PARTNER RESALE AGREEMENT – SECURITY/CONNECTIVITY APPLICATION AND SERVICES

 

Last Modified: March 29, 2022

 

This Partner Resale Agreement and any exhibits or addendums, schedules, policies, or other supplemental documents incorporated herein by reference and published by Cytracom from time to time (collectively, the “Agreement”) constitutes the entire agreement between Cytracom, LLC (“we,” “us” or “Cytracom”) and the party identified in the associated proposal or service activation form (“Partner”) regarding Cytracom’s Services (defined herein). By requesting access to the Services in the Cytracom Partner Portal (as defined herein) the Partner accepts and agrees to be bound by this Agreement and the terms of any Security Service Plan Document entered into between the Partner and Cytracom in connection with the Services. The Partner acknowledges and agrees that any Security Service Plan Document shall be subject to and governed by this Agreement.  If Partner does not agree to the terms of this Agreement, the Partner should not access the Services, make any order for the Services, or enter into any Security Service Plan Document.

 

Cytracom is a hosted services provider that owns, develops and markets security, connectivity, and access control products and services. Cytracom and Partner desire that the parties enter into an agreement whereby Partner shall market, promote, resell, and distribute the Services (and any related Devices or Equipment) to end user customers of the Partner (“End-Users”) in the continental United States (“Territory”) pursuant to the terms and conditions of this Agreement.

 

1. DEFINITIONS. In addition to other terms defined herein, capitalized terms in this Agreement shall have the following meanings.

   1. “Confidential Information” shall mean any and all technical and non-technical information provided by either party to the other, including that regarding either party or their affiliates, their business activities and operations or those of their customers and suppliers, and their trade secrets (including their customer lists, prospective customers, rates, price lists, network configuration, traffic volume, financial information, source code underlying the object code versions of the Software, service, processes, methods, knowledge, research, development or other information of a confidential and proprietary nature), and which at the time of disclosure is either (a) marked as being “confidential” or “proprietary,” (b) otherwise not generally known or readily ascertainable by proper means by third parties, including competitors or the general public, and includes trade secrets, or (c) under the circumstances of disclosure should reasonably be considered as the confidential or proprietary information of the disclosing party. Confidential Information shall not include information that is (i) already known by the recipient party without an obligation of confidentiality, (ii) publicly known or becomes publicly known through no unauthorized act of the recipient party, (iii) rightfully received from a third party without an obligation of confidentiality, (iv) approved by the other party for disclosure, or (v) is required to be disclosed pursuant to court order or order of governmental authority, provided that the receiving party shall use reasonable efforts to provide the disclosing party advance notice of any such disclosure and to permit and assist the disclosing party to intervene in any relevant proceedings to protect the disclosing party’s interests.

   2. “Cytracom Partner Portal” shall mean the web-based application made available by Cytracom to the Partner through which the Partner may request to access the Services for purposes of reselling such Services to End-Users and through which the Partner shall have access to certain marketing, training, and informational materials in connection with the Services and other services offered by Cytracom as determined by Cytracom in its sole discretion. 

   3. “Documentation” shall mean any documents, including user manuals, relating to the Services that are made available to the Partner by Cytracom in any medium or manner.

   4. “Device” or “Equipment” means any device or equipment provided by Cytracom or used in conjunction with the Services.  

   5.  “End-User” shall mean a company or other entity that purchases the Services directly from the Partner pursuant to an agreement between the Partner and the End-User.

   6. “End-User Agreement” shall mean the Partner’s agreement with an End-User for the Partner’s provision of services to the End-User. All End-User Agreements will be between the Partner and the End-User. Cytracom will not be a party to the End-User Agreements.

   7. “Marks” shall mean the trademarks, service marks, trade names, logos and other identifiers of a party’s products and services.

   8. “Proprietary Rights” shall mean any and all rights existing from time to time in any jurisdiction under copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights.

   9. “Security Service Plan Document” shall mean the proposal, service activation form, or online order form entered into between the Partner and Cytracom within the Cytracom Partner Portal with respect to the ordering and provision of Services. 

   10. “Services” means those services provided to the Partner by Cytracom as requested by the Partner within the Cytracom Partner Portal and described in one or more Security Service Plan Documents, including but not limited security, connectivity, or access control services and the provision of an access to any associated software, hardware or web-based platform in connection with such services including, without limitation, any Documentation, Software, and/or Device provided in connection with the Services.

   11. “Software” shall mean any proprietary software owned or licensed by Cytracom, or sublicensed by Cytracom under this Agreement, which is provided to the Partner or otherwise used by the Partner in conjunction with the Services, and any copy, translation, modification, enhancement or other derivative work thereof made by Cytracom or any other third party, as well as any Documentation related thereto.

2. SERVICES

   2. General.  This Agreement and any Security Service Plan Document comprise the entire agreement between the Partner and Cytracom, and supersede all prior terms and conditions and all other prior or contemporaneous understandings, agreements and communications with respect to the Services and subject matter of this Agreement. The Partner understands and acknowledges that Cytracom shall only provide Services to the Partner (i) after the Partner has requested access to such Services in the Cytracom Customer Portal and (ii) pursuant to a Security Service Plan Document entered into by and between the Partner and Cytracom in the Cytracom Customer Portal. Each Security Service Plan Document is governed by this Agreement and is hereby incorporated herein by reference.  In the event of any conflict between this Agreement and the terms of a Security Service Plan Document, this Agreement shall govern.  Cytracom shall provide the Partner with the Services described in the Security Service Plan Document and as set forth in this Agreement.

   3. Access and Use Rights. Subject to the terms and conditions of this Agreement, Cytracom grants to the Partner, under Cytracom’s intellectual property rights in and to the Services, a revocable, non-exclusive, non-transferrable, limited license within the Territory to (i) use the Services for the Partner’s internal business purposes and (ii) market, promote, resell, and distribute the Services to End Users pursuant to the terms and conditions of this Agreement. The Partner shall be solely responsible for the delivery and provision of all services, including any Services, to the End Users pursuant to the terms and conditions of the End-User Agreement entered into by and between the Partner and any such End-User. Cytracom is not and shall not be a party to any End-User Agreement. 

   4. Restrictions.  The Partner shall not: (a) copy or adapt the Services for any purpose, except as specifically permitted under this Agreement; (b) use or resell the Services except in accordance with all applicable laws and regulations; (c) reverse engineer, translate, decompile, or disassemble the Services; (d) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Services; (e) alter, publicly display, translate, create derivative works of or otherwise modify the Services; (f) sublicense, distribute, or otherwise transfer the Services or any portion thereof to any third party other than the Partner’s End-Users pursuant to the terms and conditions of the End-User Agreement entered into by and between the Partner and any such End-User; or (g) use the Services to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction, or otherwise in violation of any applicable law or regulation.  If Cytracom believes that the Partner has used the Services for an unlawful purpose, Cytracom may forward the relevant information to the appropriate authorities for investigation and prosecution.  The Partner hereby consents to our forwarding of any such information to the appropriate authorities. In addition, Cytracom will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the Partner or others.

   5. Partner’s Responsibilities. The Partner is responsible for all use(s) related to the Partner’s account for the Services. The Partner accepts full liability and responsibility for its actions or the actions of any End-User.  The Partner acknowledges that Cytracom will be sending the Partner information, including information regarding the Partner’s account access, over the Internet. The Partner agrees that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information the Partner transmits over the Internet. In order to maintain the security of the Service, the Partner should safeguard all account access.    The Partner agrees that the Partner and any End-User shall comply at all times with the laws, regulations, and written and electronic instructions for using the Services. The Partner agrees to use Services, and to cause the End-Users to use the Services, in accordance with applicable laws, rules and regulations and the Partner acknowledges that the Partner is solely responsible for determining whether a particular use of Services is compliant with such laws, rules, or regulations. The Partner may not remove or export from the United States or allow the export or re-export of the Services or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  Cytracom is not responsible for installing or providing the Services for or to any End-User. The Partner shall not in any way disparage Cytracom, its products, services, or its agents or employees, including, without limitation, taking any action or making any statement the intent or reasonably foreseeable effect of which is to impugn or injure the reputation or goodwill of Cytracom or any of its agents or employees. Any act or omission or failure to act on the part of any employee, agent or contractor of the Partner shall be deemed an act or omission or failure to act on the part of the Partner.

   6. Theft.  The Partner shall notify us immediately in writing or by calling Cytracom’s customer support line, if the Device is stolen or if the Partner becomes aware at any time that the Services have been stolen or are otherwise being used in a fraudulent or unauthorized manner. Until such time as Cytracom receives notice of the theft or fraudulent or unauthorized use, the Partner will be responsible for all use of the Services and all fees incurred.

3. FEES AND PAYMENT TERMS

   1. Fees. The Partner shall pay all fees for the Services to Cytracom as set forth on the applicable Security Service Plan Document. The Partner acknowledges and agrees that the fees for the Services are based on Cytracom’s wholesale rates and the  Partner is not entitled to any commissions or any form of compensation from Cytracom in connection with the Partner’s provision of services, including any Services, to an End-User. All fees and expenses charged by the Partner to an End-User for Services shall be subject to the terms of the applicable End-User Agreement.

   2. Billing.   Cytracom invoices for Services on a monthly basis during the term set forth in the Security Service Plan Document. Cytracom may consolidate billing for multiple Security Service Plan Documents in a single invoice to the Partner for Services which may include pro-rated charges for new Security Service Plan Documents entered into during the applicable billing cycle to allow the merging of added Services to the previously established monthly invoicing date. Other than as provided in an applicable Security Service Plan Document, all charges will be invoiced on a monthly basis in advance, including but not limited to activation fees, monthly fees for Services, advanced feature charges, equipment purchases, termination fees, shipping and handling charges, applicable taxes, and surcharges.  The amount of applicable fees and charges will be provided on the applicable Security Service Plan Document, as well as applicable invoices. Cytracom reserves the right to change the fees or applicable charges for Services and to institute new charges and fees for Services at the end of the applicable term set forth in the Security Service Plan Document or at any time during the term of the Security Service Plan Document, if mutually agreed upon in an updated or new Security Service Plan Document. Cytracom will use reasonable efforts to provide at least thirty (30) days’ prior notice to the Partner of any planned fee increases (which may be sent by email or posted in the Cytracom Partner Portal).  Monthly invoices will be available to the Partner in the Cytracom Partner Portal. All fees are quoted and to be paid in United States dollars. Any late payment shall be subject to any costs of collection, including reasonable attorneys’ fees, and shall bear interest at the rate of one percent (1%) per month, or the highest rate permitted by law, until paid. 

   3. Amounts.  Fees and charges will be provided on the initial Security Service Plan Document. New pricing will be effective the next day following the implementation of a new or updated Service Plan Document.  

   4. Audit. All business records maintained by the Partner relating to the Services are subject to inspection at any reasonable time by Cytracom’s authorized representatives.

   5. Taxes. Each party shall be responsible for the payment of any and all of its own income taxes and income tax withholding or other taxes assessed against it based on its performance under this Agreement.

   6. Billing Disputes.  The Partner must notify us in writing within seven (7) days after receiving an invoice for Services if the Partner disputes any Cytracom charges on that invoice, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following email address: billing@cytracom.com.

   7. Collection.  In the event the Services are terminated, the Partner remains fully liable to us for all charges incurred under this agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.  

4. TERM AND TERMINATION

   1. Term. The term of this Agreement shall begin on the date the Partner requests access to the Services in the Cytracom Partner Portal and shall remain in effect until terminated in accordance with this Section 4.

   2. Early Termination. Either party may terminate this Agreement early as follows:

      1. Immediately upon written notice to the other party in the event of a material breach by the other party (i) of the confidentiality or intellectual property ownership terms set forth herein, or (ii) of any obligation set forth herein, with written notice to the other party, if such material breach is not cured within fifteen (15) days after receipt of such written notice; or

      2. Immediately in the event that the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency or reorganization pursuant to bankruptcy laws or laws of debtor’s moratorium, or becomes incapacitated or guilty of a felony or crime of similar gravity, including but not limited to fraud or misrepresentation.

      3. Suspension. Cytracom may immediately suspend the Partner’s (or any End-User’s) access to, or use of, the Services if: (i) Cytracom believes that there is a significant threat to the security, integrity, functionality, or availability of the Services or any content, data, or applications in the Services; (ii) the Partner or its End-User’s are in breach of Section 2.3 or 2.4 of this Agreement; or (iii) the Partner fails to pay Cytracom when undisputed fees are due; provided, however, Cytracom will use commercially reasonable efforts under the circumstances to provide the Partner with notice and, if applicable, an opportunity to remedy such violation prior to any such suspension for late or non-payment.

      4. Security Service Plan Documents.  If at any point during the term of this Agreement there is no active Security Service Plan Document in effect between the Partner and Cytracom for the Services, either party may terminate this Agreement by providing at least sixty (60) days’ written notice to the other party. In the event the Partner desires to purchase Services from Cytracom after termination of this Agreement, the Partner acknowledges and agrees that such Services shall be subject to the Partner’s agreement with the terms of this Agreement and execution of a new Security Service Plan Document. The Partner acknowledges and agrees that this Agreement will remain in full force and effect, subject to its terms, regardless of whether there is an active Security Service Plan Document in effect.  

      5. Post Termination Obligations. Upon termination or expiration of this Agreement, the rights and duties shall be as follows: (a) All rights and licenses granted to the Partner under this Agreement shall terminate immediately and the Partner shall immediately discontinue all promotion of the Services and all use of any Documentation for its own account or the account of an End-User; (b) the Partner shall cease to promote, market, sell, or provide the Services; (c) the Partner shall immediately stop using all Cytracom Marks; (d) Within five (5) business days following the termination or expiration of this Agreement, the Partner shall return to Cytracom all copies of the Documentation, sales and marketing material and the like in whole or in part provided by Cytracom and destroy any additional copies (electronic or otherwise) of such software or other materials made by the Partner. 

      6. Survival. The provisions of Sections 1, 4, 5, 6, 7, and 8 shall survive the expiration or termination of this Agreement by either party for any reason. All other rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination or expiration hereof.

5. PROPRIETARY RIGHTS. The Partner acknowledges and agrees that Cytracom and its subsidiaries and/or licensors own and retain all Proprietary Rights in the Software, the Services, including the business model, technology, and proprietary concepts embodied in and relating to the Services, the Cytracom web sites, the Cytracom Marks, the Cytracom Confidential Information, Documentation, training materials, collateral or other related materials licensed or provided under this Agreement, and any copies, modifications, adaptations, derivative works, improvements and enhancements thereof, by whomever produced, and all patents, trademarks, copyrights, trade secrets and other intellectual property rights therein (collectively, “Cytracom IP”). The Partner does not acquire any rights, express or implied, in the Cytracom IP other than those specified in this Agreement. The Partner hereby waives any claim that it may have had or has to title and ownership of any Proprietary Rights in and to the Cytracom IP. The Partner shall not remove any copyright or similar notices on the Software and Documentation.

6. CONFIDENTIALITY. 

   1. Definitions. In connection with this Agreement, each party (“Recipient”) may receive Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. 

   2. Restrictions on Use. Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, affiliates, counsel, accountants, and financial advisors (collectively, “Representatives”), subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than as set forth in this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information. Upon Recipient becoming aware of the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information while in Recipient’s control, Recipient shall provide Discloser with notice thereof.

   3. Destruction. Upon Discloser’s written request, Recipient shall use commercially reasonable efforts to destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.

   4. Equitable Relief. Each party acknowledges that a breach of this Section 6 (Confidentiality) shall cause the other party irreparable injury and damage. Therefore, each party agrees that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.

7. WARRANTIES, LIMITATIONS, AND INDEMNIFICATION.

   1. End-User Warranty. All warranties with respect to the Services delivered to an End-User by the Partner run directly to the Partner under the terms of the applicable End-User Agreement. Cytracom is not making any warranty, express or implied, regarding the Software, Device, or Services to any End-User.  The Partner shall be solely responsible for any warranty that the Partner provides to an End-User regarding the Software, Device, or Services pursuant to an End-User Agreement.

   2. Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CYTRACOM MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICES, SOFTWARE, OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIMS ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OR TRADE, COURSE OF DEALING, OR COURSE OR PERFORMANCE, OR ANY WARRANTY THAT THE SERVICES WILL MEET THE PARTNER’S REQUIREMENTS. CYTRACOM DOES NOT WARRANT THAT THE SERVICE OR ANY DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, LOSS OF CONTENT, DATA OR INFORMATION, OR THAT THE SERVICES WILL FULFILL ANY OF THE PARTNER’S PARTICULAR PURPOSES OR NEEDS.  CYTRACOM DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES, ANY THIRD PARTY PRODUCTS OR SERVICES  SHALL CARRY ONLY THE WARRANTY, IF ANY, EXTENDED BY THE ORIGINAL MANUFACTURER. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST CYTRACOM TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.  

   3. Cytracom Indemnification. Subject to all exclusions and limitations provided herein, and provided that the Partner is not in breach of this Agreement, Cytracom shall indemnify the Partner against, and hold the Partner harmless from, all liabilities, claims, demands, costs and judgments (including reasonable attorney’s fees) and causes of action arising out of or resulting from any actual or alleged infringement, violation, or misappropriation of any third party intellectual property rights relating to the Documentation, Software, or the Services (“IP Claim”). In the event the Software, Documentation, or Services, or any use thereof, becomes the subject of an IP Claim, Cytracom shall either (a) procure (at Cytracom’s expense) for the Partner the right to continue using the Services and the underlying Software, , and/or Documentation; (b) replace or modify (at Cytracom’s expense) the Software, Documentation, and/or Services with a non-infringing version of substantially similar function and performance; or (c) terminate this Agreement and the license granted hereunder and reimburse the Partners such part of the fees previously paid pursuant to this Agreement to Cytracom for the portion of the Services that will not be provided due to such termination. This Section 7.3 represents the Partner’s sole remedy in the event of an IP Claim. Notwithstanding the foregoing, or anything else in this Agreement to the contrary, Cytracom will have no obligation to indemnify, defend, or hold the Partner harmless from or against any IP Claim and any related losses, liabilities, expenses, or costs, that arise from (A) the Partner’s or any of its End-User’s modifications, changes, or alterations to the Software, Documentation, Device, or Services that were not made or approved by Cytracom; (B) the Partner’s or any of its End-User’s use of the Software, Documentation, Device, or Services with the materials, software, hardware, or intellectual property of a third party which were not authorized by Cytracom; or (C) the Partner’s use of the Software, Documentation, Device, Services in a manner not contemplated by this Agreement.  THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE THE PARTNER’S SOLE AND EXCLUSIVE REMEDIES, AND CYTRACOM’S ENTIRE LIABILITY, WITH RESPECT TO ANY IP CLAIM.

   4. Partner Indemnification. The Partner shall indemnify Cytracom against, and hold Cytracom harmless from, all liabilities, claims, demands, costs and judgments (including reasonable attorney’s fees) and causes of action arising out of or resulting from: (i) any breach by the Partner of any of its obligations under this Agreement, (ii) the negligence, willful misconduct, or violation of law of or by the Partner; or (iii) any End-User Agreement or any threatened or actual claim regarding the Services made by an End-User, whether pursuant to the terms of an applicable End-User Agreement or otherwise.

   5. Indemnification Procedure. The party seeking indemnification (“Indemnitee”) shall be obligated to give the other party (“Indemnitor”) prompt notice of any event giving rise to indemnification obligations of the Indemnitor and shall permit the Indemnitor the opportunity to defend and settle such potential or actual claim or demand.

   6. LIMITATION OF LIABILITY. EXCEPT FOR ANY LIABILITY UNDER SECTIONS 5, 6, OR 7.4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR LICENSORS BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL, PROFITS OR SAVINGS, LOSS OF DATA, DOWNTIME, DAMAGE TO OR REPLACEMENT OF EQUIPMENT AND PROPERTY ARISING FROM CLAIMS BASED IN WARRANTY, CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT TORT), OR OTHERWISE IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, OR NON-PERFORMANCE OF ANY SERVICES PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SUCH PARTY, ITS SUBSIDIARIES, ITS ASSOCIATED COMPANIES, OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. EXCEPT FOR ANY LIABILITY UNDER SECTIONS 5, 6, OR 7.4, THE PARTNER AGREES THAT CYTRACOM’S AGGREGATE LIABILITY HEREUNDER FOR DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID BY THE PARTNER TO CYTRACOM FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACTIONABLE CLAIM GIVING RISE TO THE LIABILITY.

8. GENERAL PROVISIONS

   1. Entire Agreement; Acknowledgment. This Agreement, including all exhibits or addendums, or other supplemental documents incorporated herein by reference, as well as all future modifications, constitutes the sole agreement between Cytracom and the Partner relating to the Services and supersedes all previous writings and understandings with respect to the Services. The Partner acknowledges and agrees that this Agreement shall not affect the terms and conditions of any other agreement between the Partner and Cytracom (including, without limitation, any channel partner agreement) or Cytracom and its customers, and that any services, other than the Services, provided by Cytracom to the Partner or its customers (including any End-Users), shall be governed exclusively by the terms and conditions applicable to and governing such services. 

   2. Independent Contractor. The Partner shall not have any right or authority, either express or implied, to assume or create, on Cytracom’s behalf, any obligation or responsibility of any kind or nature. Cytracom and the Partner are independent contractors. Neither party is or shall claim to be a legal agent of the other, and neither shall have the right or authority to create any obligations for the other. This Agreement is not intended to constitute, create, give effect to or otherwise recognize a joint venture, partnership, or formal business entity of any kind between the parties.

   3. Mediation. In the event any dispute or claim arises between the Partner and Cytracom out of or relating to this Agreement that cannot be resolved informally between the parties, the matter will be submitted to a mutually agreeable and recognized mediation service and the Partner and Cytracom will jointly participate in the mediation process. If settlement cannot be reached through mediation, the Partner and Cytracom will have the right to take such action as deemed appropriate, subject to Section 9.3.

   4. Arbitration. Cytracom and the Partner agree to arbitrate any and all disputes and claims arising out of or relating to this Agreement that remain unresolved following mediation under Section 9.2. The arbitration shall be administered by the American Arbitration Association (“AAA”) and governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement, and shall be conducted in Texas. The arbitrator’s decision will be based on the plain meaning of the relevant documents and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides, or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

   5. Severability. In the event any portion of this Agreement is held legally invalid or unenforceable, the remaining portions will remain valid and enforceable.

   6. Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party. Any such assignment shall inure to the benefit of and be binding upon the assignee. Cytracom may assign this Agreement in connection with the sale of all or substantially all of its assets, or in connection with a merger or consolidation into or with another company provided that any such assignment shall inure to the benefit of and be binding upon the assignee.

   7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, excluding its conflict of laws principles.

   8. Force majeure. Both parties shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of the party’s best efforts. However, the party whose performance is delayed or affected shall use good faith efforts to minimize the effects of such delay.

   9. Waiver. No failure or delay by any party in exercising any right hereunder shall operate as a waiver.

   10. Changes to this Agreement. The Agreement may not be amended or modified except in writing, signed by both parties.

   11. Interpretation. Neither this Agreement in its entirety nor any provision herein shall be construed against either party as the drafter or originator thereof. In the event of any inconsistency between this Agreement and the terms of any attachment or addendum, the terms of the attachment or addendum shall govern.