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Black Box Reseller Terms and Conditions

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.

THESE TERMS AND CONDITIONS ("AGREEMENT") CONSTITUTE A BINDING AGREEMENT BETWEEN YOU (“RESELLER”) AND BLACK BOX CORPORATION OF PENNSYLVANIA d/b/a BLACK BOX NETWORK SERVICES ("BLACK BOX"). YOU ACCEPT THIS AGREEMENT BY SIGNING THE RESELLER AGREEMENT SIGNATURE FORM. THIS AGREEMENT SHALL GOVERN YOUR PURCHASES OF PRODUCTS AND/OR SERVICES FROM BLACK BOX EITHER THROUGH BLACK BOX'S WEBSITE (THIS "SITE") OR BY YOUR SUBMISSION OF AN ORDER VIA PHONE, FACSIMILE, EDI, MAIL OR OTHER MEANS, UNLESS YOU AND BLACK BOX HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT, IN WHICH CASE SUCH SEPARATE WRITTEN AGREEMENT WILL GOVERN.
    
1.         DEFINITIONS

            Defined terms used in this Agreement shall have the meanings set forth below:

            1.1.   “Black Box Products” shall mean the products and services made generally available by Black Box and listed in Black Box’s catalogs and/or on Black Box’s Website and such other products and services as mutually agreed upon by the Parties in writing.

            1.2.   “Confidential Information” shall mean confidential or other proprietary information that is disclosed by either Party to the other Party under this Agreement, including, without limitation, business and product plans, service plans, pricing information, customer lists, customer contacts, and other confidential business information, whether in a written or non-written format. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the receiving Party; (ii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; (iii) is intentionally disclosed by the disclosing Party to a third party without restriction on disclosure; (iv) is rightfully received by the receiving Party from a third party without a duty of confidentiality; or (v) is disclosed pursuant to any judicial or governmental order, provided that the receiving Party gives the disclosing Party sufficient prior notice to contest such order.  

            1.3.   “Discount” shall mean the then-current discount as set forth in Black Box’s pricing database for a Black Box Product.

            1.4.   “Documentation” shall mean user manuals, training materials, product descriptions and specifications, technical manuals, supporting materials and other information in printed or electronic form relating to the Black Box Products and generally provided to customers of Black Box as of the date the related Black Box Product is shipped to Reseller.

            1.5.   “Effective Date” shall mean the date identified in the Reseller Agreement Signature Form as the Effective Date.

            1.6.   “End‑User” shall mean any third party that purchases Black Box Products from Reseller for its own internal use and not for redistribution.

            1.7.“Initial Term” shall have the meaning set forth in the Reseller Agreement Signature Form.

            1.8.   “Intellectual Property Rights” shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to, the Black Box Products, Confidential Information, Documentation, Marks, Specifications, and/or other products, documentation and materials, as applicable, and may include, without limitation: (i) all right, title and interest in and to all Letters Patent and all filed, pending or potential applications for Letters Patent, including any reissue, reexamination, division, continuation or continuation‑in‑part applications throughout the world now or hereafter filed; (ii) all right, title and interest in and to all trade secrets, and all trade secret rights and equivalent rights arising under the common law, state law, Federal law and laws of foreign countries; (iii) all right, title and interest in and to all mask works, copyrights, other literary property or author’s rights, whether or not protected by copyright or as a mask work, arising under common law, state law, Federal law and laws of foreign countries; and (iv) all right, title and interest in and to all proprietary indicia, trademarks, service marks, trade names, trade dress, symbols, logos and/or brand names protected under common law, state law, Federal law and laws of foreign countries.

            1.9.   “List Price” shall mean the undiscounted retail price for Black Box Products.

            1.10.  “Marks” shall mean all proprietary indicia, trademarks, service marks, trade names, trade dress, symbols, logos and/or brand names Black Box may adopt from time to time to identify Black Box, the Black Box Products or any related parties or materials.

            1.11.  “Material Defect” shall mean any reported malfunction, error or other defect in a Black Box Product that: (i) can be reproduced by Reseller and Black Box, and (ii) constitutes a material nonconformity with the Specifications for such Black Box Product.

            1.12.  “Parties” shall mean Black Box and Reseller.

            1.13.  “Party” shall mean either Black Box or Reseller.

            1.14.  “Purchase Order” shall mean a written purchase order that is delivered to Black Box in accordance with Section 3.4.

            1.15.  “Purchase Price” shall mean the amount to be paid by Reseller for the Black Box Products as determined in accordance with Section 3.2.

            1.16.“Renewal Term” shall have the meaning set forth in the Reseller Agreement Signature Form.
   
            1.17.“Reseller Agreement Signature Form” shall mean the form signed by the Parties and incorporated herein.

            1.17.  “Specifications” shall mean the published specifications applicable to the Black Box Products that are in effect as of the date the related Black Box Product is shipped to Reseller.

            1.18.  “Term” shall mean the period beginning on the Effective Date and terminating on the date this Agreement is terminated under Article 6 and/or the Reseller Agreement Signature Form.

            1.19.  “Territory” shall mean the geographic limitations set forth in Exhibit A attached to the Reseller Agreement Signature Form.

2. APPOINTMENTS AND AUTHORITY OF RESELLER

            2.1.   Appointment. Subject to the terms and conditions set forth herein, during the Term, Black Box hereby appoints Reseller as Black Box’s nonexclusive reseller of Black Box Products directly to End‑Users in the Territory, and Reseller hereby accepts such appointment.  Nothing in this Agreement shall preclude Black Box from marketing, selling, leasing, supporting or maintaining any Black Box Products to or for any other customer, including, without limitation, end‑users, original equipment manufacturers, distributors or other resellers, within or outside of the Territory.  The difference between the Purchase Price paid by Reseller to Black Box and Reseller's selling price to its End‑Users shall be Reseller's sole remuneration under this Agreement for sale of the Black Box Products.

            2.2.   Territorial Responsibility.  Reseller may not, directly or indirectly, market or sell any Black Box Products to End‑Users located outside of the Territory without the prior written consent of Black Box and shall refer to Black Box all inquiries and referrals received by Reseller regarding potential sales of Black Box Products outside of the Territory.

            2.3.   No Right to Manufacture. This Agreement only grants Reseller the limited right to resell Black Box Products originally sold to Reseller by Black Box.  This Agreement, and the sale of, or offer to sell, Black Box Products to Reseller by Black Box, does not convey any other license, expressly or by implication, estoppels or otherwise, under any Intellectual Property Rights owned by Black Box, including, without limitation, the right to manufacture or modify the Black Box Products.

            2.4.   Independent Contractors. The relationship of Black Box and Reseller established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct or control the day‑to‑day activities of the other, (ii) constitute the Parties as partners, joint ventures, co‑owners, or participants in a joint or common undertaking, or (iii) allow Reseller to create or assume any obligation on behalf of Black Box for any purpose whatsoever.

3. TERMS OF PURCHASE OF BLACK BOX PRODUCTS BY RESELLER

            3.1.   Terms and Conditions. All purchases of Black Box Products by Reseller from Black Box during the Term shall be subject to the terms and conditions of this Agreement.  Nothing contained in any such Purchase Order shall in any way modify or enlarge such terms of purchase or add any additional terms or conditions except as otherwise agreed to in writing by the Parties.

            3.2.  Purchase Prices. All Purchase Prices are F.O.B., Black Box’s designated facility. The Purchase Price for any Black Box Product purchased hereunder is the List Price for such Black Box Product as of the date Black Box accepts the Purchase Order for such Black Box Product less the Discount for such Black Box Product that corresponds with Reseller’s discount level as set forth in Exhibit A attached to the Reseller Agreement Signature Form.  Black Box shall have the right at any time to revise the List Price for any Black Box Product upon publication in Black Box’s catalogs or on Black Box’s Website or by written notice to Reseller.  Such revisions shall apply to all Purchase Orders received after the date of Black Box’s publication or issuance of notice of such price revision.  Black Box shall have the right at any time to revise the Discount for any Black Box Product without prior written notice to Reseller.

            3.3.   Taxes. Reseller's Purchase Price does not include any foreign, Federal, state or local sales, use or other similar taxes, however designated, levied against the sale, licensing, delivery, performance or use of the Black Box Products.  Reseller shall pay, or reimburse Black Box for, all such taxes or audit assessments imposed on Reseller or Black Box; provided, however, that Reseller shall not be liable for any taxes or audit assessments based on Black Box’s income.  When Black Box has the legal obligation to collect such taxes, the appropriate amount shall be added to Reseller's invoice and paid by Reseller unless Reseller provides Black Box with a valid exemption certificate authorized by the appropriate taxing authority.

            3.4.   Order and Acceptance. All orders for Black Box Products submitted by Reseller shall be initiated by a Purchase Order sent to Black Box and requesting a delivery date during the Term.  To facilitate Black Box’s production scheduling, Reseller shall submit Purchase Orders to Black Box consistent with Black Box’s then-current lead times for the applicable Black Box Products.  No Purchase Order shall be binding upon Black Box unless and until Black Box has accepted the Purchase Order by (i) providing Reseller an order confirmation via email, facsimile, electronic data interface (EDI), regular mail, or other manner selected by Black Box in its sole discretion, or (ii) shipping all of the Black Box Products identified on the Purchase Order.  Notwithstanding the foregoing, Black Box may accept a portion of the Purchase Order by shipping a partial shipment of the Purchase Order; provided, however, no partial shipment of a Purchase Order shall constitute the acceptance of the entire Purchase Order, absent the issuance by Black Box of an order confirmation accepting all of the Black Box Products identified on the Purchase Order.  Black Box shall have no liability to Reseller with respect to any Purchase Order, or portion of any Purchase Order, that is not accepted by Black Box.  Reseller shall not be permitted to cancel or modify a Purchase Order after it has been accepted by Black Box without the prior written consent of Black Box.  Black Box, in its sole discretion, shall have the right to modify or discontinue Black Box Products at any time without notice to Reseller.

            3.5.   Payment. Full payment of the Purchase Price for each Black Box Product (including any freight, taxes or other applicable costs initially paid by Black Box but to be borne by Reseller) shall be made by Reseller to Black Box in United States dollars, net thirty (30) days from the date of Black Box’s invoice.  Any invoiced amount which is not paid when due will bear interest at the rate of one and one‑half percent (1.5%) per month, or the maximum rate allowable by law, whichever is less.  Black Box reserves the right to withhold additional shipments to Reseller, and/or impose additional credit terms, in the event that any payments to Black Box are past due. Reseller shall pay all of Black Box’s costs and expenses (including reasonable attorneys’ fees) to enforce Black Box’s rights under this Section 3.5.

            3.6.   Shipping.  All Black Box Products delivered pursuant to the terms of this Agreement shall be packed for air freight shipment in Black Box’s standard shipping cartons, marked for shipment to the ship-to address set forth in the Purchase Order, and delivered to the carrier, F.O.B., Black Box’s facility.  Unless otherwise instructed in writing by Reseller, Black Box shall select the carrier.  Reseller acknowledges that Black Box may receive volume discounts from its carriers and that such discounts will not be credited or refunded to Reseller.  Black Box shall be permitted to deliver the Black Box Products in separate lots.  Upon delivery to the carrier, risk of loss with respect to the Black Box Products (and title to the hardware included in such Black Box Products) shall pass to Reseller.  Reseller shall pay all freight, insurance, and other shipping expenses, as well as any special packing expense.  Reseller shall be deemed to have accepted the Black Box Products upon delivery of the Black Box Products to the carrier.

            3.7.   Resale Only. Reseller hereby acknowledges and agrees that all purchases of Black Box Products pursuant to this Agreement shall be for resale by Reseller in the normal course of Reseller’s business.  Reseller’s purchases of Black Box Products that are not for resale shall be made pursuant to a separate agreement between the Parties.

4. ADDITIONAL OBLIGATIONS

            4.1.      Reseller’s Promotion of the Black Box Products. Reseller shall, at its own expense, use its best efforts to promote the sale of the Black Box Products within the Territory.  Reseller shall represent the Black Box Products accurately and fairly and shall not conduct any misleading or unethical business practices.  Reseller shall not (i) make warranties on any Black Box Products beyond those expressly set forth in this Agreement, (ii) alter, re‑label or change the Black Box Products or the Documentation without the prior written approval of Black Box, or (iii) engage in any form of substitution when a potential End‑User orders or specifies Black Box Products.  Reseller shall take all necessary steps to ensure compliance by its employees and its other agents and representatives with Reseller's obligations under this Agreement.

            4.2.   Marketing Materials and Demo Equipment. Reseller may purchase brochures, advertising literature, instructional materials, and other marketing materials from Black Box at cost.  Reseller may purchase, at a discount to be mutually agreed upon by the parties in writing, a reasonable quantity of Black Box Products for customer demonstrations purposes.  Such Black Box Products shall be used solely for demonstration and testing purposes and shall in no event be sold, licensed or otherwise conveyed to End-Users without the prior written consent of Black Box.  Reseller shall be responsible for all shipping costs related to such marketing materials and demonstration equipment.

5. LIMITED WARRANTY

            5.1.   Black Box Products. Black Box warrants that each Black Box Product will be free from Material Defects for a minimum of twelve (12) months from the date of shipment to Reseller.  Black Box will perform warranty service at Black Box’s designated facility and at no cost to Reseller, provided Reseller returns the Black Box Product in accordance with Black Box’s shipping instructions.  Reseller shall pay the shipping costs associated with the return of the Black Box Product to Black Box.  Black Box’s sole responsibility under this warranty shall be, at Black Box’s option, to either repair or replace the Black Box Product.  Black Box shall pay the shipping costs associated with the return of the repaired or replaced Black Box Product to Reseller.  Prior to the return to Black Box of any Black Box Product for any reason whatsoever, Reseller must request a return material authorization (“RMA”) number from Black Box.  If requested by Black Box, Reseller shall provide Black Box with reasonable documentation as to the reason for the return.  All defective Black Box Products, or defective components thereof, returned under this warranty shall become Black Box’s property.  If Black Box determines that the original Black Box Product did not contain a Material Defect, Reseller shall pay Black Box all costs of handling, shipping and repairs at Black Box’s then-current, standard rates.

            5.2.   Limitations. The foregoing warranties apply only to Reseller. Black Box shall provide warranty service only for the most current version of the Black Box Products.  Black Box shall have no obligation to provide warranty services if the Material Defect in the Black Box Product is caused by a malfunction of non‑Black Box hardware or software, by modification of the Black Box Product not made by Black Box, by operator error, or by use of the Black Box Product that is not in accordance with the Specifications, Documentation, or this Agreement.

            5.3.   Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, BLACK BOX DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES ON BLACK BOX PRODUCTS FURNISHED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

6. TERMINATION

            6.1.   Termination for Convenience. Following the Initial Term, this Agreement may be terminated by either Party for any reason by giving at least ninety (90) days prior written notice of termination to the other Party.

            6.2.   Termination for Cause. In the event of any material breach of this Agreement, the non‑breaching Party may terminate this Agreement by giving thirty (30) days prior written notice to the other Party; provided, however, that this Agreement shall not terminate if the other Party has cured the breach prior to the expiration of such thirty (30) day period, or if such breach cannot be cured within such thirty (30) day period, the other Party has taken steps within such thirty (30) day period to cure the breach and thereafter cured such breach as soon as practicable.

            6.3.   Termination for Insolvency. This Agreement shall terminate, without notice, (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings which, in the case of involuntary proceedings, are not dismissed within sixty (60) days of filing, (ii) upon either Party's making an assignment for the benefit of creditors, or (iii) upon either Party's dissolution or ceasing to do business.

            6.4.   Return of Materials. Upon termination of this Agreement for any reason, each Party shall return to the other Party all Confidential Information provided by the other Party, and Reseller shall return to Black Box all Documentation, marketing and other tangible materials regarding the Black Box Products.

            6.5.   Effect of Termination. Termination of this Agreement shall not, however, relieve either Party of obligations incurred prior to such termination.

            6.6.   Survival. The provisions of Sections 2.4. 3.5., 6.4., 6.5., 6.6. and 7.3. and Articles 5, 8, 9, 10 and 11 shall survive the termination of this Agreement for any reason.

7.         INTELLECTUAL PROPERTY

            7.1.   Sub-Licensing Rights. Black Box hereby grants to Reseller a limited, non‑exclusive and non‑transferable right to sublicense the software included in or with the Black Box Products to End‑Users located in the Territory solely for use in or with the Black Box Products purchased by such End‑Users.  No right or license is granted by this Agreement to Reseller to use, copy, sub-license or otherwise transfer such software apart from the Black Box Products or to make any modifications to such software or create any derivative works relating to such software.  Reseller shall not copy such software, in whole or in part, without the prior written consent of Black Box.  Reseller shall not, without the prior written consent of Black Box, in any manner distribute, deliver, transmit, transfer, place, post or load such software on or via the Internet.  Reseller shall not attempt to decompile, disassemble, reverse engineer, or use any other process to gain access to the source code of any such software.  Reseller is authorized to sub-license such software to End‑Users only under the terms and conditions of any software licenses or proprietary notices that accompany, or are otherwise associated with, the software, including, without limitation, all written, shrink-wrap, click-thru, card insert, or other licenses and notices.  Reseller shall require each End‑User to receive and accept such terms and conditions as a condition precedent to the purchase of the Black Box Products by the End-User.  Reseller agrees that it will accept the return of any Black Box Products from End‑Users who do not wish to be bound by such terms and restrictions, and Reseller will return all monies paid by such End‑Users for such returned Black Box Products.    

            7.2.   Marks.  Black Box hereby grants to Reseller a limited, worldwide, non-exclusive, non-transferable right and license to use the Marks, and the goodwill associated with such Marks, solely in connection with the marketing, promotion, advertisement and sale of the Black Box Products.  Reseller shall use the Marks in the form and manner and with appropriate legends as prescribed by Black Box from time to time.  Reseller shall not use the Marks as a component of any brand name or as a brand name for any other products.  All right, title and interest in and to the Marks, including all goodwill associated with the Marks, shall remain vested in Black Box.  All use of the Marks by Reseller shall inure to the benefit of, and be on behalf of, Black Box.  Reseller warrants that it will not act in a manner inconsistent with such ownership and will not challenge the validity of the Marks.  The nature and quality of all uses of the Marks shall conform to the standards set by Black Box.  Reseller agrees to reasonably assist Black Box in maintaining and protecting the Marks in connection with the marketing, promotion, advertisement and sale of the Black Box Products.

            7.3.   Intellectual Property Rights.  Except as otherwise expressly provided in this Agreement, Reseller has no other Intellectual Property Rights in or to the Black Box Products, Documentation, Specifications, Marks and Confidential Information. Except for rights expressly provided in this Agreement, Reseller hereby assigns to Black Box all other Intellectual Property Rights it may now or hereafter possess in the Black Box Products, Documentation, Specifications, Marks and Confidential Information, and all derivative works and improvements thereof, and agrees to execute all documents and take all actions that may be necessary to confirm such rights. Reseller also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on Black Box Products, Documentation, Specifications, Marks and Confidential Information delivered to Reseller by Black Box and all whole or partial copies thereof.

8. CONFIDENTIALITY

Each Party agrees (i) to observe complete confidentiality with respect to, and not to disclose or permit any third party or entity access to, the Confidential Information (or any portion thereof) of the other Party without the prior written permission of such Party (except such disclosure or access which is required to perform any obligations under this Agreement); (ii) not to utilize, except as specifically provided in this Agreement, the Confidential Information (or any portion thereof) of the other Party; and (iii) to insure that any employees who receive access to the Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or otherwise revealing the Confidential Information, except as required to perform any obligations under this Agreement.  Without limiting the foregoing, each Party agrees to employ with regard to the Confidential Information procedures no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information and in no event less than reasonable procedures.

9. INDEMNIFICATION

            9.1.   Indemnification. Black Box will defend, at its expense, any action brought against Reseller to the extent that it is based on a claim that Reseller’s sale of the Black Box Products in accordance with the terms of this Agreement infringes any Intellectual Property Rights of a third party arising under any state or Federal laws of the United States of America, and Black Box will indemnify Reseller from any costs, damages and fees (including reasonable attorneys’ fees) finally awarded against Reseller in such action which are attributable to such claim.  Reseller agrees to notify Black Box promptly in writing of any claim, to permit Black Box to have sole control of the defense, compromise or settlement of the claim and to provide all available information and assistance regarding such claim.  Black Box shall not be liable for any costs or fees incurred by Reseller on such action or claim unless authorized in writing by Black Box.

            9.2.   Remedies. Should any Black Box Product become, or in Black Box’s opinion be likely to become, the subject of a claim for infringement of a third-party Intellectual Property Right arising under the state or Federal laws of the United States of America, Black Box may (i) procure for Reseller, at no cost to Reseller, the right for Reseller to resell the Black Box Product and/or the right for End-Users to continue to use the Black Box Product, (ii) replace or modify the Black Box Product, at no cost to Reseller, to make such Black Box Product non-infringing, provided that the replacement or modified Black Box Product provides substantially similar functionality and performance, or (iii) if neither (i) or (ii) are, in the sole discretion of Black Box, commercial practicable, terminate Reseller’s right to resell such Black Box Product under this Agreement and/or the End-User’s right to use such Black Box Product, and grant Reseller a credit against the Purchase Price of such previously purchased Black Box Product as depreciated on a straight‑line five (5) year basis from the date of shipment of the Black Box Product to Reseller.

            9.3.   Reseller Indemnity. Reseller shall defend, indemnify and hold harmless Black Box, its parent companies, subsidiary companies, and companies under common control therewith, and its and their officers, directors, employees, agents, representatives, attorneys, subcontractors, vendors and suppliers, from and against any and all claims, damages, losses or expenses, including, without limitation, attorneys' fees, and amounts paid in settlements of claims or suits, which arise out of (i) Reseller’s or End User's failure to abide by any license agreements or other proprietary restrictions relating to such products, (ii) Reseller’s misrepresentations, omissions, negligence or willful misconduct, (iii) Reseller’s modification, addition, installation or handling of the products or (iv) Reseller’s breach of this Agreement.

            9.4.   Limitation of Liability. Black Box shall have no liability for any claim based upon: (i) the combination, operation or use of any Black Box Product with equipment, devices or software not supplied or specified by Black Box, (ii) the alteration or modification of any Black Box Product that was not made by Black Box, (iii) the failure by Reseller or its End‑Users to use the most current version of the Black Box Product, or (iv) the use of the Black Box Product other than in accordance with the Specifications, Documentation or this Agreement. This Article 9 states the entire liability of Black Box with respect to infringement of any Intellectual Property Rights by the Black Box Products, and Black Box shall have no additional liability with respect to any alleged or proven infringement.  The obligations of Black Box under this Article 9 extend solely to Reseller and not to any End-User or other third party.

10. LIMITATION OF LIABILITY

BLACK BOX’S LIABILITY ARISING OUT OF THIS AGREEMENT OR SALE OF THE BLACK BOX PRODUCTS SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY RESELLER FOR THE BLACK BOX PRODUCTS.  IN NO EVENT SHALL BLACK BOX BE LIABLE TO RESELLER OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT BLACK BOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

11.GENERAL PROVISIONS

            11.1.  Compliance with Laws.  Each Party shall comply with the provisions of all Federal, state and local laws and regulations in its performance of this Agreement, including, without limitation, all applicable import/export laws and regulations.

            11.2.     Governing Law.  This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania, without reference to its conflicts of law principles.  If any provision or portion of this Agreement shall be deemed unenforceable or invalid for any reason, the Agreement shall be deemed amended to exclude any such provision or portion, and the remainder of this Agreement shall remain in full force and effect.

            11.3.     Entire Agreement.  This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges all prior discussions between them.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the Party to be charged.

            11.4.     Notices.  All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand or by facsimile transmission, when telexed or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid, or by bonded overnight courier, to the Parties at the addresses listed in the Reseller Agreement Signature Form (or at such other address for a Party as shall be specified by written notice).

            11.5.     Force Majeure.  Nonperformance of either Party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, terrorist attack, governmental acts or orders or restrictions, failure of suppliers or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming Party.

            11.6.     Nonassignability and Binding Effect.  Neither Party shall assign this Agreement to any third party, in whole or in part, without the prior written consent of the other Party; provided, however, Black Box may assign this Agreement to a successor in interest to all or substantially all of the business or assets of Black Box or to a parent, wholly-owned subsidiary or any company under common control therewith without notice to, or consent of, Reseller.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

            11.7.     Legal Expenses.  The prevailing Party in any legal action brought by one Party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.

            11.8.     Press Releases.  Press releases and other like publicity that mentions the other Party by name shall be agreed upon by both Parties in writing prior to any release.

      
                                                             [END OF DOCUMENT.]


Rev 1: Effective March 1, 2013