Terms and Conditions
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Reseller Agreement This Reseller Agreement (the "Agreement"), is entered into by and between Upkeep Technologies, Inc., a Delaware Corporation having its principal place of business at 1100 Glendon Ave, Suite 715, Los Angeles CA 90024 ("Supplier"), and the reseller("Reseller", and together with Supplier, the "Parties", and each, a "Party").
WHEREAS, Supplier is in the business of developing, supporting, marketing and selling the Products (as defined below);
WHEREAS, Reseller wishes to assist Supplier as an independent Reseller to solicit orders for the Products in the Territory (as defined below); and
WHEREAS, Supplier wishes to engage Reseller as an independent Reseller to solicit orders for the Products in the Territory, subject to the terms and conditions of this Agreement; and NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. Capitalized terms have the meanings set forth or referred to in this Section, or in the Section in which they first appear in this Agreement. "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, whether civil, criminal, administrative, regulatory or other, and whether at law, in equity or otherwise. "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. "Business Day" means any day except Saturday, Sunday, or any other day on which commercial banks located in California are authorized or required by Law to be closed for business. "Claim" means any Action brought against a Person entitled to indemnification under Section 12. "Customer" means a purchaser except for an Excluded Customer that has acquired a Product through the sales efforts of Reseller under this Agreement. "Excluded Customer" means (i) Governmental Authorities, (ii) an existing customer of Supplier prior to the solicitation directed at such person or entity by the Reseller with respect to the Products and (iii) other potential customers of the Supplier which the Supplier has engaged in discussions with, or for which the Supplier already has a sales lead, prior to the solicitation directed at such potential customer by the Reseller with respect to the Products. "Governmental Authority" means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other nongovernmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction. "Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority. "Intellectual Property Rights" means all intellectual property and industrial property rights comprising or relating to/of the following: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, websites, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; and (f) all other intellectual property and industrial property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world. "Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority. "Net Sales Price" means the net sales price (exclusive of sales tax and after applying any discounts, credits, rebates or adjustments) of the Products sold pursuant to a Purchase Contract, but limited to the first year of the Purchase Contract, as reflected on the invoice applicable to such sale, exclusive of any other amounts (if any) set forth on such invoice. For purposes of clarification, Net Sales Price does not include: (a) the value of any items that may be furnished to Supplier by others without cost to Supplier for its incorporation into the Product; (b) the value of any items that may be furnished by Supplier to Customer without cost to Customer (for example, samples, prototypes, or free products furnished as part of any advertising or promotions program); (c) any payments that Supplier may receive under the Purchase Contract for technical assistance, technical data, or documentation that may be furnished to the Customer by Supplier; and (d) any reimbursement that may be received by Supplier under the contract for taxes, customs, duties, and the like, as well as the cost of packing, crating, transportation, and insurance during such transportation if separately charged to Customer (including any small order handling charge for any Purchase Contract requiring Supplier to ship Products in less than its standard box-lot quantities). "Patents" means all patents (including all reissues, divisionals, provisionals, continuations, and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents, and patent utility models). "Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority, or any other entity. "Personnel" means agents, employees, or subcontractors engaged or appointed by Supplier or Reseller. "Products" means those products that are identified in Schedule 1, as Supplier may amend in its sole discretion from time to time. "Purchase Contract" means a contract entered into between the Supplier and a Customer for the sale of Products in the Territory by Supplier to such Customer. "Quarterly Date" means each of April 15th, July 15th, October 15th, and January 15th. "Quarterly Period" means each of the periods beginning at the beginning of the day on January 1st, April 1st, July 1st, and October 1st and ending at the end of the day on March 31st, June 30th, September 30th, and December 31st, respectively. "Representatives" means a Party's Affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors, and permitted assigns. "Supplier's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to Supplier. "Supplier's Trademarks" means all Trademarks owned or licensed by Supplier. "Territory" means worldwide. "Trademarks" means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world. "Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information, and all rights therein.
2. Appointment as Reseller.
2.1 Non-Exclusive Appointment. Supplier hereby appoints Reseller, and Reseller accepts such appointment, to act as a non-exclusive independent Reseller of Products to Customers in the Territory during the Term, solely in accordance with the terms and conditions of this Agreement. Supplier may in its sole discretion directly or through an affiliated or unaffiliated third party, sell the Products to any Person, including Excluded Customers and other customers or potential customers.
2.2 Excluded Customers. Notwithstanding Section 2.1, Supplier does not appoint Reseller as a Reseller for the Excluded Customers. Reseller shall not solicit orders from Excluded Customers and shall promptly refer to the Supplier any sales leads it receives or becomes aware of relating to an Excluded Customer. Reseller acknowledges and agrees that it is not entitled to any Commission or other compensation for any sale made by Supplier to an Excluded Customer. 2.3 Status as Independent Contractor. (a) Reseller is an independent contractor pursuant to this Agreement. (b) Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties or an employee/employer relationship. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any Customer or other third party. (c) The operations of the Reseller are subject to the sole control of Reseller. All Personnel of Reseller are employees or Representatives of the Reseller and not of Supplier. Without limitation of the foregoing, Reseller is solely responsible for, at its own expense: (i) providing such office space and facilities, and such Personnel (and their training) as may be necessary to carry out its obligations under this Agreement; (ii) compensating all Reseller Personnel for any services rendered in connection with the performance of its obligations under this Agreement; (iii) covering all Personnel under any applicable social benefit laws (including workers' compensation and applicable state disability insurance); and (iv) making any and all payroll deductions and contributions that may be required by Law or otherwise with respect to the Personnel. (d) Reseller shall be solely responsible for any and all costs or expenses that it may incur in the performance of its obligations hereunder.
3. General Reseller Obligations. Market the Products. Reseller shall at its own expense: (a) market, advertise, promote, and solicit the sale of the Products to prospective and existing Customers consistent with good business practice, in each case using its commercially reasonable efforts to maximize Product sales volume in the Territory; (b) initiate and attend sales calls and meetings with prospective and existing Customers; (c) develop and execute a sales and marketing plan sufficient to fulfill its obligations under this Agreement; (d) advertise in technical journals and in other publications or media, and participate in trade shows and exhibits mutually agreed by the parties; (e) observe all directions and instructions given to it by Supplier in relation to the marketing, advertisement, and promotion of the Products; (f) in any and all contact between Reseller and any prospective or existing Customer, identify Reseller's full legal name, trade name, or both; (g) market, advertise, promote and solicit the sale of the Products and conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill, and reputation of Supplier; (h) promptly notify Supplier of, and provide, upon Supplier's request, reasonable assistance to Supplier to address and investigate, any complaint or adverse claim about any Product or its use of which Reseller becomes aware; (i) promptly notify Supplier of, and provide, upon Supplier's reasonable request, reasonable assistance to Supplier to address and investigate,] any circumstances indicating a Customer's inability or refusal to make payment under any Purchase Contract of which Reseller becomes aware; (j) provide, upon Supplier's reasonable request, reasonable assistance to Supplier to collect payment from Customers of amounts due under Purchase Contracts. Notwithstanding the above, Supplier shall be responsible for all credit risk with respect to the Customers, and for collecting payment under all Purchase Contracts; and (k) promptly forward to Supplier (without deduction) any amount received from a Customer.
3.2 Obtain Government Approval. Reseller shall at its own expense maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to its obligations under this Agreement. 3.3 Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Reseller nor its Personnel shall directly or indirectly: (a) make any representations, warranties, guarantees, indemnities, similar claims, or other commitments (i) actually, apparently, or ostensibly on behalf of Supplier, or (ii) to any Customer with respect to the Products, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or any written documentation provided by Supplier to Customer; (b) engage in any unfair, anti-competitive, misleading, or deceptive practices respecting the Products, including any product disparagement; or (c) separate any software or accessories sold, bundled, or packaged with any Product from such Product or sell, license, or distribute such software on a standalone basis, or remove, translate or modify the contents or documentation of or related to such software or accessories, including, without limitation, any Customer license agreements or warranty statements. Supplier Obligations.
4.1 During the Term, Supplier shall: (a) provide any information and support in the Territory that Supplier usually makes available to its Resellers regarding the marketing, advertising, promotion, and sale of Products under this Agreement; (b) allow Reseller to participate in any marketing, advertising, promotion, and sales programs that Supplier may make generally available to its authorized Resellers of Products, provided that Supplier shall have the right to alter or eliminate any such program at any time; (c) provide current promotional information and material for use by Reseller in accordance with this Agreement; (d) keep records of all sales of Products through Reseller hereunder and submit to Reseller on each Quarterly Date (together with the applicable Commission payment under Section 6.2) a quarterly report ("Quarterly Report") indicating its total sales through Reseller hereunder for the immediately preceding Quarterly Period and the amount of payments received by Supplier with respect to such sales for which Reseller is entitled to a Commission under Section 6.2.
5. Customer Orders. 5.1 Solicitation of Customer Purchase Orders. All purchase orders solicited by Reseller from Customers are subject to approval, rejection or modification by Supplier under Section 5.2. Without limiting the generality of Section 2.3, Reseller shall have no authority to enter into any Purchase Contract on behalf of Supplier or to otherwise bind Supplier to sell or deliver any Products to Customer. Reseller shall promptly notify Supplier with respect to all sales prospects in the Territory, including forwarding to Supplier all Customer purchase orders, requests for quotation and sales inquiries. 5.2 Supplier's Discretion to Accept or Reject Customer Purchase Orders. Supplier reserves the right, in its sole discretion, to (a) accept, or decline to accept, any purchase order for Products received from any party whether or not solicited by Reseller; (b) cancel, terminate, or modify any Purchase Contract previously accepted by Supplier; or (c) negotiate any terms and conditions of the Purchase Contract with Customer, including modifying the purchase price or payment terms. Reseller acknowledges that Supplier's exercise of discretion may result in no Commission owed, or a reduction, or delay in the payment of Commission owed, to Reseller under this Agreement.
5.3 Changes to Products. Supplier may, in its sole discretion, discontinue the sale of the Products without advance written Notice thereof or effect changes to any of the Products.
6.1 Commission Rate. Subject to Section 6.2, Supplier shall pay Reseller a commission ("Commission") for its services for all sales solicited by Reseller pursuant to the terms of this Agreement, in an amount equal to 10% percent of the Net Sales Price of such sale of the applicable Purchase Contract or $1,000 USD, whichever is less.
6.2 Commission Payment Terms. Commissions become payable to Reseller only at such times and only to the extent that Supplier actually receives unconditional payment from Customer under the corresponding Purchase Contract. If Customer makes payments to Supplier in increments or installments, Supplier shall pay Reseller pro rata Commission corresponding to the incremental or installment payments of the Net Sales Price. Supplier shall pay Reseller on each Quarterly Date the Commission owed for the immediately preceding Quarterly Period. Supplier shall make all Commission payments in US dollars by check or wire transfer. In addition, for purposes of clarification, Reseller shall not be entitled to any Commission or other compensation: (i) corresponding to any amount of the purchase price of a Purchase Contract that is not part of the Net Sales Price; (ii) for any sale made to an Excluded Customer; (iii) to the extent that Supplier takes any action that reduces the Net Sales Price payable by any Customer pursuant to Section 5.2 or otherwise; or (iv) that contravenes any Law.
6.3 Disputes. Reseller shall notify Supplier in writing of any dispute regarding any Quarterly Report (along with a reasonably detailed description of the dispute) within 30 days from the Reseller's receipt of such Quarterly Report. Reseller will be deemed to have accepted all Quarterly Reports for which Supplier does not receive timely notification of disputes. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Reseller shall continue performing its obligations under this Agreement during any such dispute.
6.4 Setoff Right. Supplier may withhold payment of any amounts due and payable under this Agreement by reason of any setoff of any claim or dispute with Reseller, whether relating to Reseller's breach, bankruptcy or otherwise.
7. Compliance with Laws. Reseller shall at all times comply with all Laws. Without limiting the generality of the foregoing, Reseller shall not engage in any activity or transaction involving the Products, by way of marketing, promotion, advertising, the solicitation of the sale, lease, use, or otherwise, that violates any Law.
8. Intellectual Property Rights.
8.1 Ownership. Reseller acknowledges and agrees that: (a) any and all Supplier's Intellectual Property Rights are the sole and exclusive property of Supplier or its licensors; (b) Reseller shall not acquire any ownership interest in any of Supplier's Intellectual Property Rights under this Agreement; (c) any goodwill derived from the use by Reseller of Supplier's Intellectual Property Rights inures to the benefit of Supplier or its licensors, as the case may be; (d) if Reseller acquires any Intellectual Property Rights in or relating to any Product purchased under this Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by either of the Parties; and (e) Reseller shall use Supplier's Intellectual Property Rights solely for the purposes of performing its obligations under this Agreement and only in accordance with this Agreement and the instructions of Supplier.
8.2 Supplier's Trademark License Grant. Subject to the terms and conditions of this Agreement, Supplier hereby grants to Reseller a non-exclusive, non-transferable, and non-sublicensable license to use Supplier's Trademarks in the Territory during the Term solely on or in connection with the marketing, promotion, advertising, and sale of the Products. Reseller will promptly discontinue the display or use of any Trademark to change the manner in which a Trademark is displayed or used with regard to the Products when requested by Supplier.
8.3 Marketing and Resale Right Only. Reseller is authorized to market the Products only in the form as authorized by Supplier to Reseller. Other than the express licenses granted by this Agreement, Supplier grants no right or license to Reseller by implication, estoppel, or otherwise to the Products or any of Supplier's Intellectual Property Rights.
8.4 Prohibited Acts. Reseller shall not, and shall not cause or encourage Customers to: (a) take any action that may interfere with any of Supplier's rights in or to Supplier's Intellectual Property Rights, including Supplier's ownership or exercise thereof; (b) challenge any right, title, or interest of Supplier in or to Supplier's Intellectual Property Rights; (c) make any claim or take any action adverse to Supplier's ownership of Supplier's Intellectual Property Rights; (d) register or apply for registrations, anywhere in the world, for Supplier's Trademarks or any other Trademark that is similar to Supplier's Trademarks or that incorporates Supplier's Trademarks; (e) use any mark, anywhere, that is confusingly similar to Supplier's Trademarks; (f) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under this Agreement (including Products) or any Supplier Trademark; (g) misappropriate any of Supplier's Trademarks for use as a domain name without prior written consent from Supplier; and (h) alter, obscure or remove any of Supplier's Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including Products), marketing materials, or other materials that Supplier may provide.
8.5 No Continuing Rights. On expiration or earlier termination of this Agreement, Reseller will immediately cease all display, advertising, promotion, and use of all of Supplier's Trademarks and will not thereafter use, advertise, promote or display any Trademark or any part thereof that is similar to or confusing with Supplier's Trademarks or with any Trademark associated with Supplier or any Product.
9. Term; Termination.
9.1 Initial Term. The term of this Agreement commences on the Effective Dateand continues for a period of one (1) year, unless and until terminated as provided under this Agreement (the "Initial Term").
9.2 Renewal Term. Upon expiration of the Initial Term, this Agreement automatically renews for additional successive three (3) month terms unless and until either Party provides written Notice of nonrenewal at least 30 days prior to the end of the thencurrent term (each a "Renewal Term" and together with the Initial Term, the "Term"), or unless and until sooner terminated as provided under this Agreement. If the Term is renewed for any Renewal Term(s) pursuant to this Section 9.2, the terms and conditions of this Agreement during each such Renewal Term are the same as the terms in effect immediately prior to such renewal. In the event either Party provides timely Notice of its intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the Initial Term or then-current Renewal Term, as applicable. Supplier's Right to Terminate. Supplier may terminate this Agreement by providing written Notice to Reseller: (a) if Reseller breaches any provision of this Agreement, and either the breach cannot be cured or, if the breach can be cured, it is not cured by Reseller within 30 days after Reseller's receipt of written Notice of such breach; (b) if Reseller becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency Law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due; (c) if Reseller fails to observe or perform any term, covenant, or condition on Reseller's part to be observed or performed under any agreement with Supplier, other than this Agreement, and such default continues beyond any grace period set forth in such other agreement for the remedying of such default; or (d) if Reseller sells, transfers or disposes of all or substantially all of its assets, or merges or consolidates with any other entity. Any termination under this Section 9.3 will be effective on the Reseller's receipt of the Supplier's written Notice of termination or such later date (if any) set forth in such Notice. 9.4 Reseller's Right to Terminate. Reseller may terminate this Agreement upon 30 days prior written notice to Supplier. 9.5 Effect of Expiration or Termination. (a) Expiration or termination of the Term will not affect any rights or obligations that (i) are to survive the expiration or earlier termination of this Agreement pursuant to Section 15.3; and (ii) were incurred by the Parties prior to such expiration or earlier termination. (b) Upon the expiration or earlier termination of this Agreement, Reseller shall promptly: (i) cease to represent itself as Supplier's authorized Reseller with respect to the Products, and shall otherwise desist from all conduct or representations that might lead the public to believe that Reseller is authorized by Supplier to market, promote or solicit sales of the Products; (ii) destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Supplier's Confidential Information; (iii) permanently erase all of Supplier's Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Reseller shall destroy any such copies upon the normal expiration of its backup files; and (iv) certify in writing to Supplier that it has complied with the requirements of this clause. (c) Subject to Section 9.5(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. 10. Confidentiality. 10.1 Scope of Confidential Information. From time to time during the Term, Supplier (as the "Disclosing Party") may disclose or make available to Reseller (as the "Receiving Party") information about its business affairs, goods and services, forecasts, confidential information, and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 10.1 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable Law.
10.2 Protection of Confidential Information. The Receiving Party shall (a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any Person, except to the Receiving Party's Resellers who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 10 caused by any of its Representatives. On the expiration or earlier termination of this Agreement, at the Disclosing Party's written request, the Receiving Party and its Representatives shall, pursuant to Section 9.5(b), promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement. 11. Representations and Warranties. 11.1 Reseller's Representations and Warranties. Reseller represents and warrants to Supplier that: (a) it is duly organized, validly existing, and in good standing in the jurisdiction; (b) it is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; (c) it has the full right, corporate power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its Reseller whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of Reseller; and (e) when executed and delivered by each of Supplier and Reseller, this Agreement will constitute the legal, valid, and binding obligation of Reseller, enforceable against Reseller in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally or the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity). 11.2 Supplier's Representations and Warranties. Supplier represents and warrants to Reseller that: (a) it is a corporation duly organized, validly existing, and in good standing in the jurisdiction of its Delaware; (b) it is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required; (c) it has the full right, corporate power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its Reseller whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of Supplier; and (e) when executed and delivered by each of Supplier and Reseller, this Agreement will constitute the legal, valid, and binding obligation of Supplier, enforceable against Supplier in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors' rights generally or the effect of general principles of equity. 12. Indemnification. 12.1 Indemnification. Subject to the terms and conditions set forth in Section 12.2, each Party (as "Indemnifying Party") shall indemnify, hold harmless, and defend the other Party and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, "Losses"), relating to, arising out of or resulting from any third-party Claim alleging: (a) material breach or nonfulfillment of any material representation, warranty or covenant under of this Agreement by Indemnifying Party or Indemnifying Party's Personnel; (b) any grossly negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; or (c) any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Indemnifying Party or its Personnel.
12.2 Exceptions and Limitations on General Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify, hold harmless or defend Indemnified Party against any Third Party Claim if such Third Party Claim or corresponding Losses arise out of or result from, in whole or in part, Indemnified Party's or its Personnel's (a) gross negligence or more culpable act or omission (including recklessness or willful misconduct); or (b) bad faith failure to materially comply with any of its material obligations set forth in this Agreement. 12.3 Sole Remedy. SECTION 12 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY SECTION 12. Non-solicitation. During the Term and for a period of twelve (12) months thereafter, Reseller shall not, and shall not permit its Representatives to, directly or indirectly, in any manner make any solicitation to employ the Supplier's personnel without written consent of Supplier to be given or withheld in Supplier's sole discretion. For the purposes of this paragraph, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such employees or independent contractor who freely responds thereto is not a breach of this paragraph.
14. Limitation of Liability.
14.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER SUPPLIER/PARTY OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2 MAXIMUM LIABILITY FOR DIRECT DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL SUPPLIER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SUPPLIER PURSUANT TO THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 15. Miscellaneous.
15.1 Further Assurances. Upon Supplier's reasonable request, the Reseller shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement. 15.2 Entire Agreement. This Agreement, including and together with all exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Without limitation of anything contained in the preceding sentence, each Party acknowledges that except for the representations and warranties contained in Section 11, neither Party nor any other Person has made or makes any other express or implied representation or warranty, either written or oral, on behalf of such Party, including any representation or warranty arising from statute or otherwise in Law. 15.3 Survival; Limitation of Actions. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement for a period of 12 months after such expiration or termination; and (b) Section 10 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein, or if nothing is specified for a period of 12 months after such expiration or termination. Notwithstanding any right under any applicable statute of limitations to bring a claim, no lawsuit or other action based upon or arising in any way out of this Agreement may be brought by either Party after the expiration of the applicable survival period; provided, however, that any other claims asserted in good faith with reasonable specificity and in writing by notice prior to the expiration of the applicable survival period are not thereafter barred by the expiration of the relevant period, and such claims survive until finally resolved.
15.4 Notices. Each Party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice") in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notice to Supplier: Upkeep Technologies, Inc. 1100 Glendon Ave, Suite 1715 Los Angeles CA 90024 Attn: Ryan Chan, CEO E-mail: email@example.com Website: www.onupkeep.com Notice to Reseller: 5 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. 15.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. 15.7 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. 15.8 Amendment and Modification. No amendment to this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party. 15.9 Waiver. No waiver under this Agreement is effective unless it is in writing and signed by an authorized Representative of the Party waiving its right. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement: (i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or (ii) any act, omission or course of dealing between the Parties. 15.10 Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. 15.11 Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 10 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Reseller of any such obligations, Supplier shall, in addition to any and all other rights and remedies that may be available to Supplier at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 15.11.
15.12 Assignment. Reseller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Supplier. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. Supplier may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of Supplier's assets. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
15.13 No Third-party Beneficiaries. The parties do not confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns.
15.14 Choice of Law; Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of California, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of California. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement in any forum other than US District Court of the Central District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in the Central District of California. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
15.15 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
15.16 No Public Announcements. Unless expressly permitted under this Agreement, Reseller shall not make any statement (whether oral or in writing) in any press release, external advertising, marketing or promotion materials regarding Supplier or its business unless: (a) it has received the express written consent of Supplier, or (b) it is required to do so by Law.