This Argyle Platform and Reseller Agreement (this “Agreement”) is entered into by and between Argyle Systems Inc., a Delaware corporation (“Argyle,” “we,” “us,” or “our”) and you (“Reseller,” “you,” or “your”). You and Argyle may sometimes be referred to in this Agreement as a “Party” or collectively as the “Parties.”
If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” refers to such entity.
BY CLICKING THE “ACCEPT” BUTTON, EXECUTING A SERVICE ORDER, USING OR MAKING PAYMENT FOR THE ARGYLE PLATFORM OR ANY OF THE SERVICES, OR OTHERWISE INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU OR YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE ARGYLE PLATFORM OR THE SERVICES DESCRIBED HEREIN. WE MAY UPDATE THIS AGREEMENT AT ANY TIME AND WILL NOTIFY YOU VIA EMAIL OR UPON YOUR NEXT LOGIN IF ANY MATERIAL CHANGES HAVE BEEN MADE; YOU WILL HAVE THIRTY (30) DAYS FROM SUCH NOTICE TO REVIEW THE UPDATED AGREEMENT, AFTER WHICH IF YOU CONTINUE TO ACCESS OR USE THE ARGYLE PLATFORM OR ANY SERVICES, YOU WILL BE DEEMED TO HAVE AGREED TO THE UPDATED AGREEMENT.
WHEREAS, Argyle owns the Argyle Platform and API Key (each as defined below), a software-as-a-solution platform which Argyle allows access to and use of by its clients;
WHEREAS, Reseller wishes to access and use the Argyle Platform and API Key as a client of Argyle, and Argyle wishes to permit such access and use, all in accordance with the terms of this Agreement; and
WHEREAS, Reseller also wishes to resell the Argyle Platform and API Key to third parties, and Argyle wishes to permit such resale, in accordance with the terms of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledge, the Parties agree as follows:
1. Defined Terms
“API” means Argyle’s proprietary application programming interface
“API Key” means a unique key for the API made available by Argyle to its clients. An API Key may be a production API Key or a sandbox API Key.
“Applicable Laws” means all international, federal, state, provincial, and local laws, rules, regulations, binding regulatory guidance, directives, and governmental requirements applicable to a Party’s performance under this Agreement.
“Argyle Link” the front end UI widget that End Users interact with through a Client Application.
“Argyle Platform” means Argyle’s proprietary software-as-a-service platform that enables Argyle clients to retrieve, add to, and use End User Data from Data Locations on behalf of and at the express authorization of End Users.
“Client Application” means a software and/or software-as-a-service application developed by or on behalf of an Argyle client to integrate with the Argyle Platform.
“Client Data” means non-public account administrative data uploaded by an Argyle client to the Argyle Platform including, without limitation, billing information, account profile setup information, and similar administrative information, but expressly excluding End User Data and Usage Data.
“Customer(s)” means a business that (1) is not currently and/or has not been a customer/client of Argyle within the last twelve months; and, (2) Reseller marketed and sold the Argyle Platform to during the term of this Agreement; and (3) executes a Customer Agreement.
“Customer Agreement” means a written agreement between Reseller and a Customer, which grants the Customer the right to access and use the Argyle Platform and API Key, pursuant to terms that are at least as protective of Argyle as the terms contained herein, including the following sections of this Agreement: Section 2 (Use of Argyle Platform), Section 4 (Intellectual Property), Section 6 (Limited Warranties and Disclaimer) , and Section 8 (Limitation of Liability). Argyle must be added as a third party beneficiary to each Customer Agreement with the right to enforce the Customer Agreement as if it were a signatory thereto.
“Data Location” means a third-party service made available by Argyle to Argyle clients through the Argyle Platform, with whom an End User has a contractual relationship, and from whom the End User may retrieve or direct Argyle and the Argyle clients to retrieve End User Data through the Argyle Platform and/or API Key. The Parties acknowledge that the End User, not Argyle or any Argyle client (including, without limitation, Reseller), has the applicable contractual relationship with Data Locations.
” means Argyle-provided user documentation, in all forms, relating to the Argyle Platform and Services (e.g., user manuals and online help files), including the documentation available at https://www.argyle.io/docs
“End User” means an end-user of a Client Application with whom an Argyle client has a contractual relationship.
“End User Data” means any data, information, and materials about an End User provided to Argyle and/or an Argyle client by an End User through the Argyle Platform and/or API Key or through any Data Locations, including, without limitation, information about the End User’s Data Location account (e.g., login credentials), an individual’s name, address, telephone number, email address, financial information (such as credit card data or credit history), and service ratings.
“Prohibited Content” means content that: (i) is illegal under applicable law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains viruses or other destructive elements; or (viii) is otherwise objectionable to Argyle in its sole, but reasonable, discretion.
“Territory” means Customers in a specific industry, located in the United States.
2. Use of Argyle Platform
2.1. Argyle Platform. Subject to Reseller’s payment of all applicable fees and compliance with this Agreement, Argyle grants to Reseller a worldwide, non-exclusive, non-transferable, non-sublicenseable right and license during term of this Agreement to access and use the Argyle Platform, subject to the terms of this Agreement, solely as necessary to provide services to End Users of Reseller’s Client Application and for no other purpose.
2.2. API; API Key. Subject to Reseller’s payment of all applicable fees and compliance with this Agreement, Argyle grants to Reseller a worldwide, non-exclusive, non-transferable, non-sublicenseable right and license during the term of this Agreement to (i) download one (1) copy of the sandbox API Key and production API Key, (ii) use the production API Key to access the API through Reseller’s Client Application solely for the purpose of Reseller’s provision of services to its End Users and for no other purpose, and (iii) make a reasonable number of copies of the API Keys solely for testing, backup, or archival purposes.
2.3. Modifications. Argyle reserves the right to modify the Argyle Platform and/or API Key from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that such additions, deletions, or modifications to features: (i) will not materially decrease the overall functionality of the Argyle Platform or API Key; and (ii) will be described by us through updates to the Documentation.
2.4. Availability. Argyle cannot guarantee the continued availability of Argyle Platform features, and may cease providing them, including, without limitation, if the provider of a Data Location ceases to make the Data Location available for interoperation with the corresponding Argyle Platform features in a manner acceptable to Argyle.
2.5. Service Levels. Subject to the terms of this Agreement, during the applicable Order Term, Argyle will provide to Reseller the applicable Financial Credit(s) set forth below when the Argyle Platform does not meet the corresponding Service Level Commitment(s) set forth below. Financial Credits are confined to the month that the Service Level Commitment was not met, and calculation of Financial Credits are based on the invoice value for the month that Service Level Commitment was not met. The Service Level Commitments below apply solely to the availability of the Argyle Platform, and they do not apply to the availability of any third party sites or services that are integrated into or accessible through the Argyle Platform including, but not limited to, Data Locations, or the ability to access or transmit data to or from any of the foregoing.
2.6. Reseller Responsibilities and Restrictions on Use.
2.6.1. Restrictions on Use. Reseller will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Reseller’s authorized personnel (in accordance with the terms of this Agreement) to access and use the Argyle Platform or API Key; (ii) share its login credentials to the Argyle Platform or API Key with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Argyle Platform or API Key; (iv) modify, adapt, or translate the Argyle Platform or API Key; (v) make any copies of the Argyle Platform or API Key; (vi) resell, distribute, or sublicense the Argyle Platform or API Key, or use the Argyle Platform or API Key for the benefit of anyone other than Reseller or its End Users as specifically set forth herein, unless consented to in writing by Argyle; (vii) save, store, or archive any portion of the Argyle Platform or API Key (including, without limitation, any data contained therein) outside the Argyle Platform other than those outputs generated through the intended functionality of the Argyle Platform as set forth in the Documentation, without the prior, written permission of Argyle in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Argyle Platform or API Key; (ix) use the Argyle Platform or API Key in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (x) introduce, post, or upload to the Argyle Platform or API Key any Prohibited Content; or (xi) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Argyle Platform or API Key. Upon our request, you will use commercially reasonable efforts to assist us in preventing and enforcing these restrictions.
2.6.2. Compliance. Argyle has the right to monitor compliance with this Agreement. If any such monitoring reveals that Reseller is not using the Argyle Platform or API Key in compliance with this Agreement, then Reseller will promptly remedy any such non-compliance, including, if applicable, through the payment of additional fees.
2.6.3. Authorized Users; Accounts. Reseller is responsible and liable for all actions and inactions by its employees or contractors that Reseller permits to access or use the Argyle Platform or API Key, as if such action or inaction were an action or inaction of Reseller. Reseller is responsible for maintaining control over Reseller’s account on the Argyle Platform, including the confidentiality of any login credentials, and is responsible for all activities that occur on or through Reseller’s account and its authorized users’ accounts, whether authorized by Reseller or not.
2.6.5. End User Account Deletion. Reseller will make Argyle Link available to its End Users at all times through its Client Application, to enable its End Users to manage their data connection preferences through Argyle Link. If an End User deletes its account with Reseller or Reseller’s Client Application, revokes authorization for Reseller and/or Argyle to retrieve End User Data from any Data Location (s), or otherwise requests any removal, correction, deletion, or inspection of any End User Data, such updated and changes will be transmitted to Argyle via the API and Argyle will either delete the applicable End User Data from the Argyle Platform or terminate Reseller’s access to such End User Data, depending upon the End User request.
2.6.6. Reseller’s Client Application and Equipment. Reseller is responsible for maintaining its Client Application and obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Argyle Platform and/or API Key, including modems, hardware, servers, software, operating systems, networking equipment, and web servers. Reseller is responsible for maintaining the security of such equipment. Argyle is not responsible for any issues or delays in the Argyle Platform or API Key caused by the failure of Reseller’s Client Application or any such equipment.
2.7. Data Locations. End Users may, through Reseller’s Client Application as integrated with the Argyle Platform through the API, direct Argyle to connect to certain Data Locations on the End User’s behalf in order to retrieve End User Data and provide it to Reseller. Only Data Locations approved by an End User shall be permitted to share the applicable End User Data with Reseller, and then only upon the End User’s express direction and consent. Nothing in this Agreement is intended to create any contractual relationship by and between Reseller and the Data Locations or Argyle and the Data Locations. End User is the sole contracting party with the Data Locations and Argyle and Reseller shall be acting as End User’s agent and/or attorney in fact when accessing End User Data on End User’s behalf through such Data Locations.
2.8.1. License. Subject the terms and conditions of this Agreement including Section 2.8.2 below, Reseller hereby grants to Argyle a worldwide, non-exclusive, royalty-free, fully-paid license (with the right to sublicense to Argyle’s third-party hosting provider and other service providers) during the term of this Agreement to host, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Reseller’s Client Data solely for the purpose of providing and supporting the Services to and for Reseller and its End Users.
2.8.2. Usage Data. Reseller acknowledges and agrees that Argyle may aggregate Reseller’s Client Data, data relating to Reseller’s usage of the Argyle Platform and/or API Key, End User Data and data relating to Reseller’s End Users’ use of Argyle Link, together with data relating to Argyle’s other clients and users of the Argyle Platform, API Key, and Argyle Link, in an anonymous manner that removes all personal information and information about the source of such data (the “Usage Data”) and that Argyle may reproduce, execute, use, store, archive, modify, enhance, perform, display, distribute, sell, rent, vend, license, or otherwise exploit Usage Data for any lawful purpose both during and after the Order Term. For the avoidance of doubt, Usage Data will not identify Reseller or any of its End Users.
2.9. Access and Use Fees. Reseller will pay Argyle for its access and use of the Argyle Platform and API Key, in accordance with pricing listed in Exhibit A attached hereto. Payments will be due within thirty (30) days from the invoice date.
3. Appointment as Reseller
3.1. Appointment. Subject to the terms and conditions of this Agreement, Argyle appoints Reseller, to act as Argyle’s non-exclusive reseller of the Argyle Platform and API Key within the Territory, and Reseller accepts such appointment.
3.1.1. Argyle authorizes Reseller to market and sell the Argyle Platform and API Key to Customers. Reseller shall (i) not use the Argyle Platform, API Key, End User Data, or any data obtained therefrom for its own business purposes or for any purpose other than to market and sell to Customers (except as expressly set forth in Section 2 above), and (ii) ensure that each Customer uses the Argyle Platform, API Key and any End User Data obtained therefrom for the sole purpose of servicing Customer’s clients and not for any other purpose, and each Customer Agreement will include language to this effect. If Reseller is directed by a Customer to obtain End User Data, then (a) Reseller will enter into a written agreement with such Customer which will addressing the sharing of the End User Data between Reseller and Customer, will require either or both parties to obtain the applicable individuals’ consent, and will be in compliance with all Applicable Laws (the “Data Sharing Agreement”), (b) use of the End User Data by Reseller and Customer must be in accordance with the terms of this Agreement and all Applicable Laws; and (c) Reseller shall not share any End User Data obtained on behalf of a specific Customer with any other Customer or any other third party.
3.1.2. In furtherance of the foregoing and subject to the term of this Agreement, Reseller shall be solely responsible for all sales, marketing, delivery, pricing and collections with regard to the sale of the Argyle Platform and API Key as permitted herein.
3.2. Rights of First Refusal: Prior to the date on which Reseller and Customer enter into a Customer Agreement, Argyle shall maintain the right of first refusal to enter into an agreement directly with any such potential Customer. Should Argyle exercise its Right of First Refusal, Reseller shall cease marketing to and communicating with such potential Customer.
3.3. Business Conduct. Reseller warrants, represents and covenants that in exercising its rights under this Agreement, it will at all times: (a) conduct business in a manner that reflects favorably at all times on Argyle and its products or technology and the good name, good will, and reputation of Argyle, (b) avoid deceptive, misleading, or unethical practices, and (c) not make any false or misleading representations with regard to Argyle or the Argyle Platform or API Key, or any representations or warranties with respect to the Argyle Platform or API Key that have not been pre-approved in writing by Argyle.
3.4. Contracts and Platform Access
3.4.1. Customer Agreements. Customer Agreements shall be entered into by and between Reseller and each Customer. Accordingly, Reseller will be responsible to invoice and collect payments from Customers. Reseller represents, warrants and covenants that each Customer Agreement will comply with the terms contained herein. Upon Argyle’s request, Reseller shall provide Argyle with copies of Customer Agreements.
3.4.2. Customer Support. Reseller will be solely responsible for providing customer service and support, to Customers with respect to the Argyle Platform and API Key. Argyle will provide reasonable support to Reseller in connection therewith.
3.5. Promotional Activities.
3.5.1. Marketing Materials. Reseller shall market the Argyle Platform using only marketing and promotional materials that have been provided by Argyle or approved in writing by Argyle prior to use. Reseller shall not make any false or misleading statements relating to Argyle or the Argyle Platform.
3.5.2. Limited Right to Use Marks. During the term of this Agreement, Argyle grants to Reseller the right to Argyle’s trademarks and logos (the “Marks”) solely as necessary to market and promote the Argyle Platform in accordance with this Agreement. Reseller will use such Marks only in a manner that complies in all material respects with Argyle’s trademark usage policies in effect from time to time. Reseller will submit to Argyle all representations of the Marks that Reseller intends to use in connection with its promotion of the Argyle Platform, for Argyle’s approval of design, color, and other details. If Reseller, in the course of exercising its rights hereunder, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Argyle when and as, on an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Reseller, and Reseller agrees to take all such actions necessary to effect such vesting. Reseller will not contest the validity of any of the Marks or Argyle’s exclusive ownership of them. During the term of this Agreement, Reseller will not adopt, use, or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks, or any word or mark confusingly similar to them in any jurisdiction. Upon the expiration or termination of this Agreement for any reason, Reseller will immediately stop all activities hereunder, cease using the Marks, and not thereafter use the Marks for any reason.
3.5.3. Resale Fees. Reseller will pay Argyle on a per Customer basis, in accordance with pricing listed in Exhibit A attached hereto. Payments will be due within thirty (30) days from the invoice date.
3.5.4. Resale Limits. Reseller is not permitted to market to or sell Argyle services to a current Argyle customer. Reseller is limited to client’s with less than 100 employees.
4. Intellectual Property
4.1. Restrictions. Reseller will not, nor attempt to: (1) interfere with, modify or disable any features or functionality of the Argyle Platform or API Key, including any mechanisms used to restrict or control the Argyle Platform or API Key, such as anti-circumvention measures; (2) reverse engineer, decompile, disassemble or derive source code, algorithms, structure or organizational form of the Argyle Platform or API Key; (3) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms of the Argyle Platform or API Key; (4) knowingly allow any third party to access or use the Argyle Platform or API Key; or (5) sublicense, lease, rent, assign, distribute, resell or otherwise transfer or disclose the Argyle Platform or API Key to any third party.
4.2. Argyle IP. Argyle and its licensors own and shall retain all right, title, and interest in and to the Argyle Platform, API, API Keys, Documentation, and Usage Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual property rights therein or associated therewith (collectively, the “Argyle IP”). No ownership rights in or to the Argyle IP are transferred to Reseller or any Customer by this Agreement or otherwise. Reseller does not have any rights in or to the Argyle IP except for the limited express rights granted in this Agreement.
4.3. End User Data. The Parties acknowledge that each End User owns all right, title, and interest in and to its End User Data.
4.4. Feedback. If Reseller provides any feedback to Argyle concerning the functionality or performance of the Argyle Platform or API Key (including identifying potential errors and improvements), Reseller hereby assigns to Argyle all right, title, and interest in and to the feedback, and Argyle is free to use the feedback in any manner and for any purpose without payment or restriction.
5. Term and Termination
5.1. Term. The Agreement will commence on the Effective Date and continue for an initial period of one (1) year. Thereafter, this Agreement will automatically renew additional one (1) year terms, unless either Party provides written notice of termination at least ninety (90) days prior to the expiration of the then-current term.
5.2. Termination. Either Party may terminate this Agreement in whole or in party if the other Party breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days of notice from the non-breaching Party. In addition, Argyle may terminate this Agreement in whole or in part for any or no reason at any time upon at least thirty (30) days’ notice to Reseller.
5.2.1. Upon expiration or termination of this Agreement, (i) Reseller will immediately cease all use of the Argyle Platform and all marketing and promotion of the Argyle Platform; and (ii) the Parties will reasonably cooperate to transition all Customers either off of the Argyle Platform, or from Reseller to Argyle including, the transition of data and access to the Argyle Platform (the “Customer Transition”). With respect to Customers transitioned from Reseller to Argyle, Argyle will pay Reseller an amount equal to eight percent (8%) of net fees collected by Argyle from such Customer(s) with respect to the Argyle Platform during the twelve (12) months immediately following the Customer Transition, minus any discounts, refunds, credits, and taxes. Each Party shall pay its own costs relating to the Customer Transition. The Customer Transition will be completed within 120 days following the termination of this Agreement.
5.2.2. Upon expiration or termination of this Agreement, Argyle will make all Client Data then held by Argyle available to Client for electronic retrieval for a period of thirty (30) days. After such period, Argyle will delete or cause to be marked for deletion any Client Data in its systems or otherwise in its possession or under its control.
5.3. Survival and Continuing Obligations. Termination by either Party shall not relieve either Party from any obligation accrued through the date of termination. In addition, the terms and conditions set forth in this Agreement which by their nature would continue beyond termination of this Agreement including, Sections 1 (Definitions), 4 (Intellectual Property), Section 5.2.1, Section 5.2.2, this Section 5.3 (Survival and Continuing Section 6.3 (Disclaimers), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidentiality) and Section 10 (General Provisions), shall survive the expiration or earlier termination of this Agreement.
6. Limited Warranties and Disclaimer
6.1. Representations and Warranties. Each Party represents and warrants to the other that: (i) it is a business entity duly organized and in good standing as required under all jurisdictions where it does business; (ii) its execution, delivery and performance of this Agreement has been duly authorized by all necessary company action; (iii) it has all necessary authorizations, consents, and permissions necessary to perform under this Agreement; and (iv) this Agreement constitutes a legal, valid and binding obligation enforceable against such Party. Reseller further represents and warrants to Argyle that (i) Reseller owns all of Reseller’s Client Data, or has the necessary licenses, rights, consents, and permissions to authorize Argyle to use Reseller’s Client Data in accordance with this Agreement; and (ii) Reseller will obtain and maintain all necessary licenses, rights, consents, and permissions from sits End Users as set forth herein on behalf of itself and Argyle for the Parties to perform their obligations and exercise their rights under this Agreement without liability, and all such licenses, rights, consents and permissions shall be obtained in accordance with all Applicable Laws, including all U.S. and foreign privacy laws.
6.2. Compliance with Applicable Laws. Each Party represents and warrants to the other Party that it will comply with all Applicable Laws in connection with exercising its rights or performing its obligations under this Agreement. Each Party acknowledges and agrees that, in connection with Reseller’s use of the Argyle Platform, End User Data will be transmitted or made available in a mechanical manner, and that neither Argyle nor Reseller will alter the substance of the End User Data. Each Party will be acting only as a service provider and/or a conduit, and not as a consumer-reporting agency, in connection with the End User Data processed and transmitted under this Agreement. Argyle is providing the End User Data only as requested by the End Users and as requested and authorized by the owner of such information. Each Party acknowledges that neither Party is a reseller of data but simply provides the service of transferring data as requested and authorized by the owner thereof from one party to the party directed and authorized to receive the data by the owner thereof. During the term of this Agreement, if Reseller is or becomes either a “consumer reporting agency” or a “furnisher” of information to consumer reporting agencies under the Fair Credit Reporting Act (“FCRA”), or if Reseller has reason to believe Argyle’s provision of the Argyle Platform, API Key, or End User Data would constitute a “consumer report” under the FCRA, (i) Reseller will immediately notify Argyle in writing; (ii) the Parties will discuss in good faith any additional requirements imposed by Applicable Law; and (iii) if the Parties are unable to agree on whether or how to comply with Applicable Law, either Party may immediately terminate this Agreement upon notice to the other Party.
6.3. Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 6, ARGYLE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ARGYLE PLATFORM, API, API KEY, DOCUMENTATION, END USER DATA OR OTHERWISE RELATING TO THIS AGREEMENT, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE ARGYLE PLATFORM, API, API KEY, DOCUMENTATION, END USER DATA AND ANYTING ELSE PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE;” ARGYLE DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL SATISFY RESELLER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED. FURTHER, ARGYLE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY DATA LOCATION OR THE END USER DATA, ITS ACCURACY, COMPLETENESS, OR CURRENTNESS. ARGYLE DOES NOT CONTROL OR HAVE ANY CONTRACTUAL RELATIONSHIP WITH ANY DATA LOCATION, AND HAS NO OBLIGATION TO, VERIFY OR REVIEW THE END USER DATA. RESELLER’S RELIANCE ON ANY END USER DATA IS AT ITS OWN RISK. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES, SO THAT LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT.
7.1. Indemnification by Argyle.
7.1.1. Subject to Section 7.1.2, Argyle will defend, indemnify, and hold Reseller harmless from and against any and all damages, losses, liabilities, fines, penalties, judgments, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by you in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising in connection with (i) an allegation that Reseller’s access and use of the Argyle Platform or API Key in accordance with this Agreement infringes or misappropriates any United States patents, copyrights, or trade secrets (an “Infringement Claim”); or (ii) Argyle’s gross negligence or willful misconduct.
7.1.2. Argyle is not obligated to indemnify, defend, or hold Reseller harmless with respect to any Infringement Claim to the extent: (i) the Infringement Claim arises from or is based upon Reseller’s or any of its personnel’s use of: (a) the Argyle Platform or API Key not in accordance with the Documentation, this Agreement, or Applicable Law; or (b) any unauthorized modifications, alterations, or implementations of the Argyle Platform or API Key made by Reseller or at Reseller’s request (other than by Argyle); (ii) the Infringement Claim arises from use of the Argyle Platform or API Key in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by Argyle; or (iii) the Infringement Claim arises from any use of the Argyle Platform or API Key for which they were not designed. In the event that Argyle reasonably determines that the Argyle Platform or API Key, or any portion thereof, are likely to be the subject of an Infringement Claim, Argyle shall: (x) procure for Reseller the right to continue to use the Argyle Platform and/or API Key as provided in this Agreement; (y) replace the infringing components of the Argyle Platform and/or API Key with other components with equivalent functionality; or (z) suitably modify the Argyle Platform or API Key so that they are non-infringing and functionally equivalent. If none of the foregoing options is available to us on commercially reasonable terms, Argyle may terminate this Agreement without further liability to Reseller and refund Reseller a pro-rated portion of any pre-paid fees. This Section 7.1.2, together with the indemnity provided under Section 7.1.1, states Reseller’s sole and exclusive remedy, and Argyle’s sole and exclusive liability, regarding any Infringement Claim.
7.2. Indemnification by Reseller. Reseller shall, at its own cost, indemnify, defend, and hold harmless Argyle and its officers, directors, members, agents and employees (the “Argyle Indemnified Parties”) from and against any and all Losses incurred by any Argyle Indemnified Parties in connection with any Claim that is based on or arises from (i) Reseller’s breach of its representations, warranties, covenants or other obligations under this Agreement or violation of any Applicable Law; (ii) the operation of Client’s business; (iii) Client’s use of or reliance on the End User Data; (iv) any Client Application End User Terms; (v) the gross negligence or willful misconduct of Reseller or any of its employees or agents; (vi) any Customer Agreement; or (v) any Data Sharing Agreement.
7.3. In the event of any Claim for which a Party indemnifies under this Section 7, the Party seeking indemnification (the “Indemnified Party”) will notify the other Party (the “Indemnifying Party”); provided, however, that the failure of the Indemnified Party to give notice hereunder will not affect its rights to indemnification hereunder, except to the extent that the Indemnifying Party can demonstrate actual, material prejudice as a result of such failure. The Indemnified Party may participate in the defense of the Claim by counsel of its own choosing at its own cost and expense, and such participation by the Indemnified Party shall not relieve the Indemnifying Party of its indemnification obligations hereunder. The Parties will fully cooperate with each other in the defense of any such Claim and will make available to each other any books or records useful for the defense of any such Claim. The Indemnifying Party shall not enter into any settlement or resolution of any Claim or make any admission of guilt or liability on the part of the Indemnified Party, without the Indemnified Party’s express prior written consent.
8. Limitation of Liability
8.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY RESELLER TO ARGYLE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
8.3. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 SHALL NOT APPLY TO (I) A PARTY’S INDEMNITY OBLIGATIONS HEREUNDER; (II) BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER; OR (III) A PARTY’S GROSS NELGIGENCE OR WILLFUL MISCONDUCT.
8.4. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE BUSINESS TERMS OF THIS TRANSACTION AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
9.1. “Confidential Information” means information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) either directly or indirectly in writing, orally, or by drawings or inspection of equipment and which is marked as confidential or proprietary, is customarily considered confidential between business parties, or should reasonably be understood to be confidential based on the nature of the information and circumstances of the disclosure. Without limiting the foregoing, Argyle’s Confidential Information includes all Argyle Platform and related technology, source code and documentation, as well as any and all data obtained through the Argyle Platform. Confidential Information does not include information that the Receiving Party can show (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; (d) is obtained by the Receiving Party from a third Party without a breach of such third Party’s obligations of confidentiality; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
9.2. Non-use and Non-disclosure. The Receiving Party will not, during or subsequent to the term of this Agreement, use the Disclosing Party’s Confidential Information for any purpose other than the purposes specified in this Agreement, or disclose the Disclosing Party’s Confidential Information to any third Party other than as expressly permitted in this Agreement. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law, provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting the information from public disclosure. Except as otherwise specified in this Agreement, it is understood that the Disclosing Party’s Confidential Information will remain the sole property of the Disclosing Party. The Receiving Party will protect the confidentiality of the Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect its own confidential information but in no event less than a reasonable degree of care.
9.3. Return of Materials. Upon the termination or expiration of this Agreement, or upon the Disclosing Party’s earlier request, the Receiving Party will deliver to the Disclosing Party all of the Disclosing Party’s property or Confidential Information that the Receiving Party may have in its possession or control. Notwithstanding the foregoing, the Receiving Party will not be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform under this Agreement.
10. General Provisions
10.1. Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and does not constitute a partnership, joint venture, or other relationship. Nothing contained in this Agreement should be construed to give either Party the power to act as an agent or direct or control the day-to-day activities of the other. All financial and other obligations associated with each Party’s business is the sole responsibility of that Party.
10.2. Insurance Requirements. Reseller shall carry commercial general liability insurance with limits of no less than $1,000,000 per claim and $2,000,000 in the aggregate and, if applicable, worker’s compensation insurance as required by law, together with employer’s liability insurance coverage, professional errors and omissions liability insurance coverage with limits of no less than $1,000,000 per claim and $2,000,000 in the aggregate, and cyber insurance coverage with limits of no less than $1,000,000 per claim and $2,000,000 in the aggregate. Upon Argyle’s request, Reseller shall furnish a certificate of insurance evidencing the required coverage. All policies shall be written by reputable insurance companies authorized to do business in New York and a Best’s policyholder rating of not less than A VII.
10.3. Assignability and Binding Effect. Reseller may not assign (whether by operation of law or otherwise) its rights and obligations under this Agreement without the prior written consent of Argyle; Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns.
10.4. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
10.5. Force Majeure. Nonperformance of either Party will be excused to the extent that performance is rendered impossible by pandemic, strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party.
10.6. Governing Law. This Agreement is governed by the laws of the State of New York, without giving effect to provisions related to choice of laws or conflict of laws.
10.7. Venue and Jurisdiction. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in State of New York, Borough of Manhattan, unless Argyle seeks injunctive relief that, in Argyle’s judgment, would not be effective unless obtained in some other venue.
10.8. Waiver. The waiver by either Party of any breach of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation under this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
10.9. Severability. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.
10.10. Drafting. The parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits. No ambiguity will be construed against any Party based upon a claim that that Party drafted the ambiguous language.
10.11. Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.
10.12. Entire Agreement. This Agreement, including any exhibits, is the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding these matters. It may be changed only by a written agreement signed by the Party against whom enforcement is sought.
10.13. Execution in Counterparts. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute the same instrument.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.