MegaMeeting

Please read this Agreement carefully. By clicking to “accept” or “agree” to this Agreement when this option is made available to you, you accept and agree to be bound and abide by this Reseller/White Label Agreement.

THIS RESELLER AGREEMENT (this “Agreement”) is entered into by and between Internet MegaMeeting, LLC (“MegaMeeting”), and the person or entity that is reselling the Platform as described in this Agreement (“Reseller”), as of the date of acceptance by Reseller as recorded in the subscription process (the “Effective Date”).

The parties hereby agree as follows:

Defined Terms. In this Agreement:
1. “Marks” means the MegaMeeting trademarks, service marks and other indicia of ownership listed on Exhibit A hereto.
2. “Order” means the document MegaMeeting uses to effectuate the appointment of a specific Reseller and the Reseller-specific terms that apply. The terms of this Agreement are incorporated into each Order by reference.
3. “Services” means the video conferencing and other communications services described at https://www.megameeting.com and related documentation, including all modifications, enhancements, upgrades, and new versions and releases thereof.
4. “Technology” means data, know-how, methods, processes, techniques, proprietary information, specifications, protocols, schematics, designs, diagrams, layouts, inventions (whether or not patentable), apparatuses, hardware, products, devices, algorithms, software, software code (in any form including source code and object code or executable code), user interfaces, and other forms of technology.
5. “Terms of Service” means, as amended by MegaMeeting from time to time and including all documents (including MegaMeeting’s privacy policy) incorporated into, MegaMeeting’s Terms of Service available at https://www.megameeting.com/tos.
6. “Territory” means the geographic area or other markets set forth in the Order as the Territory.
7. “User” has the meaning given to it in the Terms of Service.
Limited License Grant.
1. MegaMeeting grants Reseller a non-exclusive, non-transferable, non-sublicensable right and license during the Term to market, distribute and sell the Service solely in the Territory, together with the right to sublicense and, as and to the extent expressly provided herein, make modifications of and derivative works based upon the Services (as is made available via MegaMeeting’s API language), subject to the terms and conditions of this Agreement.
2. Reseller hereby grants to MegaMeeting an irrevocable, perpetual, worldwide, fully paid up and royalty-free license to modifications and derivatives, with rights to assign and sublicense through multiple levels of sublicenses and to have others exercise such rights, to reproduce, make derivative works of, distribute, perform, display, make, use, sell, offer to sell, and import products and services embodying or which could infringe such rights, and to otherwise exercise and exploit any and all improvements, modifications, derivative works and other intellectual property rights with respect to the Services and Technology that Reseller owns or controls (by license or otherwise) from the moment of creation.
3. All uses in this Agreement of the terms "sell," "sale," "resell," "resale," "purchase," "price," and the like mean the grant of a subscription that enables the User to access and use the Service, and shall not be deemed a sale of any copy of or rights in the MegaMeeting Marks, Software or other MegaMeeting properties.
MegaMeeting Marks
1. MegaMeeting grants Reseller a non-exclusive, non-transferable, non-sublicense, royalty-free right and license during the Term to use the Marks in the Territory solely in connection with the marketing, advertising and sale of the Service. Reseller shall use the Marks solely in the form and format specified in Exhibit A. If MegaMeeting changes the format or appearance of any Mark during the Term, it will notify Reseller in writing, and Reseller shall thereafter use the changed format or appearance of the applicable Mark. Reseller also shall comply with any other written trademark usage guidelines and quality control standards communicated in writing to Reseller by MegaMeeting or available within MegaMeeting’s Terms of Service at https://www.megameeting.com/tos, in each case as amended by MegaMeeting from time to time.
2. MegaMeeting has the right to preapprove all marketing and advertising materials, and any other materials disseminated by Reseller, bearing the Marks. Before Reseller makes any use of a Mark on any marketing, advertising, promotional or other material, Reseller shall provide MegaMeeting with a written sample of such proposed use for its approval, and Reseller shall not commence any such use without MegaMeeting’s prior written approval which MegaMeeting may grant or deny in its sole discretion.
3. Reseller acknowledges the validity and enforceability of the Marks and agrees not to challenge the validity or enforceability of any Mark or MegaMeeting’s ownership of the Marks during the Term or thereafter. All of Reseller’s use of the Marks, and all goodwill associated therewith, shall inure to MegaMeeting’s benefit. Except as expressly provided in this Agreement, Reseller shall make no use of any Mark during the Term or thereafter. During the Term and thereafter, Reseller shall not (i) adopt or use any trademark, service mark, trade name or other identifier that is confusingly similar to any Mark; (ii) use any Mark in or in connection with the advertising, promotion, marketing, or distribution of any goods, services, or technologies other than the Services; (ii) as part of Reseller’s company or trade name or any domain name; (iii) in any way that may cause confusion, mistake, or deception; or (iv) in any way that may dilute, tarnish, or otherwise diminish the Marks' distinctiveness, or jeopardize the reputation of or goodwill associated with the Marks or the Services.
User Terms
1. Reseller agrees that use of the Services is governed by MegaMeeting’s Terms of Service, and Reseller shall make any sales of the Services subject to and contingent on the Users of the Services complying with MegaMeeting’s Terms of Service.
2. Reseller shall not make any representations, warranties, guarantees, indemnities, claims, or other commitments: (i) actually, apparently, or impliedly on MegaMeeting’s behalf; or (ii) concerning or relating to any element of the Services or Technology that are in addition to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, claims, or other commitments in this Agreement, the Terms of Service, or any written documents provided or made available by MegaMeeting to Reseller or Users that concern or relate to the Services or Technology.
Ownership by MegaMeeting
1. Except as expressly set forth in this Agreement, MegaMeeting retains all right, title and interest in and to the Marks, Services, Technology, and including without limitation all patent, copyright, trade secret, trademark and other intellectual property rights in or related to the Marks, Services and Technology. . Nothing in this Agreement grants or confers Reseller any ownership rights in the Marks, Services or Technology, or any patents, copyrights, trade secrets, trademarks or other intellectual property or proprietary rights of MegaMeeting. Reseller shall not use the MegaMeeting Marks, Services, Technology, or any patents, copyrights, trade secrets, trademarks or other intellectual property or proprietary rights of MegaMeeting for any purposes beyond the express scope of the license granted in this Agreement.
2. Except as otherwise expressly set forth in this Agreement, Reseller shall not at any time, directly or indirectly: (i) market, distribute, license, or otherwise make available any Software on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the MegaMeeting Marks or Software; or (iii) use the MegaMeeting Marks or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
3. Except as and to the extent expressly permitted in Section 2.1, Reseller shall not under any circumstances attempt, or knowingly permit others to attempt, to (a) decompile, decipher, disassemble, reverse engineer or otherwise determine the Technology underlying the Service and its software and other technology, (b) alter or modify the Services or Technology, or merge the Technology used in the Services into another program, or create derivative works based on the Services and its underlying Technology, or (c) attempt to disable any security devices or codes incorporated in the Technology.
Reseller’s Obligations. Without limiting any other provision of this Agreement, Reseller agrees to do the following:
1. Maintain and pay for at least one Enterprise account/login. Failure of Reseller to maintain and pay for this account when it is due will result in immediate termination of Reseller’s status with MegaMeeting.
2. Reseller will commit sufficient resources to fulfill its obligations under this Agreement, and shall use commercially reasonable efforts to market, promote, distribute and support the Services as contemplated in this Agreement. Without limiting the generality of the foregoing, Reseller agrees to: (a) diligently solicit orders for the Services; (b) conduct demonstrations of the Services; (c) engage in public relations activities to encourage the publication of articles and other publicity regarding the Services; (d) maintain an adequate staff of personnel trained and qualified in the marketing, use and support of the Services; (e) perform support and maintenance services in connection with the Services in a professional and timely manner; (f) conduct its activities related to this Agreement in compliance with all applicable laws, rules and regulations in the Territory; and (g) conduct its business operations in a professional manner and with the goal of promoting the goodwill and integrity associated with Services. Reseller will also comply with advertising, marketing, product support and other policies MegaMeeting establishes from time to time during the Term.
3. During the Term, Reseller shall provide technical support for the Services to end users in the Territory. Technical support will include troubleshooting technical issues end users have installing or operating the Services. Reseller may also provide training to end users in the Territory, provided that Reseller conducts such training in accordance with MegaMeeting’s published operational procedures and instructions for the Services and, upon MegaMeeting’s request, provide MegaMeeting with copies of any training materials Reseller uses.
4. During the Term, Reseller shall not (a) directly or indirectly market, promote or solicit customers or subscriptions for, supply, sell or resell any product or service in competition with the Services; or (b) have a controlling interest in any entity that markets, promotes, sells or provides any product or service in competition with the Services.
5. Reseller shall, within thirty (30) days after the end of each fiscal quarter, provide MegaMeeting with written quarterly marketing progress reports that specify Reseller’s marketing activities and sales of Services for the immediately preceding quarter and plans for the next quarter.
6. Reseller shall pay all income, value added and other taxes associated with sales of Services in the Territory.
7. Reseller shall not resell Products to any governmental authority or its respective agencies without express written approval from MegaMeeting. Unless otherwise separately agreed to in writing by MegaMeeting, no provisions required in any US government contract or subcontract related thereto shall be a part of this Agreement, imposed on or binding on MegaMeeting, and this Agreement is not deemed an acceptance of any government provisions that may be included or referenced in Reseller's request for quotation, purchase order, or any other document.
8. Reseller shall notify MegaMeeting promptly of any infringement of any Marks, Technology or other intellectual property or proprietary rights relating to the Services or Technology. MegaMeeting may, in its sole discretion, take or not take whatever action it believes is appropriate in connection with any such infringement. If MegaMeeting elects to take any such action, Reseller agrees to reasonably cooperate with MegaMeeting, at MegaMeeting’s expense, in connection therewith. If MegaMeeting initiates and prosecutes any action with respect to such infringement, MegaMeeting shall be entitled to retain all amounts (including court costs and attorneys’ fees) awarded by way of judgment, settlement, or compromise with respect thereto.
Ordering When a sale is made, Reseller must electronically transmit to Company (via the Company’s Reseller Portal), information regarding the new client. Reseller will also create and maintain all client accounts via the Company’s Reseller Portal as well.
Reseller’s Compensation. Reseller shall receive the following sales commission payments under this Agreement:
1. Unless subject to a separate, stand-alone Agreement (in writing), the following shall apply: for each Subscription Reseller sells in the Territory during the Term, Reseller shall receive thirty percent (30%) of the revenues MegaMeeting receives from the client.
  1. If the Reseller is White Labeling the MegaMeeting products (or if the Reseller is not White Labeling, but still paying for its clients’ accounts), and unless subject to a separate, stand-alone Agreement (in writing), the following shall apply:
    1. for each Subscription Reseller sells in the Territory during the Term, Reseller shall receive a thirty percent (30%) discount off the then-current retail price of the MegaMeeting software.
    2. MegaMeeting will bill the Reseller the then-current retail price of the MegaMeeting software, less the 30% discount. This billing will take place immediately upon the sale of the Subscription by Reseller.
    3. The Reseller will be responsible for billing their own clients.
    4. If the Reseller is White Labeling the MegaMeeting products, they may set their own retail price to whatever amount they wish to charge.
  2. All payments under Section 7.1.1 are due via credit card that Reseller is responsible for maintaining as valid and with sufficient credit within their Reseller Portal account. Failure of Reseller to maintain and pay for all accounts and amounts due will result in immediate termination of Reseller’s status with MegaMeeting.
2. Reseller acknowledges and agrees that its only compensation under this Agreement is the compensation expressly provided for in Section 7.1 of this Agreement. Reseller shall perform its obligations under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by MegaMeeting whether under this Agreement, applicable law, or otherwise.
Audit Rights. Reseller shall keep accurate books and records reflecting sales of Services. MegaMeeting shall have the right to audit Reseller’s books and records relating to this Agreement and sales of Services by Reseller. MegaMeeting may conduct such an audit at its discretion (but no more frequently than three (3) times per calendar year). Reseller shall pay MegaMeeting’s out-of-pocket costs for any audit that discloses an underpayment by Reseller of five percent (5%) or more of the amount under audit plus the amount of the underpayment. Reseller shall also reimburse MegaMeeting for all reasonable costs incurred by MegaMeeting in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees.
Disclaimers and Limitations of Liability.
1. ALL MEGAMEETING SERVICES, MARKS, TECHNOLOGY AND PRODUCTS ARE PROVIDED "AS IS" AND MEGAMEETING HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MEGAMEETING SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MEGAMEETING MAKES NO WARRANTY OF ANY KIND THAT THE MEGAMEETING SERVICES, MARKS, TECHNOLOGY AND PRODUCTS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET RESELLER’S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ANY REPRESENTATIONS AND WARRANTIES OF OR RELATING TO THE SERVICES MADE TO END USERS ARE MADE SOLELY UNDER THE TERMS OF USE AVAILABLE AT HTTPS://WWW.MEGAMEETING.COM/TOS. MEGAMEETING SHALL HAVE NO LIABILITY WHATSOEVER TO RESELLER OR ANY OTHER PERSON FOR OR ON ACCOUNT OF ANY INJURY, LOSS, OR DAMAGE, OF ANY KIND OR NATURE SUSTAINED BY, OR ANY DAMAGE ASSESSED OR ASSERTED AGAINST, OR ANY OTHER LIABILITY INCURRED BY OR IMPOSED UPON RESELLER OR ANY OTHER PERSON, ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM USE OF THE MEGAMEETING’S SERVICES, MARKS, TECHNOLOGY AND PRODUCTS.
2. IN NO EVENT WILL RESELLER OR MEGAMEETING BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH MEGAMEETING’S SERVICES, MARKS, TECHNOLOGY AND PRODUCTS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES. IN NO CASE WILL MEGAMEETING’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR ANY MEGAMEETING SERVICES, MARKS, SOFTWARE OR PRODUCTS, WHETHER TO RESELLER OR TO ANY THIRD PARTY, EXCEED THE AMOUNT PAID BY RESELLER TO MEGAMEETING UNDER THIS AGREEMENT FOR THE SIX (6) MONTHS PRECEDING THE DATE OF THE FIRST ACT OR OMISSION UPON WHICH SUCH CLAIM IS BASED. THE LIMITATIONS IN THIS SECTION 9.2 SHALL NOT APPLY TO INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 OR OBLIGATIONS UNDER SECTION 5 AND SECTION 12.
3. THE EXCLUSIONS AND LIMITATIONS OF SECTIONS 9.1 AND 9.2 SHALL APPLY REGARDLESS OF WHETHER (A) EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, (B) SUCH LOSSES OR DAMAGES WERE FORESEEABLE; (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND (D) NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Indemnification
1. MegaMeeting shall indemnify, defend, and hold harmless Reseller from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees (collectively, “Losses”) incurred by Reseller arising out of or relating to any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, “Actions”) by a third party (other than an affiliate of Reseller that arise from or relate to any allegation in such Action that Reseller’s exercise of its rights under Sections 2.1 and 3.1 in accordance with this Agreement infringes a US patent, invention registration, copyright, trade secret or mask work right of such third party, or that any Mark infringes any registered trademark, service mark, trade dress, or other common law trade identity right of such third party. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (i) open source component in the Technology; (ii) any combination, incorporation, operation, or use of the Services or any Technology in or with, any technology (including any software, hardware, firmware, system, or network), trademarks, service marks, material or service (other than the Services and Technology) not provided by MegaMeeting, unless otherwise expressly permitted by MegaMeeting in writing; (iii) modification of the Services or Technology other than by MegaMeeting or as expressly permitted by MegaMeeting in writing; (iv) failure to timely implement any maintenance release or modification, update, or replacement of any Services or Technology made available to Reseller by MegaMeeting; (v) use of any Services or Technology after MegaMeeting’s notice to Reseller of such activity's alleged or actual infringement, misappropriation, or other violation of a third party's rights; (vi) use of any Services or Technology outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to MegaMeeting’s instructions; or (vii) allegation of facts that, if true, would constitute Reseller’s breach of any of its representations, warranties, covenants, or obligations under this Agreement.
2. Reseller shall indemnify, defend, and hold harmless MegaMeeting from and against any and all Losses incurred by MegaMeeting in connection with any Action by a third party (other than an affiliate of MegaMeeting) that arise from any allegation in such Action of or relating to: (i) any components, technology, specifications, trademarks, service marks or documentation added by or at the direction of Reseller; (ii) MegaMeeting’s compliance with any specifications or directions provided by or on behalf of Reseller to the extent prepared without any contribution by MegaMeeting; (iii) any facts that, if true, would constitute Reseller’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (iv) the performance of any support or other services hereunder by Reseller.
3. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2, as the case may be. The indemnitor under this Section 10 shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnitor's sole cost and expense. The indemnitee shall cooperate in all reasonable respects with such defense and investigation. The indemnitee's failure to perform any obligations under this Section 10.3 will not relieve the indemnitor of its obligations under this Section 10.3 except to the extent that the indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
4. If any Technology is, or in MegaMeeting’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Reseller’s use of any Technology is enjoined or threatened to be enjoined, MegaMeeting may, at its option and expense, to (i) obtain rights that will enable Reseller to continue to use the affected Technology for the purposes of producing and marketing, distributing, and selling the Services materially as contemplated by this Agreement; (ii) modify or replace the affected Technology to seek to make the Technology (as so modified or replaced) non-infringing while providing materially equivalent features and functionality; or (iii) by written notice to Reseller, terminate this Agreement and require Reseller to immediately cease all reproduction, use, marketing, distributing, licensing, and commercialization of Services.
5. THIS SECTION --- SETS FORTH RESELLER’S SOLE REMEDIES AND MEGAMEETING’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES OR TECHNOLOGY) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
Term and Termination.
1. This Agreement shall become effective on the Effective Date, and shall remain in effect for an initial period of one (1) year after the Effective Date, and shall be renewed for successive one (1) year terms, unless the Agreement is earlier terminated as provided in Section 11.2.
2. This Agreement may be terminated as follows:
  1. By either party, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured [thirty (30)] days after the non-breaching party provides the breaching party with written notice of such breach;
  2. By either party, effective immediately, if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
  3. By either party for its convenience and without cause, effective ninety (90) days after written notice from the terminating party.
3. Upon any expiration or termination of this Agreement:
  1. all Subscriptions granted to Reseller’s end users under this Agreement shall survive in accordance with their terms;
  2. Reseller shall immediately cease all conduct or representations that might lead the public or trade to believe that Reseller is authorized by MegaMeeting to sell or distribute the Services;
  3. all licenses granted to Reseller hereunder will expire or terminate;
  4. Reseller shall cease all use of the Technology, Marks and other MegaMeeting assets, and all copies thereof, including in any production, marketing, distribution, licensing, sale, maintenance, support or use of the Services;
  5. Reseller shall promptly: (A) return to MegaMeeting all documents and tangible materials containing, reflecting, incorporating, or based on the MegaMeeting’s Confidential Information; and (B) permanently erase the Confidential Information from its computer systems; and
  6. pay to MegaMeeting all fees due under this Agreement through the effective date of termination and provide a final report under Section 7.2.
4. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement, including Sections 1, 3, 5, 7.4, 8, 9, 10, 11, 12 and 13.
Confidentiality
1. During the term of this Agreement, Reseller may be provided with or have access to MegaMeeting Confidential Information. “Confidential Information” means any and all information related to MegMeeting’s business, the Services, or the Technology that would reasonably be considered confidential or proprietary in light of the nature of the information or circumstances of its disclosure.
2. All such Confidential Information remains the property of MegaMeeting. Reseller may disclose the Confidential Information only to its employees and contractors who need to know the Confidential Information for purposes of performing under this Agreement and who are bound by Reseller’s confidentiality and restricted use agreements that are no less restrictive than this Agreement. Reseller shall not use the Confidential Information without MegaMeeting’s prior written consent, except to perform Reseller’s obligations under this Agreement. Reseller will take measures to maintain the confidentiality and restrict use of the Confidential Information equivalent to those measures it uses to maintain the confidentiality of its own confidential information of like importance but in no event less than commercially reasonable measures. Reseller will give prompt notice to MegaMeeting of any unauthorized use or disclosure of the Confidential Information that comes to Reseller’s attention and agrees to assist MegaMeeting in remedying such unauthorized use or disclosure.
3. The confidentiality obligations do not extend to Confidential Information that Reseller can demonstrate (i) becomes part of the public domain without Reseller’s fault; (ii) is rightfully obtained by Reseller from a third party with the right to transfer such information without obligation of confidentiality; (iii) is independently developed by Reseller without reference to or use of MegaMeeting’s Confidential Information, as evidenced by written records; or (iv) was lawfully in Reseller’s possession at the time of disclosure, without restriction on disclosure, as evidenced by Reseller’s written records. In addition, Reseller may disclose MegaMeeting’s Confidential Information to the extent required by law, a court order, or a governmental agency with jurisdiction, provided that before making such a disclosure Reseller first notifies MegaMeeting promptly and in writing and cooperates with MegaMeeting, at MegaMeeting’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
4. Upon termination or expiration of this Agreement, Reseller will return to MegaMeeting all tangible copies of MegaMeeting’s Confidential Information in the Receiving Party’s possession or control which the Receiving Party no longer has the right to possess or use and will erase from its computer systems all electronic copies thereof.
Miscellaneous Provisions
1. Relationship of Parties. Reseller is an independent contractor of MegaMeeting and nothing in this Agreement shall be construed to constitute either party as a partner, joint venturer, co-owner, employee, or agent of the other party, and neither party shall hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both MegaMeeting and Reseller that each shall remain an independent contractor responsible for its own actions. Reseller agrees to indemnify and hold MegaMeeting harmless from and against any damage or expenses, including reasonable attorneys’ fees, arising out of Reseller’s breach of this Section --. Reseller acknowledges that it does not and will not offer or sell Products under a business or marketing plan or system prescribed by MegaMeeting and that Reseller sells Services at prices set solely by Reseller.
2. Governing Law. This Agreement will be construed in accordance with and governed by the laws of the California, United States of America, without giving effect to the conflict of law principles of California.
3. Successors and Assigns. Except as otherwise expressly provided in this Agreement, this Agreement will be binding on, and will inure to the benefit of, the successors and permitted assigns of the parties to this Agreement, provided that Reseller shall not assign its rights and obligations under this Agreement without MegaMeeting’s prior written consent. Nothing in this Agreement is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights or obligations under or by reason of this Agreement, except as expressly provided in this Agreement.
4. Notices. All notices and other communications required or permitted hereunder will be in writing and will be delivered by hand or sent by overnight courier, fax or e-mail to the parties at their respective addresses on the Order. Each party may furnish an address substituting for the address given above by giving notice to the other parties in the manner prescribed by this Section 13.4. All notices and other communications will be deemed to have been given upon actual receipt by (or tender to and rejection by) the intended recipient or any other person at the specified address of the intended recipient.
5. Severability. If any provision of this Agreement is held to be unenforceable under applicable law, this Agreement will continue in full force and effect will be enforceable in accordance with its terms; and the affected provision will be deemed modified to most closely express the parties’ intentions in a manner that is binding and enforceable.
6. Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time.
7. Entire Agreement. This Agreement embodies the entire agreement and understanding between the parties hereto with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations, negotiations and understandings (written or oral) other than this Agreement relating to the subject matter hereof.
8. Amendment; Waiver. This Agreement may be amended only by a written agreement executed by the parties hereto. No provision of this Agreement may be waived except by a written document executed by the party entitled to the benefits of the provision. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement. A waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver.
9. Counterparts. This Agreement may be in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one instrument. Reseller acknowledges that MegaMeeting uses a computer-based system to execute this Agreement and certain related documents, and that this Agreement and each such document executed by Reseller by means of an electronically-produced signature shall have the same legal effect as if such signature had been manually written and that this Agreement and each such document shall be deemed to have duly executed for the purposes of any statute or rule of law that requires such signature. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. ESIGN Act of 2000, e.g., www.docusign.com) or other execution and transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

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