RESELLER SERVICES AGREEMENT
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS BEFORE USING SPINONESERVICES. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, PLEASE DO NOTPROCEED WITH ORDERING OR USING THE SERVICES.
BY CLICKING "I ACCEPT", ORDERING OR USING SPINONE SERVICES, YOU, THE RESELLER,AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS MASTER SERVICEAGREEMENT, SPINONE ACCEPTABLE TERMS OF SERVICE POLICY AND SPINONE PRIVACYPOLICY, EACH OF WHICH HAVE BEEN READ AND ACCEPTED BY YOU, THE RESELLER, DURINGTHE REGISTRATION PROCESS.
This Reseller Services Agreement (the "Agreement") is entered into by and between Spin Technology, Inc.,a corporation, with the office at 2100 Geng Rd Suite 210, Palo Alto, CA 94303, USA ("SpinOne") and theentity agreeing to these terms ("Reseller"). This Agreement is effective as of the date Reseller clicks the "IAccept" button below (the "Effective Date"). If you are accepting on behalf of the Reseller, you representand warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to theseterms and conditions; (ii) you have read and understood this Agreement; and (iii) you agree, on behalf ofthe party that you represent, to this Agreement. If you do not have the legal authority to bind the Reseller,please do not click the "I Accept" button below.
A. SpinOne offers certain SaaS data backup, recovery and cybersecurity services for SaaS apps includingGmail messages backup and restore, Google Drive files backup and restore, Google Calendar eventsbackup and restore, Google Contact details backup and restore, Google Sites items backup and restoreand various cybersecurity solutions for Google Apps, as well as a proprietary control panel to permit theReseller to monitor and control the use of SpinOne services by its End Users, whose proprietary softwareas a service is available for annual or monthly subscription, provided by SpinOne and third party suppliers(collectively the “SpinOne Products”).
B. The Reseller desires, and SpinOne is willing to grant the Reseller, the right to resell the SpinOneProducts provided by SpinOne as SaaS accounts to its End customers in accordance with the terms andconditions of this Agreement.
NOW, THEREFORE, in consideration of the promises, mutual covenants and agreements set forth in thisAgreement, and other good and valuable consideration, the receipt of which is hereby acknowledged, theParties agree as follows:
1. Definitions. All initialized capitalized words used herein, unless the context requires otherwise, shallhave the following meanings:
1.2. “End user” means any potential Customer of SpinOne 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 SpinOne 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 SpinOne, unless terminated earlier pursuant to this Reseller Agreement.
1.6. “Commission” means (20%) of the Price unconditionally paid to and received by SpinOne 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. In some cases, the starting commission may vary and can be a subject of a note in the confirmation email that will be emailed to the Reseller after they sign the current agreement. The email 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 SpinOne 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 SpinOne to each reseller. The Price shall be determined on the basis of SpinOne then current Price list as set forth on SpinOne Web Site and does not include VAT/Sales tax, if applicable.
2. Reseller Services.
2.1. Efforts. The Reseller shall use its good faith best efforts to solicit, promote and sell SpinOne 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 SpinOne may include Reseller’s name, logo or Brand Features in a list of SpinOne customers, online or in promotional materials. The Reseller also agrees that SpinOne may verbally reference the Reseller as a customer of the SpinOne Products or services that are the subject of this Agreement.
2.3. Marketing Standards. At all times, the Reseller shall conduct its business in a manner that reflects favorably on SpinOne and SpinOne good name, goodwill and reputation. The Reseller shall ensure that its employees and agents maintain the highest level of market standard, of integrity and professionalism in advertising SpinOne Products.
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 (i) engage in deceptive, misleading or unethical practices that are or might be detrimental to SpinOne or any SpinOne Products, (ii) make false or misleading representations with regard to SpinOne or any SpinOne Product, (iii) publish or employ, or cooperate in the publication or employment of any misleading or deceptive advertising material with regard to SpinOne or any SpinOne 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 SpinOne or any SpinOne Product that are inconsistent with the representations made by SpinOne.
3.3. Price to be Paid to SpinOne. The Reseller is not authorized to collect any Price, fees, payments, reimbursements, refunds, or any monetary amount owed to or paid by or to SpinOne 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. Notification of Events. The Reseller shall promptly notify SpinOne of any important circumstances or events that may affect the Reseller’s marketing efforts and which may bear upon the potential negotiation and execution of the User Agreement.
3.5. Order Processing. The Reseller shall process orders from End users in accordance with the provisions of section 4
3.6. Inspection and Audit. SpinOne shall have the right, from time to time, to physically inspect and audit the Services being performed by the Reseller and to inspect all books, records and other data or information, including electronic data, relevant to provision of Services or 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.
4. Pricing and Order Processing.
4.1. Customer Pricing. All the subscriptions indicated at the official SpinOne 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 SpinOne Web Site.
4.2. End Users and Order Processing. Purchases of SpinOne Product or Services will be made solely through online web based store domain maintained by SpinOne, with unique reseller code generated by SpinOne 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 SpinOne until after full payment is received by SpinOne.
5.1. Calculation of Commission to be paid to the Reseller. SpinOne shall pay the Commission to the Reseller upon receipt of an unconditional payment of the Price from a Customer sourced by the Reseller during the Term of this Reseller Agreement.
5.2. Price Adjustment by the Reseller. The Reseller may propose to SpinOne 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 SpinOne 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 One Thousand Dollars per month ($1,500) or more, e.g. large corporation or educational organization or government organization (a “Large Customer”), the Reseller shall immediately inform SpinOne of the name and address of the Large Customer. SpinOne 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 SpinOne.
5.4. Timing of Payment of Commission. Commission earned by the Reseller shall be calculated by SpinOne on a quarterly calendar basis and paid to the Reseller within thirty (30) days of the end of the calendar quarter, subject to reduction for refunds, cancellations and adjustments in price whether or not arising during the calendar quarter for which the Commission is being calculated. 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, SpinOne agrees to make available to the Reseller those records and accounting regarding its calculation of the Commission. The Reseller shall bear the costs of such an audit should SpinOne’s determination of the Commission be shown to have been accurate.
5.6. Wire Fees. SpinOne 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. SpinOne shall make available to the Reseller its then current standard technical, technical support, marketing support and other services related to the SpinOne Product. All such services shall be made available in accordance with and shall be subject to SpinOne then current standard terms and conditions applicable to the services. SpinOne’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. SpinOne hereby grants to the Reseller a non-exclusive, non-transferable and terminable license to (i) distribute and market SpinOne Products and Services to End Users and Customers, and (ii) maintain, support, use for demonstration purposes and display SpinOne Products. Reseller shall have no rights to change, modify, adapt, or improve any SpinOne marketing materials or SpinOne Products without the prior written consent of SpinOne.
7.2. Grant of Trademark License. SpinOne hereby grants to the Reseller a non-exclusive, non-transferable, terminable, royalty-free right and license (the “Trademark License”) to use the name SpinOne and all intangible proprietary assets of SpinOne, including trademarks, trade names, logos, and color schemes (collectively, the “SpinOne 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 SpinOne Products. Reseller shall not use the SpinOne Marks for any purpose not specifically granted under this Reseller Agreement.
7.3. Ownership of SpinOne Marks. Reseller acknowledges that SpinOne is the owner of the SpinOne Marks and Reseller agrees that during the Term of this Reseller Agreement:
(a) All use of the SpinOne Marks by the Reseller shall insure the benefit of SpinOne.
(b) The Reseller shall not contest the ownership of the SpinOne Marks by SpinOne or the validity of any rights claimed by SpinOne in the SpinOne Marks or registrations thereof.
(c) The Reseller shall not do or cause anything that might impair SpinOne’s ownership or rights in the SpinOne Marks.
(d) Nothing in this Reseller Agreement shall give the Reseller any right, title or interest in the SpinOne Marks other than the right to use the SpinOne Marks in accordance with this Reseller Agreement.
(e) The Reseller will not enter into a sublicense agreement of the SpinOne Marks or permit or authorize any other person or entity to use the SpinOne Marks, without the prior written consent of SpinOne, which consent may be withheld by SpinOne, at SpinOne’s sole discretion.
7.4. Form of Use of SpinOne Marks. The Reseller is authorized to use the SpinOne Marks in marketing materials related to the SpinOne Products, including the use of the SpinOne 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 SpinOne Marks only in the form and manner provided herein and shall include appropriate symbols in conjunction with all uses of the SpinOne Marks. SpinOne has the right to appropriate all advertising and other promotional materials on which any SpinOne Mark appear, and Reseller specifically undertakes, prior to using of the SpinOne Marks in connection therewith, to amend to the reasonable satisfaction of SpinOne any materials that are not approved by SpinOne.
8. DISCLAIMER OF WARRANTIES
8.1. SPINONE MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND CONCERNING THE SPINONE 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.
8.2. 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 SPINONE. RESELLER SHALL NOT BE AUTHORIZED TO MAKE ANY WARRANTY, GUARANTEE, REPRESENTATION OR CONDITION, WHETHER WRITTEN OR ORAL, ON BEHALF OF SPINONE. THE RESELLER SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES FOR THE SOFTWARE GIVEN BY THE RESELLER.
9.1. Claim. Claim. The Reseller hereby agrees to indemnify and hold harmless SpinOne 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 Reseller or any of the Reseller’s employees, representative or agent that are (i) performed or omitted to be performed by the order and under control of the Reseller, (ii) performed or omitted to be performed pursuant to the direction or with the actual or implied consent of the Reseller or its representatives, employees or agents, and (iii) caused by the Reseller’s breach of this Reseller Agreement ( including the Trademark License), or caused by the Reseller’s violation of any federal, state, or local law, regulation or ordinance. The Reseller shall have the sole authority to conduct the defense of or settle any Claim with the understanding, however, that SpinOne shall have the right to approve counsel selected by the Reseller for such defense, which approval shall not be unreasonably withheld and, further, SpinOne 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 SpinOne 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. 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 SpinOne’s liability under this Agreement exceed 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 as decided upon between the Reseller and SpinOne. 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. Non-Competition and Non-Solicitation.
11.1. Non-Competition and Non-Solicitation. In consideration for the execution of this Reseller Agreement by SpinOne, the Reseller agrees that for the Term of this Agreement and for the period of one year after its expiration or termination for any reason, the Reseller shall not, on its own behalf or on behalf of any person or entity, directly or indirectly, in any capacity whatsoever, including as an employer, employee, principal, agent, joint venture, partner, shareholder or other equity holder, independent contractor, licensor, licensee, franchisor or franchisee, distributor, reseller, supplier, vendor, trustee or by and through any corporation, company, cooperative partnership, trust, or other entity (i) carry on, be engaged in, have any financial or other interest in any operation providing the same or similar services as SpinOne, and.or (ii) carry on, be engaged in, solicit, attempt to solicit or accept business from any Customer or End User for the provision of the same or similar services as those provided by SpinOne.
12. Intellectual Property.
12.1. Intellectual Property. Reseller acknowledges and agrees that all intellectual property rights, including, but not limited to, software, graphical and text copyrights in connection with SpinOne, are owned by and vested in SpinOne in their entirety.
13.1. Independent Contractor. Nothing contained in this Reseller Agreement shall be construed to place Reseller and SpinOne 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 SpinOne. Reseller shall not have any authority to create or assume in SpinOne’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.
13.2. 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 case addressed to the party entitled to receive the same at the address specified below
in the case of SpinOne:
Spin Technology, Inc.
2100 Geng Rd Suite 210,
Palo Alto, CA 94303, USA
ATTN: Darren Kimura
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.
13.3. 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 international laws of The Commonwealth 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 Commonwealth 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.
13.4. 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.
13.5. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
13.6. Refund for Paid Services. If Customer disables an Additional Service for which Customer or End User has provided payment, SpinOne and Reseller will not be obligated to refund Customer or any End User for unused paid services. Customer will indemnify, defend, and hold harmless SpinOne 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.
13.7. 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 provisions hereof and without affecting the validity or enforceability of such provision in any other jurisdiction or its application to other Parties or circumstances.
13.8. Modifications. SpinOne may modify these Terms from time to time.
13.9. 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.
Spin Technology, Inc.