RESMAN+ INNOVATION NETWORK
CERTIFIED CHANNEL PARTNER TERMS & CONDITIONS
By completing the ResMan+ Innovation Network application online, the applying entity (“Company”) agrees to the following Terms & Conditions of ResMan, LLC’s (“ResMan”) CERTIFIED CHANNEL PARTNER AGREEMENT (“Agreement”). This Agreement is entered into effective as of the date on the online submission form. ResMan, LLC and the vendor applying to the program are referred to as the “Parties”. ResMan and Company are each a “Party” hereto, and collectively, they are the “Parties” hereto.
ResMan provides the ResMan Platform (defined below) and related products and services to customers in the residential real estate industry;
Company provides products and services that are compatible with the ResMan Platform and desires to offer such products and services to customers through the ResMan Platform; and
The Parties wish to provide for the marketing of their respective products and services to customers and for the integration of Company’s compatible Products (defined below) with and into the ResMan Platform on and subject to the terms and conditions contained in this Agreement.
Accordingly, the Parties hereby agree as follows:
SECTION 1. – DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement have the following meanings:
- “Affiliate” means any corporation or other entity that directly or indirectly controls, is controlled by, or is under the common control with a Party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of a an entity, whether through ownership of voting securities or equity interests, through common directors, trustees or officers, by contract or otherwise.
- “Customer” means each individual or entity acquired during the Term that receives, accesses or uses Products and/or the ResMan Platform from Company or ResMan, respectively.
- “Intellectual Property Rights” means any and all intellectual property rights throughout the world, including, without limitation, any and all patents, copyrights, trademarks, applications for any of the foregoing, trade secret rights, moral rights, unregistered design rights, rights to know-how, inventions, and algorithms, and any and all similar or equivalent rights throughout the world.
- “Malicious Code” means any undocumented malicious data, code, program, or other internal component (e.g., computer worm, computer time bomb or similar component), which could damage, destroy, alter or disrupt any computer program, firmware or hardware, or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by the ResMan Platform or ResMan’s computer systems in any manner.
- “Marks” means all trademarks, trade names, service marks, designs or design marks, logos, designations and symbols, whether or not registered in the United States, that are now or may hereafter be owned, controlled, adopted or used by a Party or otherwise associated with the business, products or services of the Party.
- “Products” means the products and services offered by Company to Customers and prospective Customers that are compatible for use with the ResMan Platform.
- “Properties” (or “Property,” as applicable) means the real property or properties on which Units are located.
- “ResMan Platform” means the ResMan® residential property management software application and any other software applications which are made available by ResMan as a software as a service (SaaS) offering via a customer log-in to a web access designated by ResMan.
- “ResMan Technology” means: (i) ResMan technology, methodologies and intellectual property (including, without limitation, products, software tools, hardware designs, algorithms, software (in source and object code forms), architecture, objects and documentation (both printed and electronic) existing as of the Effective Date or otherwise arising outside of this Agreement; (ii) all derivatives, improvements, enhancements or extensions of any of the foregoing, whether or not conceived, reduced to practice or developed during the term of this Agreement; and (iii) all Intellectual Property Rights relating to any of the foregoing.
- “Services” (or “Service” as applicable) means the ResMan Platform and/or the Products.
- “Term” has the meaning specified in Section 9.1
- “Units” (or “Unit,” as applicable) means the individual multi-family rental dwellings located on a Property owned by Customer or managed by Customer on behalf of the property owner thereof.
- “Certified Partner” means a Company that ResMan has validated meets the minimum technical requirements to utilize the ResMan Platform as described but not limited to the requirements in section 3.2.1.
- “Premier Partner” means a Company that ResMan has selected for an enhanced relationship including the benefits of the Certified Partners as well as preferential treatment in the ResMan marketing practices, and in the ResMan Platform as specified in section 4.1.
- “Referral Date” means the date and time a Referral is accepted by ResMan in accordance with Section 4.3.
SECTION 1. – MARKETING AND SALES.
- Mutual Cooperation. During the Term of this Agreement, each of the Parties agrees, at its sole cost and expense, to mutually cooperate with the other Party to promote the other Party’s products and services to existing and prospective Customers, including, but not limited to, introducing, at each Party’s discretion, the ResMan Platform and the Products to targeted Customers.
- Trademarks and Logos.
- ResMan Marks. ResMan hereby grants to Company the limited, revocable right to use during the Term the ResMan Marks and logos solely in connection with the activities of Company that are permitted under this Agreement. Company shall submit to ResMan for its written approval, prior to any use, display, distribution or disclosure, any and all website and other advertising, promotion, publicity or other materials in which the ResMan Marks are used. Company shall not use such materials unless and until it has received the written approval of ResMan. ResMan has the right, in its sole discretion, to require the correction or deletion of any misleading, false or objectionable material from any such advertising, promotion, publicity or other materials.
- Company Marks. Company hereby grants to ResMan the limited, revocable right to use during the Term the Company Marks and logos solely in connection with the activities of ResMan that are permitted under this Agreement. ResMan shall submit to Company for its written approval, prior to any use, display, distribution or disclosure, any and all website and other advertising, promotion, publicity or other materials in which the Company Marks are used. ResMan shall not use such materials unless and until it has received the written approval of Company. Company has the right, in its sole discretion, to require the correction or deletion of any misleading, false or objectionable material from any such advertising, promotion, publicity or other materials.
- Restrictions on Use. Neither Party shall use, display or exploit in any manner any of the other Party’s Marks, except as provided in this Section 2.2 and except in such manner and media as the other Party consents in writing, which consent may be revoked or modified upon written notice. Without limiting the generality of the foregoing, all such use of the ResMan Marks and Company Marks by Company and ResMan, respectively, must be in a manner as provided in this Agreement or as mutually agreed upon in writing by the Parties, which, in any event, must be consistent with each such Party’s standard policies, if any, regarding advertising and trademark usage that are provided to the other Party from time to time.
- Parties’ Obligations. Subject to the terms and conditions of this Agreement, each Party agrees as follows:
- ResMan agrees to identify Company, and Company agrees to be identified, including the use of its Marks, in ResMan’s marketing materials, including on any website owned or operated by or for ResMan, for the purpose of marketing and promoting Company’s Products to Customers, provided that such materials are approved in advance in writing by Company pursuant to Section 2.2.2 above.
- Company agrees to identify ResMan, and ResMan agrees to be identified, including the use of its Marks, in Company’s marketing materials, including on any website owned or operated by or for Company, for the purpose of marketing and promoting the ResMan Platform to Customers, provided that such materials are approved in advance in writing by ResMan pursuant to Section 2.2.1 above.
- Notwithstanding the foregoing, each Party agrees that any reference to the other Party on such Party’s website or in such Party’s other marketing materials is subject to the other Party’s prior written approval.
- Each Party may update, change, modify or add to its Marks and other graphics that are used on the other Party’s website or in the other Party’s marketing materials by providing such other Party with an electronic version of the updated, changed, modified or additional Marks and/or graphics. Within 30 days following a Party’s receipt of the other Party’s updated Marks, the receiving Party shall update its website references and marketing materials to reflect the updated Marks and/or graphics.
- No Exclusivity. Company and ResMan acknowledge and agrees that its right to market and sell the Products and/or the ResMan Platform to Customers and to integrate such Products with and into the ResMan Platform under this Agreement is non-exclusive and that Company and ResMan each have the right to authorize additional third party service providers to market and sell products and services similar to the Products and/or the ResMan Platform to any customer, including any Customer, by any means or method selected by Company or ResMan, all without giving the other party notice thereof and without incurring any liability to the other party therefor.
SECTION 3. – INTEGRATION AND CUSTOMER SERVICE.
- Project Managers. Each Party shall appoint a manager (a “Project Manager”) to serve as the primary point of contact on the integration project with the authority to make any operational decisions required in connection with the integration of the Services to be provided by the respective Parties, provided that no Project Manager has the authority to legally bind a Party with respect to any matter covered by this Agreement.
- Integration, Monitoring and Testing.
- Company Responsibilities. Company is responsible for the following: (i) providing all necessary and appropriate resources to fully integrate and test the Products with the ResMan Platform to ensure that the Products work optimally on the ResMan Platform, including, but not limited to, system uptime, system response times, and ease of customer use; (ii) Company’s implementation of the Products on the ResMan Platform; (iii) taking appropriate security measure to prevent, and for promptly notifying ResMan of, any unauthorized access to or use of the Products on the ResMan Platform that Company becomes aware of; (iv) obtaining, at Company’s sole expense, valid licenses to any and all third-party information, data and/or materials (collectively, “Third Party Materials”) that Company, directly or indirectly, provides or makes available to ResMan or otherwise utilizes within the Products on the ResMan Platform; (v) using the Products on the ResMan Platform in accordance with applicable laws; (vi) promptly informing ResMan in advance of all new updates, upgrades, releases and product features and all future releases and product features related to the Products; and (vii) maintaining a test environment and providing all necessary and appropriate resources to fully integrate and test any and all changes, modifications, updates and upgrades to either the Products or the ResMan Platform to ensure continued optimal performance of the Products on the ResMan Platform.
- Restrictions. Company shall not release to any third party the results of any evaluation of the ResMan Platform for the purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of ResMan. Customer shall not (and shall not permit others to): (i) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share the ResMan Platform, or make it available for access by third parties (other than Customers as provided in this Agreement), including, without limitation, in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the ResMan Platform; (iii) disassemble, reverse engineer or decompile the ResMan Platform or the ResMan Technology; (iv) access the ResMan Platform or information related to the ResMan Platform in order to develop a competing product or service; (v) use, include, store or send Malicious Code from the ResMan Platform; (vi) interfere with the integrity of the ResMan Platform or its data; (vii) remove or modify a copyright or other proprietary rights notice on or in the ResMan Platform; (viii) use the ResMan Platform to reproduce, distribute, display, transmit or use material protected by copyright or other Intellectual Property Right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (ix) use a computer or computer network to cause physical injury to the property of another; (x) violate any law or regulation of the United States, any state thereof or other governmental authority; (xi) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the ResMan Platform; (xii) disrupt the integrity of the ResMan Platform; or (xiv) alter, disable, or erase any computer data, computer programs or computer software without authorization.
- ResMan Responsibilities. ResMan is responsible for the following: (i) providing all necessary and appropriate resources to assist with the integration and testing of the Products on the ResMan Platform; (ii) promptly informing Company in advance of all new updates, upgrades, releases and product features and all future releases and product features related to the ResMan Platform; and (iii) providing all necessary and appropriate resources to assist with the integration and testing of any and all changes, modifications, updates and upgrades to either the Products or the ResMan Platform.
- Customers and Customer Pricing. Each Party is solely responsible for entering into an agreement with each Customer with respect to such Party’s respective Service on such terms and at such prices as such Party and the Customer may agree and the other Party has no liability therefor. Each Party is further solely responsible for enforcing the terms of each such Customer agreement and for all collections with respect to the applicable Services provided thereunder.
- Customer Service. Each Party is responsible for providing all necessary support personnel and resources to provide appropriate and responsive customer support to its Customers with respect to its Service provided hereunder to address and resolve efficiently and effectively any and all customer service questions and problems. If and to the extent that a Party receives a Customer inquiry or report related to the Service provided by the other Party, the receiving Party shall immediately after such receipt refer the inquiry or report to the other Party for prompt response.
- Supplier Compliance Guidelines. During the Term of this Agreement and continuing for so long as Customers access and use the Products through the ResMan Platform, Company shall comply with all standard operating policies and procedures provided to it from time to time by ResMan, including, but not limited to, the following: (i) acceptable use policies, (ii) supplier codes of conduct, and (iii) other applicable policies.
- Custom Integration. [APPLICABLE TO PREMIER PARTNERS ONLY] If Company is a Premier Partner, it will be eligible for custom integration into the ResMan Platform at ResMan’s discretion. If Company is selected for such custom integration, the integration effort will be defined in a separate Statement-of-Work to be executed by the parties.
SECTION 4. – COMPENSATION.
- Access Fees. Access fees are only applicable to any Company requesting integration in the “Online Payments” or “Applicant Screening” categories. Access Fees will be detailed in an addendum to be completed separately between the Parties after the initial application to the ResMan+ Innovation Network Program. In all other categories, ResMan waives any Access Fees to certified channel partners.
- Invoicing and Payment.
- ResMan as System of Record: Unless otherwise expressly indicated in writing by the parties, ResMan shall be deemed the system of record.
- Company as System of Record: In instances where the parties expressly identify the Company’s systems as the official ‘system of record’, in the event that ResMan requests reporting details on integration utilization by mutual customers, additional details or information (including transaction level details), Company shall promptly provide such data and shall incorporate such details into future Monthly Reports as appropriate.
- Referrals from Company; Referral Fees payable to Company. ResMan engages Company, on a non-exclusive basis, to provide ResMan with qualified referrals (“Referrals”) to deploy the ResMan Platform to prospective Customers, each as identified by Company to ResMan from time to time. All Referrals submitted by Company pursuant to this Agreement must be presented to ResMan by email directed to firstname.lastname@example.org, must include the name, address and contact information of the Referral, the reasonably projected size of the referral in terms of units, and must be accompanied by such other detailed information as may reasonably be requested by ResMan from time to time. No Referral is deemed accepted by ResMan for purposes of this Agreement until approved by ResMan in writing by email to Company provided that ResMan will exercise good faith in determining whether to accept or reject potential referral (by way of example only, ResMan may reject a referral where that entity is an existing customer of ResMan or that entity is already in one of the sales stages in ResMan’s CRM system, etc.). All referrals are accepted on a ‘first-come’ basis as determined by the date that ResMan formally accepts a particular Referral (only one referral partner will be paid for any Referral). Each accepted Referral shall be deemed to be ‘Closed’ and no longer be deemed a Referral for purposes of this Agreement if ResMan is either (i) selected as the vendor of choice and pays Company the referral fees as set forth in Exhibit B on such initial transaction; (ii) not selected as the vendor of choice by the Referral in the sales cycle resulting from the initial referral (and in either instance, such entity will ineligible be submitted at any time thereafter by Company as a potential Referral hereunder); or (iii) the units or some part of the units in the Referral have not subscribed to the ResMan Platform within 24 months of the Referral Date. ResMan shall pay Company referral fees (if any) for such Referrals in accordance with Exhibit B of this Agreement.
- Expenses. Unless otherwise agreed in writing by the Parties after the Effective Date, each Party is responsible for bearing its own costs incurred in performing its obligations under this Agreement without deduction or offset and without reimbursement by the other Party.
SECTION 5. – OWNERSHIP.
- Ownership of ResMan Platform; Company Feedback. The Parties agree that ResMan owns all right, title, and interest and any and all Intellectual Property Rights in and to the ResMan Platform and the ResMan Technology and all derivatives, improvements, enhancements, extensions, modifications, updates and upgrades thereto. Except as expressly provided in this Agreement, ResMan does not grant (and expressly reserves) any rights, express or implied, or ownership in or to the ResMan and the ResMan Technology. ResMan has a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, transferable, sub-licensable right to make, use, sell, offer for sale, import, or otherwise incorporate into the ResMan Platform and/or the ResMan Technology any suggestions, enhancements, recommendations or other feedback provided by Company and its Customers relating to the ResMan Platform and/or the ResMan Technology.
- Ownership of Company Products. Company owns all right, title, and interest and any and all Intellectual Property Rights in and to the Products and all derivatives, improvements, enhancements, extensions, modifications, updates and upgrades thereto. Except as expressly provided in this Agreement, Company does not grant (and expressly reserves) any rights, express or implied, or ownership in or to the Products. Company has a perpetual, irrevocable, royalty-free, worldwide, non-exclusive, transferable, sub-licensable right to make, use, sell, offer for sale, import, or otherwise incorporate into the Products any suggestions, enhancements, recommendations or other feedback provided by ResMan and its Customers relating to the Products.
SECTION 6. – WARRANTIES AND DISCLAIMERS.
- By Company. Company hereby represents and warrants to ResMan and covenants with ResMan as follows:
- Organization and Validity. Company is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization, and this Agreement has been duly authorized by all necessary corporate (or other entity) action. This Agreement is the legal, valid, and binding obligation of Company, enforceable against Company in accordance with its terms.
- Compliance with Laws. Company will comply with all laws, rules, regulations, ordinances, and codes that are applicable to providing the Products hereunder.
- Data Security. Company (i) has implemented and will maintain administrative, physical and technical safeguards that prevent any collection, use or disclosure of, or access to any Customer data and personally identifiable information submitted by Customers in connection with, or resulting from, Customers’ use of the Products on the ResMan Platform (collectively, “Customer Data”), including an information security program that meets industry standard practices to safeguard the Customer Data; (ii) will immediately notify ResMan of (A) any actual or reasonably suspected unauthorized access to or acquisition, use, loss, destruction, alteration, compromise or disclosure of any Customer Data (a “Security Breach”), or (B) any circumstance pursuant to which applicable law requires notification of such breach to be given to affected parties or other activity in response to such circumstance; and (iii) will cooperate with ResMan and any law enforcement or regulatory official investigating and/or responding to such Security Breach and will take any and all required corrective action at its sole cost and expense.
- By ResMan. ResMan hereby represents and warrants to Company and covenants with Company as follows:
- Organization and Validity. ResMan is duly organized, validly existing, and in good standing under the laws of the State of Utah, and this Agreement has been duly authorized by all necessary corporate action. This Agreement is the legal, valid, and binding obligation of ResMan, enforceable against ResMan in accordance with its terms.
- Compliance with Laws. ResMan will comply with all laws, rules, regulations, ordinances, and codes that are applicable to providing the ResMan Platform.
- DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, RESMAN MAKES NO REPRESENTATIONS, WARRANTIES OR AGREEMENTS WITH RESPECT TO THE RESMAN PLATFORM OR THE RESMAN TECHNOLOGY, AND RESMAN SPECIFICALLY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM USAGE OR TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. RESMAN SPECIFICALLY DOES NOT WARRANT THAT THE RESMAN PLATFORM WILL MEET THE REQUIREMENTS OF COMPANY OR THAT THEY WILL BE ACCURATE OR OPERATE WITHOUT INTERRUPTION OR ERROR. COMPANY ACKNOWLEDGES THAT IN ENTERING INTO THIS AGREEMENT IT HAS NOT RELIED ON ANY PROMISE, REPRESENTATION OR WARRANTY NOT EXPRESSLY SET FORTH HEREIN.
SECTION 7. – CONFIDENTIAL INFORMATION & PRIVANCY OF CUSTOMER DATA.
- Definition; Exclusions. As used in this Agreement, the term “Confidential Information” means all confidential or proprietary information belonging to either Party hereto (the “Disclosing Party”) and disclosed or made available to the other Party (the “Receiving Party”), whether orally, in writing, by computer memory or other media, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes: (a) with respect to Company, the Products; (b) with respect to ResMan, the ResMan Platform, the ResMan Technology, and the terms and conditions of this Agreement; (c) with respect to each Party, its business and marketing plans, technology and technical information, product plans and designs, and business processed disclosed by such Party; and (d) all reports, analyses, compilations, studies, or other documents prepared by a Party or its Representatives which contain or otherwise reflect any Confidential Information of the other Party. Confidential Information does not include information that the Receiving Party can document: (i) is or becomes (through no improper action or inaction by the Receiving Party or any Affiliate, agent, consultant or employee) generally available to the public; (ii) was in its possession or properly known by it, without restriction, prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it by a third party without restriction; or (iv) is independently developed by the Receiving Party subsequent to such disclosure, by employees without access to, or use of, the Disclosing Party’s Confidential Information. The term “Representatives” of a Party means any and all officers, directors, employees, consultants, contractors, agents, attorneys, accountants, financial advisors, and other representatives of such Party.
- Restrictions on Use. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose whatsoever except to the extent necessary in order to perform its obligations or exercise its rights under this Agreement.
- Disclosure. The Receiving Party shall: (i) hold the Disclosing Party’s Confidential Information in strict confidence and treat such Confidential Information with at least the degree of care that it treats its own similar information but no less than a reasonable degree of care; and (ii) not disclose such Confidential Information to any other person or entity or to any of its Representatives except Representatives who are required to have Confidential Information in connection with such purpose, and then only such Representatives who have signed confidentiality agreements with the Receiving Party or that are subject to professional duties of confidentiality that are no less stringent than those contained herein. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to a court or other governmental authority to the extent that such disclosure is required by governmental order, subpoena, or by law, provided that: (a) the Receiving Party notifies the Disclosing Party in writing of such required disclosure as soon as reasonably possible prior to such disclosure and in any event at least five business days prior to such disclosure, specifying in detail the reasons why such disclosure is required; (b) the Receiving Party discloses only that portion of the Confidential Information that it is advised by its counsel that it is legally compelled to disclose; (c) the Receiving Party uses commercially reasonable efforts to cause such disclosed Confidential Information to be treated by such governmental authority as trade secrets and as confidential; and (d) the Receiving Party uses commercially reasonable efforts to obtain such other protective orders and protections with respect thereto as the Disclosing Party may reasonably request
- Return or Destruction. Upon the termination or expiration of this Agreement or upon the written request of the Disclosing Party, the Receiving Party shall (i) at its own expense, (a) promptly return to the disclosing party all Confidential Information that is in tangible form (and all copies thereof) that is the property of the Disclosing Party or that contains any Confidential Information of the Disclosing Party (collectively, the “Material Information”), or (b) upon the written request of the Disclosing Party, destroy the Material Information and provide the Disclosing Party with written confirmation of such destruction; and (ii) cease all further use of any Material Information, whether in tangible or intangible form.
- Ownership. As between the Parties, the Parties agree that the Confidential Information of the other Party is and will remain the property of such other Party. The Receiving Party obtains no right, title, interest, or license in or to any of the Confidential Information of the Disclosing Party except for the rights set forth in this Agreement.
SECTION 8. – INDEMNIFICATION AND LIMITATION OF LIABILITY.
- By ResMan. Except to the extent Company is responsible for indemnifying ResMan under Section 8.2 below and subject to the limitations set forth in Section 8.3 below, ResMan shall defend, indemnify and hold harmless Company and its officers, directors, employees and agents against any third party claims, suits or actions (a “Claim”) that the ResMan Platform provided by ResMan infringes any patent, copyright, trademark, trade secret, or other Intellectual Property Right of a third party, provided that Company: (i) promptly informs and furnishes ResMan with a copy of such Claim; (ii) gives ResMan all relevant evidence in Company’s possession, custody or control; and (iii) gives ResMan reasonable assistance in such Claim, at ResMan’ expense, and the sole control of the defense thereof and all negotiations for its compromise or settlement, provided that ResMan shall not compromise or settle any such Claim unless Company is unconditionally released from all liability.
- By Company. Except to the extent ResMan is responsible for indemnifying Company under Section 8.1 above and subject to the limitations set forth in Section 8.3 below, Company shall defend, indemnify and hold harmless ResMan, its Affiliates and their respective officers, directors, employees and agents against any and all Claims arising from or related, directly or indirectly, to: (a) Company’s use of the ResMan Platform in violation of the restrictions in this Agreement; (b) Company’s provision of the Products to Customers and all acts and omissions of Company and its employees, contractors and agents related thereto; or (c) allegations that the Products or Third Party Materials infringe any patent, copyright, trademark, trade secret, or other Intellectual Property Right of a third party or violates any applicable local, state, federal and (if applicable) international laws, regulations and directives, provided that ResMan: (i) promptly informs and furnishes Company with a copy of such Claim; (ii) gives Company all relevant evidence in ResMan’s possession, custody or control; and (iii) gives Company reasonable assistance in such Claim, at Company’s expense, and the sole control of the defense thereof and all negotiations for its compromise or settlement, provided that Company shall not compromise or settle any such Claim unless ResMan is unconditionally released from all liability.
- LIMITATION OF LIABILITY. EXCEPT FOR COMPANY’S PAYMENT OBLIGATIONS IN SECTION 4, A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 8 OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 7, THE CUMULATIVE, AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY COMPANY TO RESMAN HEREUNDER FOR THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. EXCEPT FOR COMPANY’S PAYMENT OBLIGATIONS IN SECTION 4, A PARTY’S INDEMNITY OBLIGATIONS IN SECTION 8 OR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN SECTION 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN ANY WAY OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOST REVENUE, LOSS OF USE, LOSS OF DATA, COSTS OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR DATA, OR CLAIMS BY ANY THIRD PARTY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS.
SECTION 9. – TERM AND TERMINATION.
- Term. The term of this Agreement (the “Term”) commences on the Effective Date and continues in effect for a period of 12 months unless earlier terminated as provided in this Section 9. Thereafter, the Term of this Agreement will automatically renew for successive periods of 12 months each unless either Party provides the other Party with written notice of its intent not to renew the Term not less than 90 days prior to the end of the then-current Term.
- Termination for Convenience. Either Party may terminate this Agreement with or without cause upon not less than 60 days’ prior written notice to the other Party.
- Termination for Material Breach. In the event that either Party commits any material breach of any of the representations, warranties, covenants, or obligations contained in this Agreement and such material breach is not cured within 30 days (or within five days with respect to a failure to make any payment required hereunder) after the non-breaching Party gives to the breaching Party written notice of such material breach, then the non-breaching Party will be entitled to terminate this Agreement immediately upon written notice thereof to the breaching Party.
- Bankruptcy. In the event that either Party: (i) voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors that is not dismissed or discharged within 60 days after being commenced; (ii) admits in writing its inability to pay its debts generally as they become due (or takes any corporate action tantamount to such admission); (iii) makes an assignment for the benefit of its creditors; or (iv) ceases to do business as a going concern; then in any such instance, the other Party will be entitled to terminate this Agreement immediately upon written notice thereof to the first Party.
- Rights and Remedies upon Termination. In the event of any termination pursuant to either Section 9.3 (Termination for Material Breach) or Section 9.4 (Bankruptcy), then the terminating Party will be entitled to all other rights and remedies which such Party may have under this Agreement and under applicable law.
- Survival. The rights and obligations contained in Sections 4 (Compensation), 5 (Ownership), 7 (Confidential Information), 8 (Indemnification and Limitation of Liability) and 10 (General Provisions), and all others that by their sense and context are intended to survive the execution, delivery, performance, termination or expiration of this Agreement survive and continue in effect.
SECTION 10. – GENERAL PROVISIONS.
- Independent Contractors. The relationship between ResMan and Company has been and will continue to be that of independent contractors. Neither Party is the legal representative, agent, joint venturer, partner, employee, or employer of the other Party under this Agreement for any purpose whatsoever. Neither Party has any right, power, or authority under this Agreement to assume or create any obligation of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect.
- Governing Law, Jurisdiction, and Venue. This Agreement (and the right and obligations of the Parties with respect to their relationship under this Agreement) are governed by and must be construed and enforced in accordance with the laws of the State of Texas, excluding its conflict of laws rules to the extent such rules would apply the law of another jurisdiction. The Parties hereto consent to the jurisdiction of all federal and state courts in Texas, and agree that venue lies exclusively in Collin County, Texas.
- Dispute Resolution. All claims be resolved exclusively by binding arbitration, subject to the commercial rules of the American Arbitration Association.
- Attorneys’ Fees. The prevailing party in any action or proceeding to enforce this Agreement, including any efforts to collect amounts due under this Agreement by engagement of any attorney, collection agency or otherwise, is entitled to recover from the other party its costs and attorneys’ fees in addition to any damages available to such party.
- Specific Performance. Company acknowledges that a breach of this Agreement cannot be adequately compensated for by money damages, and agrees that specific performance is an appropriate remedy for any breach or threatened breach hereof. Company acknowledges that compliance with the provisions of this Agreement is necessary in order to protect the proprietary rights of ResMan. Company further acknowledges that any unauthorized use or disclosure of Confidential Information of ResMan to any third party in breach of this Agreement will result in irreparable and continuing damage to ResMan. Accordingly, Company hereby: (i) consents to the issuance of any injunctive relief or the enforcement of other equitable remedies against it at the suit of ResMan, without bond or other security, to compel performance of any of the terms of this Agreement; and (ii) waives any defenses thereto, including, without limitation, the defenses of failure of consideration, breach of any other provision of this Agreement, and availability of relief in damages.
- Remedies Cumulative. Except as otherwise set forth in this Agreement and subject to the terms of this Agreement, including Section 8.3 (Limitation of Liability), all remedies, whether under this Agreement, provided by law, or otherwise, are cumulative and not alternative, may be exercised concurrently or separately, and the exercise of any one remedy will not be deemed an election of such remedy to the exclusion of the other remedies.
- Entire Agreement. This Agreement (including any exhibits hereto which are incorporated herein by this reference) and any other documents expressly contemplated hereby constitute the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior written or oral agreements, communications, and understandings between the Parties with respect to the subject matter hereof. This Agreement is executed in English and no translation of this Agreement will have any effect on the interpretation hereof.
- Amendment. This Agreement may not be amended, modified, or supplemented orally. This Agreement may only be amended, modified, or supplemented by an instrument in writing specifically mentioning this Agreement and signed by both of the Parties.
- Waiver. No waiver of any provision of this Agreement is effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement will operate as a waiver of any such right, power, or remedy. The express waiver of any right or default hereunder will be effective only in the instance given and will not operate as or imply a waiver of any similar right or default on any subsequent occasion.
- Notices. Any notice, demand, request, or other communication required or permitted to be given under this Agreement must be made in writing, properly addressed to the Party to receive notice at the address set forth on the signature page hereof or at such other address for notice as such Party may hereafter designate by written notice to the other Party given in the manner provided herein, and will be deemed given and received: (i) upon receipt if personally delivered; (ii) on the next business day after delivery to a nationally-recognized overnight courier service; (iii) on the third business day after deposit with the U.S. Postal Service if sent by certified or registered mail, return receipt requested, postage prepaid; or (iv) to the extent applicable, by such other method as may be expressly permitted in this Agreement for certain communications.
- Construction. If any provision of this Agreement is for any reason held to be invalid, illegal, or unenforceable under applicable law in any respect, then: (i) such invalidity, illegality, or unenforceability will not affect the other provisions of this Agreement; (ii) this Agreement will be construed as if such invalid, illegal, or unenforceable provision were excluded from this Agreement; and (iii) the court in its discretion may substitute for the excluded provision an enforceable provision which in economic substance reasonably approximates the excluded provision. If any provision of this Agreement is for any reason held to be excessively broad as to duration, geographical scope, activity, or subject, then such provision will be construed by limiting and reducing it so as to be enforceable to the extent compatible with the then-applicable law.
- Assignment; Successors and Assigns. Company shall not transfer or assign this Agreement or any rights or obligations under this Agreement (whether by operation of law or otherwise) or delegate any duties under this Agreement without the prior written consent of ResMan, which consent may be withheld in its sole discretion, and any purported attempt to do so in violation of this Section will be null and void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
- Force Majeure. If by reason of labor disputes, strikes, lockouts, riots, war, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, Internet service provider failures or delays, governmental restrictions, appropriations or other causes beyond the reasonable control of a party hereto (each, a “Force Majeure Event”), either Party is unable to perform in whole or in part its obligations as set forth in this Agreement, excluding any obligations to make payments hereunder, then such Party will be relieved of those obligations to the extent it is so unable to perform and such inability to perform will not make such party liable to the other party. Neither Party will be liable for any losses, injury, delay or damages suffered or incurred by the other party due to a Force Majeure Event.
- Third Party Beneficiaries. This Agreement is entered into solely between Company and ResMan and, except for the Parties’ indemnification obligations under Section 8, does not, and will not be deemed to, create any rights in any third parties or to create any obligations of either Company or ResMan to third parties.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which is deemed an original, and all of which together constitute one and the same instrument. The Parties agree that a facsimile or pdf of a signed counterpart is as effective and has the same force and effect as the original thereof.
By completing the online application, the applying entity has caused this Agreement to be executed on its behalf by its duly authorized representative on the date set forth to be effective as of the Effective Date specified above.
EXHIBIT B to CHANNEL PARTNER AGREEMENT
- Definitions. Capitalized terms used herein but not otherwise defined in the Agreement have the following meanings:
- “Referral Customer Agreement” means the initial written agreement between ResMan and a Referral for the license of ResMan Platform (excluding any expansions, renewals or other modifications to the commercial terms of the relationship after the initial date of the Customer Agreement).
- “Referral Order” means the written order from Referral subscribing specific units to the ResMan Platform
- “Referral Units” means the number of units that are used as the basis for calculating the subscription fees payable to ResMan under the Referral Customer Agreement as reflected in the initial ordering document between ResMan and the Referral (such as an order form, purchase order or other similar written document).
- “Open Units” means those units in the Referral which have are not Closed per section 4.3 of the Channel Partner Agreement
- Referral Fee. Each Referral made by Company and approved by ResMan that results in a Referral Customer Agreement will earn a one-time only Referral Fee of $1.00 per Referral Unit.
- Payment of Referral Fee. Each Referral Fee that is properly earned will be payable within 30 days after the end of the applicable calendar month in which the Referral signs a Referral Order. Referral Fees will be payable on all Referral Orders related to Open Units.