1.     DEFINITIONS

1.1      “Documentation” means the written materials and specifications and “online” or electronic documentation regarding the Service or any component thereof provided by Zesty to Reseller.

1.2      “End User” means an entity that purchases the Services from Reseller for the entity’s own internal use, pursuant to an End User License Agreement, and not for further resale or distribution to third parties.

1.3      “End User License Agreement” means the license agreement which is by and between an End User and Zesty and governs the use of the Services by such End User.  

1.4      “Purchase Order” means a purchase order in a form reasonably acceptable to Zesty that is submitted by Reseller to Zesty for the order of Services, which purchase order will be governed by the terms of this Agreement.

1.5      “Reseller” means the other party to this Agreement as indicated on the signature page of this Agreement, which is authorized by Zesty to order Services directly from Zesty, and which may resell the Services to End Users as set forth herein.

1.6      “Sale” or “Sell” or “Resell” or “Purchase” means the granting or receiving of a license to access and use the Services as authorized by Zesty.

1.7      “Services” means those services provided by Zesty to Reseller pursuant to a valid Purchase Order.

2.     APPOINTMENT

2.1      Appointment. Zesty appoints Reseller, and Reseller accepts such appointment, as a non-exclusive reseller of the Services. Zesty authorizes Reseller to resell the Services to End Users solely in accordance with the terms and conditions herein. Reseller is not authorized to, and will not, sell, market, promote or offer for sale the Services to resellers, distributors, OEMs, other service providers or other channel partners. Reseller is not authorized to, and will not, convey or purport to convey to End Users any right to sublicense or transfer the Services to any third party.

2.2      Use of Services. Subject to the terms and conditions of this Agreement, Zesty grants to Reseller during the term of this Agreement a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) right, sublicensable only to End Users, to use the Zesty Services solely for internal business purposes or in connection with its performance under this Agreement.

2.3      Use of the Documentation. Subject to the terms and conditions of this Agreement, Zesty grants to Reseller during the term of this Agreement a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) license, sublicensable only to End Users, to reproduce, without modification, and use a reasonable number of copies of the Documentation solely in connection with use of the Zesty Services in accordance with this Agreement.

2.4      Use of Reseller Portal. Zesty grants Reseller a nonexclusive, nontransferable (except as provided in Section 11.3), nonsublicensable, limited license during the term of this Agreement to access and use the reseller administrative portal provided by Zesty, for the sole purpose of managing Services purchased by Reseller and provisioning those services to End Users.

2.5      Restrictions. Title to the Services, including without limitation all copies of software made available in connection with the Services, is retained by Zesty or its licensors. Except to the extent such restrictions are not permitted under applicable law, Reseller agrees not to decompile, disassemble, or otherwise reverse engineer the Service or any software made available in connection with the Service. Reseller may not use the Service or any Zesty Confidential Information that it may acquire in connection with this Agreement to develop, have developed, assist in the development of, support, or invest in, directly or indirectly, any product which has, entirely or partially, the same functions as any of the Services or which would be in direct or indirect competition with any of the Services.

3.     RESELLER OBLIGATIONS

3.1      Limitations on Resale. Reseller agrees to resell the Services only to End Users, and not to other resellers. Reseller may not provide any Services to any competitor of Zesty, as determined by Zesty. Notwithstanding anything in this Agreement to the contrary, Reseller may not resell Services to any branches or related entities of the Federal government of the United States, unless Reseller has received the express written consent from Zesty, which may be withheld for any reason.

3.2      Qualifications. Reseller represents that it has the technical skills, knowledge, qualified personnel, and sales facilities to market, promote, and sell the Services in a professional and workmanlike manner.

3.3      Support. Reseller will provide customer and technical support to End Users as set forth in Exhibit C.

3.4      End User Relationship. Reseller will manage the relationship with the End User. Except as requested by the Reseller, or as set forth in Sections 3.6, 5.4, and 6.3, Zesty will not individually pursue any End User as a direct customer. However nothing in this section will prevent Zesty from advertising its products and services generally, or from communicating with and providing products and services to potential customers who respond to such general advertisements, or who contact Zesty or Zesty resellers or referral partners on their own initiative.

3.5      Marketing Efforts. Reseller will use commercially reasonable efforts to endorse, market and promote the Services to potential End Users. Reseller may display Zesty’s product information on its website and in other locations where Reseller displays the product information of other products. Reseller will display, demonstrate and represent the Services fairly and will make no representations concerning Zesty or the Services which are false, misleading or inconsistent with those representations set forth in the promotional materials, literature and manuals published and supplied by Zesty to Reseller. Reseller will not use, and will withdraw and retract, any of its own promotion or advertising materials regarding or relating to the Services that Zesty, in its sole discretion, finds unsuitable, or that is in breach of the terms of this Agreement. Neither party will make any press release or other public announcement concerning this Agreement without the prior written approval of the other party (unless a press release or public amendment is required by law or by regulations binding upon any of the parties of their affiliates, in which case the disclosing party agrees to give the non-disclosing party prior notice and an opportunity to comment on the proposed disclosure). Additional terms regarding marketing are set forth in Section 4 (Trademarks).

3.6      End User License Agreement. Prior to using Services, End Users must enter into an End User License Agreement with Zesty in such form as Zesty may issue from time to time. Zesty will provide or make available to Reseller a copy of the End User License Agreement upon request, but Reseller is not Zesty’s agent for purposes of any End User License Agreements or other contracts, and has no authority to negotiate such agreements on Zesty’s behalf or to change any terms or conditions in such agreements. Reseller will promptly inform Zesty of all known breaches by any End User of the End User License Agreement.

3.7      Legal Compliance and Export Prohibition. Reseller will comply with all applicable laws and regulations in performing under this Agreement, including without limitation those regarding exports as set forth in this paragraph. Zesty provides services and uses software and technology that may be subject to the United States export control administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Reseller acknowledges and agrees that the Services may not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries as to which the U.S., Switzerland and/or the European Union maintains an embargo (collectively “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Reseller represents and warrants that Reseller is not (and any End Users are not) located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Reseller agrees to comply with all U.S, Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Admin. Regulations 15 D.F.R. parts 730-774 and Council Regulation (EC) No. 1334/2000. Zesty makes no representations that the Service is appropriate or available for use in other locations. If Reseller or its End Users use the Service from outside the U.S., Switzerland and/or the European Union, Reseller is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.

4.     TRADEMARKS

4.1      License to Use Marks. During the Term of this Agreement, Zesty hereby grants Reseller a non-exclusive license to use the Zesty name and Zesty’s trademarks, service marks, and logos as provided to Reseller by Zesty (collectively, the “Marks”) solely for the purpose of marketing, promoting, selling, and administering the Services in accordance with the terms and conditions stated herein, and subject to Zesty’s prior written permission as required under Section 3.4. The license in the preceding sentence expressly limited to uses by Reseller necessary or appropriate in connection with its performance pursuant to this Agreement and as set forth in any general instructions issued by Zesty from time to time, or as specifically permitted by Zesty in writing. Subject to the provisions of this Section 4, Reseller may indicate its relationship to Zesty and refer to the Services by their associated Marks provided that such references are truthful and not misleading and Zesty is designated as the owner of the Marks.

4.2      No Other Right to Marks. Reseller will not remove or deface any Marks appearing on the Services. Zesty reserves the right to disallow any use of the Marks which would, in Zesty’s reasonable opinion, harm the validity or value of the Marks.Upon expiration or termination for any reason of this Agreement, the license set forth in Section 4.1 will immediately terminate. Other than the license to use the Marks granted in this Section 4, Reseller is granted no other right, title or interest in the Marks. Reseller acknowledges Zesty’s ownership of and right in and to the Marks, and agrees that any and all use of the Marks will inure to the sole benefit of Zesty. Reseller agrees that it will take no action inconsistent with Zesty’s ownership of the Marks and agrees not to challenge Zesty’s rights in or attempt to register any of the Marks, or any other trademarks, service marks, trade names, product names, logos, designs, and other designations or brands owned or used by Zesty or any mark confusingly similar thereto. If at any time Reseller acquires any rights in or to, or any registration or application for, any of the Marks by operation of law or otherwise, it will immediately upon request by Zesty and at no expense to Zesty, assign such rights, registrations, or applications to Zesty, along with any and all associated goodwill.

5.     PURCHASE ORDERS, PRICING, AND PAYMENT

5.1      Purchase Orders. Each Purchase Order is subject to written acceptance (or rejection) by Zesty in its sole discretion, and no Purchase Order will be deemed accepted by Zesty unless Zesty has delivered written acceptance to Reseller. The parties agree that any conflict between the provisions of a Purchase Order and the terms contained in this Agreement will be resolved in favor of the terms contained in this Agreement. By entering into this Agreement, Reseller waives any preprinted terms and conditions set forth in its Purchase Order (or any other Reseller document) that may be accepted by Zesty for Reseller’s convenience, and as to any non-preprinted terms and conditions, agrees that they apply only if expressly acknowledged and accepted by Zesty by means of Zesty initialing such terms on the Purchase Order itself or in its written acceptance of the Purchase Order. Zesty will invoice Reseller for the Service fees pursuant to an accepted Purchase Order.

5.2      Prices for Services. For a period of one year following the Effective Date, the Reseller may obtain Services for the prices set forth in Exhibit A. After the first year following the Effective Date, Zesty may change the prices charged for the Services at Zesty’s sole discretion, provided that Zesty provides at least 30 days written notice to Reseller prior to the effective date of any price increase. Prices do not include sales, use, VAT, excise, export, withholding or similar taxes or fees.

5.3      Payment Terms; Taxes. Reseller will pay all amounts owed to Zesty in accordance with Zesty’s invoice within 30 days of the invoice date. Any payment which falls due on a weekend or public holiday will be due on the business day immediately preceding the weekend day or public holiday. Reseller agrees that it is responsible for all payments to Zesty regardless whether any End Users fail to pay amounts owed to Reseller for their access to Services. Payments will be made in United States dollars and remitted to Zesty at its home office or through such bank account as Zesty will designate by notice. Costs of currency conversion, outside collection and related bank charges will be paid by Reseller. Reseller agrees to be responsible for and to pay, or to reimburse Zesty on written request, if Zesty is required to pay or collect any sales, use, VAT, excise, export or other tax, duty or other charge of any kind or nature (excluding any tax that is based on Zesty's net income) that is levied or imposed by any governmental authority on transfer, delivery, possession, sale, purchase, use or license of the Services. Except as otherwise expressly set forth herein, each party is solely responsible for its own expenses incurred in the performance of this Agreement.

5.4      Late Payments. All amounts not paid to Zesty by Reseller within 30 days of when such amounts become due and payable in accordance with this Agreement shall be subject to a finance charge of two and one half percent (2.5%) per month simple interest, with such interest charges starting on the due date for such amounts, plus any related collection and legal costs actually incurred by Zesty in connection with Zesty’s collection of such amounts. If any amount remains unpaid more than 60 days after such amount is due and payable to Zesty by Reseller, Zesty may upon 15 days’ written notice to Reseller suspend Services to any or all End Users; and furthermore, if Reseller’s account has not been paid in full ten days after such notice has been provided to Reseller, Zesty may advise the End Users directly of the impending suspension of Services and of other available options by means of which the End Users can continue to receive Services without interruption; and in each case, such notice, advising, and suspension will not be construed as a breach by Zesty of this Agreement.

6.     TERM AND TERMINATION

6.1      Term. This Agreement will commence upon the Effective Date and continue for one year unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive one-year terms unless at least 90 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.

6.2      Termination. This Agreement may be terminated (a) by the non-breaching party 30 days after the other party’s receipt of written notice from the non-breaching party of any failure to perform, when due, any term or condition of this Agreement, unless such failure or performance is corrected to the reasonable satisfaction of the non-breaching party within such 30 day period (Reseller’s failure to comply with any of the obligations set forth in Section 3 will constitute a material breach of this Agreement); or (b) by either party immediately upon written notice to the other party if such other party files for bankruptcy or voluntary reorganization, or ceases to do business in the ordinary course, or undergoes a liquidation or dissolution. Zesty’s ability to suspend performance of Services pursuant to Section 5.4 does not limit any of its other rights or remedies, including the termination rights described in this section.

6.3      Effect of Termination. Reseller will no longer be authorized to resell or provision Services to End Users following the expiration or termination of this Agreement. In order to avoid any interruption of Services received by End Users, Zesty and Reseller may communicate with End Users, either jointly or individually as each party deems best, in order to advise such End Users prior to expiration or termination of the available options for continuing to receive Services without interruption. A party terminating this Agreement pursuant to the terms hereof will not be liable for any penalty, loss or damage for such termination, except that neither party will be relieved from payment of any amounts owed to the other party under this Agreement accruing on or prior to termination of this Agreement.

6.4      Survival. If this Agreement expires or terminates for any reason, (a) Reseller will pay to Zesty any and all fees or other amounts that have accrued prior to the effective date of the expiration or termination and (b) the following provisions will survive the expiration or termination of this Agreement: Sections 1, 2.5, 4.2, 5, 7.3, 6.3, 6.4, and 7 through 11.

7.     LIMITED WARRANTY AND DISCLAIMERS

7.1      Limited Warranty.Zesty provides the service level warranties as set forth in Exhibit C solely to Reseller.   Reseller will have no authority to extend such warranty to any End User or to any third party, and Zesty will have no obligation to any such End User or to any third party, unless otherwise agreed in writing by Zesty.

7.2      Mutual Representations. Each party represents to the other party that: (a) each party is a business entity duly organized and in good standing; (b) each party’s execution, delivery and performance of this Agreement has been duly authorized by such party; and (c) this Agreement constitutes a legal, valid and binding obligation enforceable against each party in accordance with its terms. The foregoing representations will remain in effect throughout the term of this Agreement.

7.3      Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND ZESTY DOES NOT WARRANT THAT THE FUNCTIONS OR FEATURES CONTAINED WITHIN THE SERVICE WILL MEET RESELLER OR END USER REQUIREMENTS, OR WILL OPERATE IN ANY COMBINATION WHICH MAY BE SELECTED FOR USE BY RESELLER OR END USER, OR THAT OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THAT DATA STORED BY THE SERVICES WILL BE AVAILABLE OR SAFE FROM LOSS, OR THAT ALL DEFECTS THAT MAY EXIST IN THE SERVICES WILL BE CORRECTED. THE WARRANTY IN SECTION 7.1 IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, AND ZESTY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND NON-INFRINGEMENT. NOTWITHSTANDING ANY FAILURE OF THE PURPOSE OF ANY LIMITED REMEDY, ZESTY’S ENTIRE LIABILITY FOR BREACH OF WARRANTY AND FAILURE TO CURE AS PROVIDED HEREIN WILL BE LIMITED TO THE REMEDIES SET FORTH WITH SUCH WARRANTY.

8.     INDEMNIFICATION BY ZESTY

8.1      Defense of Infringement Claims. Zesty will, at its expense, either defend Reseller from or settle any claim, proceeding, or suit brought by a third party (“Claim”) against Reseller alleging that Reseller’s use of the Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: (a) Reseller gives Zesty prompt written notice of the Claim; (b) Reseller grants Zesty full and complete control over the defense and settlement of the Claim; (c) Reseller provides assistance in connection with the defense and settlement of the Claim as Zesty may reasonably request; (d) Reseller complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Services), and (e) Reseller does not defend or settle the Claim without Zesty’s prior written consent. Reseller will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Zesty will have sole control over the defense and settlement of the Claim.

8.2      Indemnification of Infringement Claims. Zesty will indemnify Reseller from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Reseller in any Claim under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Reseller in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Zesty’s consent after Zesty has accepted defense of the Claim); and (c)  all amounts that Zesty agrees to pay to any third party to settle any Claim under Section 8.1.

8.3      Exclusions from Obligations. Zesty will have no obligation under this Section 8 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Services are provided to comply with designs, requirements, or specifications required by or provided by Reseller, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by Reseller for purposes not intended or outside the scope of the license granted to Reseller; (d) Reseller’s failure to use the Services in accordance with instructions provided by Zesty, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by Zesty where such infringement or misappropriation would not have occurred absent such modification.

8.4      Limited Remedy. This Section 8 states Zesty’s sole and exclusive liability, and Reseller’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.

 

9.     INDEMNIFICATION BY RESELLER

9.1      Defense. Reseller will defend Zesty from any Claim arising out of or based upon (i) Reseller’s breach of this Agreement, (ii) Reseller’s use of the Services in a manner that violates any law, regulation, or third-party right, (iii) Reseller’s provision of any warranty to any End User, (iv) any unauthorized statements or representations made by Reseller to any End User, (v) Reseller’s performance of any services for any End User, or (vi) negligence of Reseller, their officers, agents and employees, provided that: (a) Zesty gives Reseller prompt written notice of the Claim; (b) Zesty grants Reseller full and complete control over the defense and settlement of the Claim; (c) Zesty provides assistance in connection with the defense and settlement of the Claim as Reseller may reasonably request; (d) Zesty complies with any settlement or court order made in connection with the Claim; and (e) Zesty does not defend or settle the Claim without Reseller’s prior written consent. Zesty will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Reseller will have sole control over the defense and settlement of the Claim.

9.2      Indemnification. Reseller will indemnify Zesty from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Zesty in any Claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Zesty in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Reseller’s consent after Reseller has accepted defense of the Claim); and, (c) all amounts that Reseller agrees to pay to any third party to settle any Claim under Section 9.1.

10.  LIMITATION OF LIABILITY

10.1    Disclaimer of Indirect Damages. EXCEPT FOR BREACH OF SECTION 7 (CONFIDENTIALITY) OR OBLIGATIONS ARISING UNDER SECTIONS 9 AND 8 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OR UNAVAILABILITY OF DATA, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

10.2    Cap on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY RESELLER TO ZESTY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS OR CIRCUMSTANCES FROM WHICH THE CLAIM AROSE.

10.3    Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ZESTY TO RESELLER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

11.  GENERAL PROVISIONS

11.1    Independent Contractor Relationship. It is expressly agreed that Zesty and Reseller are acting hereunder as independent contractors and under no circumstances will any employees of one party be deemed the employees of the other party for any purpose. Each party will bear responsibility for its own employees, including terms of employment, wages, hours, tax withholding, required insurance and daily direction and control. This Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of, or on behalf of, the other. Reseller agrees that it is not a partner, broker, employee or franchisee of Zesty. Any commitment made by Reseller to an End User with respect to delivery, price, modifications, interfacing capability or suitability of the Services; a warranty in excess of the standard Services warranty provided by Zesty; or suitability in specific applications will be Reseller’s sole and exclusive responsibility and liability. No terms of any agreement entered into between Reseller and any End User will be binding on Zesty unless agreed to by Zesty in an instrument exactly specifying such terms and conditions and signed by an officer of Zesty.

11.2    Governing Law, Venue, and Arbitration. This Agreement will be governed by and construed in accordance with the laws of the State of California, without reference to conflict of laws provisions. All disputes arising out of or relating to this Agreement will be finally settled by arbitration conducted in San Diego, California under the rules of commercial arbitration of the American Arbitration Association (“Rules”). The parties will bear equally the costs of the arbitration (exclusive of legal fees and expenses of the parties, all of which each party will bear separately). The arbitration will be conducted by three arbitrators selected in accordance with the Rules. All decisions of the arbitrators will be final and binding on both parties and enforceable in any court of competent jurisdiction. Notwithstanding the foregoing, in the event of breach by a party of its obligations hereunder, the non-breaching party may seek injunctive or other equitable relief in any court of competent jurisdiction. Jurisdiction for litigation of any dispute, controversy or claim arising out of or in connection with this Agreement will be only in a California state or United States federal court located in San Diego, California, and the parties hereby consent to the jurisdiction and venue of such courts. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party will be entitled to recover reasonable expenses, including reasonable attorney’s fees.

11.3    Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.

11.4    Subcontractors. Zesty may utilize one or more subcontractors or other third parties to perform its duties under this Agreement so long as Zesty remains responsible for all of its obligations under this Agreement.

11.5    Notice. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a reputable courier. If notice is issued under Section 6.2(b) or (c) (Termination) claiming a breach or default, the party providing the notice must specify the nature of the breach or default.

11.6    Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control including, without limitation, acts of God, acts of war, telecommunications or power outages, failures of the public internet, strikes, riots, floods, earthquakes, fires and explosions, so long as that party uses all commercially reasonable efforts to resume performance.

11.7    Waiver. Any waiver of any right or remedy or limit on liability under this Agreement must be in writing and signed by the party to be bound to be effective. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

11.8    Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, then the remaining provisions of this Agreement will nevertheless be given full force and effect.

11.9    Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Reseller’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior confidentiality, nondisclosure, or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of Zesty has any authority to bind Zesty with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Zesty will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Reseller in any receipt, acceptance, purchase order, confirmation, correspondence, or otherwise, unless Zesty specifically agrees to such provision in writing and signed by an authorized agent of Zesty.

11.10   Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but both of which will constitute the same instrument. This Agreement may also be executed and delivered electronically and such execution and delivery will have the same force and effect of an original document with original signatures.