Botmetric Partner and Resell Subscription Agreement
Last modified: March, 2017
This Botmetric Partner and Resell Subscription Agreement (the “Agreement”) is between Botmetric LLC (“Botmetric”, “we”, “our” or “us”) and the applicable partner reseller (“Botmetric Partner”, “Botmetric Reseller”, “PARTNER”, “you” or “your”) showing interest to be a Botmetric partner wither for re-selling of using Botmetric to provide Managed Services to its clinets. Botmetric and Partner are also referred to as “Party” and collectively as the “Parties”. The Partner will be using the Botmetric Product as per the terms of this agreement subject to and in consideration of the mutual promises, conditions, and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
“Content” means information obtained by us from our content licensors or publicly available sources and provided to you pursuant to an Order Form, as more fully described in the Documentation.
“Customer” means the company or other legal entity and or affiliates, agencies third party organization for which PARTNER is providing managed services in accordance with an agreement.
“Documentation” means our online user guides, documentation, help and training materials, as updated from time to time, accessible via our Website.
“Licensed Product” means all of Botmetric’s software programs which are issued to PARTNER and PARTNER’s Customer’s internal business use (including without limitation software programs which are installed on the hardware), together with the Documentation and any of the upgrades and updates to those software programs.
“User” means an individual who is authorized by you to use our Service, for whom you have ordered the Service, and to whom you (or we at your request) have supplied a user identification and password.
“Your Data” means electronic data and information submitted by or for you to the Purchased Services or collected and processed by or for you using the Purchased Services, excluding Content and Non-Botmetric.com Services.
“Services” or “Purchased Services” means Services that you purchase from our Website via our online Subscription or through our Purchase Order Form as distinguished from those provided pursuant to a free trial. These Services are made available online on Botmetric.com
SCOPE OF THIS AGREEMENT
PARTNER intends to resell Botmetric Product to their Customers and/or use Botmetric Product to provide value added IT /Cloud Services to their Customers. The specific scope of services for PARTNER include:
- Reselling Botmetric Product to their Customers as per the Terms mentioned below(“See Terms”).
- Non exclusive license to use Botmetric Product in accordance with the terms of this Agreement;
- Botmetric for Proof of concepts and trials. The Terms below states the duration and scope for the trials and Proof of concepts;
- API from Botmetric team: Botmetric team will provide an “Application Programming Interface” to the PARTNER to enable administrative capabilities that includes Botmetric account creation, account deletion, user addition and deletion. The details of the API will be furnished via a separate Botmetric API Document after executing this Agreement;
- PARTNER will manage and maintain their Customer data and account. Botmetric shall not be held responsible for any data loss, data integrity, infringement and safeguard related issues;
- At Botmetric’s request PARTNER agrees to provide the required Customer information to Botmetric to help facilitate support and troubleshooting or to continue providing Services;
- PARTNER acknowledges and agrees that subject to the terms of this Agreement, Botmetric authorizes you as a non-exclusive PARTNER and/or reseller of the Product. Botmetric reserves the right to sell directly to Customers, other customers, other partners or appoint other managed service providers, in its sole discretion.
TERMS OF THE AGREEMENT
- Silver – Partner may qualify for this category as soon as your monthly billing is $500 or more or the quarterly billing is $1500 or more. The Silver category partners will get visibility on our Website and also get early access to our beta features. All Silver partners will receive a mutually percentage of the monthly billing as an incentive. You will get free access to AWS resell invoicing support via Botmetric for your customers.
- Gold – Partner may qualify for this category if your monthly billing is $3000 or more per month if your quarterly billing is $9,000 or more per quarter. The Gold category partners will get visibility on our Website and will receive early access to beta features. All Gold level partners will receive a mutually percentage of the monthly billing as an incentive . Gold partners will get free access AWS resell invoicing support via Botmetric for their customers.
- Premier or Platinum – Partner may qualify for this category if your monthly billing is more than $10,000 per month or if your quarterly billing is more than $30,000 per quarter. Premier partners will get prominent visibility on our Website. You will also get visibility into our annual product roadmaps and priority access to beta features. All Premier or Platinum Partner will receive a mutually percentage of the monthly billing as an incentive . Premier partners will receive free access to AWS resell invoicing support via Botmetric for their customers.
- Botmetric will provide product support per its existing user agreement terms. For additional information please refer to our “Terms of Service” agreement on our Website.
- Botmetric will provide up to 2 hours of Product training to PARTNER at no charge, after which an hourly rate of $300 per hour will apply.
- Botmetric will provide one free trial account per partner in Silver category, two free trial accounts in Gold category and four free trial accounts in Premier/Platinum category.
- Provision of Purchased Services: We will (a) make the Services and Content available to PARTNER pursuant to this Agreement and the applicable Order Forms, (b) provide our standard support for the Purchased Services or Services to you at no additional charge, and (c) use commercially reasonable efforts to make the online Purchased Services or Services available 24 hours a day, 7 days a week, except for: (i) planned downtime of which we shall give at least 12 hours electronic notice and which we shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific Standard Time, and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire. For additional information please refer to our “Terms of Service” agreement on our Website.
- Our Personnel: We will be responsible for the performance of our personnel (including our employees and contractors) and their compliance with our obligations under this Agreement, except as otherwise specified herein.
- Free Trial: PARTNER is entitled to free trials for upto 20 accounts in first six months from the date you agree to the terms of this Agreement. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.NOTWITHSTANDING REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS, SERVICES PROVIDED DURING THE FREE TRIAL ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
PASSWORDS AND USER IDENTIFICATION
Unless otherwise specified, a) User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content.
PARTNER will (a) be responsible for their Customers and/or Users’ compliance with this Agreement; (b) be responsible for the accuracy, quality and legality of Your Data and the means by which you acquired Your Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of our Services and Content, and notify us promptly of any such unauthorized access or use; (d) use Services and Content only in accordance with this Agreement, the Documentation and applicable laws and government regulations; e) resell only as per the terms and scope defined in this Agreement; f) not use our Website or Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material.
PARTNER warrants and agrees that it shall:
- Be responsible for its compliance and also by its Customers with respect to the terms of this Agreement and all applicable laws and regulations;
- Ensure that all Customers are bound by PARTNER’s contract for managed services and ensure that Customers cease to access and/or use Botmetric if they no longer have a valid contract or agreement;
- Refrain from any conduct that tends to damage the reputation of Botmetric or its services;
- Hold harmless, defend and fully indemnify Botmetric against any claims, actions, proceedings, damages, cost, expenses or other liability arising out of or relating to PARTNER’s and each customer’s use of the product and services;
- Make no false or misleading representations or statements concerning Botmetric or its services. PARTNER will be solely responsible for any representations, warranties or guarantees made or published by PARTNER to the extent that such representations, warranties or guarantees are inconsistent with the Service Terms.
The Parties enter into this Agreement as independent contractors and nothing within this Agreement shall be construed to create a joint venture, partnership, agency, or other employment relationship between the parties. It is the express understanding and intention of the Parties that no relationship of master and servant or principal and agent shall exist between PARTNER and the employees, agents, or representatives of Botmetric or between Botmetric and the employees, agents, or representatives of PARTNER, by virtue of this Agreement.
THIRD PARTY PRODUCT and SERVICES
Botmetric Services may contain links to third party products, technology, advertisements or websites. Botmetric makes no such representations or warranties whatsoever with respect to such third party sites, contents, products or its merchantability, fitness, etc., and is not responsible or liable for the products, contents or services provided by such third parties. For more information on the Third Party Products and Services, please see “Terms of Service” on our Website.
TERMINATION AND TRANSITION UPON TERMINATION
We may terminate this Agreement if you materially breach any provision in this Agreement and fail to cure such breach within five (5) days of written notice of such breach. In addition, we reserve the right to disable, terminate or suspend use of any portion of the Services at any time, with or without cause upon thirty (30) days written notice. You expressly agree that Botmetric will have no obligation or liability to you, your Customer, User or to any third party from termination or expiration of this Agreement or from deletion of data, suspension or termination of your use of the Service.
In addition, either Party may terminate this Agreement at any time for any reason or no reason at all by giving the other Party thirty (30) day notice in advance, in writing and also by closing your account. Upon termination or expiration of this Agreement, the Services and your account will no longer be available and accessible. Your obligations under this Agreement in respect of intellectual property and confidential information will survive the termination.
To the extent that the parties have entered into, or hereafter enter into, any separate agreement pursuant to which PARTNER is permitted to resell any Botmetric Product or services or refer prospective leads or customers for Botmetric services to Botmetric, or any other similar agreement (each, an “Affiliate Agreement”), then, without limiting Botmetric other rights under the Service Terms or otherwise, PARTNER or Botmetric may terminate this Agreement (and for clarity, PARTNER’s subscription for Services hereunder) by written notice thereof to other party, thirty (30) days prior to the date of termination.
If Termination is initiated by PARTNER then:
- PARTNER must provide thirty (30) day notice prior to termination and in writing;
- PARTNER must make any and all payments payable to Botmetric immediately;
- Following any termination of PARTNER’s subscription for Services hereunder (which may include, for clarity, any termination of this Agreement), Botmetric shall have the right, but is under no obligation, to sell or provide to such Customers, directly or indirectly (including through any other managed service provider or reseller), without restriction and shall not be liable and shall not owe any compensation to PARTNER or its Customers for any reason related thereto.
- Should PARTNER terminate it’s relationship with its Customer and allow Botmetric to continue the engagement directly with the Customer, Botmetric will allow a period of fifteen (15) days for such a transition including capturing and organizing any customer relevant data.
COMPLIANCE WITH LAWS
Botmetric and PARTNER each agree to comply with all laws, rules, and regulations applicable to this Agreement or the performance of services hereunder. If either party is required to pay any fine or penalty resulting from the other party’s violation of such laws, rules or regulations, the party who committed the direct violation shall immediately reimburse the other for any such payment. Each party shall at its expense, obtain and maintain all applicable governmental approvals, consents and licenses relating to the use and/or reselling of the product.
Botmetric retains all intellectual property rights and you or your Customer acquire no right or interest in any such intellectual property, by virtue of this Agreement or the services performed and or accessed under this Agreement.
No License granted. Nothing contained in this Agreement shall be construed to grant to PARTNER or to its Customers any right or license under any Intellectual Property Right of Botmetric. “Intellectual Property Rights” shall mean copyright rights(including, without limitation, the exclusive right to use, make recordings of, reproduce, modify, adapt, edit, enhance, maintain, support, market, sell, rent, sell for rental, sublicense, distribute copies of, publicly and privately display and publicly and privately perform, exploit, exhibit, the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, trade names, trademarks, service marks and trade dress) trademark and service mark registrations and applications, patent rights (including without limitation the exclusive right to make, use and sell), patent registrations and applications, trade secrets, moral rights, author’s rights, right of publicity, contract and licensing rights, rights in packaging, goodwill and other intellectual property rights, as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of any state, country or jurisdiction.
Botmetric gives you a personal, worldwide, royalty-free, cancellable, non-assignable, non-transferable and non-exclusive license solely to use the software provided to you by Botmetric as part of the Services and is valid only during the term of this Agreement. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Botmetric, in the manner permitted by these terms. You or your Customers may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software.
PARTNER or its Customers shall not use any of Botmetric trademark, service marks, names or logos without Botmetric’s express prior written consent in each case. In the event Botmetric provides such consent, (a) all such PARTNER use shall be limited to the term of PARTNER’s subscription for relevant Services hereunder, comply with any style guides or other requirements specified by Botmetric, and inure solely to the benefit of Botmetric, and (b) PARTNER shall cease all such use upon Botmetric’s written request thereafter.
- Botmetric Product may have certain confidential, proprietary information and/or trade secrets that are valuable to Botmetric. Confidential Information shall mean any and all such information provided to PARTNER, its Customers and Users in whatever form, verbal or otherwise, including, but not limited to, business plans, marketing plans, financial records and analysis, research, technical specifications, marketing-sales-pricing data, designs, Agreements, trade secrets, software or other intellectual property, whether or not identified as “Confidential Information”, in whatever media, electronic or otherwise, and any other materials identified in writing as “Confidential Information.”
- PARTNER, its Customers and Users are not entitled to use or disclose this confidential information other than in accordance with the terms of this Agreement.
- PARTNER expressly gives permission to Botmetric to include and publish PARTNER’s logo and name on Botmetric’s list of partners
- Injunctive relief: PARTNER, Customer and User acknowledge that breach of this section or disclosure of other information which, at law or in good conscience or equity, ought to remain confidential, will give rise to irreparable injury to Botmetric or the owner of such information, inadequately compensation in damages. Accordingly, Botmetric may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies, which may be available.
- Return of confidential information: Upon the earlier of (i) a request of the Botmetric; or (ii) the expiration or termination of this Agreement, PARTNER, Customer and User will return all confidential information, in whatever form or media, retaining no copies of the same in any form whatsoever, or destroy such Confidential Information and certify in writing to the disclosing party such destruction has been effected. PARTNER, Customer and User obligations hereunder regarding Confidential Information shall survive the return or destruction of such Confidential Information or termination of this Agreement or completion of the services.
CHANGES TO AGREEMENT
There may be changes to this Agreement from time to time, in our sole discretion. We will replace this page with an updated version which will govern your Services. We will use reasonable efforts to notify you of these changes through our website or other forms of communication, but we recommend in your own interest to check the Agreement page periodically on our web site so as to be aware of any changes that may occur from time to time.
PARTNER and its Customers agree to indemnify, defend and hold Botmetric, its members, officers, directors and employees, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents harmless, from and against any third party claims, demands, loss, damage or expense relating to bodily injury or death of any person or damage to real and/or tangible personal property directly caused solely by the negligence or willful conduct of the indemnifying party, its personnel or agents in connection with or arising out of PARTNER’s use or sale of the product and/or breach of any term of this Agreement; any fines or penalties that may arise as a result of breach of compliance obligations with laws, rules and regulations including but not limited to export laws. PARTNER agrees to promptly notify Botmetric when you become aware of any breach of a requirement of this Agreement or of any lawsuit or proceeding.
PARTNER and its Customers agree to comply with any international and national laws that apply to the products/technologies licensed under this Agreement, including the U.S. Export Administration Regulations, as well as any end-user and country-destination restrictions issued by the U.S. and other governments. PARTNER acknowledges that the product is designed with capabilities to access the services environment without regard to geographic location and to transfer or otherwise move customer content and applications between the services environment and other locations. PARTNER is solely responsible for the authorization and management of user accounts, as well as export control and geographic transfer of customer content and applications.
DISCLAIMER OF WARRANTY
BOTMETRIC MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCAHNTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. BOTMETRIC’S PRODUCT AND SERVICES ARE PROVIDED “AS IS”. BOTMETRIC DOES NOT WARRANT THAT THE PRODUCT OR ANY SERVICES, SOFTWARE OR OTHER DELIVERABLES PROVIDED WILL SATISFY PARTNER OR EACH OF IT’S CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR OR BUG FREE, OR THAT THE OPERATION OF ANY SOFTWARE PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. BOTMETRIC DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES. BOTMETRIC MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE PRODUCT.
LIMITION OF LIABILITY
YOU AND EACH OF YOUR CUSTOMER USE THE PRODUCT AT YOUR AND SUCH CUSTOMER’S OWN RISK. IN NO EVENT SHALL BOTMETRIC BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF BUSINESS, OR GOODWILL, LOSS OF REVENUE, PROFITS, DATA, OR DATA USE.NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY YOU AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT. IN NO EVENT WILL OUR LIABILITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT OR TORT OR BREACH OF WARRANTIES OR STRICT LIABILITY OR FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE EXCEED THE AMOUNT OF TOTAL FEES ACTUALLY PAID BY YOU FOR THE SERVICES UNDER THIS AGREEMENT IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM OR EQUIVALENT AMOUNT, AS CALCULATED ON AN AMORTIZED BASIS.
Except for the duty to make payments hereunder when due, and the indemnification provisions under this Agreement, neither Party shall be responsible to the other for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, “Force Majeure Event” shall mean: Any act of God, act of nature or the elements, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes (except financial) beyond the control of either party. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement.
No waiver by either party of any of the terms, provisions or conditions of this Agreement shall be effective unless the waiver is in writing and signed by an authorized representative of both parties.
PARTNER shall not assign this Agreement, either in whole or in part, without the express prior written consent of Botmetric. Any such attempted assignment shall be void.
In the event any provision of this Agreement is inconsistent with or contrary to any applicable law, rule, or regulation, the provision shall be deemed to be modified to the extent required to comply with the law, rule, or regulation, and this Agreement, as so modified, shall continue in full force and effect.
GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by, and interpreted and construed in accordance with, the substantive laws of state of Delaware, U.S.A., conflicts of law excluded. Any disputes arising out of or relating to this Agreement, and the use of our Website and/or our Services, any and all claims arising out of or relating to this Agreement, our Website, or our Services, will be litigated exclusively in the federal or state courts of Delaware, U.S.A., and you consent to the personal jurisdiction in those courts.
This Agreement, along with the Terms of the Agreement, constitutes the entire agreement, and such agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter thereof. For clarity, the parties acknowledge that this Agreement is a “Subscription” under the Service Terms. This Agreement may not be modified or amended except as described in section Changes To Agreement or otherwise with the written permission of Botmetric. This Agreement may be executed in counterparts, each of which shall be deemed an original (and may be delivered by pdf or other facsimile format acceptable to both parties) and both of which together shall form a single instrument. As used herein and unless the intent is expressly otherwise in specific uses, the words “include,” “includes” or “including” shall not be limiting and “or” shall not be exclusive. The section titles and headings herein are for convenience only and shall not affect the substance of this Agreement.