MINDSIGHT STUDIOS INC. SOFTWARE RESELLER AGREEMENT

Last Revised: May 25, 2017

 

            THIS AGREEMENT (the "Agreement") is made and entered into as of today’s date by and between you (“RESELLER”) and MindSight Studios Inc. (MSSI), residing under the laws of Canada.

 

            WHEREAS, MSSI represents the developers as owner and licensor of the software; and

 

            WHEREAS, RESELLER is engaged in the business of marketing and selling computer software solutions; and

 

WHEREAS, DPD represents Digital Product Delivery (MSSI’s digital product distribution and e-commerce management service provider); and

 

            WHEREAS, the parties desire that RESELLER, on the terms and conditions set out herein, shall serve as a non-exclusive RESELLER of MSSI Products.

 

            NOW, THEREFORE, the parties hereto agree as follows:

 

1.         DEFINITIONS.

 

1.1       Products. "Products" shall mean the software created and owned by MSSI.

 

1.2       Customer.  "Customer" shall mean an end-user of a Product.

 

1.3       Documentation.  "Documentation" shall mean program documentation, user manuals, video tutorials and other materials describing the use, design, installation, operation and maintenance of the Products.

 

1.4       Trademarks.  "Trademarks" shall mean the trademarks, service marks, trade names and logotypes authorized from time to time by MSSI.

 

1.5       Territory. “Territory” shall mean the geographical area where the RESELLER markets and sells the products.

 

2.         APPOINTMENT

 

2.1       Appointment.  MSSI hereby appoints RESELLER, and RESELLER hereby accepts appointment, as MSSI’s non-exclusive reseller of the Products during the term of this Agreement.

 

2.2       License Grant. Subject to all the other terms and conditions of this Agreement, MSSI hereby grants to RESELLER a non-exclusive and non-transferable right and license during the term of this Agreement (i) To market, promote, advertise, sell and distribute the Products directly to Customers;  (ii) to market, promote, advertise, sell licenses related to the Products only under RESELLER’s own name and not as a subcontractor of MSSI; (iii) distribute trial evaluation licenses of the Products free of charge to prospective customers.  RESELLER shall not (a) modify the Products or create derivative works thereof; (b) merge the Products with other software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Products; (d) otherwise use, copy or distribute the Products except as expressly allowed hereunder.

 

2.3       Trademark License.   In connection with RESELLER's activities authorized pursuant to this Agreement, RESELLER is granted a non-transferable, non-exclusive right to use the Trademarks in accordance with instructions given from time to time by MSSI.  RESELLER shall not attach any additional trademarks, service marks, or trade names to any Products and shall not use MSSI’s trademarks as part of RESELLER’s trademarks, service marks or trade names or in any other manner that would tend to imply that RESELLER has an affiliation with MSSI other than as set forth in this Agreement.

 

2.4       Title.  MSSI and its suppliers retain the ownership of all right, title and interest in and to the Products, Documentation, Trademarks, and all patents, copyrights and other proprietary rights therein, and RESELLER shall acquire no rights therein except as expressly set forth in this Agreement.  MSSI shall own all rights, title and interest in all developments of and enhancements to the Products. RESELLER shall take no action, which may adversely affect or impair MSSI’s ownership of such materials and rights.

 

3.         RESELLER'S GENERAL OBLIGATIONS.

 

3.1       Distribution Rights. RESELLER is authorized to distribute and deliver Products to Customers under the terms hereof and to identify itself in the market place as a “[MSSI Product Name (eg. PlaceMaker)] authorized reseller” or “MindSight Studios authorized reseller”.

 

3.2       Marketing.  RESELLER shall promote and market the Products.  RESELLER will use reasonable efforts to further the interests of MSSI and to maximize the markets for the Products in the Territory, including all local advertising.  Furthermore, RESELLER shall use due diligence in safeguarding the interests of MSSI and shall keep MSSI informed of its activities regarding the Products.

 

3.3       Pricing.  Pricing of Products to Customers shall be at the discretion of RESELLER.

 

3.4       End-User License Agreements.  (a) RESELLER shall be responsible for presenting the most recent version of the end-user license agreement (“EULA”) for the Product to the Customer.  The RESELLER shall present the EULA to the Customer in such a way where the Customer cannot download or otherwise access the Product or license key unless they first confirm their agreement of the EULA. The RESELLER may translate the EULA into the language of their countries of distribution.  The terms and conditions of the translated EULA, including but not limited to the warranties, limitations of liability and grant of license, and intellectual property provisions, shall be at least as restrictive as MSSI’s original EULA for the Product. The official language of the product EULAs is English. If there is a conflict between the English language version and any translation, the English language version will control. The most recent version of the MSSI EULA for the respective product is available for the RESELLER from the online RESELLER portal. 

 

3.5       Enforcement of End User License Agreement. If RESELLER learns of any breach of a EULA that could damage MSSI (or its third party licensors), RESELLER shall immediately notify MSSI in writing of the breach and corrective action taken. The execution of these duties by RESELLER shall not preclude MSSI from also taking corrective action.

 

3.6       Compliance with Laws.  At all times, RESELLER shall comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement.  RESELLER shall indemnify MSSI for any costs, expenses, injury and damage caused to MSSI as a result of RESELLER's failure to comply with applicable laws, rules, ordinances, decrees and regulations.

 

3.7       Other Obligations.  RESELLER shall have the following specific obligations with respect to the marketing and distribution of Products:

3.7.1    To collect and provide MSSI with correct customer information: e-mail address, customer name, company name (optional), country (optional)

 

3.8       Customer Satisfaction. RESELLER agrees that high Customer satisfaction is a condition of its continued authorization by MSSI. In addition, in order to help ensure high Customer satisfaction, RESELLER agrees:

 

·           To report to MSSI promptly and in writing all suspected and actual problems with any Product;

 

·           To conduct business in a manner that reflects favorably at all times on the products, goodwill and reputation of MSSI;

 

·           To avoid deceptive, misleading or unethical practices that are or might be detrimental to MSSI or the Products;

 

·           To refrain from making any false or misleading representations with regard to MSSI or the Products; and

 

·           To refrain from making any representations, warranties or guarantees to customers with respect to the specifications, features or capabilities of the Products that are inconsistent with the literature distributed by MSSI.

 

4.         MSSI’S GENERAL OBLIGATIONS.

 

4.1       Documentation.  The Documentation shall be made available to the RESELLER and shall be the most recent version distributed by MSSI in the English language in the form of Microsoft Word compatible and PDF files.  RESELLER acknowledges that the Documentation is protected by copyright and may be reproduced or translated only as permitted in this Agreement.

 

4.2       Marketing Materials. MSSI agrees to provide, upon request, internally developed Product marketing communications materials via electronic media in the English language for translation and duplication, as appropriate, to RESELLER.  MSSI hereby grants to RESELLER the non-exclusive, non-transferable right to reproduce and use any such materials during the term of this Agreement, but not to modify such materials without prior written permission from MSSI.

 

4.3       Delivery.  MSSI shall deliver, upon request, not for resale licenses of the Product to RESELLER.

 

5.         SUPPORT AND MAINTENANCE; TRAINING

 

5.1       Support with respect to Customers. RESELLER shall be responsible for providing first tier support to Customers for questions related to software installation, interpretation of the EULA, and license activation.  MSSI shall provide RESELLER with second tier support.

5.2       Training. MSSI can provide training to the RESELLER on request relating to MSSI products or usage of the reseller portal. RESELLER shall bear all expenses incurred by or on behalf of its own staff in connection with the training.

 

5.3       Updates and Upgrades.  MSSI will make Product Updates and Upgrades available to RESELLER when they become commercially available. At such time as an Update or Upgrade is made available, RESELLER will cease marketing and distributing the previous version of the Product upon notice of this Update or Upgrade by MSSI.  MSSI may choose to cease support of any version of the Product at any time after a new version is made available and RESELLER has had reasonable time to make such Update and Upgrades available to their Customers.

 

6.         ORDERING

 

6.1.   Reseller Accounts.   RESELLER must provide an email address to MSSI that will become the key to the RESELLER’s account with MSSI.  This email address will be used for sales accounting and should not be an address that is linked to a particular employee of the RESELLER. 

 

6.2   Ordering.  RESELLER is permitted to use the following methods to order products from MSSI.

 

1.       DPD Direct Sale (RESELLER orders on behalf of Customer from MSSI reseller portal)

a.       RESELLER orders through MSSI reseller portal at a discounted price.  Customer information must be entered into the order form.

b.       After completing the order, the license will be automatically processed by MSSI and the license info will be emailed to the RESELLER within two business days.

c.       RESELLER is responsible for delivering the license information to the Customer.

 

2.       Anonymous Product Key Redemption

a.       RESELLER orders anonymous products keys from an approved MSSI DISTRIBUTOR.

b.       RESELLER uses the MSSI reseller portal to generate an end-user license from the supplied product key.

c.       After generating a license from the supplied product key, the license will be processed by MSSI and the license info will be emailed to the RESELLER within two business days.

d.       RESELLER is responsible for delivering the license information to the Customer.

 

3.       RESELLER store integration API

a.       This API integration service is available upon request.

b.       RESELLER will be invoiced monthly for the discounted RESELLER price for the Products.

 

7.         PAYMENT TERMS.

 

7.1       RESELLER agrees to purchase Products from MSSI at the rate of 75% of the listed price on the MSSI store.  Prices for products on MSSI store are subject to change.  MSSI will notify RESELLER 2 weeks in advance of changes to product pricing.

 

7.2       RESELLER will be invoiced for unpaid Products on a monthly basis and shall pay the undisputed invoice within 60 days of receipt the invoice.  

 

 

8.         LIMITATION OF LIABILITY.

 

8.1       IN NO EVENT SHALL MSSI AND IT LICENSORS OR RESELLER BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE. 

 

   8.2  EXCEPT AS SET FORTH IN SECTION 8.1, IN NO EVENT SHALL MSSI’S OR ITS LICENSORS’ TOTAL CUMULATIVE LIABILITY FOR ANY DAMAGES TO RESELLER OR ANY OTHER ENTITY EVER EXCEED THE AGGREGATE FEES PAID BY RESELLER TO MSSI.

 

9.         CONFIDENTIALITY.         

 

9.1       Non Disclosure.  The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence.  Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information.  "Confidential Information" means the information and materials noticed or marked by MSSI or RESELLER as confidential and proprietary, or which should reasonably be understood as confidential and proprietary given the nature of the information or materials.  "Confidential Information" does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without fault of the receiving party, (iii) is independently developed by the receiving party, (iv) is approved for release in writing by the disclosing party, (v) is disclosed without restriction by the disclosing party to a third party, or (vi) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties.

 

9.2       Legal Action.  Upon request, either party shall cooperate fully with the other party in any and all legal actions taken by the other party to protect its rights in the Products and in the other party’s Confidential Information.

 

10.       TERM AND TERMINATION.

 

10.1     Term.  This Agreement shall take effect on the Effective Date and shall continue in force for two years (the “Initial Term”).  Thereafter it will be automatically renewed for one (1) year renewal terms unless terminated by either party with 60-day notice prior to the end of the initial or any renewal term.

 

10.2     Termination.  Notwithstanding the provisions of the foregoing, this Agreement may be terminated in accordance with the following provisions:

 

12.2.1  Either party hereto may terminate this Agreement at any time by giving notice in writing to the other party, which notice shall be effective upon receipt, should the other party be in material breach of this Agreement and fail to cure such breach within thirty (30) days of written notice thereof, file a petition of any type as to its bankruptcy, be declared bankrupt, become insolvent, make an assignment for the benefit of creditors, or go into liquidation or receivership or otherwise lose control over all or substantially all of its business.

 

12.2.2  Either party may terminate this Agreement for any reason only after the expiration of the Initial Term upon 90-day written notice to the other party.

 

12.3     Rights and Obligations on Termination or Expiration.

 

12.3.1     Termination or expiration of this Agreement shall not release either party from the obligation to make payment of all amounts then or thereafter due and payable.

 

 

13.       GOVERNING LAW

 

This Agreement shall be governed by, and interpreted and construed in accordance with, the substantive laws of Canada, conflicts of law excluded.  Both parties hereby irrevocably submit any disputes under this Agreement to the jurisdiction of the state and Federal courts located in Ottawa, Canada.

 

14.       MISCELLANEOUS.

 

14.1     Relationship.   This Agreement does not make either party the employee, franchisee, agent or legal representative of the other for any purpose whatsoever.  Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party.  In fulfilling its obligations pursuant to this Agreement each party shall be acting as an independent contractor.

 

14.2     Assignment.  RESELLER shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of MSSI.  Any prohibited assignment shall be null and void. MSSI may transfer its rights and obligations hereunder to any company or other legal entity that is controlled by, controls or is under common control with MSSI. This Agreement shall inure to the benefit of and shall be binding on the successors and permitted assigns of the parties. 

 

14.3     Entire Agreement.  This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous agreements by and between the parties as well as all proposals, oral or written and all negotiations, conversations or discussions heretofore had between the parties related to the subject matter of this agreement.  The parties acknowledge that they have not been induced to enter into this agreement by any representations or statements, oral or written, not expressly contained herein.

 

14.4     Severability.  In the event that any of the terms of this Agreement are in conflict with any applicable rule of law or statutory provision or otherwise unenforceable under applicable laws or regulations of any government or subdivision thereof, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise inseparable from, the remainder of this Agreement.

 

14.5           Delay or Omission Not Waiver.  No delay or failure by either party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.

           

The parties have caused this Agreement to be executed as of the date that the RESELLER acknowledges agreement by clicking the applicable checkbox or button in MSSI’S RESELLER online portal.