SPINBACKUP RESELLER SERVICES AGREEMENT
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE USING SPINBACKUP SERVICES. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOT PROCEED WITH ORDERING OR USING THE SERVICES.
This Reseller Services Agreement (the "Agreement") is entered into by and between Spinbackup, Inc., a corporation, with the office at 1426 Fillmore Street, Suite 300, San Francisco, California, 94115 ("Spinbackup") and the entity agreeing to these terms ("Reseller"). This Agreement is effective as of the date Reseller executes this Agreement (the "Effective Date"). If you are accepting on behalf of the Reseller, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understood this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement.
A. Spinbackup offers certain SaaS data backup, recovery and cybersecurity services for SaaS apps including Gmail messages backup and restore, Google Drive files backup and restore, Google Calendar events backup and restore, Google Contact details backup and restore, Google Sites items backup and restore and various cybersecurity solutions for Google Apps, as well as a proprietary control panel to permit the Reseller to monitor and control the use of Spinbackup services by its End Users, whose proprietary software as a service is available for annual or monthly subscription, provided by Spinbackup and third party suppliers (collectively the “Spinbackup Products”).
B. The Reseller desires, and Spinbackup is willing to grant the Reseller, the right to resell the Spinbackup Products provided by Spinbackup as SaaS accounts to its End customers in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the promises, mutual covenants and agreements set forth in this Agreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
1. Definitions. All initialized capitalized words used herein, unless the context requires otherwise, shall have the following meanings:
1.2. “End user” means any actual Customer of Spinbackup Products sourced by the Reseller.
1.3. “User Agreement” means as a contract, agreement or any other act that a Customer agrees to pay the required monthly or annual subscription fee for the usage of a Spinbackup Product.
1.4. “Terms” shall mean the terms, conditions, manuals, and procedures which identify the rights of the Parties which are a material and integral part of this Reseller Agreement.
1.5. "Term" means the term of the Agreement, which will begin on the Effective Date and continue for as long as the Reseller is receiving Services from Spinbackup, unless terminated earlier pursuant to this Reseller Agreement.
1.6. “Commission” means twenty percent (20%) of the Price paid to Spinbackup from a Customer sourced by the Reseller in accordance with the Use Agreement. The commission is also applied on recurring revenue that may include but is not limited to monthly or annual subscriptions and renewals. Subject to the parties’ mutual written agreement, in some cases the starting commission may vary and can be a subject of an additional agreement that will be emailed to the Reseller and signed simultaneously to this agreement. In such cases, the additional agreement will state the Resellers adjusted commission and terms, along with other information.
1.7. “Price” means the amount of money paid by a Customer sourced by the Reseller and paid to Spinbackup to effectuate the User Agreement. Reseller’s commission shall be calculated based solely on payments associated with the unique Reseller Code which is provided by Spinbackup to each reseller. The Price shall be determined on the basis of Spinbackup’s current Price list as set forth on Spinbackup Web Site and does not include VAT/Sales tax, if applicable.
2. Reseller Services.
2.1. Efforts. The Reseller shall use its good faith efforts to solicit, promote and sell Spinbackup Products via the Reseller’s website or web based presentations, social networks, face-to-face presentations and other marketing tools to potential Customers.
2.2. Publicity. The Reseller agrees that Spinbackup may include Reseller’s name, logo or Brand Features in a list of Spinbackup customers, online or in promotional materials. The Reseller also agrees that Spinbackup may verbally reference the Reseller as a customer of the Spinbackup Products or services that are the subject of this Agreement.
2.3. Marketing Standards. At all times, the Reseller shall conduct its business with respect to the subject matter of this Agreement in a manner that reflects favorably on Spinbackup and Spinbackup good name, goodwill and reputation. The Reseller shall ensure that its employees and agents maintain the a market standard level of integrity and professionalism in advertising Spinbackup Products. 3. Reseller Covenants.
3. Reseller Covenants.
3.1. Compliance With Laws. The Reseller shall provide the Services in compliance with all applicable local, federal, state laws, regulations and ordinances.
3.2. Relationship With Customers. The Reseller, including Reseller’s employees, representative and agents, shall not intentionally or negligently (i) engage in deceptive, misleading or unethical practices with respect to Spinbackup or any Spinbackup Products, (ii) make false or misleading representations with regard to Spinbackup or any Spinbackup Product, (iii) publish or employ, or cooperate in the publication or employment of any misleading or deceptive advertising material with regard to Spinbackup or any Spinbackup Product, and (iv) make any representation, warranty or guarantee to Customers, potential Customers or individuals or entities within the industry with respect to the specifications, features or capabilities of Spinbackup or any Spinbackup Product that are materially inconsistent with the representations made by Spinbackup.
3.3. Price to be Paid to Spinbackup. The Reseller is not authorized to collect any price, fees, payments, reimbursements, refunds, or any monetary amount owed to or paid by or to Spinbackup or any Customer in any form and shall ensure that its employees, representatives and agents comply with all reseller covenants set forth herein.
3.4. Order Processing. The Reseller shall process orders from End users in accordance with the provisions of Section 4.
3.5. Inspection and Audit. Once per calendar year, Spinbackup shall have the right to physically inspect and audit all books, records and other data or information, including electronic data, directly relevant to the Reseller’s compliance with the terms or this Reseller Agreement; provided, however, that any such inspections will be conducted upon reasonable prior notice to the Reseller during the Reseller’s normal business hours at a mutually agreed time at Spinbackup’s sole cost and expense and in a fashion so as not to interfere with Reseller’s business operations.
4. Pricing and Order Processing.
4.1. Customer Pricing. All the subscriptions indicated at the official Spinbackup Web Site may only be marketed by the Reseller on a monthly or annual Price subscription in accordance with the terms and conditions set forth on the Spinbackup Web Site, which terms and conditions will not be changed without providing the Reseller at least 90 days advance written notice.
4.2. End Users and Order Processing. Purchases of Spinbackup Product or Services will be made solely through online web based store domain maintained by Spinbackup, with unique reseller code generated by Spinbackup captured for sales recognition and tracking. The Reseller will get access to Reseller Control Panel to track sales history and API to integrate with Reseller’s Web Site, enhancing the Customer’s purchase experience. Customers will not be authorized to use paid subscriptions at Spinbackup until after full payment is received by Spinbackup.
5.1. Calculation of Commission to be paid to the Reseller. The Reseller shall purchase licenses from Spinbackup with the commission margin applied automatically upon the purchase of licenses.
5.2. Price Adjustment by the Reseller. The Reseller may propose to Spinbackup a reduction in price for a particular usage agreement based solely on the Reseller’s agreement to reduce the percentage of its commission. A written authorization by Spinbackup is required prior to the Reseller’s communication of such price reduction to any End User or Customer.
5.3. Reseller Sourced Large Customer. When the Reseller sources an end user which could result in a Use Agreement with a price of Five Thousand Dollars per month ($5,000) or more, e.g. large corporation or educational organization or government organization (a “Large Customer”), the Reseller shall immediately inform Spinbackup of the name and address of the Large Customer. Spinbackup reserves the right to negotiate all Large Customer User Agreements on a case-by-case basis. The Reseller acknowledges and agrees that the price determined for any User Agreement shall be at the sole discretion of Spinbackup.
5.4. Timing of Payment of Commission. Commission earned by the Reseller will be applied automatically upon the purchase of licenses. Following the expiration or termination of the Reseller Agreement, the Reseller should be entitled to payment of any earned, but previously unpaid, Commission from User Agreements executed after the termination date of this Reseller Agreement.
5.5. Commission Disputes. In the event of a dispute between the parties regarding entitlement to or payment of Commission, upon the written request of the Reseller, Spinbackup agrees to make available to the Reseller those records and accounting regarding its determination and calculation of the Commission, and to otherwise cooperate in all respects with the Reseller so that the Reseller can verify whether the determination and calculation of the Commission was properly done. The Reseller shall bear the costs of such an audit should Spinbackup’s determination of the Commission be shown to have been accurate, and Spinbackup shall bear the costs of such an audit should Spinbackup’s determination of the Commission be shown to have been inaccurate.
5.6. Wire Fees. Spinbackup is not obligated to pay local or international bank fees that may apply for wire transfer of the Reseller's Commission.
6.1. First tier of support. The Reseller shall be responsible for providing the first tier of support to End-Users or sub-resellers. Spinbackup shall make available to the Reseller its then current standard technical, technical support, marketing support and other services related to the Spinbackup Product. All such services shall be made available in accordance with and shall be subject to Spinbackup then current standard terms and conditions applicable to the services. Spinbackup’s current technical support standard is phone, chat and email support. Some service offerings may require execution of an additional agreement and/or the payment of service fees.
6.2. Support request. Each technical support request from the Reseller shall include the following information:
Reseller Support name:
Title of the issue:
Date and time that the issue occurred:
Detailed description of the issue; Error messages (if applicable):
Screenshots or any other visual element that could help solve the issue
7.1. License. Spinbackup hereby grants to the Reseller a non-exclusive, non-transferable and terminable license to (i) distribute and market Spinbackup Products and Services to End Users and Customers, and (ii) maintain, support, use for demonstration purposes and display Spinbackup Products. Reseller shall have no rights to change, modify, adapt, or improve any Spinbackup marketing materials or Spinbackup Products without the prior written consent of Spinbackup.
7.2. Grant of Trademark License. Spinbackup hereby grants to the Reseller a non-exclusive, non-transferable, terminable, royalty-free right and license (the “Trademark License”) to use the name Spinbackup and all intangible proprietary assets of Spinbackup, including trademarks, trade names, logos, and color schemes (collectively, the “Spinbackup Marks”) solely during the Term of this Reseller Agreement in connection with the Reseller’s rights and obligations with respect to the promotion and sale of Spinbackup Products. Reseller shall not use the Spinbackup Marks for any purpose not specifically granted under this Reseller Agreement.
7.3. Ownership of Spinbackup Marks. Reseller acknowledges that Spinbackup is the owner of the Spinbackup Marks and Reseller agrees that during the Term of this Reseller Agreement:
(a) All use of the Spinbackup Marks by the Reseller shall insure the benefit of Spinbackup.
(b) The Reseller shall not contest the ownership of the Spinbackup Marks by Spinbackup or the validity of any rights claimed by Spinbackup in the Spinbackup Marks or registrations thereof.
(c) The Reseller shall not do or cause anything that might impair Spinbackup’s ownership or rights in the Spinbackup Marks (provided that no express rights granted under this Reseller Agreement shall be deemed to impair such ownership or rights).
(d) Nothing in this Reseller Agreement shall give the Reseller any right, title or interest in the Spinbackup Marks other than the right to use the Spinbackup Marks in accordance with this Reseller Agreement.
(e) The Reseller will not enter into a sublicense agreement of the Spinbackup Marks or permit or authorize any other person or entity to use the Spinbackup Marks, without the prior written consent of Spinbackup, which consent may be withheld by Spinbackup, at Spinbackup’s sole discretion.
7.4. Form of Use of Spinbackup Marks. The Reseller is authorized to use the Spinbackup Marks in marketing materials related to the Spinbackup Products, including the use of the Spinbackup Marks in publicity, web site advertising, social networks advertising, signs, printing materials, and other forms of advertising, subject to the terms and conditions of this Reseller Agreement. The Reseller agrees to use the Spinbackup Marks only in the form and manner provided herein and shall include appropriate symbols in conjunction with all uses of the Spinbackup Marks. Spinbackup has the right to appropriate all advertising and other promotional materials on which any Spinbackup Mark appear, and Reseller specifically undertakes, prior to using of the Spinbackup Marks in connection therewith, to amend to the reasonable satisfaction of Spinbackup any materials that are not approved by Spinbackup.
8. DISCLAIMER OF WARRANTIES
8.1. Spinbackup hereby represents and warrants that it or its licensors own all right, title and interest in and to the Spinbackup Products and the Spinbackup Marks; that the Spinbackup Products and the Spinbackup Marks do not infringe upon the intellectual property or other rights of any third party; that the Spinbackup Products conform with all product specifications made available to the Reseller, Customers and End Users by Spinbackup, whether directly or indirectly: and that Spinbackup is in compliance with all applicable laws in connection with performing its obligations under this Reseller Agreement, and that the Spinbackup Products comply with all applicable laws.
8.2. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.1, SPINBACKUP MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND CONCERNING THE SPINBACKUP PRODUCTS OR THEIR USE, ACCURACY, FUNCTIONING OR OWNERSHIP AND SHALL NOT BE LIABLE IN ANY MANNER FOR ANY REPRESENTATION OR WARRANTY OR CONDITION OF ANY KIND WHETHER EXPRESSED OR IMPLIED OR COLLATERAL OR WHETHER ARISING FROM OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL BE ERROR FREE.
8.3. RESELLER ACKNOWLEDGES THAT PORTIONS OF THE SOFTWARE SERVICES AND PRODUCTS ARE PROVIDED BY THE THIRD PARTY SUPPLIERS, WHOSE PERFORMANCE IS NOT WARRANTED OR GUARANTEED BY SPINBACKUP. RESELLER SHALL NOT BE AUTHORIZED TO MAKE ANY WARRANTY, GUARANTEE, REPRESENTATION OR CONDITION, WHETHER WRITTEN OR ORAL, ON BEHALF OF SPINBACKUP, EXCEPT AS OTHERWISE AGREED BY THE PARTIES. THE RESELLER SHALL BE SOLELY
SPINBACKUP RESELLER SERVICES AGREEMENT Page 5 RESPONSIBLE FOR ANY WARRANTIES FOR THE SOFTWARE GIVEN BY THE RESELLER, EXCEPT AS OTHERWISE AGREED BY THE PARTIES.
9.1. Claim. Claim. Each party hereby agrees to indemnify and hold harmless the other party and its shareholders, parent and affiliated companies, and each of their respective officers, directors, employees and representatives, from any damage, liability, claim, cost, loss, or expense (including court costs, litigation expenses and attorneys fees) (collectively, without limitation, a “Claim”) which arises out of or relates in any manner to any act(s) or omission(s) by the other party or any of the other party’s employees, representative or agent that are (i) performed or omitted to be performed by the order and under control of the other party, (ii) performed or omitted to be performed pursuant to the direction or with the actual or implied consent of the other party or its representatives, employees or agents, and (iii) caused by the other party’s breach of this Reseller Agreement (including the Trademark License), or caused by the other party’s violation of any federal, state, or local law, regulation or ordinance. The other party shall have the sole authority to conduct the defense of or settle any Claim with the understanding, however, that indemnified party shall have the right to approve counsel selected by the indemnifying party for such defense, which approval shall not be unreasonably withheld and, further, the indemnified party may retain own counsel at its expense and participate in the defense of any such Claim.
9.2. No Consequential Damages; Limitation of Liability. In no event shall either party be liable for any incidental, consequential, indirect, special, punitive or exemplary damages, or damages for loss of profits or revenues, business information or other pecuniary loss, arising under or in connection with this agreement and even if advised of the possibility of such damages or if such damages were foreseeable. The foregoing disclaimer of liability shall apply regardless of whether such liability is based on breach of contract, contractual or extra-contractual liability, tort (including without limitation negligence), strict liability, breach of a fundamental term, fundamental breach, or otherwise. In no event shall either party’s liability under this Agreement to the other party or to any other party whatsoever exceed in the aggregate the amount paid, under this Agreement by Customer in the 12 month period immediately preceding the event giving rise to the Claim.
10. Term and Termination.
10.1. Term. The initial term of this Reseller Agreement will be one year from the Effective Date. This Agreement will remain in effect for the Term.
10.2. Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receiving a written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
11.1. Intellectual Property. Reseller acknowledges and agrees that all intellectual property rights in the Spinbackup Products, including, but not limited to, software, graphical and text copyrights, are owned by and vested in Spinbackup in their entirety.
12.1. Independent Contractor. Nothing contained in this Reseller Agreement shall be construed to place Reseller and Spinbackup in a relationship as partners, joint ventures, joint employers, employer and employee or principal and agent, nor shall the Reseller be considered in any sense to be an affiliate or subsidiary of Spinbackup. Reseller shall not have any authority to create or assume in Spinbackup’s name or on its behalf any obligation, expressed or implied, or to act or purport to act as its agent or legally empowered representative for any purpose whatsoever. Neither party shall be liable to any third party in any way for any engagement, obligation, commitment, contract, representation or transaction or for any negligent act or omission to act for the other party except as expressly provided for herein.
12.2. Notice. All notices, requests, demands and other communications required under this Reseller Agreement shall be provided in writing and manually delivered or sent by registered or certified mail, return receipt requested, first class postage prepaid, or sent by nationally recognized overnight delivery service, in each addressed to the party entitled to receive the same at the address specified below
in the case of Spinbackup.
1426 Fillmore Street,Suite 300,
San Francisco, CA 94115
ATTN: Arman Aharonyan
and in case of the Reseller:
To the Address set forth on the Registration Page
Any such notice, shall be effective upon receipt, unless received on a day which is not a Business Day in which event it shall be deemed to be received on the next Business Day. Either Party may change its address for service from time to time by notice given in accordance with the foregoing and any subsequent notice shall be sent to the Party at its changed address.
12.3. Governing Law - Jurisdiction and Venue. This Reseller Agreement and the rights and obligations of the parties shall be governed by and construed in accordance with the laws of the State of California, regardless of the contract of law principles and the parties further agree that any action or proceeding arising out of or in connection with this Reseller Agreement shall be venued in a federal or state court of appropriate venue and subject matter jurisdiction located in the State of California, and consent to the personal jurisdiction of each said courts. Each party hereby knowingly, voluntarily, and intentionally waives the right which either party may have to a trial by jury with respect to any litigation between the parties hereto, including, but not limited to, with respect to any and all cause or causes of action, defenses, counterclaims, cross-claims, third party claims, and intervenor's claims, whether now existing or hereafter arising, and whether sounding in contract, tort, equity or otherwise, regardless of the cause or causes of action, defenses or counterclaims alleged or the connection with this Reseller Agreement or its subject matter, out of any alleged conduct or course of conduct, dealing or course of dealing, statements (whether verbal or written), or otherwise. Any party hereto may file a copy of this Agreement with any court as conclusive evidence of the consent of the parties hereto to the waiver of any right they may have to be tried by a jury.
12.4. Authority. Each party warrants that it has the full right, power, and authority to enter into this Reseller Agreement, and that this Reseller Agreement is a legal, valid and binding obligation upon such party and enforceable in accordance with its terms.
12.5. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
12.6. Refund for Paid Services. If Customer disables an Additional Service for which Customer or End User has provided payment, Spinbackup and Reseller will not be obligated to refund Customer or any End User for unused paid services. Customer will indemnify, defend, and hold harmless Spinbackup and the Reseller from and against all liabilities, damages, losses and expenses, and costs (including settlement costs and reasonable attorneys' fees) arising out of an End User's claim concerning refunds for such paid services.
12.7. Severability. If in any jurisdiction, any provision of this Agreement or its application to any Party or circumstance is restricted, prohibited or unenforceable, such provision shall, as to such jurisdiction, be ineffective only to the extent of such restriction, prohibition or unenforceability without invalidating the remaining provision hereof and without affecting the validity or enforceability of such provision in any other jurisdiction or its application to other Parties or circumstances.
12.8. Exceptions and Additions. In special circumstances, Spinbackup and the Reseller may agree on custom terms and conditions by creating an additional agreement that will be an add-on to this agreement. The full terms of the additional agreement can be specified in its framework by mutual consent of the parties.
12.9. Modifications. Spinbackup may modify these Terms from time to time only with the prior written agreement of the Reseller in each instance.
12.10. Language. The Parties have requested that this Agreement, together with any schedule, notice or other related document, be drawn up in the English language only.
Name: Helen Yevtushenko