White Label - Reseller Legal Agreement
Skyy has developed certain proprietary hosted services under the Callfire brand allowing customers to create and manage their own call center applications via the Internet (the Callfire components, individually and collectively, and the documentation for such components are collectively known as “Callfire”). Reseller and Skyy have agreed that Reseller shall act as a value-added reseller of licenses of Callfire and shall provide certain consulting services in connection with Callfire, all in accordance with the terms and conditions set forth below.
ARTICLE I: TERMS OF DISTRIBUTION OF CALLFIRE
1. Provision of Callfire Account by Skyy. Upon execution of this Agreement by Reseller and 1-year annual subscription payment of $499.99 is received, Skyy shall provide Reseller with a Reseller-specific master account to the Callfire system, through which Reseller may purchase minutes of use on the Callfire system for resale. Notwithstanding any other provision of this Agreement, Reseller shall not be licensed under this Agreement to utilize such minutes for its own calls, but shall solely be permitted to utilize Callfire in connection with the demonstration and support of Callfire for prospective and licensed End-Users.
2. Provision of Callfire to End-Users. Reseller shall have the limited right during the term of this Agreement to resell minutes of use on Callfire to End-Users subject in all cases to the then-current license published by Skyy applicable to Callfire (the “License”). (The current such License is attached hereto as Exhibit A.) All Licenses to Callfire shall be issued directly from Skyy to End-User. In no event shall Reseller make any changes to the License which increase the obligations and/or liability of Skyy, including without limitation modifying the exclusions of warranties or limitations on remedies or damages. In addition, Skyy hereby grants Reseller a license to bundle Callfire together with products owned by Reseller and/or third parties for resale to End-Users (a “ Bundle”), pursuant to the other terms and conditions of this Agreement.
3. Limited License to Skyy Intellectual Property. Reseller agrees that Skyy owns and retains all right, title and interest in and to all patent rights, trademarks, trade names, inventions, copyrights, ideas, methodologies, know-how and trade secrets and any other proprietary rights it may own or in which it may otherwise have any interest, including but not limited to those relating to Callfire. The use by Reseller of any of these property rights is licensed hereunder and is authorized only for the purposes herein set forth and upon termination of this Agreement for any reason such license and authorization will cease. Reseller shall not remove, alter, cover or otherwise block any copyright notices or other proprietary rights notices placed on or embedded in Callfire by Skyy.
4. Skyy Review of Marketing and Other Material. Reseller shall not publish or otherwise distribute any marketing or other materials created or modified by or on behalf of Reseller and containing any of Skyy’s proprietary materials or information and/or describing Callfire without the prior written approval of Skyy.
ARTICLE II: COMPENSATION
1. Skyy Compensation. Reseller shall pay Skyy the per-minute amounts for Callfire in accordance with the compensation schedule set forth hereto as Exhibit B, as the same may hereafter be revised upon written notice in Skyy’s sole discretion.
2. No Payment from Skyy. Reseller shall be entitled to no royalty, reimbursement of expense, or any other payment from Skyy in connection with this Agreement. Except as may be otherwise expressly agreed in writing by Skyy, Reseller’s sole compensation in connection with its resale of Callfire to End-Users under this Agreement shall be the difference between (a) any licensing or other fee received by Reseller from End-Users and (b) the per-minute fee owed by Reseller to Skyy for each minute of Callfire service utilized by an End-User to which Reseller as sold access to Callfire under this Agreement.
ARTICLE III: SUPPORT
1. Support of End-Users by Reseller. Reseller shall be the sole provider of End-User support for Callfire.
2. Support of Reseller by Skyy. Skyy shall provide reasonable telephone and online technical support to Reseller during Skyy’s standard business hours throughout the term of this Agreement, to assist Reseller in Reseller’s use and marketing of Skyy and to aid Reseller in fulfilling its support obligations to End-Users.
3. Training/Certification Services. Skyy may at its option offer additional support-related services to Reseller, including but not limited to training on the use of Callfire and a certification program for marketing and/or support of Callfire, at a price to be determined by Skyy.
ARTICLE IV: TERM AND TERMINATION
1. Term. The term of this Agreement will commence as of the date set forth above and will continue until terminated by either party in writing not less than sixty (60) days prior to the date of termination. The rights, duties, and responsibilities of the parties hereto shall continue in full force until the expiration of the term.
2. Additional Termination Rights. This Agreement may also be terminated in accordance with any of the following provisions:
a) Either party may terminate this Agreement at any time where the other party is in material breach of its obligations under this Agreement, and, if such breach is susceptible of cure, such breaching party fails to cure such breach within 30 days after written notice thereof is given by the non-breaching party; or
b) Either party may, at its option, immediately terminate this Agreement if: a receiver is appointed for the other party or its property; the other party becomes insolvent, unable to pay its debts as they mature, or makes an assignment for the benefit of its creditors; the other party seeks relief or if proceedings are commenced against the other party or on its behalf under any bankruptcy, insolvency or debtor’s relief law, and such proceedings have not been vacated or set aside within 60 days from the date of commencement thereof; or if the party is liquidated or dissolved.
3. Survival. After the expiration or termination of this Agreement in accordance with its terms, no rights, liabilities or obligations shall arise out of this relationship or continue; except that any End-User licenses issued for Callfire by Skyy pursuant to this Agreement prior to the effectiveness of such expiration or termination shall continue in accordance with the terms thereof. Notwithstanding the foregoing, it is agreed that the provisions regarding licensing; compensation; confidentiality; warranties; indemnification and limitation on liability set forth herein will survive any termination or expiration of this Agreement.
ARTICLE V: WARRANTIES AND INDEMNIFICATION; LIMITATION ON LIABILITY
1. By Reseller. Reseller warrants and represents to Skyy that it has all necessary rights, power and authority to execute and deliver this Agreement and perform its obligations hereunder, and nothing contained in this Agreement or in the performance of this Agreement will place it in breach of any other contract or obligation. Reseller further warrants and represents to Skyy that it is and shall at all times remain in full compliance with all applicable laws and regulations with regard to its performance under this Agreement and its resale of Callfire, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning telemarketing and Internet marketing, and that it shall not advise nor knowingly assist End-Users in violating any such laws or regulations. Reseller hereby indemnifies and shall defend and hold harmless Skyy, its affiliates, clients and its and their respective officers, directors, employees and agents from and against all liability, damages, loss, cost or expense (including but not limited to reasonable attorneys' fees and expenses) arising out of or in connection with any breach by Reseller of its warranties hereunder or other breach of this Agreement or performance hereunder or under any agreement with any End-User.
2. By Skyy. Skyy warrants and represents to Reseller that it owns or has all other necessary interests in Callfire and has all necessary rights, power and authority to execute and deliver this Agreement and perform its obligations hereunder and to grant the rights granted under this Agreement to Reseller; and that nothing contained in this Agreement or in the performance of this Agreement will place it in breach of any other contract or obligation. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SKYY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF CALLFIRE FOR A PARTICULAR PURPOSE OR THAT CALLFIRE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION OR AT A PARTICULAR LEVEL OF SERVICE. Skyy hereby indemnifies and shall defend and hold harmless Reseller, its affiliates, and its and their respective officers, directors, employees and agents from and against all liability, damages, loss, cost or expense (including but not limited to reasonable attorneys' fees and expenses) arising out of or in connection with any breach by Skyy of its warranties hereunder.
3. Indemnification Procedure. Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such claim (unless failure to give such prompt notice shall not materially prejudice the indemnitor’s rights) and shall give the indemnitor reasonable opportunity to defend and/or settle the claim at its own expense and with counsel of its own selection. The indemnitee shall cooperate with the indemnitor, shall at all times have the right fully to participate in such defense at its own expense and shall not be obligated, against its consent, to participate in any settlement which it reasonably believes would have an adverse effect on its business. An indemnitee shall not make any settlement of any claims which might give rise to liability of an indemnitor hereunder without the prior written consent of the indemnitor.
4. IN NO EVENT SHALL SKYY BE LIABLE TO RESELLER FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DIRECT, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF THIS AGREEMENT, EVEN IF SKYY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL SKYY’S AGGREGATE LIABILITY FOR ANY REASON ARISING OUT OF THESE TERMS FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, MISREPRESENTATION, OR OTHERWISE, EXCEED THE AMOUNT PAID BY RESELLER TO SKYY HEREUNDER.
ARTICLE VI: CONFIDENTIALITY
1. Any information relating to or disclosed in the course of this Agreement by either party (the "Disclosing Party") to the other party (the "Receiving Party"), which is or should be reasonably understood to be confidential or proprietary to the Disclosing Party, including but not limited to, technical and business information relating to the Disclosing Party’s products, research and development, production, costs, engineering processes, profit or margin information, finances, customers, marketing, and future business plans as well as the material terms of this Agreement shall be deemed "Confidential Information" of the Disclosing Party and shall not be used, disclosed or reproduced by the Receiving Party without the Disclosing Party's prior written consent except as provided herein.
2. Neither party shall disclose any such Confidential Information of the other party to any person outside of its employ, unless to do so is required in connection with the performance of its services, and in such event said party agrees to utilize its best efforts to obtain from any such third party a similar agreement to maintain such information as confidential. Each party shall obtain from its employees, who in the performance of services hereunder may become privy to any Confidential Information, a similar covenant and agreement to keep confidential all such information.
3. Confidential Information shall not include information (a) already lawfully known to or independently developed by the Receiving Party, (b) disclosed in published materials, (c) generally known to the public, (d) lawfully obtained from any third party, or (e) required to be disclosed by law.
ARTICLE VII: GENERAL
1. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party; provided, that the party interfered gives the other party written notice thereof within ten (10) working days of any such event or occurrence.
2. This Agreement does not constitute and shall not be construed as constituting an agency, partnership or joint venture between Reseller and Skyy. Neither party shall have the right to act on behalf of or to contractually obligate or bind the other in any manner whatsoever. Reseller acknowledges that all services performed by it or its employees hereunder shall be as an independent contractor.
3. Reseller may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, including to any End-User, without the prior written consent in each instance of Skyy.
4. This Agreement shall be construed in accordance with the internal laws of the State of California. In the event that a dispute shall arise under this Agreement which cannot be resolved following good-faith negotiation between the parties, the exclusive forum for any litigation arising out of this Agreement shall be the state and federal courts located in the State of California, City of Los Angeles.
5. Skyy shall not be prohibited from distributing or licensing Callfire by itself in any manner, including but not limited to entering into other value-added reseller or distribution agreements on any terms whatsoever.
6. If any provision of this Agreement is held to be illegal, unenforceable or invalid, no other provision of this Agreement shall be affected thereby, and the illegal, unenforceable or invalid provision shall be deemed modified to the least extent necessary to become legal, enforceable and valid and encompass the intent of the parties.
7. This Agreement, including all Exhibits hereto, represents the entire understanding between Reseller and Skyy regarding the subject matter hereto and supersedes all prior or contemporaneous agreements, oral or written, with respect to such subject matter. No waiver, modification, or addition to this Agreement shall be valid unless in writing and signed by the parties hereto.
