- WHEREAS, Company is engaged in the business of selling and licensing proprietary software packages (hereinafter the “Product”) described as follows: Pinnacle Cart.
- WHEREAS, Reseller represents that it possesses the financial and physical resources to promote the sale and/or license and use of the Product;
- NOW, THEREFORE, in consideration of the mutual promises set forth herein and for other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
- “Company” refers to Pinnacle Cart, Inc,
- “Program” refers to the Reseller Program.
- “Product” refers to the Pinnacle Cart product available for resale by the Reseller.
- “Reseller” refers to a legally certified reseller of the product and a member of the Company Sales Partner Reseller Program.
- “End User” refers to Reseller’s customers; that is, the party to whom Reseller resells Product.
- Appointment. Company hereby appoints and grants Reseller and Reseller hereby accepts a non-exclusive and non-transferable right and license to (a) distribute the Product to End User customers; and (b) to use one (1) copy of the Product only for the purpose of testing or demonstrating to prospective End Users.Upon purchase of the software, Company shall issue any registration codes necessary to unlock Product for use by End User. The qualified 14-day money back shall apply only to the first purchase made by Reseller. The 14-day money back guarantee does not apply to any purchase after the Reseller’s first purchase. Reseller agrees to use each registration code for exactly one copy of Product sold to End User, or as otherwise instructed by Company. Registration codes are not to be re-used for more than one End user or a separated legal entity affiliated with that same End User, or used for multiple End Users, or for multiple installations for the same End User, or in any way that violates this Agreement, unless otherwise authorized by Company.Reseller agrees not to, directly or indirectly, sub license, publish, distribute, disclose, disseminate, reverse engineer, decompile, copy, or reproduce the product except as provided for in this Agreement.
- Modification of Products. Reseller has the option to rebrand and/or customize or have rebranded or customized the Product in its own brand after paying the mutually agreed upon Private Label fees. In no event shall the rebranding and/or customization of the Product by Reseller, relieve Company of any of the obligations contemplated under this Agreement with respect to such rebranded or customized Product. Provided however, that any unauthorized customizing or modification of any Product by Reseller or any third party shall relieve Company from any obligation it would otherwise have had with respect to such Product under the warranties described herein.
- Reseller’s Duty. Reseller agrees that (1) Reseller shall have no authority to modify in any way the terms of this Agreement, or to make any representations or warranties contrary to the this Agreement and (2) Reseller shall be responsible for all End User customer support, billing, and collection of payments or refunds from End User.
- Payment. Reseller shall pay Company the fees set forth in Exhibit A attached hereto. Company reserves the right to change pricing with ninety (90) days advance written notice. Reseller may establish at its own discretion the resale price of the product. Product prices as set forth on Exhibit A are exclusive of any taxes, fees, duties, value added, withholding, or other such amounts. Company shall not charge sales tax on sales made to Reseller, since all sales are intended for resale to End Users. Reseller shall be responsible for assessment, collection, remittance, accounting, reporting, and all other such legal responsibilities of sales tax for Reseller’s sales to End Users.Company shall extend payment terms of net 30 days to Reseller. Failure of Reseller to collect payment for Product from End User shall not relieve Reseller of their obligation to pay any monies due to Company. Company reserves the right to charge interest on any amounts more than thirty (30) days past due at an annual rate equal to 9%. Company retains the right to turn off license key system for non-payment.Company will invoice based upon active accounts as of midnight, MST, on the last day of each calendar month. Reseller has access to all active and inactive accounts as well as the ability to turn accounts off from the API interface. Unresolved discrepancies can be escalated into a full audit of the licensing system. The cost for the audit will be paid for by the initiating party.
Company shall provide the Reseller with the support identified in Exhibit A provided, however, any custom work requested by Reseller shall be at a rate of fifty dollars ($50) per hour with a one (1) hour minimum.
- Term. This Agreement shall continue in full force and effect from the date hereof for two years which may be renewed for subsequent two year terms upon the mutual written agreement of the parties., provided that either party may give the other one hundred and eighty (180) days written notice and thereby terminate this Agreement as of the expiration of such one hundred and eighty day (180) period. Cancellation of this agreement does not absolve Reseller of payments due to Company. Monthly payments are due to company for all accounts that remain active after this agreement is canceled.
- Trademarks. Each party agrees that any trademarks or service marks of the other party are the sole property of the other party. To be clear, Reseller’s rebranding and/or customization of the Product does not grant Company any right, title or interest in or to Reseller’s trademarks or service marks and Reseller’s use of Company’s Product does not grant any right, title or interest in or to Company’s trademarks or service marks. Neither party shall use the other party’s trademarks, graphics, symbols, or other content for use in promotion of the product without written permission from the other party.
- Confidentiality. Reseller shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the executable code to others. Reseller agrees to take all reasonable steps to secure and protect the Product and to take reasonable and appropriate action by instruction or agreement with its users to satisfy its obligations hereunder. Reseller agrees to maintain the confidentiality of the executable code of the Product using at least as great a degree of care as Reseller uses to maintain the confidentiality of Reseller’s own confidential information (and in no event less than a reasonable degree of care). Reseller acknowledges that the disclosure of any aspect of the executable code of the Product, including the Documentation (as hereinafter defined) or any other confidential information referred to herein, or any information which, at law or equity ought to remain confidential, may immediately give rise to continuing irreparable injury to Company which may be inadequately compensable in damages at law, and Company is entitled to seek to obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available.
- Mutual Indemnity. Each party, as Indemnitor, shall defend, indemnify and hold harmless the other party, as Indemnitee, harmless from and against any liability, loss, costs, expenses (including attorneys fees), or damages brought by a third party (“Claims”) directly arising out of: (1) the gross negligence or willful misconduct of Indemnitor, its agents or employees in connection with the performance of its duties under this Agreement; and (2) the breach of any representation or warranty contained herein, provided that, Indemnitee promptly provides notice to Indemnitor of any such claim, tenders the defense of the claim to Indemnitor, and cooperates with Indemnitor in the defense of the claim.
LIABILITY LIMITS/DISCLAIMER OF WARRANTY. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE). TO THE EXTENT A PARTY OFFERS ANY ADDITIONAL WARRANTIES TO ITS CUSTOMERS, IT MUST CLEARLY AND CONSPICUOUSLY IDENTIFY THAT SUCH WARRANTIES ARE GIVEN SOLELY FROM IT AND NOT BY THE OTHER PARTY.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL A PARTY BE LIABLE IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, WILLFUL MISCONDUCT OR STRICT LIABILITY, FOR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND OR CHARACTER (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUES OR PROFITS) WHETHER SUFFERED BY A PARTY, ANY PARTY’S CUSTOMER OR ANY OTHER THIRD PARTY, OR FOR LOSS OR DAMAGE ARISING OUT OF THE SOLE OR CONTRIBUTORY NEGLIGENCE OF A PARTY, ANY OF ITS AGENTS, OR ANY THIRD PARTY.
- Ownership Warranty. Company warrants and represents as follows: That the Product is valid and existing, in that Company is a true and lawful owner of the Product with full power and right to enter into this Agreement with Reseller, and there are no conflicting claims relating to the rights granted herein.
- Product Warranty. Company will provide Reseller with any code related to hot fixes that have been made to the software application and Company agrees to correct any product defects, a product defect being defined as functioning contrary to the product design and classified as such by Company in its sole discretion, identified by Company, the Reseller or Reseller’s End Users and to indemnify, defend and hold harmless, at its own expense, Reseller from any and all Claims with respect to product defects, including Claims brought against Reseller by Reseller’s End Users.
- Costs and Expenses. Reseller shall assume and pay all the costs of conducting its own business hereunder, including insurance and taxes.
- Termination. In addition to the Parties’ right to terminate for convenience as set forth in Section 5, either party at its election may terminate this agreement by written notice to the other on the occurrence of any of the following events:
- A material failure by the other party to perform one or more of its obligations hereunder where the party has failed to cure such failure within ten (10) days following notice of such failure;
- The other party shall make a general assignment for benefit of creditors;
- A receiver of all or substantially all of the property of the other party shall be appointed and not removed within thirty (30) days;
- The other party shall file a petition for reorganization under the provisions of the federal bankruptcy laws;
- The other party shall file a petition for an arrangement under the federal bankruptcy laws;
- The other party shall file a petition in bankruptcy or shall be declared or adjudged bankrupt;
- A failure to comply with Article 6 above will, at Company’s option, constitute cause for immediate termination.
- Application of Agreement in Event of Termination. In the event of termination, this Agreement shall remain applicable to any orders for Product which the Reseller placed prior to termination except that the Parties obligations set forth under Section 7, 8, 9 and 10 shall survive termination of this Agreement.
- Return of Materials. In the event of termination, Reseller shall return or cause to be returned to Company’s promotional items, sample licenses, and other material in the Reseller’s possession. Upon the written request of Company, Reseller shall cause any item which cannot be returned, including any record of the Product and any data retrieval Product under its control, to be destroyed.
- Independent Contractor. For all purposes herein, Reseller shall be regarded as an independent contractor and not as the employee, agent or servant of Company, and Reseller shall be free to exercise its independent judgment in the manner and means of the development. Reseller shall have no authority to bind Company in any manner whatsoever without Company’s approval, other than with respect to the sale and delivery of orders placed pursuant to this Agreement.
- Governing Law. The validity, interpretation and performance of the Agreement shall be controlled by and construed under the laws of the State of Arizona , United States of America.
- Assignment. Neither party shall assign this Agreement without prior consent of the other. in writing which consent shall not be unreasonably withheld.
- Entire Agreement. This agreement and any attachments, schedules, or riders hereto contain all of the agreements, understandings, representations, conditions, warranties, and covenants made between the parties. Unless set forth herein, neither party shall be liable for any representation made, and all modifications and amendments hereto must be in writing. This Agreement supercedes all prior and written and oral understandings of the parties.
- Force Majeure. Neither Party will be liable for failure to perform or delay in performing any obligation under this Agreement (other than failure to pay) to the extent that such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the commercially reasonable control of such Party; provided, however, that the affected Party will promptly notify the other Party of the occurrence of the force majeure event and will take all commercially reasonably steps necessary to resume performance of its obligations. In the event a Party does not cure, or is unable to cure, such failure or delay within sixty (60) days after the commencement of such failure or delay, the other Party may terminate the agreement immediately upon Notice to the nonperforming Party.
Reseller acknowledges that pricing below is not effective until this document is signed and returned to company. Monetary credit for previous purchases from Company is void without a signed Pinnacle Cart Reseller Agreement.
Terms and Pricing
- Reseller agrees to a one-time purchase of licensed version of the software from Company at the current price on the website, www.pinnaclecart.com.
- Reseller agrees to the following discounts for licenses after the first purchase.
- 0-150 active stores per month = $18 per active account / per month
- 151-300 active stores per month = $15 per active account / per month
- 301-600 active stores per month = $12 per active account / per month
- 601-1000+ active stores per month = $9 per active account / per month
- 1001+ active stores per month = $7 per active account / per month
- Reseller agrees to a minimum monthly charge of $180 starting on the first day of the sixth month of this agreement. Reseller will continue to be charged the greater of monthly minimum or active accounts for the remainder of the agreement.
- Private Label Premium. Reseller, at its option can choose to have Company create a Private Label of the Software in Reseller’s name and logo. This is a one-time fee of $1299.00 and includes the following:
- Demo cart similar to Company’s demo in Reseller’s name and logo
- User manual with Reseller’s name and logo
- Video Tutorials with Reseller’s name and logo
- All downloads and future downloads will be private labeled in Reseller’s name and logo.
- Reseller agrees to pay a one-time fee for access to Company templates and can resell the templates at its own pricing, in an unlimited capacity. $349 per template.