GateHawk Dealer Agreement

This GateHawk Dealer Agreement (“Agreement”) is a binding agreement between you (“Dealer”) and Level Up Holding Co. Inc. d/b/a GateHawk, an Arizona corporation with its principal place of business at 6020 N 55th Avenue, Glendale, AZ 85301 (“GateHawk”).

GATEHAWK IS WILLING TO GRANT DEALER THE RIGHTS SET FORTH HEREIN ON THE EXPRESS CONDITION THAT YOU ACCEPT ALL THE TERMS IN THIS AGREEMENT. BY ACCESSING AND/OR USING THE GATEHAWK PORTAL, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT MEET ANY OF THE FOREGOING REQUIREMENTS AND/OR DO NOT AGREE TO THESE TERMS, YOU MAY NOT BECOME A GATEHAWK DEALER OR USE THE GATEHAWK PORTAL.

1. Appointment of Dealer

a. Subject to the terms of this Agreement, GateHawk hereby appoints Dealer, and Dealer accepts the appointment, as GateHawk’s non-exclusive Dealer to market, sell, or incorporate for resale the GateHawk® products as made available by GateHawk to Dealer through authorized GateHawk distributors from time to time (collectively, the “Products”) and web-based subscription services as made available by GateHawk to Dealer through the GateHawk website portal (“SaaS Services”).

2. Dealer Responsibilities

a. Dealer will use reasonable efforts to market, advertise, and otherwise promote and resell the Products and SaaS Services to residential communities and management companies (collectively, “Customers”), who will then make such Products and SaaS Services available to such Customer’s respective representatives and residents. Dealer shall not distribute or resell the Products or SaaS Services to any other third party for the purposes of further distribution, resale, sub-leasing, sub-rent or sub-licensing, except as otherwise agreed to in writing by GateHawk.

b. Dealer will provide GateHawk with Customer contact information for all Product and SaaS Services orders. Dealer will maintain records of its sales, support, and maintenance services sold to Customers, and provide GateHawk with reports of support and maintenance upon GateHawk’s reasonable request and upon termination of this Agreement. Dealer will ensure that its employees who are responsible for the marketing, sales, installation, and technical support services for the Products and SaaS Services have proper skill, training and background to enable them to provide the same in a competent and professional manner, including ensuring relevant employees complete any training programs GateHawk requires.

c. Dealer will not remove or alter any trademarks, product identification, notices of any proprietary or copyright restrictions, or other markings that appear on GateHawk Products, SaaS Services or packaging.

d. Dealer will comply at all times with all requirements of GateHawk’s dealer program policies with respect to training, Customer support, sales and marketing activities, and compliance, each as may be modified by GateHawk from time-to-time, including designating and maintaining at all time during the term at least one (1) representative that will specialize and obtain sufficient expertise to sell, promote and provide support with respect to GateHawk’s Products and SaaS Services.

e. Except as expressly set forth herein, Dealer will not, directly or indirectly, and shall not permit any registered user to: (i) copy, modify, or create derivative works of the Products or SaaS Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Products or SaaS Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Products or SaaS Services, or any software, documentation or data related to the Products or SaaS Services, in whole or in part; (iv) remove any proprietary notices from the Products or SaaS Services; (v) use the Products or SaaS Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) utilize the Products or SaaS Services to create, develop, enhance, or modify any competing product or service; or (vii) separate the Products or SaaS Services into component parts for distribution or transfer to a third party. To the extent permitted by law, Dealer is responsible and liable for all uses of the Products or SaaS Services resulting from access provided by Dealer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, and any act or omission by any such registered user that would constitute a breach of this Agreement if taken by any Customer will be deemed a breach of this Agreement by Dealer.

f. Dealer will conduct all business pursuant to this Agreement in compliance with applicable laws and regulations, including anti-corruption laws (FCPA). Dealer represents that Dealer is not currently the subject of any investigation or legal proceeding of any kind in relation to the violation of any consumer protection or deceptive trade practices law or regulation.

3. GateHawk Portal: The GateHawk SaaS Services will be delivered to Dealer and Customers through a web-based portal, and may include the following:

a. Training videos for sales, design and installation of the Products and SaaS Services.

b. The most recent dated price list for Products and SaaS Services.

c. Specification sheets, user manuals and installation instructions for the Products and SaaS Services.

4. Orders

a. Dealer will submit all orders for Products and SaaS Services to Distributor.

5. Delivery

a. Distributor will deliver the ordered Products to the Dealer on the delivery date and to the location specified in the applicable order.

b. GateHawk will provide Customer with access credentials for the SaaS Services.

c. GateHawk may discontinue or modify the Products and/or SaaS Services (including pricing), the Products and/or SaaS Services specifications, or replace the Products and/or SaaS Services with similar GateHawk or third party Products.

6. Payment

a. GateHawk will invoice the Dealer for each order when the SaaS Service is activated for use by Customer. All invoices are due thirty (30) days following receipt.

b. Any amount not paid when due will incur interest from the due date until paid at a rate equal to 1.5% per month, or the maximum allowed by law, whichever is less, and Dealer shall be responsible for all costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.

c. If Dealer fails to pay any amount when due and fails to cure such default within ten (10) days after notice from GateHawk, then GateHawk may, in its sole and absolute discretion, suspend Dealer’s appointment under this Agreement.

d. Dealer will provide GateHawk with a valid reseller certificate, or be charged sales tax for the shipping location on every order. Dealer is responsible for collecting and remitting all applicable taxes that are imposed by any governmental authority in connection with this Agreement and the sale of Products and SaaS Services to Customers.

7. Insurance and Licenses

a. Dealer shall obtain and maintain valid and current contracting, business and sales tax licenses to perform under this Agreement as required by law. Dealer shall obtain and maintain business insurance compliant with Customers’ requirements, and may be required by Customers to obtain applicable permits in connection with Dealer’s provision and/or installation of the products.

b. Level Up Holding Co., Inc. must be added as an Additional Insured to Dealer’s insurance policies for all properties where the Products and SaaS Services are being installed. A current certificate of insurance must be provided to GateHawk upon execution of this Agreement.

8. Terms and Conditions

a. As a condition to Dealer’s appointment as a Dealer of the Products and SaaS Services under this Agreement, Dealer shall require that each Customer accepts the GateHawk’s End User License Agreement (the “EULA”) in connection with its use of the GateHawk Portal. The parties acknowledge and agree that GateHawk reserves the right to reject at its sole discretion any Customer orders that do not accept the terms of the EULA. GateHawk may change the EULA from time to time, and any such changes made during the term of the Agreement will become effective upon notice to Customers.

b. Each Customer shall be responsible for obtaining and maintaining any equipment and ancillary Products and SaaS Services needed to connect to, access or otherwise use the Products and SaaS Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like.

c. GateHawk may suspend Customer’s and/or any registered user’s access to any portion or all of the Products or SaaS Services if: (i) GateHawk reasonably determines that (a) there is a disruption, security risk, threat or attack on any of the Products or SaaS Services or to any other customer or vendor of GateHawk; (b) Customer, or any registered user, is using the Products or SaaS Services for fraudulent or illegal activities; (c) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (d) GateHawk’s provision of the Products and SaaS Services to Customer or any registered user is prohibited by applicable law; (ii) any vendor of GateHawk has suspended or terminated GateHawk’s access to or use of any third-party products required to enable Customer to access the Products and SaaS Services; or (iii) Customer fails to pay any undisputed invoices. Although GateHawk has no obligation to monitor Customer’s use of the Products or SaaS Services, GateHawk may do so and may prohibit any use of the Products or SaaS Services it reasonably believes may be (or alleged to be) in violation of the foregoing. GateHawk will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of any suspension and/or termination to Customer’s access to the Products or SaaS Services hereunder. Dealer acknowledges and agrees that neither it, nor any Customer, will have access to the Products or SaaS Services during a suspension or termination. Applicable fees for the Products and SaaS Services during the suspension will continue to be charged and a reinstatement fee may be charged upon reinstatement.

9. Mutual Warranties and Representations

a. Each Party represents and warrants to the other Party as follows: (i) it is an entity in good standing and incorporated and existing under the laws of the jurisdictions of its respective incorporation; (ii) it has the authority and capacity to enter into this Agreement; and (iii) there are no conflicting agreements or legal proceedings pending, threatened, or foreseeable against it, which would affect its ability to complete its obligations under this Agreement; and (iv) it has not taken or authorized any proceedings related to bankruptcy, insolvency, liquidation, and/or dissolution.

b. Dealer will not give any Customer any assurances, representations, guarantees, indemnitees or other commitments with respect to the Product’s qualities, technical capabilities, specifications, features, warranty conditions or otherwise, which exceed the terms and conditions stated on the technical specification documentation provided by GateHawk for distribution to Customers applicable to such Product and the applicable warranty, if any. As between Dealer and GateHawk, Dealer shall be liable for any claim by a Customer based on assurances provided by Reseller that are not consistent with the foregoing.

c. Products and SaaS Services are covered by GateHawk’s limited warranty statements that are provided with the Products and SaaS Services, or otherwise made available by GateHawk from time to time, and which are incorporated by reference to this Agreement. Non-GateHawk products receive warranty coverage as provided directly by the relevant manufacturer.

d. EXCEPT AS SET FORTH IN IN THIS SECTION, ALL PRODUCTS ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. GATEHAWK MAKES NO OTHER WARRANTY, REPRESENTATION, GUARANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, SECURITY, ACCURACY, COMPLETENESS, TITLE OR NON- INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE PRODUCTS, OR ANY OF THE CONTENT, SERVICES, PRODUCTS, SOFTWARE OR OTHER MATERIALS AVAILABLE THROUGH THE PRODUCTS. GATEHAWK DOES NOT REPRESENT, WARRANT OR GUARANTY THAT (I) THE PRODUCTS WILL BE AVAILABLE, 100% SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, PRODUCTS OR DATA; (II) THE PRODUCTS WILL MEET RESELLER’S OR ANY CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (III) ANY DATA STORED USING THE PRODUCTS WILL BE ACCURATE, RELIABLE, OR SECURE; (IV) ERRORS OR DEFECTS IN THE PRODUCTS WILL BE CORRECTED; OR (V) THE PRODUCTS, OR THE THIRD PARTY PRODUCTS OR SERVICES USED BY GATEHAWK TO MAKE THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. GATEHAWK DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND, AND SHALL HAVE NO RESPONSIBILITY WHATSOEVER, WITH RESPECT TO ANY THIRD PARTY PRODUCTS, SERVICES, CONTENT OR OTHER MATERIALS ACCESSED, ENCOUNTERED OR OBTAINED BY DEALER.

10. Intellectual Property Rights

a. Except as expressly set forth herein, nothing in this Agreement will function to transfer any of either Party’s intellectual property rights to the other Party, and each Party will retain exclusive interest in and ownership of its intellectual property developed before this Agreement or developed outside the scope of this agreement.

b. GateHawk hereby grants to Dealer a non-transferable, non-exclusive, non-sublicensable, and royalty free license to use GateHawk’s name, trademarks, logos, and other identifying information (“GateHawk Marks”) on marketing materials, advertising, promotions, Customer information, and programs Dealer creates in connection with the products, subject to GateHawk’s written approval in each instance.

c. Dealer will comply with all of GateHawk’s policies regarding the use and display of GateHawk Marks that GateHawk provides to Dealer in writing, as may be modified from time to time. Dealer acknowledges and agrees that GateHawk is the exclusive owner of the GateHawk Marks, all goodwill associated therewith, and the right to use the GateHawk Marks is subject to the limitations set forth herein. Dealer also acknowledges and agrees that GateHawk shall retain the full ownership, title, and interest in and to the GateHawk Marks, the associated goodwill, and all registrations granted thereon; and that all use of the GateHawk Marks by Dealer shall inure to the benefit of and be available to GateHawk. Dealer shall not apply anywhere to register, or cause to be registered, any work, corporate logo, name or trademark consisting of, comprising or containing the GateHawk Marks or any designator confusingly similar to the GateHawk Marks (including, without limitation, any registration in the United States Copyright Office, the United States Patent and Trademark Office, or any state Secretary of State’s office, as any Internet domain name, or to identify any social networking webpage).

11. Confidentiality

a. Each party shall keep in confidence the confidential and proprietary information of the other party, including, without limitation, the Products and SaaS Services, pricing, proposals, and any other materials which relate to a party’s business operations (collectively, “Proprietary Information”). Each party agrees to not use, publish, divulge, or disclose any such Proprietary Information without the prior written consent of the other party. All Proprietary Information is and shall remain the sole and exclusive property of the disclosing party. The term Proprietary Information shall not include, and the foregoing restrictions shall not apply to, any of the following, as demonstrated by written evidence: (i) any information known or available to the public other than as a result of a breach of confidentiality by a person owing a duty of confidentiality, (ii) is already in the possession of the receiving party without restriction on use or disclosure at the time of disclosure by the disclosing party, (iii) becomes available to the receiving party without restriction on use or disclosure from a third party without a breach of such third party’s obligations of confidentiality, and (iv) is independently developed by the receiving party without access to the disclosing party’s Proprietary Information.

12. Term and Termination

a. The initial term of this Agreement will begin on the Effective Date and continue in force and effect until terminated in accordance with its express provisions.

b. This Agreement may be terminated if any of the following events occur:

  • i. If either Party fails to perform or comply with any provision of this Agreement, and such failure is incapable of cure, or with respect to a material failure capable of cure, the Defaulting Party does not cure such failure within ten (10) days after receipt of written notice, then the termination will be effective immediately upon one Party giving written notice to the other Party;
  • ii. If either Party becomes insolvent, enters bankruptcy, reorganization or any other similar proceedings under applicable laws, whether voluntary or involuntary, or admits in writing its inability to pay its debts, or makes or attempts to make an assignment for the benefit of creditors, the Agreement will terminate upon receipt of notice or as soon thereafter as permitted by applicable law; or
  • iii. GateHawk or Dealer may terminate this Agreement without cause upon thirty (30) days’ prior written notice to the other Party.

c. Upon termination of this Agreement:

  • i. Each Party shall pay any amounts it owes to the other Party, including payment obligations for Products and SaaS Services previously delivered;
  • ii. Each Party shall refund any payments received but not yet earned, including payments for Products and SaaS Services not yet delivered.
  • iii. Dealer shall return or delete, at GateHawk’s option, all of GateHawk’s Proprietary Information;
  • iv. Dealer shall immediately discontinue its promotion and distribution of the Products and SaaS Services immediately upon the expiration or termination of this Agreement, including all use of GateHawk Marks; and
  • v. Dealer shall provide GateHawk with contact information, records, and related agreements for all Customers to enable GateHawk and/or its designee in support of transitioning such Customer(s) to another GateHawk-approved dealer.

d. On termination of this Agreement, neither Party will be liable to the other Party, except for liability that arose before the termination of this Agreement.

e. Any provision that by its nature should survive termination or expiration of this Agreement shall survive such expiration or termination of this Agreement.

13. Mutual Indemnification

a. To the greatest extent permitted by law, each Party will indemnify, defend and hold harmless the other Party, its affiliates, and it’s and their respective officers, agents, directors, partners, members, employees, from any and all claims, demands, causes of action, damages, costs, expenses, actual attorneys’ fees, losses or liabilities, in law or equity, of every kind and nature whatsoever (“Claims”) arising out of or in any way relating to (i) breach of any of its obligations, representations and warranties under this Agreement; (ii) a Party’s negligence or willful misconduct; and/or (iii) any commitments made by a Party or any of their subcontractors, suppliers, vendors, employees, or persons for whom it is responsible (regardless of whether or not the acts or omissions are negligent) that go beyond those set forth in this Agreement; provided that neither Party will be required to indemnify the other against any Claims to the extent the other Party acted unlawfully, negligently, or intentionally to cause such Claims.

14. Assignment

a. This Agreement may not be assigned in whole or in part by either party without the other party’s prior written consent, except that either party may assign this Agreement (a) to an affiliate; or (b) to a successor in interest in the event of a merger, reorganization or sale of substantially all of its assets or stock. Any attempted assignment in violation of the foregoing shall be null and void. This Agreement will be binding upon and will inure to the benefit of the parties hereto and their successors and permitted assigns.

15. Mutual Non-Solicitation

a. During the term of this Agreement and for a period of twelve (12) months from the date on which this Agreement terminates, GateHawk and Dealer shall not, directly or indirectly, on behalf of any person or entity other than the other Party, hire or employ any persons employed by the other Party nor solicit nor encourage such persons to leave their employment with the other Party. Additionally, during the term of this Agreement and for a period of twelve (12) months from the date on which this Agreement terminates, Dealer shall not solicit GateHawk suppliers or purchase proprietary GateHawk products through any supplier other than GateHawk.

16. Relationship of the Parties

It is expressly understood and agreed that for all purposes (including, but not limited to, workers’ compensation insurance, unemployment insurance, FICA and Federal and State tax withholding), Dealer shall be deemed an independent contractor and not an employee of GateHawk, and Dealer will have exclusive control and supervision over the performance of, and will provide all resources and materials required to perform, its services. Nothing in this Agreement creates any special relationship between the parties, such as a partnership, joint venture, or employee/employer relationship. Neither Party has the authority to, and will not, act as an agent for or on behalf of the other Party or represent or bind the other Party in any manner.

17. Notices

a. All notices, authorizations and requests in connection with this Agreement shall be deemed given on the day they are received by either Party via email, courier, certified or registered mail at the address(es) provided herein.

18. Governing Law

a. This Agreement and any matter or dispute arising out of or related to the subject matter of the Agreement, shall be governed, construed, and enforced in accordance with the Laws of the State of Arizona, without regard to its conflict of laws rules. Each Party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in Maricopa County, Arizona. Each Party hereby waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder.

b. Except with respect to disputes regarding intellectual property rights, confidentiality, and payment of fees, in the event of any dispute between the parties to this Agreement, the parties will attempt in good faith to promptly resolve such matter by good faith negotiation by senior executives. If the dispute has not been resolved within thirty (30) days of any party’s initiation of negotiations, the dispute shall be submitted at the request of any such party to final and binding arbitration before a single arbitrator. Such arbitration shall be held in Maricopa County, Arizona and in accordance with the then current rules of the American Arbitration Association applicable to commercial disputes. Any award rendered therein shall be final and binding on each of the parties, and judgment may be entered thereon in the Maricopa County Superior Court.

19. Force Majeure

a. Except for Dealer’s payment obligations, neither Party will be liable for performance delays or non-performance due to causes beyond its reasonable control.

20. Counterparts; Facsimile Signatures

a. This Agreement may be executed in counterparts, by facsimile or other electronic means, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.

21. Entire Agreement

a. This Agreement and each EULA, together with the exhibits, addenda, and schedules referenced herein, represents the entire agreement between the parties concerning the subject matter hereof and supersedes all prior representations, understandings and agreements whether written or oral. This Agreement may not be altered, amended or modified, except by formal agreement in a writing signed by both parties.

22. Waiver; Severability

a. Any waiver granted herein shall not be deemed effective unless in writing, executed by the party as to whom enforcement of the waiver is sought. A waiver by either party of any provision(s) hereof shall not be deemed a waiver as to any other provision hereof or of any subsequent breach by either party of the same or any other provision. If any provision of this Agreement is prohibited or unenforceable by any applicable law, the provision shall be ineffective only to the extent and for the duration of the prohibition of unenforceability, without invalidating any of the remaining provisions.