BY USING THE SERVICE OR CLICKING AGREE RESELLER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS RESELLER AGREEMENT NOT AS AN INDIVIDUAL BUT ON BEHALF OF YOUR COMPANY, THEN “RESELLER” OR “YOU” MEANS YOUR COMPANY, AND YOU ARE BINDING YOUR COMPANY TO THIS RESELLER AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT.
This agreement authorizes Reseller to provide Customers access to the proprietary Software as a Service (SaaS) Platform, Clickx, consisting of a consolidated web-based portal for tracking, reporting, managing, and monitoring online and offline marketing campaigns. The Reseller wishes to be appointed a reseller of the Clickx SaaS Platform (“Platform”) and Company is willing to make such appointment. The Company and the Reseller agree to the terms contained in this Agreement. This Reseller Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by clicking on the “I agree” (or similar button) that is presented to you at the time of your order.
- Clickx – “Company” ClickXPosure LLC, dba. Clickx an Illinois Limited Liability Company with its principal place of business located at 111 E. Wacker Drive. Suite 435, Chicago, IL 60601 and its affiliates and subsidiaries.
- Confidential Information – includes, but is not limited to, any data, oral or written, technology, developments, software, methods, trade secrets, intellectual property, proprietary information, services, business plans, clients, and any other material considered confidential by either party regardless of the form or designation of such information. Confidential information is deemed not to include information that
(i) is publically available or in the public domain at the time disclosed,
(ii) is or becomes publically available or enters the public domain through no fault of Clickx,
(iii) is rightfully communicated to Clickx by persons not bound by confidentiality obligations with respect thereto, and
(iv) any information which Clickx and Client agree is not Confidential Information.
- End User – Customer to which Reseller intends to sell the Clickx SaaS Platform.
- Feedback – Reseller information in connection with the Products or our Reseller program, including without limitation any ideas, concepts, know-how or techniques.
- Intellectual Property – means all trademarks, services marks, trade secrets, copyrights and derivative works thereof, know-how patents, patent applications, moral rights, contractual rights of non-disclosure, or any other intellectual property or proprietary rights.
- Parties – shall collectively refer to Clickx and Reseller.
- Platform – Clickx SaaS consisting of a consolidated web-based portal for tracking, reporting, managing, and monitoring online and offline marketing campaigns.
- Reseller – “You”, “your”, and grammatical variants thereof shall mean you, Reseller corporate subsidiaries, as well as corporate parents, affiliates, any other entity which has ownership or other beneficial interest in you, or any other entity in which you have an ownership or otherwise beneficial interest, and other related entities approved by Clickx to provide Products under this Agreement.
II. Appointment of Reseller
- Authorization and Appointment. The Company authorizes and appoints the Reseller and the Reseller accepts the appointment, as a non-exclusive reseller of the Clickx Platform to market, sell, or incorporate for resale. Subject to this Reseller Agreement, you are permitted to identify yourself as an Authorized Clickx “Reseller” solely in connection with the sale of the Platform. Entering into this Reseller Agreement does not qualify you as a Clickx Expert or grant you any related rights.
- Restrictions on Appointment. Reseller’s authorization from Clickx to resell Service is limited to the agreed upon territory. Additional sales locations must be pre-approved by the Company.
- Revision of Authorization. The Company reserves the right to alter the Platform at any time during the term of this Agreement. The Company will notify Reseller of such revisions.
III. Reseller Responsibilities
- Marketing. The Reseller shall use its best efforts to market, advertise, and otherwise promote and sell the Platform.
- Reseller Customer Information. The Reseller agrees to provide the name and address of Reseller’s customers as requested by the Clickx on a necessary basis.
- Records and Reports. The Reseller shall maintain records of its marketing, sales, and support and maintenance services activities under this Agreement for a period of three (3) years after termination of Agreement. Upon the Company’ request, the Reseller shall provide the Company with reports describing the Reseller’s sales of Products, including the number of Products sold, the dates and serial numbers of the Products sold, and remaining inventory on hand.
- Enforcement Cooperation. You agree to immediately notify us of any known or suspected breach of the Clickx Customer Agreement or other unauthorized use of the Products and to assist us in the enforcement of the terms of the Clickx Customer Agreement.
- Initial Term. The initial term of this agreement will begin on the effective date and end one year from the effective date, unless terminated earlier.
- Renewal Terms. Following the initial term, this agreement will automatically renew for successive 1 (one) year periods, unless terminated earlier. If a party elects not to renew this agreement, that party shall provide Notice of that intention to the other party at least 60 (sixty) days prior to the renewal date.
- Charges. You authorize Clickx to charge your credit card in the amount agreed to by the parties for the value of the services selected.
- Disputed Payment. We will not suspend the Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. In the event Client withholds payment due and owing to Clickx pursuant to this Agreement and upon resolution of such dispute in favor of Clickx, Client shall pay to Clickx within five (5) days from the resolution of such dispute an amount equal to the amount withheld together with an interest at an annual rate of twelve percent (12%) of such amount or the maximum rate permitted by law, whichever is lesser, from and including the date the withheld payment was originally due.
- Taxes. Payments made by you under this Reseller Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Clickx, you must pay to Clickx the amount of such taxes or duties in addition to any fees owed under this Reseller Agreement.
- End User Pricing and Payment; Refunds. You will independently set your own pricing to each end user. You bear all risk of non-payment by end users, and you are solely responsible for all of your costs and expenses. You may not terminate a Reseller Order or receive any refunds due to non-payment by an end user. The Clickx Platform is non-refundable, and no refunds will be issued to end users or Reseller for any reason.
VI. Intellectual Property.
- Use of Trademarks. The Reseller may, whether in connection with its own trademarks, use the then current Product names, logos and other marks (“Marks”) on the Product and all marketing and promotional material thereof as authorized by Clickx for all proper purposes in the performance of Reseller’s duties hereunder.
- Trademark Policies. The Reseller’s use of such Marks shall be in accordance with Clickx policies in effect from at the time, including, but not limited to, trademark usage and advertising policies.
- No Trademark Claims. The Reseller shall have no claim or right in such Marks and Reseller shall not make any claim or contest the use of any such Mark authorized by Clickx. Except as expressly authorized in writing by Clickx, Reseller shall not file or attempt to register any Mark or any mark confusingly similar Marks.
- Reseller Feedback. If you provide any feedback, comments, suggestions, ideas, description of processes, or other information to us about or in connection with the Products or our Reseller program, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback“), then you grant us a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this Reseller Agreement limits Clickx’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
VII. Proprietary Rights.
- Reservation of Rights by Clickx. The software; web processes, visualizations, designs; and other technologies provided by Clickx as part of the Platform are the proprietary property of Clickx and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with Clickx. Clickx reserves all rights not expressly granted.
- Customer Restrictions. Customer may not
(i) reverse engineer the Platform,
(ii) remove or modify any proprietary marking or restrictive legends in the Platform; or
(iii) access the Platform to build a competitive product or service, or copy any feature, function or graphic of the Platform for competitive purposes.
- End User Information. All uploaded information under and End User’s account remains the sole property of the End User, as between Clickx and End User (End User Information). End User grants Clickx a non-exclusive term license to use, modify, copy and prepare derivate works of the End User Information for the purpose of Clickx performing under this agreement. End User may at any time download its End User Information from the Platform. Clickx may use during and after this agreement all aggregate non-identifiable data on the Platform for purposes of enhancing the Platform, technical support and other business purposes.
- Termination without Cause. Either party may terminate this Agreement without cause upon sixty (60) days prior written notice to the other party.
- Termination for Cause. Either party may terminate this Agreement, effective immediately upon written notice to the other party if:
(a) the other party materially breaches any term of this Agreement and fails to cure such breach, which is a curable breach, within thirty (30) days after receipt of the non-breaching party’s written notice of such breach;
(b) the other party materially breaches any term of this Agreement which is not capable of cure;
- Termination on Insolvency. This agreement will terminate immediately upon either party’s insolvency, bankruptcy, receivership, dissolution, or liquidation.
- Effects of Termination. Upon any termination or expiration of this Agreement:
(a) Reseller shall cease to be an authorized reseller of the Platform and all rights and licenses granted to Reseller hereunder shall cease;
(b) Reseller shall immediately:
(i) cease identifying yourself as a Clickx Reseller,
(ii) cease all use and distribution of the Platform,
(iii) discontinue any use of the Marks,
(iv) you must destroy all Confidential Information in your possession and certify destruction and,
(iv) cease to promote, solicit or procure orders for the Platform.
Upon termination of this Agreement for any reason, there will NOT be any refunds for unsold Platforms.
- Indemnity. Reseller shall indemnify and hold Clickx, its officers, directors, employees, agents, owners, and assigns harmless from and against any and all damages, liabilities, costs and expenses (including reasonable attorney’s fees) which Clickx incurs as a result of any claim based on any breach of any representation or warranty, covenant or agreement by Reseller under this Agreement or any breach of this Agreement by Reseller.
Clickx agrees to hold Reseller harmless from and indemnify all liability for infringement of any patent, copyright or trademark rights or other intellectual property rights of third parties, which result from the sale of the Platform. Company agrees to defend Reseller in such infringement suit resulting from the use or sale of Products, including but not limited to, out of court settlements, court costs, reasonable attorney’s fees or any money judgment awarded at the conclusion of such suits subject to the understanding that Company shall have exclusive control over the defense and/or settlement of such suits.
- Conditions to Indemnity. Clickx’s obligations under this Section are contingent upon Reseller, (a) giving prompt written notice to Clickx of any such claim, (b) allowing Clickx to control the defense and any related settlement of any such claim, and (c) furnishing Clickx with reasonable assistance in the defense of any such claim, so long as Clickx pays Reseller’s reasonable out-of- pocket expenses.
- Exceptions to Indemnity. Clickx shall have no obligation under this Agreement for any claim of infringement or misappropriation to the extent that it results from: (a) modifications to the Service made other than by Clickx, (b) failure of Reseller to use updated or modified Platforms provided by Clickx to avoid a claim of infringement or misappropriation, (c) compliance by Clickx with designs, plans or specifications furnished by or on behalf of Reseller, or (d) any tampering with a Service
X. Limitation of Liability
- Damages. In no event will Clickx be liable for any direct, indirect, consequential, incidental, special, exemplary, or punitive damages or liabilities whatsoever arising from or relating to the Platform, the Platform content, or this agreement, whether based on contract, tort (including negligence), strict liability or other theory, even if Clickx has been advised of the possibility of such damages. Clickx shall not be liable for loss of use, lost data, failure of security mechanisms, or interruption of business.
- Maximum Liability. In no event will Clickx’s liability exceed the monies paid by the Reseller to the Clickx. The existence of more than one claim will not enlarge or extend this limit.
XI. No Warranty; No Leads.
Clickx does not promise, guarantee, or warrant Reseller success, income, or sales. You understand and acknowledge that Clickx will not at any time provide sales leads or referrals to Reseller.
THE CLICKX PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. COMPANY MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIAL ON OR ACCESSIBLE THROUGH ANY CLICKX PLATFORM. ANY RELIANCE ON OR USE OF SUCH MATERIALS SHALL BE AT YOUR SOLE RISK. CLICKX MAKES NO REPRESENTATION OR WARRANTY (A) THAT THE CLICKX PLATFORM WILL BE AVAILABLE ON A TIMELY BASIS, OR THAT ACCESS WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE; (B) THAT DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) THAT ANY SERVERS OR NETWORKS THROUGH WHICH THE PLATFORM IS USED IS SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
Except as otherwise set forth in this Reseller Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as “Receiving Party“) from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Clickx Technology and any performance information relating to the Products shall be deemed Confidential Information of Clickx without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document:
(i) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
(ii) is or has become public knowledge through no fault of the Receiving Party;
(iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation;
(iv) is independently developed by employees of the Receiving Party who had no access to such information; or
(v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
- Assignment and Sub-contracting. Reseller may not assign or sub-contract this agreement or any right or obligation of this agreement, by operation of law, change of control, or otherwise without prior written consent of the Clickx, which shall not be unreasonably withheld. Clickx may assign or sub-contract this agreement without Reseller’s consent.
- Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Reseller shall not recruit or solicit, directly or indirectly, any individual employed by Clickx. If Client breaches this clause by recruiting a Clickx employee, Client will pay to Clickx the sum of two-hundred and fifty thousand dollars ($250,000) as a fee for the benefit obtained by Client and to compensate Clickx for its expenses in hiring and training a replacement employee. This does not include unsolicited applications for jobs, responses to public advertisements, or candidates submitted by recruiting firms, without any direct contact between Reseller and Clickx employees.
- Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
- Customer Accessible Portions of Site. Certain portions of the Site are accessible only via password to existing Clickx customers and Resellers. If you are not a Clickx Customer or Reseller you may not access or attempt to access these portions of the Site. Resellers must complete the online registration process by providing us with current, complete and accurate information as prompted by the applicable registration form. Reseller will choose a password and a user name and is entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Clickx immediately of any unauthorized use of your account or any other breach of security. Clickx will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Clickx or another party due to someone else using your account or password.
- Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
- Amendments. No change or modification of this Agreement will be valid unless it is in writing and signed by each party to this Agreement.
- No Waiver. A party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
- Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Illinois without regard to its conflict of laws rules.
- Jurisdiction. The parties shall submit all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the Courts of Illinois.
- Waiver of Class Action Claims. You understand and agree that You will not have the right to participate in a representative capacity or as a member of any class of claimants pertaining to any claims that may arise under, or be in any way related to, this Agreement. There is no right or authority for any claim You have against Clickx to be brought on a class action basis or on any basis involving claims brought in a purported representative capacity on behalf of the general public, or on behalf of other persons or entities similarly situated. Claims brought against Clickx may not be joined or consolidated with claims brought by anyone else.
- Injunctive Relief; Enforcement. Nothing in this Reseller Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
- Compliance of Law. You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Clickx or its products and agree to comply with all applicable federal, state and local laws and regulations while operating under this Reseller Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and any similar laws or regulations in any applicable jurisdiction. You further agree to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.
- Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
- Force Majeure. A party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. In the event of a threatened default or default as a result of any of the above causes, the defaulting party shall exercise its best efforts to avoid and cure such default. In the event such an event prevents performance thereunder for a period in excess of ninety (90) days, then the non-defaulting party may elect to terminate this Agreement and/or cancel or suspend any Orders thereunder by a written notice to the defaulting party.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.