REFERRAL & RESELLER TERMS AND CONDITIONS

REFERRAL TERMS AND CONDITIONS

CHOICE CYBERSECURITY, INC., a Maryland corporation with a principal place of business located at 10055 Red Run Boulevard, Suite 140, Owings Mills, MD 21117 (“Choice”) will pay Referral Fees and/or Commissions to the eligible Referral Company (as such terms are defined below), and the Referral Company is eligible to participate in Choice’s Referral Program (“Program”), subject to the following terms and conditions (“Terms and Conditions”):

1. BACKGROUND. Choice is in the business of providing various information technology-related services including, without limitation, network and security design services, engineering and implementation services, and regulatory compliance diagnostic consulting and implementation services (collectively, the “Services”). Under the banner of Choice’s ASSESS. ADDRESS. MAINTAIN© offerings, the Services are divided into three categories, namely: (i) diagnostic assessment and network evaluation services (“Assess Services”); (ii) solution installation or remediation services (“Address Services”); and (iii) network maintenance and support services (“Maintain Services”). The business entity (for purposes of the Program, “Referral Company”) that has signed and submitted a duly completed, signed and effective Registration Agreement for the Choice Technologies, Inc. Referral and Reseller Programs (“Registration Agreement”) may refer potential Clients to Choices for the Services in accordance with these Terms and Conditions and the Registration Agreement. IF REFERRAL COMPANY DOES NOT ACCEPT THESE TERMS AND CONDITIONS IN THEIR ENTIRETY, IT SHOULD NOT MAKE ANY REFERRALS TO CHOICE WITH RESPECT TO ANY OF THE SERVICES. REFERRAL COMPANY SHOULD VISIT THIS PAGE FROM TIME TO TIME TO VIEW ANY CHANGES TO THESE TERMS AND CONDITIONS. CHOICE HEREBY RESERVES THE RIGHT TO SUPPLEMENT OR CHANGE THESE TERMS AND CONDITIONS FROM TIME TO TIME, WITHIN ITS SOLE DISCRETION.

2. RELATIONSHIP OF PARTIES. The relationship between Choice and the Referral Company (collectively, the “Parties” and individually, a “Party”) shall at all times be that of independent contractors. Referral Company shall make no warranty either expressed or implied on behalf of Choice and shall not incur any expenses on behalf of Choice. Choice authorizes Referral Company solely to refer to Choice potential Clients for its Services in accordance with Choices standard prices, terms and conditions, as established and/or revised from time to time by Choice within its sole discretion. Referral Company has no authority, without the prior written consent of Choice, to bind Choice to any contract, representation, understanding, act or deed concerning Choice, the Services, or any other service or product. Referral Company shall make no representations or warranties concerning the Services or Referral Company’s agency relationship with Choice, unless such warranty or representation is authorized in writing by Choice. Referral Company shall not make any representations or warranties concerning prices, terms or delivery, performance of the Services, terms of payment, or conditions of sales except to the extent such representations are authorized in writing by Choice. The rights granted to Referral Company hereunder are non-exclusive and non-territorial.

3. REFERRAL COMPANY OBLIGATIONS. Until either Party cancels the Registration Agreement through written notice to the other Party, Referral Company shall use no less than commercially reasonable efforts to endorse and promote Choice and the Services, as well as to refer and forward potential Clients (including, but not limited to, business acquaintances, Clients, clients, and associates) of the Services to Choice. Referral Company shall adhere to and comply with any prevailing practices and procedures and written instructions from Choice that relate to the referral of Clients for the use of the Services. Referral Company shall be available to meet, either in person or via telephone conference, at least once per month to discuss current and potential referrals, as well as issues and support that Referral Company may need to further develop any referral prospects. Referral Company shall provide to Choice on a monthly basis, an accounting of the Clients to whom Referral Company has mentioned the Services and any progress relating to such discussions. For each referred potential Client, Referral Company shall provide to Choice a “Client Referral Submission Form” as provided by Choice. Referral Company shall be available and willing to formally introduce Choice to the referred potential Client (“Referred Business”). Such introduction may be by telephone conference call and/or by an in-person meeting, based upon the Parties’ mutual agreement. Subject to the other provisions of these Terms and Conditions, Referral Company shall be entitled to compensation hereunder only for those Referred Businesses with whom Referral Company has had direct personal contact and to whom Referral Company has directly endorsed and recommended the services of Choice and for whom Choice has not provided any prior Services. By submitting a Client Referral Submission Form, Referral Company is representing that it has the authority to make the referral in accordance with these Terms and Conditions and it has no conflict of interest either with the Referred Business or with Choice. Referral Company represents that neither it nor, to its knowledge, no director, officer, shareholder, partner or member of Referral Company, is also a legal affiliate of Choice.

4. ELIGIBILITY. Until either Party terminates the Registration Agreement by written notice to the other Party, for each qualifying Referred Business that Referral Company shall be eligible to earn Referral Fees and/or Commissions for new Clients referred by Referral Company to Choice, to the extent that the Referred Business signs a contract with Choice for the applicable Services within six months after the date of the referral hereunder by Referral Company. To be eligible for a Referral Fee or Commission, the Referred Business must not already be a Choice client or an Active Lead/Prospect (defined below) and must not have already (previously) been referred by another Referral Company partner. A Choice “Active Lead/Prospect" shall mean any organization which is already in Choice’s prospect spreadsheet/database and has been contacted during the 24 months prior to the date of the referral by a Choice sales representative (or authorized partner). Referral Company must also be in full compliance with all of these Terms and Conditions, the Registration Agreement and any other contract between the Parties in order to receive any Referral Fees or Commissions. Choice will inform the Referral Company within 30 days after its receipt of a Client Referral Submission Form whether the designated Referral Business l is ineligible for a referral fee and commissions.

5. COMPENSATION. Unless otherwise agreed by the Parties in writing, for each Referred Business that is referred by Referral Company hereunder pursuant to all of these Terms and Conditions during the term of the Registration Agreement, if the Referred Company signs a contract with Choice for the applicable Services within six months after the date of the referral hereunder by Referral Company, Choice shall pay Referral Company a referral fee (“Referral Fee”) in the amount of TEN PERCENT (10%) of the net receipts of the first Statement of Work (SOW) sold by Choice as a direct result of a referral and a commission (“Commission”) in the amount of TEN PERCENT(10%) of net receipts on monthly recurring license and monitoring fees sold by Choice as a direct result of the subject initial referral. Net receipts are defined as gross billings, minus any account receivable write-offs, taxes, insurance specific to the performance of that project, refunds to the Client, payments not honored by a financial institution, as well as reimbursement payments for expenses incurred by Choice on behalf of the Referred Business. Referral fees will be paid during the entire term of the end user agreement. Commission payments will be made in accordance with Maryland State and Federal payroll tax guidelines for an independent contractor. Referral Company will receive a 1099 tax form at the end of each year for any year in which payments are made hereunder. Referral Company shall bear sole responsibility for payment of taxes owed by Referral Company on the Referral Fees and Commissions. Choice will pay the Referral Fees and Commissions upon completion of the original applicable SOW and by the 15th of the month following the date of payment by the Referred Business to Choice. If the Referred Business was referred to Choice from more than one authorized Referral Company, Choice will pay the Commission to the Referral Company who first met the requirements set forth in Sections 3 and 4 hereof.

6. CONFIDENTIALITY; INTELLECTUAL PROPERTY. All documents, data files, information and other materials made available to Referral Company in connection with any referral hereunder, including without limitation all information regarding services, active clients, potential clients, marketing data, business plans, and technical information (collectively “Confidential Information”) shall be deemed to have been furnished to Referral Company in confidence and shall remain the exclusive property of Choice both during and after the term of the Registration Agreement. Referral Company shall treat as trade secrets and keep in strict confidence all Confidential Information it acquires from Choice at any time or develops for or on behalf of Choice, and Referral Company will not at any time during the term of the Registration Agreement or thereafter use such Confidential Information for its own benefit or disclose or permit any of its employees, agents, or representatives to disclose such Confidential Information to any person or entity without a written consent from Choice. Choice shall retain full ownership of all documents and information that Referral Company provides to Choice under the Registration Agreement. Choice hereby retains ownership rights in and to certain intellectual property, including without limitation any Choice trademark, service mark, trade dress, advertising, any associated goodwill, whether presently existing or later developed (collectively “Intellectual Property”). Referral Company agrees to sign any document as reasonably required to effect recording or protection of any such property.

7. TERM AND TERMINATION. Referral Company’s participation in the Program shall commence on the Effective Date of the Registration Agreement and shall continue until either Party terminates the same by providing the other Party with (60) days advance written notice. Upon termination of the Registration Agreement by either Party, all outstanding Referral Fees and/or Commissions due to Referral Company at that time shall be paid within thirty (30) days after Choice collects all applicable amounts from the Referred Business. Choice shall be remain responsible for paying any and all Commissions and Referral Fees owed to Referral Company hereunder only for Referred Businesses referred to Choice before the effective termination date of the Registration Agreement. Remuneration claims are waived unless made in writing to Choice within sixty (60) days of which such remuneration would have been payable. The provisions of these Terms and Conditions that call for obligations to continue after the termination of the Registration Agreement shall survive termination of such agreement.

8. LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED IN WRITING BY CHOICE, CHOICE HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH REGARD TO SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF END USERABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Referral Company shall extend no warranties or guarantees, orally or in writing, in the name of Choice or which would bind Choice with respect to the performance, design, quality, merchantability, or fitness for a particular purpose of any of the Services. Neither Choice nor its affiliates, subsidiaries, suppliers, or parent entities shall be liable to Referral Company or any third party for any special, consequential, incidental, indirect, tort or cover damages, including, without limitation, damages resulting from the use or inability to use the Services, delay of delivery and implementation, or loss of profits, data, business or goodwill, whether or not such party has been advised or is aware of the possibility of such damages. Choice’s liability for all claims of any kind arising out of or relating to this Agreement shall be limited solely to money damages and shall not exceed the amount of commissions paid to Referral Company under the Program. Either Party shall not be liable for, and is excused from, any failure to perform or delay in the performance of its obligations under this Agreement due to causes beyond its control, including without limitation, interruptions of power or telecommunications services, failure or its suppliers or subcontractors, acts or nature, governmental actions, fire, flood, natural disaster or labor dispute.

9. MISCELLANEOUS. No failure of Choice to pursue any remedy resulting from a breach of these Terms and Conditions by Referral Company shall be construed as a waiver of that breach, nor as a waiver of any subsequent or other breach or relinquishment of any rights hereunder unless such waiver is signed and in writing. If any provision of these Terms and Conditions shall be invalid, illegal or unenforceable in any respect, such a provision shall be considered separate and severable from the remaining provisions hereof, and the validity, legality or enforceability of any of the remaining provisions hereof shall not be affected of impaired by such provision in any way. The Registration Agreement shall not be assigned by Referral Company, in whole or in part, without the express written consent of Choice. This Agreement shall be construed in accordance with the laws of the State of Maryland and enforced only in Maryland. This Agreement shall be interpreted in accordance with the plain meaning of its terms and not strictly for or against either of the Parties. In the event of any dispute with respect to this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and other costs and expenses incurred in resolving such dispute. All notices required under this Agreement shall be directed to the addresses as set forth in the Registration Agreement. These Terms and Conditions and the Registration Agreement constitute the whole agreement between the Parties and supersede and cancel any and all previous agreements, understandings or negotiations, whether oral or written, between the Parties relating to the Program. 

RESELLER TERMS AND CONDITIONS

CHOICE CYBERSECURITY, INC., , a Maryland corporation (“Choice”) will manage its Reseller Program (“Program”), in accordance with the following terms and conditions (“Terms and Conditions”):

1. BACKGROUND. Choice provides various information technology-related services including, without limitation, network and security design services, engineering and implementation services, and regulatory compliance diagnostic consulting and implementation services (collectively, the “Services”).  Under the banner of Choice’s ASSESS. ADDRESS. MAINTAINSM offerings, the Services are divided into three categories, namely: (i) diagnostic assessment and network evaluation services (“Assess Services”); (ii) solution installation or remediation services (“Address Services”); and (iii) network maintenance and support services (“Maintain Services”).  The business entity (for the purposes of the Program, “Reseller”) that has signed and submitted a duly completed, signed and effective Registration Agreement for the Choice Technologies, Inc. Referral and Reseller Programs (“Registration Agreement”) may resell designated Services in accordance with these Terms and Conditions and the Registration Agreement.  Reseller desires the opportunity to market and sell the Services to Approved End Users in the United States, and Choice is willing to grant Reseller the right to do the foregoing, all in strict accordance with these Terms and Conditions.  IF RESELLER DOES NOT ACCEPT THESE TERMS AND CONDITIONS IN THEIR ENTIRETY, IT SHOULD NOT RESELL ANY SERVICES WHATSOVEVER.  RESELLER SHOULD VISIT THIS PAGE FROM TIME TO TIME TO VIEW ANY CHANGES TO THESE TERMS AND CONDITIONS.  CHOICE HEREBY RESERVES THE RIGHT TO SUPPLEMENT OR CHANGE THESE TERMS AND CONDITIONS FROM TIME TO TIME, WITHIN ITS SOLE DISCRETION.

2. RIGHTS GRANTED.

2.1 RESELLER APPOINTMENT. Subject to and in accordance with these Terms and Conditions, Reseller may resell within the United States on a non-exclusive basis certain Services as specifically identified on its Registration Agreement to end users for such Services (“End Users”).  Pursuant to the Program, Reseller shall have a non-exclusive, non-transferable, limited, terminable right and license to market and sell such Services to Approved End Users within the United States, solicit orders from interested End Users for the applicable Services, in strict accordance with the terms and conditions of these Terms and Conditions, the Registration Agreement, applicable laws, industry rules to which either Party is subject and written instructions delivered from Choice to Reseller on or after the Effective Date.

2.2 LIMITATIONS. Section 2.1 sets forth the entirety of Reseller’s right to market and resell any of the Services.  Without limiting the generality of the foregoing, Reseller will not, directly or indirectly: (a) market, promote, offer, sell or otherwise distribute any of the Services, except as specifically set forth in these Terms and Conditions or as specifically approved in writing by Choice; or (b) remove, alter, distort, cover or otherwise modify any legal notices (including, without limitation, any notice of Proprietary Rights) appearing in or on, or that may be included with, any content, documentation, or other materials furnished or otherwise made available to Reseller by Choice as part of the Program.  Reseller acknowledges that the rights granted to market, promote, offer, sell and otherwise distribute the Services hereunder are subject to any and all applicable rights of third parties.  Reseller will comply with all third party restrictions and limitations on use of the Services that are made known to Reseller.  Choice may at any time modify its grant of rights to the extent necessary to ensure compliance with any of its legal obligations.  RESELLER SHALL MAINTAIN SOLE PRIVITY OF CONTRACT WITH EACH APPROVED END USER FOR ANY AND ALL SERVICES OFFERED, SOLD OR DELIVERED BY OR THROUGH RESELLER.  CHOICE SHALL HAVE NO LIABILITIES WHATSOEVER FOR ANY LIABILITIES OR OBLIGATIONS UNDER ANY AGREEMENT BETWEEN RESELLER AND ANY SUCH APPROVED END USER UNDER ANY END USER SERVICES AGREEMENT.    Reseller shall not delegate performance of any of its obligations under this Agreement (other than to its own employees) without Choice's prior written authorization. Reseller will ensure that all authorized persons performing such obligations are properly qualified and experienced to perform the same.  Reseller hereby assumes responsibility for the compliance by all persons performing its obligations hereunder with all of its obligations hereunder including, without limitation, the Confidentiality and Non-Disclosure obligations set forth in Section 14.

3. RESELLER OBLIGATIONS.

3.1 PASSWORD(S). Choice will issue a password or passwords to Reseller to enable Reseller and/or its employees and authorized agents to access an account via Choice’s website for purposes of subscribing End Users for Services as permitted under the Registration Agreement. Reseller will restrict access to such password(s) and account to those employees and agents of Reseller as may be reasonably necessary consistent with the purposes of this Agreement and will ensure that each such employee or agent of Reseller accessing and using the account is aware of and otherwise complies with all applicable provisions of these Terms and Conditions regarding such use and access.

3.2 SALES EFFORTS. Reseller shall use its best efforts to solicit and process orders from prospective End Users that may be interested in purchasing any of the Services.  Reseller’s failure to timely and properly complete all of the obligations listed in these Terms and Conditions may, in Choice’s sole discretion, result in Choice assuming sole responsibility with respect to such End User and the applicable Services.  In such event, Choice shall have no obligation to share any revenue received from such End User with Reseller.  Choice reserves the right to refuse to provide the Services to any End User.  Any End User for the Services proposed by Reseller through a written sales order for Services (on a form approved by Choice) and approved in writing by Choice shall be an “Approved End User” hereunder.  Reseller and its representatives shall stay current with respect to information concerning the Services as such information may be made available to Reseller.  Reseller shall also attend sales and customer support training programs regarding the Services as, where and when requested by Choice.  Unless otherwise agreed by the Parties in writing, Reseller shall train its Approved End Users on the proper use of the applicable Services. 

3.3 NO UNAUTHORIZED WARRANTIES OR BRANDING. Reseller will make no representation, warranty or description regarding the performance, functional characteristics or other aspects of any Service except as specifically stated in Choice’s then-current and officially approved marketing and promotional materials for the applicable Service. Reseller shall not use any proprietary marks to identify the Services except for the Choice Mark(s) associated with the same, except as expressly approved in writing by Choice.

3.4 COMPLIANCE.  At all times Reseller will comply, at its own expense, with all laws, policies, regulations, ordinances, rules applicable to Reseller, written guidelines provided to it by Choice, and any orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof.  Reseller shall not use the Services in any manner, or in furtherance of any activity that may cause Choice to be subject to investigation, prosecution, or legal action.

4. COLLECTION AND PAYMENT OF FEES.  Reseller shall bill Approved End Users for and collect from Approved End Users all fees for all applicable Services. Billing shall be accordance with Reseller’s then-standard billing policies and procedures at the rates set forth in the Services Agreement between Reseller and the Approved End User, to the extent such rates are not inconsistent herewith.

5. SERVICES. Unless otherwise agreed by the Parties in writing, Choice will provide the Services to Approved End Users of Reseller as a subcontractor of Reseller.  Subject to the terms hereof, Choice will use commercially reasonable efforts to provide the Services to Approved End Users and maintain the same consistent with its then-current practices and procedures, provided that the applicable Approved End User is not in default of its obligations under its Services Agreement and Reseller is not in violation of these Terms and Conditions or the Registration Agreement.

6. FEES AND PAYMENT TERMS.

6.1 BUY RATES. With respect to each Approved End User and pursuant to the terms hereof, Reseller will pay to Choice the “Buy Rate” for each of the applicable Services, as set forth in the then-current Standard Reseller Pricing Schedule, a copy of which Choice shall send Reseller as and when new Buy Rates are made effective.    

6.2 OTHER FEES. In addition to charging the Buy Rate for the applicable Services, Choice may also charge Reseller additional fees for any or all of the following: (a) migration of the Approved End User billing responsibilities from Choice to Reseller such that Reseller will bill End User directly; (b) the sale or assignment of Approved End User’s portfolio to another reseller; (c) customized billing or reporting; or (d) other requests outside Choice’s ordinary course of business, which require the dedication of Choice’s resources to comply with such request.  Choice hereby reserves the right to deduct such fees from any amounts it owes to Reseller under its Referral Program or any agreement.

6.3 PAYMENTS. Choice will bill Reseller each month for any and all amounts owing under the Program.  Payments will be made in U.S. Dollars.  Any amounts not paid within 30 days after the invoice date will be subject to a monthly finance charge equal to one and one-half percent (1.5%) or the highest rate allowable by law (whichever is greater) until the date paid. Payment of such finance charges will not excuse or cure any breach or default for late payment.  If Reseller has not paid all owing amounts on or before the last business day of the month in which they were due, Choice may, in its sole discretion and in addition to all other rights hereunder or otherwise, terminate all Services to the applicable Approved End Users, terminate or suspend Reseller’s right to resell the Services and/or terminate Reseller’s right to participate in the Program.

6.4 SECURITY.  AS SECURITY FOR RESELLER'S PAYMENT AND INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, RESELLER HEREBY GRANTS TO CHOICE A SECURITY INTEREST ON ALL OF RESELLER'S INVENTORY, ACCOUNTS, CONTRACT RIGHTS, RECEIVABLES, GOODS AND ASSETS OF ANY AND EVERY KIND, AND ALL OTHER ITEMS OF INTANGIBLE PROPERTY, WHEREVER LOCATED, NOW OR HEREAFTER BELONGING TO RESELLER OR IN WHICH RESELLER HAS ANY INTEREST, AND ALL PROCEEDS OF THE FOREGOING.

6.5 AUDIT RIGHTS.  Choice shall have the right, upon at least five (5) days written notice to inspect Reseller's books and records and all other documents and material in the possession of or under the control of Reseller with respect to the subject matter of this Agreement at the place or places where such records are normally retained by Reseller.  Choice shall have free and full access thereto for such purposes and shall be permitted to make copies thereof and extracts therefrom.  If such inspection reveals a discrepancy in the amount of fees and other amounts owed to Choice from what was actually paid, Reseller shall pay such discrepancy, plus interest, calculated at the rate of one and one-halfpercent (1.5%) per month.  If such discrepancy is in excess of $1,000.00, Reseller shall also reimburse Choice for the cost of such inspection including any attorney's fees incurred in connection therewith.   All books and records relative to Reseller’s obligations hereunder shall be maintained and kept accessible and available to Choice for inspection for at least three (3) years after termination of this Agreement.   If an investigation of Reseller's books and records is made, certain confidential and proprietary business information of Reseller may necessarily be made available to the person or persons conducting such investigation and it is understood and agreed that such information may be used in any proceeding based on Reseller’s failure to pay its payment obligations hereunder.

6.6 PORTAL SUBSCRIPTION TERMS AND FEES.  To the extent Reseller is participating in the Program, it may (but it is not required to) subscribe for access to and use of Choice’s proprietary online portal of materials and resources available to assist participants of Choice’s Referral Program and/or Reseller Program (“Portal”).  Reseller’s subscription for access to and use of the Portal shall be indicated on Reseller’s Registration Agreement and such subscription (“Subscription”) shall be subject to these Terms and Conditions.  During the Subscription, Reseller shall be required to pay an annual portal subscription fee (“Portal Subscription Fee”), as follows:  The initial subscription period for access and use of the Portal will be for one year (“Initial Subscription”).  After the Initial Subscription and at the end of any Renewal Subscription thereafter, Reseller’s license to access and use the Portal shall automatically renew for an additional one year period (“Renewal Subscription”) unless prior to fifteen (15) days before the expiration of the Subscription it notifies Choice in writing of its election not to renew the Subscription.  Prior to each annual Subscription period, Reseller shall pay Choice’s standard annual non-refundable Portal Subscription Fee.  Portal Subscription Fees shall be subject to annual increases at the discretion of Choice.  If Reseller fails to pay any Portal Subscription Fee owed to Choice, Choice may terminate Reseller’s access to the Portal and all amounts due and owing by Reseller at that time shall remain due and owing and shall be collectable by Choice until paid in full.  BY PAYING ANY PORTAL SUBSCRIPTION FEE DUE HEREUNDER WITH A CREDIT OR DEBIT CARD, RESELLER HEREBY AUTHORIZES CHOICE TO CHARGE ITS ACCOUNT ON AN ANNUAL BASIS DURING EACH ANNUAL PORTAL SUBSCRIPTION FEE AT THE RATE IN EFFECT WHEN THE CHARGE IS MADE WITHOUT ANY INTERRUPTION OF THE SUBSCRIPTION, UNLESS AND UNTIL RESELLER NOTIFIES CHOICE VIA E-MAIL TO TERMINATE ITS SUBSCRIPTION.  ANY TERMINATION NOTICE PROVIDED BY RESELLER WILL BE EFFECTIVE UPON THE EXPIRATION OF THE THEN-CURRENT ANNUAL SUBSCRIPTION PERIOD. 

To the extent it has paid all applicable Portal Subscription Fees and it is in compliance with each of these Terms and Conditions, Reseller and its Authorized Users (as defined below) are hereby granted a non-exclusive, non-transferable, limited right to access and use for its internal business purposes the Portal and materials available through the Portal (“Materials”).  The rights granted to each Authorized User are as follows:  (a) the right to e-mail, fax, download or make printouts using the commands of the Portal and to create a single printout of Materials (collectively, “Authorized Printouts”); (b) the right to quote or make excerpts of insubstantial portions of Materials in documents prepared in the ordinary course of your business, to the extent permitted by applicable copyright law; and (c) the right to store Materials to the extent required for legal or regulatory compliance, provided that you purge all copies of the Materials upon the expiration or termination of the Subscription.  All other rights to access or use the Materials are hereby expressly reserved by Choice. The Portal and the Materials are protected by copyright, intellectual property laws, and other laws that prevent unauthorized access to and use of the Materials. If you are not an Authorized User, you are not permitted to access or use the Portal for any purpose whatsoever. If you nevertheless access and use the Portal or Materials without authorization, your access and use will be governed by these Terms and Conditions and you will be liable to Choice for any breach of the same as well as for unauthorized access and payment of the applicable Portal Subscription Fee.

Except as specifically permitted in the these Terms and Conditions, Reseller and its Authorized Users are prohibited from downloading, emailing, faxing, storing, reproducing, transmitting, displaying, copying, distributing, or using the Materials as retrieved from the Portal. Reseller may not directly or indirectly exploit the goodwill of Choice and its licensors, including their trademarks, service marks, and logos, without the express written consent of Choice (and, if applicable, the licensor(s) of Choice). Additionally, under no circumstances may they offer any part of the Portal or Materials for commercial resale or commercial redistribution in any medium or use the Portal or the Materials (or any derivative versions of the same) to compete with the business of Choice.   Any use of the Portal and Materials must comply with all applicable laws, rules and regulations.  As used herein, “Authorized User” means a bona fide current employee or independent contractor of Reseller which Reseller has identified to Choice in writing for the purpose of issuing an account identification to access the Portal (“Choice Portal ID”). Each Choice Portal ID may only be used by the Authorized User to whom Choice assigns it and that the Choice Portal ID may not be shared with or used by any other person, including any other Authorized Users. Reseller must manage its roster of Authorized Users and promptly notify Choice to deactivate an Authorized User's Choice Portal ID if the Authorized User is no longer working on behalf of Reseller or if it otherwise wishes to terminate the Authorized User's access to the Portal. Reseller is responsible for all use of the Portal accessed with Choice Portal IDs issued to its Authorized Users, whether by Authorized Users or others. Reseller will use reasonable commercial efforts to prevent unauthorized use of Choice Portal IDs assigned to its Authorized Users and will promptly notify Choice, in writing, if it suspects that a Choice Portal ID is lost, stolen, compromised, or misused. The Portal, Materials, and feature functionality within the Portal may be enhanced, added to, withdrawn, or otherwise changed by Choice without notice. 

THE PORTAL AND MATERIALS ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND CHOICE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF CHOICE AND/OR ITS AFFILIATED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE PORTAL OR MATERIALS OR THE SUBSCRIPTION EXCEED THE LESSER OF RESELLER’S ACTUAL DIRECT DAMAGES OR THE AMOUNT IT PAID FOR ACCESS TO THE PORTAL IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE SUBJECT CLAIM AROSE. THE RIGHT TO MONETARY DAMAGES IN THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES HEREUNDER.  TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER CHOICE NOR ITS AFFILIATED ENTITIES WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) IN ANY WAY DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE PORTAL, MATERIALS, OR THE SUBSCRIPTION.

 

7. TERM AND TERMINATION.  The term of this Agreement (“Term”) shall commence on the Effective Date set forth in the Registration Agreement and, unless earlier terminated in accordance herewith, continue until either Party provides the other Party at least thirty (30) days written notice of its intent to terminate Reseller’s participation in the Program.  Choice may terminate this Agreement immediately and without advance notice: (a) if Reseller fails to pay any amount when due or is in breach or default of any other obligation set forth in of this Agreement; (b) if Choice determines, in its sole discretion, that Reseller’s business practices are detrimental to the achievement of Choice business objectives; (c) if Choice has reason to believe that there is an alleged or actual violation by Reseller of any laws, policies, guidelines, regulations, ordinances, rules and/or orders of any governmental authority or regulatory body having jurisdiction over the subject matter hereof; (d) if Reseller: (i) makes a general assignment for the benefit of creditors, (ii) files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, (iii) becomes subject to any proceedings under any bankruptcy or insolvency law where such proceeding has not been dismissed within sixty (60) days, or (iv) has wound up or liquidated, voluntarily or otherwise.  Upon expiration or termination of this Agreement for any reason: (i) Reseller shall immediately pay Choice all outstanding amounts due; (ii) promptly return to Choice all equipment, sales literature, documentation and materials supplied to it by Choice; and (iii) Choice may, in its sole discretion, continue to provide the Services to the Approved End Users.  Upon expiration or termination of this Agreement for any reason, all rights and obligations of the Parties under this Agreement shall be extinguished, except that: (a) all accrued payment obligations hereunder shall survive such expiration or termination; and (b) the rights and obligations of the Parties under provisions hereof that should reasonably survive expiration or termination shall survive such expiration or termination.

8. REPRESENTATIONS AND WARRANTIES.

8.1 RESELLER. Reseller represents and warrants to Choice that: (a) Reseller will conduct its business at all times in a manner that reflects favorably on the goodwill and reputation of Choice and will not engage in any illegal or unethical business practices; and (b) all representations and statements made by Reseller in any document relating hereto by Reseller or on Reseller’s behalf, are true, accurate and complete in all material respects. Reseller hereby authorizes Choice to investigate and confirm the information submitted by Reseller herein; and (c) it will use its best efforts to promote, market, sell, and deliver the Services throughout the Term.

8.2 MUTUAL. Each Party represents and warrants to the other that: (a) it has full power and legal right to perform its obligations under the Program; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms; and (d) it has all right, title or interest, or valid license to use, its respective marks, and that its grant of rights associated therewith do not violate any Proprietary Rights of any third party.

8.3 THIRD PARTY PROGRAMS. Reseller acknowledges that: (i) the Services are designed for use with certain third party programs, including, without limitation, certain Internet browser software programs; and (ii) it will seek remedy from the developers and manufacturers of such programs with regard to warranty, maintenance or other support regarding the same. Choice makes no warranty, express or implied, with regard to any such third party software or hardware.

9. INDEMNIFICATION. Reseller shall defend, indemnify, and hold Choice, its affiliates, and any of their officers, directors, agents and employees harmless from and against any action, claim or suit brought against Choice or its affiliates, including any and all losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising from or out of: (a) any breach or alleged breach by Reseller of any representation, warranty or other obligation of Reseller hereunder; (b) any alleged or actual violation by Reseller of any laws, policies, guidelines, regulations, ordinances, rules and/or orders of any governmental authority or regulatory body having jurisdiction over Reseller and the subject matter hereof; (c) the negligence or willful misconduct of Reseller or its employees or agents; (d) Reseller’s advertising, marketing, promotion, sale, or distribution of any of the Services; or (d) the inaccuracy of information provided to Choice by Reseller regarding an End User.

10. NO WARRANTIES.  CHOICE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. RESELLER ACKNOWLEDGES THAT THE SERVICES ARE COMPUTER NETWORK-BASED SERVICES, WHICH MAY BE SUBJECT TO OUTAGES, INTERRUPTIONS, ATTACKS BY THIRD PARTIES AND DELAY OCCURRENCES. IN SUCH AN EVENT AND SUBJECT TO THE TERMS HEREOF, CHOICE SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY MATERIAL INTERRUPTIONS AND WILL PROVIDE ADJUSTMENT, REPAIRS AND REPLACEMENTS WITHIN ITS CAPACITY THAT ARE NECESSARY TO ENABLE THE SERVICES TO PERFORM THEIR INTENDED FUNCTIONS IN A REASONABLE MANNER. RESELLER ACKNOWLEDGES THAT CHOICE DOES NOT WARRANT THAT SUCH EFFORTS WILL BE SUCCESSFUL. RESELLER’S RIGHT TO TERMINATE ITS PARTICIPATION IN THE PROGRAM AS NOTED HEREIN AS ITS SOLE REMEDY FOR ANY CONCERN RELATING TO THE SERVICES.  CHOICE HEREBY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE SERVICES, OR OTHER SERVICES PROVIDED BY CHOICE.

11. LIMITATIONS OF LIABILITY AND DISCLAIMERS.  CHOICE EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS ARISING FROM OR RELATED TO THE SERVICES, THIRD PARTY SERVICE PROVIDERS OR THE PROGRAM (HOWEVER ARISING, INCLUDING NEGLIGENCE). EXCEPT FOR CLAIMS ARISING FROM CRIMINAL OR WILLFUL MISCONDUCT, THE PARTIES AND THEIR VENDORS (AND ANY OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS OF THE PARTIES AND THEIR VENDORS) SHALL BE LIABLE ONLY FOR DIRECT, OUT-OF-POCKET DAMAGES, AND SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS OR BUSINESS, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT, CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CHOICE’S LIABILITY WITH RESPECT TO ANY CLAIM UNDER THE PROGRAM SHALL BE LIMITED TO THE AGGREGATE COMPENSATION PAID TO CHOICE BY RESELLER DURING THE THIRTY (30) DAYS PRIOR TO ANY SUCH CLAIM OF LIABILITY.

12. OWNERSHIP AND USE OF DATA.  Choice shall retain full ownership of all data submitted by Reseller and/or the Approved End User in connection with End User’s enrollment for and use of the Services and hosted or stored on Choice servers. Choice agrees to use such data only as necessary to perform Services for the Approved End User and for no other purpose, and hereby grants Reseller a royalty-free, fully paid up right, during Reseller’s participation in the Program, to use such data only as necessary to perform its rights and obligations hereunder and for no other purpose. Nothing in this Agreement shall prevent or restrict Reseller from using any information it collects or receives independent of its performance under this Agreement.

13. INTELLECTUAL PROPERTY.  As between the Parties, Choice owns and retains all right, title and interest in and to all of its marks including, without limitation, CHOICE TECHNOLOGIESSM (plain text), CHOICE TECHNOLOGIESSM (stylized, with logo) and ASSESS.  ADDRESS. MAINTAIN. SM (collectively, “Choice Marks”), the Services, all content and documentation furnished to Reseller by Choice hereunder, and the technology provided by Choice to Reseller hereunder. No title to or ownership of any of the foregoing is granted or otherwise transferred to Reseller or any other entity or person under this Agreement. Reseller shall not reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or trade secrets for any of the Services or related technology.  Reseller shall strictly comply with all standards with respect to the Choice Marks as may be furnished by Choice from time to time. All uses of the Choice Marks shall inure to the benefit of Choice.  Reseller shall not use, register or attempt to register and shall instruct its End Users not to use, register or attempt to register any Choice Marks, or any trademarks or domain names that could reasonably be considered confusingly similar to any of the Choice Marks.  Reseller shall take, at its own expense, such action (including, without limitation, execution of affidavits or other documents) as Choice may reasonably request to effect, perfect or confirm Choice’s ownership interests and other rights as set forth herein.

14. CONFIDENTIALITY AND NON-DISCLOSURE.  Each Party that receives information (“Receiving Party”) from the other Party (“Disclosing Party”) agrees to use reasonable best efforts to protect all non-public information and know-how of the Disclosing Party that is either designated as proprietary and/or confidential or that, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. The foregoing restrictions will not apply to any information that: (a) the Receiving Party can document it had in its possession prior to disclosure by the Disclosing Party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (d) is required to be disclosed by governmental or judicial order, requested in response to legal or governmental inquiries, or disclosed in connection with judicial and/or arbitral proceedings between the Parties; or (e) the Receiving can document was independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party. Upon request of the Disclosing Party, the Receiving Party will return to the other all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the other Party. Each Party acknowledges that breach of this provision by it may result in irreparable harm to the other Party, for which money damages may be an insufficient remedy, and therefore that the other Party will be entitled to seek injunctive relief to enforce the provisions of this Section 14.

15. GENERAL PROVISIONS.

15.1 RELATIONSHIP OF THE PARTIES. The Parties are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other Party. Neither Party shall make any representation that suggests otherwise.

15.2 NON-SOLICITATION. Reseller shall not directly or indirectly, whether or not for compensation, engage in any business activity (whether as an employee, proprietor, officer, director, agent, trustee, partner or creditor lending money for the purpose of establishing or operating any such business) that (a) induces or attempts to induce, directly or indirectly, any End User to modify or terminate such End User's business association with Choice or (b) interferes with, disrupts or attempts to disrupt any present business relationship, contractual or otherwise, between Choice and any End User, client, supplier, consultant, agent or employee of Choice. The Parties acknowledge that any breach of these non-solicitation provisions will cause immediate, irreparable and continuing damage to Choice for which there is no adequate remedy at law.  The Parties acknowledge that any breach of these non-solicitation provisions will cause immediate, irreparable and continuing damage to Choice for which there is no adequate remedy at law and that in the event of any breach or violation or threatened breach or violation of these non-solicitation provisions, Choice shall be entitled to temporary, preliminary and permanent injunctive relief and such other legal and equitable remedies as may be provided by applicable law (without the necessity of posting any bond or other security), including damages, costs of suit and attorney's fees.

15.3 NOTICES. All notices to Reseller shall be given electronically, sent to the electronic mail address provided in the Registration Agreement and all notices to Choice shall be in writing and sent to Choice at its above-noted address.   Either address may be updated in accordance with this Section.

15.4 AMENDMENT; SEVERABILITY. Choice may amend these Terms and Conditions by posting a revised version hereof on its website at any time, provided that any amendment for any fee increase may become effective upon no less than thirty (30) days’ notice. 

15.5 GOVERNING LAW; JURISDICTION. This Agreement and performance under it will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Maryland, without reference or giving effect to its conflicts of law principles. Reseller hereby irrevocably consents to the personal jurisdiction of and venue in the state and federal courts located in Baltimore County, Maryland with respect to any action, claim or proceeding arising out of or related to this Agreement and agrees not to commence or prosecute any such action, claim or proceeding other than in such courts.

15.6 WAIVER. The failure of any Party to insist on or enforce strict performance of any provision of this Agreement or to exercise any right or remedy under this Agreement or applicable law will not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will be and remain in full force and effect.

15.7 ASSIGNMENT. Reseller may not assign its rights or obligations under the Program without the prior written consent of Choice. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the Parties and their respective successors and assigns.

15.8 FORCE MAJEURE. Neither Party will be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions of a third party, infiltration or disruption of the Services by a third party by any means, including without limitation, software viruses, Trojan horses, worms, time bombs or any other software program or technology designed to disrupt or delay the Services, or other catastrophes or any other occurrences which are beyond such Parties' reasonable control (each, a "Force Majeure Event"), provided that the Party delayed will provide the other Party notice of any such delay or interruption as soon as reasonably practicable, will use commercially reasonable efforts to minimize any delays or interruptions resulting from the Force Majeure Event and in no event will any failure to pay any monetary sum due under this Agreement be excused for any Force Majeure Event.

15.9 INTERPRETATION. This Agreement shall be construed in accordance with its fair meaning and not for or against either Party on account of which Party drafted this Agreement.

15.10 INSURANCE.  During its participation in the Program, Reseller shall obtain and maintain at its own expense from a qualified insurance company licensed to do business in the State of its principal place of business standard product liability insurance naming Choice as an additional named insured.  Such policy shall provide protection against any and all claims, demands and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the Services or any material used in connection therewith or any use thereof.  The amount of coverage shall be in the minimum amount of FIVE MILLION DOLLARS combined single limit, for each single occurrence for bodily injury and/or for property damage.  The policy shall provide for ten (10) days’ notice to Choice from the insurer by registered or certified Mail, return receipt requested, upon any modification, cancellation or termination thereof.  Reseller shall furnish Choice a certificate of insurance evidencing same within thirty (30) days after execution of the Registration Agreement and, in no event shall Reseller offer to sell or sell any of the Services prior to receipt by Choice of such evidence of insurance.

15.11 ENTIRE AGREEMENT. This Agreement sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the Parties, as to the subject matter of this Agreement.

15.12 WAIVER OF JURY TRIAL.  EACH PARTY HEREBY AGREES TO WAIVE ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUITS ARISING HEREUNDER.