Reseller Agreement

To participate in the Spotmau Reseller Program, You must first agree to the terms and conditions of this Spotmau Reseller Agreement, hereinafter the "Agreement". By checking the I HAVE READ THE SPOTMAU RESELLER AGREEMENT AND I ACCEPT THE TERMS box on the Spotmau Reseller Program Reseller sign-up page on Spotmau website. You submit your application to become a Reseller in the Spotmau Reseller Program., which is Your offer to enter into an agreement with Spotmau,Inc under the terms described in this Agreement. If Spotmau, Inc accepts Your offer, You will become an Reseller, subject to the terms of this Agreement. Your continued participation in the Spotmau Reseller Program constitutes Your continuing acceptance of the terms of this Agreement.

This Agreement is entered into as of the date of submission, hereinafter "Effective Date", by and between Spotmau, Inc (hereinafter referred to as "Spotmau") and Applicant party, being the party whose details appear on the application form, hereinafter "Reseller".

Whereas Spotmau is the developer of, and owns or licenses from third parties, all rights to the products, described in appendix 1, attached to this Agreement and forming an integral part hereof, hereinafter the "Products";

Whereas Spotmau desires to appoint a reseller to market, promote and sub-license the Products in the region that appears on the applicant party application form as Sales Region, hereinafter the "Territory";

Now therefore Spotmau grants to Reseller the non-exclusive right to market and sell the Products, including all accessories and manuals thereto, under the terms and conditions specified hereunder:

Legal Relationship

1. It is hereby declared that Reseller shall buy the Products as an independent contractor and shall sell the same on its own account and at its own risk. Reseller is not an agent of Spotmau and may not, in any respect, represent Spotmau or otherwise enter into any agreement or commitment on its behalf.

Reseller's Activities

2. Reseller shall promote the Products and shall not act in a way which may prevent the sale of the Products.

3. Reseller may appoint third parties as intermediaries, agents or sub-resellers of the Products, provided that any such appointment must be notified in writing to Spotmau 30 days in advance. The Reseller shall be vicariously liable for the acts of third parties appointed by it under this clause and shall be obliged to cause the same third parties to abide by the provisions of this Agreement. In no case, shall Spotmau be held responsible for the actions of the Reseller or any third party appointed by it.

4. Reseller shall be bound to independently ensure that the Products conform with all the laws in force in the Territory, including but not limited to labeling requirements and safety regulations.

Supply of Products

5. Reseller prices may be amended from time to time by Spotmau by giving thirty (30) days prior written notice to Reseller.

Partner Benefits

6. Provided that the Partner is in compliance this Agreement, the Partner will be eligible to receive an array of benefits that Spotmau may generally offer to all partners, hereinafter "Benefits" from time to time during the term of this Agreement. A description of the Benefits offered to all partners is posted on Spotmau's partner website. Spotmau may, at any time in its sole discretion, amend or cancel any Benefits or the entire Benefits Program.

Warranty Disclaimer

7. ALL BENEFITS ARE PROVIDED TO THE PARTNER "AS IS". SPOTMAU MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY BENEFITS, SPOTMAU PRODUCTS, OR SUPPORT PLANS, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

Advertising and Merchandising

8. Spotmau may, at any time, request Reseller to send to it, within thirty (30) days from such request, for its prior written approval, the advertising and sales promotion programme and material developed by Reseller in relation to the Products.

Intellectual Property Rights

9. This Agreement shall not confer on Reseller any patent rights and other intellectual property rights, which rights shall remain vested in Spotmau. Spotmau is however, hereby granting to the Reseller, who accepts a limited license to market and distribute the Products. Reseller may not use the Products for its own business and/ or modify, translate, disassemble, decompile, reverse engineer, create derivative works of the Products or by any means attempt to discover and obtain the source code for the Products.

10. Reseller has no right to and shall not remove or change any trade mark, trade name, sign or other mark on any Product or its packing or make any alterations in the construction or design in the Products or any of them.

11. Spotmau assumes no liability or responsibility, whether express or implied, for the Product's infringement of present or future patents or intellectual property rights belonging to third parties.

12. Reseller shall immediately inform Spotmau of any infringement or suspected infringement of Spotmau's patents or other intellectual property rights and/or the End User Agreement supplied together with the Product. In the event that Spotmau decides, at its own discretion, to defend such right, the Reseller shall be obliged to assist Spotmau in such an action, provided that any costs shall be borne by Spotmau.

Limitation of Liability

13. IN NO EVENT WILL SPOTMAU BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, THE BENEFITS, SPOTMAU PRODUCTS, OR SUPPORT PLANS, EVEN IF SPOTMAU KNEWS OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, SUCH DAMAGES. SPOTMAU'S TOTAL LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, THE BENEFITS, SPOTMAU PRODUCTS, OR SUPPORT PLANS, WHETHER SUCH DAMAGES ARE BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. THE RESELLER SHOULD IN NOW WAY ALTER OR MODIFY THE WARRANTY DISCLAIMER AND LIABILITY LIMITATIONS CLAUSES IN THE END USER AGREEMENT.

Guarantee

14. Spotmau shall honor the warranties specified in the End User Agreement supplied with the Products. Any other warranties in relation to the Products, including those implied by law, are hereby excluded.

Delivery

15. Spotmau shall endeavour to ship the Products ordered by Reseller within one month from the date on which Spotmau receives a written order from Reseller; provided that Spotmau shall not be held to be in breach of this clause if the Products are not shipped to Reseller within the stipulated time because of a shortage in the Product/s ordered or because of any other reason beyond the control of Spotmau.

16. Products to be delivered electronically shall be so delivered within two weeks from the date of order, unless delivery within such a period is impossible in virtue of a cause independent of Spotmau's will and control.

Term and Termination

17. This Agreement shall remain in force for a period of one year, starting on the Effective Date, and shall be automatically renewed for further periods of twelve (12) months each unless either party gives to the other one month's prior written notice that it does not intend to renew the same.

18. Either party may terminate this Agreement by giving to the other party thirty (30) days' written notice of its intention to terminate, without prejudice to the rights of any of the parties to any outstanding fees or monies due under this Agreement.

Confidentiality

19. The parties undertake not to disclose to third parties any information obtained by them in pursuance of this Agreement, unless such party is obliged to do so by law or a competent authority or by the stock exchange rules or such disclosure is necessary so that that party can perform its obligations under this Agreement. Failure by any of the parties to respect this clause shall render it liable to minimum pre-liquidated damages of one thousand US dollars to the other party.

Assignment

20. Assignment by Reseller of the whole of this Agreement shall be permitted subject to the written consent of Spotmau. Spotmau shall have the right to assign all or any of its rights and obligations under this Agreement to a successor company in conjunction with an asset transfer undertaken in a restructuring of Spotmau's business. Where the Reseller is a limited liability company any change in the current shareholding of the company affecting the holders of more than fifty per cent (50%) of the equity and/or voting power in the same, will be considered an assignment for the purposes of this Agreement.

Entire Agreement and Amendment

21. This Agreement constitutes the entire understanding between the parties in relation to the Products and may only be amended by an instrument in writing duly entered into by both parties.

Notices

22. Any notices or other communication between the parties with respect to this Agreement shall only be considered to have been validly made when they are written in English and shall be considered to have been received by the other party when;

  • Delivered by an e-mail, on the day that the sender receives a faxed copy signed by the receiver;
  • Delivered by fax;
  • Delivered by hand;
  • Delivered by registered mail.
Enforceability

23. If any provision of this Agreement is found unenforceable, such provision shall be changed and interpreted in a way to accomplish the objectives of such provision to the greatest extent possible and the remaining provisions shall continue to be in force and have full effect.

Indemnification

24. Reseller shall defend, indemnify and hold Spotmau harmless from any or all claims, losses, damages, debts, settlements, costs, expenses and liabilities arising from the marketing and/or the distribution of the Products.

Governing Law and Disputes

25. This Agreement shall be governed by and construed in accordance with Hong Kong law. Any disputes arising in relation to this Agreement shall be settled by arbitration in accordance with the rules of the Hong Kong Arbitration Centre.

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