CPA Reseller Terms of Service

Date of Last Revision: November 26, 2019
 

THESE CPA RESELLER TERMS OF SERVICE (“Agreement”) GOVERN THE RE-SALE OF SERVICES (AS DEFINED BELOW) PROVIDED BY CETERUS, INC. (“Ceterus”, “we”, “us” or “our”) TO CLIENTS OF CPA RESELLERS (AS DEFINED BELOW). YOU HAVE BEEN DIRECTED TO THIS AGREEMENT BECAUSE YOU HAVE AGREED TO BECOME A CPA RESELLER UNDER THE TERMS OF A CPA ORDER DOCUMENT (AS DEFINED BELOW) GOVERNED BY THE TERMS OF THIS AGREEMENT.  
 

BY PHYSICALLY EXECUTING OR DIGITALLY ACCEPTING (BY CLICKING “I ACCEPT” OR OTHER INDICATION OF ACCEPTANCE) A CPA ORDER DOCUMENT, YOU HAVE AGREED TO THE TERMS OF THIS AGREEMENT. IF YOU EXECUTED OR ACCEPTED A CPA ORDER DOCUMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE CPA ODER DOCUMENT AND THESE TERMS OF SERVICE, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT EXECUTE OR ACCEPT THE CPA ODER DOCUMENT AND THIS AGREEMENT AND YOU MAY NOT RE-SELL THE SERVICES. 
 

You and/or the entity upon which you accepted this CPA Order Document and this Agreement are hereinafter referred to as “CPA Reseller”. Ceterus and CPA Reseller are sometimes referred to herein collectively as the "Parties", and individually as a "Party".
 

This Agreement is subject to revision. If we make any substantial changes, we will notify CPA Reseller in accordance with Section 19.03. Any changes to this Agreement will be effective thirty (30) calendar days following dispatch of an email notice to CPA Reseller (the “Change Effective Date”).  Continued re-sale of the Services by CPA Reseller after the Change Effective Date shall indicate acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. If CPA Reseller does not agree to any changes to this Agreement for which it receives notice, it may discontinue its re-sale of the Services, and such change will not apply to its re-sale of Services prior to the Change Effective Date.
 

This Agreement was last updated on November 26, 2019. It is effective as of the day you executed or accepted the applicable CPA Order Document.
 


1.  DEFINITIONS
 

Capitalized terms have the meanings set out in this Section, or in the Section in which they first appear in this Agreement.
 

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, this Person.

 

"Ceterus's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to Ceterus.
 

"Ceterus's Trademarks" means all Trademarks owned by or licensed to Ceterus.

"Confidential Information" has the meaning set out in Section 16.01.
 

"Control" (and with correlative meanings, the terms "Controlled by" and "under common Control with") means, regarding any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.
 

“CPA Commitment Letter” means a letter agreement among the Reseller and Ceterus providing for implementation and trial of the Services. 
 

“CPA End User Terms and Conditions” means Ceterus’s Terms and Conditions for the Services provided to End Users available here: http://www.ceterus.com/cpaenduserterms.
 

“CPA Order Documents” means a CPA Commitment Letter and/or CPA Order Form, as applicable.
 

“CPA Order Form” means an Order Form executed or accepted by CPA Reseller and Ceterus through which CPA Reseller orders Services on behalf of one or more End Users.
 

"End User" means the final purchaser that has acquired a Service from Reseller for its own and its Affiliates' internal use and not for resale, remarketing, or distribution.
 

“End User Data” means electronic data and information submitted by or for End User to the Services or collected and processed by or for End User as a result of such End User’s use of the Services.  
 

“End User Financial Services” means an End User’s accounting, point-of-sale, payroll and/or banking systems that must be electronically connected to Ceterus’s systems for such End User’s use of the Services.  End User Financial Services are Non-Ceterus Application.
 

"Governmental Authority" means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.
 

"Intellectual Property Rights" means all intellectual property rights comprising or relating to: (a) patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; and (f) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout any part of the world.
 

"Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, order or other requirement or rule of law of any Governmental Authority.
 

“Monthly Recurring Fees” are the monthly fees for the monthly Service plans(s) identified in a CPA Order Form.
 

“Non-Ceterus Application” means a web-based or offline service or software application that is provided by Reseller, End User or a third party and interoperates with one or more of the Services.
 

"Notice" has the meaning set out in Section 19.03.

 

"Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.
 

"Price" has the meaning set out in Section 10.01.
 

"Services" means those products that are identified as purchased by Reseller for an End User in a CPA Order Form, as Ceterus may amend in accordance with Section 7.02. 
 

"Receiving Party" has the meaning set out in Section 16.01.
 

"Representatives" means a Party's Affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns.
 

 “Standard Bank and Payroll Set-up” means that an End User manages the End User’s business using (i) a single bank account associated to a single business, (ii) a single credit card which is used exclusively for business expenses, (iii) that such End User’s payroll provider offers online access to payroll reports with employees assigned to departments tracking allocations the End User uses to report results.
 

"Term" has the meaning set out in Section 15.01.
 

"Territory" means the United States unless otherwise indicated in the CPA Order Form.
 

"Trademarks" means all rights in and to United States and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
 

"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.
 

2.  APPOINTMENT AS RESELLER
 

2.01  Non-Exclusive Appointment. Ceterus hereby appoints Reseller, and Reseller accepts the appointment, to act as a non-exclusive reseller of Services to End Users located in the Territory during the Term solely in accordance with the terms and conditions of this Agreement. Ceterus may in its sole discretion sell the Services to any other Person, including resellers, retailers, and End Users in and outside the Territory. 

2.02  Right to Resell Competitive Services. This Agreement does not preclude either Party from entering into an agreement with any other Person related to the sale, resale, or distribution of other services, including those that are similar to or competitive with the Services.

3.  NO FRANCHISE OR BUSINESS OPPORTUNITY AGREEMENT
 

3.01  No Franchise or Business Opportunity Agreement. The Parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Ceterus and Reseller. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Reseller has the sole discretion to determine Reseller's methods of operation, Reseller's accounting practices, the types and amounts of insurance Reseller carries, Reseller's personnel practices, Reseller's advertising and promotion, Reseller's customers, and Reseller's service areas and methods. The relationship created hereby between the parties is solely that of Ceterus and Reseller. 

4.  TERMS OF AGREEMENT PREVAIL
 

4.01  Terms of Agreement Prevail. This Agreement is expressly limited to the terms of this Agreement and the CPA Order Documents. The terms of this Agreement prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of general terms and conditions contained in any agreement  or other document issued by Reseller.

5.  GENERAL RESELLER PERFORMANCE OBLIGATIONS
 

5.01  Ceterus Terms and Conditions. Reseller shall, in good faith and at its own expense inform and require each End User utilizing the Services to accept the CPA End User Terms and Conditions. Reseller will not accept the  CPA End User Terms and Conditions on behalf of any End User and will indemnify Ceterus and hold it harmless from any losses, damages or claims to the extent attributable to Reseller’s failure to require an End User to accept the  CPA End User Terms and Conditions.
 

5.02  Reseller Compliance with Ceterus Terms and Conditions. When using the Services for Reseller’s benefit or upon behalf of an End User, Reseller will comply with the requirements, obligations and commitments of End Users under the  CPA End User Terms and Conditions to the same extent as if Reseller was the End User thereunder. 
 

5.03  Authority to Perform Under this Agreement. Reseller shall, at its own expense, obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with this Agreement and applicable Law.
 

5.04  Limited End User Support. Reseller shall, at its own expense provide End User support to its End Users regarding the Service. 

 

5.05  Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Reseller nor Reseller’s agents, employees, or subcontractors shall make any representations, warranties, guarantees, indemnities, similar claims, or other commitments regarding the Services on behalf of Ceterus or which are inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or the  CPA End User Terms and Conditions.


6.  CETERUS PERFORMANCE OBLIGATIONS
 

6.01  Ceterus Performance Obligations. During the Term, Ceterus shall provide the Services to End Users in accordance with the terms of this Agreement and the CPA End User Terms and Conditions.


7.  AGREEMENT TO PURCHASE AND SELL THE SERVICES
 

7.01  Terms of the Sale. Ceterus shall sell Services to Reseller at the Prices and on the terms and conditions set out in the CPA Order Documents and this Agreement.
 

7.02  Availability/Changes in Services. Ceterus may, in its sole discretion, add, remove or make changes to the Services as provided in the CPA End User Terms and Conditions.Ceterus


8.  ORDERS PROCEDURE
 

8.01  CPA Firm Order Form. Reseller will order Services by submitting aCPA Order Documents) either executed and submitted in writing to Ceterus or completed and accepted electronically by Ceterus. By placing a CPA Order Form, Reseller makes an offer to purchase Services under the terms and conditions of this Agreement and on no other terms.  If there is any conflict between the terms of any CPA Order Documents and the terms of this Agreement, the terms of this Agreement shall control unless one or more terms of this Agreement are specifically referenced as modified by the terms of the applicable CPA Order Document. 

8.02  Ceterus's Right to Accept or Reject CPA Order Documents. Ceterus may, in its sole discretion, accept or reject any CPA Order Documents. Ceterus will accept any CPA Order Document by (i) in the case of a physically signed CPA Order Document, by presenting aCPA Order Document for execution, which will become effective if signed and returned by Reseller within five (5) days after receipt by Reseller, or (ii) in the case of an CPA Order Document prepared and electronically submitted by Reseller, upon submission by Reseller.


9.  SERVICE COMMENCEMENT AND DELIVERY

 

9.01  Set-up. Reseller will be responsible for coordinating with the End User to provision the Services by providing Ceterus remote and or online access when necessary to End User’s Financial Services. Reseller and End User are solely responsible for the adequacy of the security measures for remote access users of End User’s Financial Services. Reseller and End User represent and warrant that and End User’s use of the Services will not violate any agreement or terms between the End User and the providers of End User’s Financial Services. Fees quoted on a CPA Order Form assumes the End User utilizes Standard Bank and Payroll Set-up and will continue to do so during the term Services are provided to such End User. To the extent this is not the case, Ceterus reserves the right to revoke its acceptance of a CPA Order Form or to charge additional service fees for time spent manually processing End User Data stored within End User Financial Services.
 

9.02  Delivery. Following and subject to Service set-up as provided in Section 9.01, Ceterus will make the Services available to Reseller and an End User pursuant to this Agreement, the CPA End User Terms and Conditions and the applicable CPA Order Documents.  


10.  PRICE AND PAYMENT
 

10.01  Price. Reseller shall purchase the Services from Ceterus at the prices set out in the applicable  CPA Order Documents ("Prices").
 

10.02  Taxes. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Reseller under this Agreement. Reseller is responsible for all charges, costs, and taxes; provided, that, Reseller is not responsible for any taxes imposed on, or regarding, Ceterus's income, revenues, gross receipts, personnel, or real or personal property or other assets.
 

10.03  Payment By ACH.  Unless Ceterus agrees otherwise, all payments will be made via automatic clearing house (ACH) processing.  Reseller authorizes Ceterus to collect Monthly Recurring Fees incurred by Reseller by ACH through accounts designated by Reseller.  Reseller will provide Ceterus with valid and updated banking information, as may be updated from time to time. 
 

10.04  Monthly Recurring Fees. Reseller will pay all Monthly Recurring Fees specified in CPA Order Forms monthly in advance commencing upon commencement of the applicable Services as outlined in the applicable CPA Order Form.  Except as otherwise specified herein or in an CPA Order Form, (i) Monthly Recurring Fees are based on the Service purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) plans purchased cannot be decreased during the relevant Service term. 
 

10.05  Pricing Changes.  Reseller acknowledges and agrees that, notwithstanding the pricing set forth in any CPA Order Form, Ceterus may change pricing for the Services upon thirty (30) days’ Notice to Reseller (a “Pricing Change Notice”).  If Reseller does not agree to such price increase, Reseller may terminate the affected Services by providing a termination notice to Ceterus no more than sixty (60) days’ days after the date of a Price Change Notice.
 

10.06  Overdue Charges. If any invoiced amount is not received by Ceterus by the due date, then without limiting Ceterus’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
 

10.07  Suspension of Service and Acceleration. If any amount owing by Reseller under this or any other agreement for Services is overdue, Ceterus may, without limiting Ceterus’s other rights and remedies, suspend the provision of Services for which payment is overdue until such amounts are paid in full. 
 

10.08  Payment Disputes. Ceterus will  not exercise its rights under Section 10.06 (Overdue Charges) or Section 10.07 (Suspension of Service and Acceleration) above if Reseller is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.


11.  RESALE OF THE SERVICES
 

11.01  Credit Risk on Resale to End Users. Reseller is responsible for all credit risks regarding, and for collecting payment for, all products (including Services) sold to third parties (including End Users), whether or not Reseller has made full payment to Ceterus for the products. The inability of Reseller to collect the purchase price for any product does not affect Reseller's obligation to pay Ceterus for any Service.
 

11.02  Resale Prices. Reseller unilaterally establishes its own resale prices and terms regarding services it sells, including Services.


12.  COMPLIANCE WITH LAWS
 

12.01  General Compliance With Laws Representation and Warranty. Each Party represents and warrants to the other that it is in material compliance with all Laws, agreements and obligations applicable to this Agreement, the Services and the operation of its business.
 

12.02  General Compliance With Laws Covenant. Each Party shall at all times comply with all Laws except to the extent that the failure would not, in the aggregate, reasonably be expected to have a material adverse effect on such Party’s business or its ability to comply with its obligations under this Agreement.


13.  INTELLECTUAL PROPERTY RIGHTS
 

13.01  Ownership. Subject to the express rights and licenses granted by Ceterus in this Agreement, Reseller acknowledges and agrees that (a) any and all Ceterus's Intellectual Property Rights are the sole and exclusive property of Ceterus or its licensors; (b) Reseller shall not acquire any ownership interest in any of Ceterus's Intellectual Property Rights under this Agreement; (c) any goodwill derived from the use by Reseller of Ceterus's Intellectual Property Rights inures to the benefit of Ceterus or its licensors, as the case may be; and (d) Reseller shall use Ceterus's Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of Ceterus.
 

13.02  Ceterus's Trademark License Grant. This Agreement does not grant either Party the right to use the other Party's or their Affiliates' Trademarks except that Ceterus hereby grants to Reseller a non-exclusive, non-transferable, and non-sublicensable license to use Ceterus's Trademarks in the Territory during the Term solely on or in connection with the promotion, advertising, and resale of the Services in accordance with the terms and conditions of this Agreement.
 

13.03  Prohibited Acts. Reseller shall not (a) take any action that may interfere with any of Ceterus's rights in or to Ceterus's Intellectual Property Rights, including Ceterus's ownership or exercise thereof; (b) challenge any right, title, or interest of Ceterus in or to Ceterus's Intellectual Property Rights; or (c) make any claim or take any action adverse to Ceterus's ownership of Ceterus's Intellectual Property Rights.
 

13.04  Usage Restrictions. Reseller will not, other that as authorized in this Agreement, (a) make any Service available to, or use any Service for the benefit of, anyone other than an authorized End User, (b) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering other than as set forth in this Agreement, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, (j) access any Service in order to build a competitive product or service, or (k) reverse engineer any Service (to the extent such restriction is permitted by law).


14.  NON-CETERUS PROVIDERS
 

14.01  Acquisition of Non-Ceterus Products and Services.  Ceterus, Reseller, End Useror third parties may make available third-party products or services, including, for example, Non--Ceterus Applications and implementation and other consulting services. Any acquisition by Reseller and/or an End User of such Non-Ceterus Applications, and any exchange of data between Reseller and/or an End User and any Non-Ceterus provider of services, is solely between Reseller and/or End User, as applicable, and the applicable Non-Ceterus provider of Services.  Ceterus does not warrant or support Non-Ceterus Applications or other Non-Ceterus products or services.
 

14.02  Non-Ceterus Applications and End User Data. If Reseller and/or an End User installs or enables a Non-Ceterus Application for use with a Service, Reseller grants Ceterus permission to allow the provider of that Non-Ceterus Application to access End User Data as required for the interoperation of that Non-Ceterus Application with the Service. Ceterus is not responsible for any disclosure, modification or deletion of End User Data resulting from access by a Non-Ceterus Application.
 

14.03  Integration with Non-Ceterus Applications. The Services may contain features designed to interoperate with Non-Ceterus Applications. To use such features, an End User may be required to obtain access to Non-Ceterus Applications from their providers and may be required to grant Ceterus access to End User account(s) on the Non-Ceterus Applications. If the provider of a Non-Ceterus Application ceases to make the Non-Ceterus Application available for interoperation with the corresponding Service features on reasonable terms, Ceterus may cease providing those Service features without entitling Reseller to any refund, credit, or other compensation. 


15.  TERM; TERMINATION
 

15.01  Initial Term. The term of this Agreement commences on the date the applicable CPA Order Document is executed by Ceterus and Reseller and continues for a period of one (1) year, unless and until earlier terminated as provided under this Agreement or applicable law (the "Initial Term"). On expiration of the Initial Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides Notice of nonrenewal at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under this agreement or applicable Law (each a "Renewal Term" and together with the Initial Term, the "Term").
 

15.02  Right to Terminate. Either Party may terminate this Agreement by providing Notice to the other Party if: (a) the other Party breaches any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within thirty (30) days after the breaching Party’s receipt of Notice of such breach; or (b) if the other Party becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency Law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due.

16.  CONFIDENTIALITY
 

16.01  Protection of Confidential Information. From time to time during the Term, either Party (as "Disclosing Party") may disclose or make available to the other Party (as "Receiving Party") information about its business affairs, goods and services, confidential information, and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information; such information, as well as the terms of this Agreement, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" constitutes "Confidential Information" hereunder. Confidential Information excludes information that, at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 16.01 by Receiving Party or any of its Representatives; (b) is or becomes available to Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Receiving Party or its Representatives before being disclosed by or on behalf of Disclosing Party; (d) was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party's Confidential Information; or (e) must be disclosed under applicable Law. Receiving Party shall, from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of Disclosing Party's Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any Person, except to Receiving Party's Representatives who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. Receiving Party shall be responsible for any breach of this Section 16.01 caused by any of its Representatives. The provisions of this Section 16.01 shall survive termination or expiration of this Agreement for any reason for a period of one year after such termination or expiration. On the expiration or earlier termination of this Agreement, Receiving Party and its Representatives shall promptly destroy all Confidential Information including copies that it has received under this Agreement, with the exception of Confidential Information archived or retained by such Party in compliance with its data retention policies, which Confidential Information shall remain subject to the provisions of this Section 16.01 for as long as such Confidential is so retained or archived notwithstanding termination or expiration of this Agreement.  In the event of any conflict between the terms and provisions of this Section 16.01 and those of any other provision in this Agreement, the terms and provisions of this Section 16.01 will prevail.


17.  REPRESENTATIONS AND WARRANTIES
 

17.01  Reseller's Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing in the jurisdiction of its formation; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement; (c) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its Representative whose signature is set out at the end hereof has been duly authorized by all necessary action of such Party; and (e) when executed and delivered by each of Ceterus and Reseller, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors' rights generally or the effect of general principles of equity.
 

17.02  Limited Service Warranty. Ceterus shall make certain limited warranties regarding the Services ("Limited Warranties") solely to and for the End User's benefit as set forth in the CPA End User Terms and Conditions. No warranty is extended to Reseller under this Agreement. Reseller shall not provide any warranty regarding any Service other than the Ceterus warranty described in this Section 17.02.
 

17.03  Warranties Disclaimer; Non-reliance. EXCEPT FOR THE LIMITED EXPRESS WARRANTIES DESCRIBED IN Section 17.01, (A) NEITHER CETERUS NOR ANY PERSON ON CETERUS'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; OR (ii) FITNESS FOR A PARTICULAR PURPOSE; OR (iii) NON-INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND (B) RESELLER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY CETERUS, OR ANY OTHER PERSON ON CETERUS'S BEHALF, EXCEPT AS SPECIFICALLY DESCRIBED IN SECTION 17.02 OF THIS AGREEMENT.


18.  LIMITATION OF LIABILITY
 

18.01  No Liability for Consequential or Indirect Damages. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION OR LIABILITY FOR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT IS EITHER PARTY OR THEIR REPRESENTATIVES LIABLE FOR (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (i) WHETHER THE DAMAGES WERE FORESEEABLE; (ii) WHETHER OR NOT THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; OR  (B) ANY LIABILITY OR DAMAGES EXCEEDING THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO CETERUS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF THE NON-BREACHING PARTY'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. 


19.  MISCELLANEOUS
 

19.01  Entire Agreement. Subject to Section 4.01, this Agreement, including and together with related exhibits, schedules, attachments, and appendices, together with the CPA Order Documents, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
 

19.02  Survival. Subject to the limitations and other provisions of this Agreement to the contrary, the representations and warranties of the Parties contained herein and related exceptions, limitations, or qualifiers survive the expiration or earlier termination of this Agreement for a period of twelve (12) months after its expiration or termination.
 

19.03  Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice" and with the correlative meaning, "Notify") must be in writing and addressed to the other Party at its address set out in the applicable CPA Order Documents (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Notwithstanding the foregoing, for the purposes of Section 8.02 and notice of changes to this Agreement, Notice given by facsimile or email (with confirmation of transmission) satisfies the requirements of this Section 19.03. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
 

19.04  Interpretation. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set out verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
 

19.05  Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
 

19.06  Amendment and Modification. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized Representative of each Party. 
 

19.07  Waiver.  No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (ii) any act, omission, or course of dealing between the Parties.
 

19.08  Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
 

19.09  Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 16.01 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any of these obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity, or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 19.09.
 

19.10  Assignment; Successors and Assigns. Reseller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Ceterus. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. Ceterus may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of Ceterus's assets without the consent of Reseller. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns. 

19.11  No Third-Party Beneficiaries.  This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. 
 

19.12  Choice of Law. This Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of South Carolina, without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of South Carolina. 
 

19.13  Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the District of South Carolina or, if this court does not have subject matter jurisdiction, the courts of the State of South Carolina sitting in Charleston County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to bring any action, litigation, or proceeding only in the United Stated District Court for the District of South Carolina or, if this court does not have subject matter jurisdiction, the courts of the State of South Carolina sitting in Charleston County. Each Party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
 

19.14  Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or the transactions contemplated hereby. 
 

19.15  Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement), when and to the extent the failure or delay is caused by or results from acts beyond the impacted Party's ("Impacted Party") reasonable control, including the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) requirements of Law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority; (g) national or regional emergency. The Impacted Party shall give Notice five (5) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of the Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) days following Notice given by it under this Section 19.15, either Party may thereafter terminate this Agreement on ten (10) days' Notice.


 

 

 

 

 

 

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