Effective Date: August 4, 2014
Mimosa Networks, Inc. (“Mimosa”), will enter into this non-exclusive Partner Portal Agreement (“Agreement”) with the company or legal entity that is an authorized distributor of Mimosa’s products and services (“Distributor” or “you(r)”), only on the condition that you accept all of the terms and conditions of this Agreement. Read the terms and conditions of this Agreement carefully. This Agreement is a legal and enforceable contract between you and Mimosa.
You represent and warrant that you are authorized to accept this Agreement on behalf of the Distributor you represent. By clicking on the “I ACCEPT,” “AGREE” or “YES” button or otherwise indicating your assent electronically, you confirm that you have read, understand and agree to the terms and conditions of this Agreement.
- Access to Resources. Mimosa maintains an online web portal for authorized distributors (the “Partner Portal”), through which Mimosa’s distributors may place and track orders for Mimosa’s products and services. Mimosa provides you with access to the Partner Portal solely to enable you to place and track orders for Mimosa’s products and services, provide Mimosa with sales forecasts and to access product data sheets and notices about new products and services (“Permitted Purposes”). You are solely responsible to ensure that your Partner Portal usernames and passwords are kept confidential, and to secure and use them in accordance with all reasonable instructions given by Mimosa.
- Separate Distribution Agreement. This Agreement does not authorize the distribution or resale of Mimosa products and services. Instead, if you are a Mimosa Distributor, this Agreement supplements a separate distribution agreement between you and Mimosa (the “Distribution Agreement”), which solely governs your rights to resell and distribute Mimosa products and services. Orders that you place via the Partner Portal are subject to the terms and conditions of your Distribution Agreement with Mimosa, including, without limitation, the terms regarding shipment, pricing, taxes, returns, export compliance, warranties and limitation of liability.
- Geographic Restriction. If you are a direct Mimosa Distributor, you agree only to place orders for the territory authorized by your Distribution Agreement with Mimosa.
- Use of the Partner Portal. You agree:
- To access and use the Partner Portal solely for the Permitted Purposes;
- To comply with all instructions and/or obligations that may from time to time be posted on the Partner Portal including, but not limited to, instructions about the method of placing orders;
- To keep confidential and not disclose to any third party or use any non-public information obtained from Mimosa, except in accordance with the terms of the Distribution Agreement; and
- To cease access and use of the Partner Portal upon termination of this Agreement.
- Export Compliance.
- Certain Mimosa products (“Products”) are controlled under Export Control Classification Numbers 5A002 and 5D002 and require a U.S. export license prior to transfer to certain government end-users, as defined in Part 772 of the Export Administration Regulations (“EAR”; 15 CFR Part 730 et seq.), located outside the countries listed in Supplement No. 3 to Part 740 of the EAR. These Products are also subject to certain post-export reporting requirements outlined in Section 740.17(e) of the EAR.
- You hereby acknowledge and agree that the Products and/or confidential information, other documents, technical data and any other materials delivered to you by Mimosa may be subject to applicable export control and trade sanctions laws, regulations, legislative and regulatory requirements, rules and licenses, including without limit those of the United States (e.g., the sanctions administered by the US Department of Treasury’s Office of Foreign Assets Control (31 CFR Part 500 et seq.), the EAR administered by the US Department of Commerce’s Bureau of Industry and Security, laws and regulations targeting proliferation activities, and the restricted persons lists maintained by the US Government including but not limited to the Denied Persons List, Unverified List, Entity List, Specially Designated Nationals List, Debarred List and Non-proliferation Sanctions), the EU and the UK (“Export Laws”). You shall comply with the Export Laws and agree that you alone are responsible for ensuring your compliance with Export Laws. In particular, but without limitation to the foregoing, you will not, and will obtain assurances that none of your affiliates and your freight forwarder will not, use, sell, resell, export, re-export, import, dispose of, disclose or otherwise deal with the Products and/or confidential information, other documents, technical data and any other materials delivered under this Agreement, directly or indirectly, to any country, destination or person without first obtaining any required export license or other governmental, legislative or regulatory approval, and completing such formalities as may be required by Export Laws, such as submitting export-related reports. You will not do anything which would cause Mimosa to be in breach of the Export Laws.
- You further agree to: (i) follow the ‘know your customer’ guidance and respond to any ‘red flags’ as provided in Supplement No. 3 to Chapter Title 15 of the US Code of Federal Regulations Part 732; and (ii) immediately notify Mimosa if you become aware of any ‘red flags’ before or after placing an order for or requesting a Product.
- You further acknowledge that Mimosa may be prohibited from providing maintenance and support for its Products, if Mimosa has knowledge that a violation of the EAR has occurred. You acknowledge that it is your ultimate responsibility to comply with any and all export and import laws and that Mimosa has no further responsibility after the initial sale to its direct distributor.
- You agree to protect, defend, indemnify and hold harmless Mimosa, its shareholders, directors, officers, employees and agents from any fines, damages, costs, losses, liabilities, fees, penalties, claims and expenses (including legal fees and expenses) incurred by Mimosa as a result of your failure or the failure of your agents, officers, directors or employees to comply with this Section.
- Effective Date; Term. The effective date of this Agreement is the date of your acceptance of the Agreement, and the Agreement shall continue in effect until its termination in accordance with these terms.
- Termination. Either party may terminate this Agreement at any time by written notice. Termination of the Distribution Agreement shall automatically terminate your use of and access to the Partner Portal. Notwithstanding the foregoing, Mimosa may suspend or terminate your use of the Partner Portal at any time and for any reason. Upon termination of this Agreement, you shall immediately cease to access the Partner Portal.