PLEASE READ THESE RESELLER TERMS AND CONDITIONS (“AGREEMENT”) BEFORE REGISTERING AS A PRIVATE LABEL RESELLER WITH WHATSBUSY INC. (THE “COMPANY”). IF YOU DO NOT OR CANNOT AGREE TO THE TERMS SET FORTH BELOW, THEN DO NOT REGISTER AS A PRIVATE LABEL RESELLER WITH THE COMPANY. BY CLICKING THE “SUBMIT” BOX AND/OR OTHERWISE INDICATING ELECTRONIC ACCEPTANCE OF THIS AGREEMENT, OR BY OTHERWISE PHYSICALLY EXECUTING THIS AGREEMENT, YOU (AS “RESELLER” AND AS A REPRESENTATIVE AUTHORIZED TO BIND THE RESELLER ENTITY) AGREE, ON BEHALF OF YOURSELF AND THE RESELLER ENTITY, TO BE BOUND BY THIS AGREEMENT. FURTHER, RESELLER REPRESENTS THAT IT IS A SOPHISTICATED ENTITY, THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND HAS HAD SUFFICIENT OPPORTUNITY TO CONSULT WITH COUNSEL, PRIOR TO AGREEING TO THE TERMS SET FORTH BELOW AND SUBMITTING ITS REGISTRATION. IF YOU HAVE ANY QUESTIONS OR CONCERNS, PLEASE CONTACT THE COMPANY FOR ASSISTANCE. ALL RESELLER REGISTRATIONS ARE SUBJECT TO ACCEPTANCE BY THE COMPANY AND THIS AGREEMENT MAY BE CANCELLED BY THE COMPANY IF RESELLER’S REGISTRATION IS NOT ACCEPTED.
WHEREAS, the Company owns and provides access to its analytical software products on a software-as-a-service basis (the “Service”);
WHEREAS, Reseller desires to market, sell and support the Service under Reseller’s trademarks and brand name; and
WHEREAS, the Company desires to appoint Reseller as an authorized reseller of the Service pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of this Agreement. The terms “days” and “months” refer to U.S. calendar days and months, rather than to business days and business months, unless expressly noted.
1.1. “API” means, if Reseller is a Private Label Reseller, an application programming interface provided by Reseller that allows transfer of Data from Reseller’s computer systems to the Service.
1.2. “Company IP Rights” means any patent, copyright, trade secret, trademark or other intellectual property right embodied in or related to the Company Technology.
1.3. “Company Technology” means any and all of the following used by the Company in providing the Service: (a) the WhatsBusy name, the WhatsBusy logo, the WhatsBusy domain name, the Site, the product and service names associated with the Service, the Company Marks and any other trademarks and service marks; (b) certain proprietary and third party audio and visual information, documents, software and other works of authorship; and (c) other proprietary and third party technology, hardware, products, processes, algorithms, user interfaces, know-how, trade secrets and other Confidential Information, techniques, designs, inventions and other tangible or intangible technical material or information.
1.4. “Confidential Information” means all confidential and proprietary information of a party ("Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is either marked or designated as confidential or is identified in writing as confidential or proprietary within fifteen (15) days of disclosure to the Receiving Party; provided that the following shall be deemed to be Confidential Information even if not so marked or identified: the terms and conditions of this Agreement (including pricing and other terms reflected in all schedules hereto), the Disclosing Party’s business and marketing plans, technology and technical information, product designs, and business processes, any information or materials with the name, sign, trade name or trademark of the Disclosing Party and any information that a reasonable person would deem confidential or proprietary given the nature of the information and the circumstances under which it is disclosed. “Confidential Information” does not include any item of information which (a) is or becomes available in the public domain without the fault of the Receiving Party; (b) is disclosed or made available to the Receiving Party by a third party without restriction and without breach of any relationship of confidentiality; (c) is independently developed by the Receiving Party without access to the disclosing party’s Confidential Information; or (d) is known to the recipient at the time of disclosure.
1.5. “Data” means, all transaction-related data stored in Reseller’s Point of Sale System (including data of Reseller’s customers), according to the Specification.
1.6. “Documentation” means any user documentation, on any media, provided by the Company for use with the Service.
1.7. “Derivative Works” means a revision, modification, translation, abridgment, condensation or expansion of or addition to the Service, or Documentation or any work that employs pre-existing code from the Service or, if prepared in violation of this Agreement or without the consent of the Company, would infringe the Company IP Rights.
1.8. “Effective Date” means the date Reseller clicks the “submit” box and/or otherwise indicates electronic acceptance of this Agreement, or otherwise physically executes this Agreement.
1.9. “Point of Sale System” means point of sale systems and terminals.
1.10. “Service” means Company owns and provides access to its analytical software products on a software-as-a-service basis.
1.11. “Site” means the Company’s website at www.whatsbusy.com where the Service is accessed, or such other website as may be designated by the Company.
1.12. “Specification” means, the WhatsBusy Technical Specification in Exhibit B, as updated from time-to-time and provided Reseller.
1.13. “Subscriber” means any person or entity that subscribes to the Service solely for its own internal use as represented by Reseller.
1.14. “Subscriptions” means purchases of one or more subscriptions to the Service.
1.15. “Terms of Service” means the Company’s Terms of Service (or other similar subscription agreement) governing the terms of access to and use of the Service entered into by the Resller and other Company Subscribers, as a requirement for use of the Service, a copy of which is located on the Site at www.whatsbusy.com/terms_of_service.
2. OWNERSHIP AND RETENTION OF RIGHTS.
2.1. Agent means the local software deployed on the Point of Sale to remotely collect data that is used to deliver the Service. The Agent is considered to be part of the Service.
2.2. Feedback Any information provided by Reseller to the Company relating to improvements, modifications, design changes, enhancements, extensions, derivatives or errors to the Service, the Company Technology and the Company IP Rights will belong to the Company. Reseller hereby assigns to the Company all of its right, title, and interest in and to such information and related intellectual property rights.
3. APPOINTMENT; LICENSES.
3.1. License to Resell Service. Subject to the terms of this Agreement, the Company hereby grants to Reseller a non-exclusive, non-transferable, non-sublicensable, revocable, limited license, to market and sell Subscriptions to Subscribers. Reseller may not permit any other persons or entities to use the Service without a valid Subscription (except as expressly provided in this Section 3) without the prior written consent of the Company.
3.2. White Label. The Service will be a white label solution and will not make any mention of the Company.
3.3. Internal Use License Subject to the terms and conditions of this Agreement, the Company hereby grants to Reseller a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the Service only for its internal business purposes on behalf of its Subscribers or potential Subscribers to (a) market the Service, (b) demonstrate the Service to potential Subscribers and (c) service and support Reseller’s Subscribers. Except as otherwise permitted above, Reseller’s internal use of the Service pursuant to this license shall be subject to the Terms of Service.
3.4. Documentation License.The Company hereby grants Reseller a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Documentation and to make a reasonable number of copies of the Documentation solely for its own business purposes to support Reseller’s rights under Sections 3.1 and 3.3, provided that Reseller must reproduce and include the copyright notice and any other notices that appear on the original copy of the Documentation on any copies made by Reseller regardless of type of media.
3.5. Trial Periods Reseller may offer free trial periods to Subscribers. Each trial period granted to a potential Subscriber shall be for a period of 15 days (each, a “Trial Period”). Reseller may issue trials to potential Subscribers for not more than one Trial Period without the prior written consent of the Company.
4. RESTRICTIONS ON USE. Reseller shall not (a) create or attempt to create by reverse engineering, disassembly, decompilation or otherwise, the source code, (or the underlying ideas, algorithms, structure or organization) from the Service, or any part thereof, or aid or permit others to do so, except and only to the extent expressly permitted by applicable law; (b) remove or alter any trademark, logo, copyright or other proprietary notices or markings in the Service; or (c) copy, modify or create any Derivative Work of the Service, Documentation or any portion thereof.
5. REGISTRATION AND SETUP OF COMPANY SERVICES.
5.1. Reseller Registration Reseller must create an account on the Site under the Reseller Portal. The Reseller must fill in the appropriate fields, including: (a) Reseller contact information and (b) a value for the number of active, potential Subscriber accounts.
5.2. Subscriber Registation. When enrolling a Subscriber to the Service, Reseller must enter the required Subscriber information in the Reseller Portal to ensure the next phases of enrollment may be completed. Reseller must enter Subscriber’s business information including (a) the business name, (b) the owner’s name, (c) the owner’s contact information, and (d) the Point of Sale System in-use. Alternatively, if mutually agreed by the parties, Reseller will provide the Company with the required Subscriber information and the Company will load the information in the Reseller Portal. The Company will then email the Subscriber a registration link to be completed by the Subscriber.
5.3. Subscriber Confirmation Upon successful registration a confirmation email will be sent to Subscriber and Reseller. The email will contain the Subscriber’s unique access code.
5.4. Setup and License Grant Reseller
(a) Setup. Promptly after the Effective Date, Reseller will provide the Company with the API and at such time and during the Term provide all technical assistance required by the Company to connect the Reseller’s systems to the Service to enable the transfer of Data to the Service. Reseller will deliver full historical Data to the Company as soon as the transfer is enabled. The historical Data will be full check level detail per the Specification. The Data will be provided per store for all stores from all of Reseller’s customers from the first full day the Reseller began collecting transaction data from each store. Reseller will continue to deliver Data to the Company on a per store basis for all stores on a daily or more frequent basis as required by the Company, with each delivery reflecting Data from the most recent Data update period. All Data will be provided according to the format provided in the Specification.
(b) Marketing. Reseller shall make available to the Company a Reseller email domain for the Company’s use in running periodic actionable email marketing campaigns directly to the Reseller’s customers to market the Service.
(c) License to Data. Reseller shall retain ownership of all of its Data. Reseller hereby grants to the Company a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, and fully paid-up right to analyze, use, publish, display, compile, create derivative works of and otherwise exploit, the Data for any and all purposes.
(d) Limitations. Notwithstanding the foregoing, the Company agrees that it will only publicly use the Data received from Reseller in a manner that (i) combines the Data with data received from other sources, and (ii) does not reveal store or brand specific performance unless otherwise mutually agreed.
6. RESELLER RESPONSIBILITIES.
6.1. Conduct Reseller shall (a) use its best efforts to market, advertise and otherwise promote and sell Subscriptions, (b) perform its obligations under this Agreement in a timely and professional manner, (c) present the Service fairly to potential Subscribers and not make any representations or warranties concerning the Service except as set forth in the Terms of Service, and (d) further and preserve the goodwill and reputation of the Company and the Service. Reseller will bear the entire cost, taxes, and expense of conducting its business in accordance with the terms of this Agreement.
6.2. Forecasts; Marketing Plan On or before the Effective Date, and on or before the tenth (10th) day of every calendar quarter thereafter during the Term, Reseller shall provide the Company with non-binding forecasts of expected sales of the Service for such calendar quarter. Reseller and the Company shall meet at least once each calendar quarter during the Term to review business goals. In addition, on or before the Effective Date, Reseller shall provide to the Company a marketing plan related to its proposed sales of the Service containing the information required in Exhibit A and such other information as the Company may reasonably request.
6.3. Subscriber Agreements.
(a) Reseller shall take all reasonable steps to inform Subscribers of any applicable restrictions and limitations regarding the use of the Service.
(b) Reseller will enter into the agreement for the Service with each Subscriber (“Subscriber Agreement”). The Subscriber Agreement will require the Subscriber to abide by terms and conditions at least as protective of the Company, Service, Documentation, Company Technology and Company IP Rights as the Terms of Service. The Subscriber Agreement will also provide that the Company is an intended third party beneficiary. Any terms that deviate from, are broader than, or are inconsistent with, the Terms of Service as they relate to the Company, Service, Documentation, Company Technology or Company IP Rights will not be effective without the Company’s prior written approval. Without limiting the generality of the foregoing, Reseller will not make any false or misleading representations with regard to the Company, Service, Documentation, Company Technology or Company IP Rights, and will make no representations, warranties or guarantees to prospective or actual Subscribers with respect to the specifications, features or capabilities of the Service that are inconsistent with the published materials or Documentation distributed or made available by the Company. Reseller will be directly responsible to the Company for any breach of the Terms of Service by a Subscriber.
(i) Reseller will promptly notify the Company of any breach or anticipated breach by Subscriber of any Subscriber Agreement of which it becomes aware.
(ii) In consultation with the Company, Reseller will enforce the terms of each Subscriber Agreement to address any breach or anticipated breach, including, as determined with the Company, termination of such Subscriber Agreement. The execution of these duties by Reseller will not preclude the Company from also taking corrective action. In addition, if a breach of a Subscriber Agreement occurs that may, in the Company’s opinion, result in irreparable harm to the Company (and/or its third party licensors) unless injunctive or other equitable relief is granted to restrain the violation, Reseller will, as requested by the Company, either (A) seek to obtain such equitable relief as promptly as reasonably possible or (B) assign its rights under the Subscriber Agreement to the Company to permit the Company to seek such equitable relief
(d) If a Subscriber Agreement is terminated for any reason, Reseller will ensure that the applicable Subscriber will no longer have access to the Service.
6.4. Compliance with Laws. Reseller shall be solely responsible for complying with, and represents and warrants that it shall comply with, all applicable laws, rules and regulations in the Territory, or any nation, or political subdivision thereof, in which it engages in business in performing its responsibilities hereunder (including, without limitation, all privacy laws, rules and regulations), and shall make, obtain, and maintain in force at all times during the term of this Agreement, all filings, registrations, reports, licenses, permits and authorizations required under applicable law, rule, regulation or order required for Reseller to perform its obligations under this Agreement. Reseller shall bear all expenses and costs related to the foregoing.
6.5. Maintenance of Qualified Individuals Reseller hereby represents and warrants it possesses the experience, skills and resources required to perform its obligations under this Agreement. Reseller shall at all times have a sufficiently trained staff of competent professionals with the necessary training and expertise to perform such obligations, including as applicable those set forth in Section 6.6. Reseller is solely responsible for all of its employees and agents, its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of Reseller’s activities, or those of its employees or agents in the performance of this Agreement and shall indemnify and defend the Company against, and hold it harmless from, any and all losses, expenses and liabilities incurred by the Company arising out of or relating to any acts or omissions of any such party.
6.6. Installation, Set-Up and Problem Resolution Reseller shall use its best efforts to assist each new Subscriber with set-up and access to the Service. Reseller shall also provide support to the Company for the API in the event the API stops transmitting data to the Service. If the Company cannot resolve a problem with the Service or API due to issues at Reseller or with the API, the Reseller will promptly examine and service the problem upon the Company’s request. The Reseller will apply good faith effort to resolve the problem.
6.7. Notice of Infringement Reseller agrees to promptly notify the Company of any known or suspected infringement or misappropriation of the Company’s IP Rights that comes to Reseller’s attention.
6.8. Compliance. Reseller shall provide information as reasonably requested by the Company to ensure compliance by Reseller with the terms of this Agreement.
6.9. Indemnification by Reseller Reseller shall indemnify, defend and hold the Company harmless from and against any and all claims, liabilities, losses, damages or judgments, including all reasonable legal fees and expenses related thereto (“Claims”) (a) that arise from or are connected with the Reseller’s sales of the Service not in strict accordance with this Agreement; (b) any misrepresentation or any breach of this Agreement by Reseller; (c) from any third party claim or action against the Company for injuries or damage to persons or property caused or claimed to have been caused by the negligent or intentional acts or omissions of Reseller personnel while in the course of performing work related to the Service or this Agreement; or (d) any violation or claimed violation of a third party’s intellectual property, privacy of other rights resulting in whole or in part from the Company’s use of the Data or Reseller Marks. Reseller’s obligations under this Section 6.9 are contingent upon (i) the Company giving prompt written notice to Reseller of any such claim (provided that later notice shall not relieve Reseller of its liability and obligations under this Section 6.9 except to the extent that Reseller is materially prejudiced by such later notice); (ii) the Company allowing Reseller to control the defense and any related settlement of any such claim, provided that Reseller shall obtain the Company’s prior written consent before entering into any settlement which admits guilt or culpability on the part of the Company or requires the Company to take any action (such consent not to be unreasonably withheld); and (iii) the Company furnishing Reseller with reasonable assistance in the defense of any such claim, so long as Reseller pays the Company’s reasonable out-of-pocket expenses. The Company will have the right to participate in such defense at its own expense.
7. COMPANY RESPONSIBILITIES.
7.1. Reseller Portal. Company will maintain a Reseller Portal on the Site where Reseller can (a) edit and update its contact and business information, (b) edit and update Subscriber information, (c) access sales and marketing collateral, and (d) access training materials.
7.2. Collateral. The Company will make available to Reseller via the Reseller Portal a quantity of such marketing, promotional or other sales materials as the Company may create and deem useful to assist Reseller in the proper promotion and sale of the Service.
7.3. Training; Support. The Company will make available to Reseller, at no charge, training via remote communications and (b) support services, each as may be reasonably requested by Reseller.
7.4. Indemnificiation. The Company shall indemnify, defend and hold Reseller harmless from and against all Claims for infringement of any patent, copyright or trademark rights or other intellectual property rights of third parties which result from the sale of the Service (excluding those arising from the Data or Reseller Marks). The Company’s obligations under this Section 7.4 are contingent upon (a) Reseller giving prompt written notice to the Company of any such claim (provided that later notice shall not relieve the Company of its liability and obligations under this Section 7.4 except to the extent that the Company is materially prejudiced by such later notice); (b) Reseller allowing the Company to control the defense and any related settlement of any such claim, provided that the Company shall obtain Reseller’s prior written consent before entering into any settlement which admits guilt or culpability on the part of Reseller or requires Reseller to take any action (such consent not to be unreasonably withheld); and (c) Reseller furnishing the Company with reasonable assistance in the defense of any such claim, so long as the Company pays Reseller’s reasonable out-of-pocket expenses. Reseller will have the right to participate in such defense at its own expense.
7.5. Maintenance of Qualified Individuals. The Company shall, at its expense, retain qualified individuals to (a) provide remote support services to Reseller; and (b) act as Company’s liaison for all technical and other communications.
7.6. Problem Resolution. The Company shall keep the Reseller informed on a regular basis as to any problems encountered with the Service or API and as to any resolutions arrived at for those problems. If the Company cannot resolve a problem with the Service or API due to issues at Subscriber or its Point of Sale System or due to issues at Reseller or with the API, the Reseller will be asked to examine and service the problem. .
8. PRICING; COMMISSION PAYMENTS.
8.1. Prices and Payments.Reseller shall have the right to set the price for Subscriptions to the Service for its Subscribers. Reseller shall establish a payments portal for interested potential Subscribers to enroll in the Service. Potential Subscribers who click on content in marketing emails will be redirected to Reseller’s payment portal to complete payment directly to Reseller.
8.2. Company Commission. Within thirty (30) days after the end of each month during the Term, Reseller shall pay to Company a monthly commission (the “Company Commission”) equal to the product of (A) Reseller's monthly subscription cost actually paid by Subscribers to Company during the month, multiplied by (B) seventy percent (70%), provided, however, that the Company's Commission not not be less than $70.00 per subscriber per month. Company may update these minimum Company Commission amounts upon sixty (6) days prior written notice to Reseller.
8.3. Monthly Statements. Together with each Company Commission payment, Reseller shall provide the Company with a statement in writing (the “Monthly Statement”) with respect to the preceding month containing: (a) the number of Subscriptions sold by Reseller during the relevant month; (b) the date of each such Subscription; (c) the names and contact information of all Subscribers who purchased Subscriptions during the relevant month; (d) the subscription fees received by the Reseller from Subscribers during the relevant month; (e) the Company Commission for the relevant month; and (f) such other information as is reasonably necessary to enable the Company to understand Reseller’s calculation of the Company Commission payable.
8.4. Reseller’s Acceptance of Orders. Reseller shall not accept orders for Subscriptions in the Company’s name nor under terms varying from those established under this Agreement.
8.5. Taxes. Reseller shall bear and be responsible for the payment of all state or local sales or use taxes, fees, duties, tariffs or other amounts, however designated, including value added and withholding taxes which are levied or based upon payments from Subscribers to Reseller.
8.6. Payment Terms. All Reseller remittances to the Company shall be made in U.S. Dollars. Reseller shall pay interest on all amounts not paid when due at the rate of one and one half percent (1.5%) per month or the highest rate permitted by law, whichever is lower. Reseller reserves the right to change payment terms at any time if, in the Company’s opinion, Reseller’s financial condition or payment record so warrants.
8.7. Audits. During the Term and for a period of five (5) years thereafter, Reseller will keep books of account and records sufficient to verify the calculation of Company Commissions to be paid to the Company under this Agreement and Reseller’s compliance with the terms of this Agreement. The Company or its designee may, upon five (5) business days’ notice to Reseller, audit Reseller’s books of account and records. Reseller will provide the Company or its designee with reasonable access to Reseller’s books of account and records for such audit and any such audit will be conducted at Reseller’s office during normal business hours and so as not to interfere unreasonably with Reseller’s business activities. If an audit reveals that Reseller has underpaid the Company Commission for any period, Reseller will promptly comply with this Agreement and make an additional payment as contemplated in this Agreement. If the amount of the underpayment is more than 5% for the relevant period, Reseller will also pay the Company its reasonable costs incurred in conducting that audit. Audits will not be made more frequently than once per calendar year unless the immediately preceding audit discloses material discrepancies.
9. SUBSCRIBER TERMINATION.
9.1. Reseller’s Acceptance of Orders. Should a Subscriber or the Reseller terminate the Service for the Subscriber for any reason, the Subscriber will generally be billed for the entire month. The Reseller will email a notice of termination to the Company and update the Monthly Statement accordingly. The Company will be paid the Company Commission for the final month of the Subscription.
10. TERM AND TERMINATION.
10.1. Reseller’s Acceptance of Orders. This Agreement will become effective as of the Effective Date and will remain in effect for one year (the “Initial Term”) and shall be automatically renewed thereafter on a year-to-year basis (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives the other party written notice of its intention not to renew this Agreement not less than thirty (30) days’ prior to the expiration of the then-current Term.
10.2. Reseller’s Acceptance of Orders. If one party defaults in the performance of any material provision of this Agreement (which shall include Section 6 (Reseller Responsibilities) and payment of Company Commissions), then the non-defaulting party may give written notice to the defaulting party that this Agreement will terminate unless the default is remedied within thirty (30) days (fifteen (15) days in athe event of a payment default by Reseller). If the non-defaulting party gives such notice and the default is not remedied during such thirty (30) day period (fifteen (15) day period in the event of a payment default by Reseller), then this Agreement will automatically terminate at the end of that period.
10.3. Reseller’s Acceptance of Orders. Either party will have the right to terminate this Agreement, without notice, upon (a) the institution by or against the other party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of the other party’s debts, (b) the other party’s making an assignment for the benefit of creditors or (c) the other party’s dissolution or ceasing to do business.
10.4. Reseller’s Acceptance of Orders. Upon termination or expiration of this Agreement for any reason whatsoever, Reseller shall immediately (a) cease all use of the Service; (b) discontinue any use of the name, logo, trademarks, service marks or slogans of the Company and the Service; discontinue all representation or statements from which it might be inferred that any relationship exists between Reseller and the Company; (c) cease to promote, solicit orders for or procure orders for the Service (but Reseller shall not act in any way to damage the reputation or goodwill of the Company or the Service nor remove any requisite software to deliver Subscribers the Service); and (d) promptly return all Confidential Information and related materials to the Company in accordance with Section 12.3 below. The Company will have the right to contact each Subscriber regarding transitioning to a direct relationship with the Company for the Service.
10.5. Reseller’s Acceptance of Orders. Expiration or termination of this Agreement will not relieve either party of any liability that accrued prior to expiration or termination. The terms contained within the following sections shall survive any expiration or termination of this Agreement: Section 2 (Ownership and Retention of Rights); Section 4 (Restrictions on Use); Section 5.4 (excluding Sections 5.54a) and (b)) (Setup and License Grant by Reseller); Section 6.9 (Indemnification by Reseller); Section 7.4 (Indemnification by the Company); Section 8.7 (Audits); Section 10 (Term and Termination); Section 12 (Confidential Information); Section 13 (excluding Sections 13.2 and 13.3) (Trademarks and Service marks); Section 14 (Warranty and Liability Disclaimers); and Section 15 (Miscellaneous).
11. RELATIONSHIP OF THE PARTIES.
11.1. Independent Contractors. The relationship of the Company and Reseller established by this Agreement is that of independent contractors, and nothing contained in this Agreement or in the parties’ performance thereof shall be construed to constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
11.2. Non-exclusive Relationship. Nothing in this Agreement shall be construed as limiting the Company’s marketing or distribution activities or its appointment of other resellers, distributors, sales representatives, sub-resellers, licensees or agents of any kind in any place.
12. CONFIDENTIAL INFORMATION.
12.1. Protection of Confidential Information. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized dissemination and use the same degree of care that the Receiving Party uses to protect its own like information but in any event not less than a reasonable degree of care. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to third parties (other than the Receiving Party’s Representatives (defined below)) without the prior written consent of the Disclosing Party. The Receiving Party shall not, and shall not authorize or permit its Representatives to, use the Disclosing Party’s Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its directors, officers, employees, and legal, tax and accounting advisors (collectively, “Representatives”) on a “need to know” basis, provided that each such Representative agrees to be bound by the obligations of secrecy and confidentiality no less restrictive than the Receiving Party is bound to under this Agreement, and provided further that the Receiving Party shall be directly responsible to the Disclosing Party for any losses or damages suffered as a result of the breach of the obligations of confidentiality and non-use contained in this Agreement by such Representatives.
12.2. Permitted Disclosure. Notwithstanding any provision in this Agreement to the contrary, the Receiving Party may disclose portions of the Disclosing Party’s Confidential Information pursuant to an order of a governmental agency or court of competent jurisdiction compelling disclosure, provided that the Receiving Party shall give the Disclosing Party reasonable advance written notice of such impending disclosure (if legally permissible) and reasonably cooperate (at the Disclosing Party’s expense) with the Disclosing Party’s efforts to prevent or limit disclosure or obtain a protective order.
12.3. Disposition Upon Termination. Upon the termination of this Agreement for any reason whatsoever, or upon request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party, or shall destroy, as the Disclosing Party shall specify, all copies of all the Confidential Information in the Receiving Party’s possession. Within five (5) days thereafter, the Receiving Party shall provide the Disclosing Party with a certificate, executed by the Receiving Party or by an officer of such party, confirming that all copies of all such Confidential Information have been returned to the Disclosing Party or destroyed, as the case may be.
13. TRADEMARKS AND SERVICE MARKS.
13.1. Ownership of Company Marks. Reseller acknowledges and agrees that the Company owns all the Company trademarks, service marks and tradenames placed on the Site or otherwise used in connection with the Service by the Company (the “Company Marks”) and that any and all goodwill derived from the use of the Company Marks by Reseller hereunder inures solely to the benefit of the Company. Reseller does not have any rights to use Company Marks.
13.2. Reseller Marks. Reseller shall provide the Company with Reseller trademarks, service marks and tradenames to be placed on the Service and used in connection with the Service hereunder, including email marketing campaigns as described in Section 5.4(b) (“Reseller Marks”) or may place the Reseller Marks on the Service in locations as permitted by the Company. The Company acknowledges and agrees that Reseller owns the Reseller Marks and that any and all goodwill derived from the use of the Reseller Marks by the Company hereunder inures solely to the benefit of Reseller. Reseller hereby grants to Company a non-exclusive, worldwide, transferable, sublicensable, and fully paid-up right to use and display the Reseller Marks in connection with its activities under this Agreement.
13.3. Defense of Trademarks. Reseller shall not at any time, whether during or after the Term, challenge, or assist others in challenging, the Company Marks or other proprietary rights, or do, cause to be done, or tolerate any act or thing contesting or in any way impairing or tending to impair any said right, title, and interest of the Company. Unless requested to do so by the Company in writing, Reseller shall not register, directly or indirectly, any trademark, service mark, trade name, company name or other proprietary or commercial name or right that is identical or confusingly similar to the Company Marks or any other Company IP Rights or that constitute translations thereof into the language(s) spoken.
13.4. Right to use Reseller’s Name. The Company shall have the right and license to indicate to the public that Reseller is a reseller of the Service on the Site and in other Company marketing collateral and use Reseller’s name and logo to do so, subject to the prior approval of Reseller, which approval will not be unreasonably withheld.
14. WARRANTY AND LIABILITY DISCLAIMERS.
14.1. Mutual Warranties. The Company and Reseller each represents and warrants to the other that: (a) it has the full power and authority to enter into, and perform its obligations under, this Agreement; (b) this Agreement is a legal and valid obligation binding on it and enforceable according to its terms; (c) the individual accepting or signing this Agreement on its behalf has full authority to bind it to this Agreement; (d) its performance of activities under this Agreement will not violate any agreement or obligation between it and a third party.
14.2. Reseller Warranties. Reseller represents and warrants to the Company that (a) it has and will have all requisite ownership, rights, and licenses to grant to the Company all rights and licenses with respect to the Data and Reseller Marks and related intellectual property rights to be granted under this Agreement, free and clear of any and all agreements, liens, adverse claims, encumbrances, and interests of any person or entity that would conflict with or prevent exercise of the granted rights; (b) to its knowledge, the use of the Data and Reseller Marks by the Company as permitted hereunder will not infringe or misappropriate the intellectual property, privacy, or other rights of a third party.
14.3. Company Warranties. The Company represents and warrants to Reseller that (a) it has and will have all requisite ownership, rights, and licenses to grant to Reseller all rights and licenses with respect to the Service and related intellectual property rights to be granted under this Agreement, free and clear of any and all agreements, liens, adverse claims, encumbrances, and interests of any person or entity that would conflict with or prevent exercise of the granted rights; and (b) to its knowledge, the use of the Service by Reseller as permitted hereunder will not infringe or misappropriate the intellectual property, privacy, or other rights of a third party.
14.4. Disclaimer of Warranties. THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE TERMS OF SERVICE, THE COMPANY PROVIDES THE SERVICE “AS IS” AND DOES NOT WARRANT ITS EFFECTIVENESS, USEFULNESS OR RELIABILITY. THE COMPANY DOES NOT WARRANT TO RESELLER OR ANY SUBSCRIBER OR OTHER THIRD PARTY THAT THE SERVICE WILL PERFORM UNINTERRUPTED OR ERROR FREE.
14.5. Disclaimer of Damages. IN NO EVENT SHALL THE COMPANY OR ITS AGENTS OR AFFILIATES BE LIABLE TO RESELLER OR ANY SUBSCRIBERS OR OTHER THIRD PARTIES FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES, LOST PROFITS, BUSINESS INTERRUPTION OR LOST DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
14.6. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, IN NO EVENT WHATSOEVER SHALL THE CUMULATIVE LIABILITY OF THE COMPANY AND ITS AFFILIATES OR AGENTS HEREUNDER EXCEED THE TOTAL AMOUNT OF ALL AMOUNTS PAID BY THE COMPANY TO RESELLER HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
15.1. Entire Agreement. The provisions of this Agreement, including any Exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter.
15.2. Amendments. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
15.3. Governing Law; Legal Actions. This Agreement shall be governed by the laws of Texas, as applied to agreements entered into and to be performed entirely within Texas without regard to the principles of conflict of laws or the United Nations Convention on Contracts for the International Sale of Goods.
15.4. Disputes. Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in Montgomery County, Texas. The parties will agree upon and appoint one arbitrator no later than twenty (20) days after either party gives the other written notice of arbitration. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the American Arbitration Association (“AAA”) for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator will have at least fifteen (15) years of appropriate experience in the technology industry and be independent of the parties. The arbitrator will conduct the arbitration in accordance with the applicable rules of the AAA. The arbitrator will limit discovery as reasonably practicable to complete the arbitration as soon as practicable. The arbitrator’s decision will be final and binding on both parties and to the fullest extent permitted by applicable law, the parties waive their right to any form of appeal or other similar recourse to a court of law. The costs and expenses of the arbitration will be shared equally by both parties. Any arbitration award will be enforceable in any court of competent jurisdiction. This Section 15.4 will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
15.5. Notices. All notices under this Agreement shall be in writing and shall be delivered to the addresses set forth on the signature page of this Agreement. Notice shall be deemed to have been given upon: (a) personal delivery; (b) the first business day after sending notice via nationally recognized overnight courier; (c) three (3) business days after depositing notice in the United States mail, sent Certified Mail Return Receipt Requested; or (d) for notices by the Company, posting by the Company in the Reseller Portal. Notices to Company shall be addressed to the attention of its Chief Executive Officer. Either party may change its address for notice by giving notice of such address change in the manner provided herein.
15.6. Assignment. Reseller may not assign, delegate, sub-contract or otherwise transfer this Agreement or any of its rights and obligations hereunder, whether voluntarily, by operation of law or otherwise, without the Company’s prior written approval.
15.7. No Waiver; Severability. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. The exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
15.8. Injunctive Relief. The parties agree that any unauthorized use of the Service or unauthorized disclosure of Confidential Information of either party, or a breach of this Agreement adversely affecting either party’s intellectual property rights would cause irreparable injury to the injured party for which monetary damages would not be an adequate remedy and the injured party shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.
15.9. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument.
15.10. English Language. This Agreement is in the English language only, which language shall be controlling in all respects. Any versions of this Agreement in any other language will be for accommodation only and will not be binding upon either party. All communications and documentation for the Service to be furnished under this Agreement shall be in the English language.
15.11. Force Majeure. Nonperformance of either party shall be excused to the extent performance is rendered impossible by strike, fire, flood, 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 non-performing party. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any orders thereunder by a written notice to the defaulting party.
15.12. Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
15.13. No Other Rights Conferred Nothing contained in this Agreement shall be construed as conferring by implication, estoppel or otherwise upon either party hereunder any license or other right except the licenses, rights and uses expressly granted hereunder to a party hereto.
MARKETING PLAN REQUIREMENTS
The Reseller will submit a report including:
WHATSBUSY TECHNICAL SPECIFICATION
WhatsBusy Technical Specification for data format. Data shall be in CSV format or other format required by the Company, with the following fields