THIS RESELLER AGREEMENT (“Agreement”), dated as of the day you submit your electronic application to become an AppSuite Reseller (the “Effective Date”), is by and between AppSuite, Inc, a Florida corporation (“AppSuite”), you the AppSuite reseller as defined in your electronic web submission on our website (“Reseller”)
In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
SECTION 1: APPOINTMENT OF RESELLER
1.1 Resale of Services. Subject to the terms and conditions of this Agreement, AppSuite grants to Reseller a non-exclusive, non-transferable right and license, during the term of this Agreement to market, promote and resell subscriptions to the Services. “Services” shall mean AppSuite’s proprietary Cloud CRM program as described on the company’s website at http://mobileappsuite.com (the “Platform”) provided by and hosted by AppSuite that allows restaurants and hotels (“Customers”), to create, store, and maintain AppSuite’s Cloud CRM and ordering services on the Platform.
1.2 Lead and Order Registration. To register a lead and for commission a Reseller shall submit an email to [email protected] and provide the following information:
Reseller point of contact for this lead (name, email, phone)
Client (name, address, phone, website)
Number of Locations • Client Contact (name, title, phone)
Point of Sale model and version
Number of workstations
Current environment, including, if applicable who the providers are for (Gift, loyalty, ordering, etc.)
Estimated date of purchase
Competition Once this request is received, AppSuite will confirm to the Reseller via email the receipt and Approval or Decline of the new customer/lead. AppSuite may Approve or Decline a registration request in its sole discretion. Once a lead is “Approved” the reseller will then have the right to the lead for the shorter of 6 months or the termination of this agreement. If after 6 months the registered lead has not been converted to a signed closed customer contract the lead will automatically be reverted to an open status.
1.3 Marketing Materials. AppSuite hereby grants to Reseller a nonexclusive non-transferable, limited right during the term of this Agreement to use and reproduce certain AppSuite provided marketing materials and to distribute such materials to proposed Customers.
1.4 Sub-distributors. Reseller shall not appoint sub-distributors, independent sales representatives or any subcontractors to market and resell subscriptions hereunder or to provide any technical support services to Customers with respect to the Service without AppSuite’s prior written approval in each instance.
1.5 Reserved Rights. All rights to the Service not expressly granted to Reseller are hereby reserved by AppSuite. AppSuite expressly retains all right, title and interest to the Service and may market, promote, operate and sell subscriptions to the Service in any manner whatsoever. Without limiting the generality of the foregoing, and notwithstanding any other provision of this Agreement to the contrary, nothing in this Agreement shall be construed as limiting or restricting in any manner AppSuite’s right or ability to market, distribute, license or otherwise exploit in any manner the Service, or to appoint dealers, distributors, resellers, licensees, agents or representatives of any kind for the Service.
SECTION 2: RESPONSIBILITIES
2.1 Promotion. Reseller shall use commercially reasonable efforts to promote, market and resell Service Account subscriptions to Customers during the term of this Agreement.
2.2 Compensation. AppSuite shall pay to Reseller the one-time and monthly fees, including the fees owed for each subscription ordered by Reseller for resale to a Customer, as specified in Exhibit A attached hereto (the “Fee Schedule”).
2.3 Customer Terms. Each Customer shall enter into a license agreement with AppSuite (the “Customer Terms”) containing terms and conditions substantially in the form of AppSuite’s then current standard terms and conditions which can be found at http://mobileappsuite.com/appsuite-msa/ or in such other form as AppSuite may approve in writing. If Reseller learns that a Customer has breached any provision of the Customer Terms, Reseller will immediately notify AppSuite and Reseller shall use best efforts to enforce the Customer Terms, including but not limited to availing itself of actions for seizure or injunctive relief. Customer’s shall pay AppSuite directly for the applicable monthly Service fee as a condition of continued access to the Service.
2.4 Training. AppSuite shall provide via teleconference and online up to one hour of training to Reseller with respect to the Services at a mutually agreed upon time.
2.5 Restrictive Covenants. During the Term of this Agreement and for a period of one (1) year following the expiration or termination of this Agreement for any reason, Reseller shall not directly or indirectly develop or have developed any product or service offering that is competitive with the Service. This restrictive provision does not however prohibit the Reseller from using products and or services from AppSuite competitors who offer similar offerings.
2.6 Reseller Responsibilities. Reseller agrees to perform its additional obligations specified on Exhibit A attached hereto and as contained in the “Appsuite Reseller Program final.xlsx”.
2.7 AppSuite Responsibilities. AppSuite agrees to perform its additional obligations specified on Exhibit B attached hereto.
2.8 Downtime. Reseller agrees that from time to time the Service may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which AppSuite or its suppliers may undertake from time to time; or (iii) causes beyond the control of AppSuite or which are not reasonably foreseeable by AppSuite, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). AppSuite shall use commercially reasonable efforts to provide advance notice to Customers in the event of any scheduled Downtime. AppSuite shall have no obligation during performance of such operations to mirror any Customer content on any other server or to transfer any Customer content to any other server. AppSuite shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Service in connection with Downtime, whether scheduled or not.
SECTION 3: TERM
3.1 Term. Subject to earlier termination as provided herein, this Agreement shall have an initial term of one (1) year beginning upon the Effective Date and shall automatically renew for additional periods of one (1) year at the expiration of the initial term or any renewal term, unless a party hereto provides written notification of termination of this Agreement to the other party not later than thirty (30) days immediately preceding the date on which this Agreement would otherwise renew or unless earlier terminated as provided herein. In addition, either party may terminate this Agreement (i) immediately in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice thereof from the other party, or (ii) immediately if the other party ceases doing business (other than in connection with a sale of such party’s business or assets to a third party who agrees to assume this Agreement), is the subject of a voluntary bankruptcy, insolvency or similar proceeding, is the subject of an involuntary state or federal bankruptcy, insolvency, or similar proceeding that is not dismissed within sixty (60) days of filing, makes an assignment for the benefit of creditors, becomes unable to pay its debts when due, or enters into an agreement with its creditors providing for the extension or composition of debt. Appsuite may terminate this Agreement upon 30 days written notice if the Reseller fails to record at least 2 new orders during any 3-month period.
3.2 Effect. Upon termination or expiration of this Agreement, the licenses granted under Section 1 shall terminate and each party shall promptly deliver to the other party all of the other party’s Confidential Information and any other materials of the other party in its possession. All outstanding obligations or commitments of either party to pay amounts to the other party, if any, will survive termination of this Agreement. Each party understands that the rights of termination hereunder are absolute. Upon expiration of this Agreement or termination in accordance with Section 3.1, Reseller shall not be entitled to any separation compensation or separation damages of any kind, including indemnification, compensation, reimbursement, or damages for loss of prospective compensation, goodwill or loss thereof, or expenditures, investments, leases, or any type of commitment made in connection with Reseller’s and/or its Customers’ business, or in reliance on the existence of this Agreement including, but not limited, to advertising and promotion costs, costs of supplies, termination of employees, employee salaries, and other such costs and expenses. Sections 2.5, 3.2 and 4 through 8 hereof shall survive termination or expiration of this Agreement and shall thereafter remain in effect in accordance with their terms. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
SECTION 4: TITLE; INTELLECTUAL PROPERTY
4.1 Title to Service. AppSuite (and, if applicable, its licensors) retains all right, title, and interest in and to the Service, all content uploaded into the Service by AppSuite or its licensors, all technology used to provide the Service, and all patent, copyright, trade secret and other intellectual property rights contained or embodied therein and all derivatives thereto. Reseller agrees that all intellectual property rights and all other ownership in any ideas, modifications, or suggestions it proposes, creates, or authors relating to the Service (“Suggestions”) are hereby assigned to AppSuite and shall be the sole and exclusive property of AppSuite. AppSuite shall have sole discretion as to whether and how to implement any such Suggestions into the Service. All Content (as defined below) shall be owned by Reseller or its Customers as the case may be.
4.2 Restrictions. Except as expressly permitted in this Agreement, Reseller will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of software that powers the Service, (ii) modify, translate, or otherwise create a derivative work of the Service, (iii) reproduce or otherwise manufacture the Service or (iv) provide, lease, lend, or use the Service for timesharing or as a service bureau or directly host the Service without the written consent of AppSuite. All rights not expressly granted to Reseller herein are reserved by AppSuite. There are no implied rights.
4.3 Trademarks; Advertising. Reseller is authorized to identify Reseller as an independent business that has been authorized by AppSuite to market the Service, and to use and display AppSuite’s marketing materials, trade name, trademarks, service marks, and logos for purposes of promotion and marketing of the Service intended for Customers. All such actions shall be subject to reasonable advertising and usage guidelines provided by AppSuite. In all other respects, this Agreement confers no right or license with regard to AppSuite’s trade name, trademarks, service marks, logos, or packaging, or any related goodwill, all of which shall be the exclusive property of AppSuite. AppSuite may identify Reseller as a sales partner in AppSuite advertising and marketing materials. Reseller shall not make any representations, warranties or other statements concerning the Service that are inconsistent with AppSuite’s marketing materials and advertising. All goodwill associated with AppSuite’s trademarks and Reseller’s use of such trademarks shall inure to AppSuite. Reseller will not use, register or attempt to register, or take other action with respect to any name, logo, trademark, service mark, or other identifier used anywhere in the world by AppSuite (or a mark confusingly similar thereto), except to the extent authorized in writing by AppSuite in advance. Except as otherwise expressly set forth herein, Reseller acknowledges that the Service is provided under AppSuite’s name and logo and Reseller shall not remove, alter or deface any such logo or name.
4.4 Content. All content (e.g., articles, images, contracts, data, etc.,) which the Reseller or any Customer enters into the Service (the “Content”) will not be used by AppSuite except as necessary to provide the Service and AppSuite shall have a royalty-free right to use, display, transmit, and distribute the Content solely in connection with providing the Service. As between AppSuite and Reseller, Reseller and its Customers shall be solely responsible for providing, updating, uploading and maintaining all Content. AppSuite does not guarantee the accuracy, integrity or quality of such Content. Reseller shall not use the Service and shall ensure that its Customers do not use the Service to: (a) upload or otherwise transmit any Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (b) upload or otherwise transmit any Content that Reseller or such Customer does not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (c) upload or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person or (d) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the Federal Communications Commission, Federal Trade Commission and the U.S. Securities and Exchange Commission, and any laws regarding the export of technical data. Reseller shall defend, indemnify and hold AppSuite and its affiliates, officers, directors, employees and licensors harmless from any breach of the foregoing.
SECTION 5: CONFIDENTIALITY
5.1 Confidentiality. As used in this Agreement, the term “Confidential Information” shall mean all information about either party’s business, business plans, customers, strategies, trade secrets, operations, records, finances, assets, technology, products, product specifications, data and information that reveals the processes, methodologies, technology or know how by which either party’s existing or future products, services, applications and methods of operation are developed, conducted or operated and other confidential or proprietary information designated as such in writing by the disclosing party, whether by letter or by the use of an appropriate proprietary stamp or legend, prior to or at the time any such trade secret or confidential or proprietary information is disclosed by the disclosing party to the receiving party or is orally or visually disclosed to the receiving party by the disclosing party. Information which is orally or visually disclosed to the receiving party by the disclosing party, or is disclosed in writing without an appropriate letter, proprietary stamp or legend, shall constitute Confidential Information if (i) it would be apparent to a reasonable person, familiar with the disclosing party’s business and the industry in which it operates, that such information is of a confidential or proprietary nature the maintenance of which is important to the disclosing party or if (ii) the disclosing party, within thirty (30) days after such disclosure, delivers to the receiving party a written document or documents describing such information and referencing the place and date of such oral, visual or written disclosure and the names of the employees or officers of the receiving party to whom such disclosure was made.
5.2 Obligations. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) to any person outside its organization, any Confidential Information. The receiving party and its personnel shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for its own benefit or the benefit of another without the prior written consent of the disclosing party. Without limitation of the foregoing, the receiving party shall not cause or permit reverse engineering of any Confidential Information or recompilation or disassembly of any products which are part of the Confidential Information received by it under this Agreement and shall disclose Confidential Information only to persons within its organization who have a need to know such Confidential Information in the course of the performance of their duties and who are bound by a written agreement, enforceable by the receiving party, to protect the confidentiality of such Confidential Information. The receiving party shall adopt and maintain programs and procedures which are reasonably calculated to protect the confidentiality of Confidential Information and shall be responsible to the disclosing party for any disclosure or misuse of Confidential Information which results from a failure to comply with this provision. The receiving party shall be fully responsible for any breach of this Agreement by its agents, representatives and employees. The receiving party will promptly report to the disclosing party any actual or suspected violation of the terms of this Agreement and will take all reasonable further steps requested by the disclosing party to prevent, control or remedy any such violation.
5.3 Exclusions. Notwithstanding the terms set forth in Section 5.2, neither party shall have liability to the other with regard to any Confidential Information of the other which (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party, (ii) was known to the receiving party, without restriction, at the time of disclosure, (iii) is disclosed with the prior written approval of the disclosing party, (iv) was independently developed by the receiving party without any use of the Confidential Information, as reasonably demonstrated by the receiving party, (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party’s rights, (vi) is disclosed generally to third parties by the disclosing party without restrictions similar to those contained in this Agreement, or (vii) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, that the receiving party shall provide prompt notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Each party shall be entitled to disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement shall be treated as Confidential Information and shall not be disclosed to any third party; provided, that each party may disclose the terms and conditions of this Agreement (A) as required by any court or other governmental body, (B) as otherwise required by law, (C) to legal counsel of the parties, (D) in confidence, to accountants, banks and financing sources and their respective advisors, (E) if necessary in connection with the enforcement of this Agreement or rights under this Agreement, or (F) in confidence, in connection with an actual or proposed merger, acquisition or similar transaction.
SECTION 6. WARRANTY; LIMITATIONS
6.1 Warranty. AppSuite represents and warrants that (i) this Agreement has been duly executed and delivered by AppSuite, and (assuming due authorization, execution and delivery by the other person signatory hereto) this Agreement constitutes a legal, valid and binding obligation of AppSuite enforceable against it in accordance with its terms and (ii) it will provide the Service in a competent manner. AppSuite does not warrant that it will be able to correct all reported defects in the Service or that use of the Service will be uninterrupted or error free. AppSuite makes no warranty regarding features or services provided by third parties (including without limitation Internet telecommunication service or Web “browser” software) nor does AppSuite warrant that the use by a Customer for purposes of effectuating digital signatures is or will be legally enforceable. EXCEPT AS SET FORTH ABOVE IN THIS SECTION, APPSUITE MAKES NO WARRANTIES OR REPRESENTATIONS AS TO ITS SERVICE ANY OTHER SERVICES RENDERED TO RESELLER, ITS CUSTOMERS OR ANY OTHER PERSON. EXCEPT AS SET FORTH ABOVE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, APPSUITE DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF THE TRADE. 6.2 Limitations. The cumulative aggregate liability of AppSuite to Reseller for all claims relating to this Agreement, the Service, any and services AppSuite renders hereunder, in contract, tort, or otherwise, shall not exceed the amount of the fees paid by Reseller to AppSuite hereunder within the twelve months prior to the event giving rise to the claim. In no event shall AppSuite be liable to Reseller for any consequential, indirect, special, or incidental damages, including without limitation lost profits, even if advised of the possibility thereof.
SECTION 7. INDEMNIFICATION
7.1 Indemnification by AppSuite. AppSuite, at its expense, shall defend and indemnify Reseller against any third party claim brought against Reseller to the extent based on a claim that the Service infringes any U.S or Canadian copyright or trade secret of any third party. AppSuite shall pay any award against Reseller, or settlement entered into on Reseller’s behalf, based on such infringement, but only if Reseller notifies AppSuite promptly in writing of the claim, provides reasonable assistance in connection with the defense and settlement thereof, and permits AppSuite to control the defense and settlement thereof. AppSuite shall have no obligation to defend and indemnify Reseller and shall not be liable in any manner whatsoever for any damages resulting from any claim related to any third party data or content or any Content. If a claim of infringement or misappropriation under this Section occurs, or if AppSuite determines that a claim is likely to occur, AppSuite shall have the right, in its sole discretion, to either: (i) procure for Reseller the right or license to continue to use and sell subscriptions to the Service free of the infringement claim; or (ii) replace or modify the Service to make it non-infringing. If these remedies are not reasonably available to AppSuite, AppSuite may, at its option, terminate this Agreement and return to Reseller any pre-paid unused fees for the Service. THIS SECTION STATES THE ENTIRE LIABILITY OF APPSUITE AND RESELLER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY INFRINGEMENT BY THE SERVICE.
7.2 Indemnification by Reseller. Reseller shall indemnify, defend and hold harmless AppSuite, its affiliates and their respective shareholders, members, officers, agents, directors and employees (collectively, the “AppSuite Parties”) from and against any and all damages, liability, loss or expenses (including all court costs, reasonable expenses and reasonable attorney’s fees) incurred in connection with any claim (i) against AppSuite by a Customer that relates to such Customer’s relationship with Reseller (and not to any direct relationship which AppSuite may have with such Customer), or (ii) any violation of Reseller of Section 8.6 below.
SECTION 8. MISCELLANEOUS
8.1 Power and Authority. Each party hereby represents and warrants to the other party hereto that it has full power and authority to enter into and perform under the terms of this Agreement, and the person executing this Agreement on behalf of such party has been properly authorized and empowered to so execute this Agreement.
8.2 Notices. All notices shall be in writing sent certified mail or overnight express courier service to the address of the party as set forth in this Agreement, or to any other address designated by such party by written notice. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed.
8.3 Assignment. This Agreement (and rights and obligations hereunder) may not be assigned or transferred in any manner, whether in whole or in part, by Reseller, nor may Reseller delegate, sublicense or subcontract any obligation incurred hereunder. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, the parties hereto, their successors and assigns.
8.4 Governing Law. This Agreement and the rights and obligations of the parties shall be governed and construed in accordance with the laws of the State of Florida and the United States. Any action brought pursuant to or in connection with this Agreement shall be brought only in the state or federal courts within the State of Florida without regard to its conflict of laws provisions. In any such action, the parties shall submit to the personal jurisdiction of the courts of the State of Florida and waives any objections to venue in such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
8.5 Entire Agreement; Waiver; Severability. The Agreement, including the attached Schedules and Exhibits, constitutes the entire agreement between the parties, and supersedes all prior oral or written agreements or communications with regard to the subject matters described. No additional or conflicting term in a purchase order or other document shall have any effect on the terms of this Agreement. This Agreement may not be modified except by a writing signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The nonenforcement or waiver of any provision on one occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. It is agreed that no usage of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. If any provision of this Agreement is held to be unenforceable, in whole or in part, such holding will not affect the validity of the other provisions of this Agreement.
8.6 Compliance with Law. Reseller shall, at its own expense, comply with all laws relating to the marketing, promotion and resale of the Service as contemplated hereunder (including but not limited to all import and export laws), and shall procure all licenses and pay all fees and other charges required thereby.
8.7 Independent Contractor. Each party hereto shall be and remain an independent contractor; nothing herein shall be deemed to constitute the parties as partners, and neither party shall have any authority to act, or attempt to act, or represent itself, directly or by implication, as an agent of the other or in any manner assume or create, or attempt to assume or create, any obligation on behalf of or in the name of the other, nor shall either by deemed the agent or employee of the other.
Exhibit A
Here is a description of each Parties responsibilities in this agreement.
Reseller Revenue. Excludes all setup and configuration fees as well as any fees for SMS, email marketing, email validation, and third-party licenses and or packages. In the event that Appsuite does not renew Reseller’s agreement for reasons other than a breach of contract by the Reseller including for lack of new orders as defined in the in Section 3.1 of the Agreement, Appsuite will continue to continue to pay Reseller a commission for 6 months beyond the termination of this agreement.
Monthly Billing from AppSuite. At the end of each calendar month AppSuite shall pay the Reseller for all commissions due on qualified Reseller Revenue. Limitations. The responsibility Matrix and Revenue Split Schedule listed above is the only compensation that is due the Reseller from Appsuite. Appsuite agrees to no other method of compensation, referred or implied, to the Reseller. Fees are earned only on accounts generated by the Reseller unless otherwise agreed to.
Exhibit B
AppSuite Responsibilities
1. Provide Reseller with copies of AppSuite’s then current List Prices (at Reseller’s request).
2. Provide technical support to Customers. For purposes of this Agreement, “technical support” shall mean email and telephone support directly to Customers during AppSuite business hours to assist Customers in correcting any errors and defects in the Service.
3. Additional training seminars will be made available at Reseller’s location at a cost of $960.00 per day plus travel expenses at a mutually agreeable time and date.
Reseller Revenue. Excludes all setup and configuration fees as well as any fees for SMS, email marketing, email validation, and third-party licenses and or packages. In the event that Appsuite does not renew Reseller’s agreement for reasons other than a breach of contract by the Reseller including for lack of new orders as defined in the in Section 3.1 of the Agreement, Appsuite will continue to continue to pay Reseller a commission for 6 months beyond the termination of this agreement.
Monthly Billing from AppSuite. At the end of each calendar month AppSuite shall pay the Reseller for all commissions due on qualified Reseller Revenue. Limitations. The responsibility Matrix and Revenue Split Schedule listed above is the only compensation that is due the Reseller from Appsuite. Appsuite agrees to no other method of compensation, referred or implied, to the Reseller. Fees are earned only on accounts generated by the Reseller unless otherwise agreed to.