Reseller Agreement

1. Definitions

• “Authorized Users” means solely Customer and its employees, directors, and officers.

• “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party (as defined in Section 7(A)) considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.”

• “Customer” or “Customers” means the Person that purchases Product from Reseller for such Person’s own internal business purposes and not for resale.

• “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other rights or laws relating to intellectual property, and all similar or equivalent rights or forms of protection, in any part of the world.

• “Licensed Software” means Products that are successfully sold to Customers and are licensed to Customers under the Product Agreements (as defined in Section 3(C) below).

• “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

• “Product” or “Products” means the products and/or services of Ostrich, including but not limited to Birdseye Assess, Birdseye Vendor Assess, Birdseye Quantify, Birdseye Pro, and any and all versions thereof.

• “Representatives” means, with respect to a Party, that Party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

• “Territory” means the geographic area set forth in Appendix A.

2. Authorization

Subject to the terms and conditions of this Agreement, Ostrich hereby appoints Reseller, and Reseller hereby accepts this appointment, as an authorized reseller for Ostrich. In furtherance of the foregoing, Ostrich grants to Reseller a non­exclusive, non­transferable, non-sublicensable, and revocable limited license to, during the Term of this Agreement and in the Territory, promote, market, and resell the Products to Customers. If Reseller resells the Products to a Customer, those Products shall be licensed to that Customer under a separate license agreement.

3. Duties of Reseller

• Deal Registration. Reseller shall comply with the deal registration policies, if any, of Ostrich.

• Training. Reseller shall maintain sales staffing sufficient to meet its obligations under this Agreement and will cause sales staffing to undergo reasonable training from Ostrich on no less than an annual basis.

• Distribution. Reseller shall sell the Products to Customers with the license agreements, subscription agreements, purchase agreements, and other terms and conditions applicable to the Products as provided by Ostrich and its suppliers and licensors (the “Product Agreements”).

• Promotion. Reseller shall use commercially reasonable efforts to promote the resale of Products. As mutually agreed by the Parties, Reseller shall cooperate and participate in promotional, marketing, sales, and advertising programs or initiatives sponsored by Ostrich.

• Services and Support. Reseller may provide managed services, technical support, and assistance relating to the Licensed Software to the Customers.

• Reports. Reseller and Ostrich will mutually agree upon reporting criteria.

• Violation by Customers. Reseller shall reasonably cooperate with and assist Ostrich to obtain Customer and Authorized User compliance in the event that their use of the Products violates the restrictions, or otherwise exceeds the license contained in the Product Agreements.

4. Restrictions

Except as this Agreement expressly permits, Reseller shall not, and shall not permit its Representatives or any other Person to:

• Engage in deceptive, misleading, fraudulent, unlawful, or unethical practices relating to the promotion, marketing, and resale of the Products to Customers;

• Copy, decompile, reverse engineer, disassemble, decode, combine, or attempt to derive or gain access to the source code of, decrypt, modify, translate, enhance, correct, or create derivative works of the Products, in whole or in part;

• Remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to the Products;

• Use the Products for the purposes of: (i) benchmarking or competitive analysis of the Products; (ii) developing, using, or providing a competing product or service; or (iii) any other purpose that is to Ostrich’s detriment or commercial disadvantage;

• Rent, lease, lend, sell, assign, distribute, publish, transfer, redistribute, sublicense, or otherwise make available the Products to any third party; all components of the Products may be provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications and/or products; or

• Make any commitments, representations, warranties, or guarantees to the Customer, Authorized Users, or others with respect to any Products, except as provided in the Product Agreements.

5. Duties of Ostrich

Ostrich has no obligation under this Agreement to provide support, maintenance, upgrades, modifications, or new releases of the Product to Customer.

• Services and Support. Ostrich shall provide technical support and maintenance for the Licensed Software.

• Maintenance. Ostrich shall deliver updates, fixes, upgrades, modifications, corrections, and other maintenance releases for the Licensed Software.

• Defects. Ostrich shall process warranty requests (if available) for the Licensed Software. In the event that Ostrich accepts a Licensed Software return, then Ostrich will issue the refund to Reseller, and Reseller will transfer the refund to the Customer.

• Documentation. In the event that there are changes to any standard form of the Product Agreements, then Ostrich will directly contract with the Customer for those changes, and Ostrich agrees to provide a copy of the fully executed counterpart thereof to Reseller.

6. Pricing, Payments, and Ordering

• Pricing. Reseller agrees to resell the Products at a price not exceeding the list pricing set forth on Appendix B hereto. Without limiting the foregoing sentence, the prices paid by Reseller to Ostrich for the Products shall be the currently available list pricing minus the Reseller’s applicable percentage (the “Discount”) set forth in Appendix B hereto. Reseller reserves the right to change list pricing at any time on the date that is thirty (30) days after written notice to Reseller.

• Terms. Reseller shall pay for all orders in United States currency by check or wire transfer net thirty (30) days after receipt of Ostrich’s invoice. Ostrich will send an invoice to Reseller reflecting the total amount to be paid and due on subscription start date of the Products. Reseller is solely responsible for all payments due from the Customer, and the obligation of Reseller to pay Ostrich is independent of Reseller’s receipt of payment from the Customer.

• Ordering. Reseller may order Products by submitting a written purchase order (the “Purchase Order”) to Ostrich. Ostrich may reject any Purchase Order in which the Customer’s price does not comply with Ostrich’s reseller pricing and minimum advertised pricing policies. Ostrich reserves the right to reject all or any part of a Purchase Order in its reasonable discretion. Any terms or conditions of the Purchase Order that are inconsistent with, or in addition to, the terms of this Agreement are hereby rejected, notwithstanding acceptance of the Purchase Order by Ostrich. By submitting a Purchase Order to Ostrich, Reseller represents and warrants that it has a documented order from the Customer for the quantity and price consistent with the Purchase Order submitted to Ostrich.

• Taxes. Prices exclude taxes unless expressly stated otherwise. Reseller will pay all sales and use taxes, fees, duties, tariffs, and any other governmental levies imposed on the transaction between Ostrich and Reseller, excluding taxes measured by Ostrich’s net income, and shall provide official receipts issued by the taxing authorities or such other evidence of payment as is reasonably requested by Ostrich.

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7. Confidentiality

• Confidential Information. In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available confidential information to the other Party (as the “Receiving Party”). Without limiting the foregoing: (i) the Products are the Confidential Information of Ostrich; and (ii) the existence of this Agreement is the Confidential Information of each of the Parties. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

  • not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

  • except as may be permitted under the terms and conditions of Section 7(C), not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7;

  • safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care;

  • promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and

  • ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7.

• Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement or by a wrongful act of Receiving Party or any of its Representatives; (iii) was already in Receiving Party’s possession at the time of disclosure; (iv) was approved for release by written authorization of the Disclosing Party with the written release addressed or directed to the approved recipient of such Confidential Information; or (iv) was or is independently developed by the Receiving Party without reference or use of any Confidential Information of the Disclosing Party.

• Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party will: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7(A); and (ii) provide reasonable assistance to the Disclosing Party opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7(C), the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

• Trade Secrets

  • Some of the Confidential Information constitutes trade secrets of Ostrich including the (i) pricing information set forth in this Agreement, (ii) settings and configuration of Products, and (iii) components used to assemble and create Ostrich hardware. To the extent these trade secrets are disclosed to Reseller or its Representatives, Reseller and its Representatives shall hold them in strict confidence and not use or employ the trade secrets except in accordance with this Agreement.

  • Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 7 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

8. Marketing; Trademarks

• Marketing. Ostrich shall provide Reseller with Ostrich’s standard reseller advertising, marketing, and sales materials and templates at no charge.

• Ostrich Marks. Ostrich grants to Reseller a non-exclusive, non-sublicensable, non-transferable, and terminable right to use Ostrich’s name and marks in the Territory during the Term of this Agreement solely in connection with Reseller’s marketing, licensing, resale, and support of the Products in accordance with the terms of this Agreement. Reseller shall maintain and allow Ostrich to monitor the quality of workmanship associated with its marks, and Ostrich may terminate the use of its marks if such quantity falls below Ostrich’s own levels.

• Publicity. Reseller grants to Ostrich the right to use Reseller’s name and marks in or on any press releases, marketing materials, websites, or other similar announcements without Reseller’s prior written consent. Upon termination of this Agreement, Ostrich will cease the prospective use of Reseller’s name or marks.

• Intellectual Property. Reseller acknowledges and agrees that title and intellectual property rights in and to the Product and Licensed Software, and any content displayed by or accessed through the Product and Licensed Software, belongs to Ostrich and/or any third party who is the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties and may be subject to terms of use of any third party providing such content. Except as expressly set forth herein, this Agreement does not grant to Reseller any rights to use such content. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Reseller or any third party any Intellectual Property Rights or other right, title, or interest in or to the Product and Licensed Software.

9. Intellectual Property

Reseller acknowledges and agrees that title and intellectual property rights in and to the Product and Licensed Software, and any content displayed by or accessed through the Product and Licensed Software, belongs to Ostrich and/or any third party who is the respective content owner. Such content may be protected by copyright or other intellectual property laws and treaties and may be subject to terms of use of any third party providing such content. Except as expressly set forth herein, this Agreement does not grant to Reseller any rights to use such content. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Reseller or any third party any Intellectual Property Rights or other right, title, or interest in or to the Product and Licensed Software.

10. Term and Termination

• Term and Renewals. This Agreement shall be effective when signed by the Parties as of the last date (the “Effective Date”) specified in the signature block below. The term of this Agreement begins on the Effective Date and ends one (1) year thereafter (the “Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for successive one-year periods (each year a “Renewal Term,” and all Renewal Terms together with the Initial Term, the “Term”), unless either Party gives the other Party written notice of non-renewal ninety (90) days prior to the end of the Initial Term or Renewal Term, as applicable.

• Termination for Cause. Either Party may terminate this Agreement upon delivery of written notice to the other Party if the other Party violates any term or condition of this Agreement, on the condition that, if such violation is capable of being cured, the violation continues uncured for a period of thirty (30) calendar days following delivery of such notice.

• Termination by Ostrich. Ostrich may terminate this Agreement at any time for any reason permitted by law.

• Effect of Termination or Expiration. No termination relieves any Party of obligations arising or accruing prior to the date of termination. On the expiration or termination of this Agreement: (i) all rights, licenses, and authorizations granted to Reseller and Ostrich hereunder will immediately terminate, (ii) Reseller shall pay any sums due or to become due to Ostrich under this Agreement; and (iii) Ostrich shall process and complete all Purchase Orders received and accepted by Ostrich prior to the date of such termination.

• Surviving Terms. The provisions of this Agreement which by their nature are intended to survive termination of this Agreement shall survive termination of this Agreement.

11. Warranties; Representations

• Third-Party Components. Ostrich disclaims responsibility for third-party components, whether software, hardware, or otherwise, provided by the supplier or licensor thereof and not by Ostrich. Reseller may be entitled to the warranties available through the supplier or licensor, and the sole obligation of Ostrich is to endeavor on Reseller’s behalf to assist in the satisfaction of such warranty, if any.

• No Commitments. Each Party offers no commitments or guarantees of any minimum volume of purchases, business from specific customers, or revenues, sales, or otherwise. Any sales or revenue projections or commitments made by either Party at any time are non-binding estimates only.

• Representations. Each Party represents to the other Party that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

• DISCLAIMER. EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 11, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OSTRICH PROVIDES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INTERFERENCE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY WITH COMPUTER SYSTEMS, INTEGRATION, OR WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE PRODUCTS, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, OSTRICH MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OSTRICH OR AN AUTHORIZED OSTRICH REPRESENTATIVE, OR VIA THE PRODUCT, SHALL CREATE A WARRANTY.

12. Indemnification

Reseller indemnifies and holds Ostrich and its suppliers and licensors, and its and their respective directors, officers, owners, employees, agents, and affiliates (each, an “Indemnified Party”) harmless from any claim, demand, loss, settlement, liability, and expense, including reasonable attorney fees, made by or incurred to any third party in connection with, arising out of, or due to:

• a violation or breach of this Agreement by Reseller or any of its Representatives;

• the negligence, abuse, misapplication, misuse, or other wrongful act or omission (including recklessness or willful misconduct) by or on behalf of Reseller or any of its Representatives with respect to the Products or Licensed Software or otherwise in connection with this Agreement; or

• use of the Products or Licensed Software by or on behalf of Reseller or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement, or in any manner contrary to Ostrich’s instructions.  

• The obligations of Reseller under this Section 12: (i) include retention and payment of attorneys and payment of court costs, as well as settlement at Reseller’s expense and payment of judgment; and (ii) will be excused to the extent that Ostrich or any of the applicable Indemnified Parties materially prejudice the defense due to failure to provide prompt notice or reasonably cooperate. Reseller controls the defense, including appeals, negotiations, and any settlement or compromise thereof, on the condition that each Indemnified Party has the right, not to be exercised unreasonably, to reject settlement or compromise that requires the admission of wrongdoing or liability or subjects it to ongoing affirmative obligations.

13. Limitations of Liability

IN NO EVENT WILL OSTRICH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORIES OF LIABILITY, FOR ANY (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, RELIANCE, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMUNITION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; OR (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY, IN EACH CASE REGARDLESS OF WHETHER OSTRICH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OSTRICH’S TOTAL, AGGREGATE LIABILITY TO RESELLER ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR UNDER ANY OTHER THEORIES OF LIABILITY) EXCEED THE AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED BY RESELLER UP TO AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY RESELLER FOR THE PRODUCT IN THE PRIOR YEAR. THE LIMITATIONS PROVIDED IN THIS SECTION 13 APPLY LIKEWISE TO OSTRICH’S AFFILIATES, SUPPLIERS, LICENSORS, ADVERTISERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND OTHER REPRESENTATIVES.

14. Miscellaneous

• Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other in any manner whatsoever.

• Any notice, request, consent, claim, demand, waiver, or other communication to Ostrich under this Agreement shall have legal effect only if in writing and sent to the following e-mail address: CONTRACTS@OSTRICHCYBER-RISK.COM

• From time to time, Reseller may provide feedback, which feedback includes identifying potential errors, bugs, and suggestions, to Ostrich concerning the functionality, performance, reliability, or applicability of all or part of the Products. Reseller assigns to Ostrich all right, title, and interest in and to the feedback and further grants Ostrich an irrevocable, non-exclusive, worldwide right to use, reproduce, employ, transfer, modify, and create derivative works of the feedback.

• Each Party shall comply with all applicable laws and regulations in connection with, and in performing its obligations under, this Agreement. Without limiting the foregoing sentence, and subject to all restrictions contained in the Product Agreements, Reseller may only export or re-export the Products in accordance with applicable laws and regulations.

• The Products, including any including any Licensed Software, are provided with restricted rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in the Commercial Computer Licensed Software-Restricted Rights clause at FAR 52.227-19; or (ii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Ostrich. Reseller shall not remove or deface any restricted rights notice or other legal notice appearing in the Licensed Software or on any packaging or other media associated with the Licensed Software or any Products.

• Each Party agrees that it and its Representatives and employees will not, either during or for a period of twelve (12) months after termination or expiration of this Agreement, solicit to hire as an employee or contractor any of the other Party’s employees. Publication of open positions in media of general circulation (e.g., on the Party’s career page or other Internet postings) will not constitute solicitation of the other Party’s Representatives or employees, nor will this provision prevent a Party from hiring any person who contacts such Party on their own initiative without solicitation from the hiring Party.

• Reseller shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Ostrich’s prior written consent. No assignment, delegation, or transfer will relieve Reseller of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Agreement is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.

• No amendment to or modification of, or rescission, termination, or discharge of, this Agreement is effective unless it is in writing, identified as an amendment to, or rescission, termination, or discharge of, this Agreement, and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

• If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

• Neither Party will be responsible for any failure or delay to the extent caused by acts of God, acts of nature, flood, earthquake, hurricane, fire, war, public enemy, terrorism, riots or other acts of civil disorder, pandemics or epidemics, or other causes beyond the reasonable control of such Party (a “Force Majeure Event”). In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party of the cause and extent of the Force Majeure Event.  

• This Agreement is governed by and construed in accordance with the laws of the State of Utah, excluding its conflict of law principles. Reseller agrees to submit all disputes arising under this Agreement to arbitration in Salt Lake City, Utah before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of Reseller and Ostrich.

• This Agreement may be executed in two or more counterparts, each of which is deemed an original, and all of which together constitute one and the same agreement. The Parties consent to the use of electronic signatures. A signed copy of this Agreement delivered by email or other means of electronic transmission has the same legal effect as delivery of an original signed copy of this Agreement.

• This Agreement constitutes the entire agreement between Reseller and Ostrich regarding the subject matter hereof and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, regarding such subject matter.