The Works from Forceworks Reseller Agreement

THIS RESELLER AGREEMENT (THE “AGREEMENT”) SETS FORTH THE LEGALLY BINDING TERMS FOR THE RESALE OF THE WORKS FROM FORCEWORKS SUBSCRIPTION SERVICE (THE “SERVICE”).  THIS AGREEMENT IS BY AND BETWEEN FORCEWORKS LLC (“FORCEWORKS”) AND THE RESELLER ENTITY ON WHOSE BEHALF YOU ARE EXECUTING THIS AGREEMENT (THE “RESELLER”).  YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE RESELLER TO THE TERMS OF THIS AGREEMENT. BY AGREEING TO THE TERMS OF THIS AGREEMENT OR BY RESELLING THE SERVICE, THE RESELLER EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.  IF THE RESELLER DOES NOT AGREE TO ANY OF THIS AGREEMENT’S TERMS, THE RESELLER IS PROHIBITED FROM RESELLING THE SERVICE. 

This Agreement was last updated on April 01, 2022. it is effective between Reseller and Forceworks as of the date Reseller accepts this Agreement which acceptance shall occur on the date of First Payment is received by Forceworks from Reseller for any sale by Reseller of the Service (the “Effective Date”) to any Customer (the “Customer”). A copy of this Agreement shall be added by Forceworks to the Reseller’s Account record as of the Effective Date, the Reseller is advised to also print and retain a copy.

Forceworks and Reseller hereby agree as follows:

1. Appointment/Territory

1.1 Appointment.  Subject to the terms and conditions of this Agreement, Forceworks hereby appoints Reseller, and Reseller accepts the appointment as Forceworks’ non-exclusive Reseller of the Service as set forth on a submitted Forceworks Online Order Form (the “Order”).  The reseller does not have the right to distribute any other Forceworks products or services not set forth in an Order and does not have the right to appoint or authorize any third party to act as a dealer, agent, or reseller for the distribution of Service without Forceworks’ prior consent.

1.2 Territory.  As used in this Agreement, the term “Territory” means the country or jurisdiction set forth on an Order as the Customer’s location.  Reseller shall not resell the Service outside the Territory.  Nothing in this Agreement shall prohibit or otherwise restrict Forceworks from selling or licensing the Service, Products, or Professional Services, directly or indirectly, to Customers within or outside the Territory.  

2. General Provisions for Purchase and/or Licensing of Service

2.1 Reseller shall resell the Services solely under the then-current terms and conditions of The Works from Forceworks Subscription Agreement (the “Subscription Agreement”).  Reseller shall not perform any actions that would serve to diminish the effectiveness of the Subscription Agreement, such as entering into any agreements with or making representations to a Customer that would supersede, amend or supplement the Subscription Agreement, and Reseller shall not accept the Terms and Conditions on behalf of a Customer, including in connection with any services provided by Reseller to the Customer. Reseller will obtain Customer’s consent that its use of the Service is subject to the Subscription Agreement before entering into an Order with Forceworks for the purchase by Customer. If a Customer does not agree to accept such terms, Reseller must notify Forceworks before entering into an Order, and Forceworks may decide to execute a Subscription Agreement with the Customer or such other form of agreement as agreed between Forceworks and the Customer to govern the Customer’s use of the Service. Forceworks may also require that a particular Customer execute a Subscription Agreement with Forceworks.  Forceworks’ current form of Subscription Agreement must be printed by Reseller from this page in each instance before being provided to Customer. 

2.2 Reseller shall notify Forceworks of (i) any breach by any Customer of any terms contained in the Subscription Agreement of which Reseller becomes aware, and (ii) any infringement or alleged infringement of the patents, copyrights, trade secrets, trademarks, or other proprietary rights of Forceworks which Reseller becomes aware.  Reseller shall provide all assistance as reasonably required by Forceworks to assist in the enforcement of all terms contained in the Subscription Agreement, but not limited to, any assistance needed concerning any claims of infringement and/or violation of any of Forceworks’ proprietary rights related to the Services.

2.3 Reseller’s purchase price for the Service shall be set forth on the applicable online Generated Quote. Reseller shall not offer the Service for resale at prices other than those defined in the Generated Quote or later Generated Quotes created by the Customer. Forceworks has established the appropriate margins to conform with the value of the Service, and margin values shall be confidentially provided directly to the Reseller upon request.

2.4 Reseller shall order Services hereunder for Customer by executing Orders with Forceworks.  If Reseller delivers a purchase order to Forceworks in connection with an Order, then notwithstanding anything to the contrary contained in such purchase order, any terms or conditions contained on or referenced in the purchase order are rejected explicitly by Forceworks and shall have no force or effect. 

2.5 Forceworks hereby grants Reseller a personal, non-exclusive, non-transferable right to distribute the Service solely under the terms and conditions of this Agreement and the Subscription Agreement.  Reseller shall not be permitted to distribute any Services beyond the maximum entitlements (for example, user quantities) and any other restrictions, as set forth in the applicable Order. Reseller is obligated to obtain Customer’s agreement to any restrictions on the use of the Service as agreed to in advance by Forceworks and Reseller in the applicable Order.  Reseller warrants that before executing an Order, Reseller will obtain Customer’s acceptance of any entitlement restrictions contained in an Order (such as number of users, number of extras, etc.), and any additional terms required to be provided to Customer pursuant to an Order.

2.6 Reseller shall pay all fees specified in Order (“Fees”). Unless otherwise agreed to in an Order Form, Fees will be due from Reseller upon execution of an Order, and payment of Fees shall be made by Reseller monthly in advance. Except as otherwise expressly specified herein or in an Order, Orders and related payment obligations are non-cancelable, and fees paid are non-refundable.  Reseller’s payments to Forceworks shall be made without deduction for taxes, imposts, customs, levies, or other withholding (“Tax”) or shall be grossed‑up to provide Forceworks the exact amount after such Tax as it would have received without the imposition of such Tax, together with tax receipts or similar evidence of payment by Reseller.  Reseller is responsible for collecting and remitting any Value-Added Tax (VAT) or other taxes due from the Customer. Any overdue amounts shall bear interest payable to Forceworks at one and a half percent (1.5%) per month, compounded monthly. If such a rate violates applicable law, then the maximum amount of interest is chargeable under applicable law.  Unless otherwise stated, all Fees in Orders are exclusive of Taxes.  Payment obligations are not contingent upon the Reseller’s receipt of any payments from the Customer.

2.7 All right, title, and interest to all Products, any related Documentation, including any enhancements, modifications, or derivatives thereof, including any software development performed by Forceworks, supplied to Reseller remains with Forceworks (or, if applicable, Forceworks’ third party licensor), including all intellectual property rights embodied in the foregoing, and shall not pass to Reseller or any Customer, or another third party.

3. Distribution Rights and Requirements

3.1 Reseller shall indemnify, defend and hold Forceworks harmless from and against any claim, suit, or proceeding brought against Forceworks based on (i) any acts or omissions on the part of Reseller in marketing or distributing the Service; (ii) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Reseller relating to the Service other than as authorized by Forceworks in writing or made in Documentation, (iii) any breach by Reseller of Section 2.5.  The foregoing obligations are conditioned on Forceworks: (a) notifying Reseller promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim; (b) giving Reseller sole control of the defense thereof and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of Reseller to defend the claim; and (c) cooperating and, at Reseller’s request and expense, assisting in such defense.  

3.2 Reseller and Forceworks agree to notify each other promptly in writing regarding possible infringement, unauthorized use, or misappropriation of each other’s respective patents, trade secrets, trade names, trademarks, and copyrights and agree to cooperate in each other’s actions, if any, concerning the alleged infringement, unauthorized use or misappropriation of such intellectual property rights. 

4. Warranty

4.1 Services. Forceworks warrants that it will provide the Service, in accordance with the Subscription Agreement, in a manner consistent with general industry standards reasonably applicable to the provision thereof. Forceworks’ sole obligation and Reseller’s exclusive remedy under this warranty is, at Forceworks’ option, either (i) correct the non-conformity with the above warranty or (iii) refund the prepaid, unused subscription fees received by Forceworks for the applicable Service, to be utilized for the satisfaction of similar warranty obligations of Forceworks to Customer under the Subscription Agreement.

4.2  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, FORCEWORKS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, WITH REGARD TO ANY AND ALL PRODUCTS AND PROFESSIONAL SERVICES WHICH MAY BE SOLD, LICENSED OR PROVIDED PURSUANT TO THIS AGREEMENT.  ALL PRODUCTS ARE PROVIDED ENTIRELY “AS IS” AND FORCEWORKS SHALL HAVE NO LIABILITY TO RESELLER IN CONNECTION WITH ITS USE OF THE PRODUCTS, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT.

5. Limitation of Liability.  EXCEPT IN CONNECTION WITH A BREACH OF SECTIONS 2.1, 2.5, 3.1, 6, OR 9, NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE TO THE OTHER FOR (I) SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, (II) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, (III) LOSS OF REVENUES AND LOSS OF PROFITS, OR (IV) AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND EXCEEDING THE AMOUNT PAID OR PAYABLE BY RESELLER TO FORCEWORKS FOR THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM, IN EACH CASE ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. Confidentiality of Documentation and Information.  All documents and information supplied to a party (the “Receiving Party”) hereunder that is marked confidential, restricted, or otherwise subject to limited access, or would be reasonably understood to be confidential based on the nature of the information or the circumstances surrounding the disclosure (“Confidential Information”), are proprietary in nature and confidential to the party disclosing such information (the “Disclosing Party”).  The Receiving Party agrees to maintain such documents and information in confidence and not to disclose such information to a third party or use such documents or information for any purpose other than the fulfillment of the mutual business purposes of the parties under this Agreement.  The Receiving Party will disclose Confidential Information only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  To the extent Confidential Information of Forceworks must be disclosed by Reseller to Customers, Reseller shall include in contracts with its Customers a clause notifying Customers of Forceworks’ proprietary rights and requiring Customers to comply with the requirements imposed by this provision.  The Receiving Party shall be liable to the Disclosing Party for the compliance with the terms of this section by any third parties to whom the Receiving Party provides Confidential Information of the Disclosing Party as if such third party was the Receiving Party hereunder.  This section shall survive any termination of this Agreement, and notwithstanding the above, nothing contained in this section shall restrict Forceworks from entering into direct contact or other contractual arrangements with Customers or prospective Customers.

7. Use of Forceworks’ Trade Name and marks

7.1 Forceworks hereby authorizes and requires Reseller to retain any Forceworks markings, logos, colors, or other insignia that are affixed to the Service.  All Reseller advertising and other promotional material for the Service shall identify Forceworks as the originator of the Service, comply with Forceworks’ policies on using its name and marks, and be submitted to Forceworks for review and approval before releasing by Reseller.

7.2 Except as expressly provided in this Section 7, Forceworks prohibits any other direct or indirect use, registration of, reference to, or other employment of its name, trademarks or trade names, or any name, trademark, or trade name owned or exclusively licensed by Forceworks or any name, trademarks or trade names confusingly similar to it, except as may be authorized in writing by Forceworks.  Reseller affirms and agrees that it and its agents have not and will not register any Forceworks or Service trademarks or trade names or any forms thereof for use in connection with any business entity, offering, sale, and/or support of software or services. 

8. Term and Termination

8.1 Term. The term of this Agreement shall be for twelve (12) months commencing on the Effective Date (the “Initial Term”).  The Term shall be automatically extended for successive Renewal Terms of twelve (12) months unless either party provides written notice of non-renewal to the other at least ninety (90) days before such expiration.

8.2 Termination.  Either party may terminate this Agreement in the event of a material breach of this Agreement that is not cured within thirty (30) days of written notice of such breach.  In addition, either party may terminate this Agreement for convenience upon sixty (60) days prior written notice to the other party.  Forceworks may terminate this Agreement immediately in the event of (i) a breach by Reseller of Section 9, or (ii) fifty percent (50%) or greater of the stock or assets of Reseller being transferred to a third party, or if Reseller otherwise comes under the control of a third party.  Either party may terminate this Agreement upon ten (10) days written notice if the other party files a petition in bankruptcy or has such a petition filed against it (which petition is not discharged within thirty (30) days after filing) or makes an assignment for the benefit of creditors, or if a receiver, trustee, custodian, or a similar agent is appointed or takes possession of its assets, or if it generally ceases doing business in the ordinary course. Termination of this Agreement by either party shall not be deemed an election of remedies or waiver of any claims relating to the other party. 

8.3 Effects of Termination.  Upon termination of this Agreement, all rights and licenses to resell and distribute the Service (except rights granted to a Customer under a Subscription Agreement before such termination) shall immediately cease. In addition, Reseller agrees it shall immediately cease to describe itself as a Forceworks reseller and shall pay to Forceworks within ten (10) days of such termination or expiration all amounts owed to Forceworks hereunder. Reseller shall cease using the Documentation and Confidential Information and certify it has returned or destroyed all originals and copies, in any form, of such materials.  Termination of this Agreement shall not affect outstanding Orders for the benefit of Customers or any obligations thereunder, and this Agreement shall survive with respect to such Orders until their expiration or earlier termination.  Reseller shall immediately discontinue using Forceworks’ name or any Forceworks markings, colors, or other insignia authorized herein.

8.4 Survival.  Any provisions that are by their nature intended to survive termination of this Agreement will continue to survive following termination.

9.     Compliance with Laws.

9.1 Reseller represents and warrants that (i) it is not identified on the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”)’s Specially Designated Nationals and Blocked Persons (“SDN”) list and (ii) that it is not involved in business arrangements or otherwise engaged in transactions with or involving sanctioned countries or SDNs in violation of the regulations maintained by OFAC.  Reseller agrees that it will notify Forceworks promptly upon the occurrence of any event that would render this representation and warranty incorrect. 

9.2 Reseller warrants that it shall not sell the Service or engage in any other transaction in, to, or with (i) any of the following countries: Cuba, Iran, Sudan, North Korea, Burma/Myanmar, Ivory Coast, Russia, Syria or the Crimean region of the Ukraine, or any other country that becomes subject to sanctions imposed by the U.S. Government, or (ii) any individual or entity that is listed in the following: (a) the SDN list; (b) List of Debarred Parties, Directorate of Defense Trade Controls, U.S. State Department; (c) Denied Persons List, Bureau of Industry and Security, U.S. Department of Commerce; (d) Entity List, Bureau of Industry and Security, U.S. Department of Commerce; (e) Unverified List, Bureau of Industry and Security, U.S. Department of Commerce; or (f) the Palestinian Legislative Counsel (PLC) List, Office of Foreign Assets Control, U.S. Treasury Department.

9.3 Reseller warrants that (i) it shall, in its performance of this Agreement, comply with all applicable laws, including the U.S. Foreign Corrupt Practices Act (15 U.S.C. Section 78dd-1, et seq.) as amended (the “FCPA”) and all other applicable Anti-Corruption Laws and U.S. Export Control Laws and (ii) it shall take no action that would cause Forceworks to be in violation of the FCPA or any other applicable Anti-Corruption Laws.  Reseller agrees that it will provide all information and cooperation reasonably requested by Forceworks related to Reseller’s activities under this Agreement so that Forceworks may ensure compliance with this Section 9.3.

10. General

10.1 This Agreement is the exclusive statement of the agreement between the parties with respect to its subject matter as of its date of execution. It supersedes all prior agreements, negotiations, representations, and proposals, written or oral.  There are no third-party beneficiaries to this Agreement. The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.

10.2 Reseller acknowledges that both parties are independent contractors and that Reseller will, on its own behalf, solicit orders for Services and identify itself only as an independent contractor and not represent itself as a partner or joint‑venturer, or as an employee or general representative, or agent of Forceworks with authority to obligate Forceworks contractually.

10.3 Forceworks and Reseller shall not be liable for any failure or delay in fulfilling the terms of this Agreement due to fire, strike, war, civil unrest, terrorist action, government regulations, acts of nature, or other causes which are unavoidable and beyond the reasonable control of the party claiming force majeure.  This provision shall not be construed as relieving either party from its obligation to pay any sums due to the other party.

10.4 Any notices provided for under this Agreement shall be deemed given upon delivery to the address listed in the Order or to such different address as either party may designate from time to time to the other pursuant to this Section by a nationally recognized courier that confirms delivery. Notices to Forceworks must always be accompanied by a copy of such notice delivered to admin@forceworks.com.

10.5 This Agreement may not be assigned, transferred, or delegated, in whole or part, by Reseller for any reason whatsoever without Forceworks’ prior written consent.  Forceworks shall have the right to assign this Agreement or any Order Form or specific rights and duties hereunder to any subsidiary or Affiliate of Forceworks.  Any attempted assignment or transfer in violation hereof shall be null and void.

10.6 Governing Law; Jurisdiction; Venue. This Agreement shall be governed by the laws of the State of Tennessee and any controlling U.S. federal law and excluding the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in the Judicial District 4: Cocke, Grainger, Jefferson and Sevier counties of Tennessee.

10.7 If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, unenforceable, or otherwise contrary to law, the provision shall be modified by the court and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law. The remaining provisions of this Agreement shall remain in force and effect.

10.8 Modification to Applicable Terms. If Forceworks makes a material change to these Terms, then Forceworks will notify the Reseller by either sending an email to the notification email address or posting a notice in the Reseller’s account. If the change has a material adverse impact on the Reseller and the Reseller does not agree to the change, the Reseller shall notify Forceworks via support@forceworks.com within thirty (30) days after receiving notice of the change. If Reseller notifies Forceworks, Reseller will remain governed by the Terms of Agreement immediately before the change for any active Orders. Any new Orders will be under Forceworks’ then-current Terms.

10.9 Orders may be executed by PDF or other electronic means and in one or more counterparts, which shall form one legal instrument.

 

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