Reseller Agreement

Last updated May 23, 2018

 

NON-EXCLUSIVE RESELLER AGREEMENT

 

- DEFINITIONS

 

- In this Agreement, unless the contest otherwise requires:

 

- “Clients” means the customers of Reseller under the Program.

 

- “E-Signature Process” means the process more particularly described in Section 2 of the Technical Schedule.

 

- “Program” means the reseller program as described in this Agreement.

 

- “Reseller Guide” means the reseller guide as published from time to time on SimplyCast’s website.

 

- “Reseller System”  means the Reseller-branded, SimplyCast-provided System which Reseller offers to Clients.

 

- “System” has the meaning assigned in Section 1.

 

- “Technical Schedule” means Schedule A attached hereto.

 

- “Tier-2 support” means basic support provided by SimplyCast, during its regular office hours, to the Reseller only, and not to the Clients.

 

- RESELLER QUALIFICATIONS, REPRESENTATIONS AND WARRANTIES

 

- Reseller represents and warrants to SimplyCast that:

 

- Reseller is a corporation duly organized and validly existing and in good standing under the laws of its jurisdiction of incorporation;

 

- Reseller has the corporate power and capacity to perform its obligations under this Agreement;

 

- Reseller has all licenses, registrations, qualifications and certificates of authorization as may be required or desirable to enter into and perform its obligations under this Agreement;

 

- this Agreement is a legal, valid and binding obligation of Reseller enforceable against Reseller in accordance with its terms, subject to bankruptcy, insolvency and other laws relating to or affecting the enforcement of creditors’ rights generally and the fact that equitable remedies, including the remedies of specific performance and injunction may only be granted in the discretion of a court of competent jurisdiction;

 

- the Program and the System are in compliance with the laws of the jurisdictions in which Reseller will market and offer the System to Clients and prospective Clients;

 

- it has conducted an independent investigation of the System and the Program and recognizes the business venture contemplated by this Agreement involves business risks and that success will be largely dependent on the business ability of Reseller. Reseller acknowledges that it has had ample time to read, and has read this Agreement and fully understands its provisions. Reseller further acknowledges that it has had an adequate opportunity to be advised by advisors of its own choosing regarding all aspects of the Program, the System and the relationship created by this Agreement; and

 

- all information provided by Reseller to SimplyCast prior to execution of this Agreement is in all respects true and correct.

 

- APPOINTMENT OF RESELLER

 

- SimplyCast hereby appoints Reseller as an independent SimplyCast reseller, without territorial restriction, to resell, under Reseller’s brand name(s) (as approved in advance of usage by SimplyCast) the SimplyCast-hosted system, which includes software, documentation, and related materials provided on a non-downloadable software-as-a-service basis over the Internet by SimplyCast (the “System“), as more particularly referred to in Section 1 of the Technical Schedule.

 

- The appointment of Reseller is non-exclusive and SimplyCast may in its discretion from time to time appoint additional resellers with or without territorial restrictions on such terms and conditions as SimplyCast sees fit, which terms and conditions may, in SimplyCast’s discretion, be the same as or different from the terms and conditions of this Agreement.

 

- SimplyCast grants to Reseller the right to offer access to the System to Clients, and to service such Clients. SimplyCast also grants to Reseller the right to advertise itself as and represent itself as the provider of the System, provided however that Reseller must brand the System under Reseller’s brand name(s) (as approved in advance of usage by SimplyCast), and must not use or reference in any Client or public materials SimplyCast’s name or brands unless written permission is provided by SimplyCast.

 

- Reseller may hire or contract sales agents and sales representatives to represent Reseller but may not authorize or appoint any dealers, subsellers, agents, representatives, subcontractors, or other third parties to resell, or distribute the System on their own behalf. All rights not specifically granted by SimplyCast hereunder are reserved by SimplyCast.

 

- RESELLER FEES

 

- Reseller shall pay a monthly fee for access to the platform in addition to a one-time setup fee, as detailed here: https://www.simplycast.com/partnership-solutions/reseller/ depending on the selected Reseller level (Basic, Professional, Enterprise, and Free). Reseller levels are also set out on the link provided above. Each of these levels includes a white-label solution of individual channels, platform CRM, on-boarding, platform upgrades and Tier-2 support, with Free receiving email-only. A full breakdown of the differences in reseller levels is outlined above. All payments by Reseller to SimplyCast must be made either by credit card or through PayPal or such other means as may be agreed to from time to time by SimplyCast.

 

- Basic, Professional, and Enterprise level resellers are provided with a 360 “Basic” account as defined on the SimplyCast website that is not subject to any fees to be used for such reseller’s own marketing and communication purposes only and is not used for any other purpose, such as for Clients. This 360 Basic account does not include free access to the paid channels of Voice and Fax which, if used, will be subject to the standard Basic, Professional, or Enterprise reseller discount only. If a Basic, Professional, or Enterprise reseller uses more credits or contacts than are included in this free 360 “Basic” account, all usage that exceeds such amounts will be chargeable to Reseller and subject to the standard Basic, Professional, or Enterprise reseller discount (as the case may be for Reseller). The terms and conditions of this 360 “Basic” account is subject to change and can be withdrawn at any time by SimplyCast.

 

- Resellers are given a percentage discount below SimplyCast suggested retail prices (“SRP”) based on their selected reseller level as set out on the Reseller webpage as listed in 4.1. SRPs are based on SRPs as displayed on the then current SimplyCast website and are subject to change. Reseller may charge a premium for its service and dictate its own margins above these SRP discounts. Reseller will be billed monthly for all usage and activity occurring on or through the Reseller System during the previous month. It is Reseller’s responsibility to keep track of all usage and payments on Reseller’s System. Reseller must have a credit card or PayPal account on file with SimplyCast with enough credit to pay monthly bills.

 

- SRP discounts apply to the paid channels of SMS, Voice, and Fax only when sending within the USA and Canada to recipients in these jurisdictions. If Reseller resides outside the USA and Canada or messages are to be sent outside of these jurisdictions, pricing for these channels must be agreed to prior to SimplyCast making any such services available to Reseller.

 

- Reseller has the opportunity to move up to the next level, in reseller tiers by paying the difference between the Enrollment Fee and the fee applicable to their newly-selected level.

 

- Support level definitions are as follows:

 

- On-boarding: Full support to integrate the platform into the Reseller website, as well as on-going Tier-2 support and platform updates.

 

- Tier-2 support: online, email and phone contact to resolve any technological, sales and customer service issues Reseller may have SimplyCast does not agree to directly support any Clients. Free level Resellers will have access to email-only support.

 

- Account Manager: A dedicated account manager to resolve any technological, sales and customer services issues Reseller may have.

 

- Reseller can add additional services (add-ons) and integration services on a per request basis at additional charges as may be agreed to from time to time between Reseller and SimplyCast.

 

- RESELLER RESPONSIBILITIES

 

- Reseller acknowledges that SimplyCast has created and is creating goodwill in the Program and the System. Reseller acknowledges that to foster and preserve such goodwill it is necessary for SimplyCast to exercise a significant degree of control over the operation of Reseller. Reseller shall operate its business strictly in accordance with this Agreement and such other requirements, policies, and procedures as SimplyCast may from time to time stipulate. Reseller acknowledges that the Program, the System and such requirements, policies and procedures may be modified at the discretion of SimplyCast. Without limiting the generality of the foregoing, Reseller shall not engage in any conduct or practice that in the reasonable opinion of SimplyCast reflects or may reflect or is or may be detrimental or harmful to the good name, goodwill, or reputation of SimplyCast, the Program, Reseller or other resellers, or which are deceptive, misleading or unethical. Reseller shall ensure that at all times prompt, courteous and efficient service is accorded to its Clients and prospective Clients. Reseller shall in all dealings with its Clients and prospective Clients and others adhere to the highest standards of honesty, integrity, fair dealings and ethical conduct. Without limiting Reseller’s other obligations under this Agreement, Reseller shall not engage in any deceptive, misleading, or unethical marketing practices, or any marketing practices that could be harmful to SimplyCast, its reputation, the SimplyCast brand, or SimplyCast’s technologies.

 

- Reseller shall be solely responsible for ensuring that its operations comply with all applicable laws, including without limitation all laws applicable to all usage and transactions carried out by Reseller in respect of the Program and the System. Reseller shall maintain any and all permits, certificates or licenses necessary for the conduct of its operations.

 

- Reseller shall actively use its best efforts to advertise, market, and promote the sales of the System and its component products through all appropriate media including trade shows, exhibits, catalogs and direct mailings, advertising, educational meetings, sales aids, etc.

 

- Reseller shall ensure that all agreements with Clients related to access and use of the System comply with this Agreement and all policies from time to time established by SimplyCast, including without limitation SimplyCast’s then current privacy policy and anti-spam policy as published on the SimplyCast website.

 

- Reseller will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any Client data that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. Reseller will act in accordance with all applicable laws, rules and regulations in relation to the collection, use, disclosure, and processing of such Client data.

 

- The terms and conditions of service and warranty, privacy policy and anti-spam policy applicable to the Reseller System to which all Clients must accept and agree to prior to accessing or using the system or the Reseller System must be approved by SimplyCast prior to implementation and prior to Reseller making any changes thereto, and must be based as closely as possible on the then current SimplyCast terms and conditions of service and warranty, privacy policy and anti-spam policy (the “SimplyCast Terms”), subject only to variations required by applicable local laws, and in any event shall be no less favorable to, and protective of, Reseller than the SimplyCast Terms are to SimplyCast. Reseller has read and fully understands all SimplyCast Terms and shall translate them in the applicable language(s) for their intended operations and shall ensure that all such rewritten terms, warranties, conditions and policies are fully compliant with all applicable laws.

 

- If SimplyCast modifies the SimplyCast Terms, Reseller shall make corresponding changes to its terms and conditions of service, warranty, privacy policy or anti-spam policy, as applicable, in accordance with the E-Signature Process.

 

- Reseller may use such promotional materials as are from time to time supplied by SimplyCast, provided however that Reseller must rebrand such materials so as to remove all references to SimplyCast such that SimplyCast’s involvement is not evident, and otherwise modify such materials to make them suitable for use for Reseller’s jurisdiction, proposed client and market. Reseller may also create its own marketing materials, provided however that any Reseller-created marketing materials which relate directly to the System shall not be used until approved by SimplyCast.

 

- It is Reseller’s responsibility (and not that of SimplyCast) to help its Clients determine which System configuration would best serve their needs.

 

- It is the responsibility of Reseller to (and SimplyCast strongly recommends that Reseller should) obtain such insurance in respect of its property, assets, potential liabilities (including without limitation errors and omissions) as would a prudent and diligent owner of a similar business operating in Reseller’s market.

 

- SIMPLYCAST RESPONSIBILITIES AND RIGHTS

 

- SimplyCast will provide access to applicable portions of the System for Clients through one or more Reseller URLs (each of which must be pre-approved by SimplyCast in its discretion) in accordance with the Technical Schedule.

 

- SimplyCast agrees to provide to Basic, Professional, and Enterprise Resellers at no cost, during the term of the Agreement, training which SimplyCast, in its discretion, considers adequate to permit Reseller to fulfill its obligations under this Agreement, including as to best practices in the use and support of the System. Free Resellers will have access to an online portal for self-serve training.

 

- TECHNICAL SUPPORT

 

- SimplyCast will provide Reseller with the following technical support services:

 

- updates to the System as they become available;

 

- corrections to errors reported to be in the then-current release of the System, as such corrections become available, and

 

- telephone consultation, assistance, and advice. SimplyCast shall respond within a commercially reasonable time to technical questions from Reseller employees regarding products and other inquiries.

 

- Reseller shall appoint an on-site technical contact as the liaison with SimplyCast for technical support. The technical contact shall be the sole liaison between SimplyCast and Reseller for all Program technical support. SimplyCast may discontinue technical support to Reseller for any part of the System, provided that SimplyCast generally discontinues technical support for such part of the System.

 

- SimplyCast and Reseller may from time to time enter into statements of work in form and substance satisfactory to SimplyCast under which SimplyCast agrees to undertake specific projects or services for Reseller under terms to be agreed upon (including without limitation as to charges, whether based on time and materials or fixed cost). Unless otherwise stated in such a statement of work, charges for such services will be invoiced in advance and due upon invoice receipt.

 

- RELATIONSHIPS

 

- Reseller is an independent contractor and is not an agent or legal representative of SimplyCast for any purpose, and has no authority to act for, bind or commit SimplyCast. Without limiting the generality of the foregoing, Reseller shall not make any covenant, representation or warranty on SimplyCast’s behalf. Reseller will not represent itself in any way that implies Reseller is an agent or branch of SimplyCast. Immediately upon notice by SimplyCast, Reseller will (as directed by SimplyCast) change or discontinue any representations or business practice found to be misleading or deceptive by SimplyCast.

 

- Reseller has no authority to and shall not make any commitment on behalf of SimplyCast with respect to any matter whatsoever, including without limitation as to specifications, capabilities, quantities, delivery, modifications, interfacing capability, suitability in specific applications, fitness for a particular purpose etc.

 

- Reseller acknowledges that SimplyCast retains the right to manage all compliance issues related to the System. For example, but without limitation, SimplyCast may in its discretion approve or disapprove any Client campaigns or freeze or terminate Client accounts utilizing or intending to utilize the System in a manner which may violate any anti-spam laws or SimplyCast’s policies or which involve activities that are illegal, fraudulent or wrongful or which may be harmful in any way to SimplyCast.

 

- Without limiting any other restrictions contained in this Agreement, Reseller shall at no time in any manner in any communication with Client or in any other manner which may come to the attention of Client refer explicitly or implicitly to SimplyCast or which could reasonably be expected to enable Client to infer or determine that SimplyCast is involved in provision of the System.

 

- REPORTING

 

- Reseller shall maintain books and records (including without limitation accounting records maintained in accordance with generally accepted accounting principles applied on a consistent basis from financial period to financial period) in connection with all activities under this Agreement, during, and for five years following, the expiry or any termination of this Agreement. SimplyCast may from time to time audit the relevant books and records of Reseller to ensure compliance with the terms of this Agreement and to determine or verify sums owing by either party to the other. Any such audit shall be conducted during regular business hours at Reseller’s offices and shall not interfere unreasonably with Reseller’s business activities. Reseller shall cooperate in all respects with each audit and shall provide SimplyCast with copies of such records as SimplyCast may request. If an audit reveals that Reseller has, in respect of any quarterly period during the Term, unpaid fees to SimplyCast in excess of 5% of the aggregate of monies due from or paid by Reseller to SimplyCast for such quarterly period during the Term, then Reseller shall pay SimplyCast’s reasonable costs of conducting the audit, in addition to the unpaid amount.

 

- Reseller shall immediately notify SimplyCast in writing of:

 

- any claim or proceeding of which it becomes aware involving Reseller, SimplyCast, the System, this Agreement or the Program;

 

- any activity of which it becomes aware which does or might infringe any intellectual property rights of SimplyCast;

 

- any legislation, regulation or government policy in the jurisdictions in which Reseller makes available the System which could or would result in the offering or utilization of the System or the Program or any element thereof being or becoming illegal or subject to penalty, licensing or any other regulatory requirements or any change in any such legislation or regulation;

 

- all claimed or suspected defects in the System, and

 

- any material change in the management, control or financial status of Reseller.

 

TERM, LIMITATION, TERMINATION, NON-COMPETITION

 

- The term of the Agreement is 12 months from the Effective Date. This Agreement shall automatically renew on each anniversary of the Effective Date, unless (a) it is terminated earlier in accordance with this Agreement, or (b) either party gives notice to the other of non-renewal at least 30 days prior to the forthcoming anniversary of the Effective Date.

 

- SimplyCast shall have the right to terminate this Agreement and the rights granted hereunder, or at its option, suspend its performance of this Agreement and the rights granted hereunder, without prejudice to the enforcement of any other legal right or remedy, immediately upon giving written notice of such termination to Reseller if:

 

- Reseller is insolvent, declared bankrupt, makes a general assignment for the benefit of creditors or a proposal or arrangement under the Bankruptcy and Insolvency Act (Canada) or Companies Creditors Arrangements Act (Canada) or any successor legislation thereto, or any similar legislation in any jurisdiction, or a trustee, receiver, receiver and manager, or other similar custodian is appointed for Reseller, or if Reseller commits an act of bankruptcy, proposes a compromise or arrangement, or institutes proceedings to be adjudged bankrupt or insolvent, or consents to the institution of such appointment or proceedings, or admits its inability to pay debts generally as they become due, or permanently ceases to carry on business; or

 

- Reseller fails to make a payment when due to SimplyCast hereunder or commits any other breach of this Agreement, which is not cured within seven calendar days of receipt of notice from SimplyCast describing such breach.

 

- In addition to its termination and non-renewal rights under Sections 1 and 10.2, SimplyCast may terminate this Agreement without cause at any time upon 30 days prior written notice to Reseller.

 

- Reseller shall have the right to terminate this Agreement and the rights granted hereunder, or at its option, suspend its performance of this Agreement and the rights granted hereunder, without prejudice to the enforcement of any other legal right or remedy, immediately upon giving written notice of such termination to SimplyCast if SimplyCast is insolvent, declared bankrupt, makes a general assignment for the benefit of creditors or a proposal or arrangement under the Bankruptcy and Insolvency Act (Canada) or Companies Creditors Arrangements Act (Canada) or any successor legislation thereto, or any similar legislation in any jurisdiction, or a trustee, receiver, receiver and manager, or other similar custodian is appointed for SimplyCast, or if SimplyCast commits an act of bankruptcy, proposes a compromise or arrangement, or institutes proceedings to be adjudged bankrupt or insolvent, or consents to the institution of such appointment or proceedings, or admits its inability to pay debts generally as they become due, or permanently ceases to carry on business

 

- In addition to its termination and non-renewal rights under Section 4, Reseller may terminate this Agreement without cause at any time upon 30 days prior written notice to SimplyCast.

 

- Any termination of this Agreement by SimplyCast shall be without prejudice to any other rights to which SimplyCast may be entitled against Reseller at law or in equity by reason of any default by Reseller under this Agreement or any other cause of action.

 

- Neither the expiration nor earlier termination of this Agreement shall release either party from any obligation which has accrued as of the date of termination.

 

- Upon termination or expiry of this Agreement, Reseller shall:

 

- within 10 days pay SimplyCast all amounts due to SimplyCast under this Agreement;

 

- immediately cease use of the Program and the System and all marketing of the System, the Reseller System and all services to Clients in respect thereof; and

 

- return to SimplyCast all materials relating to the Program provided by SimplyCast and permanently delete all electronic copies in Reseller’s possession and control. Reseller shall certify such return and delete to SimplyCast in such form as SimplyCast may reasonably require.

 

- SimplyCast does not represent that it will continue to provide any particular or type of product or service indefinitely or for any specific period of time. SimplyCast specifically reserves the right to modify any of the specifications or characteristics of its products or services, including the System, to remove any (including some or all of the System) from the market, and/or to cease producing or supporting it, without incurring any liability to Reseller, Clients or any other person.

 

- During the term of this Agreement and continuing for a period of six months following its termination or expiry, Reseller, either individually or in partnership or jointly or in conjunction with or through any person or persons, firm, syndicate, company, corporation, body corporate or by the holding of shares, debentures or other securities, shall not, anywhere in the world, establish, carry on, be engaged in or have an economic interest in or advise, serve directly or indirectly as a director, officer, employee, or consultant of, lend money to, guarantee the debts or obligations of, or otherwise assist the business of, any person, firm, syndicate, company, corporation, body corporate or other entity which is engaged in a business involved in offering to clients, customers, resellers or others an online-based marketing solution or system offering any one or more of the following components or any related components: email marketing, survey marketing, event marketing, SMS marketing, fax marketing, form building, blacklist monitoring, list management, autoresponding, Twitter marketing, link tracking, Facebook marketing, voice broadcasting or public relations marketing.

 

- Reseller acknowledges and agrees that SimplyCast is not responsible for Reseller’s dependence on revenues hereunder and Reseller agrees to release, hold harmless and indemnify SimplyCast from any and all claims and liabilities relating to Reseller’s revenues, financial forecast or economic value that may result from termination by SimplyCast of this Agreement as permitted hereunder.

 

- RESELLER PROGRAMS

 

- SimplyCast may invite Reseller from time to time to participate in the co-operative advertising, market development and promotional programs offered by SimplyCast. Reseller may, at its option, participate in such programs during the term of this Agreement. SimplyCast reserves the right to terminate or modify such programs at any time in its sole discretion and without any liability to Reseller.

 

- INDEMNIFICATION OF SIMPLYCAST

 

- Reseller shall indemnify, defend and hold harmless SimplyCast and its employees, directors, officers, representatives, agents and affiliates (collectively, the “Indemnitees“) against any claim, suit, action, or other proceeding brought against any one or more of the Indemnitees based on or arising from any claim or alleged claim relating to (i) any product or service of Reseller including the Reseller System and any Client use of the same; or (ii) brought by any Client or prospective Client of Reseller; or (iii) relating to Reseller’s business, including, but not limited to, Reseller’s advertising, application process, systems and other processes, fees charged, billing practices and Reseller service; or (iv) relating to any product or service not provided by SimplyCast; or (v) any violation of this Agreement by Reseller. Reseller will not enter into any settlement or compromise of any such indemnifiable claim without SimplyCast’s prior written consent, which consent shall not be unreasonably withheld. Reseller will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by SimplyCast in connection with or arising from any such indemnifiable claim, suit, action or proceeding. Reseller will be solely responsible for any claims, warranties or representations made by Reseller or Reseller’s representatives or agents which differ from the warranties provided by SimplyCast herein. Reseller acknowledges and agrees to comply with these terms and to defend, indemnify and hold harmless SimplyCast from and against any and all claims and demands arising from usage of Reseller’s account, whether or not such usage is expressly authorized by Reseller.

 

- WARRANTY OF SIMPLYCAST

 

- SimplyCast warrants that it is duly incorporated in its jurisdiction of incorporation and has the right, power and authority to enter into this Agreement.

 

- THE SYSTEM IS PROVIDED “AS-IS”, “AS-AVAILABLE”, SIMPLYCAST DOES NOT WARRANT THAT THE SYSTEM WILL RUN PROPERLY USING A STANDARD WEB BROWSER, THAT THE SYSTEM WILL MEET RESELLER’S REQUIREMENTS OR THOSE OF ANY CLIENT OR WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY RESELLER OR ANY CLIENT, THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE, THAT ALL OR ANY SYSTEM ERRORS WILL BE CORRECTED, OR THAT THE SYSTEM DOES NOT VIOLATE OR INFRINGE ANY RIGHTS OF ONE OR MORE THIRD PARTIES.  NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE SYSTEM, RESELLER WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF SIMPLYCAST.

 

- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES STATED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

- UNDER NO CIRCUMSTANCES WHATSOEVER SHALL SIMPLYCAST BE LIABLE TO RESELLER OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, REVENUE, DATA, USE, OR OTHER ECONOMIC ADVANTAGE, INCURRED BY ANY PERSON, WHETHER IN AN ACTION IN CONTRACT OR TORT OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IN ANY EVENT AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, THE MAXIMUM AGGREGATE LIABILITY OF SIMPLYCAST WITH RESPECT TO ALL INCIDENTS AND CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED $5,000.

 

- PROPRIETARY INFORMATION AND RIGHTS

 

- Subject to the limited rights expressly granted hereunder, SimplyCast reserves all rights, title and interest in and to the Program and the System, including without limitation all intellectual property rights therein. No rights are granted to Reseller hereunder other than as expressly set forth herein. Reseller shall not (i) permit any third party to access the System except as permitted herein, (ii) create derivative works based on the System (iii) reverse engineer the System, (iv) challenge such right, title and interest of SimplyCast, or (v) access the System in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the System.  Reseller acknowledges that the Program and the System constitutes a valuable trade secret of SimplyCast.

 

- Reseller shall immediately notify SimplyCast of any infringement or challenge relating to the Program or the System, and SimplyCast shall have the sole discretion to take such action, if any, as it deems appropriate. If it becomes advisable at any time in the sole discretion of SimplyCast for Reseller or any Clients to modify or discontinue the use of the Program or the System, Reseller shall cease such use and shall cause Clients to do so. Reseller shall cooperate with SimplyCast regarding any legal action brought by any person or entity relating to the Program or the System.

 

- Reseller hereby grants SimplyCast a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the System any suggestions, enhancement requests, recommendations or other feedback provided by Reseller relating to the operation of the System.

 

- Reseller shall not disassemble or decompile the System nor cause or permit others to do so.

 

- The System may have been developed by, or include elements developed by, third parties. If and to the extent that this is so, SimplyCast may enforce the rights of such third parties (such as but not limited to copyright) against Reseller.

 

- PAYMENTS DUE TO SIMPLYCAST

 

- Reseller shall pay all amounts invoiced by/to SimplyCast within 30 days (subject to Section 3 below) of SimplyCast’s issuance of the invoice, via credit card, PayPal, wire transfer or in such other manner as SimplyCast may approve. Any amounts not paid to SimplyCast when due hereunder shall bear interest at the rate of 24 percent per annum. All amounts paid to SimplyCast by Reseller are non-refundable.

 

- Amounts invoiced by SimplyCast are exclusive of sales, uses, transfer, or similar value added taxes. When applicable, such taxes will appear as a separate item on SimplyCast’s invoice. Reseller will pay such taxes unless Reseller has provided SimplyCast with a resale exemption certificate in the appropriate form for the jurisdiction of Reseller’s place of business or unless SimplyCast agrees the sale is otherwise exempt from such taxes.

 

- SimplyCast reserves the right to change its credit terms at any time in SimplyCast’s sole discretion.

 

- Reseller grants and SimplyCast reserves a purchase money security interest in each product, purchased hereunder, and in any proceeds thereof, for the amount of its purchase price. Upon request by SimplyCast, Reseller will sign any document required to perfect such security interest. Payment in full of the purchase price of any product purchased hereunder and, for upgrades, SimplyCast’s receipt of services, will release the security interest on that product or upgrade.

 

- GENERAL

 

- Reseller agrees that it will not, on grounds of any alleged non-performance by SimplyCast or any of its obligations hereunder withhold payment of any royalty or other amounts due to SimplyCast, its affiliates or subsidiaries. In the event of any breach of this Agreement by SimplyCast, Reseller’s remedies shall be limited to monetary damages, and under no circumstances shall Reseller be entitled to injunction or similar remedy which in any way restrains SimplyCast from operating or licensing any business or Reseller in any territory.

 

- The rights of SimplyCast hereunder are cumulative and no exercise or enforcement by SimplyCast of any right or remedy hereunder shall preclude the exercise or enforcement by SimplyCast of any other right or remedy hereunder that SimplyCast is otherwise entitled by law to enforce.

 

- All notices, consents and approvals (each, a “Notice”) permitted or required to be given under this Agreement shall be provided via the E-Signature Process.

 

- All references in this Agreement to currency are to United States dollars.

 

- No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing.

 

- This Agreement shall be governed by, interpreted, and enforced in accordance with the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein without reference to rules governing choice of laws, and each of the parties irrevocably attorns to the jurisdiction of the courts of Nova Scotia. Any action relating to this Agreement brought against SimplyCast must be brought exclusively in such courts. This Agreement will not be governed by the United Nations Convention on contracts for the International Sale of Goods.

 

- Personally identifiable information collected about Reseller and its Clients is subject to the terms of SimplyCast’s privacy policy, the terms of which (as from time to time amended, supplemented or replaced) are hereby incorporated by reference. SimplyCast’s privacy policy can be found at: http://www.simplycast.com/Interactive-Marketing- Privacy-Policy.

 

- In the event of termination of this Agreement for any reason, those sections which by their terms should reasonably be considered intended to survive termination shall survive, including without limitation Section 1 and Articles 4, 5, 8, 9, 10, 12, 13, 14, 15 and 16.

 

- Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership or a joint venture between the parties.

 

- Neither party shall be responsible for any failure to perform any obligation or provide service hereunder because of any strike, work stoppage, governmental acts or directives, war, riot or civil commotion, equipment or facilities shortages or similar force majeure event beyond such party’s reasonable control.

 

- Each party hereto shall execute and/or cause to be delivered to the other party hereto such instruments and other documents, and shall take such other actions as such other party may reasonably request, for the purpose of carrying out or evidencing any of the transactions contemplated by this Agreement.

 

- During the term of this Agreement, Reseller agrees that SimplyCast may (1) revise the terms and conditions of this Agreement; and (2) change the services provided under this Agreement. Such revisions and changes shall become effective in accordance with the E- Signature Process. If Reseller is dissatisfied with any revision or change, it may, for greater certainty, terminate this Agreement pursuant to Sect 10.5.

 

- If any legal action or other legal proceeding (including arbitration) relating to the performance under this Agreement or the enforcement of any provision of this Agreement is brought against any party hereto, the substantially prevailing party shall be entitled to recover reasonable attorneys’ fees, costs and disbursements (in addition to any other relief to which the prevailing party may be entitled).

 

- No failure on the part of any party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any party in exercising any power, right, privilege or remedy under this Agreement shall operate as a waiver of such power, right, privilege or remedy under this Agreement.

 

- This Agreement constitutes the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all previous proposals, oral or written, and all negotiations, conversations or discussions heretofore and between the parties related to this Agreement. Each party acknowledges that it has not been induced to enter into this Agreement by any representation or statements, oral or written, not expressly contained herein.

 

- The parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

 

- This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which will be one and the same document. This Agreement may be executed by electronic means and delivered by facsimile or email (pdf) or other electronic transmission but the parties shall thereafter promptly exchange hard copy originals

 

- Except as otherwise expressly provided herein, the provisions of this Agreement shall inure to the benefit of and be binding upon, the successors and assigns of the parties. Reseller shall not assign, sublicense or transfer its rights or obligations under this Agreement to any third party without the prior written consent of SimplyCast.

 

Schedule A

 

TECHNICAL SCHEDULE

 

  1. The System

 

The System encompasses all SimplyCast hosted software, documentation, and related materials provided on a non-downloadable Software-as-a-Service (SaaS) basis over the Internet by SimplyCast. System offerings may include, but are not limited to, email marketing software, survey marketing software, event marketing software, SMS marketing software, fax broadcasting software, online signup form software, blacklist monitoring software, list management software, Twitter marketing software, autoresponder marketing software, link tracking software, press release submission software, Facebook marketing software, and voice broadcasting software.

 

  1. E-Signature Process

 

SimplyCast has developed an electronic notification and signature process (the “E-Signature Process”) and integrated it into the System. Each time SimplyCast wishes to update Reseller on policies, changes, updates, or requirements, Reseller will be notified using the System following Reseller logon. Reseller must immediately acknowledge receipt by electronic signature via the E- Signature Process. Reseller shall implement the applicable policies, changes, updates, or requirements within 30 days of Reseller’s acknowledgement. The System will track all of this activity for verification purposes. If Reseller does not acknowledge receipt within five days of notification, or does not implement any changes required within 30 days of acknowledging receipt, then SimplyCast may, at its option and without further notice to Reseller, freeze or shut down Reseller’s account for such time as SimplyCast may determine (and thereby freeze or shut down all Client accounts also) or terminate this Agreement. The E-Signature Process acts as a replacement for a hard copy written signature. By acknowledging receipt as noted above via the e-Signature Process, Reseller confirms receipt of notification and is legally bound thereby and by the policies, changes, updates, and requirements.

 

  1. Client Tracking

 

When a Reseller Client signs up to use Reseller System through a SimplyCast pre-approved Reseller website or a Reseller-identified sign up form, such Client will be assigned to Reseller in the System as a client of Reseller (and not of SimplyCast). All transactions, message sending, and interactions that occur in respect of Client will occur through the Reseller System hosted by SimplyCast, but this will not be apparent to Client. All branding, labeling, and touch points will be branded by Reseller, not SimplyCast. All Reseller Client actions will be tracked by SimplyCast and attributed to Reseller.  Reseller Shall be responsible for all access and usage fees incurred by Clients.

 

  1. Payment Tracking

 

Reseller will collect all payments directly from Clients using the SimplyCast billing system. The SimplyCast system will track all sales made by Reseller through the SimplyCast billing system and all credits distributed by Reseller through the SimplyCast platform. At the end of each month, the SimplyCast system will automatically generate an invoice stating the portion of the revenue that Reseller owes SimplyCast.

 

Questions?