Bricknode Reseller Agreement
Effective starting 2017-04-26
This Bricknode Reseller Agreement (the "Reseller Agreement") is between the applicable reseller ("you" or "Reseller"), and Bricknode Platform AB (company number 559040-5709) with primary place of business at Kanikegränd 3B, 541 34 SKÖVDE, SWEDEN). 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.
This Reseller Agreement is a separate agreement from the agreement that Bricknode has with its end users at http://www.bricknode.com/legal/bricknode-customer-agreement/ (as may be modified by Bricknode from time to time, "Bricknode Customer Agreement"). For convenience and consistency, however, the definitions of certain terms related to our products and services (namely Hosted Services, Products, and Authorized Users, Accounts, Instruments, API calls, Legal Entities) will be the same as those in the Bricknode Customer 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.
1. Order Requirements. To the extent that we make Products available for resale, you may order such Products on behalf of your end customer. You must provide all of the requested information including, without limitation, the identity of the end user, the end user’s business and email addresses, billing information and the specific Hosted Services subscriptions, in your order ("Reseller Order"). All such information must be accurate and complete and must reflect bona fide orders you have received from end users.
2. Limited Right to Resell. Subject to this Reseller Agreement, we grant you a one-time, non-exclusive, non-transferable right to resell the Products specified in your Reseller Order to the end user specified in the Reseller Order, solely for use by such end user in accordance with the Bricknode Customer Agreement. This right to resell does not apply to any other end user or Products (including without limitation any sale to any related party, organization or affiliate, or to any subsequent, additional or renewal sale to the same party).
3. Enforcement of Bricknode Customer Agreement.
3.1. End User Terms. All use of the Products by end users is subject to the Bricknode Customer Agreement, and you may not purport to impose any other terms pertaining to their use of the Products. You are responsible for ensuring that each end user enters into the Bricknode Customer Agreement (which includes all limitations on Authorized Users and other quantity restrictions applicable to the end user’s order) in a manner that is legally binding upon the end user. This may require you to (a) notify each end user that Bricknode products are subject to the Bricknode Customer Agreement and that by placing an order with Reseller the end user agrees to the Bricknode Customer Agreement, (b) include either a copy of or link to the Bricknode Customer Agreement in each quotation and order form you issue to the end user, and (c) obtain from each end user written confirmation of acceptance of the Bricknode Customer Agreement prior to the earlier to occur of acceptance of the order by Reseller or delivery of the Product. You must provide evidence of such acceptance by the end user to Bricknode upon request.
3.2. Enforcement Cooperation. You agree to immediately notify us of any known or suspected breach of the Bricknode Customer Agreement or other unauthorized use of the Products and to assist us in the enforcement of the terms of the Bricknode Customer Agreement.
4. Identification as Reseller. Subject to this Reseller Agreement, you are permitted to identify yourself as a Bricknode "Reseller" solely in connection with your resales of Products. You may not use any Bricknode trademark, logo or service mark ("Bricknode Marks") except as permitted by Bricknode’s Trademark Guidelines at http://www.bricknode.com/legal/trademark-guidelines/. All goodwill arising from your use of Bricknode Marks inures to the benefit of Bricknode.
4.1. Revenue Share. For each Sale, Bricknode will pay you an amount ("Revenue Share") equal to twenty percent (20%) of the amount received by Bricknode from the Sale. "Sale" includes any initial or renewal sale, subscription or license of a Paid-via-Bricknode Add-on (or related content or services) through the Bricknode Marketplace, including any Follow-on Sales. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which Bricknode has received final payment from or on behalf of an end user. If an Add-on is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. For purposes of clarity, in the event Bricknode refunds the applicable Sale amount (or a portion thereof) to an end user or a Bricknode Certified Expert (which you agree that Bricknode can do entirely in its own discretion), you agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded.
5.1. Fees. Your end user's non-refundable, non-cancelable payment to Bricknode is due when you submit your Reseller Order.
5.2. Delivery. Upon receipt of payment, we will deliver the applicable Hosted Services login information, or other information necessary for end users to use or access the applicable Products directly to the delivery contact specified in the Reseller Order in accordance with our standard delivery procedures. If we deliver the logins to you, you agree that you will, in turn, deliver them directly to the end user specified in the Reseller Order, and not to use or access the Hosted Services, or other Products in any way. You must either delete all logins promptly thereafter or maintain them in confidence.
5.3. 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 Bricknode, you must pay to Bricknode the amount of such taxes or duties in addition to any fees owed under this Reseller Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Bricknode any such exemption information, and Bricknode will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
5.4. End User Pricing and Payment of Bricknode products and products found at Bricknode Marketplace; 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. If Bricknode provides any refund to an end user under our standard return policy, Bricknode, at its option, will refund the applicable amounts either directly to the end user or to you for distribution to the end user. You agree to cooperate with Bricknode in connection with any such refund.
5.5. End User Pricing and Payment of your own costs and services; Refunds. You will independently set your own pricing for your own services to each end user. You are responsible for your own billing regarding your services and bear all risk of non-payment by end users. As a reseller, 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. If Bricknode provides any refund to an end user under our standard return policy. You agree to cooperate with Bricknode in connection with any such refund.
6. 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 (including without limitation Section 12 (Confidentiality)) limits Bricknode’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
7. Separate Bricknode Certified Expert Program. Entering into this Reseller Agreement does not qualify you as a Bricknode Certified Expert or grant you any related rights. If you are interested in our separate Bricknode Certified Expert program, please contact us at firstname.lastname@example.org.
8. No Use Rights; Bricknode Reserved Rights. Only the end user customer of the Products (and its Authorized Users) may use the Products. You are not permitted to use any Products resold under this Reseller Agreement for your own benefit. To the extent that you nevertheless gain any access to the Products, all license restrictions in the Bricknode Customer Agreement apply to you. Notwithstanding anything to the contrary contained in this Reseller Agreement, except for the limited resale right in Section 2 above, Bricknode and its suppliers have and will retain all rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all Products, service descriptions, documentation, and underlying technology ("Bricknode Technology"), and all copies, modifications and derivative works thereof, including without limitation as may incorporate Feedback. You acknowledge that you are obtaining only a limited right to resell the Products and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to you under this Reseller Agreement or otherwise.
9. Reseller Obligations and Liability.
9.1. End User Relationships; Business Practices. You agree not to represent yourself as an agent or employee of Bricknode and agree that we will have primary control over any end user communication regarding the Products once you submit a Reseller Order. You will not make any representations regarding Bricknode, on Bricknode’s behalf, or about any Products. You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Bricknode or its products and agree to comply with all applicable laws and regulations while operating under this Reseller Agreement. You further agree to comply with all applicable export and import laws and regulations.
9.2. Indemnity. You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Products. You will indemnify, hold harmless and (at Bricknode’s option) defend Bricknode from and against any claim, loss, cost, liability or damage, including attorneys’ fees, for which Bricknode becomes liable arising from or relating to: (a) any breach or alleged by you of any term of this Reseller Agreement, (b) the issuance by you of any warranty or representation regarding Bricknode or its products or services not specified in the Bricknode Customer Agreement, or (c) any of your other acts or omissions in connection with the marketing or resale of the Products under this Reseller Agreement.
10.1. Termination. We may terminate this Reseller Agreement if you materially breach any provision in this Reseller Agreement and fail to cure such breach within five (5) days of written notice of such breach. In addition, either party may terminate this Reseller Agreement for any reason or no reason upon thirty (30) days’ written notice to the other party. Termination set by the 30 days of notice is for onboarding new customers only. Bricknode will pay revenue share for customers onboarded before such termination date for up to 12 months. Bricknode may also terminate this Reseller Agreement immediately upon notice to you if (a) it ceases to offer the current Reseller program or (b) it reasonably believes that continuing hereunder could result in business or legal liability for Bricknode or otherwise harm Bricknode or its end users.
10.2. Effect of Termination. You expressly agree that Bricknode will have no obligation or liability to you resulting from termination or expiration of this Reseller Agreement in accordance with its terms. Upon termination or expiration of this Reseller Agreement: (a) you must immediately cease identifying yourself as a Bricknode Reseller and using Bricknode Marks in connection with your resale activities hereunder, (b) you must destroy all Confidential Information in your possession and certify destruction (unless we request that you return such materials to us) and (c) Sections 5 (Payment and Delivery) (but only with respect to Reseller Orders completed during the Term), 6 (Feedback) and 8 (No Use Rights; Bricknode Reserved Rights) through 16 (General) will survive.
11. Changes to Agreement. From time to time, we may modify this Reseller Agreement. The version of this Reseller Agreement in place at the time you submit each Reseller Order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication, but we also suggest that you bookmark this Reseller Agreement and read it periodically.
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 Bricknode Technology and any performance information relating to the Products shall be deemed Confidential Information of Bricknode 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.
13. Bricknode Commitments; DISCLAIMER OF WARRANTIES.
For the avoidance of doubt, any and all commitments, indemnities and other terms and conditions offered by Bricknode with respect to use of the Products are made directly by Bricknode to the end user in accordance with the Bricknode Customer Agreement and do not extend to you as a Reseller. We make NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, TO you as a RESELLER, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE AND NON-INFRINGEMENT.
14. LIMITATION OF LIABILITY.
14.1. Waiver of Consequential Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER BRICKNODE NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
14.2. Liability Cap. TO THE FULLEST EXTENT ALLOWED BY LAW, BRICKNODE’S AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY UNDER THIS RESELLER AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY RESELLER TO BRICKNODE IN RESPECT OF THE RESELLER ORDER THAT IS THE SUBJECT OF THIS RESELLER AGREEMENT.
15. Dispute Resolution; Governing Law
15.1. This agreement is governed by Swedish law. Each Party submits to the jurisdiction of the Swedish courts for all purposes relating to this agreement.
This Reseller Agreement is the entire agreement between you and Bricknode relating to the resale of Bricknode products as described in this Reseller Agreement and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Reseller Agreement. If any provision of this Reseller Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Reseller Agreement may not be modified or amended except as described in Section 11 (Changes to Agreement) or otherwise with the written agreement of Bricknode (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, "including" (and its variants) means "including without limitation" (and its variants). If either party to this Reseller Agreement breaches any provision of this Reseller Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Reseller Agreement. No failure or delay by the injured party to this Reseller Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Reseller Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.