Master Service Agreement

Master Service Agreement

 

This Master Service Agreement (“Agreement”) is by and between Shout About Us, Inc., a Delaware corporation (“SAU”) and the individual or other entity (“Company”) indicated in the Order Form (defined below)  and made effective the date shown on the Order Form (“Effective Date”). Provisions for Companies designated as “Resellers” in the applicable Order Forms are governed by the provisions of Section 15 hereof, which are not applicable to Companies not designated as Resellers.  In consideration of the mutual covenants contained herein, the parties hereto agree as follows:

 

1. BACKGROUND AND PURPOSE OF AGREEMENT

SAU has developed a software platform and related software and services that assist businesses in managing online reviews, among other things (together and individually, the “Services”).  The Services are ordered via an order form or other document produced by SAU and signed by both parties that sets forth a description of the Services and the costs and other specific terms related thereto (the “Order Form”).  The body of this Agreement shall govern the parties’ contractual relationship except to the extent the Order Form specifically contradicts a provision contained in the body of this Agreement.

Company desires to access the Services to manage their online reviews.

By this Agreement, the parties wish to set forth the terms and conditions under which Company will license the Services from SAU.

2. USE OF THE SERVICES

2.1  Independent Contractor Status. The parties recognize and agree that Company and SAU are independent contractors and not partners, joint venturers, or participants in any relationship in which one can act as an agent for the other or bind the other to any obligation whatsoever.

2.2  License Grants and Restrictions

2.2.1 License to the Services.  Subject to the terms and conditions of this Agreement, SAU grants to Company a worldwide, limited, non-exclusive, non-transferable, non-sublicensable right to internally use the Services solely to support Company’s rights and obligations under this Agreement.

2.2.2 Delivery.  SAU shall use commercially reasonable efforts to make the Services available but shall have no liability for failure to do so.

2.2.3 General Restrictions.  Except as explicitly provided in this Agreement or expressly permitted by applicable law, Company will not decompile, disassemble, reverse engineer, or otherwise attempt to discern the source code of the Services; copy, modify, enhance, or otherwise create derivative works of the Services; or develop methods to enable unauthorized use of the Services.

2.2.4  Direct Sales by SAU.  SAU reserves the unrestricted right to market, distribute, and sell licenses to the Services worldwide, including without limitation through original equipment manufacturers, value-added companies, other third-party intermediaries, multi locations brands and direct to independent businesses.

2.3  Compensation.  Company will purchase the Services directly from SAU. Pricing is provided in the Order Form. SAU shall be entitled to revise the pricing set forth in the Order Form in the event its underlying costs increase.

 

 

3. PAYMENT AND REPORTING

3.1 Metrics Report. On the 1st of each month, SAU will provide to Company a monthly invoice that contains usage metrics, such as the number of active locations, location type, cost per location, and add-on service fees if applicable.

3.2 Payment Terms. Company will be invoiced on the 1^st of each month for new accounts added during the previous month. New accounts added during the previous month will be pro-rated based on the date added. Company will also be invoiced on the 1^st of each month for the upcoming month’s fees for existing accounts and new accounts added during the previous month. The upcoming month’s fees will be billed based on the total number of accounts/locations on the Shout About Us platform on the last day of the of the prior month. No pro-rated refunds will be given for accounts/locations canceled before the end of the month. Company is responsible for deleting canceled locations from their account prior to the end of the month to prevent from being charged for the upcoming month. No refunds will be given for unused or partial month’s fees. Payment shall not be conditioned on collection by Company of its Customer Service Fees, the risk of which shall be borne solely by Company.

 

3.3 Late Payment.  If Company fails to make a payment when due and fails to cure such failure within ten (10) days of notice regarding the default, SAU may suspend or terminate this Agreement at its option. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined, and compounded daily from the date due until the date paid.  Company will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by SAU to collect any amount that is not paid when due.  Amounts due from Company under this Agreement may not be withheld or offset by Company against amounts due to SAU for any reason.  All amounts payable under this Agreement are denominated in United States Dollars, and Company will pay all such amounts in U.S. Dollars.

3.4 Taxes.  Other than net income taxes imposed on SAU, Company will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement.  Company will pay any additional taxes as are necessary to ensure that the net amounts received by SAU after all such taxes are paid are equal to the amounts that SAU would have been entitled to in accordance with this Agreement as if the taxes did not exist.

 

4. INTEGRATION AND DEVELOPMENT

Company and SAU will be jointly responsible for the development and support of any integration between the Services and any platform operated by Company on which the Services are located. SAU’s support obligations shall be fulfilled via phone, skype or e-mail throughout the implementation process or during production.

 

5. TERM AND TERMINATION

5.1 Term.  This Agreement will commence upon the Effective Date and continue on a month-to-month basis (the “Initial Term”). Either party may terminate this agreement at any time with a 30-day written notice. This Agreement shall automatically, and without further action by the parties hereto, renew for additional terms of 30 days (each an “Extended Term” and together with the Initial Term, the “Term”), unless either party hereto provides written notice to the other party not to renew.

5.2 Termination for Cause / Bankruptcy.  If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 30 days prior written notice if the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.  In addition, if the other party files any petition in bankruptcy or takes (or has taken against it) any action that would have the effect of re-organizing or restructuring its assets and/or debts on behalf of creditors, the other party may declare such party in default and may terminate this Agreement.

5.3 No Liability for Termination.  Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of SAU or Company.  Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.

5.4 Effects of Termination.  If this Agreement is terminated for any reason, (a) the parties will pay each other any amounts outstanding as of the date of termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Company will immediately cease use of the SAU Services. The provisions of this Agreement that by their nature indicate that the parties intended they would survive termination of this Agreement shall survive any expiration or termination of this Agreement.

 

6. SMS/MMS MOBILE MESSAGING

6.1 Option to receive SMS messages. SAU delivers some messages, reports and notifications by SMS. These messages will provide you information regarding your service or messages requesting your feedback or a request to provide us a review. You have the ability to opt in to receive these messages from us or opt out by selecting one of the options below.

I would like to opt in to receive informational and SMS messages from Company:    Yes or No (please circle one).

*You can also opt out to receiving these messages anytime in the future by replying STOP or notifying company at 858-429-5745 or sending an email with any of the following commands STOP, END, CANCEL, UNSUBSCRIBE, OR QUIT to support@shoutaboutus.com.

7. NAME AND TRADEMARK USAGE

7.1 Use of Company Names.  Each party may identify the other as a cooperative partner in their advertising and marketing materials. However, neither party will use of the other party’s trademarks to identify the other party without the party’s prior written approval, which approval will not be unreasonably withheld.

7.2 Company’s Trademarks.  Company will have the right to place its trademarks, trade names, service marks, and logos (Company’s “Trademarks”), on the Services for purposes of identifying the Services.

7.3 Use of Trademarks.  Except as set forth in this section, nothing contained in this Agreement will grant or will be deemed to grant to the non-owning party any right, title, or interest in or to the owning party’s Trademarks.  All uses of Trademarks and related goodwill will inure solely to the owning party, and the non-owning party will obtain no rights or goodwill with respect to any of the owning’s party’s Trademarks, other than as expressly set forth in this Agreement.

 

8. PROPRIETARY RIGHTS AND NOTICES

8.1 Proprietary Rights.  Each party will own all right, title, and interest in and to its own intellectual property, software, platforms, and other Services, including any developments, improvements, and additions made thereto as a result of the parties’ cooperation under this Agreement.  Neither party will act to jeopardize, limit, or interfere in any manner with the other party’s ownership of and rights with respect to its intellectual property, software, platforms, and other Services.  Company will have only those rights in or to the Services and documentation granted to it pursuant to this Agreement.

8.2 Proprietary Rights Notices.  Except as expressly provided herein, neither party nor its employees or agents will remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the other party’s intellectual property, software, platforms, or other Services or related documentation delivered by the other party.

 

9. LIMITED WARRANTY AND DISCLAIMER

9.1 Limited Warranty. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

9.2 WARRANTY DISCLAIMER.  EXCEPT FOR THE EXPRESS WARRANTY(IES) CONTAINED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE.  NEITHER PARTY WARRANTS AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE OTHER PARTY’S SERVICES OR SOFTWARE OR AGAINST INFRINGEMENT.  NEITHER PARTY WARRANTS THAT THEIR SERVICES, SERVICES OR SOFTWARE SHALL BE ERROR-FREE OR THAT OPERATION OF THE SERVICES, SERVICES OR SOFTWARE WILL BE SECURE OR UNINTERRUPTED.  NEITHER PARTY EXERCISES ANY CONTROL OVER, AND EACH EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED ON COMPANY’S USE OF THE SAU SERVICES AND SERVICES.

 

10. INFRINGEMENT INDEMNIFICATION

10.1 Infringement Defense.  SAU will defend Company from any actual or threatened third party claim that the Services or any element thereof infringe or misappropriate any U.S. patent issued as of the Effective Date or any trade secret of any third party during the term of this Agreement if:  (1) Company gives SAU prompt written notice of the claim; (2) Company gives SAU full and complete control over the defense and settlement of the claim; (3) Company provides assistance in connection with the defense and settlement of the claim as SAU may reasonably request at SAU’s expense; and (4) Company complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

10.2 Infringement Indemnification.  SAU will indemnify Company against: (1) all damages, costs, and attorneys’ fees finally awarded against Company in any proceeding under Section 10.1; (2) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Company in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without SAU’s consent after SAU has accepted defense of such claim); and (3) if any proceeding arising under Section 10.1 is settled, all amounts paid to any third party as agreed to by SAU in settlement of any such claims.

10.3 Mitigation of Infringement Action.  If permitted use of the Services are, or in SAU’s reasonable opinion are likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 10.1, then SAU will either: (1) procure the continuing right to use of the Services; (2) replace or modify the Services in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, SAU is unable to do either (1) or (2) , SAU will terminate the licenses with respect to the Services subject to the infringement claim and refund to Company all unused fees pre-paid by Company (if any).

 

11. COMPANY INDEMNIFICATION

11.1 Defense of Claims.  Company will defend SAU from any actual or threatened third party claim arising out of or based upon (i) Company’s use of the Services in any manner other than as permitted under this Agreement, (ii) Company’s violation of any Applicable Laws (as defined below), its gross negligence or willful misconduct, (iii) Company’ material breach of any of the provisions of this Agreement. SAU will: (a) give Company prompt written notice of the claim; (b) grant Company full and complete control over the defense and settlement of the claim; (c) assist Company with the defense and settlement of the claim as Company may reasonably request and at Company’ expense; and (d) comply with any settlement or court order made in connection with the claim.

11.2 Indemnification.  Company will indemnify SAU against: (a) all damages, costs, and attorneys’ fees finally awarded against SAU in any proceeding or claim under Section 11.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by SAU in connection with the defense of such proceeding or claim (other than attorneys’ fees and costs incurred without Company’ consent after Company has accepted defense of such claim); and (c) if any proceeding arising under Section 11.1 is settled, Company will pay any amounts to any third party agreed to by Company in settlement of any such claims.

 

 

12. CONFIDENTIAL INFORMATION

12.1 Definition. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party.  Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.

12.2 Restricted Use and Nondisclosure.  During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement, and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 12; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.

12.3 Required Disclosure.  If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure, to the extent permitted by law, and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.

12.4 Return of Materials.  Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other or destroy all Confidential Information that it may have in its possession or control.  Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.

 

13. LIMITATION OF LIABILITY

13.1 Disclaimer of Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

13.2 Cap on Liability.  EXCEPT FOR LIABILITY RESULTING FROM (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) ACTUAL DIRECT DAMAGES RESULTING FROM A BREACH OR VIOLATION OF SECTION 12 (CONFIDENTIALITY), OR (C) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL A PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO SAU DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

            13.3 Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE PROVISIONS OF THIS AGREEMENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.  THE LIMITATIONS IN THIS SECTION 13 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

 

14. GENERAL

14.1 Assignability.  Neither party may assign its right, duties, or obligations under this Agreement without the other party’s prior written consent except in connection with a merger, acquisition or sale or exclusive license of all or substantially all of the assigning party’s assets to a third party.  If consent, which shall not be unreasonably withheld or denied, is given, this Agreement will bind the assigning party’s successors and assigns.  Any attempt by a party to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.

14.2 Non-solicitation.  During the term of this Agreement and for a period of one year thereafter, neither party hereto will, directly or indirectly, employ or solicit the employment or services of an employee or independent contractor or the other party without the prior written consent of such party.

14.3 Notices.  Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth below and with the appropriate postage affixed.  Either party may change its address for receipt of notice by notice to the other party in accordance with this Section.  Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier to the addresses for such parties as first set forth above.

14.4 Force Majeure.  Neither party will be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party’s reasonable control, so long as the party uses commercially reasonable efforts to avoid or remove such causes of non-performance.

14.5 Foreign Corrupt Practices Act.  In conformity with the United States Foreign Corrupt Practices Act and with SAU’s corporate policies regarding foreign business practices, neither party nor its employees and agents shall directly or indirectly make any offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government (including a decision not to act), or inducing such a person to use his influence to affect any such governmental act or decision in order to assist the party in obtaining, retaining, or directing any such business.

14.6 Compliance with Applicable Laws.  Company agrees that it shall comply with all regulations, rules, laws, and ordinances that apply to their use of the Services and their operations, including without limitation, all privacy laws such as the General Data Protection Regulation (“GDPR”), and review site policies (together and individually the “Applicable Laws”). Company acknowledges that some review sites, such as Yelp, discourage the use of reputation management software such as the Services and may even impose penalties when they discover such use. SAU does not monitor the policies of such review sites and disclaims any obligation to do so.  Company agrees to be responsible for compliance with any such policies and to accept any penalties imposed by review sites for failure to do so.

14.7 Governing Law and Jurisdiction.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.  Any dispute arising out of or relating to this Agreement shall be brought exclusively in the federal and state courts of the State of California in the County of San Diego, and the parties do hereby submit to the personal jurisdiction of such courts.

14.8 Waiver.  The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.  The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

14.9 Severability.  If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.  If any material limitation or restriction on the grant of any rights to Company under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.

14.10 Interpretation.  The parties have had an equal opportunity to participate in the drafting of this Agreement and the related Order Forms.  No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language.  The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement.  Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.

14.11 Counterparts.  This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document.  All counterparts will be construed as and constitute the same agreement.  This Agreement may also be executed and delivered by facsimile or other electronic transmission and such execution and delivery will have the same force and effect of an original document with original signatures.

14.12 Entire Agreement.  This Agreement, including the applicable Order Form, is the final and complete expression of the agreement between these parties regarding the matters addressed herein.  This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement.  No employee, agent, or other representative of either party has any authority to bind such party with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement.  No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.  This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.

 

15. RESELLER AGREEMENT PROVISIONS

The following provisions apply only to Company if the Order Form applicable to Company designates Company as a Reseller, in which case Company is referred to in this Section 15 as “Reseller.”  Resellers are governed by the entire Master Services Agreement, including this Section 15.

15.1  Appointment and Independent Contractor Status.

SAU hereby appoints the Reseller as a nonexclusive distributor of the Services, as more fully set forth in this Agreement.  Although the parties agree that Reseller may resell the Services under the terms of this Agreement and will represent SAU in that capacity, the parties recognize and agree that Reseller and SAU are independent contractors and not partners, joint venturers, or participants in any relationship in which one can act as an agent for the other or bind the other to any obligation whatsoever.  Notwithstanding the foregoing, acknowledging that its online review response service consists of and is accompanied by technology, business methods, know-how, trade secrets, processes, and other confidential information that SAU has developed over the years and not made public, Reseller agrees that it shall not enter into an agreement to resell online custom review response services of any Competing Party or represent any Competing Party’s online review response service during the term of this Agreement. “Competing Party” for purposes of this Agreement means any company, individual, or other business that competes in the same general marketplace as SAU regarding the online custom review response service.

15.2  License Grants and Restrictions.

15.2.1 License to the Services.  Subject to the terms and conditions of this Agreement, SAU grants to Reseller a worldwide, limited, non-exclusive, non-transferable, non-sublicensable right to resell the Services to its customers (“End Users”) anywhere in the world;  make the Services available to End Users and internally use the Services solely to support Reseller’s rights and obligations under this Agreement.

15.2.2 End User Sublicensing.  Subject to the terms and conditions of this Agreement, Reseller may allow End Users to access and use the Services. Prior to an End User’s accessing or using the Services, Reseller must require each End User to enter an End User License Agreement (“End User License Agreement”) with provisions that are substantially identical to the End User License Agreement that is found at https://online-review-manager.com/page/orm/agreement. This requirement is built into the login process when an End User accesses the Services via the SAU online portal, but where SAU has not built the End User License Agreement into the login process, or the End User is not logging in or accessing the Services via the SAU online portal, this requirement shall be the responsibility of Reseller.

15.2.3 Delivery.  SAU shall use commercially reasonable efforts to make the Services available to End Users following new customer sales but shall have no liability for failure to do so.

15.2.4 General Restrictions.  Except as explicitly provided in this Agreement or expressly permitted by applicable law, Reseller will not, and will not intentionally permit or authorize End Users or other third parties to (a) decompile, disassemble, reverse engineer, or otherwise attempt to discern the source code of the Services; (b) copy, modify, enhance, or otherwise create derivative works of the Services; or (c) develop methods to enable unauthorized use of the Services. In addition, during the term of this Agreement and for a period of two years following termination of the Agreement, Reseller shall not use any of the technology, business methods, know-how, trade secrets, processes, or other confidential information of SAU’s online review response service to develop, plan, design, or in any other manner create or market any online review response service intended for the use of Reseller or any third party. Furthermore, Reseller also agrees that it will not offer its own custom review response solution during the term of this agreement and for a period of two years following the termination of this agreement. Reseller also agrees not to share, during or after, SAU response templates, tools, processes, or technology with any other vendors with the intention of creating a competitive solution or advancing a competitive online review response solution.

15.2.5  Direct Sales by SAU.  SAU reserves the unrestricted right to market, distribute, and sell licenses to the Services worldwide, including without limitation through original equipment manufacturers, value-added resellers, and other third-party intermediaries and directly to end users.

15.3  Compensation. 

Reseller will purchase the Services directly from SAU.  It may sell the Services at any price it determines in its sole discretion, but payment as provided in the Order Form shall be due to SAU whether or not Reseller receives payment from its customers.  SAU shall be entitled to revise the pricing set forth in the Order Form in the event its underlying costs increase.

15.4  Additional Services.

All services required by End Users, including without limitation all support obligations, will be provided by Reseller.  However, if Reseller desires SAU to provide services beyond the license itself, the parties will agree separately in writing, and such separate agreement will be subject to the terms and conditions of this Agreement.

15.5  Metrics Report.

On the 1^st of each month SAU will provide to Reseller a monthly invoice that contains usage metrics, such as the number of active locations, location type and cost per location.

15.6  Payment Terms.

Reseller will be invoiced on the 1^st of each month for new accounts added during the previous month. New accounts added during the previous month will be pro-rated based on the date added. Reseller will also be invoiced on the 1^st of each month for the upcoming month’s fees for existing accounts and new accounts added during the previous month. The upcoming months fees will be billed based on the total number of accounts/locations on the Shout About Us platform on the last day of the of the prior month. No pro-rated refunds will be given for accounts/locations canceled before the end of the month. Reseller is responsible for deleting canceled locations from their account prior to the end of the month to prevent from being charged for the upcoming month. No refunds will be given for unused or partial month’s fees. Payment shall not be conditioned on collection by Reseller of its Customer Service Fees, the risk of which shall be borne solely by Reseller.

15.7  Customer Records. 

During the term of the Agreement, and for a period of 3 years thereafter, Reseller and SAU will maintain clear and complete records relating to the number of respective customers using services as described in this Agreement.

15.8  Currency and Late Payment. 

If Reseller fails to make a payment when due and fails to cure such failure within ten (10) days of notice regarding the default, SAU may suspend or terminate this Agreement at its option. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid.  Reseller will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by SAU to collect any amount that is not paid when due.  Amounts due from Reseller under this Agreement may not be withheld or offset by Reseller against amounts due to SAU for any reason.  All amounts payable under this Agreement are denominated in United States Dollars, and Reseller will pay all such amounts in U.S. Dollars.

15.9  Taxes. 

Other than net income taxes imposed on SAU, Reseller will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement.  Reseller will pay any additional taxes as are necessary to ensure that the net amounts received by SAU after all such taxes are paid are equal to the amounts that SAU would have been entitled to in accordance with this Agreement as if the taxes did not exist.

15.10  Other Records. 

During the term of this Agreement and for two years after, each party will maintain at its primary place of business full, true, and accurate books of account (kept in accordance with generally accepted accounting principles) and records concerning all transactions and activities under this Agreement.  Such books and records will include and record, without limitation, all data that the party is required to provide under this Agreement, as well as End User license information.

15.11  Audit of Records. 

Each party, or its authorized agent, shall have the right to examine and audit the books and records set forth in this Agreement at its own expense and upon reasonable prior notice during normal business hours. In the event of any dispute as to the sufficiency or accuracy of such records, a party may have an independent auditor examine and certify the other party’s records at the requesting party’s expense, provided that the audited party shall be required to pay for such expenses if it is determined that the audited party has underpaid amounts due by it by more than 5% for any annual period.

15.12  Account Manager. 

Each party will designate a single point of contact within its organization to manage the relationship established by this Agreement (“Account Manager”).  Either party may change its Account Manager by providing written notice to the other party.  The Account Managers will meet as necessary to discuss the business relationship and manage the activities contemplated by this Agreement.  Disputes that cannot be resolved by the Account Managers will be escalated to more senior executives for resolution.

15.13  Sales and Marketing Practices. 

In selling, marketing, and promoting the SAU products and otherwise performing under this Agreement, Reseller will 1) not engage in any deceptive, misleading, illegal, or unethical practices; 2) not make any representations, warranties, or guarantees concerning SAU Services that are inconsistent with or in addition to those made by SAU in this Agreement; and 3) comply with all applicable international, national, state, and local laws and regulations.

15.14  Reseller’s Efforts.

Reseller agrees to make commercially reasonable efforts to market the Services throughout the term of the Agreement.

15.15  End User Sales and Onboarding for The Services. 

Reseller is responsible for sales, onboarding, and support for Reseller customers enrolling to use the Services.  Reseller will provide an official contact (e-mail address) to facilitate any interaction with SAU, and SAU will use this contact to inform Reseller about successful or failed service subscription entitlements for the Services.

15.16 Second-Tier Support for The Services. 

Notwithstanding anything in this Agreement to the contrary, SAU is responsible for providing sales support to Reseller in order for Reseller to effectively offer the Services to Reseller’s customers and support their customers.

15.17  Integration and Development. 

Reseller and SAU will be jointly responsible for the development and support of any integration between the Services and any platform operated by Reseller on which the Services are located. SAU’s support obligations shall be fulfilled via phone, skype or e-mail throughout the implementation process or during production.  If SAU personnel are required to travel to Reseller’s location, the reasonable costs of such travel and boarding shall be borne by Reseller.

15.18  Use of Company Names. 

Each party may identify the other as a cooperative partner in their advertising and marketing materials. However, neither party will use of the other party’s trademarks to identify the other party without the party’s prior written approval, which approval will not be unreasonably withheld.

15.19  Reseller’s Trademarks. 

Reseller will have the right to place its trademarks, trade names, service marks, and logos (Reseller’s “Trademarks”), on the Services for purposes of identifying the Services.

15.20  Use of Trademarks. 

Except as set forth in this section, nothing contained in this Agreement will grant or will be deemed to grant to the non-owning party any right, title, or interest in or to the owning party’s Trademarks.  All uses of Trademarks and related goodwill will inure solely to the owning party, and the non-owning party will obtain no rights or goodwill with respect to any of the owning’s party’s Trademarks, other than as expressly set forth in this Agreement.

15.21  Proprietary Rights. 

Each party will own all right, title, and interest in and to its own intellectual property, software, platforms, and other Services, including any developments, improvements, and additions made thereto as a result of the parties’ cooperation under this Agreement.  Neither party will act to jeopardize, limit, or interfere in any manner with the other party’s ownership of and rights with respect to its intellectual property, software, platforms, and other Services.  Reseller will have only those rights in or to the Services and documentation granted to it pursuant to this Agreement.

15.22  Proprietary Rights Notices. 

Except as expressly provided herein, neither party nor its employees or agents will remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the other party’s intellectual property, software, platforms, or other Services or related documentation delivered by the other party.

15.23  SAU Infringement Defense. 

SAU will defend Reseller from any actual or threatened third party claim that the Services or any element thereof infringe or misappropriate any U.S. patent issued as of the Effective Date or any trade secret of any third party during the term of this Agreement if:  (1) Reseller gives SAU prompt written notice of the claim; (2) Reseller gives SAU full and complete control over the defense and settlement of the claim; (3) Reseller provides assistance in connection with the defense and settlement of the claim as SAU may reasonably request at SAU’s expense; and (4) Reseller complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

15.24  SAU Infringement Indemnification. 

SAU will indemnify Reseller against: (1) all damages, costs, and attorneys’ fees finally awarded against Reseller in any proceeding under Section 15.23; (2) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Reseller in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without SAU’s consent after SAU has accepted defense of such claim); and (3) if any proceeding arising under Section 15.23 is settled, all amounts paid to any third party as agreed to by SAU in settlement of any such claims.

15.25  Mitigation of Infringement Action. 

If permitted use of the Services are, or in SAU’s reasonable opinion are likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 15.23, then SAU will either: (1) procure the continuing right to use of the Services; (2) replace or modify the Services in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, SAU is unable to do either (1) or (2) , SAU will terminate the licenses with respect to the Services subject to the infringement claim and refund to Reseller all unused fees pre-paid by Reseller (if any).

15.26  Reseller Defense of Claims. 

Reseller will defend SAU from any actual or threatened third party claim arising out of or based upon (i) Reseller’s or its End User’s use of the Services in any manner other than as permitted under this Agreement, (ii) Reseller’s or its End Users’ violation of any Applicable Laws (as defined below), its gross negligence or willful misconduct, (iii) Reseller’ material breach of any of the provisions of this Agreement, and (iv) any End User’s use of the Services or End User’s or Reseller’s conduct in relation to the End User’s use of the Services.  SAU will: (a) give Reseller prompt written notice of the claim; (b) grant Reseller full and complete control over the defense and settlement of the claim; (c) assist Reseller with the defense and settlement of the claim as Reseller may reasonably request and at Reseller’ expense; and (d) comply with any settlement or court order made in connection with the claim.

15.27  Reseller Indemnification. 

Reseller will indemnify SAU against: (a) all damages, costs, and attorneys’ fees finally awarded against SAU in any proceeding or claim under Section 15.26; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by SAU in connection with the defense of such proceeding or claim (other than attorneys’ fees and costs incurred without Reseller’ consent after Reseller has accepted defense of such claim); and (c) if any proceeding arising under Section 15.26 is settled, Reseller will pay any amounts to any third party agreed to by Reseller in settlement of any such claims.