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Reseller Terms of Sale (NA)

This Partner Resale Agreement, including all applicable terms referenced herein, (collectively, this “Agreement”) applies to the purchase from Semifly (or from an authorized Semifly distributor) for the resale of Semifly Products and Services to End Users in North America, either the United States (50 states and Washington, D.C.) or Canada, whichever is the country where Partner places the Order (see definition of “Territory” below). This Agreement is not applicable to the purchases of Semifly Products and Services for Partner’s own internal end use (in such case Semifly’s Commercial Terms of Sale at www.semifly.com/cts shall apply).

“Semifly” means Semifly Inc., with offices at [INSERT ADDRESS].

 

For Partner Program benefits, Partner acknowledges to have read and accepted the terms and conditions of the Semifly Partner Program (the “Partner Program”) which supplement this Agreement and are available via the Semifly Partner Portal (the “Partner Portal”) and which include the Semifly Partner Code of Conduct.

This Agreement consists of the main body with the terms and conditions applicable to all Offerings that are in scope, as may be supplemented by additional schedules, containing terms applicable to all or only specific Offerings and shall form an integral part of this Agreement (“Schedule(s)”). This Agreement does not establish a commitment of Partner to procure, nor an obligation of Semifly or its Affiliates to supply, any Offerings unless the parties have agreed on an Order.

Each section of the Agreement is intended to apply to all resale transactions in the Territory, unless regional exceptions are specifically addressed within that section, a footnote, or the applicable Schedule(s).

By placing Orders, Partner accepts and is bound to the terms and conditions of this Agreement.

 
Contents

  • A. Quoting and Ordering
  • B. Cancellation, Returns
  • C. Product Delivery
  • D. Invoicing, Payment Terms
  • E. Equipment Warranty, Services Warranty, Services Flow-down Terms
  • F. Software
  • G. Services
  • H. General
  • I. Governing Law, Notices
  • J. Partner Responsibilities
  • K. Termination
  • L. Schedules

1. Subject Matter and Parts of the Agreement
 
1.1 Scope

Subject to compliance with local laws and the terms and conditions of this Agreement:

  • (a) Partner is authorized to resell the Products and Services to End Users on a non-exclusive basis in the Territory.
  • (b) Partner is not permitted to appoint any resellers for the resale of the Products and Services in the Territory.
  • (c) Unless otherwise agreed in a Schedule, this Agreement does not apply to the purchase of Products and Services for internal end-use, or for use as an Original Equipment Manufacturer customer (“OEM”).
  • (d) Partner shall not market, resell, distribute, rent, lease, or use Products or Services other than as expressly permitted in this Agreement and, with regard to Software, in the license agreement governing the Software.
  • (e) Eligibility to resell certain Products and Services may be subject to additional obligations or conditions not outlined in this Agreement, including additional training and/or specialization requirements.
  • (f) This Agreement does not guarantee sales of Products and/or Services.
  • (g) Partner is free to determine its own resale pricing of Products and Services to its End Users.

1.2 Restrictions

Notwithstanding section 1.1 “Scope” above and subject to prior written Semifly approval and compliance with local laws, Partner shall not directly or knowingly indirectly market or resell Products or Services:

  • (a) outside the Territory or location of purchase;
  • (b) to any consumers, resellers, distributors, or third-party sales agents; or
  • (c) through retail storefronts, online stores, or auction or resale websites.

Partner shall not stock Products for future sales unless agreed otherwise by Semifly for a specific order. Partner shall not refurbish Products for resale or marketing. Furthermore, Partner shall not market or sell refurbished or previously owned or used Products, including used Products that Partner has obtained from any third party.

 
1.3 Order of Precedence

This Agreement, including the documents referenced herein, shall apply to the exclusion of all other general terms and conditions incorporated in or referred to in any documentation submitted by Partner to Semifly. Preprinted terms and conditions contained on any Partner Order shall not apply.

Subject to the foregoing, in case of any conflict or inconsistency the following order of precedence shall apply:

  1. (a) The terms of the Order, where either:
    • (i) this Agreement expressly provides for the Parties to optionally deviate from the relevant provision of this Agreement; or
    • (ii) where the Order states that the Parties wish to deviate from the terms of this Agreement for the purpose of the individual transaction and the Parties expressly accept the deviation;
  2. (b) The terms of any Schedule to this Agreement; and
  3. (c) The main body of this Agreement.

2. Definitions
 
2.1 “Affiliate”

“Affiliate” means a legal entity that is controlled by or is under common “control” of a related entity. Transactions under this Agreement may also involve affiliated companies of the Parties. “Control” means more than 50% of the voting power or ownership interests. With respect to Semifly, Affiliate means Semifly Inc. or Semifly Inc.’s direct or indirect subsidiaries.

 
2.2 “Delivery”

“Delivery” for Product occurs:

  • (i) for the U.S., when Semifly provides the hardware Product to a carrier at Semifly’s designated point of shipment, or
  • (ii) for Canada, when the hardware Product arrives at the ship-to address that Partner provided to Semifly or the hardware Product clears Canadian customs.

Delivery for Software occurs:

  • (a) for the U.S., when Semifly provides physical media to a Semifly-designated carrier at Semifly’s designated point of shipment,
  • (b) for Canada, when the physical media clears Canadian customs, or
  • (c) for U.S. or Canada, the date Semifly notifies Partner or End-User that Software is available for electronic download.

2.3 “Dispute”

“Dispute” means any dispute, claim, or controversy (whether in contract, tort, or otherwise) related to or arising out of the Agreement or any Quote or Order.

 
2.4 “Documentation”

“Documentation” means Semifly’s then current, generally available user manuals and online help for Products.

 
2.5 “End User”

“End User” means any entity, within the Territory, purchasing Products, Services, or both from Partner for its own internal end-use and not for resale, distribution, remarketing, sub-licensing, to others.

 
2.6 “End User Agreement”

“End User Agreement” means the agreement executed with the End User which will include terms in accordance with the applicable sections (all of which may be collectively referred to herein as “End User Agreement”), including but not limited to: Software, Services Flow-down Terms, Prevention and Mitigation, Trade Compliance, and System Data.

 
2.7 “Excluded Data”

“Excluded Data” means:

  • (i) data that is classified, used on the U.S. Munitions list (including software and technical data) or both;
  • (ii) articles, services, and related technical data designated as defense articles and defense services;
  • (iii) ITAR (International Traffic in Arms Regulations) released data; and
  • (iv) personally identifiable information that is subject to heightened security requirements as a result of Partner or End User’s internal policies or practices, industry-specific standards, or by law.

2.8 Products and Services

“Products” are either:

  • (i) Semifly-branded IT hardware products (“Equipment”); or
  • (ii) Semifly-branded generally available software, whether microcode, firmware, operating systems, or applications (“Software”).

“Services” are:

  • (a) Semifly’s standard service offerings for maintenance and support of Products (“Support Services”); and
  • (b) consulting, deployment, implementation, and any other services that are not Support Services (“Professional Services”).

“Third Party Products” means hardware, software, products, or services that are not “Semifly” branded. Third Party software is licensed by a third party under its own terms of use. Products exclude Services and Third Party Products. Products, Services, and Third Party Products (if applicable) may be collectively referred to herein as “Offerings.”

 
2.9 “Territory”

“Territory” means the geographical area, country, or countries, within which Partner may resell the Products and distribute the Services authorized by Semifly in accordance with this Agreement and applicable local law.

 
2.10 “Unauthorized Parts”

“Unauthorized Parts” means any third party parts which were not:

  • (i) procured from Semifly; or
  • (ii) otherwise authorized and/or certified by Semifly for integration into the applicable Semifly Product.

3. Quoting and Ordering
 
3.1 Process

Partner may request a quote from Semifly or its Affiliate (depending on the Offerings purchased), either in the form of a written quotation or online via www.semifly.com or any other online process (“Quote”). Quoted prices are effective until the expiration date of Semifly’s quote. Semifly reserves the right to modify pricing (including quotes) due to shortage of materials or products, increase in costs, pricing or other error, currency and exchange rate fluctuations, or other factors beyond Semifly’s control.

Partner may order the Offerings quoted by:

  • (i) issuing a purchase order that references such Quote, the requested Offerings, the Partner’s and End User’s name and address, contract code (if applicable), and any other information requested by Semifly;
  • (ii) executing Semifly designated order forms; or
  • (iii) ordering online through either www.semifly.com or other online process.

Partner shall place Orders for Products and Services in the country where the End User is located. Orders are subject to credit approval and are subject to Semifly’s acceptance. Acceptance of one Order is independent from acceptance of any other Order. Any variation to an accepted Order must be agreed in writing between Partner and Semifly.

 
3.2 Product and Service-Specific Terms

Scope and details of Product and Service-specific terms are specified in the applicable standard service description that is attached to or referred in a Schedule or Quote or is made available through the then-current Semifly website for product or service-specific terms, currently located at www.semifly.com/offeringspecificterms (“Offering Specific Terms”). Such standard descriptions are from time to time referred to as “Service Description(s)” or “Service Briefs.” The version of the applicable document that is effective as of the date of the applicable Quote shall be deemed incorporated into the Order.

Scope and details of customized Professional Services not covered by such a standard description shall be documented in a mutually agreed Statement of Work (“Statement of Work” or “SOW”). When selling or providing any such offerings, Partner shall inform and require the End User to agree to the applicable Offering Specific Terms, and Partner will provide written evidence of doing so upon receipt of request from Semifly.

 
3.3 Revision of Offerings

Semifly may revise its Offerings, including after Partner places an Order, but prior to Semifly’s shipment or performance. As a result, Offerings which Partner receives may differ from those ordered, provided they still substantially meet or exceed the specifications as per the documentation of the originally ordered Offerings.

 
3.4 Cancellation

Partner may not cancel Orders except with Semifly’s written approval. Orders for Third Party Products are subject to availability and are cancellable only by Semifly. If Partner purchases a multi-year software license and related support or maintenance, and Partner and Semifly agree to make installment payments of the purchase price over the term of the license, then Partner shall make all such installment payments in full, and the purchase is non-cancellable over the term of the license.

 

Semifly is not responsible for pricing, typographical, or other errors in any offer or quote, and reserves the right to cancel any Order arising from such errors. In addition, Semifly may cancel Orders due to shortage of products or materials, increases in the costs of manufacturing, or any event beyond Semifly’s control.

 
4. Product Delivery
 
4.1 Shipment

Unless otherwise agreed, Semifly may ship parts of an Order separately, choose the common carrier, and shall arrange for shipment of the ordered Products to the ship-to address indicated in the Order, through a common carrier designated by Semifly.

Partner is responsible for inspecting the package(s) upon delivery and must note any visible damage on the proof of delivery (POD) or other delivery receipt Partner may be requested to sign. Semifly will not be responsible for any visible shipping damages not noted on the delivery receipt.

Partner must notify Semifly within 21 days of the invoice date if any part of the Order is missing, wrong, or damaged. Semifly is not liable for any damage or loss to the Product when non-Semifly-provided shipping method is used for shipping from Semifly to Partner or End User. Shipping and Delivery dates are indicative. Software may be provided by delivery of physical media or through electronic means.

 
4.2 Transfer of Risk of Loss and Title

Unless otherwise indicated in a respective attached Schedule, risk of loss and title for Products and licensed Software transfers to Partner or its representative upon Delivery. Title to and ownership of Software does not pass to Partner or End User. Software is licensed, not sold.

 
4.3 Acceptance

All Products and Third Party Products will be deemed to be accepted upon Delivery. Notwithstanding such acceptance, Partner retains all rights and remedies under the warranty terms stated below.

 
4.4 No Returns

Neither Partner nor any of Partner’s End Users may return Products to Semifly, except as expressly permitted under this Agreement or otherwise agreed in writing by Semifly.

 
4.5 Security Interest

Where permitted by local law, Partner will hold Hardware on a fiduciary basis as Semifly’s bailee, until full payment is received, including any late payment fees and costs of collection. Partner agrees Semifly may file any financing statements or related filings for protecting this security interest as Semifly reasonably deems necessary or appropriate.

 
5. Software
 
5.1 License Grant for Resale Purposes

Subject to Partner’s compliance with the terms of the Agreement, Semifly grants to Partner a non-exclusive, non-transferable right to resell and distribute Software procured from Semifly for resale purposes to the respective End User, for End User’s internal business operations only. The quantity and definition of Software licensing units provided for resale, and any other usage conditions and restrictions, are agreed upon between Semifly and Partner for each Order (usually provided in Semifly’s Quote), and Partner shall ensure that these are accurately reflected and detailed in the End User Agreement.

 
5.2 EULA-based Licensing

End User’s rights to use the Software delivered by Semifly are governed by the terms of the applicable end user license agreement. Unless different terms have been agreed between the Parties, the terms posted on www.semifly.com/eula (the “EULA”) shall apply. Semifly will provide a hard copy of the applicable terms upon request.

Partner will ensure that each End User is notified that Software is subject to and governed by the EULA, and Partner will ensure the End User agrees and accepts such terms. Partner may not modify the EULA. Unless expressly otherwise agreed, microcode, firmware, or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions is licensed for use solely on such Equipment.

 
5.3 Third Party Software

Without limiting the generality of the foregoing EULA-based Licensing section above, for any Third Party Software, Partner shall comply with the applicable license terms and requirements of the applicable third party licensor. Partner will ensure all End Users are notified that the Third Party Software is subject to and governed by the applicable third party licensor’s own license terms, and Partner will ensure the End User agrees and accepts such terms.

 
5.4 Activation Codes

If Partner receives activation or registration codes or license keys (“Activation Codes”), Partner shall distribute the Activation Codes as directed by Semifly and to activate:

  • (i) only the particular Software copy / licensing units for which the Activation Codes are intended by Semifly to be used; and
  • (ii) only as many copies / licensing units of the Software as licenses Partner has purchased and resold to End User.

Partner shall not reuse Activation Codes for multiple End Users or for multiple Software copies for the same End User. Partner must not use Activation Codes from any source other than Semifly or an authorized representative.

 
5.5 Installation of Software by Partner on Behalf of End User

Before Partner downloads, installs, or otherwise uses Software on behalf of an End User, Partner shall:

  • (i) obtain the End User’s written authorization to accept the applicable End User license terms on behalf of the End User; and
  • (ii) comply with such terms when using the Software itself.

5.6 License Compliance Management

Partner will immediately notify Semifly if it becomes aware of any End User’s violation of the End User license terms or Partner’s license terms agreed with the End Users as they relate to the Software provided hereunder, and Partner shall refrain from waiving any rights or remedies against the End User in that regard.

Partner will ensure that Semifly has the ability to review and audit End User’s usage of the Software for compliance with the applicable terms and shall collaborate with Semifly in good faith on any audits conducted in relation to End User’s usage. Semifly may, without waiving any other rights or remedies and without liability to Partner or End User, suspend or terminate the provision of any Software license to End User in response to End User’s violation or where Semifly has valid reasons to believe that a violation has occurred.

 
5.7 Limitations

Except for any Software license expressly granted to Partner in this Agreement, all rights in and to the Software provided for resale are retained by Semifly or the respective third party, and no additional rights are granted, and none shall be implied. All Software licenses are for use of object code only unless expressly provided otherwise in the applicable End User license terms.

Unless expressly agreed otherwise, microcode, firmware, or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions is licensed for use solely on such Equipment item. Without Semifly’s prior written consent and except as otherwise permitted by mandatory law, Partner shall not, and Partner shall not permit End User or any third party to do any of the following:

  • (i) sublicense any Software
  • (ii) cause or permit the copying or reproduction of Software
  • (iii) translate, adapt, enhance, supplement, vary, or modify the Software or the related documentation
  • (iv) disassemble, decompile, or reverse engineer the Software, or create any derivative works based thereon
  • (v) use the Software to refurbish Semifly’s products
  • (vi) use Software in a hosting, service bureau, application service provider, or similar capacity
  • (vii) perform any comparative or competitive analyses, benchmark testing, or analyses of Products

6. Services
 
6.1 Support Services

A. Availability of Support Services is governed by Semifly’s applicable “End-of-Service-Life” and release support policies available at www.semifly.com/support or as otherwise communicated by Semifly (“Support Policies”). Unless otherwise agreed, Support Services will terminate at the earlier of:

  • (a) the expiration of the term for Support Services purchased by Customer; or
  • (b) the applicable End-of-Service-Life date.

B. Support Services do not cover:

  • (a) problems that are excluded from warranty coverage
  • (b) problems that cannot be reproduced at Semifly’s facility or via remote access to Customer’s facility
  • (c) onsite activities for Products located outside the applicable service area
  • (d) damage or defects that do not affect device functionality

C. Tools and Parts Storage.

Semifly may store tools and spare parts for diagnostic or remedial activities in connection with Services at Partner’s or End User’s site or on their systems for use by Semifly’s authorized personnel.

 
7. Invoicing; Payment Terms and Taxes
 
7.1 Invoicing

Semifly shall invoice in the currency agreed in the Order. If Semifly is obligated by applicable law to collect and remit any taxes or fees, then Semifly will add the appropriate amount to the invoices as a separate line item in accordance with statutory requirements. Semifly may invoice parts of an Order separately or may invoice purchases of Products and Services in one (1) invoice. Additional charges will apply if Partner requests customized invoicing, consolidated invoicing, or other special billing arrangement or statements.

All invoice terms will be deemed accurate unless Partner advises Semifly in writing of a material error within ten (10) days from the date of such invoice. If Partner advises Semifly of a material error, (i) any amounts corrected or modified by Semifly in writing must be paid within fourteen (14) days of the correction, and (ii) Partner shall pay all other undisputed amounts by the invoice due date.

 
7.2 Payment Terms

Partner shall pay Semifly’s invoices in full per the account, currency, payment, time period, and credit conditions stated in Semifly’s invoice. Where an invoice does not specify a payment term, payment is due within 30 days after the date of the invoice, subject to continuing credit approval by Semifly (such approval may be revoked by Semifly without notice).

Where permitted by local law, payments occurring after the invoice due date may generate late payment fees and interest. If not restricted by local statutory provision, Semifly shall, without waiving any other rights or remedies, be entitled to charge interest, recovery costs, expenses, costs of collection, or administrative fees (“Fees”) on overdue amounts. Late payment fees and/or interest will be recalculated every 30 days thereafter based on the current outstanding balance at the lesser of 1.5% per month (18% per annum) or the maximum rate permitted by law.

 
7.3 Taxes

Unless expressly stated otherwise in a Quote, the charges due hereunder are exclusive of, and Partner shall pay or reimburse Semifly for, all value added (VAT) sales, use, property, excise, withholding, and other similar taxes, governmental fees, customs, import duties, and/or other applicable levies, resulting from Partner’s purchase, except for taxes based on Semifly’s net income, gross revenue, or employment obligations. If Partner qualifies for a tax exemption, Partner must provide Semifly with a valid certificate of exemption or other appropriate proof of exemption within 60 days of remittance to the applicable tax authority.

 
8. Equipment Warranty, Exclusions, and Disclaimers
 
8.1 Equipment Warranty

Semifly warrants that Equipment, under normal usage and with regular recommended service, will be free from material defects in material and workmanship, and that Equipment will perform substantially in accordance with the corresponding standard documentation issued by Semifly for the applicable Equipment. Unless provided otherwise in a Schedule, additional terms governing the limited warranties for Products and Services are found at www.semifly.com or in the applicable documentation for the specific Equipment.

 
8.2 Support Services/Tag Transfer

As permitted by Semifly, Partner may transfer the asset/service identification number to the End User that is associated with the Equipment purchased for resale. If Partner transfers the asset/service identification number, Partner must comply with the process found at www.semifly.com/support, which process Semifly may change from time to time.

Partner’s failure to properly transfer the asset/service identification number of the Equipment will result in the End User’s inability to receive Support Services from Semifly for such Equipment, and Semifly will not be liable to Partner or to any End User for any such failure.

 
8.3 Equipment Warranty Exclusions

Semifly Product warranties do not cover problems that arise from:

  • (1) accident or neglect by Partner or any third party
  • (2) any third party items or services with which the Semifly Product is used or other causes beyond Semifly’s control
  • (3) re-sale, installation, operation, or use not in accordance with this Agreement, Semifly’s instructions, or the applicable Documentation
  • (4) use in an environment, in a manner, or for a purpose for which the Semifly Product was not designed
  • (5) modification, alteration, or repair by anyone other than Semifly or its authorized representatives
  • (6) in case of Equipment only, causes attributable to normal wear and tear

8.4 Warranty Disclaimer

Other than the warranties set forth in this Agreement, its Schedules, and to the maximum extent permitted by applicable law, Semifly and its Affiliates, and their providers:

  • (i) make no other express warranties
  • (ii) disclaim all implied warranties, including merchantability, fitness for a particular purpose, title, and non-infringement
  • (iii) disclaim any warranty arising by statute, operation of law, course of dealing, or performance or usage of trade

9. Indemnity
 
9.1 Semifly Intellectual Property Indemnity

Semifly will:

  • (a) defend Partner against any third party claim that Products or Support Services (but excluding Third Party Products, any Products provided for evaluation or without charge, and open source software) infringe that Party’s patent, copyright, or trade secret enforceable in the country where Partner purchased the Product from Semifly (“Claim”); and
  • (b) indemnify Partner by paying:
    • (1) the resulting costs and damages finally awarded against Partner by a court of competent jurisdiction to the extent that such are the result of the third party Claim; or
    • (2) the amounts stated in a written settlement negotiated and approved by Semifly.

In addition, should any Product or Support Service become, or in Semifly’s opinion be likely to become, the subject of such a Claim, Semifly may, at its expense and in its discretion:

  • (a) obtain a right for Partner to continue using the affected Product or Support Service;
  • (b) modify the affected Product or Support Service to make them non-infringing;
  • (c) replace the affected Product or Support Service with non-infringing substitutes;
  • (d) provide a reasonable depreciated or pro rata refund for the affected Product; or
  • (e) discontinue the Support Services and refund the portion of any prepaid Support Service fees that correspond to the period of Support Services discontinuance.

9.2 Exclusions from Indemnity

Semifly has no obligation under section “Semifly Intellectual Property Indemnity” above:

  • (i) if Partner is in material breach of this Agreement; or
  • (ii) for any Claim resulting or arising from:
    • (1) any combination, operation, or use of a Semifly Product with any other products, services, items, or technology, including Third Party Products and open source software;
    • (2) use for a purpose or in a manner for which the Semifly Product was not designed, or use after Semifly notifies Partner or End User to cease such use due to a possible or pending Claim;
    • (3) any modification made by any person other than Semifly or its authorized representatives;
    • (4) any modifications made by Semifly pursuant to instructions, designs, specifications, or any other information provided to Semifly by or on behalf of Partner or End User;
    • (5) use of any version of a Semifly Product when an upgrade or newer iteration of the Product made available by Semifly would have avoided the infringement;
    • (6) services provided by Partner or End User (including Claims seeking damages based on any revenue Partner or End User derives from Partner’s or End User’s services); or
    • (7) any data or information which Partner or a third party records on or utilizes in connection with the Semifly Products.

9.3 Partner Indemnity

Partner will defend and indemnify Semifly and its Affiliates against any third party claim resulting or arising from:

  • (i) Partner’s failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by Partner, or with non-Semifly software or other components that Partner directs or requests that Semifly use with, install, or integrate as part of the Products or Services;
  • (ii) Partner’s violation of Semifly’s or its Affiliates’ proprietary rights;
  • (iii) failure of Partner to abide by all applicable laws, rules, regulations, and orders that affect the Products;
  • (iv) any warranties or representations made by Partner which differ from those provided by Semifly;
  • (v) Partner’s misuse or abuse of the Products, negligence, or breach of any provision in this Agreement; or
  • (vi) the Excluded Claims.

9.4 Indemnification Process

A party’s duty to defend and indemnify under this section is contingent upon:

  • (i) the party seeking indemnity sending prompt written notice of the Claim to the party providing indemnity and taking reasonable steps to mitigate damages;
  • (ii) granting to the party providing indemnity the sole right to control the defense and resolution of the Claim; and
  • (iii) cooperating with the party providing indemnity in the defense and resolution of the Claim and in mitigating any damages.

10. Limitation of Liability
 
10.1 Limitations on Direct Damages

SEMIFLY’S TOTAL LIABILITY FOR DISPUTES IS LIMITED TO THE AGGREGATE DOLLAR AMOUNT SEMIFLY RECEIVED UNDER THIS AGREEMENT DURING THE TWELVE MONTHS BEFORE THE DATE THAT THE DISPUTE AROSE FOR THE SPECIFIC PRODUCTS, SERVICES, OR BOTH THAT ARE THE SUBJECT OF THE DISPUTE, BUT EXCLUDING AMOUNTS RECEIVED AS REIMBURSEMENT OF EXPENSES OR PAYMENT OF TAXES.

 
10.2 No Indirect Damages

EXCEPT FOR PARTNER’S PAYMENT OBLIGATIONS AND VIOLATION OF SEMIFLY’S OR ITS AFFILIATES’ INTELLECTUAL PROPERTY RIGHTS, NEITHER SEMIFLY NOR PARTNER HAS LIABILITY TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR LOST PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE, OR PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.

 
10.3 Regular Back-ups

Partner and its End Users are solely responsible for their data. Partner shall, and cause its End Users to, back up their data before Semifly performs any remedial, upgrade, or other work on production systems. If applicable law prohibits exclusion of liability for lost data, then Semifly will only be liable for the cost of the typical effort to recover the lost data from Partner’s or End Users’ last available back-up.

 
11. Confidentiality
 
11.1 Definition

“Confidential Information” means any information, pricing, technical data, or know-how furnished in connection with Quotes, Orders, and Offerings that are governed by these Terms of Sale, whether in written, oral, electronic, website-based, or other form, by a Partner or a Partner Affiliate to Semifly or a Semifly Affiliate or vice versa and that:

  • (a) is marked, accompanied, or supported by documents clearly and conspicuously designating such documents as “confidential”, “internal use” or the equivalent;
  • (b) is identified by the discloser as confidential before, during, or promptly after the presentation or communication; or
  • (c) should reasonably be known by the recipient to be confidential.

Confidential Information does not include information that:

  • (1) is rightfully in the receiving Party’s possession without prior obligation of confidentiality from the disclosing Party;
  • (2) is a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other Party);
  • (3) is rightfully furnished to the receiver by a third party without confidentiality restriction; or
  • (4) is independently developed by the receiver or its Affiliates without reference to the discloser’s Confidential Information.

11.2 Protection of Confidential Information

Each Party will ensure that, where it or one of its Affiliates is the receiver of Confidential Information hereunder, the receiver will:

  • (a) use Confidential Information of the discloser only for the purposes of exercising rights or performing obligations in connection with these Terms of Sale or any Order hereunder; and
  • (b) protect from disclosure to any third parties any Confidential Information disclosed by the discloser, both for a period commencing upon the date of disclosure until 3 years thereafter.

11.3 Permitted Disclosures

Notwithstanding the foregoing, either Party and its Affiliates may disclose Confidential Information:

  • (a) to an Affiliate, or to a subcontractor used by Semifly to provide Services under these Terms of Sale, as long as the Affiliate or subcontractor has a need-to-know and complies with the foregoing;
  • (b) to either Party’s directors, officers, employees, and professional advisors and those of its Affiliates; and
  • (c) if required by law or regulatory authorities provided the receiver has given the discloser prompt notice.

12. Data Privacy
 
12.1 Compliance

Parties will comply with all data protection laws and regulations applicable to the processing of personal data under these Terms of Sale. In this section “personal data”, “controller”, “processor” and “processing” will have the meaning set out in the applicable data protection legislation.

 
12.2 Processing Terms

To the extent that Semifly processes any personal data on behalf of Partner in the performance of its obligations under these Terms of Sale, Semifly will only do so as required to fulfill its legal obligations pursuant to these Terms of Sale and either:

  • (a) as a controller and on its own behalf in accordance with its location-specific privacy policies, available at www.semifly.com/privacy, or
  • (b) as a processor acting on behalf of Partner in accordance with Semifly’s applicable data processing schedule available at www.semifly.com/dataprocessingschedule, or another data processing agreement executed by the Parties.

12.3 Partner Responsibilities

  • (a) maintaining reasonable measures to avoid Semifly’s access to personal data not required by Semifly in provision of any Products, Subscriptions, or Services; and
  • (b) obtaining all necessary rights, permissions, and consents associated with disclosure of any required personal data to Semifly, prior to such disclosure.

13. Trade Compliance
 
13.1 Export Control Compliance

Partner is subject to and responsible for compliance with the export control and economic sanctions laws of the United States, the European Union, and other applicable jurisdictions (collectively, “Applicable Trade Laws”). Partner agrees, without limitation, to abide by, and to assume sole responsibility for obtaining, and complying with the requirements of, all required export, re-export, in-country transfer, and import licenses, registrations, and other government authorizations relating to the Products and Services provided under this Agreement.

 
13.2 Restrictions

Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except in compliance with such laws, including, without limitation:

  • (a) export licensing requirements;
  • (b) end user, end-use, and end-destination restrictions; and
  • (c) prohibitions on dealings with sanctioned individuals and entities.

13.3 Partner Representations

Partner represents and warrants that it is not:

  • (a) the subject or target of economic sanctions of the United States, European Union, or other applicable jurisdictions; and
  • (b) located in a country or territory that is the subject or target of such sanctions.

13.4 Compliance Controls

  • (a) have adequate policies, procedures, and controls in place to ensure compliance;
  • (b) screen transactions with end-customers to ensure compliance with sanctions laws;
  • (c) maintain appropriate procedures to comply with anti-boycott laws and regulations; and
  • (d) provide timely notice to Semifly of any government actions concerning trade compliance.

14. Term and Termination
 
14.1 Term

This Agreement shall continue until terminated in accordance with its terms.

 
14.2 Termination for Convenience

Either Party may terminate this Agreement at any time upon sixty (60) days’ written notice to the other Party.

 
14.3 Termination for Cause

Semifly may terminate this Agreement, its Schedules, Service Agreements, or licenses for Software immediately upon written notice if:

  • (a) Partner is delinquent on its payment obligations;
  • (b) Partner fails to cure a payment default within 10 days after notice;
  • (c) Partner commits a material breach not cured within 30 days of notice;
  • (d) Partner becomes insolvent or subject to bankruptcy proceedings;
  • (e) Partner is acquired by or merged with a competitor of Semifly; or
  • (f) Partner breaches any intellectual property rights, obligations, warranties, or indemnities.

14.4 Effect of Termination

  • (a) Outstanding Orders will be completed unless otherwise agreed;
  • (b) All amounts due become immediately payable;
  • (c) Partner must cease all resale activities;
  • (d) Partner must return all Confidential Information; and
  • (e) Survival provisions remain in effect.

15. General Provisions
 
15.1 Governing Law

This Agreement and any Disputes shall be governed by the laws of the State of Texas, excluding conflicts of law rules. The parties submit to the exclusive jurisdiction of the state and federal courts in Texas.

 
15.2 Assignment

Neither Party may assign this Agreement without the other Party’s prior written consent, except Semifly may assign to its Affiliates.

 
15.3 Force Majeure

Neither Party will be liable for delays or failures due to circumstances beyond reasonable control, except for payment obligations.

 
15.4 Independent Contractors

The Parties are independent contractors. No partnership or joint venture is created.

 
15.5 Notices

All notices must be in writing and sent to the addresses specified in the Agreement.

 
15.6 Entire Agreement

This Agreement constitutes the complete agreement between the Parties and supersedes all prior agreements regarding its subject matter.

 
15.7 Severability

If any provision is held invalid, the remaining provisions remain in effect.

 
15.8 No Waiver

Failure to enforce any provision will not constitute a waiver.

 
15.9 Survival

Provisions relating to payment, confidentiality, liability, data privacy, and any other provisions that by their nature should survive, will survive termination.

 
Last Updated: October 26, 2024