Please review and agree to the following agreements :
TEXT REPS Software Reseller (Online) Agreement THIS RESELLER (ONLINE) AGREEMENT ("AGREEMENT"), IS ENTERED INTO BETWEEN YOU ("RESELLER") AND TEXT REPS ("TEXT REPS"). This Text Reps Reseller (Online) Agreement (the "Agreement") is entered into by and between Text Reps, at 5667 S. Redwood Road, Ste. 7, Salt Lake City, Utah, 84123 ("Text Reps") and the entity agreeing to these terms ( "RESELLER"). WHEREAS, TEXT REPS is the developer, owner and licensor of software and provides e-commerce services through its Internet site and affiliate partnerships, and other Software Products as further defined below ("Services") and; WHEREAS, RESELLER desires to sell computer software solutions and market the Services to companies and individuals alike for the express purpose of providing internet software and e-commerce services to the end users ("Customers") and; WHEREAS, the parties desire that RESELLER, on the terms and conditions set out herein, shall serve as a non-exclusive RESELLER of TEXT REPS worldwide (the "Territory"). THEREFORE, in consideration of the mutual covenants herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: ACCEPTANCE: RESELLER must first read this Agreement and agree to and accept its terms by clicking the "I Accept" button at the end of this agreement. If RESELLER does not agree to the terms of this Agreement, RESELLER will not be permitted to resell TEXT REPS client software applications ("Client Software"). This Agreement is effective as of the date you click the "I Accept" button below (the "Effective Date") at the end of this Agreement; and upon TEXT REPS’ acceptance of RESELLERS’ enrollment in TEXT REPS’ Reseller Program, evidenced by email confirmation to RESELLER from TEXT REPS. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the "I Accept" button below (or, if applicable, do not sign this Agreement). This Agreement governs RESELLER’s access to and use of the Services. 1. DEFINITIONS. 1.1 Products. "Products" shall mean the object code copies of the software products listed as follows: Textreps Website, documentation, and all associated with Text Reps; Appointext website, documentation, and all associated with Appointext; Consumertext website, documentation and all associated with Consumertext; and any subsequent updates and upgrades thereto, and all accompanying and associated Documentation, which RESELLER shall market and distribute in the Territory. "Product" shall mean the Licensed Software Product(s), Documentation, and Support Services for Textreps, Appointext, and Consumertext. 1.2 Reseller. "Reseller shall mean any person(s) who Text Reps authorizes to sell software and services to an end user in their own name or as an "authorized dealer" of Text Reps. 1.3 Customer. "Customer" shall mean an end—user of a Product in the Territory. 1.4 End-User. "End-User" shall mean that entity which acquires the Licensed Software Product for its own use, is granted a sub-license by the RESELLER, and which has no right to sub-license or transfer the Licensed Software Product to any third party. 1.5 Documentation. "Documentation" shall mean program documentation, user manuals, handbooks and other materials describing the use, design, installation, operation and maintenance of the Licensed Software Products. 1.6 Trademarks. "Trademarks" and "Reseller Trademarks" shall mean the trademarks, service marks, trade names and logotypes authorized from time to time by TEXT REPS, respectively. 1.7 Derivative Works. "Derivative Works" shall mean a revision, enhancement modification, translation, abridgment, condensation or expansion of TEXT REPS Products or Documentation or any form in which TEXT REPS Products or Documentation may be recast, transferred, or adapted. For the avoidance of doubt, a Development is not a Derivative Work. 1.8 Development. "Development" shall mean any application, connector or other code developed by RESELLER under Section 2.2(iv) that is compatible with the Product. 1.9 "Internal Use License". shall mean use of the Licensed Software Product by the RESELLER for purposes of a. developing software that integrates with the Licensed Software Product b. internal training/support use, and c. customer demonstration purposes. 1.10. "Licensed Software Product(s)". shall mean the software in all object code, together with the Documentation provided by the Company, expressly for distribution under this Agreement to End Users. 1.11. "License Key". shall mean an encrypted character string in any form provided by the Company to the RESELLER and/or CUSTOMER to initialize or enable use of the Licensed Software Products. 1.12. "Release". shall mean any update, enhancement, or bug-fix of a Licensed Software Product which is substantially similar to and is marketed under the same product number and nomenclature. A release is designated by a number to the right of the decimal point (such as V.x.1 or V.x.2 or x.2.2). 1.13. "Territory". shall mean the geographic area in which the RESELLER primarily resells the Company’s Product. 1.14. "Version". shall mean a specific edition of the Licensed Software Products and is designated by a number located to the left of the decimal point (such as V1 .x or V2.x).. Each new Version of the Licensed Software Products contains significant functionality changes or improvements. 2. PURPOSE 2.1. Recital: the Company creates and Licenses software which are versatile client applications used for support and business practices. The RESELLER desires to become the sales representative of the Licensed Software Products, subject to the restrictions set forth in this Agreement. 2.2. Reseller Programs: the RESELLER not only provides additional sales coverage for the Company, but also provides value in front line support services and system integration components (the RESELLER’s value added services are indicated in this Agreement, the Online Business Agreement and the Reseller- Customer Agreement) for all accounts, along with consulting and training services. 3. APPOINTMENT 3.1 Appointment. TEXT REPS hereby appoints RESELLER, and RESELLER hereby accepts appointment, as TEXT REPS’s non-exclusive reseller of the Products in the Territory during the term of this Agreement. 3.2 License Grant. In exchange for monthly payment of the participation fee and subject to all the other terms and conditions of this Agreement, TEXT REPS hereby grants to RESELLER a non-exclusive and non-transferable right and license during the term of this Agreement in the Territory and with respect to the Designated Market only: (i) To market, promote, advertise, sell and distribute the Products directly to Customers; (ii) to market, promote, advertise, sell and perform support and maintenance services related to the Products only under RESELLER’s own name and not as a subcontractor of TEXT REPS; (iii) to use a copy of the Product to provide demonstrations to prospective Customers, so long as such copy is at all times under the control of RESELLER and not left with the prospective Customer. RESELLER shall not (a) modify the Products or create Derivative Works thereof; (b) merge the Products with other software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Products; (d) disclose to third parties the results of any bench tests performed on the Products without TEXT REP’s prior written consent; or (e) otherwise use, copy or distribute the Products except as expressly allowed hereunder. 3.3 Trademark License. In connection with RESELLER’s activities authorized pursuant to this Agreement, RESELLER is granted a non-transferable, non-exclusive right to use the Trademarks in accordance with instructions given from time to time by TEXT REPS. RESELLER shall not attach any additional trademarks, service marks, or trade names to any Products and shall not use TEXT REP’s trademarks as part of RESELLER’s trademarks, service marks or trade names or in any other manner that would tend to imply that RESELLER has an affiliation with TEXT REPS other than as set forth in this Agreement. 3.4 Title . TEXT REPS, its partners and its suppliers retain the ownership of all right, title and interest in and to the Products, Documentation, Trademarks, Websites and all patents, copyrights and other proprietary rights therein, and RESELLER shall acquire no rights therein except as expressly set forth in this Agreement. TEXT REPS shall own all rights, title and interest in all Derivative Works to the Products, and RESELLER shall own all rights, title and interest in all Developments. RESELLER shall take no action, which may adversely affect or impair TEXT REPS’s ownership of such materials and rights. For the avoidance of doubt, "Developments", as that terms is defined in section 8.2 below, shall not be deemed "Derivative Works" to the Products. 4. RESELLER’S GENERAL OBLIGATIONS. 4.1 Distribution Rights and Participation Fee . In exchange for the promise to pay TEXT REPS a monthly RESELLER participation fee of twenty-nine dollars ($29.00), RESELLER is authorized to distribute and deliver Products to Customers in the Designated Market in the Territory under the terms hereof and to identify itself in the market place as a "TEXT REPS authorized reseller". This monthly fee shall be due and payable through recurring RESELLER credit card charges starting at the end of the first month of signup and reoccur at the end of each month thereafter. 4.2 Marketing. RESELLER shall be responsible for the promotion and marketing of the Products. RESELLER and TEXT REPS will use reasonable commercial efforts to further the joint interests of both parties and to maximize the joint and separate market opportunity in the Territory. Furthermore, RESELLER shall use due diligence in safeguarding the interests of TEXT REPS and shall keep TEXT REPS informed of its activities as well as market conditions within the Territory. 4.3 Pricing. Pricing of Products to Customers shall be at the discretion of RESELLER. 4.4 End-User License Agreements and Evaluation Agreements. (a) RESELLER shall be responsible for entering into a binding end-user license agreement with Customer ("EULA"), which complies in all respects with the language, copyright and other laws of the country of distribution. The terms and conditions of the EULA, including but not limited to the warranties, limitations of liability and grant of license, and intellectual property provisions, shall be at least as restrictive as TEXT REP’s standard terms and conditions, and shall specify (i) that RESELLER shall assume sole liability vis-à-vis the Customer for product performance; (ii) that TEXT REPS shall be a third-party beneficiary of the EULA. RESELLER shall maintain a copy of the EULA for each Customer, and shall, promptly following execution of such agreements, provide TEXT REPS with a copy and (iii) that Customer may not use the Products to power an auction-model pay-for-placement service. For the avoidance of doubt, the prohibition in 3.4(a)(iii) shall not bar a Customer from using the Product on the same website as other software which interfaces with the Product and which powers an auction-model pay-for-placement service. (b) If RESELLER wishes to provide a prospective Customer with a copy of the Products for the sole purposes of evaluation, RESELLER may do so only under the terms of a binding agreement with the prospective Customer that (i) disclaims all performance warranties; (ii) is for a term of no more than 30 days, (iii) limits use to evaluation only, and (iv) is free of charge. 4.5 Enforcement of End User License Agreement and Evaluation Agreement. If RESELLER learns of any breach of a EULA or Evaluation Agreement that could damage TEXT REPS (or its third party licensors), RESELLER shall promptly notify TEXT REPS in writing, and the parties will determine a mutually acceptable course of action. Nothing shall preclude TEXT REPS from taking corrective action without RESELLER’s consent, so long as RESELLER is actively consulted and copied on all such actions. In addition, if a breach of an EULA or an Evaluation Agreement occurs that would, in TEXT REPS’s opinion, result in irreparable harm to TEXT REPS (and/or its third party licensors) unless injunctive or other equitable relief is granted to restrain the violation, RESELLER shall, as requested by TEXT REPS, either (i) use its best efforts to obtain such equitable relief as promptly as reasonably possible or (ii) assign its rights under the EULA or Evaluation Agreement to TEXT REPS to permit TEXT REPS to seek such equitable relief. RESELLER’s foregoing obligations to enforce the EULAs or Evaluation Agreements as necessary to protect the interest of TEXT REPS and its third party licensors shall survive expiration or termination of this Agreement. 4.6 Compliance with Laws. At all times, RESELLER shall comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement. RESELLER shall indemnify TEXT REPS for any costs, expenses, injury and damage caused to TEXT REPS as a result of RESELLER’s failure to comply with applicable laws, rules, ordinances, decrees and regulations. 4.7 Other Obligations. RESELLER shall have the following specific obligations with respect to the marketing and distribution of Products: 4.7.1 To use commercially reasonable efforts to further the marketing, license and distribution of Products, including taking the necessary actions to protect against improper copying 4.7.2 To promptly respond to all inquiries from prospective Customers, including complaints, process all orders and affect all training of Products; and 4.7.3 To conduct a mutually agreed upon scheduled business development dialog with TEXT REPS to discuss sales pipeline progress and to coordinate lead development to the benefit of both parties. 4.8 RESERVED 4.9 Customer Satisfaction. The Products are technically complex and require high-quality, individualized pre-marketing and post-marketing support. This support is necessary to achieve and maintain high Customer satisfaction. RESELLER agrees that high Customer satisfaction is a condition of its continued authorization by TEXT REPS. RESELLER agrees that it will not market and sell the products in geographical areas where it does not have the ability to support them. In addition, in order to help ensure high Customer satisfaction, RESELLER agrees; • To report to TEXT REPS promptly all actual problems with any Product that, in RESELLER’s judgment have the potential to materially impact the Customer’s reasonable enjoyment of TEXT REPS Products • To provide and maintain Customer services with installation support, training support, and technical support. • To maintain a report identifying the Customer, the Product sold, the date of sale, and the quantities of the Products sold: • To retain all reports for three (3) years after the date of sale, and assist TEXT REPS, upon request, in tracing a product to a Customer in distributing critical product information, or in discovering unauthorized marketing or infringing acts; • To conduct business in a manner that reflects favorably at all times on the products, goodwill and reputation of TEXT REPS; • To avoid deceptive, misleading or unethical practices that are or might be detrimental to TEXT REPS or the TEXT REPS Products; • To refrain from making any false or misleading representations with regard to TEXT REPS or the Products; and • To refrain from making any representations, warranties or guarantees to customers with respect to the specifications, features or capabilities of the Products that are inconsistent with the literature distributed by TEXT REPS, or representations made by TEXT REPS employees. 5. TEXT REPS’S GENERAL OBLIGATIONS. 5.1 Documentation. The Documentation shall be the most recent version distributed by TEXT REPS in the English language in the form of internet document files. RESELLER acknowledges that the Documentation is protected by copyright and may be reproduced or translated only as permitted in this Agreement. Any translations of Documentation are derivative works and are owned by TEXT REPS. 5.2 Marketing Materials. TEXT REPS agrees to provide, upon request, internally developed Product marketing communications materials via electronic media in the English language for translation and duplication, as appropriate, to RESELLER. TEXT REPS hereby grants to RESELLER the non-exclusive, non-transferable right to reproduce and use any such materials during the term of this Agreement, but not to modify such materials without prior written permission from TEXT REPS. 5.3 Compliance with Laws. At all times, TEXT REPS shall comply with all laws, rules, ordinances, decrees and regulations applicable to its activities under this Agreement. 5.4 Agreement/Contract. TEXT REPS reserves the right to change RESELLER agreement or any portion thereof upon a 30 days’ notice to RESELLER. 5.5 Software. TEXT REPS will give RESELLER access to online software upon acceptance of RESELLER application and all electronically signed agreements. 5.6 Rights. TEXT REPS reserves the right to reject any applicant RESELLER on the basis of its standards of conducting business or terminate Services to any RESELLER if it determines , in its sole discretion, that RESELLER is actually or allegedly engaged in activities that are illegal, fraudulent or wrongful or which may be harmful to TEXT REPS in any way whatsoever. 5.7. Fees. TEXT REPS reserves the right to adjust fees for Services or any portion thereof upon 30 day notice to Reseller. 6. SUPPORT AND MAINTENANCE; TRAINING 6.1 Support with respect to Customers . RESELLER shall be solely responsible for providing first tier technical support to Customers, unless otherwise agreed upon on a case by case basis. TEXT REPS shall provide RESELLER with second and third tier technical support with respect to Customers. RESELLER shall be responsible for all communications with Customer. 6.2 Service Level Objectives . If RESELLER offers to provide its Customers with support and maintenance that exceeds TEXT REPS’s service level objectives hereto TEXT REPS will not be obligated to support such service levels unless TEXT REPS has agreed to do so in writing. TEXT REPS will keep RESELLER informed as to TEXT REPS’s schedule for new versions and releases of the Products. 6.3 Training . RESELLER shall ensure that the primary member of RESELLER’s staff engaged in negotiating obligations and supporting the Products is trained within 90 days of the Effective Date. RESELLER shall bear all expenses incurred by or on behalf of its own staff in connection with the training. If any training upon request by RESELLER takes place elsewhere than at TEXT REPS’s place of business, RESELLER shall bear all expenses incurred by TEXT REPS and its staff in relation to the offsite training, including expenses related to accommodation, meals and travel. 6.4 Updates and Upgrades. TEXT REPS will make Updates and Upgrades available to RESELLER when they become commercially available. RESELLER is responsible for distributing such Updates and Upgrades to existing Customers who subscribe to maintenance and support within six months of receiving such Updates or Upgrades from TEXT REPS. At such time as an Update or Upgrade is made available, RESELLER will cease marketing and distributing the previous version of the Product to new Customers. Notwithstanding the foregoing, if RESELLER has developed any applications, connectors or other code (hereinafter referred to as "Developments") that are not compatible with updated or upgraded versions of the Product, then RESELLER may continue to distribute the previous version of the Product until such time as it has updated its Developments or for three months after the time an Update or Upgrade is made available, whichever occurs first. TEXT REPS may cease support of any version of the Product one year after a new version is made available, and RESELLER is advised to update, in a timely manner, any Development to the extent necessary for such code to be compatible with new versions of the Product. 7. REGISTRATION/ORDERING. 7.1 Product Registration. RESELLER is required to register all Customers of Products with TEXT REPS in accordance with then current TEXT REPS registration procedures. 7.2. Ordering . RESELLER shall order products from TEXT REPS on a customer by customer basis, by means of the TEXT REPS, Appointext, and Consumertext software. All orders shall be subject to TEXT REPS’s acceptance, which shall not be unreasonably withheld. 8. PAYMENT TERMS. 8.1 TEXT REPS shall make Products and associated maintenance and support available to RESELLER at a discounted rate, which prices may change from time to time on thirty days written notice to RESELLER. Notwithstanding the foregoing, the parties may agree to a steeper discount on a case by case basis in the event special circumstances arise, such as the opportunity to sell to a Customer of particular strategic importance who is demanding favorable pricing. The RESELLER is responsible for determining rates and creating contracts and terms for RESELLER Customer. TEXT REPS is not responsible for determining rates, or providing Customer contracts and terms between RESELLER and RESELLER Customer. RESELLERS bill and collect payment directly from Customer. Commercial terms, billing and payments are entirely between the RESELLER and the Customer. RESELLERS are responsible for tracking and record keeping of Customer billing and billing issues. TEXT REPS bills only the RESELLER per fee schedule as follows: RESELLER Fee Schedule: Texts Per Month* RESELLER Price 300 $40 500 $50 1000 $70 1500 $90 2000 $110 2500 $130 3000 $150 5000 $190 *RESELLERS are billed per Customer based on the tiered-rates (as shown above) per the RESELLERS’ Customer Contract. If RESELLERS Customer exceeds the Customer contracted tiered-rate, Customer will automatically be upgraded to the corresponding tiered-rate (based on text usage) and RESELLER will automatically be charged the corresponding tiered-rate for that month. TEXT REPS collects payments via recurring credit card charges at the end of each month from the RESELLER. RESELLERS will be billed for the RESELLER demo account and per Customer accounts on a monthly basis. RESELLER and Customer accounts added after the first of the month will have a pro- rating for the first month then billed per the payment terms starting the second month and for each month thereafter. TEXT REPS will automatically upgrade RESELLER Customers and charge RESELLER the upgraded fee when RESELLER Customer goes over allotted tier per the RESELLER Fee Schedule. Payment by RESELLER is due regardless of when or whether RESELLER is paid by its Customer. All payments due hereunder are exclusive of all sales taxes, use taxes, value added taxes and any other similar taxes imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon TEXT REPS’s net income. When TEXT REPS has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by RESELLER unless RESELLER provides TEXT REPS with a valid tax exemption certificate authorized by the appropriate taxing authority. In the event that any withholding taxes or any other similar taxes are imposed by any federal, state, provincial or local governmental entity on the transactions contemplated by this Agreement RESELLER shall pay such taxes in such amounts as are necessary to ensure that TEXT REPS receives the full amount of all required fees. 8.2. Audit Rights Records. RESELLER agrees to allow TEXT REPS to examine its records to determine compliance or noncompliance with this Agreement. Any examination will be conducted only by an authorized representative of TEXT REPS, such representative to be a qualified third party and will occur during regular business hours at RESELLER’s offices and will not interfere unreasonably with RESELLER’s business activities. A regional or national Certified Public Accounting firm or a law firm will automatically be deemed to be a qualified third party. Examinations will be made no more frequently than twice per contract year, and TEXT REPS will give RESELLER ten (10) business days or more prior written notice of the date of the examination and the name of TEXT REPS’s authorized representative who will be conducting the examination. The audit will be conducted at TEXT REPS’s expense unless the results of such audit establish that inaccuracies in the quarterly reports have resulted in underpayment to TEXT REPS of more than (5%) of the amount due in any quarter, in which case RESELLER shall pay within 30 days all amounts due and bear the expenses of the audit. In the event a second instance of a more than a 5% underpayment is discovered, TEXT REPS, at its option, will have the right to terminate the Agreement for cause with 15 days’ notice, in addition to any other rights TEXT REPS may have hereunder or at law. In the event a 5% underreporting is found, the examiner will give TEXT REPS an examination report containing the type of error(s), number of customers affected and the dollar amount. If it is discovered that the RESELLER has distributed the product through unauthorized agents or other third parties, the names of such agents, or third parties may be revealed to TEXT REPS. 9. TERM AND TERMINATION. 9.1 The initial term of this Agreement shall be one (1) year from the date of this Agreement. Thereafter, this Agreement shall automatically renew on a yearly basis unless either party notifies the other in writing thirty (30) days prior notice not to renew. 9.2 TEXT REPS, reserves the right to suspend or terminate Services, or any portion thereof, or terminate this Agreement upon one of the following events: 9.2.1 A material breach of this written RESELLER Agreement (other than the payment of amounts due hereunder) and RESELLER fails to cure such breach within thirty (30) calendar days after written notice of the breach or; 9.2.2 A failure by RESELLER to pay any amounts due to TEXT REPS under this Agreement. A RESELLER may be suspended after being delinquent for more than 15 days (i.e. starting on day 46). If the suspension continues for more than 10 days, TEXT REPS may terminate for breach (i.e. starting on day 56) or; 9.2.3 Reseller suffers any adverse financial change or takes or suffers any action as a result of its indebtedness, including without limitation an action in bankruptcy, an assignment for the benefit of creditors, the appointment of a receiver or trustee or the liquidation of all or substantially all of its assets or TEXT REPS determines that Reseller is not creditworthy or; 9.2.4 Upon a determination by any governmental authority with jurisdiction over the parties that the provision of the Services under this Agreement is contrary to existing laws, rules or regulations; 9.2.5 The passage of adoption of any law, rule or regulation that in the reasonable judgment of TEXT REPS will make it materially more expensive or difficult to provide the Services under this Agreement, or; 9.2.6 Either party may terminate this Agreement upon thirty (30) days written notice prior to the expiration of the initial or any renewal term. 9.3 Upon the termination of this Agreement for any reason, TEXT REPS will be entitled to immediately cease providing Services to Reseller. All amounts due to TEXT REPS will become immediately due and payable upon such termination. If TEXT REPS terminates the reseller agreement, then TEXT REPS will maintain the direct relationship with the customers and will offer the affected customers the ability to move to another reseller. If a RESELLER terminates the RESELLER agreement, TEXT REPS will maintain the direct relationship with the customer and will offer the affected customer the ability to move to another reseller. Upon termination of this Agreement for any reason, the Customer becomes property of TEXT REPS. Notwithstanding the termination of this Agreement for any reason, the provisions of this Agreement that by their nature survive terminations will continue to apply. 10. DEVELOPMENT RIGHTS AND OBLIGATIONS. 10.1 Prior to distributing any application, connector or other code developed under Section 2.2(iv) (hereinafter referred to as a "Development"), RESELLER shall provide such Development to TEXT REPS solely for purposes of testing and evaluation, at TEXT REPS’s sole expense, to determine compatibility between the Development and the Product. If TEXT REPS opts to perform such testing and evaluation, it shall treat the results thereof as confidential. If TEXT REPS, in its reasonable discretion, determines that the Development is not compatible with the Product, TEXT REPS may terminate this Agreement upon thirty days written notice if RESELLER fails to modify the Development so that it is compatible within that time frame. 10.2 RESELLER shall indemnify and hold TEXT REPS harmless from any third party claims and resulting losses, costs, liabilities and expenses (including reasonable attorney’s fees) related to Developments. 10.3 RESELLER shall modify Developments to the extent necessary for them to work with updated versions of the Product, within a time-frame that will allow RESELLER to comply with its obligations under Section 6.4 above. 11. WARRANTY AND INDEMNFICATION. 11.1 Limited Warranty. TEXT REPS warrants as follows: 11.1.1 TEXT REPS is the owner or licensee of all intellectual property rights in and to the Products and there is no pending litigation against TEXT REPS which could materially impact upon its ability to perform its obligations under this Agreement. 11.1.2 TEXT REPS has full power and right to license the Products and perform all other terms of this Agreement, and the use of the Products, or the exercise of the licenses granted hereunder, will not violate or interfere with the intellectual property or contractual rights of any third party, including without limitation, those rights arising under copyright, trademark, trade secret or patent law, provided, however that TEXT REPS shall not be liable for breach of representation and warranty if a violation or interference occurs by reason of software or content supplied by RESELLER, Customer, content owners, or other third parties. TEXT REPS further warrants that RESELLER’s exercise of its rights in accordance with the terms and conditions herein will not violate the terms of TEXT REPS’s agreement with Text Ripple. 11.1.3 All services are delivered without warranty of any kind, including, without limitation, any warranty of title, merchantability, or fitness for a particular purpose. In no event shall TEXT REPS be liable to RESELLER or Customer for any amount in excess of the fees actually paid by Customer to RESELLER for services provided hereunder. 11.1.4 Indemnification by TEXT REPS . TEXT REPS agrees to indemnify and hold harmless RESELLER, from and against any and all third party claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney’s fees), arising as a result of or in connection with TEXT REPS’s breach of any of the representations or warranty contained in a EULA, provided (i) RESELLER promptly gives written notice of any claim to TEXT REPS; (ii) at TEXT REPS’s expense, RESELLER provides any assistance which TEXT REPS may reasonably request for the defense of the claim; and (iii) TEXT REPS has the right to control of the defense or settlement of the claim. Notwithstanding the foregoing, TEXT REPS shall not be obligated to indemnify RESELLER to the extent the claim would not have arisen but for RESELLER’s negligent or wrongful act or omission, or for claims arising out of the RESELLER’s EULA if the RESELLER’s EULA is less restrictive than TEXT REPS’s standard terms and conditions. 11.1.5 Indemnification by RESELLER. RESELLER, at its own expense, agrees to defend, indemnify and hold harmless TEXT REPS, its agents, affiliates, successors from and against any and all third party claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney’s fees), arising as a result of or in connection with (i) any breach by RESELLER of its obligations under this Agreement; (ii) the negligent or intentional acts or omissions of RESELLER, its employees or agents, and (iii) any representation, warranty, promise or assurance made or granted by RESELLER to a Customer or prospective customer. 12. LIMITATION OF LIABILITY. 12.1 IN NO EVENT SHALL TEXT REPS AND IT LICENSORS OR RESELLER BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, OR WHETHER CLAIMS ARE BASED OR REMEDIES ARE SOUGHT IN CONTRACT OR TORT OR OTHERWISE. 12.2 ALL SERVICES ARE DELIVERED WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY , OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL TEXT REPS BE LIABLE TO RESELLER OR CUTOMER FOR ANY AMOUNT IN EXCESSS OF THE FEES ACTUALLY PAID BY CUSTOMER TO RESELLER FOR SERVICES PROVIDED HERUNDER. IN NO EVENT SHALL 12.3 EXCEPT AS SET FORTH IN SECTION 9.1, IN NO EVENT SHALL TEXT REPS’S OR ITS LICENSORS’ TOTAL CUMULATIVE LIABILITY FOR ANY DAMAGES TO RESELLER OR ANY OTHER ENTITY EVER EXCEED THE AGGREGATE FEES PAID BY RESELLER TO TEXT REPS. 12.4 The foregoing limitations include and apply to, without limitation, any liability arising out of the performance or failure to perform of any hardware, software, or Internet connection, from any errors, omissions, interruptions in or failure to provide Internet service; from interruptions in web page availability; from the consequences of computer viruses transferred over the Internet or otherwise; or from communication line failure, breach of security due to the use of the Internet, or loss of information or confidentiality due thereto. 13. CONFIDENTIALITY. 13.1 Non-Disclosure . The parties agree that any Confidential Information provided under this Agreement shall be held and maintained in strict confidence. Each party agrees to protect the confidentiality of such information in a manner consistent with the way a reasonable person would protect similar Confidential Information. "Confidential Information" means the information and materials noticed or marked by TEXT REPS or RESELLER as confidential and proprietary, or which should reasonably be understood as confidential and proprietary given the nature of the information or materials. "Confidential Information" does not include information that (i) is already known to the receiving party at the time it is disclosed and has not been obtained wrongfully, (ii) becomes publicly known without fault of the receiving party, (iii) is independently developed by the receiving party, (iv) is approved for release in writing by the disclosing party, (v) is disclosed "without restriction by the disclosing party to a third party, or (vi) is disclosed pursuant to legal obligations beyond the control of the disclosing and receiving parties. 13.2 Legal Action . At TEXT REPS’s request, RESELLER shall cooperate fully with TEXT REPS in any and all legal actions taken by TEXT REPS to protect its rights in the Products and in the TEXT REPS Confidential Information. 14. NONCOMPETE. 14.1 Noncompete Covenant. For a period of 1 year after the effective date of this Agreement and thereafter in 1 year increments for every year of Agreement renewal, the RESELLER will not directly or indirectly engage in any business that competes with TEXT REPS. This covenant shall apply to the geographical area that includes all of the United States. 14.2 Non-Solicitation Covenant. For a period of 1 year after the effective date of this Agreement and thereafter in 1 year increments for every year of Agreement renewal, the RESELLER will not directly or indirectly solicit business from, or attempt to sell, license or provide the same or similar product or services as are now provided to, any customer, or client of TEXT REPS. Further, For a period of 1 year after the effective date of this Agreement and thereafter in 1 year increments for every year of Agreement renewal, the RESELLER will not directly or indirectly solicit, induce or attempt to induce any employee, RESELLER or 3rd Party of TEXT REPS to terminate his or her employment or Agreement with TEXT REPS. 15. OTHER. 15.1 Independent Contractors. It is expressly understood that the parties hereto are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed to be employees of the other for any purpose. This Agreement shall not be construed as authority for either party to act on behalf of the other party in any agency or other capacity or to make commitments of any kind for the account of or on behalf of the other party except to the extent and for the purposes expressly provided for and set forth herein. 15.2 Non-Exclusive Agreement. RESELLER agrees to resell the Client Software to Customer in accordance with the terms of this Agreement and the End-User License Agreement at www.Textreps.com ("EULA"). This Agreement is not exclusive to RESELLER and TEXT REPS reserves the unrestricted right to sell, license, market and distribute or to grant to others the right to sell, license, market and distribute Client Software anywhere in the world. 15.3 Waiver. The failure of either party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, will not constitute a permanent waiver of any term or condition of this Agreement, and this Agreement and each of its provisions will remain at all times in full force and effect until modified by both parties in writing. 15.4 Amendment and Modification. This Agreement shall not be valid until signed and accepted by a signatory duly authorized to legally bind the parties hereto. No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of both parties hereto, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein. 15.5 Assignment. Reseller will not assign this Agreement or any rights under this Agreement without the prior written consent of TEXT REPS, which consent will not be unreasonably denied or withheld. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors or assigns. 15.6 Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes upon receipt only when mailed first class mail or by nationally recognized overnight courier service, duly addressed and with proper postage, to the address set forth below or such other address as may be provided by the other party in writing for the purpose of receiving such notices. All notices required under this Agreement shall be addressed as follows: If to TEXT REPS: TEXT REPS 5667 S. Redwood Road Suite 7 Salt Lake City, Utah, 84123 If to RESELLER: The email address and/or physical address provided by RESELLER in the RESELLER application. Either party may change its address specified above by giving the other party notice of such change in accordance with this paragraph. 15.7 Jurisdiction. This Agreement and the relationship between the parties hereto will be governed by the laws of the State of Utah, United States of America. 15.8 Severability. In the event a court of competent jurisdiction determines that any part or provision of this Agreement is invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. 15.9 Headings. The article and paragraph headings used herein are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Agreement and the terms and provisions herein. 16.0 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together will constitute on and the same instrument. 16.1 Entire Agreement. This Agreement, including any exhibits attached hereto, sets forth the entire agreement and understanding of the parties hereto and supersedes and merges any and all prior proposals, negotiations, representations, agreements, arrangements or understandings, both oral and written, relating to the subject matter hereof. The parties hereto have not relied on any proposal, negotiation or representation, whether written or oral, that is not expressly set forth herein.
TEXT REPS Business (Online) Agreement. THIS BUSINESS (ONLINE) AGREEMENT ("AGREEMENT"), IS ENTERED INTO BETWEEN YOU ("CUSTOMER") AND TEXT REPS ("TEXT REPS"). This Text Reps for Business (Online) Agreement (the "Agreement") is entered into by and between Text Reps, at 5667 S. Redwood Road, Ste. 7, Salt Lake City, Utah, 84123 ("Text Reps") and the entity agreeing to these terms ( "CUSTOMER"). WHEREAS, TEXT REPS is the developer, owner and licensor of software and provides e-commerce services through its Internet site and affiliate partnerships, and other Software Products as further defined below ("Services") and; WHEREAS, CUSTOMER desires to sell computer software solutions and market the Services to companies and individuals alike for the express purpose of providing internet software and e-commerce services to the end users ("End Users") and; WHEREAS, the parties desire that RESELLER, on the terms and conditions set out herein, shall serve as a non-exclusive RESELLER of TEXT REPS worldwide (the "Territory"). THEREFORE, in consideration of the mutual covenants herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows: ACCEPTANCE: CUSTOMER must first read this Agreement and agree to and accept its terms by clicking the "I Accept" button at the end of this agreement. If CUSTOMER does not agree to the terms of this Agreement, CUSTOMER will not be permitted to resell TEXT REPS client software applications ("Client Software"). This Agreement is effective as of the date you click the "I Accept" button below (the "Effective Date") at the end of this Agreement; and upon TEXT REPS’ acceptance of CUSTOMERS’ acceptance, evidenced by email confirmation to CUSTOMER from TEXT REPS. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the "I Accept" button below (or, if applicable, do not sign this Agreement). This Agreement governs CUSTOMER’S access to and use of the Services. 1. Services 1.1 Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Text Reps stores and processes its own information of a similar type. Text Reps has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data and protect against unauthorized access to or use of Customer Data. As part of providing the Services Text Reps may transfer store and process Customer Data in the United States or any other country in which Text Reps or its agents maintain facilities. By using the Services Customer consents to this transfer, processing and storage of Customer Data. 1.2 Modifications a. To the Services. Text Reps may make commercially reasonable changes to the Services from time to time. If Text Reps makes a material change to the Services, Text Reps will inform Customer, provided that Customer has subscribed with Text Reps to be informed about such change. b. To URL Terms. Text Reps may make commercially reasonable changes to the URL Terms from time to time. If Text Reps makes a material change to the URL Terms, Text Reps will inform Customer by either sending an email to the Notification Email Address. 1.3 Text Reps Services. If Customer uses Text Reps Services, the following additional terms apply: a. Retention. Text Reps will have no obligation to retain any archived Customer Data beyond the retention period specified by Customer Contract with Text Reps (other than for any legal holds). If Customer does not renew Text Reps Services, Text Reps will have no obligation to retain any archived Customer Data. b. Additional Purchases. Unless Text Reps allows otherwise, with each additional purchase of End User Accounts for the Services after Customer has purchased Text Reps Services, Customer will receive access to, and will billed for, Text Reps Services for that same number of End User Accounts. 2. Customer Obligations. 2.1 Compliance. Customer will use the Services in accordance with the Acceptable Use Policy. Text Reps may make new applications features or functionality for the Services available from time to time the use of which may be contingent upon Customer's agreement to additional terms. 2.2 Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); and (c) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that Text Reps's responsibilities do not extend to the internal management or administration of the Services for Customer. 2.3 End User Consent. Customer's Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (i) Customer's access, monitoring, use and disclosure of this data and Text Reps providing Customer with the ability to do so and (ii) Text Reps to provide the Services. 2.4 Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services' and to terminate any unauthorized use. Customer will promptly notify Text Reps of any unauthorized use of, or access to, the Services of which it becomes aware. 2.5 Restrictions on Use. Unless Text Reps specifically agrees in writing' Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws. Customer is solely responsible for any applicable compliance with HIPAA. 2.6 Third Party Requests. Customer is responsible for responding to Third Party Requests. Text Reps will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer's reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact Text Reps only if it cannot reasonably obtain such information. 3. Billing and Payment. 3.1 Billing. Customer will be billed by TEXT REPS via recurring credit card charges at the end of each month for a demo account and Customer End User accounts based on the fee schedule as follows: RESELLER Fee Schedule: Texts Per Month* RESELLER Price 300 $40 500 $50 1000 $70 1500 $90 2000 $110 2500 $130 3000 $150 5000 $190 *RESELLERS are billed based on the tiered-rate (as shown above) per the RESELLER Customer Contract. If RESELLER Customer exceeds the Customer contracted tiered-rate, Customer will automatically be upgraded to the corresponding tiered-rate (based on text usage) and RESELLER will automatically be charged the corresponding tiered-rate for that month. Customer will be billed for the customer demo account and per Customer end user accounts on a monthly basis at the end of each month. Customer and end user accounts added after the first of the month will have a pro-rated bill for the first month then will be billed per the payment terms starting the second month and for each month thereafter. a. Monthly Billing. Customer will not be committed to purchase the Services for a pre-defined term (a 30 days’ written cancellation notice applies), but will pay for the Services on a monthly basis. Text Reps will bill Customer: (i) Fees based upon Customer’s monthly demo fee, Customer end user accounts and Services during the preceding month; and (ii) monthly in arrears for its use of the Services. Text Reps will provide Customer with the monthly rate for the Services when Customer orders the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer’s usage during that month. Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees. Customer will pay for the Services using a credit card. Customer credit card will automatically be billed via recurring charges at the end of each month. Customer will automatically be charged the next tiered level per the Fee Schedule for Customer End User account(s) that exceed the monthly tiered rate Customer End User has signed up for; and the new monthly tiered level rate will continue to apply and be charged to Customer thereafter. 3.2 Payment. All payments due are in U.S. dollars via recurring credit card charges. a. Credit Card or Debit Card. Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment are due at the end of the month during which Customer received the Services. For credit cards, or debit cards, as applicable: (i) Text Reps will charge Customer for all applicable Fees at the end of each month via recurring credit or debit card charges (ii) these Fees are considered delinquent fifteen days after the end of the month during which Customer received the Services. 3.3 Delinquent Payments Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Text Reps in collecting such delinquent amounts, except where such delinquent amounts are due to Text Reps's billing inaccuracies. 3.4 Suspension for Non-Payment. a. Automatic Suspension. Customer will have fifteen days (i.e. starting on day 46) to pay Text Reps delinquent Fees. If Customer does not pay Text Reps delinquent Fees within fifteen days (i.e. starting on day 46), Text Reps will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays Text Reps all outstanding Fees. Customer’s End Users Service will not be interrupted upon Customer suspension. b. During Suspension. If Customer is on a monthly billing plan, and Customer is suspended for non-payment, Text Reps will continue Customer monthly Fees during Customer’s suspension for non-payment. During suspension, Text Reps has the right to notify Customer’s End Users of Customer’s suspension and offer Customer’s End Users to move to another reseller. c. Termination After Suspension. If Customer remains suspended for non-payment for more than twenty five days, Text Reps may terminate Customer for breach pursuant to Section 11. If Customer is terminated, Customer End Users become property of Text Reps and Text Reps will offer affected end users the ability to move to another reseller. 3.5 Taxes. Customer is responsible for any Taxes, and Customer will pay Text Reps for the Services without any reduction for Taxes. If Text Reps is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides Text Reps with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to Text Reps, Customer must provide Text Reps with an official tax receipt or other appropriate documentation to support such payments. 4. Technical Support Services. 4.1 By Customer. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer's or End Users' use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to Text Reps. 4.2 By Text Reps. If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to Text Reps in accordance with the TSS Guidelines. Text Reps will provide TSS to Customer in accordance with the TSS Guidelines. 5. Suspension 5.1 Of End User Accounts by Text Reps. If Text Reps becomes aware of an End User's violation of the Agreement, then Text Reps may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with Text Reps's request to Suspend an End User Account, then Text Reps may do so. The duration of any Suspension by Text Reps will be until the applicable End User has cured the breach which caused the Suspension. 5.2 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then Text Reps may automatically Suspend the offending use. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If Text Reps Suspends an End User Account for any reason without prior notice to Customer, at Customer's request, Text Reps will provide Customer the reason for the Suspension as soon as is reasonably possible. 6. Confidential Information. 6.1 Obligations. Each party will: (a) protect the other party's Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates' employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates' employees and agents in violation of this Section. 6.2 Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party. 6.3 Required Disclosure. Each party may disclose the other party's Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure. 7. Intellectual Property Rights; Brand Features. 7.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Text Reps owns all Intellectual Property Rights in the Services. 7.2 Display of Brand Features. Text Reps may display those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Services) within designated areas of the Service Pages. Customer may specify the nature of this use using the Admin Console. Text Reps may also display Text Reps Brand Features on the Service Pages to indicate that the Services are provided by Text Reps. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent. 7.3 Brand Features Limitation. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party's right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use. 8. Publicity. Customer agrees that Text Reps may include Customer's name or Brand Features in a list of Text Reps customers, online or in promotional materials. Customer also agrees that Text Reps may verbally reference Customer as a customer of the Text Reps products or services that are the subject of this Agreement. This section is subject to Section 7.3 (Brand Features Limitation). 9. Representations, Warranties and Disclaimers. 9.1 Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable (including applicable security breach notification law). Text Reps warrants that it will provide the Services in accordance with the Agreement. 9.2 Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. TEXT REPS MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS. 10. Term 10.1 Agreement Term. This Agreement will remain in effect for the Term. 10.2 Services Term and Purchases During Services Term. Text Reps will provide the Services to Customer during the Services Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Services Term will have a prorated term ending on the last day of that Services Term. 10.3 Renewal. a. With a Monthly Plan. With a monthly plan Customer (and all End Users) is not committed to purchase the Services for a pre-defined term, but pays for the Services on a monthly basis via recurring credit card charges. Text Reps will simply continuing billing Customer Fees based upon Customer’s usage of the Services per the Fee Schedule XXX during the preceding month, and Customer (and all End Users) can cancel their service at any time after providing a 30 day written notice of cancellation. b. Generally. Customer may alter the number of End User Accounts to be renewed by communicating the appropriate number of accounts to be renewed to Text Reps via the Admin Console. Customer will continue to pay Text Reps the then-current Fees for each renewed End User Account unless Customer and Text Reps mutually agree otherwise. If Text Reps does not want the Services to renew, then it will provide Customer written notice to this effect at least fifteen days prior to the end of the then current Services Term. This notice of non-renewal will be effective upon the conclusion of the then current Services Term. 10.4 Requesting End User Accounts. Customer may request End User Accounts by: (i) notifying its designated Text Reps Account Manager; or (ii) ordering End User Accounts via the Admin Console. 10.5 Revising Rates. Text Reps may revise its rates for the following Services Term by providing Customer written notice (which may be by email) at least thirty days prior to the start of the following Services Term. 11. Termination. 11.1 Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within fifteen days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within thirty days; or (iii) the other party is in material breach of this Agreement notwithstanding any cure of such breaches. 11.1 Termination for Failure to Pay Text Reps may suspend performance or terminate the Agreement if: (i) Customer fails to pay recurring credit card charges charged at the end of each Month; (ii) If Customer is terminated, Customer’s End User Account become property of Text Reps and Text Reps has the right to move Customer’s End User Accounts to another Reseller. 11.2 Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) Text Reps (iii) after a commercially reasonable period of time, Text Reps will delete Customer Data by removing pointers to it on Text Reps’s active servers and overwriting it over time; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party. If a (v) If Customer is terminated, Customer’s End User Account become property of Text Reps and Text Reps has the right to move Customer’s End User Accounts to another Reseller. 12. Indemnification. 12.1 By Customer. Customer will indemnify, defend, and hold harmless Text Reps from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer's use of the Services in violation of the Acceptable Use Policy. 12.2 By Text Reps. Text Reps will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim that Text Reps's technology used to provide the Services or any Text Reps Brand Feature infringe or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall Text Reps have any obligations or liability under this Section arising from: (i) use of any Services or Text Reps Brand Features in a modified form or in combination with materials not furnished by Text Reps, and (ii) any content, information or data provided by Customer, End Users or other third parties. 12.3 Possible Infringement. a. Repair, Replace, or Modify. If Text Reps reasonably believes the Services infringe a third party's Intellectual Property Rights, then Text Reps will: (a) obtain the right for Customer, at Text Reps's expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. b. Suspension or Termination. If Text Reps does not believe the foregoing options are commercially reasonable, then Text Reps may suspend or terminate Customer's use of the impacted Services. If Text Reps terminates the impacted Services, then Text Reps will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services. 12.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party's prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE A PARTY'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. 13. Limitation of Liability. 13.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. 13.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO TEXT REPS HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. 13.3 Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a party's Intellectual Property Rights by the other party, or indemnification obligations. 14. Miscellaneous. 14.1 Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party's legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email. 14.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an Affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void. 14.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a). 14.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party's reasonable control. 14.5 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. 14.6 Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect. 14.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture. 14.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. 14.9 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief. 14.10 Governing Law. This Agreement is governed by Utah law, excluding that state's choice of law rules. FOR ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SALT LAKE CITY, UTAH. 14.11 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement. 14.12 Survival. The following sections will survive expiration or termination of this Agreement: Section 3, 6, 7.1, 11.2, 12, 13, 14, and 15. 14.13 Entire Agreement. This Agreement, and all documents referenced herein, is the parties' entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference. 14.14 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order Page, the Agreement, and the terms located at any URL. If Customer signs a physical agreement with Text Reps to receive the Services, the physical agreement will override this online Agreement. 14.15 Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument. 15. Definitions. "Acceptable Use Policy" means the acceptable use policy for the Services available at Textreps.com or such other URL as Text Reps may provide. "Account Manager" means the Text Reps business person working with Customer regarding Customer's purchase of the Services. "Admin Account(s)" means the administrative account(s) provided to Customer by Text Reps for the purpose of administering the Services. The use of the Admin Account(s) requires a password, which Text Reps will provide to Customer. "Admin Console" means the online tool provided by Text Reps to Customer for use in reporting and certain other administration functions. "Administrators" mean the Customer-designated technical personnel who administer the Services to End Users on Customer's behalf. "Ads" means online advertisements displayed by Text Reps to End Users. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time. "Confidential Information" means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Customer Data is Customer's Confidential Information. "Customer " means "Reseller"; a person or company who is authorized by Text Reps to sell Service to an end user for a profit, in their own name, or as an authorized dealer "Customer Data" means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users. "Customer Domain Names" mean the domain names owned or controlled by Customer, which will be used in connection with the Services and specified in the Order Page. "Emergency Security Issue" means either: (a) Customer's use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other customer's use of the Services; or (iii) the Text Reps network or servers used to provide the Services; or (b) unauthorized third party access to the Services. "End Users" means the individuals Customer permits to use the Services. "End User Account" means a Text Reps-hosted account established by Customer through the Services for an End User. "Export Control Laws" means all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. "Fees" means the amounts invoiced to Customer by Text Reps for the Services as described in an Order Page. "Help Center" means the Text Reps help center accessible at http://www.Text Reps.com, or other such URL as Text Reps may provide. "High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage. "HIPAA" means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder. "Initial Services Term" means the term for the applicable Services beginning on the Service Commencement Date and continuing for the duration set forth on the Order Page. "Intellectual Property Rights" means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights. "Non-Text Reps Apps Products" means Text Reps products which are not part of the Services, but which may be accessed by End Users using their End User Account login and password. The Non-Text Reps Apps Products are set forth at the following URL: Textreps.com, or such other URL as Text Reps may provide. "Non-Text Reps Product Terms" means the terms found at the following URL: Textreps.com, or such other URL as Text Reps may provide. "Notification Email Address" means the email address designated by Customer to receive email notifications from Text Reps. Customer may change this email address through the Admin Console. "Order Page" means the online order page Customer completes in signing up for the Services or attached to this Agreement, and which contains: (i) the Services being ordered; (ii) Fees; (iii) number of, and Initial Services Term for, End User Accounts; (iv) the applicable form of payment; and (v) Customer Domain Names. "Service Commencement Date" is the date upon which Text Reps makes the Services available to Customer, and will be within one week of Text Reps's receipt of the completed Order Page, unless otherwise agreed by the parties. "Service Pages" mean the web pages displaying the Services to End Users. "Services" means the applicable Text Reps Apps Core Services (e.g. Text Reps Apps Premier Edition or Text Reps Apps for Business and Text Reps Apps Vault) provided by Text Reps and used by Customer under this Agreement. The Services are as described here: Textreps.com or such other URL as Text Reps may provide. "Services Term" means the Initial Services Term and all renewal terms for the applicable Services. "Suspend" means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services. "Taxes" means any duties, customs fees, or taxes (other than Text Reps's income tax) associated with the sale of the Services, including any related penalties or interest. "Term" means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (i) the end of the last Services Term or (ii) the Agreement is terminated as set forth herein. "Third Party Request" means a request from a third party for records relating to an End User's use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure. "TSS" means the technical support services provided by Text Reps to the Administrators during the Term pursuant to the TSS Guidelines. "TSS Guidelines" means Text Reps's technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL: http://www.Text Reps.com/a/help/intl/en/admins/tssg.html or such other URL as Text Reps may provide. "URL Terms" means the "Acceptable Use Policy, and the "TSS Guidelines." Version: August 22, 2012
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