The Seeloz Services Reseller Agreement ("Agreement") is a contract between the reseller ("you" or "Partner") and Seeloz Inc. (referred to herein as "Seeloz", "we", "our", and "us") and applies to your marketing of the Seeloz Services and the sales of these services to your customers. As part of the Agreement, you must read, agree with and accept all of the terms below.
1.1. Defined Terms.
A. "Effective Date" means the date that Seeloz notifies you that you have been accepted into the Seeloz Partner Program.
B. "Intellectual Property" means any and all intellectual property or proprietary rights under any jurisdiction including without limitation (i) marks, and all goodwill associated therewith and symbolized thereby; (ii) inventions, discoveries and ideas, whether patentable or not, and all patents, registrations, and applications thereof, (collectively, "Patents"); (iii) published and unpublished works of authorship, whether copyrightable or not (including without limitation databases and other compilations of information), copyrights therein and thereto, and registrations and applications thereof, (collectively, "Copyrights"); (iv) trade secrets,(v) all moral rights in the foregoing (that is, the right to claim authorship of or object to the modification of any work); and (vi) all applications, renewals, extensions, restorations and reinstatements of the foregoing.
C. "Marks" means the trademarks including registered and common law trademarks, trade names, service marks, logos, domain names and designations of a Party
D. "Seeloz Services" means the Hyper-Local Targeting services and related services provided by Seeloz to its merchants.
E. "Services Agreement" means the agreement that a given merchant signs with Seeloz to use the Seeloz Services for a bounded or unbounded period of time. The Services Agreement is to be signed by given Seeloz and the merchant for it to be effective. Partner cannot sign the Services Agreement on behalf of Seeloz.
F. "Services Agreement Duration" means the validity period of the Services Agreement.
G "Seeloz Materials" means any information and materials provided by Seeloz to you describing the Seeloz Services.
H "Seeloz Site" means the various websites and mobile/tablet applications provided by Seeloz for the Seeloz customer and/or consumer.
I. "Seeloz Systems" means the facilities, hardware, software, Seeloz APIs and processes owned or licensed by Seeloz to provide the Seeloz Services to its users.
J. "Merchant" means a merchant resident in any of the Approved Countries, that following the Effective Date either (A) uses the Seeloz Services for the first time and is a new Seeloz merchant that does not already have a Seeloz Account and signs up for such an Account hereunder or (B) has used the Seeloz Services historically or already has a Seeloz account but has not used his/her Seeloz account to personalize promotions in the 12 months immediately preceding the Effective Date, and starts reusing the Seeloz Services.
L. "User Data" means customer or user information, including personally identifiable information, collected from a customer or user of a party.
M. "Full System Integration" means the integration of the Point of Sale systems and any other applicable systems of the Merchant to the Seeloz System(s).
N. "Launch Date" means the date at which the Merchant starts using the Seeloz Services.
O. "Seeloz Ongoing Revenue" means the revenue Seeloz generates from the Merchant regarding the usage of the Seeloz Services in Approved Countries starting the Launch Date. This includes any one-time setup costs and any ongoing licensing and/or performance-based fees.
P. "Setup Cost" means the initial one-time cost of Seeloz and/or Partner for setting up the Seeloz Services on the Merchant System.
Q. "Seeloz Pricing Guide" means the guide provided and solely maintained by Seeloz determining the details of the prices of the different Seeloz Services.
R. "Seeloz Partners" mean the partners of Seeloz providing sales, marketing, System Integration, technical and/or customer support, or any of the services related to the Seeloz Services.
S. "Referred Merchant" means a merchant resident in any of the Approved Countries, that following the Effective Date, and as a result of the Partnerâ€™s direct marketing and sales efforts, (i) either (A) uses the Seeloz Services for the first time and is a new Seeloz merchant that does not already have a Seeloz Account and signs up for such an Account hereunder or (B) has used the Seeloz Services historically or already has a Seeloz account but has not used his/her Seeloz account to personalize promotions in the 12 months immediately preceding the Effective Date, and starts reusing the Seeloz Services.
2. INTELLECTUAL PROPERTY.
2.1. IP Ownership. Seeloz retains sole and exclusive right, title, and interest to Seeloz' Intellectual Property, the Seeloz Site and the Seeloz Services, the technology related to the Seeloz Services, including without limitation all Intellectual Property rights in and to all aspects of the Seeloz Services, the Seeloz APIs, the Integration Requirements, the Seeloz Content and the Seeloz Materials. You retain sole and exclusive right, title, and interest to your Intellectual Property. Except as licensed herein, this Agreement does not transfer any Intellectual Property rights between the Parties.
2.2. Partner Marks. During the Term and subject to the terms and conditions set forth herein, Partner grants to Seeloz a non-exclusive, nontransferable, royalty-free right and license to use and publicly display the Partner Marks solely (i) in connection with any activities set forth herein (ii) with prior written approval of Partner, and (iii) in accordance with Partner's standard trademark guidelines provided to Partner or other restrictions imposed in the approval.
2.3. Trademark Review and Approval. Each party will have the right to pre-approve any and all uses of such party's Marks, including any marketing collateral (whether off line or online) and press releases related to the Agreement.
2.4. Termination Based on Trademark Usage. Each party may terminate this Agreement without penalty if, in its reasonable discretion, the use by the other party of its Marks tarnishes, blurs, or dilutes its Marks or misappropriates the associated goodwill and such problem is not cured within three (3) business days of receiving notice of the problem.
2.5. Sales and Marketing Materials License. Subject to Certification, Seeloz grants you the non-exclusive, non-transferable, non-sub licensable right and license to: (a) use the Seeloz Materials during the Term solely in conjunction with the marketing and promotion of the Seeloz Services, and (b) to modify certain of the Seeloz Materials expressly designated for such purpose by incorporating your Marks subject to Seeloz' prior written approval. All such modified materials will be deemed Seeloz Materials under this Agreement, except that Seeloz' ownership of the Seeloz Materials shall not include any of your Marks included therein. You agree that you will not at any time during the Term or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of the Seeloz Materials or any other materials, trademark, trade name or product designation belonging to or licensed to Seeloz.
3.1. Confidential Information Defined. A party's "Confidential Information" is defined as any information of the disclosing party, which (i) if disclosed in a tangible form is marked using a legend such as "Confidential" or "Proprietary" or if not so marked, should be reasonably understood by the receiving party from the context of disclosure or from the information itself, to be confidential, or (ii) if disclosed orally or visually is declared to be confidential or, if not so declared, should be reasonably understood by the receiving party from the context of disclosure or from the information itself to be confidential. The terms of this Agreement; the Integration Requirements; information relating to the Seeloz System, technology, process and financial information; your User ID; information relating to your business, security and technology; and all User Data and customer information (including user IDs and passwords) will be deemed Confidential Information regardless of whether marked "Confidential."
3.2. Mutual Obligations. Each party will hold the other party's Confidential Information in confidence and must not disclose such Confidential Information to third parties nor use the other party's Confidential Information for any purpose other than as required to perform its obligations under this Agreement. Such restrictions will not apply to Confidential Information which (i) is already known by the recipient, (ii) becomes publicly known through no act or fault of the recipient, (iii) is received by recipient from a third party without a restriction on disclosure or use, or (iv) is independently developed by recipient without reference to the Confidential Information. Where Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, the party subject to such requirement must immediately notify the disclosing party upon learning of the existence or likely existence of such requirement and must use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Confidential Information. The parties' respective obligations to maintain the confidentiality of information disclosed hereunder will survive the expiration or early termination of this Agreement or until such time as such information becomes public information through no fault of the receiving party.
3.3. User Data. In the event a party discloses User Data to the other party that such receiving party has not otherwise collected in the course of providing its services ("Confidential User Data"), such receiving party understands that it will have the right to use the Confidential User Data, and any derivative works thereof, only as strictly required and necessary to perform its obligations under this Agreement and is strictly prohibited from combining the Confidential User Data with its own User Data or directly or indirectly using the Confidential User Data in connection with any marketing activities. Further, the receiving party may keep the Confidential User Data only as long as necessary to perform its obligations under this Agreement.
3.4. Return of Confidential Information Upon Termination. Upon termination of this Agreement, you must return to Seeloz within ten (10) days all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof or certify such Confidential Information's destruction; and Seeloz will return to you within ten (10) days all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof or certify such Confidential Information's destruction.
4. REPRESENTATIONS AND WARRANTIES.
4.1. Representations and Warranties. The parties each represent and warrant as of the Effective Date and for as long as this Agreement is in effect as follows.
a. It is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it was organized, is duly qualified and in good standing as a foreign corporation in every state in which the character of its business requires such qualifications, and has the power to own its property and to carry on its business as now being conducted.
b. The execution and delivery of this Agreement and compliance with all provisions of this Agreement are within the corporate power and authority of party. The Agreement has been duly executed and constitutes a valid and binding agreement, enforceable in accordance with its terms.
Each party (the "Indemnifying Party") agrees to defend, indemnify, and hold harmless the other party, its officers, directors, employees, and agents (the "Indemnified Party"), from and against any claim, suit or proceeding of a third party ("Claim") that is based on or arises out of (i) the Indemnifying Party's breach of this Agreement, or (ii) the negligence or misconduct of the Indemnifying Party. The party seeking indemnification will provide prompt written notice of the Claim, allow the Indemnifying Party to have control of the litigation, and cooperates with the indemnifying Party, at the indemnifying Party's expense, in defending or settling such Claim. Further, an Indemnifying Party will not take any action to settle or defend any such claim, suit, or proceedings that would in any manner impose obligations (monetary or otherwise) on an Indemnified Party without the Indemnified Party's written consent, not to be unreasonably withheld. In connection with any such Claim, the indemnified Party may, at its own expense, have its own counsel in attendance at all public interactions and substantive negotiations at its own cost and expense.
6. LIMITATION OF LIABILITIES; DISCLAIMERS.
6.1. LIMITATION OF LIABILITY.
a. UNDER NO CIRCUMSTANCES: (i) WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR, (ii) WILL THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT.
b. THE EXCLUSIONS AND LIMITATIONS OF SECTION 9.1.a. ABOVE DO NOT APPLY TO ANY BREACH OF OBLIGATIONS REGARDING CONFIDENTIAL INFORMATION (ARTICLE VI) OR TO OBLIGATIONS OF INDEMNIFICATION (ARTICLE VIII) REDUCED TO THE EXTENT THAT ANY LOSS CLAIMED BY THE PARTY SEEKING INDEMNIFICATION WAS CAUSED BY, OR COULD HAVE BEEN PREVENTED OR REDUCED BY, ANY ACT OR OMISSION OF THAT PARTY.
1. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY OF ITS PRODUCTS OR SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SEELOZ MAKES NO WARRANTY THAT THE SEELOZ PRODUCTS OR THE SEELOZ SERVICES WILL MEET USERS' REQUIREMENTS, OR THAT THE SEELOZ PRODUCTS OR THE SEELOZ SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
a. Except as otherwise provided hereunder, this Agreement may be terminated by either party at any time in the event of a material breach by the other party that remains uncured after ten (10) calendar days prior written notice thereof.
b. Either party may terminate this Agreement for convenience upon 30 days prior notice.
c. The Agreement may be terminated by either party effective immediately and without any requirement of notice, in the event that: (i) the other party files a petition in bankruptcy, files a petition seeking any reorganization arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of such party; (iii) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such party and not stayed, enjoined, or discharged within sixty (60) days; or, (iv) the other party adopts a resolution for discontinuance of its business or for dissolution.
d. Upon any termination or expiration of this Agreement, with or without cause: (i) each party must immediately discontinue any use of the Marks of the other party and/or its products and services; (ii) the licenses set forth in Section 4 will terminate, (iii) both parties must immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the two parties under the terms of this Agreement; (iv) each party will cease to promote, solicit, or procure orders for the other party's products or services; and (v) Partner will cease to accrue Revenue Share after the termination date.
8.1. Relationship of the Parties. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture.
8.2. Non-exclusive. Nothing contained in this Agreement shall be construed as creating an exclusive relationship between you and Seeloz.
8.3. Expenses. Except as otherwise specified herein or as otherwise mutually agreed upon by the parties, each party will bear its own costs of performing under this Agreement.
8.4. Taxes. Each party will be liable for all taxes, duties, levies or tariffs or charges of any kind imposed by any federal, state or local governmental entity with respect to the net income recognized by such party in connection with this Agreement.
8.5. Governing Law and Jury Trial Waiver. This Agreement will be governed by and construed in accordance with the laws of California, except for its conflicts of laws principles. The parties consent to the exclusive jurisdiction of, and venue in, the courts in Santa Clara, California.
8.6. Public Announcements. All media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either party relating to this Agreement are prohibited without the prior written consent of both parties.
8.7. Assignment; No Waiver. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. You may not assign this Agreement or any rights under it, in whole or in part, without Seeloz' prior written consent. Any attempt to assign this Agreement other than as permitted above will be null and void. 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. Seeloz may assign this agreement without your written consent to any successor-in-interest or any entity acquiring a controlling interest in Seeloz or its affiliates whether by merger, stock sale, asset purchase or an exclusive license.
8.8. Force Majeure. Neither party hereto will be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure.
8.9. Sole Responsibility. Seeloz will remain solely responsible for the provision of the Seeloz Services and you will remain solely responsible for the operation of Partner System and the provision of any related services including the System Integration Software. Each party (a) acknowledges that the Seeloz Services and the Partner System and any related services including the System Integration Software may be subject to temporary shutdowns due to cause beyond such party's reasonable control; and (b) subject to the terms of this Agreement, each party retains sole right and control over the development, content and conduct of such party's respective products and services.
8.10. Entire Agreement; Seeloz Services. Except as set forth in the next sentence, this Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior oral, written or online agreements. If you have previously executed a "Channel Partner Agreement" with Seeloz then the parties hereby agree that such prior agreement is terminated and will be superseded by the terms and conditions set forth here. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. This Agreement does not govern any use by you of the Seeloz Services and any use by you of the Seeloz Services shall be governed by the User Agreement and any other agreement you agree to in connection with your use of such Seeloz Services.
8.11. Severability. If any provision of this Agreement is held illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
8.12. Notices. You agree that Seeloz may provide notice to you by emailing it to the email address listed by you during your registration or mailing it to the street address by you during your registration. Such notice shall be considered to be received by you within 24 hours of the time it is emailed to you unless we receive notice that the email was not delivered. If the notice is sent by mail, we will consider it to have been received by you three Business Days after it is sent. Any notice to Seeloz must be sent by postal mail to:
3080 Olcott St., Suite B240
Santa Clara, CA 95054, USA
8.13. Survival. The provisions of this Agreement relating to Confidential Information, Indemnification, Limitation of Liability, Disclaimer, and provisions under "Article XI: Miscellaneous" will survive any termination or expiration of this Agreement.
Last updated on 11/05/2014