Peritus Cloud Security Ltd Extended Terms
Non-Standard Terms Agreement
This Tripartite Non-Standard Terms Agreement (“TTA”), effective the last date a Party sign it (“Effective Date”), is entered into by and between End User…….., with a place of business at……….United Kingdom, (“End User”),Peritus Cloud Security Ltd, with a place of business at 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ(“Reseller”) and Distributor Ltd, with a place of business at (“‘X””) (End User, Reseller and ‘X”, each a “Party”, and together the “Parties”).
WHEREAS, X is a distributor of certain vendor (“Vendor” or “Licensor”) Products,
WHEREAS, Reseller acts as agent for and on behalf of ‘X” and to procure the sale and delivery of the Products to End User, and End User will provide Reseller (as agent for ‘X”) with a binding, irrevocable purchase order for said Productsin accordance with the Reseller quote to End User,
WHEREAS, it is intended and is being agreed that, pursuant to this TTA, End User will pay all Payments owed under Exhibit C to Reseller as agent for ‘X”,
NOW THEREFORE, the Parties agree as follows:
1. This TTA has the following Exhibits incorporated into it and which are made part of it:
A. The Products identified in Exhibit A
B. The additional terms and conditions
C. End User Purchase Order
2. The following definitions apply to this TTA:
· “EULA” means the Vendor’s license agreement for the Products.
· “Event of Default” is as defined in the additional terms and conditions
· “End User Purchase Order” means the binding, irrevocable purchase order for said Products attached as ExhibitC.
· “Payments” mean all amounts owed by End User to ‘X”, which shall be (excluding applicable taxes):
First Payment: due
Second Payment: due
Third Payment: due
· “Products” means, collectively, the licensed software, hardware, services, support and maintenance identified in Exhibit A.
· “Term” means the period commencing on the Effective Date of this TTA and expiring 3 years thereafter oruntil all payments have been made, whichever is later.
3. End User, Reseller and ‘X” agree that End User will pay all Payments set forth therein and under the End User Purchase Order, including any applicable taxes, to Reseller as agent for ‘X” in accordance with the agreed schedule defined in the Payments definition and the terms set out in additional terms and conditions.
4. End User’s use and right to continued receipt of the Products is contingent upon: (i) payment of the Payments and applicable taxes; (ii) no Event of Default having occurred and remaining uncured hereunder; and (iii) and End Usercomplying with the terms of End User Purchase Order and the additional terms and conditions.
5. End User, Reseller and ‘X” acknowledge and agree that the EULA with Vendor is in effect as of the Effective Date andgoverns use of the software or any other aspects of the Products, as applicable. End User confirms acceptance of theEULA. The EULA is attached as Exhibit D.
6. The Parties acknowledge and agree that this TTA has been entered into solely for the purpose of governing the paymentobligations of the End User to ‘X” (through Reseller as agent) in connection with the Products to be delivered under theterms of this TTA and the End User Purchase Order. The Parties further confirm and agree that:
6.1 The terms governing the payment obligations hereunder (as more particularly described in the additional terms and conditions) supersede any terms governing payment obligations in the End User Purchase Order and the EULA and any such term in the End User Purchase Order and/or EULA shall, by virtue of the Parties entering into this TTA,be deemed inapplicable.
6.2 End User’s obligation to make the Payments under the terms of the TTA shall stand separate and apart from, andprevail over the End User Purchase Order and EULA and shall survive notwithstanding any termination,cancellation, expiry or repudiation of the End User Purchase Order, the EULA or this TTA; and
6.3 in the case of any conflict between the terms of this TTA, the End User Purchase Order and the EULA, the following order of precedence shall apply regardless of the date on which such agreements are entered into (highest precedence stated first):
· this TTA (and, in particular, the additional terms and conditions as set out below);
· the EULA; and
· the End User Purchase Order
7. Nothing herein shall be construed or will relieve any Reseller and/or ‘X” obligations owed to End User.
8. The Parties additionally agree to all terms and conditions attached hereto as Exhibit B and acknowledge that the same form part of the TTA and shall take such precedence as is set out in paragraph 6.3 above.
The Parties hereto have caused this TTA to be duly executed by their authorised representatives.
‘X” Ltd End User
By: By:
Name: Name:
Title: Director Title:
Dated: Dated:
Reseller
By:
Name:
Title:
Dated:
Exhibit A
Exhibit B
Additional Terms and Conditions
1. ACKNOWLEDGMENT AND AGREEMENT. The End User acknowledges and confirms agreement that the Reseller hasprocured the sale and/or deliver of sold certain Products by ‘X” to the End User under End User’s Purchase Order attached as Exhibit C. All Payments (and any other amounts) due hereunder shall be shall be paid to the Reseller as agent for ‘X”. The End User further acknowledges and confirms that:
1.1. It has not received notice of any interest of any third party in the End User Purchase Order;
1.2. The End User Purchase Order has not been altered, edited, amended, supplemented, assigned, novated or terminated;and
1.3. It does not and will not claim or exercise any set-off rights, counterclaim or otherwise refuse to make payment relating tothe End User Purchase Order.
The End User acknowledges and agrees that ‘X” acts as principal in connection with the delivery and/or sale of the Products hereunder and therefore and Payments due hereunder shall be payable directly to ‘X”, plus any applicable taxes. End User willpay any monies owed under the End User Purchase Order to the Reseller as agent for ‘X”. ‘X” will be entitled, in case of delayin payment by End User, to enforce ‘X” ‘s reservation of title on and security interest in the Products sold, which End User acknowledges as fully valid and enforceable against it, and that ‘X” may exercise its rights to take the Products back and/or execute any lawful seizure of the same.
The End User further acknowledges that ‘X” may have delegated the performance of certain obligations specified in the EndUser Purchase Order. Should End User fail to adhere to the terms of this TTA and pay monies or Payments owing under the End User Purchase Order to the Reseller as agent for ‘X” (whether in error or otherwise), End User will remain liable to ‘X” forall sums outstanding to ‘X” and understand that ‘X” may pursue collection against End User directly. To the extent any amountsare paid to the Reseller, the Reseller shall hold such monies in trust for the exclusive benefit of ‘X” and pay the same to ‘X” immediately.
2. INSTALLMENT PAYMENTS. 2.1 The Payments shall be due and payable in advance, with the first such Payment being due on the First Payment Due Date or as otherwise invoiced by ‘X” (or an Assignee, as applicable – any reference herein to ‘X” shall also be understood to refer to its assigns or the Assignee), with the remaining Payments due on the same day of eachsubsequent payment period until paid in full; 2.2 End User shall pay the Payments on the due date in full in cleared funds without any abatement, set-off, withholding, defence or counterclaim for any reason whatsoever (including, but not limited to, a force majeure event); and 2.3 Payments do not include taxes allocable to the Products.
3. ASS’X”MENT. END USER MAY NOT ASS’X”, NOVATE OR GRANT AN ENCUMBRANCE OVER THIS TTA OR THE RIGHTS AND/OR OBLIGATIONS HEREUNDER, NOR SHALL THE END USER ENCUMBER, LEASE OR LEND THEPRODUCTS OR SUBMIT THEM TO BE USED BY ANYONE OTHER THAN END USER’S EMPLOYEES OR AGENTS WITHOUT THE PRIOR WRITTEN CONSENT OF ‘X”. The End User agrees that ‘X” may, with or without notice, assign to thebenefit of a third party (“Assignee”) ‘X”’s rights, title and interest, in whole and in part, under this TTA and/or to receive thePayments and any other payments made by the End User pursuant to the TTA (“Assigned Payments”). The Assignee shallnot be liable for or be required to perform any of ‘X”’s obligations to End User or Reseller under the TTA, such obligations being retained by ‘X”. For the avoidance of doubt, service credits, rebates or price reductions, if applicable, shall be independent of the End User’s obligation to pay Payments and shall not have the effect of reducing the Payments payable. End User's obligation to pay the Payments and liability therefor shall continue notwithstanding (and shall not be affected by, released and/or reduced as a result of) any of the following: (a) any breach under or in connection with the TTA and/or EULA and/or any wrongful or negligent act or omission by or on behalf of ‘X”; (b) any dispute between ‘X” and the End User or Reseller; (c) any change or revision to the TTA or EULA; (d) any termination or suspension of this TTA, the EULA and/or the Products (or anyfunction thereof), in each case in whole or in part for any reason whatsoever;
(e) any accident or damage to and/or loss of any Product for any reason whatsoever; and/or (f) any Event of Default.
4. EVENTS OF DEFAULT. The term “Event of Default” shall mean any one or more of the following: (a) End User fails to pay any Payment when due and such failure is not cured within 5 days; (b) End User shall fail to perform any covenant oragreement hereunder or under the EULA and such failure is not cured, if capable of being remedied, within 5 days after notice from ‘X”; (c) End User or any guarantor of End User’s obligations shall commence any action for relief under any laws relating to bankruptcy, insolvency, reorganisation or relief of debtors; (d) End User shall enter into a merger or other transaction in which it is not the surviving entity, sell or transfer all or substantially all of its assets, or take any step to dissolve itself or be terminated;
(e) any representation or warranty made by End User to ‘X” in connection with this TTA shall prove at any time to have beenuntrue or misleading in any material respect; or (f) any violation of the End User Purchase Order, (g) the End User is in breachof its obligations under the EULA such that Vendor has the right to terminate the EULA; or (h) if the End User undergoes a change of control in ownership whether direct or indirect, legal or beneficial.
5. REMEDIES. Upon the occurrence of any Event of Default or upon termination of the TTA, End User Purchase Order and/or EULA, in whole or in part and for whatever reason, ‘X” (or Assignee, if applicable) may by notice to the End User exercise any one or more of the following remedies:
6. (a) declare all unpaid Payments (or AssignedPayments, if applicable), accrued interest, late charges, taxes, and otheramounts due, plus all remaining Payments (or AssignedPayments, if applicable) for the unexpired period of the Term hereunder, to be immediately due and payable without notice or demand; (b) charge interest on all Payments (orAssignedPayments, if applicable) due to ‘X” (or Assignee, if applicable) at the rate of 1.5% per month or the maximum rate permitted by law, whichever is less, from the date of default until paid in full (before and after judgment); (c) require End User to cease use of all Products, delete all Software from all computer systems and deliver all hardware (and all documentation) to ‘X” at End User's expense; (d) require payment of any costs incurred by ‘X” (or Assignee, if applicable) in terminating orreplacing any funding arrangements entered into in connection with the provision of the Products (or provision of funds by the Assignee in connection with the assignment of rights contemplated hereunder, if applicable); and/or (e) require payment of any taxes and VAT applicable to any of the foregoing amounts (together “Termination Payment”). The End User agrees that the Termination Payment is fair and reasonable and is not a penalty.
7. TERMINATION. This TTA shall terminate on the expiry of the Term. No Party shall be entitled to terminate this TTA prior to the expiry of the Term, save that ‘X” may be entitled to terminate this TTA under the circumstances set out in the EULA or following the occurrence of an Event of Default. Termination shall be without prejudice to the accrued rights and remedies ofeither Party. The End User’s obligations set out in this TTA shall survive any such termination of this TTA. Title to or perpetualrights to use, as appropriate, the Products will only pass to the End User (if applicable) on confirmation by ‘X” that all Payments have been received in cleared funds.
8. COVENANTS. End User represents, warrants and covenants to ‘X”, as of the date hereof, that: (a) End User is dulyorganised and validly existing under the laws of the state of its organisation, with adequate power and capacity to enter into this TTA and any other documents required to be delivered in connection herewith (hereinafter “Documents”); (b) theDocuments have been duly authorised, executed and delivered by End User and constitute valid, legal and binding agreements, enforceable in accordance with their terms; and (c) End User shall keep the Products free of all liens and encumbrances, except for the rights of ‘X” and any Assignee.
9. CHOICE OF LAW. This TTA and any non-contractual obligations arising out of or in connection with it are governed by thelaws of England and Wales. The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with the TTA and any non-contractual obligation arising out of or in connection with it. The End User hereby submits to the jurisdiction of the courts of England.
10. WAIVERS. End User shall not be discharged from their obligations hereunder except by payment and performance in fullof all obligations.
11. ENTIRE AGREEMENT. This TTA contains the entire agreement between End User, Reseller and ‘X” relating to the subject matter hereof. No agreements or understandings shall be binding on the Parties hereto unless set forth in writing and signed by the Parties. Time is of the essence in this TTA. Any wording of this TTA held unenforceable in any jurisdiction shall bedeemed deleted to the extent of such unenforceability without invalidating the remaining wording and/or provisions of this TTA.
EXHBIT C
(End User’s Purchase Order to Reseller)