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THIS B2B AGREEMENT (this “Agreement”) is entered into by and between Hak5, LLC, located at 548 Market Street, STE 39371, San Francisco, CA, 94104, USA (“VENDOR”), and the entity applying for B2B relations, herein referred to as “COMPANY”. The “COMPANY” is as identified by the legal corporate name, country of incorporation, and head office address provided in the B2B Application Form accompanying this Agreement.
1. Appointment and Acceptance
1.1 VENDOR hereby appoints COMPANY to purchase and resell the Products in the Territory at the Web presence. COMPANY accepts this appointment on the terms and conditions set forth herein and obligates itself to the requirements of this Agreement.
1.2 The term "Products" shall mean the VENDOR products listed on https://shop.hak5.org. VENDOR reserves the right to delete discontinued Products upon thirty (30) days prior written notice to COMPANY. New or additional Products developed by VENDOR during the term of this Agreement shall be included on https://shop.hak5.org.
1.3 The term "Territory" shall mean the geographic area defined on https://shop.hak5.org/pages/compliance#availability attached hereto. COMPANY shall not, without the express written authorization of VENDOR (i) reexport the Products from the Territory, or (ii) sell, service or promote the Products from a location outside of the Territory. VENDOR products and technology may only be sold to entities and individuals located in BIS recognized license exception ENC favorable treatment countries pursuant to US 15 CFR Supplement No 3 to Part 740.
1.4 The term "Web presence" shall mean the Internet domain names defined on B2B Application from https://shop.hak5.org/pages/b2b-application. COMPANY shall not, without the express written authorization of VENDOR sell, service or promote the Products from a location outside of the Web presence.
1.5 COMPANY shall not appoint any subdistributors, subrepresentatives or subagents to sell or otherwise promote the sale of the Products without the express written consent of VENDOR. Whereabouts will need written approval by VENDOR.
2. Company's Representations
In order to induce VENDOR to enter into this agreement, COMPANY, and its undersigned officer, warrant and represent that:
2.1 COMPANY is a corporate entity duly organized and in good standing, and will remain in compliance with all applicable laws in the Territory.
2.2 COMPANY was not created primarily to enter into this Agreement or to handle the Products, and its business is not exclusively or principally devoted to the purchase and resale of the Products.
2.3 COMPANY is and will remain an independent contractor with respect to its relationship with VENDOR. COMPANY agrees that VENDOR has granted it no authority to make changes to VENDOR's terms and conditions of sale, to extend VENDOR warranties or, in general, to enter into contracts or make quotations on behalf of or to bind VENDOR in any transactions with COMPANY's customers or any governmental agencies or third parties. No relationship of employment shall arise between VENDOR and COMPANY, or between VENDOR or any employee or representative of COMPANY. COMPANY is at all times acting for its own account, and at its own expense.
3. Term
3.1 Term of Agreement: This agreement shall remain in effect indefinitely from the date of agreement acceptance by VENDOR, until either party (VENDOR or COMPANY) provides written notice to the other party of its intention to terminate the agreement. This right to terminate is subject to the provisions of Section 12 below.
4. Purchases
4.1. Orders must be submitted to VENDOR in US Dollars via https://shop.hak5.org. All Orders must be paid in US Dollars.
4.2 Upon acceptance of Order by VENDOR, COMPANY will be required to make a payment to VENDOR in the order of 100% of the total Invoice.
4.3 Shipping fees will be assessed at the time of Order acceptance and applied to Invoice. COMPANY is responsible for all fees including shipping, VAT, duty, taxes, import fees, brokerage and any other fees assessed
4.4 VENDOR is not responsible for differences in currencies due to fluctuating exchange rates.
4.5. Any orders issued by COMPANY are subject to acceptance by VENDOR and will not be deemed accepted until a written confirmation has been dispatched by VENDOR.
5. Prices and Terms
5.1. The Product prices quoted are exclusive of any national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees which shall be the responsibility of COMPANY. In the event that VENDOR is required to pay any such taxes, duties or fees, such items will be added to the invoice to be paid by COMPANY.
5.2 VENDOR may adjust the prices of the Products from time to time upon reasonable prior written notice to COMPANY.
6. Vendor Obligations
VENDOR will, during the term of this Agreement:
6.1 Furnish COMPANY, without charge, a media kit containing Product literature, photographs, operating manuals, advertising and sales material in English language.
6.2 Invoice COMPANY for each Product sold on the day it is shipped or in accordance with the terms of the accepted order;
7. Company Obligations
In order to induce VENDOR to enter into this Agreement, and as a condition of its continuation in force, COMPANY agrees that it will:
7.1 Actively use its best efforts to promote and penetrate the market for VENDOR Products in the Territory;
7.2 Maintain adequate premises and facilities within the Territory, at its own expense, from which to sell and/or service the Products;
7.3 Promote the Products in trade shows, open houses, or exhibitions, including mailing of promotional literature to prospective customers;
7.4 Supply copies of end-user pricing documentation covering Product procurement as may be requested by the VENDOR from time to time;
7.5 Aggressively market the price/performance qualities of the Products and consult with VENDOR prior to quoting prices above the resale price guidelines suggested by VENDOR;
7.6 Promptly submit its written orders to VENDOR to facilitate reasonable delivery times and scheduling of production;
7.7 Use only provided marketing literature and photos or marketing literature and photos approved by VENDOR. Use only the information, graphics and photos from https://shop.hak5.org. This copy is provided in order to best represent the ideals of the Hak5 brand. For any variation in this material - VENDOR must first obtain approval from shop@hak5.org.
Please reference these example guidelines for approved and unapproved marketing language:
Approved: "The WiFi Pineapple may be used to audit credentials from unsecure websites"
Unapproved: "You can use the WiFi Pineapple to steal social media passwords"
Approved: "The USB Rubber Ducky may be used for data exfiltration on authorized pentests"
Unapproved: "You can use the USB Rubber Ducky to steal personal files".
7.8 The only web sales of the Products will be done through the approved Web presence defined on the B2B Application at https://shop.hak5.org/pages/b2b-application. VENDOR may not resell products on 3rd party marketplaces such as Amazon, eBay, AliExpress, or the like.
7.9 Display the text "Hak5 Authorized Reseller", "Certified Hak5 Dealer" or "Approved Hak5 Retail Partner" with a hyperlink to https://shop.hak5.org at the Web presence.
8. Delivery/Title/Risk of Loss
8.1 Title and risk of loss to the Products shall pass to COMPANY when VENDOR gives possession to COMPANY or its agent on board ship at the port of shipment. All sales are on an CPT basis subject to the rules of ICC Intercoms® 2010 CPT (https://iccwbo.org/news-publications/icc-rules-guidelines/incoterms-rules-2010/). The International Chamber of Commerce states that “Carriage Paid To” means that the seller delivers the goods to the carrier or another person nominated by the seller at an agreed place (if any such place is agreed between parties) and that the seller must contract for and pay the costs of carriage necessary to bring the goods to the named place of destination.
Further, the risk of loss of or damage to the goods, as well as any additional costs due to events occurring after the time the goods have been delivered to the carrier is transferred from the seller to the buyer when the goods have been delivered into the custody of the carrier.
See page 12 of the full INTERCOMS 2010 ICC Official Rules (https://drive.google.com/file/d/1c308sNAcoHuilsHRNBhhODSsLms2bl2i/view) for the Interpretation of Trade Terms for a complete CPT definition.
8.2 All Products ordered pursuant to accepted orders will be scheduled for delivery in accordance with the VENDOR's then current and normal delivery times. VENDOR shall not be responsible for failure to deliver or comply with any provision of this Agreement if such nonperformance is due to causes beyond its reasonable control such as, but not limited to, acts of God, fire or explosions, inability to timely procure parts and components from its suppliers or subcontractors, civil and labor disturbances or delays in transportation.
8.3 Fraud
VENDOR is not responsible for losses incurred by COMPANY due to fraudulent or missing or lost orders that occur during sales from COMPANY to Customer. COMPANY will make every effort to prevent fraud and losses.
9 Product Warranty
9.1 Damages
VENDOR takes precautions to assure your order will arrive promptly and safely, but, if the merchandise COMPANY receives has been lost, damaged, or broken during shipment, contact shop@hak5.org within ten (10) days of receipt of order. VENDOR will promptly assist in the process of filing a claim with the insurance provider, which will facilitate Product replacement. All claims must be filed within ten (10) days.
9.2 Warranty
COMPANY is responsible for providing a warranty for customers of COMPANY. VENDOR warranties defects in material or workmanship of new Products. If a Product sold by COMPANY is found to be defective within one (1) year from the date of original purchase from COMPANY, COMPANY may make a warranty claim with VENDOR.
9.3 Claims
VENDOR will provide a credit to COMPANY for any Products deemed defective upon inspection by VENDOR at VENDOR facility. COMPANY is responsible for any fees incurred in shipping defective products to VENDOR for inspection. The credit may be applied as a refund by Credit Card or applied as a discount of the equivalent value on the COMPANYS next order. Customers of COMPANY are solely their own and as such COMPANY must warranty Products. VENDOR is not responsible for warranty claims made by Customers of COMPANY.
9.4 THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). REPAIR OR REPLACEMENT IN THE MANNER PROVIDED ABOVE SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF PURCHASER FOR BREACH OF WARRANTY AND SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF VENDOR WITH RESPECT TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS.
9.5 VENDOR shall not be liable to COMPANY or to COMPANY’s customer (including negligence and strict liability), for loss or damage to property of COMPANY, customer or other parties, loss of use, loss of revenues or profits, or for any special indirect, incidental or consequential damage whatsoever.
10. Vendor's Confidential Information and Rights
10.1 COMPANY acknowledges that it will acquire information and materials from VENDOR and knowledge about the pricing, technology, business, organization, products, strategies, customers, and suppliers of VENDOR and that all such knowledge, information and materials acquired and the existence, terms and conditions of this Agreement are and will be trade secrets and confidential and proprietary information of VENDOR (collectively "Confidential Information"), whether owned by VENDOR or licensed by VENDOR from third parties, are subject to a valuable proprietary interest of VENDOR, and that the COMPANY is under an obligation to maintain the secrecy of such Confidential Information. Without limiting the generality of the foregoing obligations, COMPANY agrees that for the term of this Agreement and thereafter until such time as the Confidential Information is in the public domain, COMPANY will (i) not disclose, publish or disseminate any Confidential Information to any third party written the prior written approval of VENDOR except to its employees with a “need to know” who have executed an agreement with COMPANY to comply the nondisclosure and nonuse obligations of this Section 11., (ii) not use any Confidential Information for any other purpose other than to perform the obligations of this Agreement, , and (iii) treat all Confidential Information in a secret manner, including placing appropriate restricted marking and legends on the Confidential Information and maintain such written information in a secure storage facility. .
10.2 During the term of this Agreement, COMPANY is authorized to use VENDOR trademarks for the Products in connection with COMPANY's advertisement, promotion and distribution of the Products in the Territory. COMPANY acknowledges that VENDOR owns and retains all trademarks, copyrights and other proprietary rights in the Products, and agrees that it will not at any time during or after the termination of this Agreement seek to register any trademark, trade name, copyright or other proprietary right or assert or claim any interest in or take any action which may adversely affect the validity or enforceability of any trademark, trade name, trade secret, or copyright belonging to or licensed to VENDOR.
10.3 COMPANY agrees to use reasonable efforts to protect VENDOR's proprietary rights and to cooperate in VENDOR's efforts to protect its proprietary rights. COMPANY agrees to notify VENDOR of any known or suspected breach of VENDOR's proprietary rights and to cooperate with VENDOR without making any charge therefore in any action by VENDOR to investigate or remedy an infringement of such rights.
10.4 Neither COMPANY nor its employees and agents, will, without VENDOR's prior consent, alter any of the Products or remove, alter, obliterate or mar any notice or legend of VENDOR's copyrights, trademarks or trade secrets.
11. Infringement Indemnification
11.1 VENDOR shall defend any claim, suit or proceeding brought against the COMPANY so far as it is based on a claim that the use or transfer of any Products delivered hereunder constitutes an infringement of a patent, trademark or copyright registered in the United States, so long as VENDOR is notified promptly in writing by the COMPANY of any such action and given full authority, information and assistance at VENDOR's expense for the defense of any such claim or proceedings. VENDOR shall pay all damages and cost awarded against the COMPANY but shall not be responsible for any settlement made without its consent. In the event of final judgment which prohibits the COMPANY or the COMPANY's customers from continued use of any Products by reason of infringement of such patent, trademark or copyright, VENDOR may, at its sole option and at its expense, obtain the rights to continued use of any such Product, replace or modify such Product so that it is no longer infringing.
11.2 VENDOR shall have no liability to the COMPANY under any provisions of this Section 12 if any patent, trademark or copyright infringement or claim thereof is based upon the use of Products delivered hereunder in connection or in combination with equipment or devices not delivered by VENDOR or use of any such Product in a manner for which the same was not designed.
12. Termination
12.1 VENDOR may terminate this Agreement at any time prior to the expiration of its stated term upon the occurrence of any of the following events, each of which is expressly declared to be "Just Cause" for termination of this Agreement:
12.1.1 COMPANY defaults in any payment due VENDOR for Products purchased under this Agreement and such default continues unremedied for a period of fifteen (15) days following VENDOR's written notice to COMPANY;
12.1.2 COMPANY fails to perform any other obligation, warranty, duty or responsibility under the Agreement, and such failure or default continues unremedied for a period of thirty (30) days following VENDOR's written notice to COMPANY;
12.1.3 COMPANY becomes insolvent; proceedings are instituted by or against it in bankruptcy, insolvency, reorganization or dissolution; or it makes an assignment for the benefit of creditors; or
12.1.4 COMPANY is merged, consolidated, or substantially changes the nature or character of its business, or substantially changes its management ownership or principals;
12.2 Either party may terminate this Agreement at will at any time during the term of this Agreement, with or without cause, by giving not less than three (3) months written notice to the other party.
12.3 Upon termination hereby by either party:
12.3.1 All sums due to either party from the other shall be promptly paid;
12.3.2 COMPANY orders received and accepted by the VENDOR prior to termination of this Agreement shall be fulfilled in accordance with their terms;
12.3.3 COMPANY shall deliver promptly to VENDOR all Confidential Information in COMPANY’s possession or under COMPANY’s control;
12.3.4 COMPANY will cease all display, advertising and use of VENDOR trade names, trademarks, logos and designations, except uses on the Products which remain in COMPANY's possession; and
12.3.5 VENDOR shall have the option to repurchase any or all of the Products in COMPANY’s inventory which are new and unused at net price paid originally by COMPANY.
13. Governing Law
The place of the making and execution of this Agreement, and the location of the manufacturing facility for the Products purchased and resold by COMPANY under this Agreement shall be Austin, Texas, U.S. Accordingly, the parties agree that the law of the State of Texas shall govern the interpretation, enforcement and performance of this Agreement. VENDOR and COMPANY each expressly waive and disavow any rights that may accrue under any other body of law. The U.N. Convention on Contracts for the Sale of International Goods is hereby excluded from application to this Agreement.
14. Dispute Resolution
14.1 It is the intention of the parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation.
14.2 In the event that the parties are unable to informally resolve any dispute, claim, demand, 8 controversy or cause of action of every kind and nature whatsoever, known or unknown, vested or contingent, that such party may now have or at any time in the future claim to have based in whole or in part, or arising from or that in any way is related to the negotiations, execution, interpretation or enforcement of this Agreement (collectively, the "Disputes"), the parties agree that such Disputes shall be completely and finally settled by submission of any such Disputes to arbitration before a single arbitrator under the Rules of Conciliation and Arbitration of the International Chamber of Commerce then in effect. Unless the parties agree otherwise, the arbitration proceedings shall take place in Austin, Texas, U.S.A., and the arbitration proceedings hereunder shall be conducted in English. The award of the arbitrator shall be in writing, shall be final and binding upon the parties, shall not be appealed from or contested in any court and may, in appropriate circumstances, include injunctive relief. Judgment on such award may be entered in any court of appropriate jurisdiction, or application may be made to that court for a judicial acceptance of the award and an order of enforcement, as the party seeking to enforce that award may elect.
15. Attorney’s Fees
If any party shall commence any action or proceeding against another that arises out of the provisions hereof, or to recover damages as the result of the alleged breach of any of the provisions hereof, the prevailing party therein shall be entitled to recover all reasonable costs incurred in connection therewith, including reasonable attorneys' fees.
16. U.S. Laws and Regulations
16.1 COMPANY acknowledges that VENDOR has informed it that United States law and related regulations may under certain circumstances forbid the re-export of Products (or associated technical data) sold or transferred to customers in the Territory or elsewhere. COMPANY agrees that it will make every reasonable effort to comply with such regulations, including providing customer information required by VENDOR to comply with United States and local country laws and regulations.
16.2 COMPANY acknowledges that VENDOR has informed it that United States law forbids the making of gifts or payments to government employees or political parties to induce such employees or parties to misuse positions of influence in order to obtain or retain business. COMPANY agrees that it will not engage in such conduct, nor permit others under its control to make such gifts or payments.
17. Limitation of Liability
Neither VENDOR nor COMPANY shall be liable to the other, or to COMPANY's customers, for any special, indirect, or consequential damages, including but not limited to loss of profits, loss of business opportunities, or loss of business investment.
18. Indemnification
COMPANY agrees to indemnify and hold VENDOR harmless from any costs, claims, damages, losses, liabilities or expenses (including reasonable attorney's fees) asserted by any third party resulting from COMPANY’s breach of the Agreement, any inaccurate or unauthorized representation or warranty made by COMPANY, or failure to conform to local laws and regulations.
19. Survival
In addition to COMPANY's obligation to pay VENDOR all amounts due hereunder, COMPANY's obligations under Sections 10, 11, 13, 14, 15, 16, 17 and 18 shall expressly survive termination of the Agreement.
20. Assignment
Neither party may assign any of the rights or obligations set forth in this Agreement without the prior written consent of the other, provided that the VENDOR shall have the right to assign any portion of the Agreement to its subsidiaries and affiliated companies.
21. Notices
All notices and demands under this Agreement shall be in writing and shall be served by personal service or by mail at the address of the receiving party first stated in this Agreement (or such different address as may be designated by such party to the other in writing). All notices or demands by mail shall be by telex, cable, telefacsimile, or by certified or registered airmail, return-receipt requested, and shall be deemed complete upon receipt.
22. Integrated Agreement
This Agreement constitutes the entire understanding and agreement between VENDOR and COMPANY and terminates and supersedes all prior formal or informal understandings. Should any article of this Agreement be held unenforceable by a court of law or other tribunal having jurisdiction over both parties, VENDOR or COMPANY may elect to terminate this Agreement.
