Reseller Terms and Conditions
Thank you for Partnership. Here are few other additional Terms and Conditions for the Dealers United Reseller Agreement our legal team said we needed to have.
Reseller agrees to use its best efforts to promote and develop the goodwill, resale, and licensing of the Services. Without limiting the generality of the foregoing, Reseller will use its best efforts to further the interests of Dealers United and to maximize the markets for the Services. Furthermore, Reseller shall use due diligence in safeguarding the interests of Dealers United and shall keep Dealers United informed of its activities.
Reseller will train and maintain a sufficient number of capable technical and sales personnel having the knowledge and training necessary to: (i) inform potential customers and end users properly concerning the features and capabilities of Services and, if necessary, compare the Services against competitive products and services; (ii) service and support the Services in accordance with Reseller’s obligations under this Agreement; and (iii) otherwise carry out the obligations and responsibilities of Reseller under this Agreement.
Reseller will (i) conduct business in a manner that reflects favorably at all times on Dealers United and the Services and the good name, good will and reputation of Dealers United; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Dealers United, the Services, or the public; (iii) make no false or misleading representations with regard to Dealers United or the Services; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Dealers United or the Services; and (v) make no representation, warranties or guarantees to potential customers or end users with respect to the specifications, features or capabilities of the Services that are inconsistent with the literature distributed by Dealers United. Reseller agrees to fully comply, at Reseller’s own expense, with all applicable laws, statutes, rules and regulations as are required in respect to the licensing, provision, or advertisement of the Products and Services, including, without limitation, by obtaining and maintaining all required licenses, making, executing and filing all necessary reports and declaring and paying all applicable taxes as may occur as a result of Reseller’s activities hereunder.
Reseller agrees: (a) to report to Dealers United promptly and in writing all suspected and actual problems with the Services; (b) to keep Dealers United fully informed in writing on a weekly basis of all inquiries and orders received by Reseller from prospective Customers or End Users; and (c) to confer with Dealers United on matters relating to market conditions, sales forecasting, and product planning relating to the Services.
Term and Termination
Either party shall have the right to immediately terminate this Agreement in the event: (i) the other party fails to comply with any of the material terms and conditions of this Agreement and such failure has not been cured within thirty (30) days after written notice of such default to the other party; (ii) the other party terminates or suspends its business, makes an assignment for the benefit of creditors, or has wound up or liquidated, voluntarily or otherwise; or (iii) the filing against the other party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors, or the involuntary appointment of a receiver, custodian, liquidator or trustee in bankruptcy of the other party’s property, where such petition or appointment is not vacated or discharged within sixty (60) days after the filing or making thereof. Further, Dealers United will have the right to terminate this Agreement as to Reseller at any time immediately upon written notice to Reseller if: (a) Reseller is at any time unwilling or unable to place, solicit, or procure binding orders for Services in accordance with the Minimum Account Requirements set forth on signed agreement; (b) Reseller completes a sale or transfer of all or substantially all of its assets or business; or (c) there should be a sale, transfer, or other change in control involving greater than 50% of Reseller’s equity securities.
In the event of a termination of Reseller’s appointment and engagement as an authorized reseller of Dealers United, Reseller will immediately cease all licensing or marketing efforts of the Services on behalf of Dealers United. In the event of termination or expiration of this Agreement in accordance with its terms and conditions, neither party will be liable to the other for compensation for damages of any kind or character, whether on account of the loss by Dealers United or Reseller of present or prospective profits or commissions on sales or anticipated sales, or as reimbursements for expenditures or investments made in expectation of prospective profits or commissions or on account of any other cause. However, termination of this Agreement will not relieve either party from the payment or other liabilities, obligations or benefits already accrued through the effective date of such termination or expiration under the terms of this Agreement. The rights and obligations of the parties set forth in Sections 3 and 4 (to the extent payments remain due), 6, 7, 8, 10, and 11 shall survive termination or expiration of this Agreement indefinitely, as well as any other provision that ought reasonably be constructed to survive such termination or expiration.
Upon termination or expiration of this Agreement, Reseller shall: (i) immediately return to Dealers United or destroy (A) all media containing the Services; (B) all originals and copies of the Services, manuals, documentation, product literature, fee schedules, and other written materials provided by Dealers United; and (B) all Confidential Information and other property of Dealers United, provided that such materials or information are in Reseller’s possession or under its control; (ii) immediately discontinue holding itself out as a reseller or distributor of the Services, destroy all advertising and promotional materials in its possession concerning the Services, and shall remove all signs bearing the marks of Dealers United or otherwise identifying Reseller as a representative of Dealers United; and (iii) deliver to Dealers United (in all cases within five (5) calendar days following demand by Dealers United) a document executed on behalf of Reseller certifying Reseller’s compliance with this provision.
Notwithstanding the foregoing, the following shall not be considered Confidential Information subject to the provisions hereof: (i) any information that is publicly available; (ii) information disclosed to a party by a third party not known by such party to be in breach of any agreement with the disclosing party; and (iii) information that is independently derived by a party or others from sources not bound by an obligation of confidentiality to the disclosing party.
Notwthstanding the foregoing, a party receiving Confidential Information of a disclosing party may disclose Confidential Information of the disclosing party: (i) pursuant to the requirement of a court, administrative agency, or other governmental body, provided that, prior to such required disclosure, such receiving party shall give the disclosing party reasonable advance notice of any such disclosure and shall cooperate with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information; or (ii) on a confidential basis to legal, tax, financial or other professional advisors.
Other than as specifically set forth in this Agreement, neither party has any right, title or interest in or to the name, trade name, or trademark, if any, of the or party (or, with respect to Dealers United, any of the Services) (collectively, the “Intellectual Property”). Each party acknowledges that it has no ownership rights in or to the Intellectual Property of the other party, and that it is only acquiring the right to use the Intellectual Property of the other party in connection with the performance of this Agreement. Except as expressly set forth herein, if either party desires to use the Intellectual Property of the other in connection with any advertising or promotion, such party shall be required to first submit the same in writing to the other party for its written approval which approval will not be unreasonably withheld. Each party agrees that upon termination of this Agreement it shall immediately cease and discontinue all use of the Intellectual Property of the other party.
Dealers United and its suppliers retain the ownership of all right, title and interest in and to the Services, and all patents, copyrights and other proprietary rights therein, and Reseller shall acquire no rights therein except as expressly set forth in this Agreement. Dealers United shall own all rights, title and interest in all developments of and enhancements to the Services. Intellectual Property belonging to Dealers United will also include any suggestions, ideas, enhancement requests, feedback, recommendations or other information that the Reseller or its principals, agents, affiliates, customers, or end Users may provide relating to the features, functionality or operation of the Services. Reseller shall take no action, which may adversely affect or impair Dealers United’s ownership of such materials and rights.
In connection with Reseller’s activities authorized pursuant to this Agreement, Reseller is granted, during the Term, a non-transferable, non-exclusive right to use the trademarks of Dealers United in accordance with instructions given from time to time by Dealers United. Reseller shall not attach any additional trademarks, service marks, or trade names to any Products and Services and shall not use Dealers United’s trademarks as part of Reseller’s trademarks, service marks or trade names or in any other manner that would tend to imply that Reseller has an affiliation with Dealers United other than as set forth in this Agreement.
Reseller agrees that, during the Term of Reseller’s engagement as an authorized reseller of Dealers United, and for one (1) year thereafter, Reseller shall not, directly or indirectly (including through any employer or affiliated entity): (i) solicit the trade of, or trade with, any customers or prospective customers of Dealers United or any affiliate (except for Reseller Clients, and except as contemplated in connection with Reseller’s role as an authorized reseller hereunder); (ii) become engaged as a Reseller, sales representative, or broker to any person or entity that markets, licenses, or provides products or services that are reasonably similar to (or competitive with) the Services; or (iii) solicit or induce, or attempt to solicit or induce, any employee, contractor, or consultant of Dealers United or its affiliates to leave Dealers United or its affiliate for any reason whatsoever, or hire any employee, contractor, or consultant of Dealers United or its affiliate.
Relationship of the Parties
This Agreement creates no relationship of joint venturers, partners, associates or principal and agent between the parties, and both parties are acting independently as principals. Reseller is granted no right or authority to assume or create any obligation or responsibility for or on behalf of Dealers United or its principals, agents, affiliates, or business partners, or otherwise to bind Dealers United or its principals, agents, affiliates, or business partners. Reseller shall bear all expenses of its business and Dealers United shall not be liable or responsible therefore in any manner.
(a) Entire Agreement; Severability; Waiver. This Agreement, together with the Product Terms and the Exhibits, contains the entire understanding between the parties hereto and supersedes any prior understandings and/or written or oral agreements between them respecting all subject matters contained within this Agreement. There are no representations, agreements, arrangements or undertakings, oral or written, between and among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein, in the Product Terms, or in the attached Exhibits. In the event that any provision of this Agreement may be held to be invalid the same shall not affect in any respect whatsoever the validity of the remainder of this Agreement. A waiver by a party of its rights or of the performance by any other party of any of its obligations under this Agreement shall be without prejudice to such parties other rights under this Agreement and shall not constitute a waiver of any other of such rights or of the performance by the other party of any other of its or their obligations under this Agreement.
(b) Amendment; Counterparts. This Agreement may be amended or altered but such amendment or alteration shall only be effective when reduced in writing and signed by authorized representatives, heirs, and/or executors, as applicable, of all of the parties hereto. This Agreement may be executed into any number of counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. Facsimile and electronically scanned signatures shall be deemed the same as originals and shall be legally binding.
(c) Choice of Law; Arbitration. This Agreement shall be deemed to be a contract made under the laws of the state of Florida and for all purposes the rights and obligations of the parties hereto shall be governed and construed in all respects by the laws of the state of Florida. If a dispute arises between the parties relating to this Agreement or any transaction contemplated hereunder, the parties agree that a meeting shall be held promptly between the parties, attended by individuals with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If, within fifteen (15) days after such meeting, the parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to binding arbitration in Sarasota, Florida in accordance with the rules of the American Arbitration Association (the “AAA”). The arbitrator, if a sole arbitrator, or the chairman, if a panel of three (3) arbitrators, will be a lawyer with experience in handling disputes in the data information services industry and, if a panel, the other two panel members will each have a background or training in computer law, computer science or the computer software industry. The decision of the arbitrator(s) will be final and can be enforced by any court of proper jurisdiction. Nothing in this provision shall prohibit either party from applying to the AAA for temporary or preliminary injunctive relief, in which case the hearing on any such application will be conducted in Sarasota, Florida.
(d) Notices. Any notice, offer, demand, request, consent, approval or other instrument which may or is required to be given or made under this Agreement shall be given or be made in writing and shall be served personally, or transmitted by e-mail transmission, or mailed by prepaid registered post and shall be addressed to the parties as follows:
To the Reseller:
Dealers United will contact the contact listed on the signed agreement
To Dealers United:
Dealers United LLC
1680 Fruitville Road, Suite #401
Sarasota, Florida 34236
E-mail: [email protected]
Attention: Pete Petersen, Chief Executive Officer
or to such other address as any of them may from time to time advise the others by notice given in the manner provided for in this provision.
A notice delivered by regular or certified U.S. Mail will be deemed to have been delivered on the third business day after the post-mark, if affixed by the U.S. Postal Service. Any other notice will be deemed to have been received on the date and time of the signed receipt or confirmation of delivery or transmission thereof, unless that receipt or confirmation date and time is not a business day or is after 5:00 p.m. local time on a business day, in which case such notice will be deemed to have been received on the next succeeding business day.
(e) Assignment. All of the terms of this Agreement shall be binding upon the respective successors and assigns of the parties hereto and shall inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns. Except as expressly consented to by Dealers United in writing, Reseller’s appointment and duties hereunder is expressly agreed to be personal and not to be assignable or transferable (including to or through sub-distributors or sub-resellers). For purposes of this Agreement, a sale, transfer, or conveyance (by merger or otherwise) involving greater than 50% of Reseller’s equity securities will be deemed an assignment restricted under this paragraph. Any prohibited assignment or delegation of this Agreement shall be null and void, and shall constitute a material breach and grounds for termination hereunder.