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):
D. Conduct. Reseller will represent Spur and the Offerings in a positive and professional manner at all times. Reseller will not:
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
B. Price and Payment.
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:
B. Spur. Spur warrants that the Offerings:
C. Disclaimer. Except as otherwise expressly warranted herein:
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.
C. Exclusions. Confidential Information excludes information that:
VII. Term and Termination
A. Term. These terms are effective as of the Effective Date and continue until terminated (the “Term”).
C. Effect of Termination.
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:
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:
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.
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.
Read our general terms and conditions for all Spur products and services.