Software License Resale Agreement
Effective May 1, 2023
This Software License Resale Agreement (“SLR Agreement”) incorporates by reference the applicable Software License Resale Quote (“Quote”) between Arctic Information Technology, Inc. (“Arctic IT”) and Client. Arctic IT and Client are referred to in this SLR Agreement individually as a “Party” and collectively as the “Parties.”
- Terms Applicable to Software License(s).
- For purposes of this Quote, Arctic IT is acting only as an agent of Microsoft or other third-party vendor(s) (“Software Vendor(s)”) for the limited purpose of reselling the licenses defined in the Quote (“License(s)”). Arctic IT is not, and shall not be deemed to be, a party to any of the License(s). Each of the License(s) is subject to the terms and conditions stated in the separate software license agreements, customer agreements terms of use, and other documents which are provided by the Software Vendor(s) in connection with the License(s) all of which must be separately accepted by Client.
- Arctic IT has no control over any of the terms and conditions of the License(s) or the performance of the software that is the subject of the License(s), all of which are exclusively governed and controlled by the Software Vendor(s). As such, the Parties hereby expressly agree to the following:
- To the maximum extent permitted under applicable law, Article 2 of any applicable State Uniform Commercial Code shall not apply to the resale of the License(s) under this SLR Agreement.
- To the extent that the Uniform Computer Information Transactions Act (“UCITA”) is applicable to this SLR Agreement, either directly or by analogy, and its application can be waived or disclaimed, the Parties hereby knowingly, intentionally, and voluntarily waive and disclaim any application of UCITA to the resale of the License(s) under this SLR Agreement.
- ARCTIC IT MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE LICENSE(S) RESOLD UNDER THIS SLR AGREEMENT OF ANY KIND OR NATURE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FREEDOM FROM FAULTS OR DEFECTS, OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THAT THE LICENSE(S) WILL BE FREE FROM ERRORS, CONFORM TO SPECIFICATIONS OR BE FREE FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY OR MORAL RIGHTS.
- Client shall look solely to the Software Vendor(s), and not to Arctic IT, for any warranties or other remedies or damages arising from any aspect of the License(s), including without limitation the failure of the software/License(s) to perform in conformance with documentation or specifications, as anticipated, or to correct errors, omissions or defects in the design or performance of the software as licensed. ARCTIC IT SHALL NOT BE LIABLE FOR ANY MONETARY OR OTHER DAMAGES ARISING FROM CLIENT’S USE, OR THE PERFORMANCE, OF THE LICENSE(S), WHETHER DIRECT OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE IN NATURE, AND EVEN IF ARCTIC IT HAS BEEN ADVISED OF THE LIKELIHOOD THEREOF; ALL SUCH MONETARY OR OTHER DAMAGES ARE HEREBY EXPRESSLY DISCLAIMED.
- TO THE EXTENT THAT ANY OF THE FOREGOING CANNOT BE EXPRESSLY WAIVED OR DISCLAIMED, ARCTIC IT’S ENTIRE LIABILITY TO CLIENT FOR ANY CLAIM OF FAULT, DEFECT, BREACH OF WARRANTY, INFRINGMENT, OR FAILURE OF THE SOFTWARE ASSOCIATED WITH THE LICENSE(S) TO PERFORM, SHALL BE LIMITED TO THE AMOUNT PAID BY CLIENT FOR THE LICENSE(S) OVER THE THREE (3) MONTH PERIOD IMMEDIATELY BEFORE THE INCIDENT GIVING RISE TO SUCH CLAIM. IF LICENSE(S) ARE PAID ANNUALLY, THE ANNUAL FEE WILL BE PRO-RATED ON A TWELVE (12) MONTH BASIS AND ARCTIC IT’S LIABILITY SHALL BE LIMITED TO THREE (3) MONTHS OF SUCH PRO-RATED FEE.
- Client’s obligations under this SLR Agreement with regard to the License(s) are made expressly for the benefit of, and are intended to confer benefits on, Arctic IT as the third party reseller of the License(s) and that Arctic IT, as a third party beneficiary, shall have the right to enforce Client’s obligations under this SLR Agreement with regard to the License(s), including without limitation the obligation to pay any and all subscription or other fees payable therefor, and to seek remedies for Client’s breach thereof, to the same extent as Arctic IT would have if it were a party to the License(s).
- Certain License(s) require an annual commitment that will be billed in accordance with the monthly or annual terms stated in the Quote. The term of each License is one (1) calendar year. Client shall provide Arctic IT with written notice of the intent to terminate this SLR Agreement, or any required change in the type of License(s) or quantity of Licenses at least ninety (90) calendar days before the end of the then-current License(s) term. Failure by Client to provide timely notice to Arctic IT of termination or any change or reduction in the number of License(s) shall obligate Client to pay the annual payment, in full, without setoff or reduction of any kind or nature.
- Licenses are dependent on Software Vendor pricing and if a price change is implemented by the Software Vendor, it will be passed on to Client by Arctic IT at the time of implementation.
- For the duration of the Quote, Client hereby irrevocably grants Arctic IT authority to accept any applicable Software Vendor License Agreement(s) on Client’s behalf, binding Client to the terms and conditions of the applicable terms and conditions of License(s) purchased by Client. Client acknowledges and agrees that this SLR Agreement constitutes a “Customer Purchase Agreement” on behalf of Client as “Customer” with regard to the License(s) as provided in the Microsoft Dynamics Solution Provider Agreement (SPA) or other similar, Software Vendor agreement(s).
- Payment Terms
- Arctic IT accepts payment in the form of Automated Clearing House (ACH), bank wire transfer, or business check made payable to “Arctic Information Technology, Inc.,” drawn on a reputable bank authorized to do business in the State of Alaska, USA. Arctic will send a secured token to Client’s authorized representative to obtain Client’s ACH or wire transfer instructions. Thereafter, Arctic IT will invoice Client and process Client checks or initiate ACH or wire transfer payments, as elected by Client.
- The monthly or annual payment for each License must be paid by Client in advance, and each payment shall be past due if not paid in full within thirty (30) days thereafter. ALL PAYMENTS ARE NON-CANCELABLE AND NONREFUNDABLE as Arctic IT must make payment to the applicable software vendor(s).
- It is Client’s responsibility to keep its ACH or wire transfer authorization information provided to Arctic IT current. Arctic IT shall have the right to rely upon the accuracy of the ACH or wire transfer authorization provided by Client, without the obligation to verify its accuracy, prior to initiating each payment. Arctic IT shall also have the right to collect from Client the actual amount of any overdraft, or other fees associated with a denial of payment charged to Arctic IT, plus an internal administrative charge of Fifty Dollars ($50) per each such overdraft or denial of payment. Any License payments, fees, or charges that remain unpaid for more than thirty (30) days past due, will: (a) bear interest at the rate of 10.5% per annum, or the maximum legal interest rate allowed by law, if less than 10.5%, until paid in full, (b) constitute a material breach of this SLR Agreement, (c) give Arctic IT the right to terminate this SLR Agreement, and (d) subject Client to liability for any outstanding, unpaid, License payments due for the current annual term, which shall immediately be accelerated and become due and payable in full. All Arctic IT remedies.
- Indemnity
Client shall defend, indemnify and hold Arctic IT, its parents, subsidiaries, and affiliates, and all of their respective owners, shareholders, directors, managers, officers, employees, agents, or contractors (each an “Indemnitee”) harmless, from and against any and all actual or alleged claims, actions, proceedings, fines, judgments, penalties, awards costs or fees, including without limitation, attorneys’ fees and legal costs (collectively “Claims”), arising out of, pertaining to or connected with the performance of this SLR Agreement, except to the extent any such Claim is caused by the negligence, gross negligence or willful misconduct of any such Indemnitee. - General Terms
- This SLR Agreement and the Quote are fully integrated and constitute the final written expression of the Parties with respect to this subject matter, and supersede any and all prior or contemporaneous communications, representations, or warranties of any kind or nature, whether oral, written, or electronic in form, concerning this subject matter, which is not included in this SLR Agreement or the Quote.
- This SLR Agreement cannot be amended except in writing signed and dated by authorized representatives of the Parties.
- All notices or other communications required or permitted by this SLR Agreement shall be in writing and shall be deemed to have been duly received (a) if given by e-mail with confirmation of delivery/read receipt or reply message acknowledging receipt; (b) if given by certified or registered mail, return receipt requested, postage prepaid, three business days after being deposited in the U.S. mails and (d) if given by courier or other means when received or personally delivered, and, in any such case, addressed as follows:
- Arctic IT:
Arctic Information Technology, Inc.
11500 Sukdu Way, Suite 150
Anchorage, AK 99515
Telephone: 844.461.9500
Email: [email protected]With a copy to:
Doyon, Limited
Attn: General Counsel
1 Doyon Place, Suite 300
Fairbanks, AK 99701
Telephone: (907) 459-2000
Email: [email protected] - Client – address and contact information on Quote
- or to such other addresses as may be specified by any such person to the other person pursuant to notice given by such person in accordance with the provisions of this section.
- Arctic IT:
- Client may not assign or transfer any or all of its rights or obligations under this SLR Agreement without the prior written approval of Arctic IT. Arctic IT may assign or transfer all (but not less than all) of its rights and obligations under this SLR Agreement to any entity that is a parent, subsidiary, or affiliate of Arctic IT without the prior written approval of Client.
- This SLR Agreement shall be governed, interpreted, and construed in accordance with the internal laws of the State of Alaska, without regard to its choice of law provisions. Jurisdiction and venue shall lie exclusively in the Courts for the State of Alaska, Third judicial district, at Anchorage, Alaska, or in the Federal District Court for the District of Alaska at Anchorage, unless a non-waivable state or federal law should require the contrary.