CP Terms and Conditions
 
1.	DEFINITIONS
The following words and expressions shall have, unless incompatible with the context, the following meanings:
1.1.	“Applicable Anti-Corruptions Laws” shall have the meaning ascribed to it in Schedule A.
1.2.	 “Cloud Services” means software-as-a-service solution of Accedian as further described in the Ordering Documentation.
1.3.	“CP Frame Agreement” means the signed one-page agreement describing deal specific information.
1.4.	“Confidential Information” shall have the meaning ascribed to it in the NDA.
1.5.	 “Documentation” means all electronic or printed documentation and copies given to Channel Partner.
1.6.	“Due Date” is defined in the CP Frame Agreement.
1.7.	“End User” means the end user within the Territory that is not an affiliate of the Channel Partner that acquires the Product and/or Professional Services for its own internal use and not for resale, remarketing or further distribution.
1.8.	“Excluded Accounts” means an account within the Territory which Channel Partner may not solicit or take orders for Products and/or Professional Services.  The current Excluded Accounts as of the Effective Date are listed in the CP Frame Agreement.
1.9.	“Firmware” means any software program or code embedded in chips or other media.
1.10.	“Force Majeure” means an event beyond a Party’s reasonable control including acts of God or of a public enemy, acts of compliance with applicable law, epidemics, transportation or energy shortages, power failures, strike, lock-out or other labour dispute, riot or civil commotion sabotage, fire, flood, explosion, earthquake or acts of any government. 
1.11.	 “Guide” means the document, as it may be amended by Accedian, in its sole discretion, that defines the features of Accedian’s Channel Partner Program. 
1.12.	“Market Development Funds” or “MDF” is a financial and/or knowledge-based resource for eligible Channel Partners intended to support their marketing and sales activities in connection with Accedian. The MDF is governed by the terms set out in the Guide. 
1.13.	“NDA” is defined in the CP Frame Agreement.
1.14.	“Ordering Documentation” means the applicable price quotation, relevant invoice, SoW, SOA and Documentation or specifications for the Products and/or Professional Services purchased or licensed hereunder from Accedian either directly or indirectly.
1.15.	“Partner Portal” means the online portal where all documentation specific to the Channel Partner is available at https://mypartnerportal.accedian.com.
1.16.	“PO” means Channel Partner purchase orders. 
1.17.	“Public Official” means a person i) who holds a legislative, administrative or judicial position of a state; ii) who performs public duties or functions for a state, or is employed by a body or authority that is established to perform a duty or function on behalf of the state or is performing such a duty or function; and iii) who is an official or agent of a public organization formed by governments or public organizations.
1.18.	“Products” means either the hardware, software and/or Cloud Services such being those identified in the CP Frame Agreement or Ordering Documentation as the case may be. 
1.19.	“Product Terms” shall mean, with regards to any Product, the document that defines the terms and conditions under which Accedian agrees to license or otherwise make available such Product to End Users, made available at https://accedian.com/wp-content/uploads/2020/01/Minimum-TCS-for-Channel-Partners-End-Users.pdf, as such terms may be updated and superseded from time to time by Accedian at its entire discretion.
1.20.	“Professional Services” means those services relating to installation of Products, training and other services, but excluding maintenance and support. 
1.21.	“SOA” means a sales order acknowledgment issued by Accedian listing the Products, prices, delivery dates and other specific information for orders placed by Channel Partner.
1.22.	“Scheduled Ship Date” means the projected shipping dates established by Accedian.
1.23.	“SoW” means the statement of work that describes the Professional Services provided by Accedian to End User for a fee which includes, deliverables, delivery dates and fees.
1.24.	“Support Services, Warranties and RMA Document” means the documents describing the support services, warranties and hardware repair charges and RMA process made available by Accedian on the Partner Portal.
1.25.	“Taxes” means collectively any taxes, tariffs, duties and fees however designated, and any interest, fines and penalties.
1.26.	“Territory” means the geographic area listed in the CP Frame Agreement.
1.27.	“Term” is defined in Subsection 18.1.
1.28.	“Tier 2 Reseller” means a third party including a reseller, or a sub-distributor of Channel Partner authorized in writing by Accedian to resell the Products and Professional Services to End Users.  
1.29.	“Trademarks” means Accedian’s proprietary markings including brand name, business name, trade name, trade dress, domain names, service marks, trademarks, and logos, whether registered or not.
2.	RIGHT TO DISTRIBUTE AND RESELL
2.1.	Subject to Channel Partner’s payment of applicable fees and Channel Partner’s compliance with the other terms and conditions of this Agreement, Channel Partner is appointed as a non-exclusive reseller and granted the personal, non-exclusive and revocable rights to market, promote and resell the Products and Professional Services set forth on the Ordering Documentation only to End Users located in the Territory and/or Tier 2 Resellers (if authorized pursuant to Subsection 2.4). Channel Partner acknowledges that its appointment under the Agreement is non-exclusive, that it obtains no exclusive rights in any geographic area, commercial and/or governmental market segment and/or country for the Products, that it shall not resell Products outside of the Territory and that Accedian may appoint additional resellers, distributors, or other entities to, directly or indirectly, market, offer, license, sell and/or support the Products in the Territory or elsewhere without liability or obligation to the Channel Partner.

2.2.	Accedian agrees to sell to Channel Partner the Products and Professional Services solely for the purpose of resale to End User in the Territory. Channel Partner will actively and diligently promote the sale of the Products and Professional Services in the Territory. 

2.3.	Accedian grants to Channel Partner only the rights and licenses set out in the Agreement. No other licenses or rights are granted either directly, indirectly, by implication or otherwise. 

2.4.	Unless authorized in the CP Frame Agreement, Channel Partner is not entitled to market, promote and resell the Products and Professional Services to another reseller. If authorized to market, promote and resell to Tier 2 Resellers, Channel Partner shall be and remain responsible to Accedian and all third parties for the acts and omission of each Tier 2 Reseller. Each Tier 2 Reseller must agree in writing to be bound to provisions no less protective than those of this Agreement including, but not limited to Sections 12 and 15. 

2.5.	Channel Partner must provide Accedian with the name, address and contact for notice of all End Users and Tier 2 Resellers. Nothing in the Agreement shall be interpreted to prevent Accedian from communicating with each End User and/or Tier 2 Resellers.
2.6.	Channel Partner is responsible to pay for POs of Products and/or Professional Services accepted by Accedian regardless of any non-payment by any Tier 2 Resellers and/or End Users. 
2.7.	If Channel Partner is or becomes a Champion MSP, the terms and conditions of Schedule B apply.
3.	COMPETING PRODUCTS AND EXCLUDED ACCOUNTS
3.1.	Except with Accedian prior consent, Channel Partner shall not resell Products to any Accedian competitor nor engage with Excluded Accounts set forth in the CP Frame Agreement. Accedian reserve the right to modify the list upon notice.
4.	DISCOUNT, PRICE AND MDF
4.1.	The prices for the Products and Professional Services and applicable discounts shall be set forth in a price book provided to Channel Partner. Accedian reserves the right to modify the discounts in its sole discretion at any time. 
4.2.	Channel Partner is responsible for all expenses, costs and charges incurred by Channel Partner in its performance under the Agreement. 
4.3.	Accedian may change its prices, at its sole discretion, upon 60 days prior electronic notice to Channel Partner. Notwithstanding the above, no price change shall apply to a PO previously accepted by Accedian on or before the end of the 60-day period referred to above, provided the Scheduled Ship Date is within 120 days after the effective date of such price change. Accedian reserves the right to adjust the foreign exchange rate component of price list on a monthly basis which shall not be subject to the notification period. 
4.4.	Channel Partner may be eligible for MDF as set out in the Guide.  Accedian reserves the right to modify Channel Partner’s eligibility for MDF and funding level. 
5.	FORECAST, QUOTATION, POS AND ORDERING 
5.1.	Within the first 3 days of each 3-month period during the Term, Channel Partner will provide Accedian with a non-binding forecast of expected orders in the upcoming 12-month period.  
5.2.	Within 3 business days of receiving each PO sent at orders@accedian.com, Accedian will advise in writing of its acceptance or rejection of the PO, the Scheduled Ship Dates and shipping details.
5.3.	Accedian may, in its sole discretion, accept or reject any PO. Accedian may accept any PO by confirming the PO (whether by written confirmation, invoice, or otherwise) or by delivering the Products, whichever occurs first. Accedian’s failure to provide its acceptance or rejection within the 3-day period will not be deemed to be its acceptance of a PO. No PO is binding on Accedian unless accepted by Accedian as provided in this Agreement or in the Ordering Documentation.
5.4.	Accedian shall use commercially reasonable efforts to fulfill and ship orders within a reasonable delay. Accedian reserves the right to reschedule any shipment and modify the Scheduled Ship Dates accordingly.
5.5.	Any product road maps, or other documents or oral presentations of any kind concerning Accedian’s future product or service development plans, shall not constitute a binding commitment to provide any such new products, services, features or enhancements to Channel Partner on any specific timetable or at all. 
5.6.	Accedian, in its sole discretion, is entitled to modify the Products or the product list set out in the CP Frame Agreement at any time or discontinue the Products upon a 6-month notice , in each case, without obligation to modify or change any Products previously delivered or to supply new Products meeting earlier specifications. Accedian shall follow the End of Life Product Policy provided upon request.
6.	INVOICING & PAYMENT TERMS
6.1.	Accedian may issue Channel Partner credit subject to financial review and approval of credit application and requested supporting documentation. Channel Partner shall pay the amounts set out in each invoice either i) before the Products are shipped or ii) on the Due Date when credit has been issued.
6.2.	Unless specifically stated otherwise, all amounts are in US dollars ($USD).

6.3.	Channel Partner shall perform its obligations under the Agreement without setoff, deduction, recoupment or withholding of any kind for amounts owed or payable by Accedian, whether relating to Accedian or it's affiliates' breach, bankruptcy, or otherwise and whether under this Agreement, any PO, any other agreement between (i) Channel Partner or any of its affiliates and (ii) Accedian or any of its affiliates, or otherwise. 
6.4.	Accedian is entitled to charge to Channel Partner interest on any amount which remains unpaid on the Due Date of 1.5% per month or the maximum percentage allowed by law, whichever is lower. The interest will be calculated on a daily basis from the Due Date until the payment is received by Accedian.
6.5.	If any amount remains unpaid on the Due Date, Accedian is entitled, at its sole discretion, to suspend its performance under the Agreement, modify the Due Date on subsequent POs, decline subsequent POs or terminate the Agreement.
6.6.	Channel Partner will pay amounts equal to any Taxes resulting from this Agreement, exclusive of taxes based on Accedian’s net income levied by the relevant governments. This Subsection shall apply during and after the termination of this Agreement. 
6.7.	In the event that the Channel Partner is a non-resident of Canada and that withholding Taxes are applicable in its jurisdiction, upon providing to Accedian official receipts and other documents reasonably requested, Channel Partner will be entitled to withhold Taxes on income in accordance with applicable laws and will remit the same to the applicable government authority. Channel Partner will ensure that any Taxes withheld are minimized to the extent possible under applicable law. The withholding Taxes referred to in this Subsection apply to those required by the taxing authorities on payments to Accedian only and do not include any those suffered by Channel Partner for payments made to Channel Partner by its End Users. 
7.	RESCHEDULING OF ORDERS
7.1.	Channel Partner is entitled to reschedule the Scheduled Ship Date, once, for a maximum of 30 days, at no charge, but if the notice is received within the 1-week period preceding the Scheduled Ship Date then Accedian is entitled to charge a rescheduling fee, on a case by case basis, that will not exceed 10% of the value of the accepted PO. 
7.2.	Channel Partner is not entitled to reschedule any portion of an accepted PO during the 1-week period preceding the Scheduled Ship Date, without Accedian’s written consent.
8.	DELIVERY OF PRODUCTS 
8.1.	Accedian shall deliver Products “EXW Accedian”, as defined in the International Chamber of Commerce Terms of Trade (INCOTERMS 2010) document, from Accedian’s normal shipping facility indicated to Channel Partner. Absent specific shipping instructions from Channel Partner, Accedian may select a common carrier and/or freight forwarder carrier on its behalf, but shall not assume any cost, liability or tracking responsibilities in connection with the shipment hereunder. 
8.2.	Accedian will pack, label and ship the Products in accordance with its standards commercial practices and is entitled to charge additional fees for special packing or shipping instructions of the End User.
8.3.	Accedian assumes no liability for loss or damage due to shipping delays. 
8.4.	Accedian is entitled to make partial shipments and issue an invoice for each shipment as shipped. 
8.5.	Title and risk of loss passes to Channel Partner upon delivery of the Products in accordance with Section 8.1. As collateral security for the payment of the purchase price of the Products, Channel Partner hereby grants to Accedian a lien on and security interest in and to all of the right, title and interest of Channel Partner in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, as well as all proceeds (including insurance proceeds) of the foregoing. 
9.	ACCEPTANCE OF PRODUCTS AND RETURNS
9.1.	Products shipped to Channel Partner or distributor shall be deemed accepted by Channel Partner when the Products are placed at the disposal of the Channel Partner as per the terms of the EXW Incoterm. Channel Partner can notify Accedian that the Products do not comply in a material respect with Accedian’s published description (the “Notice of Rejection”) within 5 days from the date of receipt of the Products. 
9.2.	If Channel Partner provides the Notice of Rejection within the 5-day period, then it may elect to return such new Products, at its cost, for replacement or full credit by indicating the details of such failure(s) in writing. The provisions set out in the Support Services, Warranties and RMA Document shall apply. 
9.3.	Except as provided under Sections 8 and 9, all sales of Products to Channel Partner under this Agreement are made on a one-way basis and Channel Partner has no other right to return Products purchased under this Agreement. 
10.	PROFESSIONAL SERVICES
10.1.	Professional Services will be detailed in a SoW. The Channel Partner is responsible for making the End User accept the terms of the SoW.
11.	EVALUATION LICENSE
11.1.	Accedian may, to the extent expressly set forth in Ordering Documentation issued by Accedian, grant a license to evaluate the Products for a limited period of time. The Products may be used at no cost during the Evaluation Period. The Products can be activated using an evaluation license key (the “Evaluation Keys”). Channel Partner acknowledges that Evaluation Keys expire after 90 days for all Products, 15 days for Skylight sensor: control Products or any other period agreed to in writing by Accedian (the "Evaluation Period") and that Accedian is not obligated to permit further use of the Products. 
11.2.	During the Evaluation Period, the Product is provided to Channel Partner "as is" without warranty of any kind, whether express, implied, statutory, or otherwise. ACCEDIAN AND ITS LICENSORS BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE PRODUCT THROUGHOUT THE EVALUATION PERIOD.
11.3.	Accedian has no duty to provide support to Channel Partner during the Evaluation Period for the Product being evaluated.
12.	CONFIDENTIALITY 
12.1.	All Confidential Information shall be kept confidential pursuant to the terms and conditions of the NDA and shall not be used beyond the scope of this Agreement or disclosed to any third party without prior written consent from the disclosing Party.
12.2.	Notwithstanding anything to the contrary in the NDA, the obligations of the NDA will continue to be applicable for a period of 3 years after the date of termination of this Agreement.
12.3.	Accedian reserves ownership and all right, title and interest in and to any patents, copyrights, trade secrets, trademarks, trade names, service marks, Confidential Information and any intangible property or proprietary rights relating to Product or Professional Services or intangibles therein.
13.	TRADEMARKS AND MARKETING
13.1.	Accedian grants to Channel Partner a limited license to use its Trademarks solely to identify it as an authorized Channel Partner of Products in the Territory and to publish, display or distribute, product or application literature, advertisements or other marketing documents and files that have been developed and provided by Accedian. Channel Partner shall obtain approval from Accedian prior to issuing press releases or conducting other marketing activities that include Channel Partner-developed content about Accedian or Products. Channel Partner's use shall be in accordance with Accedian's policies regarding advertising and trademark usage.
13.2.	Upon request by Accedian, Channel Partner shall provide, at no cost, examples of its use of Trademarks and shall modify such use if requested. Should Accedian notify Channel Partner in writing that its use of the Trademarks does not conform to its standards set, Channel Partner shall immediately cease such use, bring it into conformance and provide Accedian with specimens of conforming use within 20 days of receipt of notice. 
13.3.	Channel Partner understands and agrees that its use of the Trademarks does not create any right, title or interest, in or to the use of the Trademarks and that all such use and goodwill associated with the Trademarks will inure to the benefit of Accedian. No title to or ownership of the intellectual property contained in the Products or any part of the Products or Accedian’s confidential information is transferred to Channel Partner. Channel Partner acknowledges that the Products as well as all enhancements, updates, modifications, local versions or any derivatives of the Products, and all intellectual property and proprietary rights therein shall remain Accedian’s property. Channel Partner shall not adopt nor attempt to register any trademark, trade name or service mark which is confusingly similar to the Trademarks to sell or assist in the sale of non-Accedian products. Only Accedian is entitled to register the Trademarks and similar trademarks in any class of Products or Professional Services. 
13.4.	Except if permitted pursuant to Schedule B, Channel Partner shall in no way remove, alter or obscure any trademark, copyright notices, markings, trade name or any other proprietary rights notices on the Product and may only use such marks in conjunction with its marketing and/or resale of the Products in accordance with Accedian’s then current guidelines on usage. In addition, in no way shall Channel Partner rename or rebrand the Product. 
14.	WARRANTIES AND SUPPORT SERVICES
14.1.	Warranties, support services and hardware repair charges and RMA process are described in the Support Services, Warranties and RMA Document. 
14.2.	Accedian is entitled, at any time and at its sole discretion to modify the fee for the support services, modify and/or discontinue some of the support services upon a 6-month notice.
15.	REPRESENTATIONS, WARRANTIES AND COVENANTS 
Channel Partner and Accedian, when applicable, hereby represent, warrant and undertake, as follows:
15.1.	COMPLIANCE
15.1.1.	Each Party has not taken and will not take any action, make any payments, gifts, offers, promises of payments or gifts of any kind, directly or indirectly, to any Public Official or to any person while knowing (or being aware of a probability) that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to any Public Officials or any other person, in violation of any Applicable Anti-Corruption Laws and that it will comply with all provisions of the Applicable Anti-Corruption Laws. 
15.1.2.	Each Party will promptly report to the other Party any request or demand for any undue financial or other advantage offered and/or received by it in connection with its performance of this Agreement and will ensure that any person associated with it does so only on the basis of a written contract imposing standards of compliance equal to this Subsection 15.1. 
15.1.3.	Each Party acknowledges that any act or omission related directly or indirectly to any of its obligations under this Agreement, which violates, or cause to be in violation of the Applicable Anti-Corruption Laws will cause irreparable harm to the other Party. If a Party commits or omits to act, is prosecuted for and/or convicted of committing or failing to commit such an act, then the other Party will be entitled to immediately terminate this Agreement without liability or obligation to and without prejudice to any of its other rights and recourses by providing the non-breaching Party with written notice.
15.1.4.	Channel Partner will not resell Products to any federal, state, local, or foreign government or political subdivision or agency thereof, without express written approval from Accedian.
15.1.5.	Channel Partner acknowledges having read, understood and agreed to the Anti-Corruption Acknowledgment set forth in Schedule A. 
15.2.	EXPORT
15.2.1.	Each Party will take any and all actions necessary to comply with all applicable export laws and regulations including those of the United States, Canada, the European Union countries or any other country in the Territory (the “Applicable Countries”). 
15.2.2.	Channel Partner's compliance includes i) obtaining all licenses required; ii) clearing the Products through local customs promptly upon their arrival in the Territory and; iii) paying all customs duties, clearance charges, taxes, brokers' fees and other amounts in connection with the importation and delivery of the Products and Professional Services.
15.2.3.	Despite any statements made by Channel Partner about the ultimate destination of the Products, Channel Partner warrants that it will not disclose, transfer electronically or otherwise export or re-export, directly or indirectly, into (or to a national or resident of) any country which is subject to an embargo, or any organization, company or individual listed on the applicable sanction lists. It is the responsibility of the Channel Partner to verify online if the Applicable Countries have placed an embargo on such other country.
15.2.4.	The Products will not be used for any purpose prohibited by the laws of the Applicable Countries, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons for mass destruction. 
15.2.5.	If at any time Accedian determines that the laws of any country outside of North America are insufficient to protect Accedian’s’ Intellectual Property, Accedian reserves the right to restrict or terminate Channel Partner’s rights to market, promote resell, use and distribute the Products within that country. 
15.2.6.	At the request of Accedian, Channel Partner shall obtain a statement from End User certifying export compliance when the End User is located in a higher export risk territory.

15.3.	Channel Partner warrants that it has the necessary qualifications to perform its obligations under the Agreement. Channel Partner will maintain a sales and support organization that has the ability to perform under the Agreement. Channel Partner warrants that its employees have the ability, experience and necessary qualifications and shall assume full responsibility for their acts and omissions.
15.4.	Channel Partner will conduct its business and perform under the Agreement in a way that will not damage the interests, good name, reputation and goodwill of Accedian, including the Trademarks. 
15.5.	Channel Partner will comply with and not violate all applicable laws, rules, ordinances, regulations and orders of the Territory, Channel Partner's domicile, Canada, the US or any other jurisdiction applicable to the operation of its business, and this Agreement and its performance hereunder. Without limiting the generality of the foregoing, Channel Partner shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
15.6.	All personal data that either Party receives, collects or otherwise processes as part of its obligations under the Agreement shall be treated by such Party in accordance to its privacy policy and the applicable privacy and data protection laws. Each Party shall only process such personal data to the extent necessary to fulfill its obligations under the Agreement and the Product Terms. To enable Accedian to comply with the above, Channel Partner shall be responsible for obtaining all relevant consents and approvals from End Users, as well as for making all required disclosed under the applicable privacy and data protection laws, prior to transferring personal data to Accedian or enabling Accedian to collect, store, use, disclose or otherwise process the same from the End Users
15.7.	Unless specifically permitted in writing by Accedian’s VP HR or VP Legal, Channel Partner will not i) directly or indirectly, induce, or attempt to induce any member of Accedian’s personnel to end their relationship with Accedian or ii) hire any employee of Accedian during the Term and for a period 6 months after the last effective date of the Agreement. This shall not apply to Accedian's employees i) designated as available for hire; ii) responding to advertisements made at job fairs or in media circulated to the general public at large; or iii) that are no longer employees, agents, or representatives of Accedian. 
15.8.	Channel Partner will not make any representations or warranties concerning quality, performance or other characteristics of the Products other than those representations or warranties that are consistent in all material respects with, and do not expand the scope of, the ones, if any, set out in the Support Services, Warranties and RMA Document.
15.9.	Channel Partner is responsible for ensuring that its resale of the Products and Professional Services, within the European Union, complies with Directive 2002/96/CE, Waste of Electrical and Electronic Equipment (“WEEE”) including WEEE registration of Product and collection of waste from End Users or directing to an authorized recycling center. 
15.10.	Channel Partner shall maintain a certified ISO 9001 Quality Management System (QMS), and also an Information Security Management System (ISMS) compliant to the intent of ISO 27001, and any other quality and information security management programs with similar procedure/processes in place to protect customer information, Accedian Intellectual Property and Trademarks.
15.11.	Channel Partner shall, within seven days from the end of each quarter comprised within the Term, provide (at orders@accedian.com) a sales report indicating: i) name of End Users to whom Channel Partner and/or Tier 2 Reseller has sold Products during the quarter; ii) shipping address; iii) brief description, quantity and serial number of the Products sold to them during the month; and iv) effective date of the sale transactions.
15.12.	Channel Partner will comply with the Guide.
15.13.	Channel Partner shall, at its own expense, provide and maintain in effect insurance policies and suitable limits of coverage with reputable insurance companies authorized to do business in the Territory, or as otherwise acceptable to Accedian, including coverage for commercial general liability. 
15.14.	Channel Partner acknowledges and agrees that access and use of each Product is subject to the terms and conditions of the relevant Product Terms. Channel Partner shall flow through the Products Terms into its agreements with the End Users. Furthermore, Channel Partner acknowledges and agrees that Accedian may at any time suspend and/or terminate the rights and licenses granted to any End User under the Product Terms if Accedian determines, at its discretion, that such End User accesses or uses any Product in violation of the applicable Product Terms or the law. Accedian shall give Channel Partner a written notice to that effect. 
15.15.	Channel Partner and any other person acting on its behalf shall not attempt to alter, modify, adapt, decompile, disassemble, decrypt or perform any reverse engineering of the Products. Except as expressly permitted, Channel Partner further agrees not to duplicate the Products or any part thereof.  
15.16.	Channel Partner will be expected to use commercially reasonable efforts to procure a renewal order. If the Channel Partner fails to do so prior to the expiration date, Accedian reserves the right to share the End User’s details to another reseller for order fulfilment or to fulfil the renewal directly.
16.	INDEMNIFICATION 
16.1.	Channel Partner will indemnify and hold harmless Accedian, its directors, shareholders, employees and representatives (the “Indemnified Parties”) against any claim, suit or proceeding brought against the Indemnified Parties related to (i) each breach or violation of any law, rule or regulation of any jurisdiction applicable to Channel Partner's obligations and undertakings under the Agreement; (ii) Channel Partner’s or End User’s use of the Products in any manner other than as permitted under the Agreement; (iii) Channel Partner’s use of Trademarks in any manner other than as permitted under the Agreement; (iv) Channel Partner’s marketing, promotion or sale of the Products in any manner other than as permitted under the Agreement; or (v) any failure by Channel Partner to flow through the Product Terms into the End User agreements.  
16.2.	Accedian will defend or, at its option, settle any claim, action or proceeding brought against Channel Partner by an independent third party, alleging that the Products infringe a valid patent, copyright, or trademark of such third party (“IPR Claim”), and Accedian will pay the (a) infringement claim defense costs; and (b) court-awarded damages and settlement amounts under a settlement approved by Accedian in writing, as a result of such IPR Claim, provided that Channel Partner promptly gives Accedian written notice of such IPR Claim, gives Accedian sole control of the defense or settlement of the IPR Claim (provided that Channel Partner shall first approve a settlement in writing, which approval must not be unreasonably withheld) and provides Accedian with all reasonable assistance at Accedian’s expense. Channel Partner shall not settle any such IPR Claim without the prior written consent of Accedian. 
16.3.	If an IPR Claim is made or appears likely, Accedian may, at its sole option: i) modify the Product to make it non-infringing without substantially compromising its principal functions, ii) replace it with a non-infringing functional equivalent, in which case Channel Partner shall promptly stop using the allegedly infringing item immediately, iii) acquire for Channel Partner the right of continued use as permitted under the Agreement, or (iv) terminate the Agreement upon written notice to Channel Partner. 
16.4.	Channel Partner is entitled, at its own expense, to engage separate counsel and participate in the defense of the IPR Claim to assist Accedian. 
16.5.	Despite any other provision in this Agreement, Accedian will not be liable for any IPR Claim arising out of i) any information, design, specification, instruction, data or material furnished by Channel Partner or End User and incorporated upon request; ii) the use or resale of an older or altered release of a Product if the infringement could have been avoided by a more current release; iii) the use or resale of Product with any third party product or service including Channel Partner's or End User’s; or iv) any modification to a Product not made by Accedian. 
17.	LIMITATION OF LIABILITY
17.1.	ACCEDIAN WILL NOT BE LIABLE FOR ANY CLAIMS, WARRANTIES OR REPRESENTATIONS MADE BY CHANNEL PARTNER THAT ARE NOT SET OUT IN THE PRODUCT TERMS. 
17.2.	IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY AND/OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LITIGATION COST, LOSS OF DATA, PRODUCTION OR PROFIT ARISING FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER OR NOT THE DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. 
17.3.	EXCEPT FOR FEES OWED TO ACCEDIAN UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE VALUE OF PRODUCTS PURCHASED BY CHANNEL PARTNER DURING THE 12 MONTH PERIOD PRECEDING THE CLAIM FOR DAMAGES. 
17.4.	THIS SECTION 17 SETS OUT ACCEDIAN ENTIRE LIABILITY AND OBLIGATION AS AN INDEMNIFYING PARTY AND CHANNEL PARTNER'S SOLE REMEDY AS AN INDEMNIFIED PARTY FOR ANY CLAIM FOR WHICH AN INDEMNITY MIGHT BE SOUGHT UNDER THIS AGREEMENT.
18.	TERM AND TERMINATION 
18.1.	The term of this Agreement shall begin on the Effective Date for a one-year period and automatically renew for successive terms of one year unless terminated earlier in accordance herewith (“Term”). 
18.2.	The Parties may terminate the Agreement sooner as follows:
18.2.1.	For convenience at any time by either Party and such termination effective pursuant to a 60-day prior written notice. 
18.2.2.	In the event of termination pursuant to Subsection 18.2.1, Accedian shall accept orders for a period of 30 days commencing on the termination date, if they are from Channel Partner’s opportunities list provided to Accedian no later than 15 days prior. Channel Partner shall pay the license fees for the entire duration of the subscription period set forth in the Ordering Documentation of either Channel Partner and/or End User.
18.2.3.	This Agreement may also be terminated by either Party in the event of the other Party’s material breach of this Agreement if such failure is not cured within 30 days after receipt of written notice from the non-breaching party.
18.2.4.	 Either Party may immediately terminate this Agreement by notice to the other Party if the other Party (a) becomes subject to a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, (b) becomes subject to an involuntary petition regarding the foregoing that is not dismissed within 60 days after filing, (c) declares or admits publicly and in writing that it is insolvent or is unable to meets its debts as they mature, or (d) makes an assignment for the benefit of all or substantially all of its creditors.

18.3.	Upon termination of this Agreement:
18.3.1.	Channel Partner's appointment pursuant to Section 2 shall immediately terminate.
18.3.2.	Channel Partner shall immediately cease using the Accedian trade name and Trademarks and discontinue all representations that it is an authorized Accedian Channel Partner.
18.4.	Accedian's acceptance of any order after the expiration or termination of this Agreement shall not be construed as a renewal or extension of this Agreement, or as a waiver of the right to terminate, or of any other matter or right. Accedian shall have the right to deal with, and solicit orders from, both directly and indirectly, any and all persons and entities who dealt with or placed orders through Channel Partner, without any liability of any kind, except as expressly provided herein.

18.5.	Notwithstanding any such termination, the Sections which by their nature shall survive the termination of the Agreement will survive its termination, including without limitation Section 1, 12, 13, 16, 17, 18 and 19.

19.	GENERAL PROVISIONS
19.1.	Channel Partner shall maintain all documentation necessary to demonstrate compliance by it of its obligations under this Agreement. This documentation shall be retained for a minimum of 6 years. During the Term of this Agreement and for 6 years following termination or expiration of this Agreement, Channel Partner shall allow Accedian and/or its agents to have full access, at all reasonable times and upon reasonable prior notice, to such documentation necessary to demonstrate compliance by Channel Partner of its obligations under this Agreement and to make copies of, or extracts from, such documentation. 

19.2.	Unless otherwise set out in the Agreement, all notices, including notifications, required under the Agreement shall be in writing and shall be deemed given if delivered personally, if sent by certified mail, postage prepaid, return receipt requested, or if sent by email to the email address set forth in the CP Frame Agreement (provided there is evidence that the email has been received), in any case to the contact identified in the CP Frame Agreement or such other contact as may be specified in a written notice delivered in accordance with this Subsection 19.3.

19.3.	Accedian is a third-party beneficiary of the agreements between the Channel Partner and i) the End Users and ii) the Tier 2 Resellers, if any.

19.4.	The Parties are independent contractors doing business under their respective names and not the name of the other Party. Nothing in the Agreement is intended, or will be interpreted, to establish any partnership, joint venture or fiduciary obligations between the Parties.  

19.5.	Channel Partner will not represent itself as Accedian’s agent for any purpose. Except as permitted in the Agreement, neither Party is authorized to make any commitments for or on behalf of the other Party.

19.6.	This Agreement constitutes the full understanding and entire agreement between the Parties and supersedes any and all prior oral and written representations, statements, understanding and agreement. This Agreement may only be amended or changed by a written instrument signed by both Parties.

19.7.	This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument.

19.8.	If any provision of this Agreement is held to be invalid under any applicable law, such provision shall, to the extent of such invalidity, be deemed to be omitted from this Agreement, and all other provisions of this Agreement shall continue in full force and effect.

19.9.	Any failure by either Party to enforce strict performance by the other Party of any provision herein shall not constitute a waiver of the right to subsequently enforce such provision or any other of this Agreement.

19.10.	Neither Party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by Force Majeure without the fault or negligence of the delayed or nonconforming Party or its subcontractors. When a Party’s delay or nonperformance as a result of such Force Majeure continues for a period of at least 60 days, the other party may immediately terminate, at no charge or liability to the other, this Agreement and/or any outstanding PO.

19.11.	The Agreement, or any of Channel Partner’s rights or obligations under the Agreement, shall not be assigned or transferred, by operation of law, merger or otherwise, without Accedian’s prior written consent. Any purported assignment by Channel Partner without Accedian’s written consent will be without effect. Accedian is entitled to assign the Agreement or any of its right or obligations under the Agreement without the Channel Partner’s consent. This Agreement shall inure to the benefit of, and be binding upon the Parties hereto and their successors and permitted assigns. Notwithstanding the prior statement, Channel Partner may assign this Agreement to one of its affiliates, provided Channel Partner remains solidarily liable for all obligations hereunder.

19.12.	This Agreement is in the English language only, which language shall be controlling in all respects. No translation, if any, of this Agreement into any other language shall be of any force or effect in the interpretation of this Agreement or in a determination of the intent of either of the Parties hereto. Les Parties aux présentes reconnaissent avoir expressément demandées que la présente convention ainsi que tout avis et tous autres documents envisagés par les présentes ou y ayant trait qui seront signés relativement aux présentes soient rédigés en anglais.

19.13.	This Agreement shall be governed by, and construed in accordance with, the applicable laws of the State of New York without reference to the conflict of laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. Each of the Parties hereby waives its rights to a jury trial for any claim or cause of action based upon or arising hereunder.

19.14.	Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, in any forum other than the courts located in New York, New York, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the courts located in New York, New York. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 
Schedule A
Anti-corruption acknowledgment

The Channel Partner Agreement contains provisions which obligate our third-party representatives to ensure compliance with the requirements of applicable anti-corruption legislations. Accedian includes this language because Accedian Networks Inc. and its subsidiaries (collectively “Accedian”), are or may be subject to the Criminal Code (Canada), the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act (USA) and numerous other anti-corruption legislations enacted by various countries that have or may claim jurisdiction over Channel Partner’s respective organization or the representation, distribution, resell or sale of our products and services in your territory or elsewhere (the “Applicable Anti-Corruption Laws”). 

In particular and as Channel Partner may already be aware, both the Applicable Anti-Corruption Laws (whether in present form or as amended in the future and whether in force in the Territory or elsewhere) make it a criminal offense for Accedian, its subsidiaries, officers, directors, employees or anyone representing Accedian or its subsidiaries (including you or your employees) to receive, request, offer, pay or give any payment or thing of value to any private or public individual or company, government official, political party, official of a political party or candidate (or to an intermediary for payment to any of the foregoing), for the purpose of improperly influencing any act or decision designed to obtain, retain or direct business to Accedian.

To ensure compliance with Applicable Anti-Corruption Laws, Channel Partner shall promptly provide, upon request of the Accedian, sufficient assurance in writing that it complies with any such requirements and regulation.

Channel Partner affirms that neither it, nor any member of its personnel, is a Public Official. If during the Term of the Agreement, a Public Official acquires an interest in Channel Partner or this Agreement, it will immediately report such acquisition to Accedian. Channel Partner has never been convicted, investigated (to its knowledge) or prosecuted for committing an act of bribery to any Public Official.

If, at any time during the business relationship, Channel Partner has reasons to know of any activities in connection with its relationship with Accedian which may constitute a violation of any Applicable Anti-Corruption Laws or if Channel Partner has reasons to believe that the affirmations above are no longer true or, if requested to complete a due diligence questionnaire, any of Channel Partners answers to the application form are no longer complete or accurate, Accedian request Channel Partner to immediately advise our legal department at the Accedian contact notice provided in the CP Frame Agreement.

Because the anti-corruption legislations are criminal statutes and the penalties which may be imposed upon Accedian, its subsidiaries and our personnel are severe, Accedian takes these obligations under these legislations very seriously and request that Channel Partner also considers this matter very carefully and deliberately. 

Channel Partner must read Accedian’s Code of Business Conduct and Ethics made available at https://accedian.com/Code-of-Conduct. Signing the Agreement constitutes receipt, understanding and agreement with the terms set forth herein and in our Code of Business Conduct and Ethics. If Channel Partner is already in compliance with RBA Code of Conduct available at http://www.responsiblebusiness.org/standards/code-of-conduct/, Accedian will accept that as well. 
Schedule B – Terms applicable to Managed Service Providers
Channel Partner desires to market, resell and support the Products and/or to integrate and combine the Products with Channel Partner’s products and services and to resell the Products directly to Channel Partner’s own End Users or indirectly to end user customers of Tier 2 Resellers (as permitted pursuant to Section 2.4), in all cases, within the Territory in the ordinary course of business. Accedian desires to appoint Channel Partner as a non-exclusive authorized Channel Partner in the Territory pursuant to the terms and conditions of this Schedule B.
1.	APPOINTMENT
Section 2.1 is replaced as follows:
2.1 Subject to Channel Partner payment of applicable fees and Channel Partner’s compliance with the other terms and conditions of this Agreement, Accedian hereby appoints Channel Partner and Channel Partner accepts such appointment as Accedian’s non-exclusive, independent Channel Partner for the resale and/or the integration and combination the Products with Channel Partner’s products and services of only those Products set forth on the Ordering Documentation in the Territory to End Users and to Tier 2 Resellers (as permitted pursuant to Section 2.4) for resale to such Tier 2 Resellers’ end user customers. Channel Partner acknowledges that its appointment under this Agreement is non-exclusive, that it obtains no exclusive rights in any geographic area, commercial and/or governmental market segment and/or country for the Products, that it shall not resell Products outside of the Territory and that Accedian may appoint additional resellers, distributors, or other entities to, directly or indirectly, market, offer, license, sell and/or support the Products in the Territory or elsewhere without liability or obligation to the Channel Partner.
Sections 2.7 and 2.8 are added as follows:
2.7 License Grant. Subject to Channel Partner and its Tier 2 Resellers compliance with the terms of this Agreement, Accedian grants to Channel Partner and its Tier 2 Resellers, a non-exclusive, non-transferable (a) license to use the Products according to the Product Terms (i) for Channel Partner’s internal use (ii) in connection with the provision of Channel Partner’s managed service offers to End Users; (b) right to resell the Products to End Users solely for End Users use for internal business purposes; and (c) right to (i) market the Products to End Users, (ii) demonstrate the Products to End Users, and (iii) service and support End Users. Apart from the rights explicitly granted in this Section 2.7 and in the Product Terms, Channel Partner shall have no other right, title, interest ownership or license rights, express or implied, in the Products.
2.8 Restrictions on Use. Except with the express written consent from Accedian, Channel Partner agrees that Channel Partner shall not, and shall not permit any third party, to (i) modify, adapt, alter, translate, or create derivative works from the Products or the documentation related thereto; (ii) allow End Users to resell, export, sell, provide for service bureau use, lease, rent, loan, or otherwise transfer the Products or the documentation to any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Products; (iv) remove or alter any copyright notices or other notices included in the Products; or (v) otherwise use or copy the Products except as expressly permitted. Without the limiting the foregoing, the restrictions on use of the Products set forth in this Section shall apply to any Products supplied to Accedian by its suppliers.
2.	REPRESENTATIONS, WARRANTIES AND COVENANTS 
Section 15.14 is replaced as follow:
15.14 Channel Partner’s appointment as a Channel Partner and the licenses granted to Channel Partner hereunder are conditioned upon: (i) Channel Partner entering into a binding agreement with each Tier 2 Resellers with terms consistent with this Agreement to the extent that a Tier 2 Reseller is involved and (ii) Channel Partner entering into a binding agreement with each End User and causing each Tier 2 Reseller to enter into a binding agreement with their end user customers with terms consistent with this Agreement and containing terms and conditions substantially in conformity with but no less favorable then those set forth in Product Terms. Furthermore, Channel Partner acknowledges and agrees that Accedian may at any time suspend and/or terminate the rights and licenses granted to any End User under the Product Terms if Accedian determines, at its discretion, that such End User accesses or uses any Product in violation of the applicable Product Terms or the law. Accedian shall give Channel Partner a written notice to that effect.  
Sections 15.17 is added as follows:
15.17 Pursuant to a SoW to be entered into between the Parties outlining the details on a project to project basis, Accedian will allow Channel Partner to private label or brand the Products with Channel Partner’s name or logo for the purposes of resale and allow the Channel Partner to private label or brand the service with the name or logo of their partners for the purposes of resale, subject to guidelines established by Accedian from time to time. Channel Partner will not make, and shall ensure that its Tier 2 Resellers shall not make, any claim, representation or warranty regarding the Products or any software or other technology incorporated therein, other than those claims, representations and warranties set forth in the Product Terms and other Accedian’s printed documentation and marketing materials provided to Channel Partner by Accedian.