Last Updated on November 11th, 2013
Resellers Terms of Service
The Reseller to engage, and BumpText to provide, Social Media Management, Website Design, Information Technology Consulting and other services to the Reseller (and indirectly its Clients and Customers) based on the terms of service set out below (Reseller Terms of Service), and Reseller and BumpText their understanding of the terms and conditions under which such services shall be provided by the BumpText to the Reseller, and indirectly its Clients and Customers. You agree to the Reseller Terms of Service by accessing or using our pre-sales resources such as quotations or proposals c/o: your Clients and Customers. Do not access or use the pre-sale resources if you are unwilling or unable to be bound by the Reseller Terms of Service.
(a) “Application Server” means the computer(s), server(s) and database(s) owned and operated by BumpText for the purpose of hosting the Licensed Software for access over the Internet.
(b) “Authorized Users” means the number and type of individuals authorized to access and use the Licensed Software on the Application Server, as specified in the applicable SOW .
(c) “Confidential Information” means any and all non-public information disclosed in connection with any discussions and negotiations leading to this Reseller Terms of Service or in connection with performing under this Reseller Terms of Service, except for information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving Party, generally known or available; (ii) is known by the receiving Party at the time of receiving such information; (iii) is hereafter furnished to the receiving Party by a third Party without restriction on disclosure; (iv) is independently developed by the receiving Party as evidenced by its written and dated records and without any breach of this Reseller Terms of Service; or (v) is the subject of written permission prior to disclose provided by the disclosing Party.
(d) “Reseller Customer Data” means data collected, used or disclosed by or on behalf of Reseller or Customers for processing by the Licensed Software or for use in delivering the services described in an applicable SOW.
(c) “Licensed Software” means the BumpText application platform computer program and database(s) and any third Party software embedded in the BumpText computer program and database that BumpText licenses to Licensee in connection with this Reseller Terms of Service (and any and all updates or modifications thereto) specified in the applicable SOW.
(d) “Proprietary Rights” means any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, domain names, trade dress, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
2. Services to be Rendered by and Duties of BumpText; Compensation.
(a) Generally. The Reseller engages BumpText and BumpText accepts the Resellers engagement to initially provide Social Media Management, and if agreed to by the Reseller and Company in writing, other services as may be agreed, to the Reseller, and indirectly to its Clients and Customers (the Social Media Management and other services as may be agreed to by the Reseller and BumpText from time to time may be hereinafter collectively referred to as the Services). The Reseller and BumpText will enter into supplementary contracts (“Statements Of Work” or “SOW(s)”), which may include, amongst other matters, terms specifying the Services to be provided to the Reseller with respect to a particular Client or Customer, start and completion dates, and the compensation payable to BumpText for the Services to be rendered by BumpText pursuant to the SOW. The terms and provisions of this Reseller Terms of Service shall apply to and control the overall relationship and provisions of service by BumpText to the Reseller, including Services to be rendered by BumpText to the Reseller under any and all SOW(s), and in the event of a conflict or inconsistency between any provisions of a SOW and this Reseller Terms of Service, the provisions of the applicable SOW shall govern and control.
The Statements Of Work are unique for each Client and/or Customer of the Reseller and shall be substantially in the format provided by BumpText. SOWs may also be evidenced by electronic data transmitted between Reseller and BumpText. In any case, each SOW will require formal signoff approval by the Reseller, which will be considered binding.
(b) Specific Services to be Provided; Compensation. The Services to be provided by BumpText to the Reseller during the term of this Reseller Terms of Service and any SOW executed in connection herewith shall include the following:
(1) Providing Social Media Marketing and/or Other Services to the Reseller (and its Clients and Customers).As part of its marketing, the Reseller may offer standard programs of Social Media Management and/or Other Services to be offered to its Clients and Customers, and Reseller and BumpText may agree as to the amount to be paid to BumpText for providing Social Media Management and/or Other Services as detailed for such standard programs. If such standard programs and compensation is agreed to in writing, then it may be referred to utilizing such shorthand in any SOW between the Reseller and BumpText. Each SOW may specify the compensation to be paid to BumpText for such Social Media Management and/or Other Services it is providing to a Client or Customer, but if such compensation is not otherwise specified in a SOW, the compensation payable to BumpText of a value no less than the Net Price inclusive of the deduction of any agreed Reseller Commission amount as outlined in the SOW received by the Reseller from such Customer or Client that is attributable to the Social Media Management and/or Other Services rendered by BumpText to such Customer or Client.
(2) If the Reseller and BumpText mutually agree in writing that BumpText shall provide any additional Services to the Reseller (or its Clients or Customers) other than the Social Media Management, the Reseller and BumpText will detail such additional Services to be provided pursuant to an amendment to this Reseller Terms of Service or the individual SOW. If other Services are to be provided, the compensation to be paid to BumpText in connection therewith may be specified on the relevant SOW.
(c) Manner of Performance of Services. All Services rendered by BumpText to Customers and Clients may be solely in the name of the Reseller. The Reseller shall have all responsibility for sales, account management (interaction with the Customers and Clients), payment, collection and customer support.
(d) License Grant. Subject to the terms and conditions contained herein, BumpText hereby grants Reseller, the Licensee, the non-exclusive right to grant, in accordance with the parameters and terms and conditions of the applicable SOW, sublicenses to Customers of the Reseller that permit Authorized Users to: (1) access and execute the Licensed Software on the application server with supported browsers and through the Internet from any location worldwide; (2) transmit Licensee customer data to and from the Licensed Software to the Licensee Customer with supported browsers and through the Internet from any location worldwide; and (3) transmit Licensee data to and from the Licensed Software to Licensee with supported browsers and through the Internet from any location worldwide (License). The term of each sublicense (Sublicense Term) shall be for the time period specified in the SOW applicable to such Customer of the Reseller. All sublicenses shall be subject to a sublicense agreement between Licensee and the Licensee Customer, which sublicense agreement shall (a) grant a limited use sublicense to the Licensed Software to the Licensee Customer which shall be, in all respects, no more expansive than the scope and other use parameters contained in the applicable fully executed SOW for such Customer of the Client. Except as specifically provided herein or the applicable SOW, the Authorized Users shall access and use the Licensed Software only for the support of services defined in this Reseller Terms of Service. Licensee will not permit the Licensed Software to be accessed or used by or for the benefit of any third Parties other than Licensee Customers that have an executed agreement (which has not been terminated) for the sublicense to the Licensed Software, and even in such event, for no other purpose than that specified in the immediately preceding sentence and otherwise agreed to in a mutually agreed upon SOW. Licensee further acknowledges and agrees that: (i) it shall not have the right to relicense or otherwise sell rights to access or use the Licensed Software, or to transfer or assign rights to access or use the Licensed Software, other than as otherwise agreed to in a mutually agreed SOW; (ii) all rights not expressly granted to Licensee herein are expressly reserved by Company.
3. Payment of Compensation.
The Reseller agrees to pay BumpText the Net Price for the Services agreed upon between the Reseller and BumpText as set out in this Reseller Terms of Service or SOW Agreement, as applicable. Payments shall be made within Seven (7) calendar days of Client and Customer billing date for Services to be rendered by BumpText in that month. For any new Reseller Client or Customer that initiates service on any day other than the 1st or 15th of the month, a prorated fee for the remaining days in that month will be charged prior to initiation of Services. Upon default of any payments, BumpText reserves the right to Invoice directly the Client and Customer the Applicable Price derived as Net Price + any Reseller Commissions or Rebates, without delay upon settled Client and Customer payments to BumpText, BumpText will reimburse the Reseller any Commissions or Rebates agreed upon between the Reseller and BumpText as set out in this Reseller Terms of Service or SOW Agreement, as applicable.
By purchasing or subscribing to BumpText services, the Reseller agree to a minimum contract term indicated with each plan, during which the Reseller are obliged to pay monthly for services of a value no less than the original subscription price. Upon the expiration of the minimum contract term, service and billing will automatically continue on a month-to-month basis, during which the Reseller may cancel or change the subscription anytime with 60 days notice. A valid credit card or advanced payment is required for paying accounts. Purchases or Subscriptions are billed on a monthly basis at the beginning of each subscription month and are non-refundable.
4. Ownership of Information, Software Data and Materials.
(a) BumpText. Unless otherwise mutually agreed to in a SOW, all right, title and interest in and to the Licensed Software (including, without limitation, all upgrades, modifications and other alterations to the Licensed Software, the documentation as well as all other documentation related to the Licensed Software, the database systems and software of BumpText, any BumpText confidential information, and all software installed on the Application Server or operating as part of BumpTexts web site), as well as all of BumpText Proprietary Rights of each of the foregoing, shall remain in and be the sole and exclusive property of BumpText and/or its licensors. Neither Reseller nor any Reseller Customers or Clients acquires any interest in or rights to the Licensed Software or any other asset (tangible or intangible) owned, used or possessed by BumpText pursuant to this Reseller terms of Service or a SOW, other than the right to access, use and configure the Licensed Software pursuant to this Reseller terms of Service hereof and any applicable SOW, Reseller shall not alter, change or remove any proprietary notice or confidentiality legend placed on or contained within or upon Application Server operating as part of BumpTexts web site, the Licensed Software, or any other software installed on Application Server. Without limiting the generality of the foregoing, except as expressly provided herein, Reseller shall have no right to receive, review or use the source code.
(b) Reseller. Reseller Data and all Reseller Confidential Information are proprietary to Reseller and title thereto will remain the sole and exclusive property of Reseller. As between Reseller and Company, Reseller owns Reseller Data, Reseller Confidential Information, Reseller Customer Data, and all Reseller Customer Confidential Information.
(a) Company Confidential Information. Reseller acknowledges and agrees that Confidential Information disclosed by BumpText to Reseller including, without limitation, the Licensed Software, BumpTexts Proprietary Rights to the Licensed Software and the software installed on the Application Server (and BumpTexts Proprietary Rights therein) embodies logic, design, coding, methodology and other trade secrets (collectively, Company Confidential Information) and shall be held as confidential by the Reseller and Reseller shall not, except as specifically provided in this Reseller Terms of Service, disclose or use such Company Confidential Information for any purpose. Reseller shall safeguard Company Confidential Information using the same standard of care that Reseller uses for its confidential information, but in no event less than reasonable care.
(b) Reseller Confidential Information. BumpText acknowledges and agrees that Confidential Information disclosed by Reseller to BumpText, including but not limited to the list of Resellers clients, (collectively, Reseller Confidential Information) shall be held as confidential by BumpText and BumpText shall not, except as specifically provided in this Reseller Terms of Service, disclose or use such Reseller Confidential Information for any purpose. BumpText shall safeguard the Reseller Confidential Information using the same standard of care that BumpText uses for its confidential information, but in no event less than reasonable care.
(c) Return of Property. Within seven (7) calendar days upon a written request: (a) Reseller shall return to BumpText any and all Company Confidential Information that had been provided by BumpText to Reseller or to the extent provided by Reseller to a Client and Customer during the Term that is in the control or possession of Reseller, all at no cost to BumpText, and provide BumpText with a written certification signed by an officer of Reseller and representing that all such Company Confidential Information has been returned to BumpText; and (b) BumpText shall return to Reseller any and all Reseller Confidential Information, Reseller Data, and Reseller Client and Customer Data in its control or possession, at no cost to Reseller, and provide Reseller with a written certification signed by an officer of BumpText that all such Reseller material has been returned to Reseller.
Each Party (Indemnifying Party) will defend, indemnify, and hold harmless the other Party (Indemnified Party) and its officers, directors, members, managers, employees, agents, independent Companys, lawyers, legal representatives, successors, and assigns from and against any and all third Party claims, actions and damages (including reasonable legal fees and expenses) incurred by the Indemnified Party and arising from, relating to, or in connection with the (1) gross negligence, fraud or criminal conduct of the Indemnifying Party or any independent Companys or subCompanys hired by the Indemnifying Party, (2) a violation of any applicable law by Indemnifying Party or any independent Companys or subCompanys hired by the Indemnifying Party, as determined by a court of competent jurisdiction, in connection with the performance of its duties and obligations under this Agreement; provided, however, that the Indemnified Party: (1) promptly notifies the Indemnifying Party, in writing, of such claim as soon as practical after gaining knowledge thereof; (2) gives the Indemnifying Party sole control of the defense and settlement of such claim; and (3) provides the Indemnifying Party, at no charge, all reasonable assistance in connection with the defense and settlement of such claim. The Indemnifying Party may settle such claim or proceeding with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed. The Indemnified Party cannot settle such claim or proceeding without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed.
7. Limit of Liability.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL OR DATA) ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF AN EMPLOYEE, AGENT OR OTHER REPRESENTATIVE OF THE PARTY CLAIMED TO HAVE CAUSED SUCH DAMAGE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EXCEPT WITH RESPECT TO THE PAYMENT OBLIGATIONS OF RESELLER, THE AGGREGATE LIABLITY OF COMPANY AND RESELLER FOR ALL CLAIMS AND DAMAGES ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE NET AMOUNTS ANY SPECIFIC RESELLERS CLIENT PAID TO COMPANY, AND IN NO EVENT SHALL THE AGGREGATE LIABILITY TO COMPANY EXCEED THE NET AMOUNTS PAID BY RESELLER TO COMPANY UNDER THIS AGREEMENT. FURTHERMORE, COMPANY WILL HAVE NO LIABILITY IN CONNECTION WITH THE FUNCTIONALITY OR CONTENT OF ANY SEARCH PROVIDER OR INTERNET PUBLISHER OR WEBSITE NOT OWNED BY COMPANY .
This Reseller Terms of Service and any SOW issued under it shall remain in full force and effect until and unless this Reseller Terms of Service or such SOW is terminated by Company or Reseller in the manner hereinafter provided. Reseller and BumpText shall each be free to terminate this Reseller Terms of Service or any applicable SOW at any time upon expiration of the minimum contract term, with sixty (60) days prior written notice to the other Party for any reason or no reason whatsoever unless a specific term has otherwise been specified in the applicable SOW, in which case the terms specified in the applicable SOW shall prevail. This Reseller Terms of Service or any SOW may also be terminated fifteen (15) days after the delivery of written notice to a defaulting Party specifying with particularity the provisions of this Reseller Terms of Service or any SOW that the defaulting Party is failing to adhere to, unless such defaulting Party cures such default within such fifteen (15) day period. Upon termination of any SOW in this manner, BumpText will be relieved from all obligations it would otherwise have with respect to such SOW for periods from and after the effective date of such termination, and any compensation inclusive of the minimum contract term fees owed to BumpText with respect to such SOW shall be immediately payable by the Reseller as of the date of termination of such SOW. BumpText’s Services with respect to any SOW shall also terminate immediately in the event the Resellers agreement with a Customer or Client giving rise to such SOW is terminated for any reason whatsoever, including nonpayment of fees owed by a Client or Customer. BumpText, in its sole discretion, has the right to suspend or terminate any SOW and refuse any and all current or future use of the Site, or any other BumpText service, for any reason at any time. Such termination of any SOW will result in the deactivation or deletion or access of Services with respect to any SOW. BumpText reserves the right to refuse service to anyone for any reason at any time.
9. BumpText’s Relationship to Reseller.
BumpText shall be an independent Company with respect to the Reseller, and nothing contained herein shall be construed to create an employer/employee, partnership, joint venture or agency relationship between BumpText and the Reseller. BumpText shall likewise be responsible for insuring that all of its employees are covered by workers compensation insurance, and that it complies with all employment and other laws applicable to its performance of Services hereunder. In no event shall BumpText be deemed a partner, agent or joint venturer of the Reseller, and in no event shall BumpText acquire or have any rights in or to any of the assets of the Reseller or its Clients or Customers. Likewise, in no event shall the Reseller acquire or have any rights in or to any of the assets of BumpText or its Clients or Customers.
BumpText shall have no authority to enter into any contracts binding upon the Reseller, or to create any obligations on the part of the Reseller. Reseller shall have no authority to enter into any contracts binding upon the BumpText, or to create any obligations on the part of BumpText other than those terms that are expressly outlined in this Agreement.
Any notice required or permitted to be given pursuant to the provisions of this Agreement shall be sufficient if in writing and if personally delivered to the Party to be notified sent by registered or certified mail, postage prepaid, return receipt requested, if to the Reseller their registered address and if to Company; BumpText, Unit 701, 7/F, Tower 2, Silvercord, 30 Canton Road, Tsim Sha Tsui, Kowloon, Hong Kong.
All notices shall be effective upon receipt; provided, however, in the event any such notice properly sent is returned to the sender as undeliverable, or delivery refused, etc., the same shall be deemed received by the Party to whom it was addressed on the date the same was originally transmitted by the sender.
12. Binding Effect.
Subject to compliance with the provisions of this Reseller Terms of Service regarding assignment, this Reseller Terms of Service shall inure to the benefit of and be binding upon BumpText and the Reseller, and their respective heirs, personal representatives, successors and assigns.
13. Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the Hong Kong SAR applicable to contracts executed and to be performed entirely within the Hong Kong SAR and without reference to conflicts of laws.
Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but in the event that any of the provisions, or portions thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected thereby and shall be enforced to the greatest extent permitted by law, and there shall be inserted, in lieu of the invalid or unenforceable provision, a provision which is valid and enforceable and which as nearly as practicable carries out the intent of the provision held to be invalid or unenforceable.
15. Legal Fees.
Should a Party hereto retain counsel for the purpose of enforcing or preventing the breach of any provision hereof, including, without limitation, the institution of any action or proceeding to enforce any provision hereof, for damages by reason of any alleged breach of any provision hereof, for a declaration of such Party’s rights or obligations hereunder or for any other judicial remedy, the prevailing Party shall be entitled, in addition to such other relief as may be granted in such action or proceeding (whether in arbitration, at trial or on appeal) to be reimbursed by the nonprevailing Party for all reasonable costs and expenses incurred thereby, including, without limitation,
16. Trial By Jury.
THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY IN ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT.
17. Entire Agreement.
This Reseller Terms of Service and any SOWs issued in connection herewith, contains the entire understanding between the Parties hereto concerning the subject matter addressed herein. There are no representations, agreements, arrangements, or understandings, oral or written, between or among the Parties hereto, relating to the subject matter of this Reseller Terms of Service, which are not fully expressed herein or in an applicable SOW. This Reseller Terms of Service may not be changed orally but only by an agreement in writing signed by the Party against whom enforcement of any waiver, change, modification, extension or discharge is sought. The terms and provisions of this Reseller Terms of Service shall apply to all future engagements or services rendered by BumpText to the Reseller, including pursuant to the SOWs issued from time to time.
This Reseller Terms of Service may be executed in counterparts, each of which shall be deemed an original and all of which counterparts taken together shall constitute one and the same Reseller Terms of Service. In addition, this Reseller Terms of Service may contain more than one counterpart of the signature page, and this Reseller Terms of Service may be executed by the affixing of the signatures of each of the Parties to one of such counterpart signature pages, all of such counterpart signature pages shall be read as one, and they shall have the same force and effect as though all of the signers have signed a single signature page.
The terms and provisions of this Reseller Terms of Service that, by their logical import, are to survive a termination of this Reseller Terms of Service shall survive the termination of this Reseller Terms of Service and be fully enforceable by each Party. Thus, by way of illustration and not in limitation, the provisions of Sections 2(c) pertaining to ownership of and rights to Information, Software, Data and Materials, Sections 3 through 9, and Sections 11 through 20, shall survive any termination or expiration of this Reseller Terms of Service on account of any reason whatsoever.
20. Changes to the Reseller Terms of Service.
We may modify these Reseller Terms of Service from time to time. When changes are made, we will notify you by making the revised version available at www.bumptext.com/footer/resellers and will indicate at the top of the Resellers Terms of Services the date that revisions were last made. You understand and agree that your continued use of BumpText Services with respect to any SOW after any posted modification to the Resellers Terms of Service indicates your acceptance of the modification.