THESE RESELLER TERMS (‘RESELLER TERMS’) ARE A LEGAL AGREEMENT BETWEEN J/K LABS INC. (‘J/K LABS’, ‘OPSLEVEL’, ‘US’, ‘WE’, OR ‘OUR’) AND THE COMPANY YOU REPRESENT (‘RESELLER) WHERE YOU SUBMIT A ‘RESELLER ORDER’ (BEING A RESELLER ORDER FORM IN SUCH FORM AS IS SPECIFIED BY US) THAT IS ACCEPTED BY US FOR THE RESALE OF THE PLATFORM AND GOVERNS YOUR RESALE OF OUR PLATFORM. BY SUBMITTING A RESLLER ORDER FOR THE PLATFORM AND ACCEPTING THESE RESELLER TERMS, YOU AGREE TO BE BOUND BY ALL OF THEIR PROVISIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE RESELLER TERMS ON THE OPSLEVEL’S BEHALF. IF YOU DO NOT AGREE WITH THE RESELLER TERMS, YOU SHOULD NOT INDICATE ACCEPTANCE AND MAY NOT USE THE PLATFORM.
PLEASE READ THESE RESELLER TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. We reserve the right to amend these Reseller Terms from time-to-time, in whole or in part, in which case the updated Terms will supersede the prior version. Any changes to the Terms will be effective immediately for new Resellers and, for all other Resellers, any changes will be effective five (5) business days after the date of such changes.
1.1 Resale and Provision of the Platform. Subject to the terms and conditions of these Reseller Terms and an accepted Reseller Order (together, the “Agreement”), OpsLevel shall make the Platform available to customers in the Territory to whom Reseller has, in accordance with the terms and conditions of this Agreement, resold Platform plans (“Customers”), for the purpose of allowing such Users to use the Platform. Each User will be entitled to use the Platform in accordance with the terms of the applicable Reseller Order accepted by OpsLevel in writing Reseller acknowledges and agrees that the Platform is provided on a non-exclusive basis and OpsLevel may make the Platform available to other persons or entities including other resellers.
1.2 Reseller Orders. Reseller will place orders for subscription by Customer to the Platform under these Reseller Terms by delivering a Reseller Order to OpsLevel. Reseller Orders shall set out the commercial terms of any Customer subscription, including without limitation the details of the subscription plan, fees payable, term, Customer details, and term of subscription. No Reseller Order will be binding until executed by OpsLevel and executed Orders are non-cancellable by Reseller.
1.4 Branding Rights. Subject to the terms and conditions of this Agreement and payment of the applicable fees, OpsLevel authorizes Reseller to use the OpsLevel mark and other OpsLevel branding and logos used by OpsLevel in marketing the Platform (collectively, the “OpsLevel Marks”) solely in connection with the marketing and resale of the Platform as permitted by this Agreement, and only in accordance with the trademark use policies of OpsLevel in effect from time to time regarding use of the OpsLevel Marks, which OpsLevel will provide to Reseller. Reseller shall reasonably cooperate with OpsLevel in facilitating OpsLevel’s monitoring and control of the nature and quality of Reseller's use of the OpsLevel Marks. All uses of the OpsLevel Marks by Reseller will inure to the benefit of OpsLevel.
1.5 Conduct. Reseller will conduct itself in a professional manner that reflects positively on OpsLevel. Reseller will not represent itself as an agent or employee of OpsLevel, make any representation, warranty or commitment on OpsLevel’s behalf or describe OpsLevel, the Service, or its offerings except in a manner consistent with written descriptions provided by OpsLevel for such purpose. Reseller will not engage in any deceptive, misleading, illegal or unethical practices, including any misuse of the Brand Elements, and will comply with all applicable Laws in its performance of this Agreement, including Anti-Corruption Laws, and will not give, offer or promise any item of value to any official, person or entity in violation of any Anti-Corruption Laws. None of Reseller’s principals or staff are agents or representatives of governments (as defined or identified by local Law, regulation or custom) or government agencies in the country where Customer is located. Reseller will not take any action intended, or would reasonably be expected, to harm OpsLevel or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity of OpsLevel. Reseller will at all times conduct itself according to the highest standard of business ethics
2. FEES AND PAYMENT TERMS AND TAXES
2.1 Payment Terms. In consideration for the right to resell the Platform, Reseller shall pay OpsLevel the fees specified in the applicable Reseller Order for Customer authorized to use the Platform pursuant to a Subscription Agreement with Reseller. All payments shall be made by Reseller within thirty (30) days after the receipt by Reseller of the applicable invoice from OpsLevel, or as other specified in the applicable Reseller Order.
2.2 User Billing. Reseller will independently determine the pricing at which it offers the Service to Customer. Reseller will be solely responsible for collecting all fees from Customer. Non-payment by Customer will not relieve Reseller of its obligation to pay fees to OpsLevel as described in this Section 2. OpsLevel reserves the right to terminate these Terms, an applicable Order, cancel or suspend the Service without notice with respect to any Customer if it fails to receive payment(s) from Reseller with respect to such Customer, and to recover its reasonable costs and expenses, expended in collection.
2.3 Taxes. All charges and fees provided for in this Agreement are exclusive of and do not include any foreign or domestic governmental taxes or charges of any kind imposed by any federal, state, provincial or local government on the transactions contemplated by this Agreement, including without limitation excise, sales, use, property, license, value-added taxes, goods and Platforms, harmonized, franchise, withholding or similar taxes, customs or other import duties or other taxes, tariffs or duties other than taxes that are imposed based on the net income of OpsLevel. Any such taxes that are imposed on payments to OpsLevel shall be the sole responsibility of Reseller.
2.4 Overdue Payments. Any payment not received from Reseller by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at OpsLevel’s discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.1 Obligation. Neither party shall use any Confidential Information of the other party except as necessary to exercise its rights or perform its obligations under this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, Platform Resellers, customers, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it at least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.
3.2 Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages if any unauthorized use or disclosure of its Confidential Information occurs or is threatened. In addition to any other remedies that may beavailable in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
3.3 Other Exemptions. Notwithstanding the foregoing provisions in this Section 3, the parties may disclose this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the-counter trading system provided that reasonable measures are used to preserve the confidentiality of the Agreement; (ii) in confidence to legal counsel; (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available; (iv) in connection with the enforcement of this Agreement or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of the Agreement; (v) in confidence, to auditors, accountants and their advisors; (vi) in confidence, in connection with a change of control or potential change of control of a party or an Affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure.
4. WARRANTIES AND DISCLAIMERS
4.1 OpsLevel Warranties. OpsLevel represents and warrants to Reseller that: (a) OpsLevel is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (b) OpsLevel has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; and (c) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of OpsLevel.
4.2 Reseller Warranties. Reseller represents and warrants that: (a) Reseller is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (b) Reseller has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; and (c) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of Reseller.
4.3 Disclaimer. Except as specifically set forth in this SECTION 4 THE PLATFORM AND the OPSLEVEL MATERIALS Are PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY AND/OR CONDITION OF ANY KINd. OPSLEVEL AND ITS LICENSORS AND/OR SUPPLIERS make no OTHER REPRESENTATIONS AND GIVE NO OTHER warranties OR CONDITIONS, express, implied, statutory, OR OTHERWISE regarding THE PLATFORM OR the OPSLEVEL MATERIALS PROVIDED UNDER THIS Agreement AND OpsLevel specifically disclaims ANY AND ALL statutory REPRESENTATIONS, warrantIES AND/OR CONDITIONS INCLUDING ANY IN RESPECT TO non-infringement, merchantability, MERCHANTABLE QUALITY, DURABILITY, TITLE and fitness for a particular purpose.
5. TERM AND TERMINATION
5.1 Term. Unless terminated, these Terms will commence on the Effective Date and remain in effect for the Customer Commitment Term and any subsequent renewal commitment term or Reseller Order entered into by Reseller and OpsLevel on Customer’s behalf (the “Term”).
5.2 Termination. Each party may terminate this Agreement with notice if the other party: (i) assigns or attempts to assign this Agreement to a third-party in breach of section 7.2; (ii) fails to correct a material breach of its obligations under this Agreement within thirty (30) Business Days after receipt by such other party of written notification from the notifying party of such material breach; or (iii) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party.
5.3 Effect of Termination. Upon termination of this Agreement, OpsLevel shall continue to provide the Platform for any existing Users as of the effective date or expiration or termination for which Reseller has paid the applicable fees (such User(s) referred to as the “Wind-Down User(s)”). OpsLevel shall continue to provide the Platform for the Wind-Down User(s) for the remaining term of the Subscription Agreement with each such Wind-Down User (the “Wind-Down Period”). For greater certainty, any Wind-Down Users who are entitled to continue to receive the Platform shall be entitled to continue to receive and use the Platform in the same manner as the Platform was being received and used prior to the termination or expiration of this Agreement. Upon expiration or termination of this Agreement, Reseller shall cease all use of all Platform-related materials in Reseller’s possession and shall certify such destruction upon written request.
5.4 Rights upon Termination. Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available.
6. LIMITATION OF LIABILITY
6.1 IN NO EVENT SHALL EITHER PARTY, OR ITS LICENSORS BY VIRTUE OF THIS AGREEMENT, HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS, OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, LOST OPPORTUNITY COSTS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS SET FORTH IN THIS SECTION DO NOT APPLY TO ANY BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS OR RESTRICTIONS OR OBLIGATIONS IN RESPECT OF INTELLECTUAL PROPERTY RIGHTS AND NON-INFRINGEMENT . EXCEPT FOR EXCLUDED CLAIMS AND SPECIAL CLAIMS, OPSLEVEL’S (AND ITS SUPPLIERS’) LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED IN AGGREGATE THE AMOUNTS ACTUALLY PAID BY RESELLER TO OPSLEVEL DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.
7.1 Invoices. The terms, provisions and/or conditions of any purchase order or other business form or written authorization used by either party will have no effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of the receiving party to object to those terms, provisions or conditions.
7.2 Assignment. Reseller shall not have the right to assign any rights under an Agreement. Any assignment in violation of this Section shall be null and void from the beginning, and shall be deemed a material breach of this Agreement.
7.3 Waiver and Amendment. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
7.4 Choice of Law. This Agreement shall be governed by the laws of the Province of Ontario, excluding all conflict of laws provisions and excluding the 1980 United Nations Convention on Contracts for the International Sale of Goods.
7.5 Compliance with Laws. Each party agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries, and will not transfer, or authorize the transfer, directly or indirectly, of the Platform or any direct product of any of the foregoing to a prohibited country or otherwise in violation of any such restrictions or regulations.
7.6 Notices. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the addresses set forth above. Notice shall be considered delivered and effective on the earlier of actual receipt or when: (a) personally delivered; (b) the day following transmission if sent by telex, telegram or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail. Notice shall be sent to the parties at the addresses set forth on the first page of this Agreement or at such other address as shall be specified by either party to the other in writing in accordance with this Section.
7.7 Independent Contractors. The parties are independent contractors. Neither party shall be deemed to be an employee, agent, Reseller, joint venturer or legal representative of the other for any purpose and neither party shall have any right, power or authority to create any obligation or responsibility on behalf of the other. Any use of the term “Partner” or “Partnering” or similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal partnership, but instead means or refers to a co-operative business or contractual relationship.
7.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
7.9 Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes (other than strikes involving such party). If either party’s performance is prevented by a force majeure event for a period of more than ninety (90) days, the other party may terminate this Agreement without further obligation or liability, subject to any payment amounts otherwise due.
7.10 Headings and References. The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
7.11 Complete Understanding. This Agreement, including all Reseller Orders, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement.
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