RESELLER AGREEMENT FOR SITEAPPS PLATFORM
This Reseller Agreement ("Agreement") is entered into by you and between Power Trio Corp., dba “SiteApps” a Delaware corporation, with offices at 3500 South DuPont Highway, Dover, DE 19901 (“POWER TRIO”) and the party named above (“Reseller”). This Agreement is effective as of the date Reseller clicks the 'I Accept' button (the 'Effective Date'). If you are accepting on behalf of Reseller, you represent and warrant that: a) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; b) you have read and understand this Agreement; and c) you agree, on behalf of Reseller, to this Agreement. If you do not agree to any of the following terms, or do not have the legal authority to bind Reseller, please do not click the 'I Accept' button. This Agreement governs Reseller's access to the SiteApps Service (the 'Service'). You should print or otherwise save a copy of this Agreement for your records.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
Any capitalized terms used in this Agreement that are not otherwise defined herein shall have the meaning prescribed in the Terms of Service (as defined herein and attached hereto).
“Customer” means a third party individual or entity that enters into a written agreement and/or purchase order with Reseller in accordance with the terms of this Agreement for a subscription to the SiteApps Platform.
“Services” means the products and services offered by POWER TRIO under the name “SiteApps Platform” and made available by POWER TRIO via password-protected customer login and/or automatic login through a Reseller integration. “SiteApps Platform” exclude Third-Party Platforms and Non-POWER TRIO Applications
“Non-POWER TRIO Applications” means online applications and offline software products that are provided by entities or individuals other than POWER TRIO and are clearly identified as such, and that interoperate with the SiteApps Platform.
“POWER TRIO Marketing Guidelines” means all and any marketing, branding and trademark usage guidelines established by POWER TRIO from time to time regarding the use of POWER TRIO’s brands and the marketing of its services, including without limitation, any guidelines relating to the marketing of the SiteApps Platform as provided by POWER TRIO or otherwise made available to Reseller.
“SiteApps Platform”. SiteApps Platform is an optimization command center for the SMB website. SiteApps integrates with Google Analytics and presents optimization opportunities that the website owner can use to enhance their website. SiteApps also offers a marketplace of web apps that can be installed with just one click.
“Term” means the term set forth in section 8 of this Agreement.
“Terms of Service” means POWER TRIO’s then-current terms and conditions under which it offers the SiteApps Platform to Reseller and Customers, which terms and conditions are set forth at http://www.siteapps.com/web/privacy/terms , or at another web address communicated from time to time by POWER TRIO. For the purposes of this definition, “then-current” shall mean the terms and conditions set forth at the applicable web address at the time the Reseller enters into a contract with Customer for the sale of SiteApps Platform.
“Territory” means the following country/ies and/or regions: All countries and regions in the world not restricted by United States Department of State trade embargoes.
“Trademarks” means the name, logo, trademarks and service marks of a party.
2. RESALE AND MARKETING RIGHTS AND LICENSE
2.1. Overview. This Agreement allows Reseller to offer a “SiteApps Platform” to all of its Customers via its web control panel and to share in the revenue generated by Customer upgrades to paid services.
2.2. Resale and Marketing. Subject to the restrictions and terms of this Agreement, POWER TRIO hereby grants Reseller a non-exclusive, non-transferable and non-sublicensable license and right to market and distribute the SiteApps Platform to Customers in the Territory for their own internal business purposes and not for redistribution.
2.3. Reseller Responsibilities and Restrictions. Reseller shall use its best efforts to market and sell the SiteApps Platform to potential and existing Customers in the Territory. Reseller shall not: (i) make the SiteApps Platform available to anyone other than Customers and Customer’s Users; (ii) make any warranties or guarantees concerning the SiteApps Platform; (iii) make any representations about POWER TRIO or the SiteApps Platform other than those contained in promotional materials and/or training provided by POWER TRIO to Reseller, unless specifically authorized by POWER TRIO in writing; (iv) represent itself as an agent of POWER TRIO for any purpose, or make any representation, warranty, condition or obligation on POWER TRIO’s behalf, or commit POWER TRIO to any agreement.
2.4. Prohibited Uses. Reseller shall not: (i) use the SiteApps Platform in violation of or beyond the license granted herein, and in violation of the Terms of Service; (ii) create derivative works based on the software, program code or user interfaces comprising the SiteApps Platform; (iii) copy, frame or mirror the online SiteApps Platform, other than copying or framing on Reseller's own intranets or otherwise for Reseller’s own internal business purposes in connection with its obligations under this Agreement; (iv) reverse engineer or decompile the SiteApps Platform and the Non-POWER TRIO Applications provided through the SiteApps Platform; (v) interfere with or disrupt the integrity or performance of the SiteApps Platform; (vi) systematically access the SiteApps Platform using “bots” or “spiders”, or attempt to gain unauthorized access to the SiteApps Platform or their related systems or networks; (vii) access the SiteApps Platform in order to build a competitive commercial product or service or to build a product or service using the same or similar ideas, features, functions or graphics as the SiteApps Platform; or (viii) use or distribute the SiteApps Platform in any manner that violates any applicable laws, rules and regulations. The restrictions set forth in this section shall survive after the termination of this Agreement.
3. PROVISIONING OF THE SITEAPPS PLATFORM
3.1. Customer Contract. Customers indicated by Reseller will contract directly with POWER TRIO for the purchase of the SiteApps Platform. Pricing will be solely between POWER TRIO and Customers.
3.2. Integration. Within fourteen (14) days of the Effective Date of this Agreement, Reseller shall use commercially reasonable efforts to install the latest version of SiteApps Platform Integration on the Reseller’s Web Control Panel for all shared hosting servers, according to the technical documents provided by POWER TRIO. The Integration adds a registration link to Reseller’s control panel, CMS systems, and E-commerce platforms to facilitate initial sign-ups to the SiteApps Platform. Within fourteen (14) days of the Effective Date of this Agreement, Reseller shall use commercially reasonable efforts to add the SiteApps plugin to all new and existing Wordpress, Joomla, Drupal, and Magento sites on the Reseller’s servers, according to the technical documents provided by POWER TRIO. Reseller agrees to install updates to the Integrations as they become available by POWER TRIO. In no event POWER TRIO will be responsible for any damage to its device or loss of data that results from such integration.
4. MARKETING AND BRANDING
4.1. Branding. Reseller shall market the SiteApps Platform according to the branding requirements specified by POWER TRIO from time to time, and in accordance with POWER TRIO’s Marketing Guidelines. Reseller shall not alter any SiteApps Platform branding elements in any marketing materials. Reseller shall indicate that it is an authorized reseller of SiteApps Platform in accordance with the POWER TRIO Marketing Guidelines as specified in Section 4.2 and on the SiteApps website.
4.2. Marketing Guidelines. POWER TRIO will provide marketing support to Reseller as mutually agreed upon by both parties. POWER TRIO must pre-approve in writing all Resellers marketing programs, content and collateral which Reseller creates and relates to the SiteApps Platform. Reseller is responsible for all marketing costs it incurs in marketing and distributing the SiteApps Platform. Reseller agrees use its best effort to market the SiteApps platform to its customers and prospective customers by doing at least the following:
(a) Website. Reseller agrees to prominently display the SiteApps Logo and marketing material on its website and to list SiteApps as a feature of every web hosting account.
(b) Email. Reseller agrees to send emails to its customers notifying them about the availability of the SiteApps Platform in newsletters to all existing customers and in new customer welcome notices.
(c) Press Releases. Reseller agrees to participate with SiteApps in joint press releases and new product announcements using content mutually agreed to.
4.3. Trademark Cross-License
(a) License Grant. Each party hereby grants to the other party a non-exclusive, non-transferable and non-sublicenseable license during the term of this Agreement to use such party’s Trademarks solely for purposes related to the performance of this Agreement. Reseller shall use POWER TRIO’s Trademarks only in the Territory.
(b) Trademark Usage Guidelines. Reseller shall comply with POWER TRIO’s trademark usage guidelines as established and updated by POWER TRIO from time to time, and POWER TRIO shall comply with Reseller’s written trademark usage policies as communicated by Reseller to POWER TRIO from time to time. Except as provided herein, each party will obtain the other party’s prior written approval of all uses of such other party’s Trademarks, which approval may be granted or withheld in the other party’s discretion. A party may withdraw any approval of any use of its Trademarks at any time in its discretion, although no such withdrawal will require the recall of any previously published or distributed written materials.
(c) Restrictions. In no event shall either party use a Trademark of the other party with any disparaging, unlawful or derogatory material or any content that infringes personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, or any other intellectual property right of any third party (“Intellectual Property Rights”). Neither party shall use any Intellectual Property Rights in a manner that may diminish or otherwise damage the other party's goodwill in that Intellectual Property Rights. Each party shall promptly terminate any Intellectual Property Rights use upon notice by the other party, or upon termination or expiration of this Agreement. Nothing contained in this Agreement shall be deemed to grant any party any right, goodwill, title or interest in the Intellectual Property Rights of the other party. Neither party shall register any Intellectual Property Rights (or any t Intellectual Property Rights confusingly similar to any Intellectual Property Rights) of the other party and shall not challenge, directly or indirectly, the same.’
(d) Assistance. Each party shall, upon reasonable request by the other party, provide any necessary assistance to perfect or enforce intellectual property protection for the Intellectual Property Rights of the other party. Any expenses associated with such a request shall be paid by the party requesting assistance.
4.4. Publicity. Notwithstanding anything to the contrary in section 4.3(b) (Trademark Usage Guidelines) above, Reseller agrees that POWER TRIO may include Reseller in POWER TRIO’s publicly displayed reseller roster or equivalent, and may state to third parties that Reseller participates in the POWER TRIO reseller program. Reseller must display the logo designated by POWER TRIO prominently on designated portions of the Reseller’s website in order to be recognized as an “Authorized Reseller” of POWER TRIO, if applicable. Neither party may issue press releases regarding this Agreement without obtaining the other party’s prior written consent.
4.5. Reseller agrees that its marketing and distribution of the SiteApps Platform hereunder is neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by POWER TRIO regarding future functionality or features.
5. SUPPORT AND TRAINING
5.1. POWER TRIO Support. POWER TRIO will provide direct support to Customers, according to the specific contracted plan, as described in SiteApps Platform.
5.2. Training. POWER TRIO will provide phone and web-based training to Reseller as mutually agreed to by the parties. Such training will include training for sales staff, customer training staff and Reseller’s support team. Reseller will provide all training for its Customers in relation to the Customer’s use of the SiteApps Platform.
6.1. POWER TRIO’s Fees for Reseller. The subscription fees shall be paid by Customer to POWER TRIO for the SiteApps Platform resold by Reseller to Reseller’s Customers, according to the specific contracted plan by Customer. Subscription fees are based on monthly; therefore, fees for subscriptions contracted in the middle of a monthly period will be charged for the remaining monthly period (on a pro-rata basis) and the full monthly periods remaining.
6.2. Reseller’s Commission. Reseller shall receive a Ten Percent (10%) commission calculated on the net amount received directly by POWER TRIO or from any third party vendor service signed up for by Reseller’s Shared Hosting customers through the SiteApps Platform (“Commission”). The Commission is net of processing costs, credit card costs, taxes, applicable taxes and any other applicable charge. In addition, Reseller shall receive a 10 Percent (10%) commission on all upgrade revenue generated by Reseller’s Customers.
6.3. Commission Report. For Commission determination, POWER TRIO will provide Reseller with a finalized statement for the Commission Payment due to Reseller for the immediately preceding month fifteen (15) days after the end of each calendar month within its web account or via email or online interface (“Commission Report”). The Commission Report will detail the net Commission Payment owed Reseller.
6.4. Commission Payment calculations will be based on POWER TRIO’s reporting system. Reseller acknowledges and agrees that the Commission Payment amounts are based solely on POWER TRIO’s final reported numbers and on no other source. Payments will be fulfilled monthly, up to 90 days after receiving payments from clients and paid out only if the minimum balance is over $100.
6.5. Audit. When reasonably requested to do so, and up to three times per year, each party reserves the right to review and audit the relevant records of the other party with regards to the fees in Paragraphs 6 upon thirty (30) days notice. Such records are to be produced only for viewing and inspection in the respective party’s headquarters.
6.6. Commission Payments. Commission payments will be paid by PayPalÒ. Reseller should ensure that their PayPal account has the ability to receive payments from third parties.
6.8. Taxes. Unless otherwise stated, POWER TRIO's fees do not include any direct or indirect taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Reseller is responsible for paying all Taxes associated with its commissions. If POWER TRIO has the legal obligation to pay or collect Taxes for which Reseller is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Reseller, unless Reseller provides POWER TRIO with a valid tax exemption certificate authorized by the appropriate taxing authority. Notwithstanding the foregoing, upon written notice to POWER TRIO in each instance, Reseller may deduct from the fees payable hereunder any taxes that it is required by applicable law to withhold. Reseller shall provide reasonable cooperation to POWER TRIO’ in claiming any corresponding U.S. tax credits, including without limitation by providing to POWER TRIO a withholding certificate in a form reasonably acceptable to POWER TRIO. For clarity, POWER TRIO is solely responsible for taxes assessable against it based on its income, property and employees.
7. Confidential Information and Non-Disclosure
7.1. Confidential information (“Confidential Information”) means nonpublic information that a party, as disclosing party has designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential by the other party as receiving party. Confidential Information includes, but is not limited to, information in tangible or intangible form relating to and/or including released or unreleased products, the marketing or promotion of any of a party’s products, business policies or practices, information received from others that the disclosing party is obligated to treat as confidential and the terms of this agreement.
7.2. Non-Disclosure. Each party shall: a) protect the other’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. The receiving party and any affiliates, employees, partners and agents to whom it has disclosed Confidential Information may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees, partners and agents in violation of this Section.
7.3. Non-Confidential Information. Confidential Information does not include information that: a) the recipient of the Confidential Information already knew; or b) becomes public through no fault of the recipient; c) was independently developed by the recipient; or d) was rightfully given to the recipient by another party.
8. TERM and TERMINATION
8.1. Term. This Agreement is in effect for one (1) year from the Effective Date of this Agreement and will automatically renew for successive one (1) year increments, unless terminated earlier in accordance with this Agreement.
8.2. Termination. Reseller or POWER TRIO may terminate this Agreement without cause at any time upon thirty (30) days written notice or with cause at any time upon fifteen (15) days written notice.
9. GOVERNING LAW AND DISPUTE RESOLUTION
9.1. The present Agreement is governed by, construed and enforced in accordance with the laws of the State of Florida, United States of America.
10. MISCELLANEOUS PROVISIONS
10.1. Costs. Each Party shall be responsible for its own fixed and/or variable operational costs or any other charge resulting from the present contractual arrangement, as necessary to enable exercising all the rights and to comply with all the obligations set forth in this Agreement, including, without limitation, taxes, labor, social, workers’ compensation and pension system charges regarding its employees, and attorney’s fees, with each Party holding the other Party harmless from any demands originating from the provisions of this Agreement.
10.2. Communications. All notices and other communications related to this Agreement, as well as communications involving the Parties, must be sent by letter, fax or e-mail, with acknowledgment of receipt, or by any other means with such acknowledgment, to the following addresses:
(a) If to POWER TRIO:
R. Gomes de Carvalho 1510, andar 13
Sao Paulo, Brazil 04547-005
Attn.: Mr. Walter Silva
(b) If to Reseller:
Name and contact info provided by Reseller above (through online form).
10.3. Legal Remedies. Notwithstanding the indemnification set forth in Clause 10.6 below, which shall be owed irrespective of that stipulated in this sub-clause 10.3, the Parties hereby acknowledge that either Party shall be entitled to obtain a judicial remedy to oblige the other Party to comply with the present Agreement.
10.4. Full Agreement. The Parties declare that this Agreement represents the full undertaking between them regarding the Agreement, replacing any other understanding, oral or written, between the Parties. Any amendment to this Agreement shall only bind the Parties if made in writing and signed by the Parties.
10.5. Assignment. Reseller may not assign its rights or duties under this Agreement to another without the express written consent of POWER TRIO, which will not be unreasonably withheld. Notwithstanding the above, Reseller may assign its rights and duties under this Agreement to its parent company or any wholly owned subsidiary thereof upon written notice. POWER TRIO may assign its rights and obligations under this Agreement without notice so long as the Service continues to operate as outlined in this Agreement.
10.6.1 Reseller agrees to defend, indemnify and hold POWER TRIO, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorney’s fees, made by a third party, relating to or arising from: a) any violation by Reseller of this Agreement; or b) Reseller’s violation of any rights of another. This obligation shall survive the termination or expiration of this Agreement and/or Reseller’s participation in the Service. Reseller acknowledges and agrees that Reseller is responsible for all uses of its account. Reseller agrees to comply with these terms and to defend, indemnify and hold harmless POWER TRIO from and against any and all claims and demands arising from usage of Reseller’s account, whether or not such usage is expressly authorized by Reseller. This indemnity shall not extend to third party claims based on or related to infringement by the Service of such third party’s intellectual property rights.
10.6.2 POWER TRIO agrees to defend, indemnify and hold Reseller, its affiliates, subsidiaries, directors, officers, employees, agents, partners and licensors harmless from any claim or demand, including reasonable attorney’s fees, made by a third party, that any aspect of the Service infringes such third party’s intellectual property rights.
10.7 LIMITATION OF LIABILITY
10.7.1 Limitation of Liability. NEITHER PARTY'S, LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $100,000 OR THE AMOUNT OF THE AVERAGE MONTHLY FEE PAID BY RESELLER HEREUNDER IN THE LAST 3 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE GREATER OF $100,000 OR THE AMOUNT OF THE AVERAGE MONTHLY FEE PAID BY RESELLER HEREUNDER IN THE LAST 3 MONTHS PRECEDING THE INCIDENT.
10.7.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.7.3 Exceptions. SECTION 10.7.1 (Limitation of Liability) DOES NOT APPLY TO: (i) THE OBLIGATIONS SET FORTH IN SECTION 10.6.1 (INDEMNIFICATION) OF THIS AGREEMENT; OR (ii) LIABILITY FOR BREACH OF ANY OF THE OBLIGATIONS SET FORTH IN SECTION 7 (CONFIDENTIALITY) OF THIS AGREEMENT OR BREACH BY RESELLER OF SECTIONS 2.3 and 2.4 (RESELLER RESPONSIBILITIES AND RESTRICTIONS).
10.8 INTELLECTUAL PROPERTY
10.8.1 Ownership and Reservation of Rights. Subject to the limited rights expressly granted hereunder, POWER TRIO reserves all rights, title and interest in and to the SiteApps Platform Services, including all related intellectual property rights. No rights are granted to Reseller hereunder other than as expressly set forth herein. Reseller agrees not to challenge the validity or POWER TRIO’s ownership of the intellectual property rights in the SiteApps Platform, and shall not attempt or purport to transfer any ownership interest in any such POWER TRIO intellectual property to any other third party. Without limiting any of its legal, equitable or contractual rights or remedies, POWER TRIO shall have the right to seek immediate injunctive relief in any court of competent jurisdiction to enforce its intellectual property rights in the SiteApps Platform without being required to post bond.
10.8.2 Suggestions. POWER TRIO shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SiteApps Platform any suggestions, enhancement requests, recommendations or other feedback provided by Reseller and its Customers relating to the operation of the SiteApps Platform.
10.9 WARRANTY DISCLAIMER
10.9.1 EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SITEAPPS PLATFORM IS PROVIDED “AS-IS”, “AS AVAILABLE,” EXCLUSIVE OF ANY WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. POWERTRIO AND ITS AFFILIATES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. POWER TRIO DOES NOT WARRANT THAT THE SITEAPPS PLATFORM OR ITS APPLICATIONS WILL BE UNINTERRUPTED OR ERROR FREE. FURTHER, THE INTEGRATION APIS WITH THIRD PARTY SOFTWARES (WHICH INCLUDES, BUT ARE NOT LIMITED TO: CPANEL, WORDPRESS, MAGENTO, JOOMLA, DRUPAL) ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. POWER TRIO further DOES NOT PROVIDE ANY WARRANTY, CONDITION OR SUPPORT FOR ANY NON-POWER TRIO PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO, THIRD PARTY SERVICES.
11. Partial Validity. Should any provision of this Agreement be declared invalid, null, voidable or unenforceable, the other provisions stipulated hereby shall not be affected and shall remain in full force and effect.
12. Waiver. Any delay in taking any measure against an infraction of this Agreement, or failure of either Party to exercise any right set forth in this Agreement, shall under no circumstance be interpreted as novation or waiver of any right, present or future, accruing to that Party.
Last update: 2013-08-29