RECITALS
1. Engrain is a software provider of map based data visualization solutions and other software and related services as defined in Section 1.i (“Engrain Services”). Reseller is a business that would like to make Engrain Services available on their website or platform.
2. The parties wish to enter into a Reseller Agreement to establish the terms and conditions governing the use and distribution of the Engrain Services by the Reseller.
3. In consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. DEFINITIONS. For purposes of this Agreement, the following terms shall have the meanings set forth:
a. “Affiliates” means an entity which: (a) is owned or Controlled by; (b) owns or Controls; or (c) is under common Control with a Party; where “Control” means ownership of more than fifty percent (50%) of the controlled entity’s shares or ownership interests representing the right to make decisions for such controlled entity.
b. “APIs” means the Reseller APIs and/or Engrain APIs (as the context requires).
c. “Applicable Law” means all applicable federal, state, and local regulations that govern or affect any Services provided in connection with this Agreement or that otherwise apply to this Agreement.
d. “Change of Control” means: (a) the sale, transfer, conveyance or other disposition (directly or indirectly), in one or a series of related transactions, of all or substantially all of the assets of a Party and any its Affiliates, taken as a whole; or (b) a transaction or series of transactions (including by way of merger, consolidation, sale of stock or otherwise) the result of which is that any third party, directly or indirectly, owns or controls more than 50% of the voting power of the outstanding voting stock of such Party entitled to vote generally in elections of directors or managers of such Party.
e. “Confidential Information” means any information, whether in tangible or intangible form, disclosed by or on behalf of one Party (“Disclosing Party”) to the other Party (“Receiving Party”) that: (a) is identified as “confidential,” “proprietary,” or with a similar marking at the time of disclosure; or (b) should reasonably be considered to be confidential or proprietary due to its nature or the context of its disclosure. Confidential Information may include, without limitation, specifications, software, costs, prices, names, End User names and contact information, finances, marketing plans, business opportunities, orders, research, development, know-how, technology, designs, devices, data, procedures, processes, practices, protocols, methods, or techniques. Confidential Information shall not include information which: (a) was rightfully in the possession of, or was known by, the Receiving Party prior to its receipt from the Disclosing Party, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the Receiving Party from a third party, without an obligation to keep such information confidential; (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (e) is provided to Engrain or Reseller for use with or display in Engrain Services. Additionally, in no event will the use or display of information provided by Customer or Reseller to Engrain for the purpose of delivering the services contemplated under this Agreement be in violation of the confidentiality provisions herein. Notwithstanding any of the foregoing, the Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
f. “End User” means a customer of Reseller who has accepted Reseller’s TOU to use Reseller’s products and services for its own use, rather than for resale or distribution. For avoidance of doubt, an End User is the primary user of Engrain Services as resold by Reseller.
g. “End User Application Program” means a website, application or portal that is used by the End User to accesses a Unit Map through a Unique Embeddable Link.
h. “Engrain API(s)” means the application programming interface(s) made available by Engrain to Reseller under this Agreement.
i. “Engrain Services” means, collectively, the services offered by Engrain eligible for resale by Reseller, including the following products: (a) SightMap, (b) UnitMap, and (c) Marketing Maps. For avoidance of doubt, Engrain Services includes:
a. Unit Map and related program content associated therewith using the SightMap Products supplied by Engrain.
b. Unit Map and Application Programming Interface (API) supplied by Engrain.
c. Software Development Kit (SDK) tools and programming for the purpose of rendering Unit Maps on Reseller’s website, software application, or application program.
d. Unit Map and related content associated therewith using the Marketing Map Products supplied by Engrain.
j. “Engrain Technology” means, collectively, the: (a) Engrain Services; (b) Engrain APIs; and (c) any Technology owned or controlled by Engrain or its Affiliates that is used by Engrain to provide or otherwise make the Engrain Services available to Reseller and End Users.
k. “Go-Live Date” means the mutually-agreed date on which the Engrain Services are made available for resell by Reseller.
l. “Integration” means making the Engrain Technology and Engrain Services available on the Reseller Platform for resale in accordance with this Agreement.
m. “Marketing Materials” means a Party’s trademarks, service marks, logos, company name, and other branding elements of such Party (including any audio, video, text, or photographs owned, licensed, or otherwise authorized to be used by such Party).
n. “Order” means a request for Engrain Services submitted by Reseller.
o. “Property” means any piece of real estate, whether used for residential, mixed use, office, industrial, storage, commercial, or other purposes for which a representative has leveraged Reseller’s services.
p. “Property Content” means content or data specific to a Property supplied by the End User (including the End User’s agents or assigns), including unit data, a site plan or image of a property map, marketing assets and design files.
q. “Property Data” means the data made available by Reseller to Engrain about a Property for which the owner or manager has purchased Engrain Services.
r. “Property Map” means a map of a Property or a portion of a Property created by or through the Engrain Services.
s. “Reseller API(s)” means the proprietary interfaces, web services, and XML gateways made available by Reseller to Engrain under this Agreement solely for the purpose of enabling Engrain to offer the Engrain Services.
t. “Reseller Platform” means Reseller’s web applications (including its online, cloud platform and its related mobile application)”, but excluding any Engrain Technology in or on the foregoing.
u. “Reseller Representative” means a representative of Reseller, employed or otherwise, who has access to the Engrain Technology.
v. “Reseller Technology” means, Reseller's web applications (including its online, cloud platform and its related mobile application, if applicable) as well as any other platforms or applications developed or owned by Reseller; provided, however, excluding any Engrain Technology in or on any of the foregoing.
w. “Reseller TOU” means, collectively, the end user customer agreements entered into between Reseller and a End User governing such End User’s access to or use of the Reseller Platform.
x. "SightMap Portfolio User List” means a list of Engrain client accounts that are not eligible to purchase resold Engrain Technology or Services, as may be updated from time to time. This list may found online: https://docs.google.com/document/d/1EHZec2ItDTAReXneoOI2nob9EE_Bmb_shCU_5r9mIlQ/edit?usp=sharing
y. “Specifications” means any functional, operational and performance requirements of the Engrain Services or the Integration, as agreed upon between the Parties, in writing, from time to time.
z. “Support Services” means, collectively, the technical support and maintenance services set forth in Exhibit B.
aa. “Technology” means any inventions, works of authorship, information and data, know-how, equipment, materials, software, specifications, designs, devices, discoveries, procedures, processes, practices, protocols, methods, and techniques (in each case whether or not patentable or copyrightable or in tangible or intangible form).
bb. “Unit Map” means a scalable vector graphic description of one or more units produced by Engrain. Unit Maps may be derived from multiple sources of data, including: Property Content, base site plans or designs provided by the End User.
cc. “Unique Embeddable Link” means a SightMap link that is provided by Engrain to be used by an End User to access a Unit Map.
dd. “Wind-Down Period” means the sixty day period commencing on the effective date of any termination of this Agreement.
2. ENGRAIN SERVICES; LICENSING
a. Overview. The Parties will collaborate for the purpose of Reseller reselling or otherwise making available, on a non-exclusive basis, the Engrain Technology. The Parties will mutually agree on a Go-Live Date, pursuant to Section 2.B. After the Term, the Integration will be maintained and Engrain will provide the Engrain Services during the Wind-Down Period for any Reseller Customers that have previously purchased the Engrain Technology in accordance with the Reseller TOU entered into prior to the Wind-Down Period. Reseller may not authorize or appoint any dealers, sub-resellers, agents, representatives, contractors of other third parties to advertise, promote, resell or distribute the Engrain Technology.
b. Go-Live. Each Party will conduct its own internal validation, verification, and other testing relating to the Integration as reasonably necessary, and other joint testing as agreed. Engrain will determine the criteria that must be met to launch the Integration, and the Parties will mutually agree on a Go-Live Date.
c. Engrain Performance of Services. Reseller may also resell Engrain Services to End User’s under Reseller’s TOUs, including price and duration as agreed between Reseller and the End User. Engrain will perform the resold Engrain Services for Reseller’s Customers in accordance with this Agreement. If on-site services are required to assist a specific End User with the creation of a Property Map, Engrain may contract separately with the applicable End User to provide, and will provide, such services.
d. Orders & Order Coordination. The Parties will coordinate on the activation of Property Maps. Reseller will use commercially reasonable efforts to provide Engrain with monthly updates regarding the number of new Properties that will have Engrain Services activated over the following 60-day period. If a Property is expected to be activated within the next 30 days and Reseller receives notice that the activation date for a Property is going to be changed, Reseller will use reasonable efforts to provide prompt notice to Engrain of such changed activation date. Orders will be submitted by Reseller via a mutually agreed upon method of delivery and Engrain Services will be delivered by Engrain to Reseller via API. At time of Order placement, Reseller will provide a validated set of required Property Content for the generation of Engrain Services.
e. Performance. Each Party will perform its obligations in accordance with the terms and conditions of this Agreement, including that each Party will: (a) reasonably cooperate with the other Party in all matters relating to this Agreement; (b) respond in a timely manner to the other Party’s request for direction, information, authorizations, or decisions concerning or reasonably necessary for the other Party’s timely performance of its obligations under this Agreement; and (c) provide sufficient personnel, equipment, materials, access to facilities, and other resources as may be reasonably necessary for such Party’s timely performance of its obligations under this Agreement. Each Party will use reasonable efforts to identify and resolve any problems that may impede or delay the timely performance of its obligations under this Agreement and will use commercially reasonable efforts to assist the other Party with the resolution of any problems that may impede or delay the timely performance of other Party’s obligations under this Agreement. Reseller shall maintain complete and accurate records of all End Users, and will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement, and otherwise comply with all Applicable Laws in the performance of this Agreement, including but not limited to with respect to the collection, use, disclosure and processing of any data obtained from any End User (including any Property Data and Property Content).
f. License Grant for Engrain Services. During the term of this Agreement Engrain hereby grants to Reseller, and Reseller accepts, a non-exclusive, nontransferable, revocable, worldwide, royalty-free, limited license to access one or more of the Engrain Services, subject to the terms and conditions of this Agreement (including but not limited to Reseller’s payment of the Fees).
g. Relationship of Parties. Reseller acknowledges that its appointment under this Agreement is non-exclusive. Nothing in this Agreement shall limit in any manner Engrain’s right to advertise, promote, market, sell, or distribute the Engrain Technology (or any other products or services) to any End Users (including Reseller’s customers), or to appoint third parties to advertise, promote, market, sell, or distribute the Engrain Technology anywhere. The foregoing shall not require any compensation from Engrain to Reseller. Further, Engrain reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Engrain Technology. The relationship of Engrain and Reseller established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) deem the Parties to be acting as employer/employee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (iii) permit either Party or any of either Party's representatives to create or assume any obligation on behalf of the other Party for any purpose whatsoever, except as expressly set forth herein.
h. Exclusions. Reseller shall not resell Engrain Services to any End User related to any entity listed in the SightMap Portfolio User List. Reseller agrees to regularly review the SightMap Portfolio User List for updates.
3. GOVERNANCE AND RENEGOTIATION
a. Project Managers. Each Party will appoint a principal point of contact to be a project manager (each, a “Project Manager”). The Project Managers will coordinate and act as a liaison between the Parties. A Party may from time to time replace its Project Manager upon written notice to the other Party. The Project Managers’ responsibilities shall generally include overseeing and supervising its Party’s activities under this Agreement. The Project Managers will not be authorized to represent either Party with respect to the delivery and receipt of any legally binding declaration by any Party. The Project Managers will use good faith efforts to resolve all issues that arise in connection with this Agreement. Each of the Project Managers will perform the following functions: (a) provide a means for the Parties to exchange information, including to keep the other Party reasonably informed regarding the progress of day-to-day implementation and operations activities under this Agreement and to coordinate the Parties’ respective activities with respect to matters pertaining to this Agreement; (b) provide oversight and management of other issues arising under this Agreement and assist in the escalation of issues as necessary; (c) delegate such Project Manager’s roles and responsibilities (in whole or in part) to an alternative Project Manager when the Project Manager is unavailable for any extended period (e.g., vacations, work travel).
b. Escalation. A Party that has an issue, controversy, or other dispute with respect to the other Party’s performance of its obligations under this Agreement shall submit, to the other Party’s Project Manager, a written summary of such dispute. The Project Managers will meet in order to negotiate, in good faith, a resolution to such dispute prior to exercising other available remedies under this Agreement. If the Project Managers are unable to promptly resolve any such dispute within fourteen (14) days of being notified of such dispute, the dispute will be referred to the executive-level sponsors of the Parties for resolution. If, within fourteen (14) days, the Parties’ executive-level sponsors have not successfully negotiated a resolution for the dispute, either Party may submit such dispute for dispute resolution. In the event of a dispute between the Parties, each Party shall continue to so perform its obligations under this Agreement in good faith during the pendency and resolution of such dispute unless and until this Agreement is earlier terminated.
4. MARKETING
a. Co-Marketing. The Parties agree to use commercially reasonable efforts to engage in marketing and promotional activities related to this Agreement (“Co-Marketing Activities”). A Party may only use the other Party’s Marketing Materials in materials, collateral, or other media whose layout and content are pre-approved by the other Party in writing. Each Party will provide the other Party with the Marketing Materials to be used by the other Party in connection with the performance of its obligations with respect to the Co-Marketing Activities. Engrain will be responsible for the overall direction, strategy, objectives, and other general matters within the scope of Co-Marketing Activities and each of the Parties will be responsible for using commercially reasonable efforts in furtherance thereof.
b. Participation. During the Term, a Party may (in its reasonable, good faith discretion): (a) allow the other Party to participate in such Party’s marketing, advertising, promotional, and sales programs, events, and activities with respect to the Co-Marketing Activities; (b) provide, free of charge to the other Party, any reasonable information, material, and support to the other Party for purposes of facilitating the other Party’s performance of its obligations with respect to the Co-Marketing Activities; and (c) reasonably cooperate with the other Party in its performance of its obligations with respect to the Co-Marketing Activities.
c. Public Announcements. The Parties will reasonably cooperate with one another, in good faith, as to the preparation, timing, and contents of any public announcement regarding the relationship of the Parties and the existence of this Agreement, which will be in the form of a mutually agreeable joint press release to be issued by the Parties on a mutually agreeable date.
d. Marketing Materials. Each Party hereby grants the other Party, during the Term, a non-exclusive, license to use, modify, publicly display, reproduce, distribute, and otherwise exploit such Party’s Marketing Materials solely for purposes of: the other Party’s performance of its obligations with respect to the Co-Marketing Activities. Each Party will comply with any trademark usage, branding, or similar guidelines and the other Party’s written instructions that are provided, communicated, or otherwise made available by the other Party to such Party from time to time with respect to the other Party’s Marketing Materials.
5. SUPPORT
a. Engrain Support and Training. Engrain agrees to provide technical and content support to Reseller during the Term of this Agreement through a dedicated support team as specified in Exhibit B (“Support”). Engrain’s support teams are available during standard business hours 9 AM to 5 PM (Mountain Time), five (5) days per week, excluding certain holidays.
b. Updates to Unit Map. Engrain may make improvements and/or changes in format or content of the Unit Map at any time without prior notice to Reseller. In the event that such updates result in incompatibility with the End User Application Program, Engrain shall provide support to Reseller using Engrain’s standard support team described in Section 5.A (“Engrain Support and Training”).
c. Third-Party Integrations. Reseller and/or End User is responsible for maintaining access to all third-party data, including maintaining appropriate credentials therefore. Engrain has no responsibility for the validity of data from third-parties.
d. Compatibility with End User Application Program(s). With regard to SightMap products, End User is responsible for integrating the one or more Unique Embeddable Links within the End User Application Program(s) and for resolving incompatibility issues between the Unit Map and the End User Application Program(s).
e. Changes to End User Application Program(s). During the Term of this agreement, Engrain is not responsible for maintaining compatibility of the Unit Map or SightMap Products with the End User Application Program(s) and Reseller understands that any updates and/or changes to the End User Application Program(s), including data migration and changing network configurations, may result in failure of the End User Application Program(s) to access and/or properly display the Unit Map or SightMap.
f. Hosting Server. During the Term of this Agreement, Engrain agrees to provide and maintain a hosting server that will store and enable access to the Engrain Products, the Unit Map and the corresponding content through the one or more licensed Engrain Products. Engrain will use commercially reasonable efforts to maintain continuous operation of the Hosting Server. Reseller agrees to not hold Engrain liable for any damages as a result of the hosting server being unavailable, as described in more detail in Section 9 (“Limitation of Liability, Indemnification and Warranties”).
g. Training Services. Engrain will, upon request, train an appropriate number of Reseller’s sales, marketing, and engineering personnel on the use, operation, functionality, and features of the Engrain Services (“Training Services”). Training Services will be provided by Engrain at mutually agreed upon dates, times, and locations (whether virtually or in person) and provided to Reseller at a pass through cost basis for any associated travel, lodging or per diem expenses.
6. INTELLECTUAL PROPERTY; DATA
a. Ownership. All right, title and interest in and to the Unit Map (including any update, modification, enhancement or alteration thereof) is and shall be vested solely in Engrain. Reseller shall have no rights in the Unit Map other than that of a Reseller subject to the terms hereof, and any rights not expressly granted to Reseller hereunder are reserved exclusively for Engrain.
b. Property Content. End User shall retain complete ownership of the Property Content and grants Engrain the worldwide, revocable, royalty-free right to use, publicly display, and distribute the Property Content for the purposes of performing its obligations under this Agreement.
c. Limited Rights. Rights granted herein are limited and are to be strictly construed. All rights not specifically granted herein are reserved by Engrain.
d. Reseller Restrictions. Reseller shall use reasonable means to ensure that each End User and Reseller Representatives do not: (a) create derivative works of, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or attempt to derive the source code of Engrain Services or Engrain Technology (b) remove or modify any proprietary marking or restrictive legends in the Engrain Services or Engrain Technology; (c) use the Engrain Services or Engrain Technology to store or transmit infringing, unsolicited marketing emails, libelous, obscene, deceptive, defamatory, pornographic, racist, sexual, hateful, or otherwise objectionable (except as necessary for Reseller’s instructional purposes, but in all cases in compliance with applicable law and regulation), unlawful or tortious material, or any other material in violation of a third-party right; (d) use the Engrain Services or Engrain Technology to harm or impersonate any person, or for any commercial purpose (including accessing the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes); (e) interfere with or disrupt the integrity or performance of the Engrain Services or Engrain Technology; (f) attempt to gain unauthorized access to the Engrain Services or Engrain Technology or their related systems or networks.
e. Trademark License. Engrain Products may include Engrain’s Licensed Marks, Licensed Domain Names and/or Licensed Trade Names. Engrain hereby grants Reseller the right to display Engrain’s Licensed Marks, Licensed Domain Names and Licensed Trade Names only in their connection with and in direct association with the Unit Map. Reseller shall not be allowed to “white label” the Engrain Technology or Services.
f. No Implied License. Except as specifically provided in this Agreement, nothing herein shall be interpreted as granting any license, express or implied, under Engrain’s patents, trademarks, copyrights or trade secrets.
g. Data. Reseller hereby grants to Engrain a non-exclusive license to process, reproduce, and otherwise use: (a) in the case of Reseller as Engrain, Property Data and Property Content, during the Term and the Wind-Down Period solely for purposes of Engrain performing the Engrain Services to End Users, and thereafter as necessary to comply with its obligations under Applicable Laws.
h. Reservation of Rights. For the avoidance of doubt, nothing set forth in this Agreement will be deemed to cause a Party to assign or otherwise transfer its intellectual property rights to the other Party. All rights not expressly granted to a Party in this Agreement are reserved by the other Party. No additional rights whatsoever (including, without limitation, any implied licenses) are granted by either Party by implication, estoppel or otherwise.
7. FEES; PAYMENT
a. Fees. The fees due under this Agreement are set forth in Exhibit A (“Fees”) and will be paid in U.S. dollars. All Fees are exclusive of taxes, and Reseller will be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts to be paid to Engrain hereunder, other than taxes for or related to Engrain’s income or property.
b. Payment. Within thirty (30) days of the end of each calendar month, Reseller will pay Engrain the full amount of the Fees based on the number of Properties that contracted Engrain Services during such prior month, via ACH. Reseller’s payments to Engrain shall not be contingent on Reseller’s receipt of payment from an End User. In the event of a good faith dispute, Reseller shall deliver a written statement to Engrain prior to the date payment is due listing all disputed items and providing a reasonably detailed description of each disputed item. The Parties will seek to resolve all payment disputes promptly and in good faith. Notwithstanding anything to the contrary, each Party shall continue performing its obligations under this Agreement during any such dispute.
c. Late Payment. If Reseller fails to make any payment when due, in addition to all other remedies that may be available:
a. Engrain may charge interest on the past due amount at the rate of ten percent (10%) per annum calculated daily and compounded monthly or, if lower, the highest rate permitted under Applicable Law;
b. Reseller shall reimburse Engrain for all costs incurred by Engrain in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
c. If such failure continues for thirty (30) days following written notice thereof, Engrain may disable or withhold, suspend or revoke its grant of a license of, or performance of services relating to, any Engrain Technology until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Reseller or any other person by reason of any such action.
8. TERM; TERMINATION
a. Term. The initial term of this Agreement commences on the Effective Date and will renew annually on the Effective Date, unless earlier terminated by either Party with thirty (30) days written notice. The Initial Term and any Renewal Term(s) are collectively referred to herein as the “Term.”
b. Engrain Services Term. Engrain shall, during the Term of this Agreement and during the Wind-Down Period, make the Integration available to those Reseller’s End Users that have purchased Engrain Technology from Reseller. For each Property receiving Engrain Services, unless otherwise agreed upon by the Parties in writing, such services are provided on a annual basis and may be terminated by Reseller at any time with sixty (60) days’ notice. Upon such termination, setup and prepaid licensing fees are nonrefundable.
c. Termination for Cause. Either Party may terminate this Agreement for cause upon thirty (30) days’ prior written notice of a material breach to the other Party reasonably describing such breach (provided that such breach remains uncured at the expiration of the notice period).
d. Termination for Insolvency. Either party may terminate this Agreement immediately if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise that is not dismissed within ninety (90) days.
e. Effect of Termination.
a. Upon the termination of this Agreement: (a) each Party will promptly (except that these obligations may be delayed to the extent required to perform continued Services during the Wind-Down Period): (1) return to the other Party (or destroy, at the other Party’s option) all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party's Confidential Information, and (2) permanently erase all of the other Party's Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems, or for compliance with corporate record keeping requirements.
b. The Parties will perform their respective obligations set forth in the wind-down plan attached hereto as Exhibit C (“Wind-Down Plan”) for the duration of the Wind-Down Period. For the avoidance of doubt, Reseller will not be permitted to activate the Engrain Services or Integration for additional Properties during the Wind-Down Period. If the term for Engrain Services between Reseller and the owner or manager of a specific Property extends beyond the end of the Wind-Down Period, the Wind-Down Period will be extended solely with respect to that Property.
f. Survival. Any terms that by their nature survive termination of this Agreement, will survive (including but not limited to all rights to payment, causes of action, and Sections 1, 2, 3, 4, 5, 6, 8, 9 and 10).
9. LIMITATION OF LIABILITY, INDEMNIFICATION AND WARRANTIES
a. Limitation of Liability. In no event shall Engrain be liable for any incidental, special, consequential or indirect damages of any kind (including damages for interruption of business, procurement of substitute goods, loss of profits, or the like) regardless of the form of action whether in contact, tort (including negligence), strict product liability or any other legal or equitable theory even if Engrain has been advised of the possibility of such damages. Losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreement or other remedy of its essential purpose. In no event will Engrain’s aggregate cumulative liability for any claims arising out of or related to this agreement exceed the amount reseller actually paid Engrain under this agreement (if any), regardless of the form of action whether in contract, negligence, strict liability, tort, products liability or otherwise, except as otherwise specified in this agreement.
b. Software Warranty. During the Term, all Engrain Products are covered by a Software Warranty that covers the correction of software bugs and/or programming errors. For the purpose of this Agreement, a “bug” shall be defined as anything that causes a script error or causes the Engrain Product to behave in a manner not intended including freezing, crashing, or displaying of incorrect content. The Software Warranty does not cover the addition of features or content updates.
c. Hosted Application Warranty. During the Term, all hosted applications are covered by a warranty that covers the correction of bugs and/or programming errors. The Hosted Application Warranty does not cover the addition of features or content updates.
d. Disclaimer of Warranties. The Unit Map is provided “as is” and is subject only to the software warranty in section 9.B (“Software Warranty”). Except as expressly provided herein, Engrain disclaims all warranties, representations and statements, express, or implied, statutory or otherwise with respect to the Engrain Technology, including but not limited to the Unit Map, any Engrain services provided hereunder or otherwise regarding this agreement, including but not limited to the implied warranty of merchantability, the implied warranty against infringement of third party rights, the implied warranty of fitness for a particular purpose, and any warranties that might arise from a course of dealing, usage or trade practice. Reseller accepts all risks and liabilities associated with its use of the Unit Map Engrain Technology.
e. Reseller’s Indemnification. Reseller shall defend, indemnify and hold Engrain harmless, at Reseller's expense, for any claim, suit or proceeding brought against Engrain by any End User or any other third party arising out of: (i) any act, omission, or breach of Reseller (or its representatives) in connection with this Agreement; and (ii) any claims, warranties, or representations made by Reseller (or its representatives) which differ from those provided by Engrain in the applicable Software Warranty.
f. Engrain’s Indemnification. Engrain shall defend, indemnify and hold Reseller harmless, at Engrain's expense, for any claim, suit or proceeding brought against Reseller claiming that Reseller’s proper use of the licensed products infringe any U.S. Patent, copyright, trade secret or other proprietary rights of others. To qualify for such a defense and payment Reseller must (i) give Engrain prompt written notice of any such claim and (ii) allow Engrain to control and fully cooperate with Reseller in the defense and all related settlement negotiations. Engrain shall pay to Reseller all damages awarded to third parties which Reseller is obligated to pay but shall not be responsible for any compromise made without its consent. The foregoing states Engrain’s sole liability and Reseller’s exclusive remedy with respect to claims relating to infringement of intellectual property rights involving the Engrain Technology. The foregoing obligation shall not apply to any action or loss arising out of or relating to any (i) modification of any Engrain Technology other than by Engrain; (ii) use of any Engrain Technology after Engrain’s notice to Reseller of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; (iii) negligence, abuse, misapplication or misuse of any Engrain Technology by or on behalf of Reseller or Reseller’s representatives; or (iv) use of any Engrain Technology by or on behalf of Reseller that is outside the purpose, scope or manner of use authorized by this Agreement where such use is the sole cause of the action or loss.
g. Result of Bargaining. The warranty disclaimer and limited liability are fundamental elements of the basis of the bargain between Engrain and Reseller. Engrain would not be able to provide the Unit Map without such limitations.
h. Third Party Links. The services may link to third party web sites (including without limitation, links provided by the End User) or allow access to third-party services. Such sites and services are not under the control of Engrain, and Engrain is not responsible for the content or any link on such sites or for the temporary or permanent unavailability of such third party sites or services.
10. GENERAL
a. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Colorado as they are applied to agreements between Colorado residents entered into and to be performed entirely within Colorado. Any legal proceedings arising out of or relating to this Agreement will be governed by Colorado law, excluding choice of law rules, and shall be venued in the state or federal courts located within Arapahoe County or the Tenth Circuit Judicial District in Colorado, respectively. Reseller agrees to submit to the jurisdiction of such courts for purposes of resolving such disputes. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
b. No Exclusivity; Assignment. It is expressly understood and agreed by the Parties that this is not an exclusive agreement. Nothing in this Agreement shall be construed as creating any exclusive arrangement with Engrain or prohibit Engrain from either providing similar, equal or like goods and/or services or from executing additional contracts with other entities or sources. Reseller shall not assign any of its rights nor delegate any of its obligations under this Agreement to any third party. Engrain may assign or otherwise transfer this Agreement, in whole or in part, (including by way of merger, acquisition, sale of assets, Change of Control, or operation of law). In the event of an Engrain assignment or transfer of Agreement, Engrain will provide thirty days written notice to Reseller.
c. Notices. Notices and other communications to Reseller will be emailed to the email addresses provided during Reseller registration, and shall be deemed effective upon email distribution. Notice or other communications to Engrain shall be sent by email to contracts@engrain.com and shall be deemed effective once acknowledged.
d. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, riots, insurrection, fires, flood, storm, explosions, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause which is beyond the reasonable control of such party.
e. Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
f. Severability. In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement. It is expressly understood and agreed that each and every provision of this agreement which provides for a limitation of liability, disclaimer of warranties or exclusion of damages, is intended by the parties to be severable and independent of any other provision and to be enforced as such.
g. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree to be bound by facsimiled and other forms of electronic signatures.
h. Entire Agreement. The provisions of this Agreement constitute the entire agreement between the parties and supersede all prior agreements or representations, oral or written, relating to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior agreements. In the event of a conflict between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into between Engrain Technology Inc. and Reseller and/or any of its affiliated, related, parent or subsidiary companies, related to the subject matter of this Agreement or otherwise entered into as a result of this Agreement, the terms of this Agreement shall prevail. This Agreement may not be modified except in writing specifically referencing this Agreement and signed by a duly authorized representative of each party.
i. Independent Agreement. This Agreement is independent of and separate from any other agreement between the parties. The obligations of the parties under this agreement will not in any way be affected by the existence or performance of any other agreement in place between the parties from time to time.
j. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective Parties hereto, their respective successors and permitted assigns.
k. Injunctive Relief. It is hereby understood and agreed that damages may be an inadequate remedy in the event of a breach by a Party of this Agreement and that any such breach may cause the other Party great and irreparable injury and damage. Accordingly, each Party agrees that the other Party may be entitled, without waiving any additional rights or remedies otherwise available to the other Party at law or in equity or by statute, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach of this Agreement.
l. Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity.
m. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party hereto against the other Party arising out of or related to this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
Exhibit A "Fees"
1. DEFINITIONS. Unless otherwise defined in this Exhibit A, defined terms shall have the meanings given to them in the Agreement.
a. "Standard Rate Card" means Engrain's current standard, current rate cards.
2. FEES. Reseller will pay a percent discount off of Engrain’s Standard Rate Card Fees, as specified below.
SightMap Volume Discount
Less than 20: 10% Discount
21-50: 15% Discount
51-250: 20% Discount
251-500:25% Discount
Exhibit B "Support"
1. DEFINITIONS. Unless otherwise defined in this Exhibit B, defined terms shall have the meanings given to them in the Agreement.
a. “Business Hours” means 9:00 a.m. to 5:00 p.m. Mountain Time, Monday-through Friday, with certain holidays excluded.
b. “Error(s)” means a failure of the Engrain Services (as the context requires) to perform in accordance with their applicable Specifications.
c. “Escalated Support” means Support Services to be provided by Engrain to Reseller during the Term for Errors that cannot be resolved by Reseller through Tier 1 Support and are escalated to Engrain through a Ticket. Tickets must:
a. Be submitted via https://engrain.my.site.com/helpcenter/s/contactsupport
b. Include Reseller POC as primary contact
c. Include a link to all troubleshooting steps enacted by Reseller with findings
d. “Tier 1 Support Services” means a support issue to be resolved by Reseller, as specified in Table 1.
e. “Tier 2 Support Services” means a support issue to be resolved by Engrain, as specified in Table 2.
2. OBLIGATIONS. During the Agreement Term, the following will apply, without limiting any other obligations.
Tier 1 Support Services
Pricing and availability data services
Responsible party: Reseller
Resolution of any reports of pricing and availability data.
Unit and floor plan association
Responsible party: Reseller
Resolution of any reports of unit and floor plan relationships.
Accuracy of website filtering
Responsible party: Reseller
Resolution of any updates or changes to website filtering.
Integration of the SightMap within the End User Application(s)
Responsible party: Reseller
Resolution of any integration related inquiries or updates related to how the SightMap appears within the End User Application(s).
Virtual tours for any technology partner
Responsible party: Reseller
Resolution of any virtual tour content related inquiries or updates.
Tier 2 Support Services
Escalated Support
Responsible party: Engrain
Escalations of Tier 1 issues for which Reseller is unable to remedy at outlined in 1.c
Unit Map corrections
Responsible party: Engrain
Changes to .umap file, e.g. unit labeling, amenity marker changes
Exhibit C "Wind Down Plan"
1. OBLIGATIONS. During the Wind-Down Period, the following will apply, without limiting any other obligations.
Services
Enrollment: Prohibit End Users from registering for additional Engrain Services.
Responsible party: Reseller
Completion date: End of Wind-Down Period
Communications: Notify End Users of Engrain Services no longer being made available following expiration of Wind-Down Period (content and timing of such notification to be mutually agreed upon by Parties).
Responsible party: Reseller
Completion date: Within five (5) days of commencement of Wind-Down Period
Data Sharing: Provide comprehensive data set for all Properties that used Engrain Services during the Term including: account name; Property name and address; billing contact, dates receiving Engrain Services; main contact; billing contact; account receivables information or other payment status
Responsible party: Reseller
Completion date: End of Wind-Down Period