MASTER RESELLER AGREEMENT
This Master Reseller Agreement, together with its Schedule(s) (the “Terms”) is made and entered into on the Effective Date between zeotap GmbH, a company incorporated under the laws of Germany and having its registered office at c/o WeWork, Warschauer Platz 11-13, 10245 Berlin, Germany (hereinafter referred to as “Zeotap”) and the entity signing the Reseller Partnership Form which references these Terms (hereinafter referred to as the “Reseller”). Zeotap and Reseller shall hereinafter be referred to individually as “Party” and, collectively, as “Parties.” These Terms along with the Reseller Partnership Form constitute the agreement between the parties (collectively referred to as the “Agreement“).
IT IS AGREED AS FOLLOWS:
1. Definitions
1.1. As used in this Agreement, the following terms shall have the following meanings, with such definitions to be applicable to both the singular and plural use of the terms:
“Client” means an entity who acquires Zeotap Products from Reseller.
“Client Agreement” means the agreement between Reseller and Client, which shall include the terms of the then current Master Services Agreement available at https://zeotap.com/legal-hub/master-services-agreement/ (the “MSA”) and the Data Processing Addenda (“DPA”) referenced therein (available at https://zeotap.com/legal-hub/terms-dpa), as may be periodically updated by Zeotap, as well any other document incorporated therein by reference or other client agreement with Zeotap for use of the applicable Zeotap Products.
“Client Fees” means the fee for the Zeotap Products and/or Professional Services to be provided under and specified in an Order Form and to be paid by a Client to the Reseller. The Client Fees will be dependent upon and may vary based upon the Zeotap Products and/or Professional Services to be provided under and the project associated with each particular Order Form.
“Confidential Information” includes all trade secrets, proprietary information, know-how, and any confidential information delivered by or on behalf of the disclosing Party to the receiving Party or its representatives furnished during the term of these Terms and regardless of the manner in which it was furnished, including all analyses, compilations, studies or other documents or records prepared by the receiving Party and its representatives to the extent such analyses, compilations, studies, documents or records contain, otherwise reflect, or are generated from such Confidential Information provided by the disclosing Party.
“Discount” or “Reseller Discount” has the meaning set forth in Section 3.4 below.
“Effective Date” the date of the last signature on the Reseller Partnership Form.
“Force Majeure” means any event beyond the reasonable control of either Party including, among other things, unpredictable adverse weather conditions, war, acts of God, acts of terrorism, floods, earthquakes or civil disturbance (but excluding labour disputes, strikes, industrial action or lockouts by the Party, or such Party’s staff, seeking to rely on Force Majeure)..
“Intellectual Property” means any rights in or in relation to any patent, copyright, database rights in relation to software, utility model, trademark (whether registered or not), brand name, service mark, trade secrets and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether registrable or not and existing anywhere in the world.
“Marketing Materials” means any materials prepared by Zeotap for marketing the Zeotap Products.
“Membership Levels” means the tiered levels of benefits and resources offered to Resellers under the Zeotap Partner Program, subject to specific requirements applicable to each level.
“Order Form” means the document for placing subscription orders hereunder that are entered into between Reseller and Zeotap from time to time, including addenda and supplements thereto. Each completed and fully executed Order Form will be deemed incorporated herein by reference.
“Overage Charges” means the overage charges due by a Client if the Zeotap Products Usage Thresholds specified in the Order Form are exceeded.
“Prospective Client”means an entity who is or may be interested in acquiring Zeotap Products from Reseller.
“Reseller Partnership Form” means the Reseller Partnership Form executed by both parties which references these Terms and details the reselling arrangement between the parties and any other additional terms in respect of the arrangement.
“Subscription Fees” means the Client Fees for any particular subscription order less the then applicable Reseller Discounts, and payable by Reseller to Zeotap.
“Territory” means the territory as defined in the Reseller Partnership Form.
“Usage Thresholds” means the maximum number of Known Users, Events Processed, Yearly Impression or other usage units (as specified on the applicable Order Form) that can be used within the applicable Zeotap Products without incurring in Overage Charges.
“Zeotap Party” means Zeotap, its affiliates, directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Zeotap Parties”).
“Zeotap Products” means Zeotap’s products, including those as described at https://zeotap.com/wp-content/uploads/2021/08/Zeotap-2021-Product-description-one-pagers.pdf and as update or modified from time to time.
2. General
2.1. Reseller Appointment
2.1.1 Zeotap appoints Reseller, and Reseller hereby accepts appointment, as Zeotap’s limited, non-exclusive reseller to promote and resell the Zeotap Products to Prospective Clients in the Territory on the terms of this Agreement.
2.1.2 Where Reseller identifies a Prospective Client interested in acquiring Zeotap Products the Reseller shall submit to Zeotap:
i. an Order Form; and
ii. evidence of the Client’s acceptance of the Client Agreement.
2.1.3 Within 10 days of receipt of an Order Form from Reseller, Zeotap will:
i. accept the Order Form and communicate delivery timelines to Reseller; or
ii. review the Order Form and share any proposed amendments with Reseller until the Order Form is agreed by both parties; or
iii. reject the Order Form.
2.1.4 For the avoidance of doubt, Zeotap will not review, accept or sign any Order Form in relation to any Client without evidence of that Client having accepted the Client Agreement.
2.2. Resale Terms and Conditions
2.2.1 The Reseller shall:
i. determine the Client Fees of any Zeotap Products based on the pricing guidelines provided by Zeotap;
ii. bear all risk of non-payment by Client;
iii. not use any Zeotap name and logo except as permitted by Zeotap’s trademark guidelines communicated to Reseller from time to time;
iv. not make or give any representations or warranties concerning Zeotap Products which are not contained in the MSA and/or in the Marketing Materials;
v. not represent itself as an agent or employee of Zeotap;
vi. provide that Zeotap is a third party beneficiary of the Client Agreement with each of its Clients;
vii. ensure that the Client accepts and agrees to be bound by the terms of the Client Agreement and provide evidence of such acceptance of the Client Agreement by the Client to Zeotap upon request;
2.2.2 Reseller agrees that the actions of a Client with respect to the Zeotap will be deemed actions by Reseller and any breach by any Client of the Client Agreement will be deemed to be a breach by Reseller of the same.
2.2.3 The Reseller represents, warrants and covenants to Zeotap that it will at all times, at its own expense:
i. prevent unauthorized access to or use of the Zeotap Products and notify Zeotap promptly of any such unauthorized access or use of which Reseller is aware;
ii. ensure that Clients use the Zeotap Products only in accordance with applicable laws, regulations, and this Agreement;
iii. operate as technical support desk for Clients and act as the first point of contact for all technical queries relating to implementation, configuration and use of the Zeotap Products;
iv. perform its duties and obligations in a diligent and business-like manner, in compliance with all applicable local, state, federal and foreign laws and regulations, including the General Data Protection Regulation 2016/679 (the “GDPR”) and any subordinate legislation and regulation implementing the GDPR and applicable laws regarding bribery and corruption, and refrain from any action that may damage Zeotap’s reputation or the reputation of the Zeotap Products; and
v. use its commercially reasonable efforts to promote the Zeotap Products.
2.2.4 Except as expressly permitted in the Agreement or may be permitted by applicable law that is incapable of exclusion by agreement between the parties, or unless otherwise agreed with Zeotap in writing, Reseller shall not:
i. copy, make alterations to, or modifications of, the whole or any part of the Zeotap Products or permit the Zeotap Products or any part of it to be combined with, or become incorporated in, or attached to any other programs or hardware except for the Zeotap Products;
ii. disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Zeotap Products or attempt to do any such thing;
iii. be concerned or interested either directly or indirectly in the development, sale, promotion, marketing of any products or services which compete with the Zeotap Products, or have substantially similar functionality;
iv. use all or any part of the Zeotap Products to provide services to third parties; or
v. access or use all or any part of the Zeotap Products for any illegal activities.
3. Invoicing and Payment
3.1. Fees
3.1.1 The Subscription Fees to be paid by Reseller for Zeotap Products provided to a Client pursuant to a Order Form will be the applicable Client Fees for the Zeotap Products specified on the Order Form less the Reseller Discounts.
3.1.2 Reseller shall pay invoices from Zeotap in full and without deduction within thirty (30) days from the date of invoice and in accordance with any terms specified therein.
Reseller will at all times ensure that either
(a) Clients’ use of the Zeotap Products does not exceed their respective Usage Thresholds, or
(b) if Client’s use of the Zeotap Products exceeds their respective Usage Thresholds, Reseller will pay the Overage Charges.
The fees for Overage Charges shall be payable within fifteen (15) days from the invoice date.
3.2. Payment
3.2.1 Reseller will be solely responsible for billing and collecting applicable Client Fees from Clients.
3.2.2 If Zeotap has not received payment for any invoices which are not the subject of a bona fide dispute by the due dates, then without prejudice to any other rights and remedies of Zeotap,
(i) Zeotap may suspend and/or disable Client’s and Users’ access to all or part of the Zeotap Products and/or System and Zeotap shall be under no obligation to provide any or all of the Zeotap Products while the invoice(s) concerned remain unpaid;
(ii) Zeotap shall be entitled to recover all reasonable legal fees and other reasonable costs associated with the collection of such amounts; and
(iii) Zeotap will charge a delayed payment charge at the rate of 1.5% per month compounded monthly (or, if less, the maximum amount allowed by Applicable Laws).
3.3. Taxes
3.3.1 All amounts and Fees stated or referred to in the Agreement are non-refundable and are exclusive of any applicable taxes.
3.3.2 Reseller shall pay Zeotap any tax that is due or provide Zeotap with satisfactory evidence of Reseller’s exemption from the tax in advance of invoicing.
3.3.3 Reseller shall provide Zeotap with accurate and adequate documentation sufficient to permit Zeotap to determine if any tax is due.
3.3.4 In the event the tax authorities in one country claim in accordance with its domestic tax law and a potentially applicable double taxation treaty that withholding taxes must be withheld from the payments to be made by the Reseller to Zeotap under this Agreement, such withholding taxes shall be borne by the Reseller.
3.3.5 Reseller agrees to timeously provide Zeotap with accurate factual information and documentation of Reseller’s payment of any such withholding taxes.
3.3.6 As far as possible and appropriate, the Parties will lodge an appeal against the assessment of the withholding tax.
3.3.7 The Parties shall support each other in every possible respect, especially with regard to possible applications for refunds of withholding taxes paid. If Zeotap receives any refund of withholding taxes which have been borne by the Reseller, Zeotap will remit the received payments to the Reseller.
3.4 Reseller Discounts
3.4.1 The Reseller will be entitled to the Reseller Discount attributed to the Membership Level assigned to the Reseller at the time of Reseller’s sale of Zeotap Products.
3.4.2 Zeotap reserves the right to amend the specified Reseller Discounts at any time and at its sole discretion, provided any reduction in a Reseller Discount will not be applicable to a Client transaction that is in an active sales cycle at the time of the reduction and results in an executed Order Form within ninety (90) days following the reduction.
3.4.3 The Reseller Discounts apply to the initial annual Subscription Period of each Order Form and to the Client Fees for any renewal or extension of a Subscription Period.
4. Term and Termination
4.1. These Terms shall commence on the Effective Date and continue until the expiration of all the Subscription Periods of all Order Forms unless earlier terminated in accordance with this Agreement (the “Term“).
4.2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other at any time with immediate effect upon written notice if the other party: (i) materially breaches any of its obligations hereunder and such breach remains not rectified for a period of 30 (thirty) days after the date the non-breaching Party provides written notice of such breach; or (ii) becomes insolvent or bankrupt, makes an assignment for the benefit of creditors, has a trustee or receiver appointed for it, becomes the subject of any voluntary or involuntary insolvency or dissolution, bankruptcy or reorganization proceeding, which, in the case of any involuntary proceeding, is not dismissed within 60 (sixty) days after it is commenced, or discontinues its business.
4.3. Effects of Termination. On termination or expiration of the Agreement for any reason:
4.3.1 Reseller’s rights of use granted under the Agreement shall immediately terminate;
4.3.2 Reseller shall promptly pay all monies due or to become due under the Agreement through the effective date of termination and for the remainder of the then current Subscription Period or renewal periods as applicable; and
4.3.3 all documents, data, materials, products, and equipment (including Marketing Materials) placed at the disposal of the Reseller remain in the property of Zeotap. The Reseller is required to return it all without delay and without request to Zeotap upon the termination of this Agreement. Zeotap reserves the right to demand the deletion or destruction of such materials in lieu of their return.
5. Confidentiality
5.1. Each Party shall hold all Confidential Information from the other Party in the strictest confidence and shall not, during or subsequent to the term of this Agreement, use the Confidential Information for any purpose whatsoever other than as permitted under this Agreement. Confidential Information does not include information which (i) is known to the receiving Party at the time of disclosure as evidenced by written records of the receiving Party, (ii) has become publicly known and made generally available through no wrongful act of the receiving Party, or (iii) is identified by the disclosing Party as no longer proprietary or confidential.
5.2. Obligations with respect to Confidential Information shall survive the termination of this Agreement for a period of three (3) years.
5.3. Following termination of this Agreement and upon request of the disclosing Party, all Confidential Information in any form and any copies thereof in the custody and control of the receiving Party will be deleted, destroyed or returned.
6. Intellectual Property
Each Party and/or its licensors shall remain the sole owner of its respective Intellectual Property. All suggestions, enhancements requests, feedback, recommendations or other input provided by Reseller or Clients or any other party relating to the Zeotap Products will be owned by Zeotap. Neither this Agreement nor its performance transfers from Zeotap to Reseller or Client any Zeotap Intellectual Property. Zeotap reserves all rights not expressly granted under this Agreement, and there are no implied rights granted by Intellectual Property hereunder.
7. Disclaimer of Warranties
7.1. Zeotap makes no warranties except those expressly stated in the MSA.
7.2. Zeotap offers no warranties regarding third party products or services.
7.3. Zeotap does not warrant that use of the Zeotap Products or any component thereof will be uninterrupted or error-free.
7.4. Without limiting the foregoing, Zeotap shall not be responsible for outages, end-user connection speed, data loss, or connectivity problems or any other loss or damage resulting from use of the Zeotap Products and/or third-party applications or the transfer of data over communications networks and facilities, including the internet, and Reseller acknowledges that the Zeotap Products may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.5. Except as expressly provided for in this clause 7 Zeotap (and its affiliates and suppliers) to the extent permitted by applicable law, disclaims all other warranties, express, implied or statutory, including without limitation warranties, terms and conditions of merchantability, accuracy, correspondence with description, fitness for a particular purpose or use, and satisfactory quality, and non-infringement.
8. Limitation of Liability
8.1. To the maximum extent permitted by applicable law, in no event will either party be liable to the other for special, consequential, incidental or other indirect damages, or for loss of profits, anticipated savings, business opportunity, goodwill, or loss of revenue, loss of use or loss of data (including corruption of data), or costs of procurement of substitute goods or services arising of the Agreement, howsoever caused and under any theory of liability (including contract, tort, negligence or otherwise) even if the other party has been advised of the possibility of such damages.
8.2. To the fullest extent allowed by law, Zeotap’s entire liability under this Agreement shall not exceed the amounts actually paid by Reseller to Zeotap during the twelve (12) months preceding the claim.
8.3. Nothing in this 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.
9. Indemnity
Reseller is fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of its resale of Zeotap Products. Reseller will indemnify, hold harmless and (at Zeotap’s option) defend Zeotap and each Zeotap Party from and against any claim, loss, cost, liability or damage, including attorneys’ fees, for which any Zeotap Party becomes liable arising from or relating to: (a) any breach or alleged by Reseller of any term of this Agreement and applicable laws, (b) the issuance by Reseller of any warranty or representation regarding Zeotap or Zeotap Products not specified in the MSA, or (c) any of Reseller’s other acts or omissions in connection with the marketing or resale of the Zeotap Products under this Agreement.
10. Miscellaneous
10.1. Each Party shall act as an independent contractor and not as an agent of the other Party. This Agreement is not intended to constitute, create, give effect to, or otherwise recognize a joint venture, partnership or formal business entity of any kind. This Agreement is non-exclusive and the either Party may enter into reseller agreements with any other party, at any time, without notice.
10.2. Neither Party shall be considered in breach of this Agreement to the extent that performance of their respective obligations is prevented by an event of Force Majeure. The affected Party shall as soon as possible give notice to the other Party of an event of Force Majeure upon it being foreseen by, or becoming known to the affected Party. The Parties shall use their reasonable endeavours to: (i) overcome the effects of the event of Force Majeure; (ii) mitigate the effect of any delay occasioned by any event of Force Majeure; and (iii) ensure resumption of normal performance of this Agreement as soon as reasonably practicable and shall perform their obligations to the maximum extent practicable.
10.3. During the Term, Reseller agrees that Zeotap may refer to this Agreement in a press release and use the Reseller’s logo on its website and in other promotional materials for the purposes of identifying Reseller as a reseller of Zeotap Products.
10.4. Zeotap reserves the right to audit Reseller’s compliance with the terms of this Agreement. Any audit will be conducted during normal business hours and will not unreasonably interfere with Reseller’s normal business operations. Zeotap will provide Reseller with not less than five (5) business days advance notice of its intention to conduct an audit. Reseller with provide Zeotap or its designated representatives and agents (who shall be subject to customary confidential information protection agreements) with copies of, or access to, such books and records as are reasonably requested and related to confirmation of Reseller’s compliance with the terms of this Agreement.
10.5. All notices must be in English, in writing, addressed (i) in the case of Zeotap to [email protected], and (ii) in the case of Reseller to the postal address or email address detailed in the Order Form, or such other address as either Party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
10.6. This Agreement supersedes all other commitments, negotiations and understandings. This Agreement cannot be amended except in writing and signed by both Parties. This Agreement cannot be assigned without written consent of the non-assigning Party, except that either Party may assign this Agreement (i) to an acquirer of substantially all of that Party’s assets, stock or business by sale, merger or otherwise or (ii) to a corporate affiliate. Zeotap may assign its rights and obligations under the Agreement when the Applicable Laws provides for an automatic succession, to its Affiliates or in connection with the change of control transactions, including mergers, sales of all or substantially assets.
10.7. This Agreement shall be binding upon the Parties and their respective heirs, successors and assigns. Neither Party shall assign this Agreement or any part thereof without the prior written consent of the other than by operation of law.
10.8. A failure or neglect by either Party to enforce or exercise (in whole or in part) at any time any of the provisions of this Agreement shall not be construed or be deemed to be a waiver of its rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such Party’s rights to take subsequent action.
10.9. If any provision of this Agreement is unenforceable in any jurisdiction, the unenforceability will not invalidate the remaining provisions or affect the validity or enforceability of the provision in relation to any other Party or in any other jurisdiction.
10.10. This Agreement shall be interpreted, construed and governed in accordance with laws of the Federal Republic of Germany and the Parties submit to the exclusive jurisdiction of the competent court of the city of Berlin, Germany. The Parties hereby irrevocably waive any objection to the choice of the competent court on the grounds of venue or forum non conveniens or similar grounds.