ShoutletResellerAgreement

RESELLER AGREEMENT THIS RESELLER AGREEMENT is entered d a into o fthis y , by and between Sway, Inc., a Wisconsin corporation with its principal address at 8313 Greenway Boulevard, Suite 100, Middleton, Wisconsin (hereinafter, “Sway”) and , a [fill in state of incorporation and entity type here] with offices located at (hereinafter “Reseller”). Sway and Reseller may each be individually referred to herein as a “Party” and collectively as the “Parties.” RECITALS WHEREAS, Sway has developed Shoutlet, as defined below, the purpose of which is to assist third parties in publicizing their products, services and news to target audiences; and WHEREAS, Reseller desires to become an authorized reseller of Sway’s Shoutlet services; and WHEREAS, Sway is willing to grant such rights to Reseller; NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows: ARTICLE 1: Definitions 1.01: “Customer” means any party to whom Reseller markets Shoutlet and which party subsequently executes a Subscriber and Services Agreement with Sway. 1.02: “Intellectual Property” means a party’s intangible property that is protectible by means of patent, trademark, copyright, trade secret or other comparable laws. 1.03: “Shoutlet” means the Shoutlet™ system created and maintained by Sway, as more particularly described in the Contract Documents. 1.04: “Trademarks” means all trademarks, service marks, trade names, logos or other designations identifying or used in connection with Shoutlet. ARTICLE 2: Grant of Rights 2.01: Authorized Reseller. Sway hereby appoints Reseller as an authorized reseller of Shoutlet upon the terms and conditions herein. Any party desiring to use Shoutlet shall be prompted to enter into such agreements and take such additional actions as Sway may require including without limitation the execution of a Subscriber and Services Agreement with Sway. 2.02: Limitations on Use. Reseller shall not use or duplicate Shoutlet (including related documentation, except as otherwise permitted herein) for any purpose other than as specified in this Agreement or make Shoutlet available to unauthorized third parties. Reseller shall not use Shoutlet or permit Shoutlet to be used for any offensive purpose, including without limitation for the marketing of pornographic materials. Reseller may not use Shoutlet for internal purposes and shall not market or distribute Shoutlet nor make it publicly available other than as specified in this Agreement. Reseller agrees not to cause or permit the reverse engineering, disassembly or decompilation of Shoutlet. 2.03: Warranties and Representations. Reseller shall not at any time, without the prior written consent of Sway, make to any person any representation or warranty regarding Shoutlet. 2.04: Trademark and Service Mark Use. Reseller shall not use any trademark or service mark of Sway, other than as permitted hereunder. 2.05: Competition with Sway. Reseller shall not interfere or attempt to interfere with any relationship between Sway and any third party. Reseller acknowledges that Sway retains the right to market Shoutlet on its own behalf and to enter into other Reseller Agreements, in competition with Reseller. During the term of this Agreement, Reseller shall not distribute, sell or license products or services of third parties that are similar to or competitive with Shoutlet. 2.06: Confidential Information. Reseller agrees not to disclose any confidential information that it receives from Sway, whether oral, written or in other tangible form, and which is identified by Sway as confidential or proprietary, to any third party without Sway’s prior written consent, except as required by law. All employees or other persons who receive Sway’s confidential information must be bound by a written agreement not to disclose such information to any other parties without Sway’s prior written consent. ARTICLE 3: Term 3.01: Term. This Agreement is effective as of the date first written above and shall remain in effect for a term of one (1) year. Upon expiration of such initial term (and any subsequent term), and provided that Reseller is not then in default under the terms of this Agreement, the Agreement shall automatically renew for a subsequent one (1) year term. Each Party shall have the right not to renew the Agreement by notifying the other Party of its intent not to renew no later than ninety (90) days prior to such expiration. Non-renewal shall not relieve Reseller of its obligations to pay to Sway all fees for Shoutlet services actually provided by Sway to Reseller or its Customer(s) during the period in which this Agreement is in effect, as provided in Article 5. ARTICLE 4: Events of Default; Remedies; Termination and Surviving Obligations 4.01: Termination. (a) Sway shall have the right to terminate this Agreement if: (i) Reseller makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or any part of Reseller's property or business; (ii) Reseller is adjudicated bankrupt; or (iii) Reseller fails to perform or observe any of its obligations hereunder and such condition is not remedied within thirty (30) calendar days after written notice to Reseller. In the event that Sway elects to terminate the Agreement hereunder, Sway shall promptly notify Reseller of such decision in accordance with the procedure set forth in this Agreement. (b) Reseller shall have the right to terminate this Agreement if: (i) Sway makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or any part of Sway’s property or business; (ii) Sway is adjudicated bankrupt; (iii) Sway fails to perform or observe any of its obligations hereunder and such condition is not remedied within thirty (30) calendar days, except as otherwise provided herein, after written notice is received by Sway; or (iv) Sway shall cease to conduct business as a going concern. In the event that Reseller elects to terminate the Agreement hereunder, Reseller shall promptly notify Sway of such decision in accordance with the procedure set forth in this Agreement. (c) In the event that either Party is in breach or default of any of the terms, conditions, or covenants of this Agreement, and such breach or default continues for a period of thirty (30) calendar days after the defaulting Party receives written notice of such default from the non-defaulting Party, then in addition to all other rights and remedies of law or equity or otherwise, the non-breaching Party shall have the right to cancel this Agreement without any charge, obligation, or liability whatsoever, except as to the payment by Reseller for any Shoutlet services actually provided to Reseller or its Customer(s) by Sway during the period in which this Agreement is in effect. NEITHER RESELLER NOR SWAY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING FROM A BREACH OF THIS AGREEMENT OR THE CONTRACT DOCUMENTS. 4.02: Return of Information; Transfer Upon Termination. Upon the effective date of termination, cancellation or expiration of this Agreement, Reseller shall immediately return all papers, materials, and property of Sway, without regard for whether or not such property was designated confidential. In lieu of physically returning the property to Sway, at Sway’s option, Sway may instruct that any of its property be immediately destroyed by Reseller. In addition, each Party will assist the other in the orderly termination of this Agreement and in the transfer or destruction of all property, tangible and intangible, as may be necessary for the orderly, non-disrupted business continuation of each Party. ARTICLE 5: Pricing and Payment 5.01: Pricing. Shoutlet services shall be offered to Reseller at a discount from Sway’s price schedule in effect from time to time. Sway reserves the right to change or increase its price schedule at any time upon notice to Reseller. Reseller may develop its own pricing structure for purposes of offering Shoutlet to its Customers. 5.02: Payments. Reseller shall remit payment to Sway for any given Shoutlet services at the time it (or its Customer) orders such services, on the basis of the then-current price schedule and Reseller’s discount. ARTICLE 6: Proprietary Rights; Competitive Activity. 6.01: Ownership of Intellectual Property. All Intellectual Property that is incorporated into Shoutlet and/or used by Sway in providing the Shoutlet services to customers, including all improvements and modifications thereto, is and shall remain Sway’s sole and exclusive property. Reseller does not acquire any rights in Shoutlet and the related Intellectual Property other than those specified in this Agreement. 6.02: Trademarks. Reseller agrees not to use the Trademarks in any advertising or in any other way, except that Reseller may state that it is an authorized reseller of Shoutlet and may refer to Shoutlet by its associated Trademarks, provided that such references are truthful and not misleading and that Reseller clearly identifies Sway as the owner of the Trademarks. In the event that Reseller uses the Trademarks as permitted in this section, Reseller agrees to mark such Trademarks with the either the ™ or ® symbol, as appropriate, and the statement that such Trademark “is a trademark of Sway, Inc.” or, in the alternative, “is a registered trademark of Sway, Inc.,” as appropriate. 6.03: Residuals. Sway will not be precluded by this Agreement from rendering services or developing work products that are competitive with, or functionally comparable to, Shoutlet. Sway shall not be restricted in its use of ideas, concepts, know-how, methodologies and techniques acquired or learned in the course of activities hereunder. 6.04: Reseller’s Competitive Activity. governed by Section 2.05 hereof. Any competitive activity of Reseller shall be The terms of this Article shall survive the 6.05: Survival; No Limitation of Liability. expiration or termination of this Agreement. ARTICLE 7: Reproduction of Documentation, Object Code and Source Code 7.01: Documentation. Reseller shall have the right, at no additional charge, to reproduce solely for its own internal use, any documentation furnished by Sway pursuant to this Agreement or in connection with Shoutlet, regardless of whether such documentation is copyrighted by Sway. All copies of documentation made by Reseller shall include any proprietary notice or stamp that has been affixed by Sway, such as a copyright notice. Any such documentation shall be in the English language. 7.02: Source Code; Object Code. Reseller shall not have any right to reproduce Sway’s source code or object code including without limitation, source code or object code pertaining to Shoutlet, without Sway’s express written consent, the granting of which shall be at Sway’s sole and absolute discretion. ARTICLE 8: Warranty; Warranty Disclaimer 8.01: Warranties of Sway. Sway warrants that it owns all right, title, and interest in and to Shoutlet and that, in the case of any third party software used to develop Shoutlet, it has the right to use such third party software for that purpose. Sway further warrants that any Services provided by Sway under this Agreement or under Subscriber and Services Agreements with Reseller’s Customers shall be performed in a workmanlike manner and in accordance with the prevailing professional standards of the industry. This warranty coverage shall include any modifications made to Shoutlet by Sway. 8.02: Operation of Shoutlet. Sway does not warrant that the operation of Shoutlet, or use thereof or access thereto, will be uninterrupted or error free. 8.03: Remedy. In the event of any breach of the warranties set forth in this Agreement, Sway’s sole and exclusive responsibility, and Reseller’s sole and exclusive remedy, shall be for Sway to correct or replace any portion of Shoutlet found to be defective. Reseller’s monetary remedies for any breaches of any provision of this Agreement (including, without limitation, the warranty provisions) shall not, in the aggregate, exceed an amount equal the refund of services paid for by Reseller (or its Customer(s)) but not actually provided by Sway. 8.04: Warranty Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 8, SWAY MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SHOUTLET OR ITS CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY RESELLER OR OTHERS. SWAY FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8.05: UCITA Warranty Disclaimer. The Parties hereby agree that, in respect of information and computer programs provided by one Party to the other Party under this Agreement, and except for the express warranties set forth in Section 8.01 of this Agreement,: THERE ARE NO WARRANTIES (I) AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION; (II) AGAINST INFRINGEMENT; (III) THAT INFORMATON, EITHER PARTY’S EFFORTS, OR SYSTEMS, AS EACH MAY BE PROVIDED UNDER THIS AGREEMENT, WILL FULFILL ANY OF EITHER PARTY’S PARTICULAR PURPOSES OR NEEDS; AND (IV) WITH RESPECT TO DEFECTS IN THE INFORMATION, SYSTEMS OR SOFTWARE THAT AN EXAMINATION SHOULD HAVE REASONABLY REVEALED. THE PARTIES HEREBY EACH DISCLAIM IMPLIED WARRANTIES OF MERCHANTIBILITY, QUALITY, AND ACCURACY. THE INFORMATION AND COMPUTER PROGRAMS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE USER OF SUCH INFORMATION AND COMPUTER PROGRAMS. 8.06: Voiding of Warranties. Any and all warranties and indemnifications shall be void as to Shoutlet or Sway’s services where the non-compliance is caused by or related to (i) the acts or omissions of non-Sway personnel, third parties or their agents; (ii) misuse, theft, vandalism, fire, water, or other peril; (iii) any alterations or modifications made to Shoutlet by the Reseller, its Customers, representatives or agents; (iv) use of Shoutlet other than in the operating environment specified in the technical specifications; or (v) coding, information, or specifications created or provided by Reseller or its Customers. ARTICLE 9: Reseller’s Representations and Warranties 9.01: Authority. Reseller represents and warrants to Sway that Reseller has all requisite power and authority to execute and deliver this Agreement and to perform the Reseller’s obligations hereunder. This Agreement has been duly and validly executed and delivered by Reseller, and constitutes a valid and binding obligation of Reseller, enforceable against Reseller in accordance with its terms. ARTICLE 10: Indemnification; Limitation of Liability 10.01: Indemnification of Reseller as to Proprietary Rights of Third Parties. (a) Sway shall: (i) defend, or at its option, settle, any claim against Reseller on the basis of Shoutlet’s infringement of any United States patent, trademark, copyright or trade secret; and (ii) pay any final judgment entered against Reseller on such claim or any settlement entered into by Sway on Reseller’s behalf, provided that: Reseller (i) notifies Sway promptly of each such claim; (ii) gives Sway sole control of the defense and/or settlement of the claim; (iii) fully cooperates with Sway in the defense or settlement of the claim; and (iv) takes no action that may prejudice Sway’s ability to defend the claim. (b) If Shoutlet or any portion thereof is, or in Sway’s opinion is likely to become, the subject of a claim of infringement, Sway may, in its sole discretion: (i) procure for Reseller the right to continue using Shoutlet or the affected portion thereof; (ii) modify or replace Shoutlet or the affected portion(s) thereof with another suitable system; (iii) modify Shoutlet or the affected portion(s) thereof to make it noninfringing; or (iv) if none of the foregoing remedies is commercially feasible, cease operation of Shoutlet and terminate this Agreement. (c) Notwithstanding the foregoing, Sway will have no obligation or otherwise with respect to any infringement or misappropriation claim based upon (i) any use of Shoutlet not in accordance with this Agreement or for purposes not intended by Sway; (ii) any use of Shoutlet in combination with other products, equipment, software or data not supplied by Sway; or (iii) any modification of Shoutlet made by any person other than Sway or without Sway’s express consent. (d) THIS SECTION STATES SWAY’S ENTIRE LIABILTY AND RESELLER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OF THIRD PARTY RIGHTS. 10.02: Indemnification for Breach of Agreement. Reseller agrees to defend and indemnify Sway, and to hold it harmless from and against, any claim or proceeding brought against Sway that arises from any breach by Reseller of its obligations, representations or covenants in this Agreement. Sway agrees to defend and indemnify Reseller, and to hold it harmless from and against, any claim or proceeding brought against Reseller that arises from any breach by Sway of its obligations, representations or covenants in this Agreement, except as limited elsewhere in this Agreement. 10.03: Limitation of Liability. Sway shall not be liable for any: (i) special, indirect, incidental, punitive, or consequential damages, including loss of profits, arising from or related to the operation or use of Shoutlet or the Services, including without limitation such damages as those arising from loss of data or programming, loss of revenue or profits, failure to realize savings or other benefits, damage to equipment, and claims against Reseller by any third party, even if Sway has been advised of the possibility of such damages; (ii) damages (regardless of their nature) for any delay or failure by Sway to perform its obligations under this agreement due to any cause beyond its reasonable control; or (iii) claims made a subject of a legal proceeding against Sway more than twenty-four (24) months after any such cause of action first arose. Notwithstanding any other provision of this agreement, Sway’s liabilities under this agreement shall not exceed the amount of any fees for Shoutlet services paid for by Reseller (or its Customer(s)) but not actually provided by Sway. ARTICLE 11: Error Correction and Uptime 11.01: Error Correction. During the term of this Agreement, Reseller shall notify Sway promptly of any errors or defects in Shoutlet of which it becomes aware. Sway shall use good faith efforts to correct any such errors or defects within a commercially reasonable time, but in any event shall correct all such errors or defects within ten (10) days of its receipt of Reseller’s notification. 11.02: Uptime. Reseller acknowledges that Sway cannot guarantee “uptime” of Shoutlet due to the fact that Shoutlet uses resources supplied by third parties and accessed by customers of such third parties and by Shoutlet subscribers. ARTICLE 12: Hosting of Shoutlet 12.01: Hosting of Shoutlet. Reseller acknowledges that Shoutlet is hosted by a third-party Internet service provider, and that Sway has no control over the services and/or facilities of such third party. Reseller further acknowledges that, to the extent any “downtime” or outage experienced by Reseller’s Customers are the result of actions or omissions by such third party, its suppliers, customers, agents, affiliates or employees, Sway has no responsibility for such “downtime” or outage. Sway’s liability for “downtime” or outages is limited as set forth in Article 10. ARTICLE 13: Miscellaneous 13.01: Nondisclosure. Neither Party shall, without first obtaining the written consent of the other Party, disclose the terms and conditions of this Agreement, except as may be required to implement and enforce the terms hereof, or as may be required by law. No other information exchanged between the Parties shall be deemed confidential, except as otherwise specified herein, unless the Parties otherwise agree in writing. Reseller shall not disclose the results of any testing or evaluation of Shoutlet to any third party without Sway’s prior written consent. 13.02: Assignment. Reseller may assign its rights and obligations under this Agreement to another Party only in connection with the sale of all or substantially all of its assets. Sway may assign its rights and obligations under this Agreement in connection with any sale or other disposition of Shoutlet. In the event of such assignment, the assigning Party shall promptly notify the other Party hereto. This Agreement shall inure to the benefit of the Parties and their permitted successors and assigns. 13.03: Independent Contractors. Nothing in this Agreement, nor any acts of the Parties, shall be deemed by the Parties or by any third person to create the relationship of principal-agent, or of partnership, or of joint venture, or of any association between the parties hereto, and no provisions of this Agreement are intended to create or constitute any person a third party beneficiary hereof. 13.04: Law and Venue. This Agreement shall be governed by, and construed under, the laws of the State of Wisconsin (without regard to conflict of laws principles thereof). The Parties expressly agree that jurisdiction and venue are proper in any state or federal court sitting in Dane County, Wisconsin. 13.05: Dispute Resolution. Any dispute arising hereunder and not resolved by informal negotiations within thirty (30) days after a Party requests it shall be settled by binding arbitration under then-current American Arbitration Association rules by a single arbitrator. If the Parties are unable to agree on a single arbitrator, then the dispute shall be settled by a panel of three arbitrators, selected as follows: each Party shall select a single arbitrator and the two arbitrators so selected shall select a third. The arbitration shall be conducted at a mutually agreeable location in Madison, Wisconsin, or another venue agreed to by the Parties. Judgment upon the award rendered may be entered in the highest state or federal court or forum having jurisdiction as provided in Section 13.04; provided, however, that the provisions of this Section shall not apply to any dispute or controversy as to which any treaty or law prohibits such arbitration. The prevailing Party shall be entitled to reasonable attorney's fees and costs to be fixed by the arbitrators. 13.06: Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed by Sway and Reseller. 13.07: Waiver. No waiver of any default of Sway or Reseller hereunder shall be implied from any omission by Sway or Reseller to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the extent therein stated. One or more waivers of any covenant, term or condition of this Agreement by Sway or Reseller shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval by Sway to or of any act by Reseller requiring Sway’s consent or approval shall not be deemed to waive or render unnecessary Sway’s consent or approval to or of any subsequent similar act by Reseller. 13.08: Severability. If any term, covenant or condition of this Agreement or the application thereof to any Party or circumstance is held to be invalid or unenforceable, then the remainder of this Agreement, or the application of such term, covenant or condition to Parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 13.09: Merger. This Agreement and the other Contract Documents shall constitute the entire agreement of the parties pertaining to the subject matter hereof and shall supersede all prior or contemporaneous agreements and understanding of the parties in connection therewith. 13.10: Construction. (a) The rule requiring written instruments to be construed against the party preparing such instruments shall not apply to this Agreement. (b) The headings and recitals contained herein are intended for convenience only and shall not be construed to have any substantive effect with respect to this Agreement. (c) Words used herein shall be deemed to include singular and plural, and any gender as the context requires. 13.11: Notices. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand, facsimile and confirmed in writing or mailed first class, postage prepaid, by registered or certified mail, return receipt requested (mailed notices shall be deemed to have been given three (3) days after mailing; notices sent by facsimile and confirmed in writing shall be deemed given on the date sent) as follows: To Sway: Jason Weaver Sway, Inc. 8313 Greenway Boulevard Suite 100 Middleton, Wisconsin 53562 To Reseller: With a copy to: James I. Statz Solheim Billing & Grimmer S.C. One South Pinckney Street, Suite 301 P.O. Box 1644 Madison, Wisconsin 53701-1644 13.12: Force Majeure. In the event that either Sway or Reseller is delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock outs, labor disputes, inability to procure materials or services, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature not attributable to the negligence or fault of the party delayed in performing work or doing acts required under the terms of this Agreement, then performance of such act shall be excused for the period of the unavoidable delay and the period for the performance of any such act shall be extended for an equivalent period. 13.13: Counterparts; Facsimile. This Agreement may be signed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by facsimile or other electronic transmission. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date and year first above written. SWAY: RESELLER: [INSERT RESELLER’S NAME] By: Its: By: Its: EXHIBIT 5.01 RESELLER’S PRICING AND DISCOUNT Sway recommends that Reseller’s sell the Shoutlet product in accordance with the Pricing Schedule as may be then in effect under Sway’s Licensing Agreement for the use of the Shoutlet product, as may be modified from time to time. Sway offers the following discounts to its qualified Resellers: • 25% off the regular Shoutlet price for the initial term of one year, at such price as may be in effect at the time the Subscriber executes a licensing agreement with Sway for its authorized use; and