Reseller Terms
Responsibilities of Reseller.
Generally. Reseller shall use commercially reasonable efforts to promote, market, and resell the Software (“Reseller Services”). Reseller Services may be further defined in a SOW. Reseller is solely responsible and liable for all costs associated with its activities, including, but not limited to, marketing, promoting, and advertising costs, travel costs, legal costs, and all applicable taxes. When engaging in the Reseller Services, Reseller shall: (i) not engage in any deceptive, misleading, illegal, or unethical practices; (ii) comply with all applicable federal, state, and local laws and regulations including, without limitation, the CAN-SPAM Act and all applicable privacy regulations; (iii) not engage in sales, promotion or marketing activities on behalf of any party whose business involves products or services that compete with or are substantially similar to the Software; (iv) not communicate any information with respect to guarantees or warranties regarding the Software; and (v) not use Movatic’s Marks as part of Reseller's corporate or business name, for any purpose other than to perform the Reseller Services, or in any manner that Movatic, in its sole discretion, may consider misleading or otherwise objectionable.
Use of Materials. Reseller shall use creative material provided by Movatic or copies of such creative materials; or other materials created by Reseller that are consistent with the marketing materials of Movatic and approved in writing by Movatic in advance (collectively, “Materials”) to perform the Reseller Services. Reseller agrees that it will at all times perform the Reseller Services in a manner consistent with Movatic’s marketing and product materials and will not make any representations or warranties concerning Movatic or the Software, except as set forth in printed marketing collateral or documentation or standard terms of service furnished by or approved by Movatic.
Agreement by End User. In each license of the Software to an End User, Reseller shall require End User to agree to Movatic’s then-current Platform Terms of Service found here: https://legal.movatic.co/platform-tos. End User will make any and all payments for access to and use of the Software to Movatic, in accordance with Movatic’s then-current pricing fees, or such other fees as Movatic may agree upon in writing. Reseller shall not make any representations or warranties related to the Software, including, but not limited to the fees to be paid by Customer, unless Movatic has agreed to such representations or warranties in writing.
Compensation and Prices.
Reseller shall pay to Movatic the license fees for each unit of Software as agreed to in their annual pricing sheet to be resold or distributed to End Users at Movatic’s then-current price.
In consideration of this Agreement, Reseller shall receive the benefit of the compensation received from End Users from reselling the Software owned by Movatic. End Users shall be responsible for paying all taxes relating to its purchase and use of Reseller Services and/or Deliverables, except for those taxes based on Reseller’s income, or which is Reseller’s responsibility. End Users shall be responsible for all agreed to expenses and costs incurred by Movatic while performing under the Services.
Reseller Obligations.
Reseller shall provide installation, support, and training services to End Users through telephone support, on-line or Internet-based support, on-site support or training related to the use, operation and installation of the Software and distribution of new releases of the Software to End Users consistent with the written Materials and documentation provided to Reseller by Movatic.
Records; Audit. Reseller shall keep complete and true books of accounts and other records in sufficient detail of all transaction resells to End Users and with respect to Reseller’s obligations under this Agreement, including this Exhibit. Movatic shall have the right, upon at least thirty (30) days written notice and no more than once per calendar year, to have its accounting representatives inspect Reseller’s books and records and all other documents and material in the possession, or under the control, of Reseller with respect to the subject matter of this Agreement at the place or places where such records are normally retained by Reseller. Each party shall be responsible for its own costs associated with an audit unless the audit reveals transactions with Reseller’s affiliates and/or subsidiaries (as defined in Section 5 of this Exhibit), in which case Reseller shall bear the costs of Movatic for the accounting fees actually incurred in conducting the audit. If the audit reveals transactions between Reseller and any of its affiliates and/or subsidiaries, Movatic shall have the right to terminate this Agreement and such transactions would constitute a material breach of this Agreement by Reseller, which breach will not be subject to any cure right.
Movatic Right To Resell Reseller's Products. The Reseller will grant Movatic reseller rights to any product that is sold in conjunction with Movatic's software to be listed at shop.movatic.co or other Movatic channels. The Reseller will grant Movatic's at least a 10% discount for any product fulfilled by the Reseller or 30% for any product stocked and fulfilled by Movatic. If the Reseller providers other channels with higher discounts than the discounts listed above the Reseller must provide that rate to Movatic.
Ownership
Software. Notwithstanding any other terms contained in any other signed writing, Movatic, its affiliates, and its licensors own all rights, title, and interest in and to the Software, and all related technology and intellectual property right, including to all modifications, improvements, and derivative works created. Reseller obtains no rights under this Agreement or any other subsequent agreement from Movatic or its licensors to the Software, including, without limitation, any related intellectual property rights. Movatic reserves all intellectual property rights not explicitly granted herein.
Use of Marks and Materials. Movatic hereby grants to Reseller a non-transferable, non- exclusive, revocable, non-sublicensable license to use Movatic’s names, logos, trademarks, service marks or other indicia or trade origin (“Marks”) and Materials to perform the Services established by this Agreement. Except as provided herein, nothing contained in this Agreement shall be construed to grant to Reseller any right, title, or interest (including all intellectual property rights therein) in or to the Movatic Marks and Materials. Movatic retains all rights, titles, and interests in its Marks and the Materials and all reproduction and use of the Marks and Materials in relation to this Agreement, and all goodwill associated therewith, inures exclusively to the benefit of Movatic.
Reseller Warranties.
Reseller represents and warrants to Movatic that all Reseller Services will be carried out in a diligent, prompt, and professional manner by individuals with the necessary knowledge and training to provide the Reseller Services. Reseller represents and warrants that at no time through their own words or actions or the words or actions of individuals providing Reseller Services on Reseller’s behalf, will they disparage the name or reputation of Movatic or the Software.
Reseller represents and warrants that Movatic shall be the only sharing, renting, and/or shared mobility software service promoted, marketed, distributed, licensed, sublicensed or sold by or on behalf of Customer to third parties.
Reseller represents and warrants that Reseller shall not directly or indirectly resell, promote, market, or otherwise distribute the Software to any of Reseller’s affiliates or subsidiaries, and that all transactions with End Users shall be bona fide arm’s length transactions, which are subject to Movatic’s audit rights and review, in its sole reasonable discretion. For purposes of this Exhibit, an “affiliate” means any person, firm, corporation, association, organization, or unincorporated trade or business that, now or hereafter, directly or indirectly, controls, is controlled by, or is under common control with Reseller, including without limitation, any service corporation of the Reseller, and a “subsidiary” means (a) any corporation, 50% or more of the outstanding voting stock of which is owned by Reseller or by one or more subsidiaries of Reseller, or (b) any other entity or enterprise, 50% or more of the equity or the voting control of which shall be owned by Reseller or by one or more subsidiaries of Reseller, with ownership or control to be determined at the relevant time by Reseller’s management.
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