RESELLER AND PRIVATE LABEL AGREEMENT
READ THIS RESELLER AND PRIVATE LABEL AGREEMENT (THIS “AGREEMENT”) CAREFULLY. BY CHECKING THE “ACCEPT” CHECKBOX ON THE REGISTRATION PAGE AND CLICKING THE "SIGN UP" BUTTON, YOU, AS AN INDIVIDUAL OR AS AN ENTITY, ARE ACCEPTING AND AGREEING TO THESE TERMS AND CONDITIONS.
IF YOU ARE NOT WILLING TO BE BOUND BY THESE TERMS AND CONDITIONS YOU SHOULD NOT SIGN UP FOR THE SERVICE.
This Agreement is not effective unless and until Reseller receives written notice of AppNinja’s acceptance of Reseller’s application to become an AppNinjas reseller. Upon your acceptance of this Agreement and AppNinja’s written acceptance of your application, this Agreement will become effective (the “Effective Date”) by and between AppNinjas Holdings, Inc., a company incorporated under the laws of the State of Delaware, USA having its principal place of business at 5555 Wall St., Dublin, OH 43017 ("AppNinjas") and you, as an individual or as an entity, as set forth by you on the registration page, having a principal place of business at the location set forth in your registration page (“Reseller”).
Reseller wishes to purchase and resell certain products of AppNinjas under the Reseller’s name in the Territory on the terms and conditions set forth in this Agreement and AppNinjas desires to appoint and sell to Reseller for resale certain of AppNinjas’ products in the Territory on the terms and conditions set forth in this Agreement.
1. Definitions. As used in this Agreement:
1.1 “Documentation” means manuals, data sheets, specifications, drawings, catalogs, bulletins, brochures, marketing and technical documents, promotional materials, publications, photographs, and any other documents that AppNinjas makes available to Reseller hereunder.
1.2 “End User” means, with respect to a Reseller Product, any person or entity that enters into an End User Agreement and obtains a Licensed Program for internal business purposes and not for distribution.
1.3 “Hardware” means the hardware items and parts that appear on the standard AppNinjas Price List.
1.4 “Level One Support” means the support provided directly to End Users of the Licensed Programs, including: (1) distributing new Documentation made available by AppNinjas, (2) remedial maintenance (making the initial response to an End User's service request; call logging; initial information gathering), (3) verification of End User entitlement to support, (4) answering basic Product installation, configuration and usage questions; (5) problem isolation, identification and replication, and (6) performance of data base searches to identify standard problem fixes and work-arounds.
1.5 “Level Two Support” means the support provided to an End User or End User's service representative by a technical specialist regarding installation, training and initial configuration of the Reseller Product.
1.6 “Level Three Support” means the support provided to an End User or End User's service representative by a technical specialist, including without limitation (1) preventive maintenance (running diagnostics; reviewing error logs and messages; replacing parts; and installing new software releases, updates or revisions), (2) answering End User’s service representative's questions, (3) problem research diagnosis and resolution, (4) physical replacement of Reseller Products, and (5) on-site assistance if such on-site service is deemed necessary by the Level Three Support provider.
1.7 “Level Four Support” means the support provided to Reseller (and not End Users or Customers) where Level One Support, Level Two Support and Level Three Support have failed to solve a problem, including (1) addressing Reseller Product problems and questions reported by a technical specialist, (2) analysis and resolution of problems a technical specialist is unable to resolve (including devising work-around procedures), (3) revision of Documentation where deemed necessary by AppNinjas, and (4) on-site assistance if such on-site service is deemed necessary by the Level Four Support provider.
1.8 “Licensed Programs” means the software, in machine-readable form (in object code only), that appear on the AppNinjas Price List (as updated by AppNinjas from time to time), and further includes any software Third Party Components, all of the End User manuals for the software included in the Licensed Programs, and all copies of such manuals and the back-up copy of such software provided by AppNinjas.
1.9 “AppNinjas’ Trademarks” shall have the meaning set forth in Section 6.2.
1.10 “Party” or “Parties” respectively refer to Reseller and AppNinjas individually and collectively.
1.11 “Pass Through Items” are those third party supplied items which are designated by AppNinjas as Pass Through Items.
1.12 “Reseller’s Trademarks” shall have the meaning set forth in Section 6.1.
1.13 “Price” or “Prices” means the prices that AppNinjas will charge Reseller for Reseller Products, support and Pass Through Items, as set forth in Section 9.
1.14 “Reseller Product” or “Reseller Products” means the Product or Products branded with the Reseller Trademarks. Unless otherwise agreed by the Parties, the Reseller Product shall not be branded with the AppNinjas Trademark.
1.15 “Product” or “Products” means Hardware, Licensed Programs and related Documentation, and includes any Third Party Components integrated in the Products, but excludes Pass Through Items.
1.16 “Shipment Date” shall mean the date upon which AppNinjas makes Reseller Product available to a common carrier FOB at AppNinjas’ facilities.
1.17 “Term” shall mean the term of this Agreement as set forth in Section 18.1.
1.18 “Territory” shall mean the United States of America.
1.19 “Third Party Component” means any hardware or software that AppNinjas buys or licenses from a third party and integrates in a Product; and
1.25 “Customer” means any entity to which Reseller directly sells Reseller Products, whether or not such entity is an End User.
1.26 The terms “sell,” “purchase” and other terms of similar import, when used in this Agreement with reference to software, refer to licensing of such software in accordance with the license terms set forth in this Agreement.
2.1 Grant. Subject to the terms and conditions of this Agreement, AppNinjas hereby appoints Reseller, and Reseller hereby accepts such appointment, as AppNinjas’ non-exclusive reseller of the Reseller Products to Customers in the Territory.
2.2 Restrictions. Reseller shall not, and shall not authorize a third party, to the extent Reseller is not prohibited under law to do so, to (a) resell Reseller Products to Customers located outside the Territory; (b) solicit orders for Reseller Products from Customers located outside the Territory; (c) rent, lease or timeshare any Licensed Program and shall not authorize any third party to do so; or (d) use the Licensed Programs, except as set forth herein, unless Reseller or such third party is bound by an End User Agreement authorizing such use.
2.3 Conflicts. Reseller will not market, sell or otherwise support products that provide the same or similar functions as the Reseller Products (“Competing Products”) during the term of this Agreement and for a period of ninety (90) days thereafter.
2.4 Hardware Requirements. During the term of this Agreement Reseller will purchase Swipe Hardware exclusively from AppNinjas. For the purpose of this Section, “Swipe Hardware” means (i) the Pass Through Items, and (ii) any hardware that performs one or more of the same functions as a Pass Through Item. Reseller may not purchase Swipe Hardware from any third party during the term of this Agreement.
2.5 Sales Efforts. Reseller will use its diligent efforts, which shall be at least as extensive as its efforts with other products it distributes, to market and resell the Reseller Products in the Territory and otherwise perform its duties under this Agreement.
3.1 Use, Translation and Modification of Documents and Marketing Material. Reseller may make copies of, and print under AppNinjas’ copyright notice, forms of Documentation and other marketing materials that are provided to Reseller by AppNinjas hereunder. Reseller may not (and may not authorize a third party to) modify such materials without AppNinjas’ prior written consent; provided however, that Reseller may add the Reseller Trademark to the Documentation. In no event shall Reseller make any representations regarding the Reseller Products different than or in excess of those in the information provided by AppNinjas in writing.
3.2 Costs and Expenses. Except as otherwise expressly provided herein, each Party shall solely bear all costs and expenses of performing its obligations hereunder. Except as provided for under this Agreement, each Party shall not be liable for any costs or expenses incurred without its prior written authorization.
4. Software Licensing.
4.1 Licensed Programs. Subject to the terms and conditions of this Agreement, AppNinjas grants to Reseller an non-exclusive, non-transferable, royalty-free license: (i) to use the Licensed Program for the purpose of marketing or demonstrating the Reseller Products to potential Customers; (ii) to use the Licensed Program to provide technical support to End Users in accordance with the terms of this Agreement; and (iii) to refer users in the Territory to copies of the Licensed Program which will be published by AppNinjas in object code through Apple, Inc.’s iTunes App Store, in accordance with the terms of this Agreement.
4.2 License Restrictions. Reseller shall not and shall not authorize any third party to:
(a) create derivative works, as defined under 17 USC §106 (as interpreted by applicable case law), copy, alter or in any way modify the Licensed Programs without the prior written consent of AppNinjas;
(b) translate, decompile, disassemble, reverse compile, reverse engineer, interrogate, or decode the Licensed Programs or in any other manner reduce the Licensed Programs to human perceivable form except to the extent that such restrictions are not permitted under applicable law;
(c) bypass or delete any copy protection methods that are for preventing unauthorized copying or use of the Licensed Programs; or
(d) electronically distribute, timeshare, market by interactive cable or by remote processing services the Licensed Programs.
4.3 No Other Rights. Except as expressly authorized under this Agreement, Reseller shall not and shall not authorize any third party to copy, use or disclose the Licensed Program or its functions (i) on behalf of or in relation to any third party products, devices or services; or (ii) on behalf of or to any third parties. Reseller acknowledges, that the licenses granted pursuant to this Agreement do not provide Reseller with any title or ownership rights in or to the Licensed Program, but only a right of limited use.
4.4 End User Agreements. Licensed Programs provided to Reseller hereunder are subject to license and not sale. Prior to or upon the initial use of a Reseller Product that includes a Licensed Program by any End User of the Reseller Product, the End User must acknowledge receipt of a copy of AppNinja’s End User Agreement consent to the terms of the End User Agreement prior to or upon the initial use of the Licensed Program.
4.5 Enforcement. Reseller shall promptly notify AppNinjas in writing of any unauthorized use of, or any claim or proceeding involving, a Licensed Program of which Reseller is or becomes aware. Reseller shall cooperate, and reasonably assist AppNinjas with the termination of any such unauthorized use.
5.1 Support. Support shall be provided as follows:
(a) By Reseller. Reseller, and not AppNinjas, shall provide Level One Support, Level Two Support, and Level Three Support on the Reseller Products to End Users. Such support shall include providing assistance and information that AppNinjas reasonably requests to enable AppNinjas to provide Level Four Support on the Reseller Products to Reseller (and not the End User). Upon expiration of the Warranty Period (as defined in Section 13.1) Reseller shall have the option to be responsible for providing Level Four Support itself, or request that AppNinjas provide such support and charge Reseller a reasonable fee (in accordance with AppNinjas’ then standard practices) for the Level Four Support on a Reseller Product when requested by Reseller.
(b) By AppNinjas. Subject to Reseller's compliance with Section 5.1(a) up until the expiration of the Warranty Period (as defined in Section 13.1), AppNinjas shall provide to Reseller Level Four Support for the Reseller Products, at no charge to Reseller, in the event that Reseller, after using reasonable efforts, is unable to resolve a technical problem of an End User through Level One Support, Level Two Support and Level Three Support pursuant to Section 5.1(a). Except as set forth in this Section 5.3(b), AppNinjas shall have no obligation to furnish any assistance, information or documentation directly to any End User. Reseller will provide with each incident that it reports to AppNinjas the End User name and contact information and, if requested by AppNinjas, any other reasonably available End User profile information. If requested by Reseller, AppNinjas shall continue to provide Level Four Support after the expiration of the Warranty Period, and charge Reseller a reasonable fee (in accordance with AppNinjas’ then standard practices) for the Level Four Support requested by Reseller.
(c) In the event that, Reseller wishes to extend its ability to obtain support from AppNinjas beyond the period provided in this Section 5, the Parties may agree to do so in a separate writing in accordance with Section 17.9.
6. Trademarks/Trade Names.
6.1 Right to Use Reseller Trademarks. AppNinjas shall place the trademarks, trade names, and logos provided by Reseller (“Reseller Trademarks”) on the Reseller Products as per Reseller instructions. AppNinjas acknowledges that the manufacture for Reseller and supply of Reseller Products to Reseller with Reseller Trademarks shall not be considered as giving AppNinjas any rights or title to those Reseller Trademarks, provided, however, that Reseller hereby authorizes AppNinjas to use the Reseller Trademarks as specified by Reseller only on Reseller Products to be delivered to Reseller pursuant to this Agreement. AppNinjas shall fully comply with any and all reasonable instructions provided by Reseller concerning the use of the Reseller Trademarks.
6.2 No Rights in AppNinjas Trademarks. Reseller shall obtain no rights with respect to any of the trademarks or trade names of AppNinjas (“AppNinjas Trademarks”). At AppNinjas’ written request, Reseller shall assign to AppNinjas any such right, title and interest it may obtain in the AppNinjas Trademarks and the associated goodwill. All goodwill arising out of any uses of the AppNinjas Trademarks will inure solely to the benefit of AppNinjas.
6.3 Restrictions. Neither Party shall attempt to register or use in any country any trademarks, marks or trade names confusingly similar to those of the other Party. If, during the Term of this Agreement, AppNinjas challenges Reseller’s Trademarks or the registration thereof, it shall constitute a material default and Reseller may terminate this Agreement pursuant to Section 18 herein. If, during the Term of this Agreement, Reseller challenges AppNinjas’ Trademarks or the registration thereof, it shall constitute a material default and AppNinjas may terminate this Agreement pursuant to Section 18 herein.
7. Reports, Records and Inspections.
7.1 Inspection. Upon at least ten (10) days prior written notice to Reseller, an independent third party auditor appointed by AppNinjas, shall have the right, at any mutually agreed to time during normal business hours and not more than twice per year, to inspect and audit all accounts, records and other information of Reseller that relate to compliance by Reseller with the terms and conditions of this Agreement, including but not limited to, the End User Information.
8. Order and Purchase Procedures; Products.
8.1 Purchase Orders. During the term of this Agreement, Reseller shall initiate each order for Reseller Product or Pass Through Item by written purchase order (“Purchase Order”) sent to and received by AppNinjas. Except as set forth in Sections 18.4 and 19.4, each Purchase Order shall be a firm purchase commitment by Reseller not subject to withdrawal and Reseller shall be obligated to purchase, Reseller Product and Pass Through Item in accordance therewith. AppNinjas shall supply to Reseller confirmation (acceptance/non-acceptance) of Purchase Orders as soon as reasonably practicable. Acceptance shall include the confirmation of the Shipment Dates. Shipment Dates in an accepted Purchase Order are estimates only.
8.2 Required Information. Each Purchase Order shall (i) specify the Reseller Products and Pass Through Items ordered by model number, part number, requested quantities, requested shipment and delivery date, and Prices; (ii) specify a competent common carrier, the delivery destination and any other shipping instructions; and (iii) comply with the ordering procedures set forth in this Agreement.
8.3 Product Updates. AppNinjas and its suppliers of Third Party Components, at their sole option, may from time to time incorporate modifications and improvements into the Reseller Products available hereunder
9.1 Product and Pass Through Item. The purchase Price payable to AppNinjas for Reseller Products and Pass Through Items shipped hereunder shall be the Prices specified in Reseller’s account on the AppNinja’s website. Prices are FOB AppNinjas’ facilities and such Price shall include AppNinjas’ standard packaging.
9.2 Price Changes. AppNinjas may change or adjust the Price for Reseller Products, Pass Through Items or Support at any time upon thirty (30) day’s advance written notice to Reseller. Each change that results in a price increase shall apply to all Purchase Orders for Reseller Product that AppNinjas receives after the effective date of such change. AppNinjas shall have no liability or obligation to Reseller arising out of such price changes or adjustments, except as set forth in this Section 9.2.
9.3 Reseller Remuneration. The difference between the Price for Reseller Products paid to AppNinjas by Reseller and the price for such Reseller Products paid to Reseller by its Customers shall be Reseller’ sole remuneration under this Agreement.
10. Shipment and Risk of Loss.
10.1 General. All Reseller Product and Pass Through Items shipped hereunder shall be packaged in AppNinjas’ standard shipping cartons and shall be delivered to a common carrier FOB AppNinjas’ facilities at which time risk of loss shall pass to Reseller. All freight, insurance, and other shipping expenses, as well as expenses for any special packing requested by Reseller and provided by AppNinjas, shall be paid by Reseller.
10.2 Discrepancies. All shipments and charges set forth on any invoice will be deemed correct unless AppNinjas receives from Reseller, as soon as reasonably possible, but no later than thirty (30) days after the receipt of invoice, a written notice specifying the shipment, the Purchase Order number, and the exact nature of the discrepancy between the order and the shipment in number and type of Reseller Products or Pass Through Items shipped, or freight or other charges, as the case may be.
11.1 Payment. Payment for all Reseller Product and Pass Through Items purchased and support services provided hereunder shall be in U.S. Dollars and due and, unless otherwise specified in an accepted Purchase Order, payable 50% in advance, and 50% within five days of delivery. Subject to Section 11.2, payment shall be in an amount equal to the purchase Price for the applicable Reseller Product or Pass Through Item plus all applicable taxes (as set forth in Section 11.2 below), shipping charges, and other charges to be borne by Reseller in accordance with this Agreement. Each Reseller Product and Pass Through Item shipment, and associated charges, shall be considered a separate and independent transaction and payment therefor shall be made accordingly. Overdue payments will be subject to interest at the rate of 1-1/2% per month, or the maximum allowable under applicable law, whichever is less. If Reseller is not current on its payments under this Agreement, AppNinjas may in its sole discretion suspend or terminate service under this Agreement and disable merchant processing in the Licensed Programs.
11.2 Taxes, Duties, Tariffs and License Fees. Prices do not include any taxes (including any excise, sales, use, value added, withholding, and similar taxes), customs duties, tariffs or license fees, and payments to AppNinjas are payable in full without reduction for any such taxes, duties, tariffs or fees. Reseller shall be responsible for and shall indemnify AppNinjas for any appropriate taxes, customs duties, tariffs and license fees actually paid by AppNinjas, based on payments to AppNinjas hereunder or on the use or possession by Reseller and any Customers of Reseller Products, Pass Through Items or support or repair services, but excluding United States federal, state and local taxes based on AppNinjas’ net income, state franchise taxes and taxes based upon AppNinjas’ capital stock. AppNinjas shall provide Reseller with official receipts issued to it by the appropriate taxing or other authority or such other evidence as is reasonably requested by Reseller and available to AppNinjas to establish that such taxes, duties, tariffs, fees or charges have been paid. When AppNinjas has the legal obligation to pay or collect any such taxes, duties, tariffs, fees or other charges, excluding taxes on the net income of AppNinjas, state franchise taxes and taxes based upon AppNinjas’ capital stock the appropriate amount shall be invoiced to Reseller and timely paid by Reseller unless Reseller provides AppNinjas with a valid tax or other exemption certificate issued or authorized by the appropriate authority within a time frame allowed under applicable state or local law or provides AppNinjas such other evidence requested by AppNinjas to establish such exemption. Reseller shall provide AppNinjas with official receipts issued by the appropriate taxing or other authority or such other evidence as is reasonably requested by AppNinjas to establish that such taxes, duties, tariffs, fees or charges have been paid.
12.1 Acceptance/Rejection. All Reseller Products and Pass Through Items shall be deemed accepted by Reseller twenty (20) business days after reception at Reseller’ location unless Reseller rejects such Reseller Product within such twenty (20) business day period for failure to comply with the Limited Warranty set forth in Section 13 below. Upon such rejection by Reseller, Reseller shall immediately notify AppNinjas in writing of the rejection and shall, at AppNinjas’ option, return the Reseller Product or Pass Through Item or allow AppNinjas to inspect the rejected Reseller Product or Pass Through Item at the facility of Reseller and shall follow AppNinjas’ instructions regarding disposition of the rejected Reseller Product or Pass Through Item.
12.2 Return. Any Reseller Product or Pass Through Items sold by Reseller and returned to AppNinjas shall be returned by Reseller. Prior to such return, Reseller shall obtain from AppNinjas’ Technical Support Department a Return Material Authorization (“RMA”) number. Reseller shall request each RMA number from AppNinjas by fax sent to Attn: Technical Support Department or by e-mail at firstname.lastname@example.org. Such fax or e-mail shall provide the part number, serial number, quantity and reason for return, including an explanation of all failure symptoms and other relevant information, for all Reseller Products and Pass Through Items that Reseller wishes to return. AppNinjas will send to Reseller an RMA form and number within five (5) business days of Reseller’ request. Within ten (10) business days after receiving an RMA number for the Reseller Product or Pass Through Item, or, if the RMA number is not received within the timeframe mentioned above, at any time after the expiration of such timeframe, Reseller shall package such Reseller Product or Pass Through Item in its original packing material or an equivalent and return such Reseller Product or Pass Through Item, at Reseller’s cost, shipped properly insured, freight prepaid, FOB- AppNinjas facility in or such other location as AppNinjas may designate in writing. Reseller shall enclose with the returned Reseller Product or Pass Through Item the applicable RMA form, and any other documentation or information requested by AppNinjas. AppNinjas may refuse to accept returns of any Reseller Product or Pass Through Item not packed and shipped as provided in this Section 12.2.
12.3 AppNinjas Evaluation. Should AppNinjas and Reseller’ examination and testing of a returned or rejected Reseller Product or Pass Through Item fail to disclose any non-compliance with the Limited Warranty set forth in Section 13; the Parties shall arrange disposition of the Reseller Product or Pass Through Item in accordance with Reseller's instructions and at Reseller's cost, and Reseller and AppNinjas shall reasonable share expenses incurred in connection with such examination and testing. If the Parties' examination and testing of a returned or rejected Reseller Product or Pass Through Item determines that such Reseller Product or Pass Through Item does not comply with the Limited Warranty set forth in Section 13, AppNinjas will repair, replace, or provide a refund for such Reseller Product, at AppNinjas’ option as set forth in Section 13 and at AppNinjas’ cost, no later than ninety (90) days after the time AppNinjas receives from Reseller in accordance with this Section 12 written notice of such return or rejection. AppNinjas shall be responsible for returning repaired or replaced Reseller Products or Pass Through Item to Reseller.
12.4 Product Data. AppNinjas shall use commercially reasonable efforts to maintain the integrity of any and all End-User data contained in any returned Reseller Product (“End-User Data”). Reseller shall defend and indemnify AppNinjas against any claim or action brought against AppNinjas and based on AppNinjas’ failure to maintain the integrity of such End-User Data; provided that Reseller is (i) promptly informed in writing of such claim and action; (ii) given exclusive authority and control to defend, settle or otherwise remove or avoid such claim and action; and (iii) provided with all reasonable assistance that it requests in connection with such claim and action.
13. Product Warranties and Disclaimers.
13.1 Limited Warranty. AppNinjas warrants to Reseller (and not its Customers), subject to all of the provisions of this Agreement including Section 15 (“Limited Warranty”), that: (a) each Reseller Product purchased hereunder will be free from material defects in material and workmanship for a period of twelve (12) months from initial delivery by AppNinjas (“Warranty Period”); (b) Hardware will materially conform with the Hardware specification in the applicable Documentation during the Warranty Period; (c) all Licensed Programs will materially conform with the Licensed Program specifications in the applicable Documentation during the Warranty Period.
13.2 Exclusive Remedy. AppNinjas’ sole liability and Reseller’s exclusive remedy for a breach of the Limited Warranty of Section 13.1 shall be limited to repair or replacement (at no charge to Reseller) of, or refund for, the non-conforming Reseller Product or Pass Through Item at AppNinjas’ sole option. Reseller Product or Pass Through Item returned to AppNinjas for non-compliance with this Limited Warranty shall be returned in accordance with Section 12 above. Any refund under this Section 13 will be of the actual purchase price paid for such Reseller Product less a use charge based on straight-line depreciation over a 36-month useful life.
13.3 Exclusions. Notwithstanding the warranty of Section 13.1, AppNinjas shall have no obligation or responsibility with respect to any Reseller Product or Pass Through Item that (a) has been modified or altered without AppNinjas’ written authorization; (b) has not been used in accordance with Documentation for such Reseller Product or Pass Through Item; (c) has been subjected to unusual electrical or physical stress; neglect; misuse; abuse; improper storage, testing or connection; or unauthorized repair; or (d) is no longer covered under the Warranty Period.
13.4 Repaired or Replaced Product. The warranty for repaired or replaced Reseller Product or Pass Through Item shall be limited in scope to the warranty of Section 13.1 and shall have a duration of the remaining Warranty Period in the original warranty of Section 13.1 that was applicable to the original Reseller Product or Pass Through Item, extended by the time elapsed between AppNinjas receiving notice of the non-conformity and Reseller's receipt of the repaired or replaced Reseller Product or Pass Through Item.
13.5 Disclaimer. APPNINJAS MAKE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN THE EXPRESS LIMITED WARRANTIES MADE BY APPNINJAS IN THIS SECTION 13, AND APPNINJAS AND ITS SUPPLIERS HEREBY SPECIFICALLY DISCLAIM ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THE IMPLIED CONDITION OF SATISFACTORY QUALITY. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 13, ALL LICENSED PROGRAMS ARE LICENSED ON AN “AS IS” BASIS WITHOUT WARRANTY. APPNINJAS AND ITS SUPPLIERS DO NOT WARRANT THAT (I) THE OPERATION OF THE RESELLER PRODUCTS OR PASS THROUGH ITEMS WILL BE UNINTERRUPTED OR ERROR FREE; (II) THE RESELLER PRODUCTS, OR PASS THROUGH ITEMS AND DOCUMENTATION WILL MEET THE END USERS’ REQUIREMENTS; (III) THE RESELLER PRODUCTS, OR PASS THROUGH ITEMS WILL OPERATE IN COMBINATIONS AND CONFIGURATIONS SELECTED BY THE END USER; OTHER THAN COMBINATIONS AND CONFIGURATIONS WITH PASS THROUGH ITEMS OR OTHER PRODUCTS AUTHORIZED BY APPNINJAS OR (IV) THAT ALL LICENSED PROGRAM ERRORS WILL BE CORRECTED.
13.6 Scope. The Limited Warranty of this Section 13 is by AppNinjas to Reseller only and not to any third party. Reseller shall be responsible for providing a warranty to its Customers and End Users. Except to the extent required by law, Reseller shall not pass on to any third party a warranty of greater scope or protection than this Limited Warranty.
14. Representations and Indemnities.
14.1 Intellectual Property Remedy.
(a) Notwithstanding the representations made in 14.1(b), AppNinjas will defend and indemnify at its sole expense, against any third party claim or action brought against Reseller claiming that the Reseller Products infringe any third party copyright, trademark or trade secret under the laws of the United States; provided that AppNinjas is (i) promptly informed in writing of such claim and action; (ii) given exclusive authority and control to defend, settle or otherwise remove or avoid such claim and action; and (iii) provided with all reasonable assistance that it requests in connection with such claim and action. AppNinjas shall not be responsible for costs or expenses incurred without its prior written authorization. The remedy set forth in this Section 14.1 shall not apply to the extent that such infringement arises from (a) use of a Reseller Product in a manner which is not provided for in the Documentation including without limitation in a combination or process where the Reseller Product used alone or not in that process would not have infringed such rights, unless such combination or process involves Pass Through Items used as provided in the Documentation or was authorized by AppNinjas; (b) use of other than a current unaltered release of the Product to the extent that the infringement would have been avoided by such current unaltered release where such current unaltered release was made available to Reseller by AppNinjas; (c) modification of the Reseller Product by, or requested by Reseller, End User or a Customer; or (d) modification of Reseller Product by any third party unless implemented by AppNinjas and not requested by Reseller, an End User or an Customer; or (e) continued infringement by Reseller if AppNinjas is providing a remedy under 14.1(b) below; or (f) a breach of this Agreement by Reseller, or (g) Pass Through Items. AppNinjas shall have no obligation or responsibility under this Section 14.1 for damages, costs, expenses and other losses to the extent that Reseller, a Customer or an End User refuses to comply with a commercially reasonable written request to take action to prevent or mitigate such losses, costs, expenses or damages.
(b) In addition to the representations made by AppNinjas in 14.1(a) above, in the event that it is adjudicatively determined or AppNinjas reasonably believes that a Reseller Product or Part thereof may infringe any intellectual property rights, AppNinjas shall, at its option, (i) procure for Reseller the right to continue using such Reseller Product or Part; (ii) modify the Reseller Product or Part to avoid such infringement; or (iii) replace the Reseller Product or Part with a functionally equivalent non-infringing substitute. If all of the remedies in (i) through (iii) above are unavailable, AppNinjas shall (1) require that Reseller return any affected Reseller Product in its inventory, refund to Reseller the actual price paid for such Product less a use charge based on straight-line depreciation over a 36 month useful life and (2) terminate this Agreement.
(c) SECTION 14.1 STATES THE ENTIRE LIABILITY AND OBLIGATION OF APPNINJAS AND, WITH RESPECT TO APPNINJAS, THE EXCLUSIVE REMEDY OF RESELLER, END USERS AND CUSTOMERS WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR PART THEREOF AND PASS THROUGH ITEMS.
14.2 Indemnification by Reseller.
(a) Except for AppNinjas’ obligations under Section 14.1, Reseller agrees to defend and indemnify AppNinjas against any and all claim or action brought by a third party against AppNinjas to the extent caused by (1) any activities of Reseller or its distributors in connection with the reselling, marketing, licensing, or use of Reseller Products in violation of this Agreement or in a manner not provided for in the Documentation, (2) AppNinjas’ use of Reseller’s Trademarks pursuant to Section 6.1, or (3) any representation or warranty of Reseller or its employees that exceeds those provided by AppNinjas in writing. As a condition to the foregoing indemnity obligation, AppNinjas shall (i) promptly inform Reseller in writing of such claim and action; (ii) give Reseller exclusive authority and control to defend, settle or otherwise remove or avoid such claim and action; and (iii) provide Reseller with all reasonable assistance that it requests in connection with such claim and action. Reseller shall not be responsible under this Section 14.2 for costs, expenses and fees incurred by AppNinjas without Reseller' prior written authorization.
15. Limitation of Liability.
15.1 EXCEPT FOR LIABILITY UNDER SECTIONS 12.4 AND 14, APPNINJAS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR ANY OTHER THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF GOODWILL, LOSS OF DATA OR SYSTEM USE, AND OTHER BUSINESS LOSS, REGARDLESS OF WHETHER IT KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS, OR EXPENSES. IN NO EVENT WILL APPNINJAS BE LIABLE TO RESLLER FOR ANY AMOUNTS IN EXCESS OF THE AGGREGATE OF THE FEES PAID BY RESELLER TO APPNINJAS HEREUNDER DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR FOR ANY MATTER BEYOND APPNINJAS’ REASONABLE CONTROL.
15.2 APPNINJAS SHALL HAVE NO LIABILITY ARISING OUT OF THE MISUSE; UNAUTHORIZED ALTERATION, MODIFICATION, OR USE OF, OR TAMPERING WITH A PRODUCT UNLESS IT WAS CAUSED BY THE NEGLIGENCE OR WILFULL MISCONDUCT OF APPNINJAS.
16.1 Definition. “Confidential Information” means any information disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), which, (i) if in written, graphic, machine-readable or other tangible form, is marked as “Confidential” or “Proprietary,” (ii) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in a writing to the Receiving Party to be “Confidential” within ten (10) days of such disclosure; or (iii) is specifically deemed to be confidential by the terms of this Agreement.
16.2 Confidentiality Obligation. The Receiving Party shall treat as confidential all of the Disclosing Party’s Confidential Information and shall not use and not disclose such Confidential Information in any way, for the Receiving Party’s own account or the account of any third party, nor disclose to any third party any Confidential Information except as expressly permitted under this Agreement. The Receiving Party shall disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such information for purposes expressly permitted under this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of the Disclosing Party’s Confidential Information.
16.3 Confidential Information Exclusions. Notwithstanding the provisions of Section 16.1, Confidential Information shall exclude information that the Receiving Party demonstrates: (i) was independently developed by or for the Receiving Party without any use of or reference to the Disclosing Party’s Confidential Information; (ii) becomes known to the Receiving Party, without restriction and without breach of this Agreement, from a source other than the Disclosing Party that had a right to disclose it; (iii) was in the public domain at the time it was disclosed or becomes in the public domain through no act or omission of the Receiving Party; (iv) was rightfully known to the Receiving Party, without restriction, at the time of disclosure. In the event that an order or requirement of a court, administrative agency, or other governmental body requires, or may require, Confidential Information be disclosed, the Receiving Party shall provide prompt advance notice thereof to the Disclosing Party, in order for the Disclosing Party to obtain a protective order and otherwise prevent public disclosure of such information. Each Party shall have the right to use any information for its reasonable internal business planning purposes in connection with the purchase and supply of the Reseller Products and for the purpose of fulfilling its obligations under this Agreement (subject to the disclosure restrictions in this Section 16).
17. Proprietary Rights.
17.1 Proprietary Rights Notices. Reseller shall not, and shall take such reasonable actions as set forth hereinafter to require that its distributors and Customers (other than End Users) do not, remove, alter, cover or obfuscate any proprietary rights notices, such as patent, copyright, or confidentiality notices, on or in any Reseller Product, Pass Through Item or Documentation, other materials, or copies thereof, unless agreed to by AppNinjas.
17.2 Licensed Programs. Except as expressly set forth herein, AppNinjas and its licensors shall own all right, title and interest in the Licensed Programs provided by AppNinjas to Reseller under this Agreement, and any modifications thereto supplied by AppNinjas, unless otherwise agreed by AppNinjas. Except for the limited license rights granted in Section 4.1 of this Agreement, AppNinjas shall retain all right, title and interest in and to the Licensed Program, and Reseller may not transfer, distribute, rent, or grant any of AppNinjas’ intellectual property rights in the Licensed Program to any entity. ALL RIGHTS IN THE LICENSED PROGRAMS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO APPNINJAS.
17.3 Documentation. AppNinjas shall own all right, title and interest in (i) the Documentation and (ii) any modifications, alterations, translations or derivative works of the Documentation, regardless of by whom made; and (iii) all intellectual property rights related to (i) and (ii) (excluding Reseller Trademarks), unless otherwise agreed in writing by AppNinjas.
17.4 Hardware. Except for pre-existing and future intellectual property rights independently developed or owned or acquired by Reseller, AppNinjas shall own all intellectual property rights in the Hardware provided by AppNinjas under this Agreement. Reseller shall not and shall take such reasonable actions as set forth hereinafter to require that its distributors and Customers (other than End-Users) do not disassemble or reverse engineer the Hardware, except to the extent that such restrictions are not permitted under applicable law. As used in this section 17.4, reasonable actions to be taken by Reseller shall mean that Reseller shall modify its standard terms and conditions of sale to require its distributors and Customers (other than End Users) to abide by the provisions of this section 17.4.
18. Term and Termination.
18.1 Term. The term of this Agreement shall commence upon the Effective Date and shall continue in full force and effect for a period of three (3) years from the Effective Date, unless earlier terminated in accordance with the provisions of this Agreement. This Agreement may be renewed for additional one (1) year periods only by written agreement of the Parties entered into prior to termination or expiration of this Agreement for any reason.
18.2 Termination for Cause. This Agreement may be terminated immediately for cause by a Party on written notice to the other Party in the event that:
(a) the other Party ceases to function as a going concern or to conduct its operations in the normal course of business; or
(b) the other Party is in default of its obligations under this Agreement and fails to cure such default within sixty (60) days after written notice thereof; or
(c) AppNinjas fails to reasonably accept Purchase Orders, Reseller may terminate this Agreement by giving AppNinjas ninety (90) days advance written notice of such termination.
18.3 Termination for Convenience. AppNinjas may terminate this Agreement for convenience at any time upon 30 days prior written notice to Reseller.
18.4 Competing Products. In the event that AppNinjas receives notice that Reseller intends to sell Competing Products pursuant to Section 2.4 herein or if AppNinjas reasonably concludes that Reseller is selling Competing Products (as determined by the Parties in their sole discretion), AppNinjas may terminate this Agreement upon ten (10) days’ prior written notice to Reseller. Unless specifically granted to Reseller by AppNinjas in writing, Reseller shall not have the right to cure for a default of Section 2.4. AppNinjas’ sole remedy for Reseller’ default under Section 2.4 shall be termination under this Section 18.
18.5 Third Party Supply Agreements. In the event that AppNinjas is unable to continue to obtain a Third Party Component under an existing supply agreement between AppNinjas and the respective supplier, and in the event that AppNinjas, after using reasonable efforts (including obtaining the assistance of Reseller in the acquisition of such Third Party Component), is unable to obtain such Third Party Component or its equivalent under terms and conditions that are acceptable to AppNinjas in its good faith business judgment, then AppNinjas may terminate this Agreement upon reasonable written notice to Reseller.
18.6 Purchase Order; No Waiver. AppNinjas shall be obligated to ship and Reseller shall be obligated to accept deliveries of Reseller Products for which AppNinjas accepted Purchase Orders prior to the effective date of termination of this Agreement. The acceptance of any Purchase Order from, or the sale of any Reseller Product to, Reseller after the termination of this Agreement for any reason shall not be construed as a renewal or extension of this Agreement or any provision hereof.
18.7 No Liability. Except as expressly required by law, in the event of termination of this Agreement by either Party in accordance with its terms, neither Party shall be liable to the other for compensation, reimbursement or damages resulting from such termination and resulting from (i) the loss of prospective profits or anticipated sales; or (ii) expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of AppNinjas or Reseller.
18.8 Termination Obligations: In the event of termination of this Agreement for any reason:
(a) Reseller shall pay to AppNinjas all fees and other amounts due and/or owing to AppNinjas under Purchase Orders issued by Reseller and accepted by AppNinjas at the time of such termination upon AppNinjas’ fulfillment of all open Purchase Orders and issuance of invoices for said orders which shall be paid in accordance with the payment terms in this Agreement.
(b) Reseller shall provide Level One, Level Two and Level Three Support on the Reseller Products to the End Users and Customers, under the terms of Section 5.3 above.
(c) AppNinjas shall provide Level Four Support on the Reseller Products to Reseller to support the End Users under the terms of Section 5.3 above, during the Warranty Period, at no cost to Reseller. After the expiration of the Warranty Period, AppNinjas will have the right to charge Reseller a reasonable fee (in accordance with AppNinjas’ then standard prices and practices) for the Level Four Support requested by Reseller.
(d) AppNinjas may terminate service under this Agreement and disable merchant processing in the Licensed Programs.
19. Miscellaneous Provisions.
19.1 Independent Contractors. AppNinjas and Reseller are independent contractors, and nothing in this Agreement shall be construed to (a) give either Party the power to direct and control the day-to-day activities of the other, (b) constitute the Parties as partners, joint venturers, co-owners, employers or employees of the other or otherwise participants in a joint undertaking, or (c) authorize either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
19.2 Waiver. The failure of either Party to require performance of any provision of this Agreement shall not affect the right of such Party to require full performance at any time thereafter, nor shall the waiver of either Party of a breach or default be taken or held to be a waiver of a provision itself or a waiver of any other right hereunder.
19.3 Notice. Any notice required or permitted to be given hereunder shall be in writing and shall be sent by certified mail return receipt requested, delivered by a recognized international express courier service (such as DHL or Federal Express) or delivered by hand to the address below with respect to notices sent to AppNinjas, and the address set forth in Reseller’s registration page with respect to notices sent to Reseller, or such other address as a Party may designate by written notice in accordance with this Section 19.3. Any such notice shall be deemed effective when received.
If to AppNinjas:
AppNinjas Holdings, Inc.
Attn: John Waldron
5555 Wall St.
Dublin, OH 43017
For the Issuance/ Acceptance of Purchase Orders and Reports:
19.4 Force Majeure. Other than the payment of moneys, nonperformance of either Party shall be excused to the extent that performance is rendered commercially unreasonable by acts of God, war, fire, flood, riot, power failure, embargo, material shortages, strikes, governmental acts, man-made or natural disasters, earthquakes, failure or limitation of supply, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing Party. The time for performance shall be extended for the time period lost due to the delay. When affected by a force majeure event, Reseller may, without incurring any liability to AppNinjas, delay its purchases of any Reseller Product. AppNinjas may, without incurring any liability to Reseller, allocate, delay or limit deliveries of any Product in time of shortage caused by a force majeure event. Notwithstanding the foregoing, in the event that either Party postpones delivery of Reseller Product by more than sixty (60) days after the delivery date requested in a Purchase Order for such Reseller Product, the other Party may cancel such Purchase Order within ten (10) days after such other Party receives notice of such postponement.
19.5 Governing Law and Jurisdiction. This Agreement shall not be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods; rather, this Agreement, and all disputes arising out of or related to this Agreement or any Reseller Product or portion thereof, shall be governed by and construed under the laws of the State of Ohio without giving effect to conflict of laws principles. All such disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in Ohio and the Parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
19.6 Assignment. The rights and obligations under this Agreement are personal and may not be transferred or assigned directly or indirectly except upon written consent of the non-assigning Party; except however, AppNinja’s may assign this Agreement to an affiliate or successor in interest (or its equivalent) of all or substantially all of its relevant assets, whether by sale, merger, or otherwise. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and assigns.
19.7 Severability. If, for any reason, a court or other body of competent jurisdiction finds, or the Parties mutually believe, any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. The Parties shall negotiate in good faith an enforceable substitute provision that most nearly achieves the intent and economic effect of such invalid or unenforceable provision.
19.8 Survival. In the event of termination or cancellation of this Agreement, Sections 11, 12.4, 13, 14, 15, 16, 17, 18 and 19 shall survive and shall continue to apply in accordance with their terms. In addition, End User Agreements entered into in accordance with the terms and conditions of this Agreement prior to expiration or termination shall survive.
19.9 Compliance with Laws; Licenses. Each Party shall comply with all laws, regulations, orders and other governmental requirements in performing obligations and exercising rights under this Agreement (including without limitation all applicable export and import laws and regulations).
19.10 Entire Agreement. This Agreement, including the Exhibits attached hereto, sets forth the entire agreement and understanding of the Parties with respect to the sale and distribution of Reseller Products and Pass Through Items in the Territory and supersedes all prior and contemporaneous agreements relating thereto, written or oral, between the Parties. No modification of or amendment to this Agreement or any of the Exhibits, nor any waiver of any rights under this Agreement shall be effective unless in writing signed or clicked through by the Party to be charged. The Exhibits are hereby incorporated herein by reference.
19.11 Conflicting Terms. Except with respect to modifications and amendments in accordance with Section 19.10, the terms and conditions of this Agreement, including the Exhibits attached hereto, shall prevail, notwithstanding any limitations on acceptances or any contrary, additional, different, altering or conflicting terms in any policy, quotation, Purchase Order, sales acceptance or acknowledgment, confirmation or other document issued by either Party affecting the purchase and/or sale of Products. The body of this Agreement shall prevail in the event of a conflict with any of the Exhibits attached hereto. Reseller agrees to waive and does waive the terms of any Purchase Order that purport to limit, add to, vary, alter, supplement, or modify the terms of this Agreement. AppNinjas agrees to waive and does waive the terms of any sales acceptance or acknowledgement, or other document issued by AppNinjas that purport to limit, add to, vary, alter, supplement, or modify the terms of this Agreement.