This Reseller Agreement (“Agreement”) is entered into by and between Text Us Services, Inc. (“TextUs”) and the reseller signing the Reseller Order Form (“Order”) referencing this Agreement (“Reseller”). This Agreement is effective as of the first date on which Reseller and TextUs sign an Order referencing this Agreement. TextUs and Reseller are each a “Party” and together the “Parties” to this Agreement. Capitalized terms used but not defined in the context in which they are used have the meaning set forth in Exhibit A.
TextUs provides the Messaging Services, Messaging Software, Administration Software, and Technical Support, each as defined in the Order (together the “TextUs Platform”). Reseller provides its Customers (as defined below) access to its hosted software (“Reseller Software”) and related services. Reseller desires to integrate the Messaging Software into the Reseller Software. Subject to the terms of this Agreement, and provided that Reseller remains in compliance with this Agreement, TextUs desires to provide Reseller access to and use of the TextUs Platform.
BY PLACING AN ORDER WITH TEXTUS, RESELLER AGREES TO BE BOUND BY THIS AGREEMENT. RESELLER SHALL NOT PLACE AN ORDER WITH TEXTUS IF RESELLER DOES NOT AGREE TO THIS AGREEMENT.
Based on the foregoing premises and in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1Term
The effective date, initial term, renewal terms, and conditions surrounding termination shall be set forth in the Order.
2Appointment
2.1Territory
The “Territory” shall be set forth in the Order.
2.2Grant of Rights
Subject to the terms of this Agreement, and provided that Reseller remains in compliance with this Agreement, during the Term, TextUs grants Reseller a limited, non-exclusive, non-transferrable, non-sublicensable right to: (a) integrate the Reseller Software with the Messaging Software in order to provide access to the Messaging Services through a user interface designed, built, owned, and operated by Reseller on the Reseller Software (the “Reseller Texting App”); (b) subject to the terms of a valid Customer Agreement, provide Reseller’s Customers in the Territory access to the Reseller Texting App which can only be sold and used as part of the Reseller Software; and (c) access Technical Support.
2.3Restrictions
Reseller acknowledges that the TextUs Platform and all software, hardware, data, databases, and other technology comprising or provided by TextUs through the foregoing and all methods, techniques, systems, procedures, know-how, inventions, and other technology used by or on behalf of TextUs to provide the foregoing (collectively the “TextUs Technology”), constitute the valuable intellectual property of TextUs. As an express condition to the rights granted to Reseller under this Agreement, and in addition to the other conditions in this Agreement, Reseller will not and will not permit any third party to: (1) use or access any TextUs Technology or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, revise, translate, or create derivatives (including derivative works) from any TextUs Technology; (3) sublicense, distribute, sell, convey, assign, pledge, or otherwise transfer or in any way encumber any TextUs Technology or any portion thereof; (4) use any TextUs Technology for the benefit of any third party or make any Technology available to any third party, other than Reseller’s Customer’s subject to a Customer Agreement; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for any TextUs Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the TextUs Technology; (7) access or utilize any TextUs Technology for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation or hosting of any TextUs Technology or attempt to gain unauthorized access to any TextUs Technology; (9) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on any TextUs Technology; (10) download, capture, extract, or otherwise remove or use any TextUs Technology other than in connection with the Reseller Texting App.
2.4Customer Agreements
Prior to each Customer obtaining access to or use of the Reseller Texting App, Reseller will require that the Customer enter into a binding agreement with Reseller covering the Reseller Texting App (a “Customer Agreement”). The Customer Agreement shall either (a) require Customer agree to TextUs’ Acceptable Use Policy and Data License at [URL], as may be updated from time to time (the “AUP”) or (b) bind Customer to terms which are substantially similar to the AUP. Upon request by TextUs, IN NO EVENT WILL TEXTUS BE LIABLE TO RESELLER, ANY CUSTOMER, OR ANY OTHER THIRD PARTY UNDER ANY CUSTOMER AGREEMENT.
2.6Modifications
TextUs reserves the right, at any time, to update or modify the TextUs Platform and will use commercially reasonable efforts to notify Reseller thirty (30) days in advance of any update or modification.
2.7Relationship of the Parties
Subject at all times to each Party’s obligations hereunder, neither Party shall be restricted in its ability to partner or do business with or seek partnerships or business relationships with any other entities. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
3Branding
3.1TextUs Marks
Reseller will market and promote the Reseller Texting App as part of the Reseller Software under Reseller’s own brand. Reseller may include the subtitle “Powered by TextUs” (or such other attribution statement mutually agreed upon by the parties) on the Reseller Texting App and any marketing materials utilized by Reseller for promoting the Reseller Texting App. During the Term, TextUs grants Reseller a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to the TextUs Marks as necessary to provide and market the Reseller Texting App to Customers. All use of the TextUs Marks by Reseller shall be subject to TextUs’ prior written approval (email to suffice), not be unreasonably withheld, and any commercially reasonable brand guidelines TextUs may provide. All use of the TextUs Marks and the goodwill associated therewith shall inure to the benefit of TextUs.
3.2Marketing Materials
TextUs may provide Reseller TextUs marketing and promotional Materials. Subject to the terms of this Agreement, TextUs grants to Reseller during the Term a non-exclusive, non-transferable, non-sublicensable, royalty-free license to use, reproduce, and distribute any Materials solely for promotion of the Reseller Texting App. Reseller will include all required and directed TextUs copyright and other proprietary notices on any reproductions of the Materials. Reseller will use the Materials provided to promote the Integrated Platform.
4Reseller’s Obligations
4.1Customer Support
Reseller shall have primary responsibility for the Customer relationship including all forms of training, set up, onboarding, billing, and technical support as it relates to Reseller Software and Reseller Texting App. Reseller shall inform TextUs of any defects encountered by any of its Customers with the Messaging Services or Messaging Software where either is not working as designed by TextUs.
4.2Customer Fees
All fees, rates or charges charged by Reseller to Customers for the Reseller Texting App shall be determined solely by Reseller. Reseller is solely responsible for invoicing and collecting all such amounts from its Customers. Reseller bears all risk of non-payment by Customers and is solely responsible for its costs and expenses associated with collection.
4.3Records and Inspection
During the Term and for a period of twelve (12) months thereafter, Reseller shall keep and maintain complete and accurate records reflecting all information reasonably required for TextUs to confirm Reseller’s compliance with the terms of this Agreement. TextUs will have the right, at any time during Reseller’s regular business hours, upon five (5) days’ prior notice, to examine, inspect, and take extracts from the records required by this Section or from any other books and records of Reseller relating to the performance of Reseller under this Agreement to verify whether Reseller has complied with the terms of this Agreement, including with respect to the payment of all Fees and any other charges due under this Agreement. TextUs may retain an independent auditor to conduct any such inspection, subject to appropriate confidentiality restrictions. If any such inspection reveals an underpayment of the amounts due to TextUs, Reseller will promptly pay the amount of the underpayment. Reseller will pay TextUs interest on the amount of such underpayment from the time of such underpayment at a rate of twelve percent (12%) per annum or the maximum amount permitted by applicable law, whichever is lower. TextUs will bear its own costs and expenses in connection with such inspection, provided that if any inspection reveals an underpayment to TextUs in excess of five percent (5%) of the Fees due to TextUs during any given month, or if the inspection shows Reseller to be in material breach of this Agreement, Reseller will reimburse TextUs for all reasonable costs and expenses incurred in connection with such inspection.
5Fees and Payment
5.1Fees
Reseller shall pay the fees for use of the TextUs Platform to provide its Customers access to the Messaging Services through the Reseller Texting App (“Fees”) as set forth in the pricing schedule set forth in Pricing Schedule on the Order (the “Pricing Schedule”). Unless otherwise expressly indicated in the Pricing Schedule, all payments of Fees shall be due and payable within thirty (30) days after the date of the applicable invoice and are non-refundable. If Reseller fails to pay any Fees when due, TextUs may charge a late fee on such Fees calculated at the lesser of (a) rate of one and one-half percent (1.5%) per month of the total outstanding amount and (b) the maximum rate permitted by applicable law.
5.2Taxes
All Fees are exclusive of all taxes and Reseller shall pay (and TextUs shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including, without limitation, any federal, state and local sales, use, goods and services, value-added and personal property taxes on any payments due TextUs in connection with TextUs’ provision of the Messaging Services through the Reseller Texting App, excluding taxes based on the net income or employment of TextUs.
5.3Reseller’s Operating Expenses
As between the Parties, Reseller shall bear all expenses incurred in the performance of its obligations and the exercise of its rights under this Agreement.
6Termination and Effect
6.1Termination for Cause
Either Party may terminate this Agreement for cause upon written notice to the other Party if the other Party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after the breaching Party’s receipt of written notice from the non-breaching Party.
6.2Termination for Insolvency
Either Party may terminate this Agreement for cause upon written notice to the other Party if the other Party (a) discontinues its business; (b) fails to pay its debts or perform its obligations in the ordinary course of business as they mature; or (c) becomes the subject of any voluntary or involuntary proceeding in bankruptcy, liquidation, dissolution, receivership, attachment, or composition for the benefit of creditors.
6.3Effect of Termination
Upon termination of this Agreement for any reason: (a) all licenses and other rights granted to Reseller under this Agreement will immediately cease; (b) Reseller will immediately cease all marketing and promotion of the Reseller Texting App, (c) Reseller shall discontinue all use of or access to the TextUs Platform; (c) all Fees and other amounts due or payable under this Agreement prior to such expiration or termination will become due and payable; and (d) each Party will, at the election of the other Party, immediately return to the other Party or destroy all Confidential Information or Materials of the other Party then in its possession or control, including all copies thereof, except as set forth in Section 9.3. Upon the request of a Party, an officer of the other Party will certify in writing to such Party’s compliance with the terms of this Section.
6.4Survival
Subject to any Transition Period, the relevant portions of the following Sections will survive termination or expiration of this Agreement for any reason: Sections 5.3, 6, 7, 8, 9, 11, 12 and 13.
7Ownership
7.1TextUs Technology
As between the Parties, TextUs owns all right, title, and interest in, including without limitation any and all associated Intellectual Property Rights, in and to the TextUs Technology and any updates, enhancements, customizations, modifications, and developments thereto or derivative works thereof.
7.2Reseller Software
As between the parties, Reseller owns all right, title, and interest, including without limitation any and all associated Intellectual Property Rights, in and to the Reseller Software and any updates, enhancements, customizations, modifications, and developments thereto or derivative works thereof.
7.3Feedback
If Reseller or any Customer through Reseller provides remarks, suggestions, requests, recommendations, improvements, or comments regarding the features or functionality of the TextUs Platform, or other of TextUs’ business activities or proprietary materials (collectively, “Feedback”), such Feedback shall be the property of TextUs and TextUs may use, disclose, and otherwise exploit all such Feedback for any and all internal, public, commercial, and non-commercial purposes. Feedback is not Reseller Confidential Information.
7.4Further Assurances
At the reasonable expense of the other Party, each Party agrees to execute and have executed any applications, assignments, instruments, or other documents, and perform such reasonable acts, as the other Party may deem reasonably necessary or advisable to confirm and vest in the other party all rights, title, and interests throughout the world in and to all Intellectual Property Rights as specified in this Section and to reasonably assist the other Party in procuring, maintaining, enforcing and defending such Intellectual Property Rights throughout the world.
7.5No Other Rights
Nothing in the Agreement is intended to grant or create any right or license to either Party with respect to any Intellectual Property Rights owned, licensed, or controlled by the other Party, except as expressly specified herein.
8Confidentiality
8.1Obligations
In connection with its performance of its respective obligations hereunder, each Party (“Disclosing Party”) may disclose or make available to the other Party (“Receiving Party”) Confidential Information of the Disclosing Party. Receiving Party shall only use Confidential Information to perform its obligations under this Agreement and shall not disclose Confidential Information to any third party other than Receiving Party’s employees, officers, executives, directors, agents, consultants, and professional advisors who have a need to know such Confidential Information and who are under confidentiality obligations no less restrictive than Receiving Party’s obligations under this Section. Receiving Party will exercise at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent unauthorized disclosure or use of Confidential Information as it employs with respect to its own information of a like nature. Receiving Party shall be responsible for any unauthorized use or disclosure of Confidential Information by such employees, officers, executives, directors, agents, consultants, and professional advisors.
8.2Exceptions
Receiving Party shall not have any confidentiality obligations with regard to information disclosed to it that it can show: (a) was rightfully known to Receiving Party without restriction on use or disclosure prior to receipt of such information from Disclosing Party; (b) becomes generally known by the public without breach, negligence, or other wrongdoing of Receiving Party; (c) is rightfully received by Receiving Party by a third party which is under no obligation of confidentiality with respect to such information; or (d) was independently developed by Receiving Party without reference to or use of any portion of Confidential Information, as demonstrated by Receiving Party’s written records. If Receiving Party is ordered, as part of an administrative or judicial proceeding or other operation of applicable law, to disclose any Confidential Information, Receiving Party will, to the extent permitted by law: (i) notify the Disclosing Party of such request in writing as promptly as practicable; (ii) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in seeking a protective order or similar confidential treatment for such Confidential Information; and (iii) disclose only those portions of Confidential Information strictly required for compliance with said order or law.
8.3Return
Upon expiration or termination of this Agreement, or at the written request of Disclosing Party, Receiving Party shall either: (a) return all Confidential Information in its possession or control in any medium, including any copies or reproductions thereof, to Disclosing Party, or (b) destroy all Confidential Information in its possession or control in any medium, including any copies or reproductions thereof, and deliver a written certification of such destruction to the Disclosing Party if requested. Notwithstanding the foregoing, Receiving Party may retain Confidential Information (i) to comply with applicable law or regulation, professional standards, or internal document retention policy and (ii) as part of its automatic electronic archiving and back-up procedures; in either case provided that such Confidential Information so retained may be used solely for the foregoing purposes and for no other purposes, and shall otherwise remain subject to all of the confidentiality obligations set forth in this Section.
9Warranties; Disclaimers
9.1General Warranties
Each Party represents, warrants, and covenants to the other Party that: (a) such Party has full power and authority to enter into this Agreement; (b) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such Party is a party or by which such Party is bound; and (c) this Agreement is a legal and valid obligation binding upon such Party and enforceable in accordance with its terms.
9.2Compliance with Laws
Each Party will comply with all laws, rules, and regulations applicable to such Party in connection with such Party’s performance under this Agreement (“Laws”) and will not cause the other Party to violate any Laws, except to the extent that the failure to comply with Laws would not reasonably be expected to have a material adverse effect on the other Party.
9.3By Reseller
Reseller warrants to TextUs that Reseller (a) will only allow Customers to buy and use the Reseller Texting App with the Reseller Software; (b) has procured and shall maintain all approvals, certificates, licenses, permits or inspections required by Law applicable to Reseller’s performance under this Agreement; (c) shall make no false, misleading, or disparaging representations or statements concerning TextUs or TextUs Technology; (e) shall refrain from any unethical conduct or any other conduct damaging to the reputation of TextUs or TextUs Technology; (f) shall not, without TextUs’s prior written approval, make any representation, warranty, or guarantee on behalf of TextUs concerning TextUs Technology; and (g) has required each Customer to which it has granted access to the TextUs Technology to agree to a Customer Agreement as required under Section 2.4.
9.4Disclaimer
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, TEXTUS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WHETHER ARISING FROM STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO THE TEXTUS TECHNOLOGY OR THE SUBJECT MATTER OF THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TEXTUS SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS REGARDING THE TEXTUS TECHNOLOGY, ITS FEATURES AND FUNCTIONALITY, ITS SECURITY, AND ANY CONTENT OR OTHER MATERIAL MADE AVAILABLE THEREIN OR THEREBY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. TEXTUS DOES NOT WARRANT THAT THE TEXTUS TECHNOLOGY WILL MEET RESELLER’S OR ANY CUSTOMER’S EXPECTATIONS, SPECIFICATIONS, OR REQUIREMENTS; THAT THE TEXTUS TECHNOLOGY WILL BE FREE OF VIRUSES, MALWARE, OR ERRORS; OR THAT THE TEXTUS TECHNOLOGY WOULD NOT BE FOUND TO CONSTITUTE AN “AUTOMATIC TELEPHONE DIALING SYSTEM” OR SIMILAR IF CHALLENGED UNDER THE FEDERAL TELEPHONE CONSUMER PROTECTION ACT OR SIMILAR STATE LAW. TEXTUS FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE LOSS OR CORRUPTION OF DATA UPLOADED TO, STORED BY, OR TRANSMITTED BY THE TEXTUS TECHNOLOGY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY RESELLER OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY SUCH PARTY AS AN AMENDMENT TO THIS AGREEMENT.
10Limitation of Liability
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, REVENUES, INFORMATION, OR DATA, OR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY RESELLER TO TEXTUS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF EVENTS GIVING RISE TO SUCH LIABILITY. THE LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 11 SHALL NOT APPLY TO (A) LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 9 (CONFIDENTIALITY); (B) A PARTY’S INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (C) A PARTY’S OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION); OR (D) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11Indemnification
11.1Claims Against Reseller
TextUs shall defend Reseller and its officers, directors, shareholders, employees, contractors, agents, and representatives from any claim, suit, action, or proceeding brought against any of them by a third party to the extent arising from: (a) the TextUs Technology infringing such third party’s Intellectual Property Rights or (b) due to the use of the TextUs Marks or Materials for Reseller’s marketing and promotion of the Reseller Texting App as permitted by this Agreement (each a “Reseller Claim”), and TextUs shall indemnify and hold Reseller harmless, from and against all damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Reseller Claim or those costs and damages agreed to in a settlement of such Reseller Claim. In the event that the use of the TextUs Technology is enjoined, TextUs shall, at its option and expense either (i) procure for Reseller and the applicable Customer(s) the right to continue using the TextUs Technology, (ii) replace the TextUs Technology with a non-infringing but functionally equivalent product, (iii) modify the TextUs Technology so it becomes non-infringing, or (iv) terminate this Agreement and refund a pro-rated portion of pre-paid Fees applicable to the period following termination. TextUs will have no obligation under this Section 12.1 to the extent any infringement claim based upon: (1) any use of the TextUs Technology not in accordance with this Agreement; (2) any use of the TextUs Technology in combination with products, equipment, software, or data that TextUs did not supply, including the Reseller Software, if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the TextUs Technology by any person other than TextUs or its authorized agents or subcontractors. This Section 12.1 states TextUs’ entire liability and Reseller’s sole and exclusive remedy for infringement claims or actions.
11.2Claims Against TextUs
Reseller shall defend TextUs and its officers, directors, shareholders, employees, contractors, agents, and representatives from any claim, suit, action, or proceeding brought against any of them by a third party to the extent arising from: (a) any representations, warranties, guarantees or other written or oral statements made by or on behalf of Reseller relating to the TextUs Technology, other than as authorized by TextUs in writing; (b) any breach of a Customer Agreement; (c) the Reseller Software; or (d) Reseller’s violation of applicable law (each, a “TextUs Claim”) and Reseller shall indemnify and hold TextUs harmless, from and against Losses that are specifically attributable to such TextUs Claim or those costs and damages agreed to in a settlement of such TextUs Claim.
11.3Conditions
As a condition to obtaining indemnification from the other Party under this Section 12, each Party will: (a) give the other Party prompt notice of any claim for indemnification; (b) grant to the other Party sole control of the defense or settlement of any resulting legal proceedings, provided that any such settlement involves only the payment of money and does not subject the indemnified Party to any continuing obligation or require any admission of criminal or civil responsibility; and (c) provide the other Party with reasonable cooperation and, at the other Party’s request and expense, assistance in the defense or settlement of any claim for indemnification. Notwithstanding the foregoing, the indemnified Party may participate in any defense, settlement, or other legal proceedings relating to any such indemnification at such Party’s expense through counsel of such Party’s choice.
12Miscellaneous
12.1Export Controls
The TextUs Technology may be subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. Reseller agrees to strictly comply with all such Laws and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. Reseller will indemnify and hold TextUs harmless from any and all Losses arising from or relating to any breach by Reseller of its obligations under this Section.
12.2Force Majeure
Except for payment obligations hereunder, neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including without limitation acts of God, restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority, embargoes, fires, floods, earthquakes, explosions, natural disasters, riots, wars, sabotage, terrorism, cyberattacks, court injunction or order, and failures or fluctuations in power, heat, light, air conditioning, or telecommunications equipment or services.
12.3Notices
Except as otherwise set forth herein, all notices required under this Agreement must be in writing directed to the address for the corresponding Party listed below. Notice will be deemed effective upon: (a) actual delivery to the other Party, if delivered in person, or by national overnight courier with delivery confirmation; or (b) upon receipt after being sent by certified mail, signature required, postage prepaid. A Party may change its notice address hereunder upon written notice to the other Party regarding such change.
12.4Privacy
In the course of providing the TextUs Technology to Reseller and its Customers, TextUs may receive and store Personal Data (as defined in the DPA). TextUs shall safeguard Personal Data in accordance with the Parties Data Processing Addendum, and will not access or use such Personal Data other than as necessary to perform its obligations or exercise its rights under this Agreement.
12.5Assignment
Neither Party may assign or transfer this Agreement or any of its rights under this Agreement to any third party without the other Party’s prior written consent, which consent shall not be unreasonably withheld or delayed; except that a Party may assign this Agreement without consent by operation of law or otherwise to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns and shall not confer any rights or remedies upon any person or entity not a Party hereto.
12.6Remedies
Except as otherwise expressly provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. Each Party acknowledges and agrees that any actual or threatened breach of Sections 8 or 9 will constitute immediate, irreparable harm to the non-breaching Party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching Party agrees to waive any bond that would otherwise be required.
12.7Waiver
No failure or delay by any Party in exercising any right or remedy under this Agreement will operate or be deemed as a waiver of any such right or remedy. Any provision of this Agreement that is held to be unenforceable in any jurisdiction will be ineffective only as to that jurisdiction, and only to the extent of the unenforceability of such provision without invalidating the remaining provisions hereof.
12.8Governing Law and Venue
This Agreement will be governed by and construed in accordance with the Laws of the State of Colorado, without reference to its principles of conflict of laws. Each Party hereto: (a) consents to and waives any objections to personal jurisdiction, service of process, and venue in the federal and state courts located in Denver, Colorado; and (b) agrees that any claim, suit, action, or proceeding arising out of or relating to this Agreement will be filed and prosecuted only in such courts.
12.9Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic counterpart signatures to this Agreement shall be acceptable and binding.
12.10Integration
This Agreement, including all exhibits hereto, all documents referenced herein, and all Orders hereunder and any exhibits or attachments thereto, together constitute the final and entire agreement between the Parties regarding the subject hereof and supersede all other agreements, whether written or oral, between the Parties concerning such subject matter. TextUs may modify this Agreement at any time. TextUs will provide Reseller with 60 days’ notice of any modification to these terms.
12.11Interpretation
In this Agreement: (a) any headings are for reference purposes only and shall not be used in the construction and interpretation of this Agreement; (b) the singular includes the plural, and vice versa; (c) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation; (d) a monetary amount is in U.S. dollars; and (e) no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this Agreement.
Definitions
“Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) disclosed to Receiving Party, including trade secrets, know-how, business operations, proprietary software (including any Messaging Software provided by TextUs), plans, strategies, customers, and pricing, and information with respect to which Disclosing Party has contractual or other confidentiality obligations, that: (a) is marked or labeled as “confidential” or “proprietary;” (b) is identified at the time of disclosure as confidential, or (c) Receiving Party knows or should reasonably know to be confidential or proprietary to Disclosing Party due to the nature of the information or the circumstances of disclosure.
“Customer” means any entity purchasing access to the Reseller Software and Reseller Texting App from Reseller for its own internal use and not for resale, remarketing, distribution, or other commercial purposes.
“Intellectual Property Rights” means any and all intellectual property, proprietary, and other rights protecting intangible property throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, and any other legal rights protecting data or information.
“Materials” means any and all marketing and promotional materials provided by TextUs to Reseller from time to time, in any form or medium (whether oral, written, electronic, or other).
“Order” has the meaning set forth in the preamble of this Agreement.
“TextUs Marks” means all trademarks, service marks, trade names, brand names, logos and corporate names, slogans, trade dress and other indicia of source of origin owned by TextUs, whether or not registered, including all common law rights thereto, all registrations and applications for registration thereof, and all goodwill associated therewith.