Americas SD Chassis partner Registration Agreement

READ THIS SD CHASSIS PARTNER CLICK-THROUGH AGREEMENT BEFORE REGISTERING AS A SD CHASSIS PARTNER WITH SD CHASSIS. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS CONTAINED HEREIN, THEN DO NOT REGISTER AS A SD CHASSIS PARTNER WITH SD CHASSIS, INC. BY REGISTERING WITH SD CHASSIS INC., YOU (AS "SD CHASSIS PARTNER" OR AS A REPRESENTATIVE/AGENT AUTHORIZED TO BIND SD CHASSIS PARTNER) CONSENT TO BE BOUND BY THIS AGREEMENT. The parties to this agreement are SD Chassis Inc. ("SD Chassis") and SD Chassis partner. The effective date of this Agreement shall commence upon SD Chassis partner's acceptance of this Agreement and completion of the SD Chassis partner program registration process. Upon SD Chassis's acceptance of SD Chassis partner's registration, SD Chassis partner will be appointed a nonexclusive marketer and reseller of SD Chassis Products in the Territory specified by SD Chassis.

1. DEFINITIONS: The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the Agreement.

1.1. "Confidential Information" shall mean all proprietary information disclosed by one party to the other party including (without limitation) (i) proprietary product-related technology, ideas and algorithms; (ii) trade secrets; (iii) either party's technical, business or financial information and plans; (iv) the terms of this Agreement; and (v) any item marked as confidential by the disclosing party. Confidential Information shall not include information that the receiving party can show (a) is or becomes generally known or publicly available through no fault of the receiving party; (b) is known by or in the possession of the receiving party prior to its disclosure, as evidenced by business records, and is not subject to restriction; or (c) is lawfully obtained from a third party who has the right to make such disclosure. 

1.2. "Demonstration Stock" means any Product that SD Chassis partner purchases as a demonstration unit to give, lend, place with, or stage with a customer or potential customer to enable the customer or potential customer to review and evaluate the Product

1.3. "Documentation" shall mean any operating manuals, user instructions, technical literature, documentation and other related written materials, on any media, ordinarily provided by SD Chassis with its Products.

1.4. "Effective Date" shall mean the date that SD Chassis accepts SD Chassis partner's application.

1.5. "End User" shall mean any person or entity that purchases a Product solely for its own use and not for resale.

1.6. "SD Chassis partner" shall mean the legal entity and its representative that accepts this Agreement and registers with SD Chassis to purchase Products from a SD Chassis Authorized Distributor for resale to End Users.

1.7. "SD Chassis Authorized Distributor" shall mean any distributor authorized by SD Chassis to distribute Products to SD Chassis partners.

1.8. "SD Chassis partner program" or "FPP" shall mean SD Chassis's Partner program, which shall include all requirements, guidelines and benefits thereof, as further specified in FPP materials (as they may be changed from time to time by SD Chassis in its sole discretion), available after the registration process at the SD Chassis Partner Extranet.

1.9. "SD Chassis Partner Extranet" shall mean the SD Chassis partner webpage currently located at: http://www.sdchassis.com/html/partners_external.shtml. The SD Chassis Partner Extranet shall contain information, updates and guidelines pertaining to the SD Chassis partner program.

1.10. "Hardware" shall mean the physical components of SD Chassis's equipment delivered as part of the Products by the Distributor that SD Chassis partner has ordered from

1.11. "Product (s)" shall mean any Hardware, Software or Service which SD Chassis partner is licensed to sell.

1.12. "Software" shall mean the SD Chassis machine-readable object code, whether incorporated in the Hardware or delivered separately identified in the applicable current price list as "available to SD Chassis partner," including any error corrections and bug fixes provided by SD Chassis.

1.13. "Territory" shall mean the geographic area within which the license granted hereunder shall be operative, and will be communicated to SD Chassis partner upon completion of the SD Chassis partner registration process.

2. OWNERSHIP AND RETENTION OF RIGHTS

SD Chassis partner hereby agrees and acknowledges that SD Chassis, its suppliers, and licensors (if any), own and shall retain all right, title and interest in and to (i) the manufacture and/or production of Product (including all copies and derivative works thereof, by whomever produced), and associated Product Documentation, including all intellectual property rights embodied therein; (ii) all of the service marks, trademarks, trade names or any other designations, and (iii) all copyrights, patent rights, trade secret rights, and other proprietary rights in the Product, and SD Chassis partner shall have no rights with respect thereto other than the limited rights expressly set forth in this Agreement.

3. LICENSES

License to Distribute Product; Documentation License. Subject to the terms of this Agreement, SD Chassis hereby grants to SD Chassis partner a non-exclusive, non-transferable, revocable, limited license, only in the Territory, to market, sell, and distribute Product and associated Documentation, and provide support services only to an End User in the Territory (collectively "Licensed Activities"). Additionally, SD Chassis hereby grants SD Chassis partner a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Documentation and to make a reasonable number of copies of the Documentation solely for its own business purposes to support SD Chassis partner's use of the Product, provided that SD Chassis partner must reproduce and include the original Documentation copyright notice and any other notices upon any copies made by SD Chassis partner regardless of type of media.

4. RESTRICTIONS ON USE

SD Chassis partner hereby agrees not to: (i) create or attempt to create by reverse engineering, disassembly, decompilation or otherwise, the source code, internal structure, hardware design or organization of the Product, or any part thereof, or to aid or to permit others to do so, except and only to the extent expressly permitted by applicable law; (ii) remove any Product identification or notices of any proprietary or copyright restrictions from any Product or any Product support material; (iii) copy the Product software, modify, translate or, unless otherwise agreed, develop any derivative works thereof or include any portion of the Software in any other software program; and (iv) separate the Product into component parts for distribution or transfer to a third party.

5. SD CHASSIS PARTNER RESPONSIBILITIES

5.1. Qualifications. In addition to the rights and responsibilities set forth in this Agreement SD Chassis partner agrees to comply with the policies and criteria (corresponding to its partner level) established by SD Chassis for the SD Chassis partner program, as set forth at SD Chassis webpage located at: http://sdchassis.com/html/partners_criterias.shtml . SD Chassis may change such policies and criteria from time to time as it sees fit. It shall be the sole responsibility of SD Chassis partner to check this site for updates.

5.2. Best Efforts. SD Chassis partner shall use its best efforts to: (i) market, advertise, and otherwise promote and sell the Product and any related support contracts in the Territory, (ii) prevent the export of the Product from the Territory for resale outside the Territory, (iii) perform its obligations under this Agreement, and (iv) further preserve the goodwill and reputation of SD Chassis and the Product. As part of these efforts, within thirty (30) days of the Effective Date SD Chassis partner shall put a SD Chassis logo on SD Chassis partner's web site according the relevant specifications in SD Chassis's latest SD Chassis partner guidelines available at the SD Chassis Partner Extranet.

5.3. Demonstration Stock, Conditions on Resale; Any discount provided to SD Chassis partner for Demonstration Stock shall be used solely for the purchase of Demonstration Stock. Such stock shall not be offered for resale unless otherwise agreed to in writing by SD Chassis.

5.4. Minimum Advertised Price Policy**. SD Chassis reserves the right to establish a minimum advertised price ("MAP") for its Products and services. This policy covers communications by any form of media (print or broadcast), for example, television, radio, posters, handbills, flyers, Internet web sites, and any signage that is visible from outside of SD Chassis partner's place of business. SD Chassis partner may not advertise prices that are below these minimums, except as provided herein. The MAPs, like suggested retail prices, are subject to change and SD Chassis partners shall be notified of any such changes. Prices advertised on Internet web sites must comply with this policy. This means that if prices are mentioned anywhere on an Internet web site, they must be equal to or greater than the MAPs established by SD Chassis. Advertising Products and/or services on an "auction" web site does not conform to the requirements of this policy. While SD Chassis reserves the right to determine what prices appear in any advertising for Products, and on any Internet web sites featuring Products, SD Chassis does not require its SD Chassis partners to sell those products at a particular price.

5.5. Internet Auction Sales Restriction.SD Chassis partner hereby acknowledges and agrees that due to the complexity of SD Chassis’s Products online auction sales do not provide adequate presales support. Therefore, SD Chassis partner hereby agrees and warrants that it shall not sell or otherwise make available Products via any online auction website, service, or similar bidding medium throughout the duration of this agreement. In addition, SD Chassis partner acknowledges and agrees that because inadequate presales support reflects poorly upon and tarnishes the SD Chassis name a breach of section 5.5 is a material breach of this Agreement.

5.6. SD Chassis partner Support. SD Chassis partner, either directly or through its designated support providers, shall provide support to its customers for the SD Chassis Products distributed and sold hereunder in accordance with a support and maintenance guidelines listed for its FPP level at the SD Chassis Partner Extranet. SD Chassis partner shall ensure that all questions regarding the use or operation of the SD Chassis Products are addressed to and answered by SD Chassis partner, and SD Chassis partner shall not represent to any third party that SD Chassis is available to directly answer any Customer questions. SD Chassis may refer any support questions relating to the Licensed Software distributed hereunder to SD Chassis partner.

5.7. Condition on Service Agreement Sales. Effective January, 2007, each purchase of a SD Chassis service contract is valid only for the time period designated on SD Chassis’s invoice to its Authorized Distributor and only if registered against a Product at SD Chassis’s support website http://www.sdchassis.com/html/support.shtml within 12 months from the date such service contract was originally shipped from SD Chassis. Service contracts that were originally shipped more than 12 months from the date the End User Registers such plan are void and will not be honored.

5.7.1 Duty to Pass Down Notice.. SD Chassis partner is responsible to ensure it obtains and documents the date of the initial shipment from SD Chassis from the Authorized Distributor at the time of purchasing a service contract. In addition, prior to selling a service contract, the SD Chassis partner must clearly explain to any End User and clearly document that it has explained, the following, (i) the date of the initial shipment from SD Chassis, and (ii) that all services, including support, and subscription services, will be forfeited if not registered within one (1) year from that initial shipment date.

5.7.2 Failure to Comply with this Section.. If a SD Chassis partner sells a service contract that was originally shipped from SD Chassis more than 12 months prior to such sale, or if it fails to comply with the aforementioned notice requirements, it shall be subject to remedial action, including but not limited to, the cost of a new service contract and/or termination of its partner status. Both parties to this Agreement agree that failure to comply with the section shall be considered a material breach of this Agreement.

5.8. Packaging and End User License Agreement. SD Chassis partner may distribute the Products only with all warranties, disclaimers, license agreements, and Documentation as shipped from SD Chassis. SD Chassis partner shall take all steps reasonably requested by SD Chassis to inform End User of all applicable restrictions and limitations regarding the use of Products.

5.9. Maintenance of Qualified Individuals;. SD Chassis partner hereby represents and warrants it possesses the experience, skills and resources required to perform its obligations under this Agreement. Consistent with this Agreement, SD Chassis partner shall, at its expense, retain adequate numbers of qualified individuals to: (i) provide support services to Customers and (ii) perform any upgrades and/or updates to SD Chassis's Products as may become necessary once such Products have come within SD Chassis partner's possession, custody or control.

5.10. Records and Reports; Audit Rights. SD Chassis partner shall maintain accurate, complete records of its marketing, sales, support, and maintenance services activities under this Agreement. During the term of this Agreement, SD Chassis partner shall provide information as reasonably requested by SD Chassis to ensure compliance by SD Chassis partner with the terms of this Agreement, and SD Chassis or its representatives may, upon reasonable notice to SD Chassis partner and during normal working hours, inspect those agreements and business records of SD Chassis partner necessary to verify SD Chassis partner's compliance.

5.11. Indemnification by SD Chassis partner. SD Chassis partner shall indemnify and hold SD Chassis harmless from and against any and all third party claims, liabilities, losses, damages or judgments, including all reasonable legal fees and expenses related thereto that arise from or connected with: (i) SD Chassis partner's modification, use or distribution of the Product not in strict accordance with this Agreement; (ii) any misrepresentation or any breach of any warranty, covenant or agreement of SD Chassis partner; or (iii) any action against SD Chassis for injuries or damage to persons or property caused or claimed to have been caused by the negligent or intentional acts or omissions of SD Chassis partner personnel while in the course of performing work under this Agreement. SD Chassis partner's obligations under this Section are contingent upon SD Chassis: (a) giving prompt written notice to SD Chassis partner of any such claim; (b) allowing SD Chassis partner to control the defense and any related settlement of any such claim; and (c) furnishing SD Chassis partner with reasonable assistance in the defense of any such claim, so long as SD Chassis partner pays SD Chassis's reasonable out-of- pocket expenses.

6. SD CHASSIS RESPONSIBILITIES

6.1. SD Chassis Support. SD Chassis shall provide Second and Third Level Support as reasonably necessary for SD Chassis partner to support its Customers in accordance with the current guidelines posted at the SD Chassis Partner Extranet.

6.2. Collateral. SD Chassis or SD Chassis Authorized Distributors will make available to SD Chassis partner various marketing materials and training in the installation, use, operation and support of the Product in accordance with SD Chassis's then-current guidelines.

6.3. Indemnification. SD Chassis agrees to hold SD Chassis partner harmless from and indemnify all liability for infringement of any patent, copyright or trademark rights or other intellectual property rights of third parties which result from the sale of SD Chassis's Products. SD Chassis agrees to defend SD Chassis partner in such infringement suit or any product liability suit resulting from the use or sale of SD Chassis's Products, including but not limited to, out of court settlements, court costs, reasonable attorney's fees or any money judgment awarded at the conclusion of such suits subject to the understanding that SD Chassis shall have exclusive control over the defense and/or settlement of such suits. SD Chassis's obligations under this Section are contingent upon SD Chassis partner: (i) giving prompt written notice to SD Chassis of any such claim; (ii) allowing SD Chassis to control the defense and any related settlement of any such claim; and (iii) furnishing SD Chassis with reasonable assistance in the defense of any such claim, so long as SD Chassis pays SD Chassis partner's reasonable out-of- pocket expenses.

6.4. Limitations on Indemnification. SD Chassis shall have no obligation under this Agreement for any claim of infringement or misappropriation to the extent that it results from: (i) combination or use of the Products with equipment, products, or processes not furnished by SD Chassis; (ii) modifications to the Products made other than by SD Chassis; (iii) failure of SD Chassis partner to use updated or modified Products provided by SD Chassis to avoid a claim of infringement or misappropriation; (iv) compliance by SD Chassis with designs, plans or specifications furnished by or on behalf of SD Chassis partner; or (v) any opening of or other tampering with a Product by non-SD Chassis personnel.

7. TERM AND TERMINATION

7.1. Term. This Agreement shall become effective as of the Effective Date and shall remain in effect for one (1) year (the "Term") and shall be automatically renewed thereafter on a year-to-year basis (each a "Renewal Term"), unless terminated in accordance with this Agreement.

7.2. Termination at Will. This Agreement may be terminated by either party at will upon no less than thirty (30) days' prior written notice. Irrespective of the preceding notice provision, if SD Chassis partner has not performed its obligations as judged by SD Chassis in its sole discretion, SD Chassis reserves the right not to renew SD Chassis partner's agreement at any time without notice before the start of the succeeding Renewal Term.

7.3. Termination for Cause. Either party may terminate this Agreement for material breach that is not cured within thirty (30) days after written notice by the non-defaulting party to the defaulting party or immediately upon notice of termination in the event of a material breach that by its nature cannot be remedied within thirty (30) days.

7.4. Termination for Insolvency. Either party may terminate this Agreement, without notice, upon learning the following information in good faith: (i) the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other party's debts, (ii) the other party's making an assignment for the benefit of creditors, or (iii) the other party's dissolution or ceasing to do business.

7.5. Effects of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, SD Chassis partner shall immediately (i) cease all use of Product and Documentation; (ii) discontinue any use of the name, logo, Trademarks, servicemarks or slogans of SD Chassis and the trade names of any Product; (iii) discontinue all representation or statements from which it might be inferred that any relationship exists between SD Chassis partner and SD Chassis; (iv) cease to promote, solicit orders for or procure orders for Product (but SD Chassis partner shall not act in any way to damage the reputation or goodwill of SD Chassis or any Product); and (v) promptly return or destroy all Confidential Information and related materials.

7.6. Survival of Terms. The terms contained within the following sections shall survive any expiration or termination of this Agreement: Section 2, relating to Ownership and Retention of Rights; Section 4, relating to Restrictions on Use; Section 5.9, Indemnification by SD Chassis partner; Section 6.3 & 6.4, relating to Indemnification by SD Chassis; Section 7, relating to Term and Termination; Section 8, relating to Confidential Information; Section 9, relating to Trademarks and Servicemarks; Section 10, relating to Warranty and Liability Disclaimers; and Section 12, relating to General Provisions.

8. CONFIDENTIAL INFORMATION

8.1. Protection of Confidential Information. Each party shall protect the other's Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information. Neither party shall disclose to third parties the other's Confidential Information without the prior written consent of the other party. Neither party shall use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Each employee or agent of SD Chassis partner, performing duties hereunder, shall be made aware of this Agreement and shall execute a document that binds said employee or agent of SD Chassis partner to the same level of confidentiality contained herein.

8.2. Disposition Upon Termination. Upon the termination of this Agreement for any reason whatsoever, or in the event that SD Chassis reasonably determines that SD Chassis partner no longer requires access to the Confidential Information in order to perform its obligations, SD Chassis partner shall return to SD Chassis, or shall destroy, as SD Chassis shall specify, all copies of all the Confidential Information in SD Chassis partner's possession. Within five (5) days thereafter, SD Chassis partner shall provide SD Chassis with a certificate, executed by an officer of SD Chassis partner, confirming that all copies of all such Confidential Information have been returned to SD Chassis or destroyed, as the case may be.

8.3. Permitted Disclosure. Notwithstanding any provision in this Agreement to the contrary, each party may disclose portions of the other's Confidential Information (i) to its lawyers and accountants who have a need to know such information and (ii) pursuant to an order of a governmental agency or court of competent jurisdiction compelling disclosure, provided that the owner of the Confidential Information shall be given reasonable advance notice of such impending disclosure.

9.TRADEMARKS AND SERVICEMARKS

9.1. Trademark Ownership and Authorized Use. SD Chassis partner acknowledges and agrees that SD Chassis owns all SD Chassis trademarks, servicemarks and logos ("Marks"), including but not limited to those listed at http://www.sdchassis.com/contact/marks.html and that any and all goodwill derived from the use of the Marks by SD Chassis partner hereunder inures solely to the benefit of SD Chassis. During the Term, SD Chassis grants SD Chassis partner a nonexclusive, nontransferable limited right to use and display Marks claimed or provided by SD Chassis solely in connection with and to the extent reasonably necessary for the resale, marketing, and distribution of SD Chassis Products. SD Chassis partner's use of the Marks shall be subject to the terms and conditions contained in SD Chassis's trademark guidelines to which SD Chassis partner hereby agrees to be bound. SD Chassis's trademark guidelines are available at the SD Chassis Partner Extranet and may be modified from time to time by SD Chassis, in its sole discretion. SD Chassis partner may not remove or alter copyright notices, Marks or packaging found on Product or in Documentation. Use of the Marks does not create in SD Chassis partner's favor any right, title or interest in the Marks or in continuing rights to market or distribute the Product.

10. WARRANTY AND LIABILITY DISCLAIMERS

10.1. Disclaimer. EXCEPT FOR THE WARRANTY SET FORTH IN THE END USER LICENSE AGREEMENT, WHICH MAY BE FORFEITED IF NOT REGISTERED IN A TIMELY FASHION (SEE LICENSE AGREEMENT), PROVIDED WITH SD CHASSIS'S PRODUCT, SD CHASSIS PROVIDES ITS PRODUCTS AND SERVICES "AS IS" AND MAKES NO WARRANTIES WITH RESPECT TO ANY PRODUCT, LICENSE OR SERVICE AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, EFFECTIVENESS, USEFULNESS, RELIABILITY OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE AND ANY WARRANTIES OF NONINFRINGEMENT.

10.2. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED; OR (II) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. EXCEPT FOR SD CHASSIS'S INDEMNIFICATION OBLIGATIONS IN SECTIONS 6.3 AND 6.4 ABOVE, IN NO EVENT SHALL SD CHASSIS'S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY RECEIVED BY SD CHASSIS FROM SD CHASSIS PARTNER DURING THE THREE (3) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO SUCH SD CHASSIS LIABILITY.

11. COMPLIANCE WITH APPLICABLE LAWS

11.1. Compliance with Laws. SD Chassis partner shall be solely responsible for complying with the laws and regulations applicable in the Territory, or any nation, or political subdivision thereof, in which it engages in business while performing its responsibilities hereunder as well as those applicable to the distribution and sale of the Product, or performance of services by SD Chassis partner. SD Chassis partner shall bear all expenses and costs related to compliance with any laws and/or regulations.

11.2. Export and Import Controls. SD Chassis partner acknowledges that the Product, technical data, and performance of the Services (received from SD Chassis in accordance with the terms hereunder) may be subject to United States or Territory export and import controls including but not limited to the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, and in the performance of its obligations, SD Chassis partner shall at all times strictly comply with all laws, regulations and orders, and agrees to commit no act which, directly or indirectly, would violate any United States or Territory law, regulation or order, including, without limitation, tax, export and foreign exchange laws, import controls, and export controls imposed by the U.S. Export Administration Act of 1979 as amended. SD Chassis partner expressly agrees that, without the prior written authorization of SD Chassis and the United States Government, SD Chassis partner shall not, and shall cause its representatives (if any) not to (i) export, re-export, divert or transfer SD Chassis's Product or any direct product thereof to any destination, company or person restricted or prohibited by the United States export controls, or (ii) disclose any data derived from SD Chassis's Product or any direct product thereof to any national of any country when such disclosure is restricted or prohibited by the United States export controls. Additionally, SD Chassis partner agrees that none of the Product is being, or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical/biological weapons, or missile projects unless authorized by the U.S. Government. This provision shall survive the expiration or termination of this Agreement. Additionally, SD Chassis partner agrees that it is solely responsible for compliance with any import or use restrictions in its Territory.

11.3. Corrupt Practices. SD Chassis and SD Chassis partner agree to conform with the United States Foreign Corrupt Practices Act and will not offer any payment or other gift or promise, or authorize the giving of anything of value, for the purpose of influencing an act or decision of an official of any Government or of an employee of any company in order to assist SD Chassis or SD Chassis partner in obtaining, retaining, or directing any business.

12. GENERAL PROVISIONS

12.1. Governing Law; Venue; Settlement of Controversies. This Agreement shall be governed by the laws of the State of New-York, as applied to agreements entered into and to be performed entirely within New-York between New-York residents, without regard to the principles of conflict of laws or the United Nations Convention on Contracts for the International Sale of Goods. Any controversies or claims arising from or relating to this Agreement which cannot be amicably settled by the parties shall be referred to and finally settled by arbitration. The place of arbitration shall be Plattsburgh, New York, pursuant to the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services (JAMS), or its successor, before a sole, mutually agreeable arbitrator. Judgment on the Award may be entered in any court having jurisdiction. The arbitrator shall, in the Award, allocate all of the costs of the arbitration (and the mediation, if applicable), including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing party, against the party who did not prevail.

12.2. English Language and Interpretation. This Agreement is in the English language only, and shall be the controlling language in all respects. Any versions of this Agreement in any other language will be for accommodation purposes only and will not be binding upon either party. All communications and documentation for the Products to be furnished under this Agreement shall be in the English language. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting Party

12.3. Taxes. SD Chassis partner shall bear and be responsible for the payment of all taxes, fees, or duties, (excluding taxes based on SD Chassis's income) in the Territory, however designated, associated with the purchase or license of any Product or Documentation based upon this agreement.

12.4. Orders, Payment and Delivery. All orders for the Products, delivery of the Products, payment for the Products, and terms governing each shall be negotiated between SD Chassis partner and SD Chassis partner's SD Chassis Authorized Distributor, and shall be governed by the definitive agreement(s) entered into by and between them.

12.5. Independent Contractors. The relationship between SD Chassis and SD Chassis partner established by this Agreement is that of independent contractors. Nothing contained in this Agreement or in a party's performance thereof shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.

12.6. Assignment. SD Chassis partner may not assign, delegate, sub-contract or otherwise transfer this Agreement or any of its rights and obligations, whether voluntarily, by operation of law or otherwise, without SD Chassis's prior written approval.

12.7. No Waiver; Severability. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.

12.8. Injunctive Relief. The parties agree that any unauthorized use or disclosure of the Product or Confidential Information of either party, or a breach of this Agreement adversely affecting either party's intellectual property rights would cause irreparable injury to the injured party for which monetary damages would not be an adequate remedy and the injured party shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.

12.9. Notices. All notices or other communications required or permitted hereunder shall be in the English language, in writing, and shall be deemed to have been given if sent via electronic mail: (i) by SD Chassis partner to the e-mail address designated by SD Chassis during the registration approval process, (ii) by SD Chassis to the e-mail address submitted by SD Chassis partner during the FPP registration process, or (iii) by SD Chassis if placed on it’s partner extranet web pages. Notices shall be deemed received one (1) business day after being sent by electronic mail.

12.10. Force Majeure. Except for the obligation to make payments, neither party will be responsible for any failure to perform due to causes beyond its reasonable control (i.e., strike, fire, floods, government acts, orders or restrictions, failure of suppliers) nor due to negligence of the non-performing party. In the event of non-performance due to Force Majeure, the defaulting party shall have ninety (90) days to cure the default, after which the non-defaulting party may elect to terminate this agreement and or cancel or suspend any Purchase Orders under the Agreement by written notice to the defaulting party.

12.11. Government Use. Software and Documentation delivered to an agency or instrumentality of the United States Government shall identify the Software and Documentation as "commercial computer software" and "commercial computer software documentation" and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable, and shall restrict the Government's rights to use, reproduce or disclose such Software and accompanying Documentation in accordance with, and no more broad than, any licensing granted herein.

12.12. No Other Rights Conferred. Nothing contained in this Agreement shall be construed as conferring by implication, estoppel or otherwise upon either party hereunder any license or other right except the licenses, rights and uses expressly granted hereunder to a party hereto.

12.13. Click-through Version Governs. The click-through version of this agreement (which appears during the FPP registration process) must be accepted by SD Chassis partner in order to complete the registration process and shall supersede all prior agreements, commitments or representations between the parties with respect to the subject matter herein, whether oral or written, as well as any downloaded version of the agreement, whether or not such downloaded version is signed by either party.

12.14. Updates on SD Chassis Web Site. This Agreement, along with other SD Chassis partner program materials on the SD Chassis Website or SD Chassis’s Partner Extranet may be updated by SD Chassis from time to time. SD Chassis reserves the right to modify this Agreement at its sole discretion by providing not less than thirty (30) days notice of such future changes. Notice shall be sent trough SD Chassis’s channel alerts and posted on SD Chassis’s Partner Extranet. The Distributor shall be solely responsible for monitoring the Partner Extranet for updates and changes. Orders for the purchase Products from SD Chassis placed by Distributor beyond the notification period shall constitute acceptance of the updated or modified Agreement.

** MAP policy does not apply to resellers located within Canada whose Territory is limited to Canada.