Reseller Agreement TeraByte Unlimited ( TeraByte )

Transcription

1 TeraByte Unlimited ( TeraByte ) PLEASE READ THIS RESELLER AGREEMENT CAREFULLY BEFORE SELLING, RESELLING, DISTRIBUTING, TRANSFERRING, OR OFFERING FOR SALE OR RESALE ANY PACKAGED SOFTWARE PRODUCTS FROM TERABYTE. THIS AGREEMENT SETS FORTH THE STANDARD TERMS AND CONDITIONS FOR RESELLING PACKAGED SOFTWARE PRODUCTS FROM TERABYTE. IT IS AVAILABLE FOR YOUR REVIEW AT ANY TIME, PRIOR TO, AT THE TIME OF, AND AFTER YOUR PLACEMENT OF ANY ORDER FOR PRODUCTS FOR RESALE. YOU ARE ONLY AUTHORIZED TO RESELL TERABYTE PRODUCTS PURSUANT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. ANY SALES, DISTRIBUTION OR TRANSFER BY YOU OF PRODUCTS DESIGNATED BY TERABYTE FOR RESALE WILL BE DEEMED TO CONSTITUTE YOUR AGREEMENT TO ALL THE TERMS OF THIS AGREEMENT. If you do not agree to all of the terms and conditions of this Agreement as set forth below, then: (a) do not sell, resell, distribute, transfer, or offer for sale or resale any packaged software products from TeraByte, (b) if you purchased or received one or more units of TeraByte Products for resale, you may return the complete packaged products, unopened, to your place of purchase within fifteen (15) days after purchase for a refund. As further set forth below, TeraByte, Inc., dba TeraByte Unlimited ("TeraByte") and/or its suppliers own all rights in the Products, which are protected under applicable copyright, trade secrets, and other laws. The computer software and documentation contained in the Products are licensed, not sold. Your rights and license regarding the Products are limited to the terms and subject to the conditions set forth in this Agreement. 1. Scope of Agreement This Agreement sets forth the terms and conditions upon which TeraByte grants you ("Reseller") the rights and license to resell certain TeraByte Resale Products (defined in 2(a) below) for use by other persons and organizations ("Customers"). This Agreement also covers, in Section 2(d), resales of individual TeraByte products by companies other than TeraByte, except where such activities clearly do not comprise, constitute or amount to a reselling business. 2. Grant of Rights (a) Grant. TeraByte hereby grants Reseller, subject to all of the terms and conditions of this Agreement, the rights and license to resell or distribute products purchased through TeraByte s website that are designated by TeraByte as resale products (the Resale Products ). Such Resale Products and designations may be updated by TeraByte from time to time at its sole discretion. (b) Promotion. Reseller may promote, market and advertise to the public and trade that it has the right to resell the Resale Products. It must do so using only marks, names and/or logos either provided by TeraByte, or reviewed and approved in advance by TeraByte. Such names, marks and logos are subject, at any and all times, to TeraByte's continuing approval at its sole discretion. Notwithstanding the foregoing: (i) Reseller is not granted any power or authority hereunder to enter into any legal obligations on behalf of TeraByte or otherwise bind TeraByte in any manner in regard to others, and Reseller may not act, nor hold itself out, as an agent or representative of TeraByte, and (ii) in no event shall Reseller permit or create the appearance to any person or entity that Reseller is an exclusive reseller of the Resale Products or for TeraByte. Reseller may not promote itself or otherwise refer to itself as an "Authorized Reseller" of any TeraByte products, nor use any words or phrases of comparable effect. (c) No Fee, No Control by TeraByte. The parties acknowledge and agree that there is no fee charged by TeraByte to Reseller for authorization hereunder as a TeraByte reseller. The parties further acknowledge that TeraByte does not and shall not exercise any control or supervision over the manner in which Reseller operates its business, provided that: (i) TeraByte may, at its sole discretion and from time - 1 -

2 to time, exercise quality control over use of its trademarks and other brand indicators by Reseller as necessary to preserve, maintain and extend the distinctiveness of such marks and indicators in connection with the Resale Products, and the Resale Products' reputation for high quality, and (ii) Reseller in all events is bound to comply with all terms and conditions of this Agreement. (d) Limitations. Reseller may not: i) use, market, distribute, license, create or modify either any Resale Product, or any products, works or materials derived from or based on any Resale Product, except as may be expressly authorized and limited in this Agreement. ii) install, use, copy, transfer, transmit, distribute, grant access to, or modify any portion of any Resale Product, except as may be expressly authorized and limited in this Agreement. Without limiting the foregoing, Reseller may not deliver, transfer, transmit, distribute or grant access to the Resale Products electronically or in electronic or intangible form, either in whole or part. iii) utilize other companies as resellers, sub-resellers, dealers or distributors of any Resale Product, except in complete conformance with the requirements of this Agreement. iv) bundle, package or assemble any Resale Product in connection or in combination with any other products or services from Reseller or third parties, except where TeraByte gives prior written approval to a specific marketing arrangement requested by Reseller. v) represent to any third party that Reseller has the power or authority to enforce against others the copyrights or other legal rights in any Resale Product. vi) sublicense or license any Resale Product; all licenses associated with the Resale Products are issued directly by TeraByte. vii) at any time, market, promote, advertise, distribute, sell, resell, sublicense or license any version of any Resale Product other than the version of that Resale Product then currently being made available by TeraByte for resale. If Reseller has one or more unsold units of a version of any Resale Product title in inventory on the date that TeraByte withdraws that version from further availability for resale, then Reseller has a ninety (90) day period after that date to sell such unsold units; TeraByte shall not accept returns of, nor pay refunds for, unsold units either during such period nor after such period. viii) at any time, market, promote, advertise, distribute, sell, resell, sublicense or license any TeraByte product other than the Resale Products which are at that time: (A) currently and expressly made available by TeraByte for resale, and (B) expressly and publicly designated by TeraByte as authorized for resale by persons or entities other than TeraByte. If Reseller has one or more unsold units of any Resale Product title in inventory on the date that TeraByte withdraws that Resale Product title from further availability for resale, then Reseller has a ninety (90) day period after that date to sell such unsold units; TeraByte shall not accept returns of, nor pay refunds for, unsold units either during such period nor after such period. ix) at any time, provide for registration of any Resale Product, or other communications with third parties, in any manner that would act, partially or wholly, as a substitute or replacement for the customer or end user communications or registration processes provided for by TeraByte within the Resale Product packaging. (e) Reservation of Rights. TeraByte reserves entirely all rights in the Resale Products not expressly granted herein, including but not limited to the right to market, sell and resell the Resale Product in any and all channels and territories. 3. Reseller Obligations (a) End User/Customer Support. Reseller is responsible for all advice and assistance required by Customers of the Resale Products relating to ordering, delivery and return of the Resale Products

3 TeraByte shall provide other user support to Customers according to TeraByte's standard service policies set forth in the standard documentation included by TeraByte within the Resale Product packaging; Reseller acknowledges and agrees that Reseller is not a benefiary of TeraByte's support offers or services as set forth in such documentation. Where responding to a Customer request requires knowledge unobtainable by Reseller, Reseller may refer the request to TeraByte, who shall determine at its sole discretion whether to provide backup support, and if so, whether to provide such support directly to such Customer or Reseller. (b) Indemnity. Reseller shall defend and indemnify TeraByte and hold TeraByte harmless, from and against any and all claims of end users, customers, resellers or any other third parties, and any and all damages, injuries and losses of any kind relating to any such claims, relating to any acts or omissions of Reseller or its employees, contractors or representatives in relation to this Agreement or its subject matter. (c) Price and Payment. Reseller shall purchase all Resale Products for resale only from the vendors indicated on the TeraByte web site, and at the price or prices given for such resale Resale Products and on the other terms and conditions set forth herein. All Resale Products must be paid for in full by Reseller prior to delivery of Resale Products. Reseller shall be responsible for all taxes, fees, duties, and tariffs related to purchase or resell of such Resale Products. All payments shall be due and made in full and in the amounts stated by TeraByte in U.S. dollars, net of any and all taxes or other amounts withheld or deducted from such payments by Reseller, by any other person or organization, or by any governmental authority with jurisdiction over Reseller, over any other person or organization, or over any part of the flow of payment to Reseller or TeraByte. (d) Audit. Reseller shall keep clear, complete and accurate records of the marketing, advertising, distribution and sales activities engaged in by Reseller in relation either to the Resale Products or the rights or obligations of this Agreement. TeraByte may audit such records from time to time at Reseller's place of business, upon reasonable notice and during normal Reseller business hours. (e) End User Sales. (i) Licenses. Reseller, and any other resellers or intermediaries as may be utilized by Reseller to assist in distributing the Resale Products, may only sell, transfer or provide the Resale Products subject to end user licenses or other licenses packaged with the Resale Products by TeraByte. Reseller may not grant any licenses of any kind regarding TeraByte products to Customers or other third parties. (ii) Direct License. Reseller acknowledges and agrees that all grants of rights to use the Resale Products under the copyright laws are granted directly by TeraByte to end user customers, and that TeraByte's control of the terms of use of the Resale Products pursuant to such grants does not constitute any involvement by TeraByte in the business of Reseller. (f) Warranties By, or Permitted By, Reseller. In no event may Reseller make or permit any warranties or representations regarding the performance, capabilities, attributes or features of any Resale Product (other than those made by TeraByte itself), nor may Reseller make or permit any warranties or representations which can possibly be asserted by any end user customer or other third party against TeraByte. Reseller shall defend and indemnify TeraByte, and hold TeraByte harmless, from and against any and all claims, liability, proceedings, judgments, injuries, losses, costs and damages of any kind that are related to warranties or representations made by Reseller or with Reseller's permission concerning any Resale Products, except for warranties or representations made directly by TeraByte to end user customers via TeraByte's packaging for the Resale Products. (g) Reseller Conduct. When reselling the Resale Products, Reseller will conduct its business in a manner that reflects favorably on TeraByte and the good name, goodwill and reputation of TeraByte and of the Resale Products, and will avoid deceptive, misleading or unethical practices that are or might be detrimental to TeraByte or the Resale Products. Reseller will not: (i) make false or misleading representations regarding TeraByte or the Resale Products, (ii) present or cooperate in the publication or - 3 -

4 presentation of any misleading or deceptive advertising regarding the Resale Products, or (iii) enter into any contract or engage in any practice in conflict with its obligations hereunder. (h) Sub-Resellers. Reseller may distribute the Resale Products to Customers through other companies or persons acting as resellers or distributors ("Sub-Resellers"), but only provided that: (A) Reseller must inform each such Sub-Reseller, fully and in advance: (1) of all restrictions and conditions applicable hereunder to Reseller's own activities regarding each Resale Product, and (2) that Sub- Reseller's own activities regarding each Resale Product must also comply fully with all such restrictions and conditions, and (B) Reseller at all times shall be and remain fully and directly liable to TeraByte for any and all activities by any Sub-Reseller that violate any such restriction or condition in relation to any Resale Product, as if such activities were performed entirely by Reseller itself. Reseller may not distribute any Resale Products through others in any manner other than as described immediately above in this paragraph. (i) Compliance with Local Laws. Reseller shall be exclusively responsible at its own expense for compliance with all local laws and regulations in all regions and territories affected by, or which affect, Reseller's or any Sub-Reseller's activities in relation to the Resale Products or this Agreement. (j) Returns. Reseller must accept returns of Resale Product units from any Customer, where: (1) the physical materials comprising the returned Resale Product unit(s) are either defective or incomplete, (2) the Customer provides a signed statement that the Customer has not retained any copies of the returned Resale Product units, and (3) the return is made by the Customer within 15 days after delivery of the Resale Product units returned. Upon receipt of the returned Resale Product units from Reseller, and proof of proper handling for any such return, TeraByte will provide complete replacements to Reseller for all such returned Resale Product units with units of the same Resale Product title and version. In addition, if Reseller determines prior to Customer delivery that the physical materials comprising any Resale Product unit(s) received from TeraByte are either defective or incomplete, then TeraByte will provide complete replacements of any such Resale Product units with units of the same Resale Product title and version. If any Customer contacts TeraByte directly regarding any claim of an incomplete or defective Resale Product, TeraByte shall handle that Customer claim as TeraByte determines proper, in TeraByte's sole discretion. In no event shall TeraByte provide a partial or entire refund (whether by payment, credit or otherwise), to Reseller of the price paid for any Resale Product unit(s), nor shall TeraByte accept Resale Product returns from Reseller except where the physical materials comprising the returned Resale Product unit(s) are either defective or incomplete. 4. TeraByte Trademarks. TeraByte hereby grants Reseller a license to use the "TeraByte Trademarks" (defined below) upon the express terms set forth herein; Reseller is granted no right or license to use any TeraByte Trademarks, except as expressly set forth in this Agreement. Reseller shall refer to the Resale Products at all times exclusively by the trademarks used by TeraByte on the Resale Product packaging, and as may be supplemented on the TeraByte web site (the "TeraByte Trademarks") in all advertising or marketing materials related to the Resale Products, in the same form as such TeraByte Trademarks are used by TeraByte, as may be updated or changed by TeraByte at its sole discretion from time to time. TeraByte shall have the right to review approve any and all such advertising and marketing materials upon request at TeraByte's sole discretion, and Reseller agrees to modify any and all such materials promptly upon any request from TeraByte. Reseller will not at any time act or fail to act in a manner which might impair either the rights or goodwill of TeraByte in the TeraByte Trademarks, or reduce in any manner the distinctiveness of the TeraByte Trademarks as marks indicating the source of the Resale Products. Reseller shall resell, distribute, and transfer Resale Products only in the exact form and packaging in which the Resale Products are delivered to Reseller by TeraByte or its designated vendor, and in particular Reseller may not: (i) alter or change any Resale Product or its packaging, (ii) repackage any Resale Product, (iii) place any other marks, brands, names, designs or logos on or in any Resale Products, including but not limited to any marks or logos of the Reseller, nor (iv) modify, conceal or remove any TeraByte Trademark or any other proprietary or rights notice included in or displayed on any Resale Product as delivered by TeraByte or its designated vendor. Reseller represents that it did not at any time up to entering into this Agreement, and agrees that it shall not during or after the term of this - 4 -

5 Agreement, acquire, register, apply to register, adopt or use any mark, brand, name, design, or logo that is confusingly similar to any of the TeraByte Trademarks. 5. Term and Termination (a) Term. This Agreement shall commence on the date that TeraByte accepts Reseller's first order for one or more units of a Resale Product for resale, and shall continue until one year following the date on which: (1) Reseller has depleted its inventory of Resale Product, (2) Resale Product version is outdated by 90 days or more, or is otherwise terminated. (b) Termination by Either Party. This Agreement may be terminated by either party (i) without cause upon 90 days written notice to the other party; (ii) immediately upon notice, if the other party fails to cure any material remediable breach of this Agreement within 30 days of receipt of notice of such breach; or (iii) immediately upon notice if a receiver is appointed for the other party or its property, the other party makes an assignment for the benefit of its creditors, any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor s relief law; or the other party is liquidated or dissolved. (c) Termination by TeraByte. TeraByte may terminate this Agreement immediately upon notice to Reseller, if: (i) TeraByte discovers at any time that Reseller has made a material misrepresentation or omission to TeraByte, regardless of whether such misrepresentation otherwise constitutes a breach of this Agreement, or (ii) Reseller makes one or more sales of Resale Products where such sales are not authorized under the terms of this Agreement, or (iii) Reseller disparages TeraByte or any of the Resale Products, or (iv) Reseller, either through failure to perform fully its obligations hereunder, or otherwise, damages or reduces in any manner the reputation for high quality and the goodwill of any of the Resale Products or TeraByte. Reseller agrees that each and every one of the foregoing individual grounds for termination is of the essence to this Agreement. (d) Effects of Termination. Upon termination of this Agreement: (i) Reseller immediately will cease to use any TeraByte Trademark, either in connection with promotion or advertising of Resale Products or otherwise, and will cease to hold itself out to the public as a reseller of Resale Products, and will cease to sell or market the Resale Products in any manner, except that if Reseller has one or more unsold Resale Product units in inventory, then Reseller has a ninety (90) day period after the termination date to sell such unsold units, and (ii) Reseller shall, for a period of twelve (12) months after termination, refer to TeraByte by electronic mail all communications from third parties regarding the Resale Products or TeraByte, including but not limited to all communications regarding Resale Product licenses, and all requests for Resale Product support. (iii) Reseller is not entitled to return to TeraByte, nor any refund from TeraByte for, any remaining Resale Product units whatsoever. 6. Export Limitations. Reseller specifically acknowledges that each of the Resale Products supplied to Reseller in accordance with the terms of this Agreement are subject to United States export controls. Reseller shall, at its own expense, determine all applicable requirements of the U.S. government export regulations with respect to each Resale Product, and comply strictly with all such regulations. 7. Disclaimer of Warranty. WITHOUT LIMITATION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TERABYTE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE PRODUCTS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT THE OPERATION OF THE PRODUCTS WILL BE FREE OF INTERRUPTION OR ERROR. 8. Proprietary Rights. (a) Resale Product Rights. TeraByte is and shall remain the owner of all know-how and all proprietary rights, including but not limited to all patents, patent applications, copyrights, trademarks and trade secrets, in: (i) the Resale Products, (ii) any and all packaging, promotional, marketing, sales and advertising materials and displays associated with the Resale Products or TeraByte, both tangible and electronic, and (iii) help files and all other text materials included in, packaged with, or otherwise associated with the Resale Products. All proprietary notices incorporated in, marked on or affixed to the Resale Products or other information by TeraByte or its suppliers will be duplicated by Reseller on all - 5 -

6 advertising, marketing and informational materials. Reseller will not, and will not assist or authorize others to, unlock, decompile, disassemble or reverse engineer any of the Resale Products, nor will it create (or assist or authorize others in creating) any derivative works based in whole or part on any of the Resale Products. (b) Customer Information. Reseller shall not, directly or indirectly, interfere with communications between TeraByte and the Customers or end users of the Resale Products arising from the contents of the packaged Resale Products, including but not limited to communications relating to Resale Product registration. TeraByte shall be the exclusive owner of all information obtained by TeraByte in the course of such communications. 9. Confidential Information (a) Confidential Information Defined. Reseller acknowledges that the following comprise valuable trade secret information exclusively owned by TeraByte ("Confidential Information"): (i) the source code and source code documentation for the Resale Products, and all other technical information and data regarding the Resale Products, (ii) all marketing plans, business plans, and release schedules relating to any of the Resale Products, or to TeraByte's business, and (iii) all of TeraByte's sales volumes and revenue amounts related to any of the Resale Products, however itemized, organized or presented. Reseller acknowledges and agrees that it shall receive any and all Resale Products from TeraByte in compiled, object code form only. (b) Access. Reseller shall not seek to unlock, decompile, disassemble, or reverse engineer the source code to the Resale Products or any part of them, nor seek access to Confidential Information beyond that expressly and knowingly provided to Reseller by TeraByte, except by requesting such access in writing from TeraByte, which TeraByte may grant or deny to Reseller in whole or part at its sole discretion. (c) Disclosure and Use. In the event that Reseller comes into possession of any Confidential Information, Reseller may not disclose any Confidential Information to any third party, nor use any Confidential Information for purposes other than those, if any, expressly provided in this Agreement or otherwise expressly provided in a signed writing by TeraByte. Reseller may not, at any time, disclose or disseminate the Confidential Information to any person except for Reseller's own employees who need access thereto in order for Reseller to perform its obligations hereunder. Reseller will insure that all individuals afforded access to the Confidential Information by or through Reseller are informed in advance of its highly confidential nature, and are legally bound to keep such information confidential according to standards of confidentiality at least as great and as of long a duration as those undertaken and agreed to by Reseller itself herein. Reseller shall be fully responsible to TeraByte for any breach of any of the terms of this Agreement by any such individuals and companies as if Reseller had committed the breach itself, without limiting any other remedies available to TeraByte. Reseller's confidentiality obligations shall continue for five (5) years after any termination or expiration of this Agreement. 10. LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TERABYTE SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO RESELLER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF TERABYTE HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT IN RESPECT OF LIABILITY WHICH IS BY LAW INCAPABLE OF EXCLUSION, IN NO EVENT SHALL TERABYTE'S LIABILITY (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) TO RESELLER ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE REVENUES RECEIVED BY TERABYTE FROM RESELLER UNDER THIS AGREEMENT WITHIN THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. WITHOUT LIMITING THE FOREGOING, TERABYTE AND RESELLER AGREE THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL OTHER LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT TO THE FULL EXTENT AVAILABLE UNDER THE LAW. 11. General Provisions - 6 -

7 (a) Governing Law, and Jurisdiction. This Agreement will be governed by the laws of the State of Nevada, USA, excluding its conflict of laws rules. All actions and proceedings of any kind can be maintained only in federal or state courts located in the State of Nevada, USA, and Reseller hereby consents to such jurisdiction and venue for any and all such purposes. Any and all judgments by TeraByte against Reseller in the foregoing courts can be enforced in any and all courts in the world with jurisdiction over Reseller, and Reseller hereby agrees in any such enforcement proceedings not to contest the power, jurisdiction or venue of the Nevada courts over Reseller. (b) Injunctive Relief. Reseller acknowledges that the breach, or potential or threatened breach, of any material provision of this Agreement by Reseller could give rise to irreparable injury to TeraByte which would be inadequately compensated in money damages. TeraByte shall therefore be entitled to obtain an injunction against such breach or continued breach from any court of competent jurisdiction authorized hereunder immediately upon TeraByte's request, and without requirement of posting a bond. TeraByte's right to obtain injunctive relief shall not limit its rights to seek all other available remedies at law and equity. (c) Entire Agreement. This Agreement constitutes the entire and exclusive agreement between the parties with respect to this subject matter. All previous discussions and agreements with respect to this subject matter are superseded by this Agreement. No modifications to this Agreement, nor any waiver of any rights, will be effective unless consented to in writing by both parties and the waiver of any breach or default will not constitute a waiver of any other right or any subsequent breach or default. This Agreement can not be modified by the terms of any purchase order or similar form even though TeraByte has signed or acknowledged the form. (d) Force Majeure. TeraByte will not be liable for any loss, expense or damage caused by delays or failures in performance resulting from acts of God, supplier delay or any other cause beyond the reasonable control of TeraByte. (e) Notices. Any notices required by this Agreement must be given in writing, and shall be delivered to the usual business address of each party, or to such other address as either party may substitute by written notice to the other, and will be deemed served when delivered or, if delivery is not accomplished by reason of some fault of the addressee, when tendered. (f) Assignment. Reseller may not assign this Agreement or any right or license hereunder or delegate any obligation hereunder without the prior written consent of TeraByte. Any attempted assignment or delegation without such required consent will be void. Any change of control, whether by transfer of ownership interests, merger or otherwise, shall be deemed to be an assignment for purposes of this Section (f). (g) Attorneys Fees. In the event of any dispute resolution proceeding between the parties, the prevailing party will be entitled to recover its costs and reasonable attorneys fees. (h) Survival. Sections 2(d), 3(a)-(d), (f), (h), (j), 4 (last sentence), 5(d), 8, and 9 will survive the termination, for any reason, of this Agreement. (i) Severability. If any provision of this Agreement is ruled unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in effect; provided, however, that if any provision determined to be unenforceable is an essential term of this Agreement, and the parties cannot reasonably agree on a substitute provision, TeraByte may terminate this Agreement, effective immediately, upon giving written notice to Reseller. (j) Independent Contractors. The parties are each independent contractors and not joint ventures, partners, agents or representatives of the other. Neither party has any right to create any obligations on the part of the other party. Reseller will, at its own expense, obtain and arrange for the maintenance in full force and effect of all government approvals, consents, licenses, authorization, declarations, flings and registrations as may be necessary or advisable for the performance of all of the terms and conditions of the Agreement including, but not limited to, foreign exchange approvals, import and offer agent licenses, fair trade approvals and all approvals which may be required to realize the purposes of the Agreement

8 (k) Third Parties. TeraByte's obligations in this Agreement are undertaken for Reseller, or its successors and permitted assigns. There are no intended third party beneficiaries who can make any claim under this Agreement against TeraByte, including but not limited to Reseller's resellers, business partners or associates