Develocity Reseller Agreement

Effective starting: November 4, 2020

This Gradle Reseller Agreement (the ““Reseller Agreement“) is between the applicable reseller (you or “Reseller“), and Gradle Inc., a Delaware corporation with its principal place of business at 2261 Market Street #4081, San Francisco, 94114 CA, and their Affiliates (“Gradle”). If you are agreeing to this Reseller Agreement other than in an individual capacity, but on behalf of your company, “Reseller” or “you” means your company, and you warrant your represent that you are authorized to bind you company to this Agreement and do full so with full authority you are binding your company to this Reseller Agreement.

This Reseller Agreement is a separate agreement from the agreement that Gradle has with its end users at https://gradle.com/legal/develocity-software-license-agreement as may be modified from time to time with or without notice,  (“Gradle Terms of Service,”) except for the limited incorporation of definitions and terms related to our products and services, including but not limited to Software, Hosted Services, and Authorized Users) will be the same as those in the Gradle Terms of Service. Periodic review is advised.

  1. Order Requirements

To the extent that we make Products available for resale, You may order such Products in the manner indicated by Gradle at the time of order. You must provide all of the requested information including the identity of the end user, any parent or partner, the end user’s business and email addresses, the specific licenses requested, Hosted Services subscriptions, and other Products we agree you may sell pursuant to a valid resale order (“Reseller Order”). All information must be accurate and complete and must accurately reflect bona fide orders received from end users.

  1. Limited Right to Resell

Subject to terms of this Reseller Agreement, we grant you a one-time, non-exclusive, non-transferable right to resell the Products specified in your Reseller Order to the end user specified in the Reseller Order. Use by any end user must be consistent with and in accord with the Gradle Terms of Service. This right to resell does not apply to any end user other than the one(s) identified in the order for Products. Your authorization to sell does not include a sale to any 3rd party, including a related organization or affiliate, nor to any subsequent, additional party, or renewal by entity previously sold, or to sale partners.

  1. Enforcement of Gradle Terms of Service

3.1 End User Terms. Any and all use of the Product(s) by end users is subject to the Gradle Terms of Service. You are not authorized to make changes, modify, or grant exceptions to these terms. You are responsible for providing every end user with a completed copy of the Gradle Terms of Service, and obtain an acknowledgement of receipt and agreement to be bound on a form to be provided you by Gradle. The receipt, a copy of which will be provided each customer, will include limitations on Authorized Users and quantity restrictions applicable to the each end user’s order.

3.2 Enforcement Cooperation. You agree to notify us within 24 hours of any known or suspected breach of the Gradle Terms of Service or, unauthorized use of the Products. Your assistance and cooperation is mandatory, if requested, in enforcement of the terms of the Gradle Terms of Service.

  1. Identification as Reseller

Subject to this Reseller Agreement, you are permitted to identify yourself as an Gradle “Reseller” solely in connection with your resales of Products. You may not use any Gradle trademark, logo or service mark (“Gradle Marks”) except as permitted by Gradle. All goodwill arising from your use of Gradle Marks inures to the benefit of Gradle.

  1. Payment and Delivery

5.1 Fees. Your non-refundable, non-cancelable payment to Gradle is due when you submit your Reseller Order.

5.2 Delivery. Upon receipt of payment we will deliver a valid Software license key and Hosted Services login information, and other information necessary for end users to access the  Products. Gradle distributes its product electronically. This information will be sent to the contact specified in the Reseller Order. In the event we deliver license keys or logins to you, that will not suffice as an authorization for you to provide them to any other third party, nor does it constitute an authorization for you to use or access to the Software, Hosted Services, or other Products.

5.3 Taxes. Payments made by you under this Reseller Agreement exclude any and all taxes, levies, charges, or duties payable on account of sale or use of Gradle Products in each jurisdiction where the payments are either made or received. To the extent that any such taxes and other items are payable by Gradle, you agree to pay in full, all such amounts in addition to all fees owed under this Reseller Agreement. In the event you have obtained an exemption from applicable taxes, charges, duties, or other item indicated in this Section, as of the time such taxes or duties are levied or assessed, you have the right to provide to Gradle such exemption information in a timely manner. Gradle will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority.

5.4 End User Pricing and Payment; Refunds. You will independently set your own pricing to each end user. You bear all risk of non-payment by end users, and you are solely responsible for any and all of your own costs and expenses. You may not terminate a Reseller Order or receive any type of refunds due to non-payment by an end user. If Gradle provides a refund to an end user pursuant to its standard return policies, Gradle, at its option, may refund such amounts either directly to the end user, or to you for distribution to the end user, at its discretion. You accept that you acts as a fiduciary in this regard and agree to promptly facilitate any and all such refunds.

  1. Feedback

If you provide Gradle feedback, (“Feedback”), including but not limited to comments, suggestions, ideas, recommended improvements, know how, experiences, concepts, additional or new applications, description of processes, and all other information pertaining to, or in connection with Gradle Products or our Reseller program this information shall become the sole and exclusive property of Gradle. If such transfer is not permitted, you grant Gradle a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. No Feedback will be deemed an End-User’s, or Reseller’s, or other party’s property or Confidential Information.  Nothing in this Reseller Agreement (including without limitation Section 11 Confidentiality) limits Gradle’s right to independently use, exploit, develop, evaluate, market, or incorporate into products, or otherwise use Feedback for any and all purpose of its choosing.

  1. No Use Rights; Gradle Reserved Rights

Only the end user customer of the Products (and its Authorized Users) may use the Products. You are not permitted to use any Products resold under this Reseller Agreement for your own benefit Notwithstanding anything to the contrary contained in this Reseller Agreement, except for the limited resale right in Section 2 above, Gradle and its suppliers have and will retain all rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all Products, service descriptions, documentation, and underlying technology (“Gradle Technology”), and all copies, modifications and derivative works thereof, including without limitation as may incorporate Feedback. You acknowledge that you are obtaining only a limited right to resell the Products and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Reseller Agreement or otherwise.

  1. Reseller Obligations and Liability

8.1 End User Relationships; Business Practices. You agree not to represent yourself as an agent or employee of Gradle and acknowledge that Gradle has ultimate and primary control over  communications to and with End Users regarding Gradle Products following submission of any Reseller Order. You are not authorized to make any representations on behalf of Gradle, its, or services. You agree not to engage in acts, regardless of where occurring, that under U.S. law would be regarded as illegal, or civilly actionable, including but not limited to any that are violative of the implied covenant of fair dealing, offend notions of fair play, or are fraudulent, deceptive, misleading, or unethical. You agree to comply with applicable U.S. federal laws or regulations, or their foreign equivalents essentially similar during the duration of Reseller Agreement including, without limitation, the U.S. Foreign Corrupt Practices Act and all  similar laws or regulation in a   jurisdiction where Products are sold, or used. You are responsible for knowledge of and compliance with any and all export and import laws and regulations, including U.S. embargos,  sanctions, and prohibitions on export to U.S. federally designated jurisdictions, prohibitions on certain uses, and  certain users.

8.2 Indemnity. You are fully responsible for all, and each and every of your own debts, obligations, liabilities and expenditures, regardless of type, that arise on account of your resales.  You agree to indemnify, hold harmless, and defend Gradle from any and all actions, including but not limited to any claim, loss, cost, liability or damage, to include costs of suit, investigation, and lawyers’ fees,  arising from, or relating to, (a) any breach, or alleged breach, by you of  any term(s) of this Reseller Agreement; (b) the issuance by you of any tacit or express warranty or representation regarding Gradle, its products, services, or otherwise not specified in the Gradle Terms of Service, and (c) any other  breach occasioned by commission  or omission in connection with your resales of Gradle Products under this Reseller Agreement.

  1. Termination

9.1 Termination. We may terminate this Reseller Agreement if you materially breach, and fail to cure any such breach, if possible, within five (5) days of written notice . You are required to notify Gradle of any and all breaches as soon as reasonably known. In addition, either party may terminate this Reseller Agreement for any reason, with or without cause, upon thirty (30) days’ written notice to the other party. Gradle may terminate this Reseller Agreement at any time upon notice to you if (a) it ceases to offer the current Reseller program or any Product subject to this Agreement, or (b) it reasonably believes that continuing this Agreement could result in business detriment, legal liability for Gradle, or otherwise harm Gradle or its end users.

9.2 Effect of Termination. You expressly agree that Gradle will have no liability, regardless of type, to you resulting from any termination or expiration of this Reseller Agreement in accordance with its terms. Upon termination or expiration you must,  (a) immediately cease identifying yourself as a Gradle Reseller, (b) destroy any and all Gradle Confidential Information in your possession unless we request that you return such materials to us, (c) certify destruction in a manner satisfactory to Gradle, and (d) satisfy all outstanding or required financial obligations, all of which shall be deemed ongoing obligations. This Section, Feedback, and others, as applicable, shall survive this Agreement.

  1. Changes to Agreement

From time to time, we may modify this Reseller Agreement. The version in effect at the time you submit any Reseller Order is the governing Agreement. We will use reasonable efforts to notify you of changes but it is your responsibility to monitor the Gradle website linked below for the current Agreement in place.

  1. Confidentiality

Except as otherwise set forth, each party agrees that any and all code, inventions, know-how, business, technical and financial information it obtains (as “Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential information and property  (“Confidential Information”), of the Disclosing Party provided that it is identified as confidential at the time of disclosure, or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding its disclosure. Notwithstanding the foregoing, all Gradle Technology, Products and performance information shall be deemed Confidential Information of Gradle without marking or further designation. The Receiving Party will hold in confidence and not use or disclose any Confidential Information of the other. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of Gradle’s Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a disinterested third party without breach of any confidentiality obligation; (c) is independently developed by  a Receiving Party ; or (d) is required to be disclosed pursuant to a lawful regulation, law or court order. A Party receiving a demand, notice, or order to produce or disclose Confidential Information shall immediately notify the other Party with sufficient time to contest such order or demand. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy for the Disclosing Party, wherefore, in addition to all other applicable remedies it shall be entitled to equitable relief.

  1. Gradle Commitments; DISCLAIMER OF WARRANTIES

Any warranties regarding Product are made solely by Gradle to End Users in accordance with the Gradle Terms of Service and do not extend to you as a Reseller. GRADLE MAKES NO WARRANTIES, EXPRESS OR IMPLIED TO YOU AND WHERE MADE APPLICABLE STATUTE SUCH STATUTE IS EXPRESSLY WAIVED TO THE EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

  1. LIMITATION OF LIABILITY

13.1 Waiver of Consequential Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER GRADLE NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSSES INCLUDING LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, FREEDOM FROM INTRUSIVE ELEMENTS, LOSS OF PROFITS, OR ANY OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF FORM OF ACTION OR THEORY OF RECOVERY, WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

13.2 Liability Cap. GRADEL’S ENTIRE LIABILITY UNDER THIS RESELLER AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY RESELLER TO GRADLE IN RESPECT OF THE RESELLER ORDER THAT IS THE SUBJECT OF THIS RESELLER AGREEMENT AND ANY AMOUNTS IN EXCESS OF THIS THRESHHOLD ARE EXPRESSLY WAIVED.

  1. Dispute Resolution; Governing Law

14.1 Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Reseller Agreement, the parties  shall meet and confer before any action or proceeding is commenced.  If the parties do not reach a settlement within thirty (30) calendar days, unresolved issues will be decided. by Arbitration under the Rules of Arbitration of the International Chamber of Commerce, except as provided herein. The parties will attempt to agree on a mutually acceptable arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in one of the following cities as mutually agreed between the parties: Berlin (Germany), Amsterdam (Netherlands) or San Francisco, CA (USA). If the parties are unable to agree to one of these cities, then the arbitration shall proceed in San Francisco, CA (USA). All negotiations and arbitration proceedings will be deemed confidential. The language of the arbitration shall be English. An award may be filed in any U.S. court of competent jurisdiction for purposes of enforcement.

14.2 Governing Law; Jurisdiction. This agreement will be governed and construed in accordance with the laws of the State of California, USA. In the event the rules of arbitration conflict with the laws of of California, the matter shall be removable by either Party to arbitration within that state.

14.3 Injunctive Relief; Enforcement. Notwithstanding anything to the contrary, nothing in this Reseller Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality, enforcement of express obligations, or to prevent anticipatory damages.

14.4 Exclusion of UN Convention and UCITA. The United Nations Convention on Contracts for the Sale of Goods, the Uniform Computer Information Transactions Act (UCITA), and the Uniform Commercial Code shall not apply to this Reseller Agreement regardless of when or where adopted. Laws of any foreign jurisdiction that does not afford substantially the same protections as U.S. Law, including the DMCA, the Digital Millennium Copyright Act, or the Berne Convention, or the Treaty of Paris shall have no force and effect, notwithstanding anything herein.

  1. Government End Users

Gradle Products consist of commercial computer software. If the user or licensee of the Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by law, regulation or order, and  the terms of this Reseller Agreement and applicable portions of the Gradle Terms of Service shall adhere to Federal Acquisition Regulation 12.212 for civilian purposes, and Defense Federal Acquisition Regulation Supplement 227.7202,  for military purposes, as amended. Gradle Products were developed fully at private expense.

  1. Subsequent Illegality or Unenforceability.

If any provision of this Reseller Agreement is held to be void, invalid, unenforceable or illegal, all other provisions shall continue in full force and effect to the extent possible to give meaning to the agreement between the Parties. This Reseller Agreement may not be modified or amended except by a writing.   No failure or delay by  an injured party to enforce any right shall operate as a waiver or exercise of future rights.

  1. Independent Contractors.

The parties are independent contractors as the term is defined in the laws of the State of CA. This Reseller Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give any party the express or implied right, power or authority to create any duty or obligation of the other party outside the four corners of this Agreement.

  1. Entire Agreement.

This Reseller Agreement is the entire agreement between you and Gradle relating to the resale of Gradle products and was freely negotiated in good faith. Agreement supersedes any and all prior or contemporaneous oral or written communications, proposals or representations with respect to the Products, or any other subject matter covered by this Reseller Agreement.