Reseller Terms of Use

I. Agreement

A. These terms constitute an agreement by and between Spur Intelligence, Inc. (“Spur”), and the applicable reseller (“Reseller”) to participate in the Spur Partner Program as of the earlier of the following: (1) the date on which Reseller first enters an Order, or (2) the date on which Spur and Reseller enter into a Reseller Agreement (“Effective Date”).

B. By entering into a Reseller Agreement or by placing an order for to resell (“Order”) Spur’s services and/or data (collectively and individually, the “Offerings”) to an end-user of the Offerings (“End Customer”), Reseller indicates its assent to be bound by these Terms and Conditions (“Terms”).

C. If Reseller does not agree to these Terms, Reseller is prohibited from entering into a Reseller Agreement and/or placing an Order to resell Offerings.

II. Reseller License and Limitations

A. License. Subject to these Terms, during the Term, Spur grants to Reseller a limited right to resell licenses to the Offerings directly to End Customers, for End Customer’s internal use, only within the scope of an Order (and, if applicable the Reseller Agreement), to include the Spur licensing terms, which Reseller is required to include in any applicable agreement with End Customer (“End Customer Agreement”) for the Offerings.

B. Obligations. Reseller is responsible for ensuring each End Customer has entered an End Customer Agreement, at or before such End Customer’s purchase or use of the Offerings, in a manner that is legally binding upon End Customer. Reseller agrees to immediately notify Spur of any known or suspected breach of an End Customer Agreement or other unauthorized use of the Offerings.

C. Restrictions. Except as expressly authorized in these Terms, Reseller will not (and will not permit End Customer or any other third party to):

1. Sell, provide access to, distribute, or sublicense the Offerings to any third party (other than End Customer, only as expressly authorized in an Order);
2. Use the Offerings for Reseller’s own benefit (except as expressly authorized by Spur);
3. Advertise or market the Offerings without clearly identifying Spur as the provider of the Offerings;
4. Rebrand, reframe, operate, access, or control the Offerings;
5. Use Spur brand, marks, or documentation (or attempt to acquire/establish similar marks, brands, or URLs);
6. Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Offerings (except to the extent applicable laws specifically prohibit such restriction);
7. Modify, translate, or create derivative works based on the Offerings;
8. Copy, distribute, or otherwise use the Offerings for the benefit of a third party (other than End Customer, only as expressly authorized in an Order);
9. Use the Offerings in any manner that violates any Spur intellectual property rights; or
10. Use the Offerings to build an application or product that is competitive with any Spur product or service.

D. Conduct. Reseller will represent Spur and the Offerings in a positive and professional manner at all times. Reseller will not:

1. Disparage the Offerings;
2. Represent itself as an agent or employee of Spur;
3. Engage in any misleading, deceptive, illegal, or unethical conduct in connection with its performance under these Terms; or
4. Make any representations, guarantees, warranties or commitments regarding the Offerings in addition to or inconsistent with those in the product descriptions expressly authorized by Spur in writing.

III. Ownership

Spur retains all ownership rights and intellectual property rights in and to the Offerings; Spur Confidential Information; any and all usage of the Offerings and related transactional information; and all suggestions, enhancement requests, recommendations or other feedback relating to the foregoing.

IV. Orders and Payment

A. Orders.

1. In order to resell an Offering and prior to committing to provide an Offering to any End Customer, Reseller must place an Order with Spur specifying the Offerings that Reseller will resell, the applicable End Customer, and corresponding contact information, and End Customer’s Scope of Use.
2. No Order will be binding until accepted by Spur in its sole discretion .
3. Any additional or different terms in Reseller’s order form with End Customer will not be binding upon Spur, and Reseller will be solely liable for any claims arising from such terms.

B. Price and Payment.

1. Each Order will set forth the Offerings and price.
2. The price Reseller provides to End Customer must not be higher than the quoted Spur price for the applicable Offerings (unless expressly authorized by Spur in writing).
3. Reseller will be solely responsible for collecting all fees from End Customers. Non-payment by End Customers will not relieve Reseller of its obligation to pay fees to Spur.
4. Spur reserves the right to cancel or suspend provision of the Offerings with respect to any End Customer if it fails to receive payment from Reseller with respect to such End Customer.

C. Records and Audit. Reseller will maintain complete, clear and accurate records of its transactions and performance under these Terms, including documentation detailing the sale of Spur Offerings and, if applicable, evidence of each End Customer’s entry into an End Customer Agreement. Upon 10 business days’ advance written notice, Reseller will permit Spur or its representative to audit Reseller’s records to ensure Reseller’s compliance with these Terms.

V. Representations and Warranties

A. Reseller. Reseller represents and warrants that:

1. It has the legal power and authority to enter into and perform its obligations under these Terms;
2. Its execution and performance of these Terms will not violate any other agreement to which it is a party; and
3. To the extent Reseller transmits to Spur any Personally Identifiable Information (“PII”), Reseller has obtained the necessary consent to provide such data for the purposes, processing, and transfer outlined and contemplated in these Terms and in the Spur Privacy Policy (https://spur.us/privacy).
4. It will comply with all laws applicable to its business in connection with its performance under these Terms.

B. Spur. Spur warrants that the Offerings:

1. Will materially conform to any descriptions and performance requirements outlined in these Terms and any Order; and
2. Do not and will not infringe on any third-party Intellectual Property Rights.

C. Disclaimer. Except as otherwise expressly warranted herein:

1. Spur disclaims all representations, warranties, express or implied, including any implied warranty of merchantability, fitness for a particular purpose;
2. All Offerings are provided “as is” and “with all faults”; and
3. Spur does not warrant, represent, or covenant that the Offerings or the data provided thereunder will be free of bugs, errors, minor interruptions, or that all errors will or can be corrected.

VI. Confidential Information

A. Definition. For purposes of these Terms, “Confidential Information” shall mean all information and made available by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in connection with these Terms that is designated as or should reasonably be recognized as confidential information of the Disclosing Party.

B. Non-Use and Non-Disclosure.

1. Receiving Party shall not use Confidential Information for any purpose other than in furtherance of these Terms and will not disclose, publish, or otherwise disseminate Confidential Information to any person or other party whatsoever, except where expressly allowed by these Terms.
2. Each party will limit access to such Confidential Information to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with these Terms (including but not limited to research and development of new and derivative products and services) and who are bound by confidentiality obligations with the Receiving Party substantially similar to those herein.
3. Reseller will not introduce any data provided through the Offerings as evidence (or in any other form) in any judicial or administrative proceeding unless compelled to do so by law or court order.

C. Exclusions. Confidential Information excludes information that:

1. Is or becomes (through no improper action or inaction by the Receiving Party) generally available to the public;
2. Was in the Receiving Party’s possession or known by it without restriction prior to receipt from the Disclosing Party;
3. Was rightfully disclosed to the Receiving Party by a third party without restriction; or
4. Was independently developed by employees of the Receiving Party without use of any Confidential Information of the Disclosing Party.

VII. Term and Termination

A. Term. These terms are effective as of the Effective Date and continue until terminated (the “Term”).

B. Termination.

1. Either party may terminate these Terms for no reason or any reason upon 30 calendar days’ prior written notice. Either party may also terminate these Terms or an applicable Order immediately if the other party fails to cure a material breach of these Terms within 15 calendar days after notice of such breach.
2. Upon notice, Spur may immediately: (a) suspend Reseller’s participation in the Spur Partner Program for breach of these Terms, or (b) terminate these Terms if Spur determines that termination is necessary to comply with laws or to avoid liability or harm to its Offerings, reputation, partners, End Customers, or users.

C. Effect of Termination.

1. Upon any termination of these Terms, Reseller will:
   • Immediately cease all advertising, marketing and other resale activities with respect to the Offerings;
   • Immediately pay Spur any outstanding unpaid amounts; and
   • Pay Spur the amounts, if any, which come due under any Order accepted prior to the date of termination as such amounts come due.
2. Any End Customer licenses or subscriptions granted prior to the termination of these Terms will survive in accordance with the terms of the applicable End Customer Agreement, provided that no such licenses may be extended or renewed without the prior written consent of Spur.

IX. Indemnification.

A. Spur. Spur will defend Reseller from and against any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction from a third-party claim arising out of Spur’s breach of any representation or warranty in Section V of these Terms.

B. Reseller. Reseller will defend, indemnify and hold harmless Spur and its officers, directors, employees, representatives and agents from and against any third-party claim brought against such Spur parties, and any resulting losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees), to the extent arising from or relating to Reseller’s:

1. Breach or alleged breach of these Terms;
2. Conduct in connection with resale or marketing of the Offerings; or
3. Issuance of any warranty or representation regarding Spur or its Offerings not expressly agreed to by the parties.

X. Limitation of Liability

A. General. Except for Excluded Claims (defined below), in no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages.

B. Aggregate Damage Limit. Except for the indemnification obligations as set forth in Section V and the Excluded Claims, each party’s aggregate liability arising out of these Terms, will not exceed the aggregate amounts actually paid by and/or due from Reseller in the twelve (12) months preceding the incident giving rise to the liability, with all claims being aggregated in satisfaction of the limit.

C. Excluded Claims. “Excluded Claims” means:

1. Reseller’s breach of Sections II (Reseller License and Limitations) or Section V (Representations and Warranties);
2. Amounts payable to third parties by Reseller under Section IX (Indemnification); or
3. Either party’s breach of Section VI (Confidential Information).

XI. Miscellaneous

A. Arbitration. Any dispute or controversy arising under or in connection with these Terms shall be settled exclusively by arbitration, conducted before a panel of three arbitrators in Orlando, Florida, in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction; the expense of such arbitration shall be shared equally by the Parties.

B. Assignment. Neither party may, by operation of law or otherwise, assign or transfer any of its rights or delegate any of its duties hereunder without the prior consent of the other party (which consent will not be unreasonably withheld), and any purported attempt to do so is void. Notwithstanding the foregoing, either party may assign, transfer, delegate or grant all or any part of its rights pursuant to these Terms to its successor in connection with the sale or all or substantially all of its assets or stock, or the merger, consolidation or other form of corporate reorganization in which control of the corporation is transferred, provided such successor is not a competitor of the non-moving party.

C. Force Majeure. If a party’s performance hereunder is rendered inadvisable, commercially impracticable, illegal, or impossible to perform by elements of nature, acts of God, acts of war, acts or threats of terrorism, or other causes outside of the reasonable control of the affected party, the affected party, upon giving prompt Notice to the other party, will be excused from performance for the duration of the condition, provided that the affected party uses commercially reasonable efforts to mitigate the effects.

D. Changes to These Terms. Spur reserves the right, in its sole discretion, to change these Terms. The most current version of these Terms will supersede all previous versions. Spur encourages Reseller to periodically review the terms of these Terms to stay informed of our updates.

E. Notices. Notices will be sent either by first-class, registered mail or overnight courier to the address set forth above and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt.

F. Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of Florida without giving effect to conflict of laws principles that would require the application of the laws of any other jurisdiction.

G. Survival. All provisions of these Terms which by their nature should survive termination shall survive termination.

H. Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of these Terms or use of the Offerings. There are no third-party beneficiaries under these Terms.

I. No Publicity. Each party acknowledges that it has no license or right to use the other party’s name, logo, and product names without first obtaining express written consent from such other party.

J. Privacy Policy. The information exchanged pursuant to these Terms is subject to Spur’s Privacy Policy, which can be found at https://spur.us/privacy.

K. Waiver. All waivers must be in writing. A party’s consent to, or waiver of, enforcement of these Terms on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion.