PLEASE READ THESE RESELLER TERMS AND CONDITIONS (“AGREEMENT”) BEFORE REGISTERING AS A 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 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.
The following definitions apply to capitalized terms in this Agreement. All other capitalized terms are defined in the body of the 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. “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.
1.2. “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.
1.3. “Company IP Rights” means any patent, copyright, trade secret, trademark or other intellectual property right embodied in or related to the Company Technology.
1.4. “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 (including, without limitation, the Agent); 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.
1.5. “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.
1.6. “Data” means, if Reseller is a Private Label Reseller, all transaction-related data stored in Reseller’s Point of Sale System (including data of Reseller’s customers), according to the Specification.
1.7. “Documentation” means any user documentation, on any media, provided by the Company for use with the Service.
1.8. “Derivative Works” means a revision, modification, translation, abridgment, condensation or expansion of or addition to the Service, Agent or Documentation or any work that employs pre-existing code from the Service or Agent or, if prepared in violation of this Agreement or without the consent of the Company, would infringe the Company IP Rights.
1.9. “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.
1.10. “Point of Sale System” means point of sale systems and terminals.
1.11. “Private Label Reseller” means a Reseller who will provide all Data for all stores from all of its customers directly to the Service from Reseller’s systems.
1.12. “Service” means Company owns and provides access to its analytical software products on a software-as-a-service basis.
1.13. “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.
1.14. “Specification” means, if Reseller is a Private Label Reseller, the WhatsBusy Technical Specification in Exhibit B, as updated from time-to-time and provided Reseller.
1.15. “Subscriber” means any person or entity that subscribes to the Service solely for its own internal use as represented by Reseller.
1.16. “Subscriptions” means purchases of one or more subscriptions to the Service.
1.17. “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 each Subscriber, and by Reseller, 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. 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.
3.3. 3.3. 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 3.2, 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.
3.4. Trial Periods 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, Agent, 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, (b) Reseller payment account information, where Service commissions may be deposited, and (c) a value for the number of active, potential Subscriber accounts.
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 and, unless the Subscriber is a customer of a Reseller who is a Private Label Reseller, a link for the Agent download.
5.4. Setup for Resellers Other than Private Label Resellers The following apply only if Reseller is not a Private Label Reseller:
(a) Agent Installation. Reseller or Subscriber may download the Agent onto the Subscriber’s Point of Sale System server. As stated in Section 6.7 it is the responsibility of the Reseller to ensure that the Agent is installed properly and that transaction data is being transmitted through the appropriate ports and firewalls.
(b) Data Transmission Confirmation. When Subscriber’s Point of Sale System transaction data has been successfully transmitted from the Agent a confirmation email will be sent to Subscriber and Reseller. If transaction data is not transmitted, an error log will be emailed to Subscriber and Reseller so that the installation may be appropriately configured.
(c) Trial Period and Payment. Upon successful installation of the Agent, Subscriber will receive access to the Service. The Service will be provided under the terms of the Trial Period unless the Reseller waives the Trial Period. Upon completion of the Trial Period, the Subscriber will be prompted to enter payment information to continue using the Service.
5.5. Setup and License Grant by Private Label Resellers The following apply only if Reseller is a Private Label 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. Payment Account. Reseller must link a payment account as described in Section 7.1 on the Company’s Reseller Portal.
6.2. 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.
6.3. Forecasts; Marketing PlanReseller 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.
6.4. Limitations. Reseller shall take all reasonable steps to inform Subscribers of any applicable restrictions and limitations regarding the use of the Service.
6.5. 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.
6.6. 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 6.7. 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.
6.7. Installation, Set-Up and Problem Resolution Reseller shall use its best efforts to assist each new Subscriber with installation of the Agent (if applicable) and set-up and access to the Service. Reseller shall also provide support to each Subscriber for the Agent and to the Company for the API (as applicable) in the event the Agent or API (as applicable) stops transmitting data to the Service. If the Company cannot resolve a problem with the Service, Agent or API (as applicable) due to issues at Subscriber or its Point of Sale System or due to issues at Reseller or with the API (as applicable), 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.
6.8. 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.
6.9. Compliance. Reseller shall provide information as reasonably requested by the Company to ensure compliance by Reseller with the terms of this Agreement.
6.10. 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) if Reseller is a Private Label Reseller, 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 6.10 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 6.10 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 Monthly Statements, (d) access sales and marketing collateral, and (e) 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 Subscribers; 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, Agent or API (as applicable) and as to any resolutions arrived at for those problems. If the Company cannot resolve a problem with the Service, Agent or API (as applicable) due to issues at Subscriber or its Point of Sale System or due to issues at Reseller or with the API (as applicable), the Reseller will be asked to examine and service the problem. .
8. ORDERING; PRICING; COMMISSION PAYMENTS.
8.1. General Provisions. All orders for Subscriptions will be submitted by Reseller or Subscriber on the Site and all information required on the Site for each Subscription must be completed by Reseller and Subscriber as described in Section 6. All orders are subject to acceptance by the Company. The Company may accept or reject any order in its sole discretion. The Company shall use reasonable efforts to notify Reseller within five (5) business days of the acceptance or rejection thereof. Upon acceptance of an order by the Company and the satisfaction of all the Company prerequisites prior to access, the Company shall enable Subscriber to access the “subscribers” section of the Site.
8.2. Prices. For each Subscription, the Subscriber will pay directly to the Company the price set forth on the Site. The Company has the exclusive right, at any time upon thirty (30) days’ prior written notice to Reseller, to change its prices or institute support and maintenance fees related to the Service for new subscribers. Price changes and additional fees for existing Subscribers will be addressed by the Company directly with the Subscribers through its normal price change process.
8.3. Reseller Commission. Within thirty (30) days after the end of each month during the Term, and subject to Sections 8.4(a) and 8.6, the Company shall pay to Reseller a monthly commission (the “Reseller Commission”) equal to the product of (A) the monthly subscription cost actually paid by Subscribers to Company during the month, multiplied by (B) thirty percent (30%).
8.4. Commission Term.
(a) For Resellers Other than Private Label Resellers. If Reseller is not a Private Label Reseller, Reseller will earn the monthly Reseller Commission for each Subscriber in each month that the Subscriber uses and pays for the Service.
(b) For Private Label Resellers. If Reseller is a Private Label Reseller, and provided that Reseller continues to provide all Data for all stores from all of its customers as required, Reseller will earn the monthly Reseller Commission for each Subscriber in each month that the Subscriber uses and pays for the Service during the Term.
8.5. Monthly Statements. Within thirty days after the end of each month during the Term, the Company shall make available in the Reseller Portal 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 Company from Subscribers during the relevant month; (e) the Reseller Commission for the relevant month; and (f) such other information as is reasonably necessary to enable Reseller to understand Company’s calculation of the Reseller Commission payable.
8.6. Adjustment of Fees. The Reseller Commission may be adjusted if a Subscriber receives a credit or refund from the Company or makes an overpayment to the Company. Reseller is responsible for promptly repaying any overpayment. The Company may also deduct any overpayment from future payments to Reseller.
8.7. 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 and the Terms of Service.
8.8. Taxes. The amount of the Reseller Commission includes all taxes that are applicable as a result of the services Reseller provides. Reseller is solely responsible for all applicable taxes related to the Reseller Commission it receives including tax remittance to the appropriate taxing authority. The Company will use reasonable efforts to cooperate with and assist Reseller in obtaining tax certificates or other appropriate documentation evidencing this tax payment at Reseller’s written request and expense.
9. SUBSCRIBER TERMINATION.
9.1. Reseller’s Acceptance of Orders. Should a Subscriber or the Company terminate the Service for any reason, the Subscriber will generally be billed for the entire month. The Company will email a notice of termination to Reseller and update the Monthly Statement accordingly. Reseller will be paid the Reseller Commission for the final month of the Subscription (subject to Sections 8.4(a) and 8.6).
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)), 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. If the non-defaulting party gives such notice and the default is not remedied during such thirty (30) day period, 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.
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 5.5 (excluding Sections 5.5(a) and (b)) (Setup and License Grant by Private Label Resellers); Section 6.10 (Indemnification by Reseller); Section 7.4 (Indemnification by the Company); 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.
13.2. Authorized Use of Company Marks. During the Term, unless Reseller is a Private Label Reseller, Reseller shall market the Service under the Company Marks. The Company reserves the right to change its Company Marks at any time. Unless Reseller is a Private Label Reseller, Reseller shall not add to the Site or any advertising or other materials provided by the Company any logo, marking or information that has not been approved in advance by the Company in writing. All advertising and other materials not provided by the Company in which the Company Marks are used shall be subject to the prior written approval of the Company, which approval will not be unreasonably withheld. Whenever the Company Marks are used, Reseller shall indicate that such Company Marks are the property of the Company. Reseller shall have the right to indicate to the public that it is an authorized Reseller of the Service and use the Company Marks to advertise and identify such the Service. The Company shall have the right to audit Reseller’s use of the Company Marks for such purposes and require Reseller to modify such use as may be required by the Company.
13.3. Reseller Marks.
(a) For Resellers Other than Private Label Resellers. Unless Reseller is a Private Label Reseller, Reseller shall use no trademarks, trade names, service marks or other proprietary indicia in association with the Service other than the Company Marks, including any trademark or trade name owned by Reseller.
(b) For Private Label Resellers. If Reseller is a Private Label Reseller, Reseller may 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 5.5(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.
13.4. 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.
13.5. 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; and (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. From time to time, the Company may modify this Agreement and any policies or agreements which are incorporated or referenced herein. Reseller acknowledges and agrees that (a) the Company may notify it of such changes or modifications by posting them to the Site, and (b) Reseller’s use of the Site or the Service after such changes or modifications have been made (as indicated by the “Last Updated” date at the top of this Agreement) constitutes Reseller’s acceptance of this Agreement as last revised. If Reseller does not agree to be bound by this Agreement as last revised, Reseller may not use (or continue to use) the Site or the Service. In addition, the Company may occasionally notify Reseller of changes or modifications to this Agreement by email. It is therefore very important that Reseller keeps its contact information, including its email address, current. The Company assumes no liability or responsibility for Reseller’s failure to receive an email notification if such failure results from an inaccurate or out-of-date email address or any other technical issues outside of the Company’s reasonable control. Otherwise, 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 by Reseller to the Company at 12 Water Mark Way, The Woodlands, TX, 77381, or by the Company to the Reseller at the address listed in Reseller’s contact information in the Reseller Portal or by posting the notice in the Reseller Portal. 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. 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.
15.10. 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.
15.11. 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.
15.12. 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.