THIS RESELLER / SUBDISTRIBUTOR AGREEMENT (“the Agreement”) is a legal agreement between the legal entity (“Company”) identified by you, the applicant, during the application process and upon its acceptance, Meraki, Inc., a Delaware corporation with offices at 99 Rhode Island St, San Francisco, CA 94103 ("Meraki").
BEFORE CLICKING ON THE “I ACCEPT AND SUBMIT MY APPLICATION" BUTTON, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING ON THE " I ACCEPT AND SUBMIT MY APPLICATION" BOX, APPLICANT IS REPRESENTING THAT HE/SHE HAS REVIEWED THE TERMS OF THIS AGREEMENT, HAS THE AUTHORITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT ON BEHALF OF THE COMPANY AND THAT THE COMPANY AGREES TO BE BOUND BY, AND IS BECOMING A PARTY TO, THIS AGREEMENT. The Agreement is subject to Meraki’s discretionary approval conveyed in writing, which may be by email (“Approval Notice”) and upon such approval this Agreement shall be binding as between Company and Meraki.
1. DEFINITIONS.
1.1 “Confidential Information” means all know-how, specifications, catalogs, books, price books, maintenance, parts and service manuals, data sheets, sales, service and technical bulletins, Customer lists, sales and marketing programs, price lists, cost data, sales aids, such as filmstrips and recordings, and all other publications and information, whether or not reduced to writing, relating to the formulation, manufacture, use, marketing and sale of the Products, as well as any other information relating to the business of Meraki which may be divulged to Company in the course of its performance of this Agreement.
1.2 “Customer(s)” means end user customers only, and explicitly excludes other resellers, distributors, or any other person or entity that purchases the Products for any reason other than to use in a directly owned and operated network.
1.3 “Products” means only those items specifically listed in the Meraki Channel Price Book (as may be updated by Meraki in writing from time to time during the term of this Agreement). Any revision will apply to all orders accepted after the effective date of the revision.
1.4 “Territory” means the geography, industry vertical or other area set forth in the Approval Notice, as modified in writing by the parties upon mutual agreement from time to time.
1.5 “Trademarks” means Meraki’s trademarks, service marks, designs, markings, logos, or trade names as may be designated by Meraki from time to time.
2. Purchase and Delivery of Products.
2.1. Purchase Through Authorized Distributors. Meraki has appointed certain authorized distributors of its Products in certain territories identified in the list currently available at http://www.meraki.com/partners/distributors (an “Authorized Distributor”). In such territories, Company may be appointed a sub-distributor of such Authorized Distributor and Company shall purchase Products solely from such Authorized Distributors. The terms and conditions applicable to Company’s purchase and delivery of Products and distribution thereof in the applicable Territory shall be as set forth in the agreement between the Authorized Distributor and Company.
2.2. Purchase Directly from Meraki. If Company operates in a Territory not served by an Authorized Distributor of Meraki, Company may purchase Products directly from Meraki and the following terms and conditions shall apply to Company:
2.2.1 Appointment as a Reseller. Subject to Company’s compliance with the terms of this Agreement, Meraki hereby appoints Company as a non-exclusive reseller of the Products within the Territory, and Company hereby accepts such appointment. Nothing in this Agreement shall prevent Meraki from: (i) appointing other resellers or distributors within the Territory; (ii) marketing, selling or distributing Products directly to Customers within the Territory; or (iii) maintaining an online web store and/or other direct sales channels for the marketing, selling and distribution of Meraki products and services.
2.2.2 Direct Orders to Meraki. All purchases of Products under this Agreement by Company will be subject to the terms and conditions of this Agreement and will be evidenced by a purchase order, or online order through the authorized Meraki online ordering system, which, as supplemented by the terms of this Agreement, will constitute the entire agreement between the parties with respect to sales of the Products by Meraki to Company. Any terms or conditions of any purchase order or acknowledgements given or received that are additional to or inconsistent with this Agreement will have no effect and such terms and conditions are hereby excluded. Purchase orders will, at a minimum, include terms regarding: (i) the Product name or identification; (ii) quantity of Products; and (iii) time of requested delivery. No purchase order will be binding upon Meraki until accepted by Meraki in writing. Company must purchase a Starter Pack.
2.2.3 Direct Delivery and Shipping from Meraki. Meraki shall use reasonable efforts to deliver the Products in accordance with the requested delivery dates. Meraki shall mark all Products for shipment to Company’s address set forth in this Agreement or to the address specified in Company’s purchase order, and shall deliver the Products to a carrier or forwarding agent chosen by Meraki or specified in Company’s purchase order. Shipment will be FOB origin (Incoterms 2000) Meraki’s shipping point, at which time title and risk of loss passes to Company. Company shall pay all freight, insurance and other shipping expenses. Meraki may specify from time to time via email communication to Company a delivery lead time for orders.
2.2.4 Prices from Meraki. Meraki shall sell the Products to the Company at the prices listed in the Meraki Channel Price Book (as modified by Meraki from time to time), less the discount rate described in the Approval Notice (if any). Starter Pack prices will be provided in the Approval Notice. Meraki may revise the prices and discount rates provided in the Approval Notice upon thirty (30) days prior written notice to Company. Revisions will apply to all orders accepted by Meraki after the effective date of the revision.
2.2.5 Payment to Meraki. Unless otherwise agreed to in writing, Company shall pay for Products in at time of order. All orders will be processed when received, but shipped only upon receipt of full payment. Meraki may change payment terms upon thirty (30) days prior written notice. Until the purchase price and any other charges payable to Meraki for the Products are received in full, Meraki hereby retains and Company hereby grants to Meraki a security interest in any Products delivered to Company and any proceeds therefrom. Company shall promptly execute any documents requested by Meraki to perfect or record such security interest. All Price Lists are set forth in U.S. dollars and payments shall be in U.S. dollars. If any currency conversion is required in connection with the calculation of payments hereunder, such conversion shall be made using the average of the buying and selling exchange rate for the applicable currency within the Territory, in U.S. dollars, quoted for current transactions reported in The Wall Street Journal for the last business day of the calendar quarter to which such payment pertains. If any amount payable by Company is not paid when due, then without limiting any other rights which Meraki may have as a result of such late payment, the amount unpaid shall bear interest until paid at a monthly rate of one and one-half percent (1.5%) or the maximum amount permitted under law, whichever is less, with such interest to be paid on demand together with all costs incurred by Meraki to collect the amounts due hereunder, including but not limited to reasonable attorneys fees and disbursements.
2.2.6 Taxes on Direct Sales with Meraki. The amounts payable to Meraki hereunder do not include any taxes (including any excise, sales, use, value added, withholding, and similar taxes), customs duties, tariffs or license fees, and all payments made by Company to Meraki hereunder are payable in full without reduction for any such taxes, duties, tariffs or fees. Company shall be responsible for and shall indemnify Meraki against any such taxes, customs duties, tariffs and license fees required to be paid by Meraki, based on payments to Meraki hereunder or on the use or possession by Company or Customer of Products or support, but excluding United States federal, state and local taxes based on Meraki’s net income.
THE FOLLOWING TERMS APPLY REGARDLESS OF WHETHER YOU ARE BUYING PRODUCTS DIRECTLY THROUGH MERAKI OR THROUGH ONE OF ITS AUTHORIZED DISTRIBUTORS:
3. Company Obligations.
3.1 Marketing. Company shall avoid deceptive, misleading or unethical practices and not make any false or misleading representations with regard to Meraki or the Products, and shall not knowingly solicit orders from any Customer that engages in illegal or deceptive practices.
3.2 Minimum Performance Levels. Company shall meet all goals set forth in the Approval Notice (the “Minimum Performance Levels”). In the event that Company does not meet such Minimum Performance Levels, Meraki’s sole remedy shall be to terminate this Agreement in accordance with Section 7.
3.3 Customer Warranty Exchanges. Meraki makes warranties directly to Customer. Starting from the date of purchase by the Customer, as evidenced by a copy of the official signed order form, Meraki warranties the Products per the Warranty terms detailed in the Meraki Customer License Agreement at http://meraki.com/support/additional_info/. Customer Return for Material Authorization (RMA) and shipping procedures are provided at http://meraki.com/support/additional_info/. Customers will work with Meraki directly for warranty exchanges under such warranties.
3.4 Compliance with Law and Government Approvals. Company shall comply with all laws and regulations in the Territory relating to the Products and the marketing and distribution thereof, and shall promptly notify Meraki of any changes in laws or regulations within the Territory that are applicable to the Products. Company, at its own cost, shall be responsible for obtaining all governmental approvals, permits, registrations, licenses and other permissions or clearances necessary for its distribution of the Products in the Territory in a lawful manner.
3.5 Independent Contractor Status. Company is an independent reseller of the Products and nothing contained in this Agreement shall create the relationship of joint venture, principal and agent, licensor and licensee, or master and servant between Meraki and Company. Company is not and will not be considered a legal representative of Meraki for any purpose, and neither Company nor any director, officer, agent or employee of Company will be, or be considered, an employee of Meraki. Company is not granted and will not exercise the right or authority to assume or create any obligation or responsibility or make any representation, including, without limitation, contractual obligations and obligations based on warranties or guarantees of this Agreement, on behalf or in the name of Meraki. Company shall have no power or authority, expressed or implied, to make any commitment or incur any obligations on behalf of Meraki. Company shall only market, distribute or sell Products directly to Customers located in the Territory (which, for avoidance of doubt, means that the Product must be shipped to and installed within the Territory) and shall not, directly or indirectly, without the prior written consent of Meraki: (i)market, distribute or sell Products to Customers outside the Territory (except to the extent that such restrictions are not permitted under applicable law); or (ii) market, distribute or sell Products to third party resellers, agents or sales representatives for resale, regardless of whether located inside or outside the Territory.
4. INTELLECTUAL PROPERTY
4.1 Trademarks. Company shall market the Products in the Territory only under the Trademarks. Subject to Company’s compliance with this Agreement, Meraki hereby grants to Company a royalty-free license to use the Trademarks in the Territory during the Term solely in connection with the marketing and promotion of the Products in the Territory as contemplated in this Agreement. The license granted hereunder shall be revocable at will by Meraki effective upon notice to Company. Prior to such use, Company shall submit to Meraki all representations of the Trademarks that Company intends to use in connection with the Products for Meraki’s approval of design, color, and other details.
4.2 Ownership of Trademarks. Company agrees that the Trademarks are and will remain the sole property of Meraki, and that Meraki reserves all rights in trademarks, trade names and logos not expressly granted to Company hereunder. Company agrees not to register any domain name, trade name, or corporate name containing or comprising any of the Trademarks or any terms similar thereto. Company agrees not to remove or efface any of the Trademarks on any Products sold by Company. All goodwill arising form the use of the Trademarks will inure and vest to the sole and exclusive benefit of Meraki and Company shall take all such actions or execute any documents necessary to effect such vesting in Meraki. Company shall not contest the validity of any of the Trademarks or Meraki’s exclusive ownership of the Trademarks. Company shall not adopt, maintain, use, or register, whether as a corporate name, trademark, service mark or other indication of origin, any of the Trademarks, or any word or mark confusingly similar to the Trademarks in any jurisdiction.
4.3 Other Intellectual Property. As between the parties, Meraki shall own all right, title and interest in and to all intellectual property in or relating to the Products and, no rights to such intellectual property are granted to Company hereunder. The Products may only be used with software provided by Meraki in connection with such Products (“Meraki Software”). Company shall not, and shall not permit any third party to: (i) modify, duplicate disassemble or attempt to reverse engineer the Products (and software therein) (except to the extent that such restrictions are prohibited by applicable law), (ii) remove or erase the Meraki software from the Products, or otherwise try to disable or alter the Meraki software functionality; or (iii) load any other software onto the Products. Products offered for sale and are sold by Meraki subject in every case to the condition that such sale does not convey any license, expressly or by implication, to manufacture, modify, duplicate, or otherwise copy or reproduce any Product, or component thereof; notwithstanding, the provision of any Meraki Software hereunder or to any Customer is not a sale of software, but only a limited license thereto, in accordance with the terms of the accompanying End User Software Agreement.
4.4 Protection of Proprietary Rights. If Company becomes aware that any third party is infringing or misappropriating any intellectual property in or relating to any Product (including the Trademarks) within the Territory, Company shall promptly notify Meraki in writing. Company shall cooperate with and assist Meraki, at Meraki’s expense, in the protection of trademarks, patents or copyrights owned or licensed by Meraki and will inform Meraki immediately of any infringement or other improper action with respect to such trademarks, patents or copyrights that will come to the attention of Company.
5. TECHNICAL SUPPORT AND TRAINING.
5.1 Tier 1 Support. Company shall provide technical support directly to its Customers of the Products (“Tier 1 Support”). Company shall maintain a minimum of one (1) support technician on staff trained on all current Products for such Tier 1 Support. Tier 1 Support will include: (i) providing general product information; (ii) configuration support; (iii) collection of relevant technical problem identification information; (iv) filtering dummy problems from real technical problems; and (v) troubleshooting common technical problems or questions, including non-Meraki problems or questions.
5.2 Tier 2 Support. Company shall also provide Tier 2 technical support directly to its Customers of the Products (“Tier 2 Support”). Company shall maintain a minimum of one (1) trained technician on staff for such Tier 2 Support. Tier 2 Support will include: (i) problem simulation; (ii) detailed troubleshooting; (iii) consultation of Meraki’s online resources, where available, including interfacing with Dashboard if Customer has granted access; and (iv) free or paid onsite support.
5.3 Tier 3 Support. If Company is unable to resolve an issue raised by the Customer through the provsion of Tier 1 and Tier 2 Support, Company may contact Meraki, whereupon Meraki shall provide Tier 3 technical support to Company and attempt to assist Company to resolve the issue. The preferred method of invoking Tier 3 Support is through the opening of a trouble ticket within Meraki’s online support portal. If Meraki deems the trouble ticket to be related to a non-Meraki product issue or a Tier 1 Support or Tier 2 Support inquiry, Meraki will redirect the trouble ticket back to Company in a customer friendly manner. If Meraki elects to provide such support, Meraki reserves the right to charge Company for that support in accordance with its standard rates and charges and Company shall pay Meraki in accordance with the terms of the Agreement. Meraki will track and monitor the number of trouble tickets that are escalated to Meraki. If Tier 1 Support and Tier 2 Support trouble tickets continue to come to Meraki that reasonably should have been handled by Company, Meraki and Company will promptly meet to remedy the situation. If the condition persists for more than sixty (60) days, then, upon having provided Company with written notice thirty (30) days in advance, Meraki may decline accepting further escalation calls until a mutually agreeable resolution has been achieved.
5.4 Training. Company is obligated to meet the training requirements set forth in the Approval Notice. Company shall be solely responsible for costs of training and maintaining this statute as employees change roles or are no longer with the Company.
6. WARRANTY DISCLAIMER. Product warranties offered directly from Meraki to the Customer, MERAKI AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING THE PRODUCTS, INFORMATION AND SERVICES PROVIDED HEREUNDER OR THROUGH ITS AUTHORIZED DISTRIBUTORS OR THE VALIDITY OF THE MERAKI’S INTELLECTUAL PROPERTY RELATING THERETO, AND MERAKI SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRIGEMENT, SATISFACTORY QUALITY AND THOSE ARISING OUT OF COURSE OF DEALINGS OR USAGE IN TRADE.
7. TERM AND TERMINATION
7.1 Term. This Agreement will commence in force on the Effective Date provided in the Approval Notice and will remain in force until December 31st of that year, unless earlier terminated under this Section 7. Thereafter, this Agreement will automatically renew for successive (1) year terms, unless either party provides to the other party a written notice of non-renewal at least thirty (30) days in advance of the then expiry date.
7.2 Termination for Convenience. Either party may terminate this Agreement (including any purchase orders issued directly to Meraki pursuant to Section 2.2) at any time, for any reason or no reason, upon thirty (30) days’ prior written notice to the other party.
7.3 Termination for Cause. Either party may terminate this Agreement if the other party breaches this Agreement, if the breaching party fails to cure the breach within fifteen (15) days of receipt of written notice thereof. In addition, either party may terminate this Agreement upon: (i) the insolvency of the other party; (ii) the institution of any proceeding in relation to the credit standing of the other party, such as bankruptcy, reorganization, rehabilitation or composition, by or against the other part; or (iii) the appointment of any receiver or trustee for the other party.
7.4 Effect of Termination.
(i) Accrued Obligations. Expiration or termination of this Agreement for any reason shall not release any party hereto from any liability which, at the time of such termination, has already accrued to the other party or which is attributable to a period prior to such termination nor preclude either party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of this Agreement.
(ii) Inventory. Within ten (10) days after the effective date of termination of this Agreement, Company shall provide Meraki with a complete inventory of Product in Company's possession or control. Meraki may, in its sole discretion, re-purchase, and, all or part of Company’s inventory of Products on the effective date of such termination at a price equal to the Product price invoiced to Company.
(iii) Return of Materials. Within thirty (30) days after the effective date of termination of this Agreement, Company shall return or destroy all Confidential Information of Meraki in its possession or control and provide written certification of such return or destruction.
(iv) Limitation on Liability. To the fullest extent permitted under applicable law, neither party shall be liable to the other because of any termination of this Agreement in accordance with its terms, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, investments, leases, inventory or commitments in connection with the business or goodwill of Company or Meraki.
(v) No Renewal, Extension or Waiver. Acceptance of any order from, or sale of, any Product to Company after the date of termination of this Agreement shall not be construed as a renewal or extension hereof, or as a waiver of termination by Meraki.
(vi) Survival. The provisions of Sections 1, 4.2, 4.3, 6, 7, 8, 9, 10 and any payment obligations shall survive the expiration or termination of this Agreement for any reason.
8. CONFIDENTIAL INFORMATION. Company will treat as confidential all Confidential Information of Meraki, and will not use such Confidential Information except to exercise its rights or perform its obligations under this Agreement and will not disclose such Confidential Information to any third party. The obligations hereunder shall not apply to Confidential Information which is (i) in the public domain or subsequently enters the public domain through no act or omission of the Company; or (ii) already known to the Company at the time of disclosure without a duty of confidentiality, as established by competent proof. Nothing herein shall restrict Company from disclosing Confidential Information to the extent that it is required to be disclosed by law, government agency, governmental regulation, or court order, provided that Company shall provide Meraki with prior written notice of any such disclosure and a reasonable opportunity to seek confidential treatment or a protective order, if appropriate. The obligations herein shall be applicable during the Term of the Agreement and for a period of five years following the return of the Confidential Information and all copies thereof.
9. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MERAKI’S LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNTS PAID BY COMPANY FOR THE PRODUCT TO MERAKI OR ITS AUTHORIZED DISTRIBUTOR (AS APPLICABLE). TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MERAKI BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING CLAIMS OF NEGLIGENCE), WHETHER OR NOT MERAKI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. MISCELLANEOUS. If any portion of this Agreement is held to be unenforceable, the parties agree that the remainder of this Agreement will remain valid. This Agreement may not be assigned by Company without Meraki’s prior written consent; Meraki may assign this Agreement without the consent of Company, effective upon notice to Company. Subject to the preceding sentence, this Agreement will inure to the benefit of the parties’ successors and assigns. All notices must be either sent registered or certified mail, return receipt requested, or served personally. It is understood and agreed that monetary damages may not be a sufficient remedy for any breach of this Agreement and that the non-breaching party may be entitled to injunctive relief as a remedy for any such breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of this Agreement, but shall be in addition to all other remedies available at law or in equity. The terms and conditions of this Agreement and the Approval Notice (and to the extent applicable, the purchase orders issued directly to Meraki that are consistent with the terms of this Agreement) constitute the entire Agreement between the parties and supersede all previous agreements, whether oral or written, between the parties with respect to the subject matter hereof. In the event of any conflict between this Agreement and the terms of any ordering document, this Agreement shall supersede such conflicting terms. Company shall hold Meraki harmless from any loss, expense, cost, liability or damage, including attorney’s fees, arising from Company’s acts or omissions within the Territory, including without limitation any breach of this Agreement. No amendment or waiver of this Agreement will be binding unless it has been assented to in writing by both parties. This Agreement will be governed by the laws of the State of California without regard to its conflicts of laws provisions. The state and federal courts within San Francisco County, California will have exclusive jurisdiction over all disputes arising out of this Agreement.
BY CLICKING ON THE "I ACCEPT AND SUBMIT MY APPLICATION" BOX, APPLICANT IS REPRESENTING THAT HE/SHE HAS REVIEWED THE TERMS OF THIS AGREEMENT, HAS THE AUTHORITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT ON BEHALF OF THE COMPANY AND THAT THE COMPANY AGREES TO BE BOUND BY, AND IS BECOMING A PARTY TO, THIS AGREEMENT.
July 20, 2009
