Resale Addendum
(Customer Solutions)

This Addendum authorizes Customer to engage in Resale of the Evernym Services on the terms and conditions, and subject to the limitations, set forth herein. As detailed below, such authorization is limited to the Resale of Evernym Services that are included as a component of Customer’s own Customer Solution (as defined below) offered to Resale Customers (as defined below) under Customer’s own brand. To the extent Customer and Evernym agree to Customer acting as a direct reseller of the Evernym Services, such Resale will be governed by a separate Addendum to this Agreement.

1.    Definitions. The following terms have the meaning given to them below. To the extent that any of the following terms are defined differently elsewhere in the Agreement, then the definition set forth below shall control over such other definition, both in this Addendum and wherever else the term appears in the Agreement.

1.1.    “Authorized Users” means (a) Customer’s employees, contractors, and end users authorized by Customer to access and use the Evernym Services, and (b) employees, contractors and end users authorized by Customer’s Resale Customers to use the Evernym Services included in a Customer Solution.

1.2.    “Customer Solution” means a product, software, offering, or solution developed by or on behalf of, sold, or marketed by, Customer under Customer’s Branding that contains, includes, or utilizes Resale-Authorized Services as a component of the offering.

1.3.    “Resale-Authorized Services” means the Evernym Services that Customer is authorized to resell as a component of a Customer Solution, as set forth in an Order Form or other written agreement between the parties.

1.4.    “Resale Customer” as used in this Addendum means an individual or entity to whom Customer has offered, is providing, or is selling a Customer Solution.

2.      Authorization to Resell Evernym Services as a Component of a Customer Solution.

2.1.    Authorization. Conditioned on the provisions in this Addendum and the other terms and conditions of the Agreement and payment of the applicable Fees, Evernym hereby grants Customer the non-exclusive, non-transferable, and non-sublicensable right, during the applicable Service Term(s), to engage in the Resale of Resale-Authorized Services to the extent (and only to the extent) the Resale-Authorized Services are included in a Customer Solution, and subject to any territorial limitations set forth in an Order Form or otherwise agreed to by the parties. For clarity, any reference to Resale of the Resale-Authorized Services or reselling the Resale-Authorized Services means reselling the right to access and use the Resale-Authorized Services as a component of the Customer Solution, and not the actual sale or transfer of any software, technology, or documentation associated with the Evernym Services. Customer is not authorized to engage in Resale on any other basis.

2.2.    Provision of Resale-Authorized Services. Evernym shall make the Resale-Authorized Services available to Customer for the purpose of the Resale to Resale Customers as authorized by Addendum. Evernym shall provide a non-branded version of the Resale-Authorized Services or will cooperate with Customer to create a non-Evernym branded version of the Resale-Authorized Services that will allow Customer to insert Customer’s Branding elements and modify the look of the Resale-Authorized Services (e.g., color schemes, formatting, etc.) to create a Customer-branded version of the Component Evernym.

3.      Customer Responsibilities and Obligations.

3.1.    Customer Solely Responsible for Customer Solution. Except as otherwise expressly set forth in this Addendum, (a) Customer shall solely be responsible for development, marketing, sale, and support of the Customer Solution and for onboarding, management, and support of Resale Customers, and (b) Evernym shall have no obligation to deal directly with Resale Customers, provide Support Services to Resale Customers, or for any Customer service activities for or in respect of Resale Customers. Subject to Section 3.2, the Customer Solution, including the Resale-Authorized Services, shall be provided to Resale Customers on terms and conditions that are determined by Customer.

3.2.    Resale Customer Agreements.

3.2.1.    Customer shall enter into a written agreement with each Resale Customer (“Resale Customer Agreement”), which shall provide the Resale Customer with the right to use the Resale-Authorized Services solely as included in the Customer Solution and in accordance with this Addendum. Customer, and not Evernym, is responsible for fulfilling all contractual obligations to Resale Customers as set forth in Resale Customer Agreements. Evernym is obligated only to Customer, with which it is in privity of contract, and not to Resale Customers, with whom Evernym is not in privity of contract. Resale Customers are not to be deemed third-party beneficiaries of this Agreement. Customer shall not make any representations or warranties on behalf of Evernym or in any way bind or attempt to bind Evernym contractually or otherwise with any Resale Customers.

3.2.2.    Each Resale Customer Agreement shall include terms and conditions that are at least as protective of Evernym and the Evernym Services as those set forth in this Agreement. Customer is responsible and liable to Evernym for the acts and omissions of Resale Customers and their Authorized Users where such acts or omissions would constitute a breach of the Agreement if performed or not performed by Customer (“Resale Customer Breaches”). Customer will promptly inform Evernym in writing of any Resale Customer Breaches of which Customer becomes aware. Customer will use commercially reasonable efforts to monitor and enforce Resale Customer Agreements to the extent any breach thereof by a Resale Customer does, or would reasonably be expected to have, an adverse effect on Evernym and/or the Evernym Services.

3.3.    Customer Pricing and Responsibility. All fees, rates or charges charged by Customer to Resale Customers for the Customer Solution shall be determined solely by Customer. Evernym shall have no authority or responsibility to determine such fees or other amounts, and Evernym shall have no responsibility for billing or collecting such fees or any other amounts from Resale Customers. Customer is solely responsible for payment to Evernym for all Fees for the Resale-Authorized Services. In connection with such activities, Customer will act in all respects for its own account and at its own expense, and will be responsible for unauthorized use of the Services by or on behalf of Resale Customers.

3.4.    Customer Solution Branding.

3.4.1.    Customer Solutions shall reflect Customer’s own logo, interface customizations, trademarks, service marks, and / or product names (“Branding”). Customer may only use Branding which Customer own or otherwise have the rights to use in connection with the Customer Solutions. Customer will not use the trademarks, service marks, logos, or confusingly similar marks of, or otherwise infringe on the intellectual property rights of Evernym or any third party in connection with Customer’s Resale activities.

3.4.2.    Except as set forth in subsection 3.4.3, Customer shall not use Evernym Branding in the Customer Solution or in the sales or marketing thereof without Evernym’s express prior written approval. Any use of Evernym Branding by Customer or in the Customer Solution shall comply with any written guidelines for the use of Evernym Branding provided by Evernym to Customer.

3.4.3.    If (and only if) requested or authorized in writing by Evernym, the Customer Solution shall, in addition to Customer’s own Branding, be branded with “powered by Evernym” marks and logos, or similar marks and logos conveying that the Customer Solution contains components provided by Evernym, which such branding shall be reasonably acceptable to Customer. The Resale-Authorized Services shall in all cases retain any relevant patent, copyright and/or other intellectual property notices as may be determined to be appropriate by Evernym.

3.5.    Customer Resale Activities. Customer will conduct its Resale activities in a manner that promotes a good, positive image and reputation for Evernym and the Evernym Services. Without limiting the generality of the foregoing, Customer will not:

3.5.1.    use any inappropriate form of promotional, marketing, or advertising activity for the Customer Solution or Evernym Services, which includes use of any misleading hyperlinks and making any false, misleading, or disparaging representations or statements with regard to the Customer Solution, Evernym, and the Evernym Services;

3.5.2.    engage in any unfair or deceptive trade practice involving the Customer Solution or Evernym Services;

3.5.3.    hold itself out to be an Evernym employee, agent, contractor, or representative in connection with its Resale activities or the Customer Solution or use any Evernym content to mislead current or potential Resale Customers into believing Customer or the Customer Solution represent are endorsed or employed by Evernym;

3.5.4.    use the string “Evernym” for any website domain name;

3.5.5.    make or authorize any proposal, representation, warranty, guarantee, or communication relating to the Evernym Services that is inconsistent with this Agreement.

3.6.    Non-Competition. Unless Evernym provides its express prior written approval, Customer is only permitted to resell the Resale-Authorized Services to Resale Customers who, to Customer’s knowledge, are not current or previous customers of any of the Evernym Services. Further, during the Term, Customer shall not: (a) directly or indirectly market, promote, or solicit Resale Customers in competition with Evernym or sell or resell any product or service in competition with the Evernym Services; (b) have any controlling interest in any entity that markets, promotes, sells or provides any product or service in competition with the Evernym Services; (c) enter into any agreements with any provider to resell, redistribute, sub-license or otherwise commercialize any product or service that competes with the Evernym Services; or (d) display on its website or elsewhere any advertising or marketing materials of any provider of any product or service that compete with the Evernym Services. Evernym shall have the continuing right to market and sell the Evernym Services and any other products or services to any third parties, including but not limited to current, future and potential Resale Customers.

3.7.    Compliance with Applicable Law. Customer must comply with applicable laws, including without limitation the GDPR and all other data privacy laws that apply in connection with this Agreement, Customer’s provision of Evernym Services, and Resale Customer Agreements, including where applicable entering into a separate data protection agreement or addendum with Resale Customers to ensure the protection of the rights of data subjects in Customer’s processing of their personal data.

3.8.    Customer Use. Customer shall not use any Resale-Authorized Services obtained for Resale for Customer’s own use.

3.9.    Fees.

3.9.1.    Customer shall pay Evernym the Fees for the Resale-Authorized Services set forth in an Order Form or other written agreement between Customer and Evernym.

3.9.2.    To the extent necessary to enable Evernym to accurately invoice Customer for Resale-Authorized Services, by no later than the third business day of the following calendar month (or such other timing as agreed to by the parties), Customer shall provide Evernym with a report (reasonably acceptable to Evernym in form and content) that details Customer’s monthly usage of Resale-Authorized Services.

4.      Support Services.

4.1.    Customer. Customer will be responsible for, and will provide, all direct support to Resale Customers. Evernym shall have no obligation to provide any Support Services or other support directly to Resale Customers or their Authorized Users.

4.2.    Evernym. If Customer is experiencing an issue with the Resale-Authorized Services or if a Resale Customer is experiencing an issue with the Resale-Authorized Services that Customer is unable to resolve without assistance from Evernym, Evernym shall provide Support Services directly to Customer with respect to the Resale-Authorized Services as set forth in the Support Services Addendum. The foregoing notwithstanding, Customer shall be responsible for resolving Resale Customer issues arising from (a) the integration of the Resale-Authorized Services with or into the Customer Solution, (b) Customer or the Customer Solution, or (c) any third party or third party solution (a “Non-Evernym Issue”) or otherwise arising or, provided that Evernym shall cooperate with Customer to determine whether the issue is a Non-Evernym Issue.

5.      Evernym Audit Rights.

Customer agrees that during the Term of this Agreement, Evernym may audit Customer’s systems, books and records to verify (1) Customer’s compliance with the restrictions and conditions set forth in this Agreement relating to the Resale-Authorized Services, and/or (2) the accuracy of Customer’s reporting pursuant to Section 3.9.2 above (each such audit, an “Audit”), provided that Evernym may conduct no more than one Audit in any twelve (12) month period. Evernym shall provide Customer written notice of Evernym’s intention to conduct an Audit no less than ten (10) business days prior to the desired start date. Customer shall use commercially reasonable efforts to accommodate that date and, if it is unable to do so, shall agree with Evernym on an alternative date that it is no later than ten (10) business days after the date requested by Evernym. The Audit shall be conducted during normal business hours and shall not interfere with the normal business operations of Customer. Customer shall grant Evernym commercially reasonable access to Customer’s systems, books and records to the extent reasonably necessary to accomplish the purpose of the Audit, provided that Customer may impose such restrictions and/or conditions that Customer reasonably determines are necessary to protect the Confidential Information of Customer, its Resale Customers, Authorized Users, or any other third party person or entity. Without limiting the foregoing, in no event shall Evernym be entitled to access or review (x) the systems, books or records of Resale Customers or any other third party, or (y) the contents of any Customer Solution transaction. Evernym shall bear the cost of the Audit (including any third-party costs), unless the audit reveals a material breach of the Agreement or mis-reporting of Resale-Authorized Services, in which case Customer shall bear the cost of the Audit (including reasonable third-party costs).