1. Definitions 
    

“Agreement” means a contract between Yisda and a Customer by which Yisda agrees to provide Yisda Products and comprises these Terms and Conditions and a Customer Purchase Invoice.

"Authorized Reseller" means a Customer approved by Yisda to receive and resell or otherwise transfer Yisda Products to a third party. 

“Customer” means the customer identified on a relevant Customer Purchase Invoice.

“Customer Purchase Invoice” means an invoice, relating to the Sale of Yisda Products, prepared and issued by Yisda to the Customer, and where applicable, an invoice relating to the resale of Yisda Products issued by a Customer to a Resale Customer.

“End User” means a person or entity who has executed or has otherwise agreed to the terms of a EULA and is authorized to use the Yisda Products thereunder. 

“EULA” means Yisda's end user license agreement as may be amended by Yisda from time to time. 

“Intellectual Property Rights” means, whether registered or not, all patent rights, copyrights, trademark and service mark rights, rights to trade secrets, and all other intellectual property rights whether current or arising in the future, and all renewals and extensions thereof, whether arising under the law of the United States or any other state, country or jurisdiction.

“Force Majeure Event” means an event that is not reasonably foreseeable and is beyond the reasonable control of the Party claiming force majeure including, among other things, natural disasters, acts of war or terrorism, riot, labor disputes, adverse governmental actions and supply chain issues.

"Party" means the Customer or Yisda and "Parties" means both the Customer and Yisda.

"Resale Contract" means a contract between an Authorized Reseller and a Resale Customer.

"Resale Customer" means a body or entity obtaining Yisda Products via an Authorized Reseller.

"Sale" insofar as relates to Yisda Products, means either the sale of Yisda Products and / or the sale of licensed rights to use Yisda Products. 

"Yisda Products" means rights, as specified in an applicable Customer Purchase Invoice, to any software, firmware, hardware and any services of any kind provided by Yisda.

2. Applicability

These Reseller Terms and Conditions of Sale and Service ("Terms and Conditions") apply to any Agreement between Yisda Secure LLC ("Yisda") and a Customer where the Customer contracts to receive Yisda Products but is an Authorized Reseller not intended to be an End User of Yisda Products and does not enter into a EULA with Yisda.
 

3. Resale Contract Provisions

Any Resale Contract shall be approved by Yisda in writing prior to its closing and shall include, among other things, the following provisions: (i) as a condition precedent of using the Yisda Products a requirement that the Resale Customer and /or End User shall enter into a EULA directly with Yisda; (ii) warranty, confidentiality and liability provisions at least as restrictive as those contained in these Terms and Conditions; and (iii) a provision requiring the Resale Customer or other End User to pursue all and any claims relating to the Yisda Products first against Yisda under the terms of the EULA.

4. Restrictions

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4.1 The Customer shall not

(i) use the Yisda Products;
The Customer shall only use and handle the Yisda Products lawfully and in accordance with the terms of the Agreement; shall only resell Yisda Products to Resale Customers approved by Yisda; and to the extent the Yisda Products are in its possession and control shall protect the Yisda Products from access by unauthorized third parties. 

 (ii) reverse engineer or attempt to reverse engineer all or any part of Yisda Products;

(iii) copy in whole or part the Yisda Products or utilize in any way Yisda Products to seek to create the same or similar products;

(iv) remove, hide or obscure any proprietary notices on Yisda Products;

(v) modify, change or add to Yisda Products or create any derivative products therefrom.

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4.2   In the event of unauthorized access to or use of the Yisda Products contrary to applicable law or this Agreement the Customer agrees to promptly inform Yisda of the same and to work with Yisda in good faith to resolve any issues thereby arising.

 

5. Warranties 
 

5.1 Subject to the other provisions herein, Yisda warrants that software and hardware comprised in Yisda Products will perform substantially in accordance with the applicable Operations Manual and Customer Purchase Invoice and that any services provided by Yisda shall be provided to a professional standard typical in the industry. 

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5.2 Except for the warranties expressly provided herein and in the relevant Customer Purchase Invoice and as required by applicable law, Yisda provides no other warranty or undertaking, and makes no representation of any kind that the Yisda Products will meet any requirements of the Resale Customer or End-User, achieve any intended results, be compatible or work with any other software, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected. The Yisda Product is provided "as is". 

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5.3 ONLY THOSE WARRANTIES EXPRESSLY GIVEN IN THE AGREEMENT SHALL APPLY TO YISDA PRODUCTS AND, TO THE EXTENT ALLOWED BY APPLICABLE LAW, YISDA GIVES NO OTHER WARRANTIES OF ANY KIND WHETHER IMPLIED OR STATUTORY INCLUDING WITHOUT LIMITATION ANY WARRANTIES RELATING TO FITNESS FOR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT OR OTHERWISE.

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5.4 From time to time, Yisda may in its sole discretion and without being breach of the Agreement, upgrade, vary, improve or discontinue aspects of the Yisda Products and where practicable, shall provide the Customer with a minimum thirty days' notice thereof.

 

6. Confidentiality and Data Protection
 

6.1 “Confidential Information” means all non-public, proprietary, commercially sensitive information of a Party whether in oral, visual, written, electronic, or other tangible or intangible form. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of fault or disclosure by a receiving Party of Confidential Information (“Receiving Party”) or, (b) Confidential Information that is in the possession of a Receiving Party prior to disclosure by the disclosing Party of Confidential Information (“Disclosing Party”) as demonstrated by documentary evidence, or (c) is received by the Receiving Party from a third party without any breach of confidentiality provisions.

 

6.2 The Receiving Party agrees not to disclose the Disclosing Party’s Confidential Information to any third parties except to its own officers or employees or advisors on a reasonable “need to know” basis, provided that the third-party recipients sign written agreements to comply with confidentiality obligations at least as protective as those herein. Furthermore, the Receiving Party shall keep the Disclosing Party’s Confidential Information confidential using at least the same degree of care it uses to protect its own Confidential Information, and in any event not less than a reasonable degree of care and shall not use or reproduce any of the Disclosing Party’s Confidential Information for any purposes except to facilitate proper and authorized use of the Yisda Products and fulfill its obligations under the Agreement.

 

6.3 If Receiving Party is required under any valid law, rule or regulation, to disclose any of Disclosing Party’s Confidential Information, then, Receiving Party shall give prompt and written notice to Disclosing Party in good time prior to such required disclosure.

 

6.4 Notwithstanding the termination of the Agreement these obligations of confidentiality shall continue until the Confidential Information comes into the public domain.
 

7. LIMITATION OF LIABILITY
 

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

7.1 THE ENTIRE AND TOTAL LIABILITY OF YISDA AND ANY OF ITS OFFICERS, EMPLOYEES, AFFILIATES AND SUPPLIERS UNDER THIS AGREEMENT, AND THE CUSTOMER’S EXCLUSIVE REMEDY FOR ALL AND ANY CLAIMS IN ANY WAY RELATED TO THIS AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE) SHALL BE LIMITED TO AND CAPPED AT THE AMOUNT ACTUALLY PAID BY THE CUSTOMER TO YISDA HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE FIRST EVENT GIVING RISE TO THE RELEVANT CLAIM OR CLAIMS, AND

 

7.2 IN NO EVENT SHALL YISDA OR ITS OFFICERS, EMPLOYEES, AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR FUTURE PROFITS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, LOSS OF USE OF THE YISDA SECURITY PRODUCT).

 

THE LIMITATION HEREIN IS A TOTAL AMOUNT AND APPLIES CUMULATIVELY REGARDLESS OF NUMBER OF CLAIMS AND CUSTOMER HEREBY AGREES AND ACKNOWLEDGES THAT THE EXISTENCE OF THESE LIABILITY LIMITATIONS IS AN IMPORTANT PART OF THE CALCULATION OF PRICE AND BARGAIN BETWEEN THE PARTIES AND THAT WITHOUT SUCH LIMITATIONS THE PRICE FOR THE YISDA PRODUCTS WOULD HAVE BEEN CONSIDERABLY HIGHER.

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8. Title and Intellectual Property Rights

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8.1 All title to and Intellectual Property Rights comprised in the Yisda Products and any ancillary materials and documentation of Yisda shall at all times remain the property of Yisda and, where appropriate, its licensors. Under the Agreement or otherwise, the Customer shall acquire no Intellectual Property Rights to the Yisda Products or any parts thereof nor to any ancillary materials or documentation except as may be expressly granted under the Agreement.

 

8.2 The Customer shall retain all rights to all of the Customer's Confidential Information and Yisda shall acquire no rights thereto except as may be expressly set out in the Agreement.

 

8.3 All Intellectual Property developed in the fulfillment of the Agreement shall be exclusively the work product of Yisda in whom all title and rights thereto shall vest.

 

8.4 Yisda shall indemnify the Customer in relation to any award, costs and expenses reasonably incurred relating to an intellectual property claim successfully brought by a third party alleging that the Customer’s proper use of Yisda Products alone amounts to infringement of the third party’s rights, provided that Customer notifies Yisda within ten days of the date the Customer first receives notice of such claim. Yisda may, in its sole discretion and at its own cost, take over the conduct of any such proceedings at any stage, in which case the Customer shall, at Yisda's expense and in a prompt manner, provide all reasonable assistance as requested by Yisda. In the event that Yisda does not take over conduct of such proceedings the Customer shall keep Yisda informed of all material developments in such proceedings and shall not settle any such claim without obtaining the prior written agreement of Yisda.

 

8.5 Where a third party claim arises as referred to in Section 8.4 above, Yisda may without constituting a breach hereof: (a) in its sole and absolute discretion change or modify the Yisda Products to circumvent any alleged infringement and supply the modified Yisda Products to the Customer (provided the modified Yisda Product offers substantially the same protection to the Customer as the pre-modification Yisda Products) and /or (b) terminate this Agreement by

written notice under Section 23.3 hereof. 
 

9. Severability

If any provision of the Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of the Agreement shall continue in full force and effect.

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10. Entire Agreement

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The Agreement is the entire agreement between Yisda and the Customer and supersedes all prior agreements, discussions or representations whether oral or written. The terms of the Agreement shall not be modified, added to or cancelled except by a subsequent written agreement signed by both the Customer and Yisda. Any Customer terms or other documents shall not form part of the Agreement nor constitute a separate binding agreement between the Customer and Yisda. Any purported contract terms that are not included in the Agreement shall be null and void. 

 

11. Third Party Rights

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The Agreement shall not create any actionable rights for third parties but may be evidence of a valid defense to a claim against a third part

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12. Priority

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In the event that there is any conflict or discrepancy between these Terms and Conditions, and the relevant Customer Purchase Invoice then the Customer Purchase Invoice shall prevail.

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13. Timing

 

Unless in the Customer Purchase Invoice the delivery/installation dates of the Yisda Products for the Customer are specified and stated to be fixed with time of the essence, any such dates may be subject to change and delay by Yisda without constituting a breach of the Agreement provided always that when delayed Yisda shall use reasonable efforts to deliver and install the Yisda Products shortly after the contractual due date or dates. 

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14. Cooperation

 

In the event of any claim by a third party relating in any way to the Agreement then each of the Parties shall cooperate with the other in good faith to assist in resolving the matter in dispute.

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15. Governing Law

 

The laws of the state of Utah shall govern the Agreement and the provision and use of the Yisda Products and notwithstanding any provisions to the contrary the Parties irrevocably agree that all matters relating hereto shall be brought and heard in the courts of Salt Lake City, Utah.

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16. Waiver

 

Except as provided herein, the failure to exercise a right or to require performance of an obligation under the Agreement shall not affect a Party's ability to exercise such right or require such performance at any time thereafter nor shall the waiver of a breach constitute a waiver of any subsequent breach.

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17. Assignment

 

Other than arising in connection with a merger or reorganization of a Party, neither Party shall assign their rights under the Agreement except with the prior written agreement of the other Party.

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18. No Jury Trial

 

The Parties agree and acknowledge that any differences or disputes relating to the Agreement shall be heard and determined without reference to or use of a jury and both Parties hereto hereby irrevocably waive all rights to a jury trial.

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19. Construction

 

In the interpretation of the Agreement there shall be no assumption of construction against or in favor of either Party.

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20. Notices

 

All notices sent in any way relating to the Agreement shall be in writing and sent to the address of the receiving Party as shown on the Customer Purchase Invoice as may be updated from time to time by written notice to the other Party. 

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21. Force Majeure

 

Neither Party shall be liable for delays or other impacts to the extent such delays or other impacts arise out of Force Majeure events. A Party affected by a Force Majeure event shall notify the other Party of the same and shall be relieved of its obligations (other than payment obligations) hereunder for such time and only to the extent as are reasonable in all of the circumstances. The Party claiming relief as a result of a Force Majeure event shall be obliged to use all reasonable efforts to mitigate the impact thereof on the performance of the Agreement.

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22. Taxes

 

All governmental, regulatory or other properly levied taxes or charges of any kind payable on the price charged by Yisda under the Agreement are additional to the amounts stated in the Customer Purchase Invoice and it is the Customer’s responsibility to determine, report and pay the same. Sales tax and other appropriate taxes may be added to the Customer Purchase Invoice by Yisda but Yisda is not responsible for determining whether taxes apply to a transaction, or for adding, collecting, reporting, or paying any such taxes. 

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23. Commencement Date, Term and Termination

23.1 The commencement date of the Agreement shall be specified in the relevant Customer Purchase Invoice but in the absence of which the commencement date shall be the sooner of the date of first provision of the Yisda Product or the date of the first payment received from the Customer in respect thereof. 

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23.2 The Term of the Agreement shall be specified in the Customer Purchase Invoice but in the absence of which it shall be year to year.

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23.3 Unless otherwise agreed in writing between the Parties the Agreement shall expire at the end of the Term. In the event of a claim arising with regard to intellectual property comprised in Yisda Products Yisda may terminate this Agreement by giving no less than 30 days written notice to the Customer. 

 

END