Authorized Partner Agreement
To become an Authorized Partner with ADTRAN under the ADTRAN Channel Partner Program (the "Program"), your company must complete the profile provided by ADTRAN and accept the terms and conditions of this Authorized Partner Agreement (the "Agreement").
This Agreement is entered into by and between ADTRAN, Inc., a Delaware corporation with its principal place of business at 901 Explorer Blvd, Huntsville, AL USA 35806 ("ADTRAN") and the legal entity executing this Agreement electronically ("Company"), each of which may be referred to in the singular as "Party" or in the plural as "Parties." This Agreement shall become effective the first calendar day of the month following ADTRAN's acceptance of the Company's electronically signed Agreement (the "Effective Date").
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Parties agree as follows:
1. Responsibilities of Company
1.1 Program Terms. As of the Effective Date, Company accepts its designation as an Authorized Partner under the Program, pursuant to the terms and conditions of this Agreement. The Parties acknowledge and agree that to participate as a Premier Partner in the Program, Company will be required to agree to additional terms and conditions contained in an addenda to this Agreement (each, a "Program Addendum"). The Parties agree that any such Program Addendum shall be an integral part of this Agreement upon the effective date of such Program Addendum. Company acknowledges and agrees that this Agreement supersedes any prior agreement between Company and ADTRAN governing Company's participation in ADTRAN's Channel Partner Program.
1.2 Sale to End Users. Pursuant to this Agreement, Company may purchase certain ADTRAN Products (as defined in Section 4 hereof) as an Authorized Partner from ADTRAN's authorized distributor(s) and may responsibly resell such Products solely to End Users in the marketplace on a non-exclusive basis within the Territory (as defined in Section 1.5 hereof). "End User" is defined as a business or individual that purchases Products for its own internal use and not for resale to a third party or parties.
1.3 Point of Sale Reports. When placing an order through an ADTRAN authorized distributor in support of an End User sale, Company must provide the following information to the distributor: End User company name, End User address, city, state/province, zip code/postal code, and End User country. Company must comply with any other point of sale reporting requirements published by ADTRAN from time to time, and/or the ADTRAN authorized distributor(s) from which Company purchases ADTRAN Products. Failure to provide point of sale information may result in termination of Company's participation in the Program by ADTRAN.
1.4 Agreements with ADTRAN Authorized Distributor. Company acknowledges that each ADTRAN authorized distributor may require Company to enter into other agreement(s) with such authorized distributor. Company acknowledges and accepts that each authorized distributor is an independent party that is not empowered to act on behalf of ADTRAN or bind or represent ADTRAN in any manner.
1.5 Territory. If Company is in the United States of America, then Company's non-exclusive Territory is defined as the United States of America including the fifty (50) states and the District of Columbia. If Company is in Canada, then Company's non-exclusive Territory is defined as Canada. Without the express written consent of ADTRAN, Company shall not sell or ship any ADTRAN Product outside of its Territory.
2. Program Description.
A complete description of the Program may be viewed at adtran.com/partner. ADTRAN reserves the right to modify the terms of the Program at any time upon prior notice to Company.
3. Term and Termination.
This Agreement shall become effective as of the Effective Date and shall continue for a period until December 31 of the same calendar year (hereinafter the "Initial Term"). This Agreement shall then automatically renew for a period of one calendar year beginning January 1 subsequent to the Initial Term. At the conclusion of the first full calendar year of this Agreement, and provided that it has not been subject to earlier termination as provided herein, this Agreement shall renew and continue on a year to year basis thereafter. This Agreement may be terminated for convenience, for any reason or no reason, by either Party upon prior written notice to the other. This Agreement shall terminate if Company becomes insolvent or bankrupt, or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or ceases to function as a going concern or to conduct its operations in the normal course of business. Upon the termination or expiration of this Agreement, Company shall immediately (a) cease to represent itself as an ADTRAN Authorized Reseller, and (b) cease its use of any of the ADTRAN marks. Any Program Addendum in effect at the time of termination or expiration of this Agreement shall automatically be terminated.
For purposes of this Agreement, "Product" or "Products" shall mean those products or services offered by ADTRAN for resale by Company as listed on ADTRAN's then current ADTRAN Channel Program Price List (the "Price List"). ADTRAN, at its sole discretion, may from time-to-time issue updated versions of the Price List incorporating the additions, deletions or modifications to the Products, or changes to the prices, or both. The then current Price List shall be deemed to be (i) amended by such additions, deletions, modifications and/or changes in pricing or (ii) replaced in its entirety by such updated version of the Price List upon ADTRAN's issuance thereof. Errors or omissions in price are subject to correction by ADTRAN.
5. Use of ADTRAN Marks.
ADTRAN grants to Company, during the term of this Agreement, the right to use the word "ADTRAN," the ADTRAN logo and any other trademark owned by ADTRAN (collectively, the "ADTRAN Marks") solely in accordance with the terms of ADTRAN Trademark and Logo Usage Policy located on ADTRAN's website. Company shall not distribute, disseminate, provide to any person or entity, or use in any manner whatsoever any sales literature or materials prepared by Company pertaining to the Products without first furnishing a copy thereof to ADTRAN and obtaining its written approval of the same by sending the request to [email protected] For such purpose, electronic correspondence from ADTRAN with authorized ADTRAN electronic signature will suffice. Company, at its sole expense, shall be responsible for the translation, printing, and dissemination of all such materials.
ADTRAN may make available to Company certain oral or written information including, but not limited to, engineering and technical data, test and analysis data, marketing, application and customer information, price lists, product and other specifications (including but not limited to the Products), and new product information ("Confidential Information"). Such information may be deemed Confidential and so marked or identified as such at the time of its transmission to Company, and neither Company nor its agents, employees, assigns, or successors in interest shall disclose any such Confidential Information to any third party(ies) without the prior written consent of ADTRAN. Upon termination or cancellation of this Agreement, all such Confidential Information shall, at the option of ADTRAN, be immediately returned to ADTRAN or destroyed by Company. ADTRAN may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of Company's obligations under this Section. Company's obligations under this clause shall survive the expiration or termination of the Agreement.
7. Limited Warranty/Warranty Disclaimer.
ADTRAN's only obligations to End Users shall be the warranty terms defined herein. No warranty is extended to Company under this Agreement. ADTRAN warrants Products in accordance with its then current published warranty, provided that Products not manufactured by ADTRAN will carry the warranty and related terms and conditions of the original manufacturer (hereinafter the "Warranty"). COMPANY SHALL NOT PROVIDE ANY WARRANTY REGARDING ANY PRODUCT OTHER THAN THE WARRANTY DESCRIBED IN THIS SECTION 8. Company agrees to indemnify ADTRAN and hold ADTRAN harmless from any and all losses, damages, liabilities or expenses of whatever kind incurred by ADTRAN arising out of the breach of this Section 8 by Company. THIS SECTION 8 SETS FORTH ADTRAN'S ENTIRE LIABILTY FOR ANY BREACH OF ANY WARRANTY RELATING TO THE PRODUCTS.
8. Product Liability.
Subject to the terms and conditions set forth in Section 10, ADTRAN agrees to indemnify Company against any losses, damages, liabilities or expenses incurred by Company arising out of or resulting from any claim by a third party alleging or relating to the Products to the extent that any such claim (1) is attributable to bodily injury or death or to injury to or destruction of physical property (other than the Products) and (2) is caused by a negligent act or omission of ADTRAN. This obligation on the part of ADTRAN shall exist only if Company (1) purchased Product(s) through ADTRAN's authorized distributor; (2) gives ADTRAN prompt written notice of any such claim; (3) grants ADTRAN control of the defense and resolution of such claim; (4) assists fully in the defense so long as ADTRAN pays the out-of-pocket costs; and (5) gives ADTRAN a copy of each communication relating to the claim that it receives from the claimant. ADTRAN shall have no liability for any settlement or compromise made without its prior written consent. This Section sets forth the entire liability and obligation of ADTRAN and the sole and exclusive remedy for any claim covered under this Section.
9. Limitation of Liability.
IN NO EVENT SHALL ADTRAN BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF PROFITS, REVENUE OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING ELSE HEREIN, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY LIABILITY OF ADTRAN FOR CLAIMS ARISING UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE MONEY PAID BY COMPANY TO ITS AUTHORIZED DISTRIBUTOR FOR SUCH ADTRAN PRODUCTS GIVING RISE TO SUCH CLAIM SOLD PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
10. Export Controls.
Company acknowledges that the Products and technology or direct products thereof it may purchase and resell under this Agreement are subject to export controls under the laws and regulations of Canada and the United States of America (U.S.). Company shall comply with such laws and regulations governing use, export, re-export, and transfer of ADTRAN products and technology and will obtain all required U.S. and local authorizations, permits, or licenses. Company agrees to maintain full, true, and accurate records of exports, re-exports, and transfers of the products and technology, purchased and deployed or distributed, according to U.S. and local laws for at least five (5) years following the date of any such export, re-export, or transfer. Company's obligations under this clause shall survive the expiration or termination of the Agreement.
11. General Provisions.
11.1. Choice of Law. The validity, interpretation, and enforcement of this Agreement shall be governed by the domestic laws of the State of Alabama, United States of America, as if performed wholly within the State of Alabama and without giving effect to its principles of conflicts of laws, and the State and Federal courts of Alabama shall have exclusive jurisdiction over any claim arising hereunder, except as expressly provided below. The Parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Agreement.
11.2 Dispute Resolution. If any claim, controversy or dispute between the Parties, their agents, employees, officers, directors, or affiliates ("Dispute") cannot be settled through negotiation, it shall be resolved by arbitration conducted by a panel of three arbitrators engaged in the practice of law, under the then current Commercial Arbitration rules of the American Arbitration Association (hereinafter "AAA"). The Federal Arbitration Act, 9 U.S.C. §§ 1-16 shall govern the arbitrability of all Disputes. The arbitrators shall not have the authority to award punitive damages. All expedited procedures prescribed by the AAA rules shall apply. The arbitrators' decision and award shall be final and binding and judgment may be entered in any court having jurisdiction thereof. The arbitration shall occur in Huntsville, Alabama. The Party or Parties prevailing in such arbitration shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for their attorney's fees which shall be determined by the arbitrator in such arbitration or in a separate arbitration action brought for that purpose.
11.3 Assignment. Neither this Agreement, nor any rights under this Agreement, may be assigned by Company without the express prior written consent of ADTRAN. Any attempted assignment in violation of the preceding sentence shall immediately terminate the Agreement and be without legal effect.
11.4 Relationship of the Parties; No Partnership. This Agreement does not create any agency, partnership, joint venture, employment or franchise relationship. Furthermore, no labor relationship between ADTRAN and Company employees is created hereby. Company shall indemnify and hold ADTRAN harmless of any claim or judicial action whatsoever from any Company employee, including any and all actions or claims arising in connection with the non-compliance by Company of any applicable laws, including any labor laws and/or social security regulations. Neither Party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other Party or bind the other Party in any respect whatsoever.
11.5 Notices. All notices, demands, and other communications shall be in writing and shall be deemed to have been given if delivered by email, or mailed registered or certified mail, postage prepaid, or by express delivery service, to the following persons:
By Company, to: ADTRAN, Inc.
901 Explorer Blvd.
Huntsville, AL 35806 USA
Attn: Department of Legal Affairs and Contracts
Email: [email protected]
(b) By ADTRAN to: Company's contact name, address and email provided, or such other address that may be designated by a Party from time to time in accordance with this Section.
11.6 Enforceability. Company agrees that the electronic mail address it has provided corresponds to a person that has the capacity and authority to execute this Agreement and any amendments or addenda on behalf of Company. Company and ADTRAN each waive any defense to the validity or enforceability of this Agreement arising from the electronic submission and electronic acceptance of this Agreement by Company.
11.7 Compliance with Laws. In its performance of this Agreement, Company will comply with all laws, all licenses, permits and approvals required by any government or authority, including any recycling or take-back programs applicable to packaging, resale or use of Products, and shall comply with all applicable laws, rules, policies and procedures including without limitation the US Foreign Corrupt Practices Act, requirements applicable to the use of Products under telecommunications and other laws and regulations (collectively "Applicable Laws"). Company will indemnify and hold harmless ADTRAN for any violation by Company of any Applicable Laws.
11.8 Anti-Corruption. Company acknowledges that it has been made aware of and understands that ADTRAN is subject to anti-corruption and anti-bribery laws including but not limited to the United States Foreign Corrupt Practices Act, and hereby agrees to comply with all applicable anti-bribery and anti-corruption laws.
11.9 Code of Business Conduct & Ethics. Company agrees to comply with the ADTRAN Code of Conduct, or with Company's written code of conduct or another similar standard, as long as such code or applicable standard is as restrictive as the ADTRAN Code of Conduct.
11.10 Program Status Change. Company may be selected by ADTRAN to be promoted to another ADTRAN Program level. If so, ADTRAN will provide a Program Addendum for Company's review and acceptance. Execution of the Program Addendum by Company incorporates the terms and conditions thereof into this Agreement.
11.11 Modification. ADTRAN reserves the right to modify the terms of this Agreement at any time upon prior notice to Company.
11.12 Entire Agreement. This Agreement and any applicable Program Addendum shall constitute the entire Agreement between the Parties with respect to the limited subject matter specified herein. This Agreement supersedes all prior oral and written communications, agreements and understandings of the Parties with respect to the limited subject matter of this Agreement including, without limitation, any prior agreement between Company and ADTRAN governing Company's participation in ADTRAN's Channel Partner Program.