Programs Terms and Conditions

Date: November 12, 2023
Workspace: BPS Terms and Conditions
Impacted audience: BPS Resellers

BPS Terms and Conditions

GENERAL

1.1 These Terms and Conditions and any document(s) referred to herein shall apply to the sales of all the Services to the Reseller and supersede all prior understandings and agreements.

1.2 These Terms and Conditions shall form a legally binding agreement between Reseller and BPS, herein referred to individually as a “Party” and collectively as “Parties”.

1.3 By checking the “I have read, understand, and accept the Terms and Conditions” when logging into the BPS Marketplace or by placing an order for any Services on BPS Marketplace, Reseller expressly agrees to be bound by these Terms and Conditions, and any other documents incorporated by reference therein.

1.4 BPS may, from time to time, update, revise and otherwise amend these Terms and Conditions or any documents referred to therein, by giving notice to Reseller. BPS will give notice to Reseller by posting the new version on its Marketplace.

DEFINITIONS

2.1	Account	means the account created for Reseller with BPS in connection with the purchase of the Services.
2.2	Account Information	means any information required in connection with Reseller Account including contact information, address, credit card and other information, as updated by Reseller from time to time.
2.3	Affiliate	means with respect to any legal Entity, any other Entity who directly or indirectly controls, is controlled by, or is under direct or indirect common control with the first Entity; and for the purposes of this definition, an Entity “controls” another Entity if that Entity, directly or indirectly, possesses the power to direct or cause the direction of the management and policies of that other Entity, whether through (i) the ownership of more than fifty percent (50%) of the securities, or (ii) the capacity to elect the majority of the directors, or (iii) effective control by control or otherwise; and “controlled by” and “under common control with” shall have corresponding meanings.
2.4	Agreement	means collectively and as amended (i) these Terms and Conditions, and (ii) any documents incorporated by reference into these Terms and Conditions.
2.5	Applicable Law	means the laws and regulations defined in the BPS Reseller Agreement.

2.6	BPS	means the seller of the Services on the BPS Marketplace defined in the BPS Reseller Agreement.
2.7	BPS Marketplace	means the BPS web portal located here.
2.8	Consumption Subscriptions	means a Subscription that is charged upon usage.
2.9	Confidential Information	means (i) the terms of this Agreement; (ii) all non-public technical information about a Party’s business, affairs, goods and services, forecasts, technology (including programming and software code), trade secrets, marketing strategies, financial information, Data, employee information, customer information and know-how; (iii) materials and documentation comprising or related to a Party’s Intellectual Property; or (iv) any other information which in the circumstances of its disclosure could be viewed by a reasonable person as confidential; in all cases whether oral or written, in electronic format or in any other form or media, and whether or not marked, designated or otherwise identified as “confidential”. Confidential Information shall not include information that (a) is or becomes a part of the public domain through no act, omission, or breach of the Agreement by the Receiving Party (as defined in Section 10 below), (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party (as defined in Section 10 below) or obtained subject to an obligation to keep it confidential, (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure or (d) is independently developed by the Receiving Party.

2.10	Data	means all data, including all text, sound, video, or image files, software and End Customer Data provided to BPS, by Reseller or on its behalf, through the Services, and which may include, without limitation, Personal Data.
2.11	Data Protection Law	means any Applicable Law that governs Reseller or BPS, relating to data security, data protection or privacy.
2.12	End Customer	means any customer identified by the Reseller to BPS as the person to which the Reseller will sell the Services which Reseller is purchasing on BPS Marketplace.
2.13	End Customer Agreement	means the written agreement entered into between Reseller and End Customer for the Services sold on BPS Marketplace, which agreement shall include terms which are no less restrictive than the terms of this Agreement, the documents incorporated thereto including, if applicable, the Supplier Customer Agreement, and any other agreement and document that are required to provide the Services, each as may be amended by BPS from time to time in accordance with this Agreement.
2.14	End Customer Data	means any Data received by Reseller from, or maintained by Reseller on behalf of, an End Customer in connection with the Services.
2.15	Fixed-Term Subscription	means a Subscription that is sold for a term of twelve (12) months or any other specific term agreed in writing between the Parties.
2.16	Intellectual Property	means anything that is or may be protected by any Intellectual Property Rights or any other intangible assets, protected, or that can be protected, or not, including all software, inventions, algorithms, architecture, databases, documentation, design, logos, know-how, business methods, trade secrets, Trademarks, domain names, and Confidential Information.
2.17	Intellectual Property Rights	means all rights protected or that can be protected by copyright, trademark, patent, design or trade secret and any other intellectual or similar property rights in intangible assets recognized under Applicable Law.
2.18	Monthly Subscription	means a one-month Subscription.
2.19	Personal Data	means any information relating to an identified or identifiable natural person.
2.20	Property Assets	means any and all the Services, Intellectual Property, and other property made available to Reseller and its End Customers in connection with the Services, whether owned by BPS, a Supplier or Licensed to BPS by a third party.
2.21	Processing/ Process	means any and all operations performed upon Personal Data, such as collection, recording, organization, storage, alteration, use, disclosure by transmission, dissemination or otherwise making available, erasure or destruction.
2.22	Reseller	means the entity that is purchasing the Services from BPS.
2.23	Services	means any services and/or any Subscriptions, license of software supplied or performed by BPS or its authorized service providers to the Reseller.
2.24	Subscription	means a right to use certain Services for a defined term.
2.25	Supplier	means any vendor or licensor of software, services or products included in or offered at BPS Marketplace.
2.26	Terms and Conditions	means any and all the terms and conditions contained in this document, the terms and conditions of any related Supplier and any other document incorporated by reference therein.

2.27	Trademarks	means any trademarks, service marks and tradenames whether registered or not.

APPOINTMENT OF RESELLER
Subject to this Agreement, BPS appoints the Reseller as BPS non-exclusive reseller and grants Reseller the limited, non-exclusive, non-transferable, non-sublicensable and revocable right to promote and resell the Services to End Customers subject to the following:

Reseller shall agree, adhere to and comply with Supplier terms and conditions, and
Reseller shall resell the Services to End Customers through its own sales procedure, under its sole responsibility.
Reseller shall market and promote the Services at its own cost and expense and such marketing and promotion shall at all times be performed in accordance with Applicable Law without infringing any third party rights, including Intellectual Property Rights.

Reseller shall maintain all licenses, permits, governmental approvals required to enter into this Agreement;
Reseller is solely responsible to ensure that:

the End Customer, prior to accessing the Services, agrees to and is legally bound by the End Customer Agreement, and
The Services will only be provided to such End Customer, and
The End Customer complies at all time with the terms of the End Customer Agreement, and
Reseller shall promptly notify BPS about any known or suspected violations of the terms of the End Customer Agreement.

Reseller agrees that BPS and its Suppliers own all proprietary rights, including Intellectual Property Rights, on the Property Assets. Reseller shall not, directly or indirectly:
(i) Use, sell, rent, copy, license, or otherwise transfer or make available the Services or Property Assets to a third party except as and to the extent permitted under this Agreement;
(ii) After or permit the alteration of a Property Asset;
(iii) Modify, reprogram, disassemble, decompile, reverse engineer any Property Asset;
(iv) Remove, modify or obscure any copyright, Trademark or other proprietary rights notices that appear on any Property Asset;
(v) Take any action that jeopardizes BPS or its Suppliers proprietary rights on any Property Asset;
Except as expressly agreed upon hereunder, nothing in this Agreement shall be interpreted as granting Reseller or any other person or entity, any right, title or interest on the Services or the Property Assets. Reseller shall use reasonable efforts to prevent any unauthorized distribution, copying, use or pirating of Property Assets. Reseller shall ensure implementing within the End Customer Agreement the limitations set out in this Section (3.4) and shall be responsible towards BPS for any breach of those limitations by Reseller and by its End Customers.
Reseller shall however retain all right, title and interest, in and to the Data. Reseller grants BPS a non-exclusive, royalty-free, worldwide right to use, copy, reproduce and display the Data as necessary for BPS to provide the Services, and otherwise in accordance with this Agreement.
ACCOUNT
Reseller agrees to provide accurate Account Information and maintain it by providing updates to BPS promptly when any Account Information requires changes.
Subject to these Terms and Conditions, the Reseller may access and use the BPS Marketplace to manage its Account, update its Account Information, order and remove the Services and manage its End Customers.
Reseller is solely responsible for:

Maintaining the confidentially and security of its password and other access information associated with its Account, and
All activities that may occur in connection with its Account, whether initiated by Reseller, by others on its behalf, or by any other means. Reseller shall notify BPS immediately of any unauthorized use of its Account, or any other actual or potential breach of security.

4.4 Reseller agrees that BPS will not be liable for any loss that Reseller may incur as a result of any person using or accessing its Account, with or without its authorization and/or knowledge. Reseller is responsible for the security of his Account. BPS expressly disclaims all liability for any activity in Reseller Account, whether authorized by Reseller or not.

ORDERS, FEES AND PAYMENT TERMS
When Reseller purchases the Services from BPS for resale to End Customer, Reseller shall place and submit orders: (i) electronically via BPS Marketplace, in accordance with the terms of this Agreement or (ii) through purchase orders sent to BPS address, along with the signature of these Terms and Conditions and the relevant Suppliers terms and conditions:
All the Services sold to Reseller are strictly for resale to End Customers in the countries as authorized by the relevant Supplier. Reseller agrees to indemnify and hold BPS harmless from and against any and all liability, costs or damages arising from Reseller’s resale of the Services outside of the countries authorized by the relevant Supplier.
Except as otherwise agreed to in writing by BPS, Reseller shall pay the Fees for the ordered Services together with any and all applicable taxes, in full:
Upon issuance of relevant invoice by BPS, and
Prior to the delivery of ordered Services, and
By credit card on BPS Marketplace, or by bank transfer when orders are submitted through purchase orders and
In USD currency or any other currency available on the BPS Marketplace, if any.
If Reseller wishes to apply for credit terms, Reseller shall provide BPS with all the financial information requested by BPS from time to time for the purpose of establishing and maintaining the Reseller’s credit limit. BPS shall have the right from time to time, without notice, to change or revoke the Reseller’s credit limit on the basis of changes in BPS credit policies or the Reseller’s financial condition and/or payment record.

WARRANTIES
To the maximum extent permitted by Applicable Law, and notwithstanding anything to the contrary agreed upon hereunder, BPS and its Suppliers provide the Services on an “AS IS” basis and no warranty is extended to the Reseller under this Agreement. No information or advice, oral or written, provided by BPS and/or any of its Affiliates, and/or Suppliers and/or their respective representatives shall create any warranty, and Reseller shall not rely on any such information or advice.
Reseller expressly agrees that the resale of the Services is at Reseller sole risk. Reseller is not authorized to make any warranty or representation on behalf of BPS or any Supplier. Reseller shall be solely responsible for any warranties for the Services provided by Reseller.
BPS expressly disclaims all warranties of any kind with respect to the Services or with respect to this Agreement, whether express, implied or otherwise, oral or written, including but not limited to the warranties of merchantability, quality or fitness for purpose, non-infringement, or warranties that the Services will be uninterrupted or error-free.
Reseller agrees that whole or part of the Services are provided by Suppliers whose performance is not guaranteed by BPS or such Suppliers under this Agreement.
BPS shall have no duty to defend, indemnify or hold harmless Reseller from and against any or all damages and costs incurred by Reseller arising from the infringement of Intellectual Property Rights or Trademarks or violation of copyrights by the Services.
This disclaimer of warranties constitutes a material term and an essential condition of this Agreement.
Software Products are not warranted by BPS under this Agreement. Such Software Products are warranted in accordance with the relevant license agreements governing their use.

SERVICES AND CANCELLATION

7.1 No Services may be returned to BPS after being ordered.

7.2 Notwithstanding clause 7.1 above, when the Services sold by BPS are Subscriptions, the following shall apply in case of a cancellation:

In case Reseller cancels:
A Monthly Subscription, the monthly invoice shall represent the value of the said Subscription up to the effective date of cancellation.
A Fixed-Term Subscription, BPS (a) will not provide a refund in connection with the cancelled Subscription, (b) reserves the right to invoice Reseller for any future scheduled billings for that Subscription, and (c) reserves the right to invoice the Reseller for all fees previously waived, discounts, or rebates applied or granted for that Subscription.
In case BPS cancels:
A Monthly Subscription, the monthly invoice shall represent the value of the said Subscription up to the effective date of cancellation.
A Fixed-Term Subscription, BPS will not invoice Reseller for any future scheduled billings for that Subscription.
Consumption Subscriptions can be cancelled in accordance with each Supplier terms and conditions and any usage before cancellation will be invoiced.
TERM AND TERMINATION

8.1 This Agreement shall be effective upon the date the Reseller accepts these Terms and Conditions:

(i) By checking the “I have read, understand and accept the Terms and conditions” box, or
(ii) By filling in the Account Information document and logging into BPS Marketplace and placing an order for any of the Services.

Whichever occurs first (the “Effective Date”) and shall remain in effect until it is terminated by either Party in accordance with the terms of this Agreement.

8.2 This Agreement may be terminated for convenience by either Party upon delivery of a (30) thirty days prior written notice to the other Party of its intent to terminate the Agreement.

8.3 BPS shall have the right to terminate this Agreement or suspend the Reseller Account, in whole or in part, immediately and without prior notice on the occurrence of any of the following Event of Default:

Reseller is in material breach of its obligations under this Agreement, provided that such breach is capable of being cured however remains uncured after a fifteen (15) days prior notice to Reseller; or
Reseller is in material breach of its obligations under this Agreement more than two (2) times notwithstanding any cure of such breaches; or
Reseller is in breach of its obligations under this Agreement and such breach is incapable of being cured.
If BPS determines that Reseller engaged in illegal practices or that Reseller violated, violates or is likely to violate:

(i) its compliance obligations under this Agreement, or
(ii) Supplier terms and conditions, or
(iii) its confidentiality obligations under this Agreement or
(iv) its non-solicitation obligation under this Agreement.

8.4 Either Party may terminate this Agreement immediately by serving the other Party a written notice of termination, in the event the other Party:

Terminates or suspends its business; or
Becomes subject to any bankruptcy, insolvency or other similar proceeding under Applicable Law;
Becomes insolvent or bankrupt or subject to direct control by a trustee, receiver or similar authority; or
Has wound up or is being liquidated, voluntarily or otherwise.

8.5 Any termination of this Agreement:

Does not relieve either Party of its obligations that have accrued under this Agreement or operate to discharge any liability that has been incurred by either Party prior to the effective date of termination, and
Shall be without prejudice to any other rights or remedies to which the terminating Party may otherwise be entitled against the other Party.

8.6 Upon termination of this Agreement, in whole or in part:

BPS will close the Reseller Account.
BPS may charge any unpaid balance to Reseller credit card on file or otherwise invoice Reseller for such unpaid balance;
Reseller will promptly remove all references to the terminated Services and any BPS branding from Reseller website or portal;
Reseller will promptly stop all use of the Services and uninstall and remove all copies of software provided by BPS or Suppliers from any End Customers devices, or otherwise render such Services permanently unusable by Reseller or its End Customers, and Reseller will require that its End Customers return or destroy all copies of such software they received;
BPS will have no obligations to Reseller, for payment or otherwise with respect to Reseller End Customers; and
BPS may irrevocably delete the Reseller Data upon the effective termination date unless otherwise agreed upon. Reseller is solely responsible for securing all necessary Data from Reseller Account prior to termination. BPS shall not be responsible for any loss of Data or any damages arising from the deletion of Data following termination of this Agreement.

PRIVACY AND DATA PROTECTION

9.1 BPS will Process the Data in accordance with this Agreement and only:

(i) To provide the Services and carry out the purposes of this Agreement; or
(ii) As authorized by Reseller or under Applicable Law;

9.2 To the extent the Data constitutes Personal Data, the Parties hereby agree that BPS will be a data processor with respect to such Personal Data and Reseller will be the data controller as those terms are defined under the Data Protection Law, provided that where End Customer Data constitutes Personal Data, BPS and Reseller will each be a data processor with respect to such Personal Data and the relevant End Customer will be the data controller.

9.3 Each Party is responsible for maintaining privacy policies in accordance with Data Protection Law.

9.4 BPS and any third party Supplier engaged by BPS to assist in providing the Services shall have the right to Process the Data to the extent necessary to sell the Services.

9.5 Reseller hereby agrees:

(i) To comply with Data Protection Law related to Reseller procurement and use of the Services and Reseller transfer of Personal Data to BPS.
(ii) To be responsible for its own compliance with Data Protection Law.
(iii) Without limiting the generality of the foregoing, to provide sufficient notice to and obtain proper consent from End Customer, as required by Data Protection Law to allow BPS, Suppliers, and their representatives to Process Personal Data as provided for in this Agreement.
(iv) To follow good industry practices for safeguarding and maintaining confidentiality of End Customer Data and shall comply with Data Protection Law with respect to the protection of End Customer Data.
(v) Not to process any End Customer Data on any End Customer behalf without first including appropriate terms in the End Customer Agreement for protection of such data.
(vi) Unless agreed otherwise in the End Customer Agreement, with respect to Personal Data Reseller Processes on behalf of End Customer, Reseller:
shall comply with and act upon instructions received from or on behalf of that End Customer, and
shall not process that Personal Data for any purpose other than for Reseller performance of its obligations under this Agreement, and
shall ensure that appropriate measures are taken to prevent unauthorized or unlawful processing of that data and loss or damage to that Personal Data, and
shall not by any act or omission place that End Customer, BPS or any Supplier in breach of Data Protection Law.

CONFIDENTIALITY

10.1 Except as otherwise permitted by the Agreement, a Party receiving Confidential Information (the “Receiving Party”) shall maintain the confidentially of all Confidential Information from the Party disclosing the Confidential Information (the “Disclosing Party”) and shall not release, disclose, divulge, sell or otherwise distribute any Confidential without the prior written consent of the Disclosing Party. The Receiving Party may only use the Disclosing Party’s Confidential Information as necessary to carry out the purposes of the Agreement.

10.2 The Receiving Party will:

(i) Use the same degree of care that it uses to protect the confidentiality of its own confidential information of similar nature (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purposes outside the scope of the Agreement;
(ii) Notify the Disclosing Party promptly upon discovery of any unauthorized use or disclosure of the Confidential Information; and
(iii) Cooperate with the Disclosing Party to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of such Confidential Information.

10.3 Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, directors, officers, employees, consultants, contractors, and agent (collectively the “Representatives”) who need to have the information in order to carry out the purposes of the Agreement, provided that it has ensured that such Representatives are required in writing to protect the Confidential Information. The Receiving Party is liable to the Disclosing Party for any use of the Confidential Information by its Representatives.

10.4 Reseller may disclose Confidential Information to the End Customers solely to the extent necessary to carry out the purposes of the Agreement and provided that such End Customers have entered into an End Customer Agreement and are required to protect the Confidential Information on terms no less onerous than those of the Agreement.

10.5 The Receiving Party may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority, or as otherwise required by Applicable Law. If the Receiving Party is required by Applicable Law to disclose any Confidential Information, it shall, to the extent permitted under Applicable Law, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to give the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.

10.6 The Parties acknowledge and agree that any breach of the terms of this Section 10 will cause irreparable harm and damage to the Disclosing Party, and that each Party shall be entitled to injunctive relief to prevent breaches of this Section 10 and to specifically enforce the terms and provisions of this Section 10, in addition to any other remedy to which such Party may be entitled, at law or in equity.

10.7 BPS will not use Reseller Confidential Information to solicit a direct relationship with Reseller End Customers regarding the Services, but this restriction shall not prevent BPS from contacting or soliciting those End Customers:

With whom BPS already has a direct relationship;
Who initiate contact with BPS;
Without use of Reseller Confidential Information; or
As otherwise expressly permitted under this Agreement.

Notwithstanding the foregoing, BPS shall have the right to use Reseller Confidential Information to solicit End Customers during or after the Term of the Agreement if Reseller becomes unreachable or if BPS terminates the Agreement pursuant to Section 8.3 or 8.4. in such latter case, BPS will be entitled to contact Reseller End Customers to transition Reseller End Customers directly to BPS or another reseller, and Reseller will work collaboratively with BPS to effect a smooth transition of Reseller End Customers, including through the provision of a full accounting of all existing, pending and prospective End Customers.

COMPLIANCE AND AUDIT
General: Reseller and all officers, directors, shareholders or owners, employees, agents, subcontractors, and affiliates of Reseller will comply with all applicable laws, regulations rules, court decisions and express public policies of the United States, and all countries having jurisdiction over Reseller activities under this Agreement, including but not limited to, applicable export control, economic sanctions, currency exchange provisions, as well as tax and anti-corruption laws and regulations (collectively, “Applicable Law”).
Without limiting the generality of Section 11.1, Reseller shall fully comply with all applicable anti-corruption and anti-bribery laws, regulations, and legislation, including:

The Foreign Corrupt Practices Act, and
The U.K. Bribery Act, and
BPS anti-corruption policy, as may be updated from time to time, in connection with the performance of Reseller obligations under this Agreement. Reseller shall not nor any of its shareholders, directors, officers, employees, agents, representatives, shall authorize, offer, promise, or make any payment, or give anything of value, directly or indirectly, to any government official, any relative of a government official, or any private commercial partner to influence the decision of such government official, any department or agency of any government or such private commercial partner or to gain any other advantage, for the Reseller in connection with this Agreement.

Reseller shall not, directly or indirectly, engage in the manufacture, use, distribution or transfer of counterfeit, pirated or illegal software. Reseller shall not resell the Services to any party that Reseller knows or suspects is engaged in these activities. Reseller shall report any such suspected activities and shall cooperate with BPS and/or its Suppliers in the investigation related thereto.
Export Control Compliance: It is expressly understood that this Agreement, and all obligations arising hereunder, are subject to U.S. Government export control laws and regulations, including but not limited to U.S. economic sanctions administered by the Office of Foreign Assets Control, and/or the laws and regulations of other involved countries, including without limitation, the requirement to obtain necessary approvals and licenses prior to the acceptance of any orders, or the export of Services hereunder, and the transfer or re-export of any such Services by Reseller or Reseller’s End Customer thereafter. During the Term of this Agreement, and thereafter, any Services purchased by Reseller hereunder, including any technical data or documentation pertaining thereto, (including Confidential Information as defined in this Agreement) shall not be sold, leased, released, assigned, transferred, conveyed or in any manner disposed of, either directly or indirectly, without the required written authorizations of the government of the United States or the government of other involved countries. Failure by Reseller to comply with applicable export control laws, rules and regulations shall constitute a material breach of this Agreement. Reseller shall not do anything which would cause BPS to be in breach of applicable export control laws, rules and regulations, and shall protect, indemnify and hold harmless BPS from any claim, damages, liability costs, fees and expenses incurred by BPS as a result of the failure or omission of Reseller to comply with such laws, rules and regulations.

BPS shall be excused from performance, and not be liable for damages, for failure to deliver the Services hereunder resulting from the U.S. Government’s denial, delay, or withdrawal of approval to export Services to Reseller or End Customers.

In the event BPS notifies Reseller that BPS has information or belief that there is a reasonable suspicion of wrongdoing or breach of this Agreement by Reseller, any of Reseller’s officers, directors, shareholders or owners, affiliates, employees or agents, or by BPS as a result of the activities or omissions of Reseller, then Reseller shall promptly respond to BPS’ inquiries with respect thereto and render all reasonable assistance with respect to BPS investigation thereof, including, without limitation, making available to BPS, or its third party professional service provider under contractual or ethical confidentiality obligations, upon reasonable advance written notice, for audit and review of Reseller’s books, records and other relevant documentation to the extent related to Reseller’s applicable obligations under this Agreement. Reseller shall incorporate the requirements of this provision in the End Customer Agreement, and Reseller shall use best efforts to obtain information, books, records and other relevant documentation from any such person in order to facilitate BPS inquiries and investigation. In the event that Reseller has information or belief that there has been or may be a breach of this Section, Reseller shall immediately notify BPS thereof. Failure to immediately notify BPS shall be grounds for termination pursuant to this Agreement.
Reseller will retain all business records and accounts related to its compliance with this Agreement which, in reasonable detail, accurately and fairly reflect Reseller business transactions related to BPS during the Term of this Agreement and for seven (7) years thereafter (“Compliance Period”). Reseller shall not comingle records related to BPS with personal records or records relating to affiliated businesses or other persons not involved in this Agreement. During the Compliance Period, BPS and/or Suppliers may perform audit or have their agents, accountants, auditors or other representatives perform audit of the Reseller’s records and accounts from time to time in order to ascertain compliance with this Agreement. Reseller shall make available such records and accounts for examination and audit.
Audits shall occur during regular business hours, upon reasonable notice, and in a manner that is not disruptive of the Reseller’s business.
By invoking its audit rights, neither BPS nor any Supplier waives its rights to enforce this Agreement or to protect its Intellectual Property by any other means permitted by Applicable Law.
INDEMNIFICATION

12.1 Reseller shall defend, indemnify, and hold harmless BPS, Suppliers and their respective employees, officers, directors, and agents from and against any and all claims, actions and demands brought by a third party arising out of or resulting, directly or indirectly, from the resale by the Reseller of the Services hereunder or from the use of the Services by the End Customers.

LIMITATION OF LIABILITIES

13.1 In no event shall BPS and any Supplier or their Affiliates and respective representatives be liable for indirect, special, incidental, consequential, punitive, exemplary damages, loss of profits, loss of savings or revenues, loss of Data, loss of business information or business interruption, diminution in value or other similar pecuniary losses, arising under or in connection with the Services or more generally this Agreement.

MISCELLANEOUS

14.1 Independent Contractors: The relationship of the Parties shall be solely that of independent contractors. Nothing contained in the Agreement shall be construed to make one Party the agent for the other or partner of the other for any purpose. Neither Party shall by virtue of the Agreement have the right or authority to act for, or to bind the other in any way, or to represent that the other is in any way responsible for its acts and omissions.

14.2 Entire Agreement: The Agreement and all documents forming part of the Agreement collectively constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, representations, conditions, warranties, negotiations and discussions with respect to the subject matter hereof, whether oral or written. This Agreement cannot be modified unless by a written amendment duly signed by the Parties.

14.3 Successors and assigns: Reseller may not assign the Agreement without the prior written consent of BPS, which consent shall not be unreasonably withheld. BPS may assign this Agreement without the need for prior consent. The Agreement shall inure to the Parties benefit and shall be binding upon both Parties and their respective legal successors and permitted assigns.

14.4 Force Majeure Event:

14.4.1 Neither Party is liable for delay or failure to perform any of its obligations under this Agreement insofar as the performance of such obligation is prevented by a force majeure event. Each Party shall notify the other Party of the occurrence of such a force majeure event and shall use all reasonable endeavors to continue to perform its obligations hereunder for the duration of such force majeure event. In case force majeure event exceeded one (1) month period, whether continuously or intermittently, either Party has the right to terminate this Agreement immediately by means of written notice without bearing any liability whatsoever.

14.4.2 For the purposes of the Agreement, a force majeure event means any event, which is unpredictable, beyond the reasonable control of the Party liable to effect performance and external to this Party, and shall include but not be limited to riots, acts of war, acts of terrorism, epidemics, major fire, or natural disasters. For the avoidance of doubt, force majeure does not include strikes or other employment disputes of either Party’s personnel or such Party’s subcontractor’s personnel.

14.5 Non-Waiver: Waiver of any provision herein shall not be deemed a waiver of any other provision herein, nor shall waiver of a breach of any provision of the Agreement be construed as a continuing waiver of other breaches of the same or other provisions of the Agreement.

14.6 Survival: All obligations imposed on the Parties which expressly or by their nature survive the termination of the Agreement shall continue in full force and effect subsequent to and notwithstanding such expiration or termination, and until they are satisfied or by their nature expire, including Sections 3.4, 3.5, 3.6, 6, 8,10, 12, 13, and 14.

14.7 Notice: Reseller agrees that communications from BPS may be electronic. As such, BPS may notify Reseller by email (to any email address registered with BPS) or provide Reseller with information by posting notices on BPS’s website, BPS Marketplace or to Reseller Account. Reseller agrees to this electronic means of communication and acknowledges that all contracts, notices, information, and other communications that BPS provides Reseller electronically are acceptable and effective as notice. Subject to the foregoing and except as otherwise specified in the Agreement, all notices requests, consents, claims, demands and waivers hereunder shall be in writing and shall be deemed to have been given:

(i) Immediately upon personal delivery,
(ii) The second business day after mailing,
(iii) The second business day after sending by confirmed facsimile, or
(iv) The first business day after sending by email or, if from BPS to Reseller, upon online posting on BPS’s website, BPS Marketplace or Reseller Account. Notices to BPS that are not expressly authorized by the administrative control panel under the Agreement shall be mailed to BPS at the address defined in the BPS Reseller Agreement.

14.8 Injunctive Relief: Reseller acknowledges that any act in violation of BPS’s rights in the Services may cause irreparable damage to BPS, for which monetary damages may not be an adequate remedy. Accordingly, if Reseller acts, fails to act, or attempts to act in violation of BPS’s rights in the Services, then, in addition to all BPS’s other rights and remedies under the Agreement, BPS shall have the right to seek to prevent such action or failure to act by applying for injunctive relief.

14.8 Severability: if in any jurisdiction, any provision of the Agreement or its application to any Party or circumstance is restricted, prohibited or unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or unenforceability, without invalidating the remaining provisions thereof and without affecting the validity or enforceability of such provision in any other jurisdiction or its application to other parties or circumstances.

APPLICABLE LAW AND JURISDICTION

15.1 The Agreement shall be governed and construed in accordance with the laws defined in the BPS Reseller Agreement. The Parties intend and agree that the law defined in the BPS Reseller Agreement shall apply despite any choice-of-law statute, rule, or precedent that would apply the law of any other jurisdiction. To the extent it may be applicable, the Parties expressly agree to exclude the application of the U.N. convention on Contracts for the International Sale of Goods (1980) to this Agreement.

15.2 The disputes arising from or in connection with the Agreement shall be finally settled by the competent courts defined in the BPS Reseller Agreement. This choice of jurisdiction does not prevent BPS from seeking injunctive relief with respect to a violation, infringement or misappropriation of Intellectual Property Rights or confidentiality obligations in any jurisdiction.

SIGNATURE

16.1 By registering for an Account, or by clicking to accept these Terms and Conditions when logging into the BPS Marketplace or by placing an order for any Services on BPS Marketplace, or by signing this Agreement in person at BPS offices, Reseller is deemed to have executed the Agreement.

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