERSTANDS, AND HAS THE AUTHORITY TO ENTER INTO AND AGREES TO BE BOUND BY THIS AGREEMENT.  IN THE EVENT THAT YOU HAVE A FULLY SIGNED WRITTEN AGREEMENT FOR THE PRODUCTS, THEN THOSE TERMS SHALL SUPERSEDE THESE.

  4. 1. Appointment
    1. 1.1. In the Territory, Reseller has the non-exclusive right to market and distribute the ThreatModeler products to end users (“End Users”) as set forth on a quote, order form, Price List, or proposal (the “Quote”) for ThreatModeler software, hosting services, professional services and products (the “Products”).  The Products shall be subject to this Agreement, any license agreements of ThreatModeler, and the terms found as found on the portion of ThreatModeler’s website (https://www.threatmodeler.com) (the “Site”) for partner access (the “Partner Portal”). Unless previously authorized by ThreatModeler in writing, Reseller will not ship, or cause to be shipped, any Products outside of the Territory.  Reseller will purchase the Products for resale from either (i) ThreatModeler directly or (ii) the ThreatModeler authorized distributor (“Distributor”) of its choice.  Upon establishment of Distributors in the ThreatModeler two tier distribution program, Reseller shall only purchase from the Distributor of its choice and specifically not from ThreatModeler directly. Where a purchase is made through a Distributor, final terms of invoicing, pricing, shipment and payment will be subject to the terms and conditions between the Distributor and Reseller.  For purposes of this Agreement, the “Territory” shall be the United States, Canada and Mexico and ThreatModeler and Reseller may agree to expand such list of countries by any writing, including an email communication. Except as otherwise provided in this Agreement, ThreatModeler and Reseller agree that Reseller is authorized to resell the Products that are included on the then-current ThreatModeler Price List and/or those set forth on a Quote. In the event that ThreatModeler has not promulgated a Price List applicable to this Reseller, ThreatModeler shall provide pricing to Reseller as needed for standard opportunities or on a per opportunity basis from time to time via Quote.
    2. 1.2. ThreatModeler and Reseller are free to enter into similar agreements with others.  Additionally, ThreatModeler reserves the right to make sales direct to end-users, inside or outside any Territory.
    3. 1.3. Reseller will acquire and distribute the Products as an independent reseller, at its own risk and expense.  Reseller is solely responsible for the results achieved as a Reseller of ThreatModeler and will unilaterally determine its own resale prices for Products. 

  5. 2. Marketing

  6. 2.1. Reseller will be permitted to use the ThreatModeler logos and trademarks, subject to the provisions contained below.  The trademarks and trade names under which ThreatModeler markets the Products are the property of ThreatModeler or third party licensors.  This Agreement gives Reseller no rights therein, except the restricted license to reproduce such trademarks and trade names subject to the trademark usage guidelines of ThreatModeler in any authorized reproduction of any Product, provided that ThreatModeler is referenced as the owner of the trade name or trademark.  Reseller may not market the Product under any other or different name than those specified by ThreatModeler.  Reseller agrees to maintain and respect the trademark, trade name and copyright notices of any Product in connection with its advertisement and distribution of such Products.  Reseller agrees to include a reference to ThreatModeler in any advertisement for the Products, subject to ThreatModeler’s final approval of all such material.  

  7. 2.2. Reseller agrees to promptly provide ThreatModeler, upon request, with any documentation (e.g., the document used for selling or advertising) that included the trademark(s) and the date and source of the publication in which the trademark(s) appeared.

  8. 2.3. All goodwill associated with or created by use of ThreatModeler’s trademarks and trade names will belong to ThreatModeler, and Reseller hereby assigns such goodwill to ThreatModeler.  If Reseller uses any ThreatModeler trademarks or trade names in its domain name, on ThreatModeler’s demand, Reseller will assign all of its rights in such domain name to ThreatModeler.

  9. 2.4. Upon termination of this Agreement, Reseller will immediately cease use of, and remove from its web site, all links and other ThreatModeler-related trademarks, trade names, marks, symbols, logos or copyrights, unless otherwise permitted in writing in advance of such continued usage.
  11. 2.5. Reseller shall have a limited non-sub licensable, non-transferable, non-assignable, fully paid up, license to use the Products to demonstrate and allow evaluation of the Products so long as Reseller distributes the ThreatModeler End User License Agreement (“EULA”) to the End User receiving the Products.  Reseller has no rights in or to source code of any Product and Reseller shall not create any derivative works, patent or copyright any functionality in the Products, make translations of the Product(s), disassemble, decompile, reverse assemble, reverse compile, recompile or make extracts from such Product(s) or attempt to determine the source code or permit others to do so. ThreatModeler or its third party vendors exclusively own and shall retain all rights, title and interest in and to the ThreatModeler Products, ThreatModeler Confidential Information, any feedback regarding the Products, and all intellectual property rights therein and derivate works thereof, if any. 


3. Purchase Process and Payment


3.1. The provisions of the Section 3 shall only be applicable where Reseller purchases the Products for resale directly from ThreatModeler.


3.2. Reseller will place an order with ThreatModeler prior to the resale of Products.  Reseller will pay ThreatModeler the fees specified in the Quote for the Products. For each Product resold by Reseller, Reseller will also sell ThreatModeler support for such Products if Support is not included.  If required for ordering, a purchase order (“PO”) will state the ThreatModeler Product name, SKU, licensing or sales unit, the level of support, the End User term (as applicable) and the name and address of the End User (including Products purchased for internal training/certification use). Upon ThreatModeler’s acceptance of the PO, a signed Quote or other written document, ThreatModeler will electronically ship the Products to Reseller at the address designated by Reseller. POs, signed Quotes, or other written evidence of acceptance of the terms of a Quote for purchases made in the Territory will be submitted to orders@threatmodeler.com.


3.3. ThreatModeler will invoice Reseller for the amounts due pursuant to a Quote, PO, or as established in this Agreement where Reseller purchases directly from ThreatModeler.  Reseller will pay ThreatModeler invoices within thirty (30) days of the date of invoice.  Reseller agrees to make payments based on the amount reported to ThreatModeler.  Service charges in the amount of the lesser of the maximum rate permitted by law or one percent (1%) per month will accrue on all accounts past due by more than five (5) days. Payments for orders placed in the Territory will be wired to the account set forth on the invoice.  The currency will be U.S. Dollars, unless otherwise instructed.  Taxes are not included in the pricing of Products.  Except for taxes based on ThreatModeler’s net income, Reseller will pay all applicable sales, use, value-added, excise and any other taxes or customs duties.  In the event Reseller furnishes a valid tax exemption certificate, ThreatModeler will honor such exemption for the next purchase from ThreatModeler.


3.4. ThreatModeler reserves the right, in its sole discretion and without liability to Reseller, to add additional Products, change the price for the Products (“List Price”), modify the Products, change the available levels of ThreatModeler’s support for the Products and discontinue the availability of any Product.  Any addition or deletion from the list of Products or changes to List Prices will be indicated by a revision to the ThreatModeler price list (“Price List”), and ThreatModeler will use reasonable efforts to provide Reseller with thirty (30) days notice prior to the effective date of changes to the ThreatModeler Price List.  Such notice shall be effectuated by the delivery of the new ThreatModeler Price List by ThreatModeler or its Distributors, as applicable, and any pre-existing orders existing on such date of delivery will be at the prior price.  


4. Confidentiality


4.1. Definition.  For purposes of this Agreement, “Confidential Information” will mean any information and data of a confidential nature, including but not limited to proprietary, technical, developmental, business plan, marketing, sales, operating, performance, cost, know-how, business and process information, computer programming techniques, software, micro-code, firmware and all record-bearing media containing or disclosing such information and techniques, which is disclosed by one party to this Agreement (“Disclosing Party“) to the other party (“Receiving Party“) pursuant to this Agreement.   Any information received orally will be treated as confidential only if the Disclosing Party notifies the Receiving Party that the information is confidential or would be of such character that a reasonable person would believe it to be confidential in nature.  Notwithstanding the foregoing Confidential Information will not include information that is (a) developed independently by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information as evidenced by written documentation; (b) obtained from a source other than the Disclosing Party through no breach of confidence by the Receiving Party; (c) in the public domain when received or thereafter enters the public domain through no fault of the Receiving Party; (d) provided by the Disclosing Party without restriction; or (e) disclosed by the Receiving Party pursuant to statute, regulation, or the order of a court of competent jurisdiction, provided that the Receiving Party has notified the Disclosing Party in order to permit the taking of appropriate protective measures.


4.2. Nondisclosure.  The parties agree to hold each other’s Confidential Information in strict confidence and not to disclose it to any third party without the prior written consent of the Disclosing Party.  The parties agree to use such Confidential Information of the Disclosing Party only as it relates to the performance of the party’s obligations under this Agreement.  Further, the Receiving Party will use the same degree of care it uses with respect to its own Confidential Information to prevent the unauthorized disclosure to a third party, but in no event less than reasonable care.


4.3. Injunctive Relief.  The parties agree that, in the event of any breach of this Section 4 (Confidentiality) by the Receiving Party, in addition to any other right that the Disclosing Party may have under this Agreement or otherwise in law or in equity, the Disclosing Party will have the right to seek injunctive relief against continuing or further breach by the Receiving Party, without the necessity of proof of actual damages.


5. Performance


5.1. Reseller agrees to achieve and maintain the accreditation requirements provided by ThreatModeler, if any.


5.2. To the extent that Reseller elects to participate in any marketing and incentive programs (“Rebates”), which ThreatModeler may offer from time to time, Reseller agrees to comply with all specified requirements of such Rebates.  ThreatModeler reserves the right to terminate or modify Rebates at any time at its sole discretion and will make reasonable efforts to provide thirty (30) days prior notice thereof.


5.3. Reseller agrees to report to ThreatModeler such sales information upon which ThreatModeler and Reseller from time to time mutually agree.


5.4. Reseller agrees that ThreatModeler Product training will be performed by: ThreatModeler, a ThreatModeler-designated company or an individual.


5.5. ThreatModeler warrants to Reseller that the Products will perform in accordance with the ThreatModeler published specifications and warrants that the Services will be provided using reasonable skill and care and in accordance with industry practice using suitably skilled and experienced personnel.


5.6. Pricing will be dependent on whether Reseller provides Tier I Support or ThreatModeler provides all Support as set forth in the Quote.


For purposes of this Agreement, “Tier I Support” means the initial contact with the End User to receive technical support.  Reseller will provide data collection/integrity, case and End User management, accurate problem diagnosis and resolve technical issues.  Tier I Support is responsible for creating the initial support request; “Tier II Support” means the technical support provided by ThreatModeler to the End User, which manage unresolved issues escalated from Reseller Tier I Support designated contacts, including root cause analysis identifying the source of the issue; and “Tier III Support” means the technical support provided by ThreatModeler technical support to ThreatModeler’s Tier II Support, addressing unresolved issues identified as having their issue in the Products.


6. Term and Termination


6.1. This Agreement will continue until terminated by one of the parties.


6.2. Either ThreatModeler or Reseller may terminate the Agreement without cause upon thirty (30) days prior written notice to the other party.


6.3. Subject to the exception provided in paragraph 10.5 below, either ThreatModeler or Reseller may terminate the Agreement for default if one party breaches a provision of the Agreement and the breach is not cured within ten (10) days of being notified of the breach. Upon termination of this Agreement, all interest that Reseller may have in accrued marketing development funds (“MDF”), if any, or Rebates for which no claim has been filed will automatically lapse.


7. Audit and Record Keeping


During the term of the Agreement and for two (2) years after the termination date of this Agreement, all books and records of Reseller, including without limitation any computer and electromagnetic records, relating to the sales, support, service, and training related to ThreatModeler products, will, on demand, be open to inspection, audit and copying by ThreatModeler during normal working hours.  Reseller will maintain appropriate distribution records by End User and Product serial number and will cooperate with ThreatModeler in the event of any recall or corrective action regarding the Products.


8. Indemnification/Limitation of Liability


8.1. RESELLER WILL INDEMNIFY, HOLD HARMLESS AND, UPON ThreatModeler’S REQUEST, DEFEND ThreatModeler AGAINST ANY CLAIMS, LIABILITIES AND EXPENSES (INCLUDING COURT COSTS AND REASONABLE ATTORNEYS’ FEES) ARISING FROM OR RELATED TO: THE ACTS OR OMISSIONS OF RESELLER’S EMPLOYEES OR AGENTS RESULTING IN DEATH, DISABILITY, OR DAMAGE TO TANGIBLE PROPERTY, THIRD PARTY CLAIMS AND LAWSUITS WHICH ARE CAUSED BY THE PRODUCT’S INFRINGEMENT OF A COPYRIGHT, TRADE SECRET, TRADEMARK OR U.S. PATENT UNDER THE LAW OF THE TERRITORY, AND ANY PROVISION OF WARRANTIES OR CONTRACTUAL RIGHTS TO END USERS IN EXCESS OF OR GREATER THAN THOSE SET FORTH IN ThreatModeler’S OR THIRD PARTIES’ STANDARD LICENSE AGREEMENT INCLUDED WITH THE PRODUCTS.


8.2. ThreatModeler WILL INDEMNIFY, DEFEND, AND HOLD RESELLER HARMLESS FROM ALL THIRD PARTY CLAIMS AND LAWSUITS WHICH ARE CAUSED BY THE PRODUCT’S INFRINGEMENT OF A COPYRIGHT, TRADE SECRET, TRADEMARK OR U.S. PATENT UNDER THE LAW OF THE TERRITORY.  ThreatModeler’S INDEMNIFICATION OBLIGATION IS SUBJECT TO: (A) RESELLER PROVIDING ThreatModeler WITH PROMPT WRITTEN NOTICE OF ANY CLAIM OR LAWSUIT, (B) ThreatModeler HAVING SOLE CONTROL OF THE DEFENSE AND ALL NEGOTIATIONS FOR SETTLEMENT OR COMPROMISE THEREOF AND (C) RESELLER REASONABLY COOPERATING IN THE DEFENSE OF SUCH CLAIM OR LAWSUIT.  ThreatModeler AGREES TO PAY ALL SETTLEMENTS ENTERED INTO BY ThreatModeler, JUDGMENTS FINALLY AWARDED AGAINST RESELLER, AND ALL ATTORNEYS’ FEES AND EXPENSES FOR COUNSEL HIRED BY ThreatModeler.  RESELLER MAY ELECT TO PARTICIPATE IN ANY SUCH ACTION WITH COUNSEL OF ITS OWN CHOICE AND EXPENSE.  ThreatModeler WILL HAVE NO LIABILITY IF THE ALLEGED INFRINGEMENT IS BASED UPON: (I) A COMBINATION OF NON-ThreatModeler PRODUCTS; (II) USE FOR A PURPOSE OR IN A MANNER NOT PROSCRIBED BY ThreatModeler; (III) USE OF ANY OLDER VERSION OF SOFTWARE WHEN USE OF NEWER SOFTWARE WOULD HAVE AVOIDED INFRINGEMENT; (IV) ANY MODIFICATION NOT MADE WITH ThreatModeler’S WRITTEN APPROVAL OR ANY MODIFICATION MADE BY ThreatModeler DUE TO RESELLER’S (OR ITS END USER’S) SPECIFIC INSTRUCTIONS; OR (V) ANY INTELLECTUAL PROPERTY RIGHT OWNED OR LICENSED BY RESELLER, ITS END USER OR ANY OF ITS/THEIR AFFILIATES.


8.3. OTHER THAN A PARTY’S OBLIGATIONS OF INDEMNITY OR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN, IN NO EVENT WILL: (i) either party be liable for any loss of profits, loss of business, loss of use or of data, interruption of business, or for indirect, special, incidental or consequential OR PUNITIVE damages of any kind whether under this Agreement or otherwise, even if a party has been advised of the possibility of such damages, or for any claim against Reseller by any other party, (II) EITHER PARTY be liable to THE OTHER PARTY for any DIRECT damages IN EXCESS OF THE CUMULATIVE AMOUNT OF ThreatModeler PRODUCTS PURCHASED BY RESELLER DURING THE TERM, OR (iii) a party be liable for any representation or warranty made to any third party by the other party, including any agent, distributor, or dealer of a party or other person or, if applicable, entity in the distribution chain.


9. Notices


9.1. All notices, requests, demands, and determinations under this Agreement (other than routine operational communications), will be in writing and will be deemed delivered upon the earlier of (a) receipt if delivered by hand, (b) on the delivery date if delivered by electronic mail, (c) one (1) business day after being given to an express, overnight courier with a system for tracking delivery, or 4 days after the date of mailing, when mailed by United States mail, registered or certified mail, return receipt requested, postage pre paid, to the address provided by the parties to each other.  All routine operational notices will be sent to the individuals identified on the Partner Portal or registration.


10. General


10.1. Reseller is an independent contractor. Neither ThreatModeler nor Reseller is a legal representative, agent, partner, employee, joint venturer, or franchisee of the other, nor does the Agreement create a joint venture between ThreatModeler and Reseller.  Neither ThreatModeler nor Reseller will assume or create any obligations on behalf of the other or make any representations or warranties about the other, other than those authorized in writing by an authorized signatory of the other party. 


10.2. Neither party will bring a legal action against the other more than two years after the cause of action arises, unless otherwise provided by local law without the possibility of contractual waiver. 


10.3. Failure by either party to insist on strict performance or failure to exercise a right when entitled does not prevent either from doing so at a later time, either in relation to that default or any subsequent one. 


10.4. Reseller will not assign or otherwise transfer this Agreement, its rights under it, or any of its authorizations or duties, without ThreatModeler’s prior written consent.


10.5. Reseller agrees not take any actions whatsoever to wrongfully influence any decisions in its or ThreatModeler’s favor, either directly or indirectly. Reseller further agrees to comply with all applicable anti-bribery and anti-corruption laws, including but not limited to the United States Foreign Corrupt Practices Act (“FCPA“) and the United Kingdom’s Anti-Bribery Act, which specifically prohibit the offering, paying, transfer or promising to pay anything of value, directly or indirectly, to any non-US government official (which includes officers of a foreign government, persons officially acting on behalf of a foreign government, employees of a government corporation, officials of a political party; and candidates for political office), to assist in obtaining or retaining business, or to secure an improper advantage over competitors.  It is the intent of the parties that no payments or transfers of value will be made which has the purpose or effect of bribery, extortion, kickbacks or other unlawful means of obtaining business.  The parties acknowledge and agree that in the event that ThreatModeler believes, in good faith, that Reseller has breached this section, ThreatModeler will have the right to immediately terminate any or all agreements between ThreatModeler and Reseller.


10.6. Reseller will comply with all applicable privacy laws for the collection, use and disclosure of personal information about individuals and will obtain any required consents with respect to same.  Reseller will comply with all applicable state or federal laws concerning unsolicited email and all state and federal laws that are applicable to the business Reseller transacts.  To the extent that Reseller handles any Product or prepares it for shipment, Reseller will comply with all state and federal laws related to product labeling. 


10.7. Neither party is responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control.  Notwithstanding the foregoing, a party’s obligation to pay shall not be avoidable by operation of this Section 10.7 once such obligation is due and owing.


10.8. This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions and venue shall lie in the state and federal courts sitting in New York County, New York.


10.9. The terms of paragraphs 3, 6, 7, 10.2 and 10.6 will survive termination of this Agreement.


10.10. Regardless of any disclosure made by Reseller to ThreatModeler or ThreatModeler’s distributor of the ultimate destination of Products, Reseller will not export, either directly or indirectly, any documentation, Products or system incorporating such Products without first obtaining a license as required by the applicable governmental authority. Reseller will adhere to all import regulations and will maintain at its expense all licenses, permits and other authorizations required by governmental and/or regulatory agencies within the Territory required for performance under this Agreement.