WELCOME TO MOBSTAC INC’S (“MOBSTAC”) VALUE ADDED RESELLER PROGRAM.
PLEASE READ THE TERMS AND CONDITIONS SET OUT IN THE AGREEMENT BELOW (“AGREEMENT”) AS IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOUR APPOINTMENT AS A VALUE ADDED RESELLER (“VAR”) OF MOBSTAC’S PRODUCTS. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MAY CHOOSE NOT TO PROCEED WITH GETTING APPOINTED AS A VAR.
THIS AGREEMENT SHALL BE BINDING ON THE PARTIES AS ON AND WITH EFFECT FROM THE DATE OF YOUR ACCEPTANCE OF THE TERMS HEREOF (“EFFECTIVE DATE”)
MobStac and the VAR may hereinafter be collectively referred to as the “Parties” and individually as a “Party”.
As on and with effect from the Effective Date, MobStac hereby appoints the VAR as its value added reseller and permits the VAR to integrate or include MobStac’s products (“Products”, as listed on https://beaconstac.com/buy-proximity-marketing-solution/ into the VAR’s solutions or offerings and make the same available to its customers (“Customers”). This will entitle the Customers to access MobStac’s cloud platform, viz. ‘Beaconstac’ (“Software”) and avail of services therefrom by way of ‘software as a service’ (“SaaS”).
In order to enable and facilitate the VAR to fulfill its obligations hereunder, MobStac shall: (i) provide the VAR’s designated personnel with sales training information on the Products, Software, SaaS and the marketing collateral thereto; (ii) provide the VAR with MobStac’s software development kit (“SDK”) to enable the VAR to integrate or include the Products and Services with its solutions or offerings (if required); (iii) provide the VAR with the requisite administrator rights to enable the VAR to control the Customer accounts; (iv) offer discounts, at MobStac’s discretion, to the VAR to, in turn, offer the discount to the Customers on a promotional basis (“Promotion”); (v) assist the VAR in joint marketing and Promotion efforts; and (vi) provide the Customers access to the latest features of the SaaS, whether pre-release or otherwise.
Further, if the VAR is desirous of white-labelling the Products and/or Software, MobStac agrees to: (i) remove any MobStac Marks from the Products and/or Software; (ii) provide a generic application to manage the Products (i.e., devoid of any MobStac Marks); and (iii) provide marketing collateral without MobStac Marks to enable the VAR to market the Products and Software along with its solutions or offerings.
Pursuant to the VAR providing the Products and Software along with its solutions or offerings to the Customers, MobStac shall: (i) manage all aspects of the SaaS relationship with the Customers in accordance with and subject to its terms and conditions, as set out in https://beaconstac.com/buy-proximity-marketing-solution/; and (ii) provide maintenance and support to the VAR, to the extent it pertains to the Products and SaaS to the VAR, to enable it to, in turn, provide the same to the Customers.
The VAR may place orders for the Products in writing (“Order”) through MobStac’s website, viz. https://beaconstac.com/buy-proximity-marketing-solution/ or via their dashboard. Each Order will specify: (i) the quantity and type of Products and SaaS (white-labelled or otherwise); and (ii) the requested shipment date for the Products. Each Order, once placed, shall be irrevocable and non-cancellable. However, the Order will be binding on MobStac only once the Order is accepted by MobStac. Thereafter, the terms thereof may not be varied, unless it is otherwise mutually agreed by the Parties. Any Order that MobStac accepts will be subject solely to the terms and conditions of this Agreement and any additional or inconsistent terms contained in the Order will not be binding on MobStac, unless specifically agreed in writing by MobStac. MobStac may, at its option, refuse any Order placed by the VAR, cancel any accepted Order, delay shipment of the Products and/or access by the Customers to the SaaS, if the VAR is delinquent in any payments to MobStac or otherwise in breach of this Agreement.
MobStac shall process an Order only once it receives payment or in the event it has agreed to a deferred payment schedule, it shall process the Order upon its acceptance and thereafter, ship the Products to the VAR. The Products shall be shipped FCA (Incoterms 2010) MobStac’s or its affiliate’s facility (“Point of Origin”). Risk of loss will pass to the VAR upon delivery to the carrier at the Point of Origin and title to the Products will pass to the VAR once the same is paid for in full. For shipments outside the United States, the VAR shall be responsible for clearing the Product shipment for import and shall pay applicable duties, taxes and other charges, if any, upon import. The VAR acknowledges and agrees that the scheduled shipment dates mentioned in the invoice, if any, are purely indicative, and MobStac shall not liable for any loss, damage or penalty on account of any delay.
If the Products supplied by MobStac do not function according to its specifications and any documentation provided therewith, then the VAR may contact MobStac via the contact information provided herein within 15 (fifteen) days of delivery of the concerned Product, failing which, the Products delivered shall be deemed accepted by the VAR. Accordingly, MobStac may, at its option, arrange for either: (i) replacement of the Products within a commercially reasonable time period; or (ii) a refund of the price paid for the Products, less shipping costs.
SUBJECT TO THE ABOVE AND APPLICABLE LAW, MOBSTAC DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY OTHER WARRANTY OR REPRESENTATION WITH RESPECT TO THE PRODUCTS AND/OR SAAS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON‐INFRINGEMENT. FURTHER, MOBSTAC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS AND/OR SAAS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE PRODUCTS AND/OR SAAS WILL MEET THE VAR’S, CUSTOMER’S OR ANY OTHER THIRD PARTY’S EXPECTATIONS.
The Parties hereby acknowledge that the arrangement contemplated herein is on a non-exclusive basis and the Parties shall be free to enter into similar arrangements with other third parties.
The VAR acknowledges that the SDK and any other information provided by MobStac to the VAR, including, but not limited to, any training materials, data models, logic diagrams, functional specifications, and instructions incorporate confidential and proprietary information developed or acquired by or licensed to MobStac (“Confidential Information”). MobStac acknowledges that the VAR’s data, financials, business plans and the Customer content will also be “Confidential Information”. Each Party will take all reasonable precautions necessary to perpetually keep confidential and safeguard the confidentiality of the other Party’s Confidential Information, including: (i) those taken by it to protect its own confidential information; and (ii) those which the other Party may reasonably request from time to time. Confidential Information does not include: (i) information already known or independently developed by the receiving Party, as shown by documents and other competent evidence in the receiving Party’s possession; (ii) information in the public domain through no wrongful act of the receiving Party; or (iii) information received by a Party from a third party who lawfully in possession of such information and was free to disclose it.
During the validity of this Agreement and for a period of 2 (two) years thereafter, neither Party shall: (a) solicit or attempt to solicit, either directly or indirectly, the employees of the other Party; and (b) save as provided for in Clause 3 (i) above, circumvent the other Party and deal directly with such Party’s customers and exclusive vendors or service providers.
The Product, Software, SDK and its respective structure, organization and source code constitute valuable trade secrets of MobStac and/or its licensors. All worldwide intellectual property rights in the Products, Software and the SDK are the exclusive property of MobStac and/or its licensors and the same shall not in any way be construed as being transferred to the VAR. Except as otherwise expressly provided in this Agreement, the VAR will not and will not permit others to: (i) use, copy, adapt, modify or create derivative works of the Product and/or Software; (ii) reverse-engineer, disassemble, or decompile the Product and/or Software or otherwise attempt to determine the Software’s underlying source code; (iii) attempt to access or use the Software other than by way of and in terms of the SaaS; and/or (iv) use the output generated from the SaaS for any purpose other than for the Customer’s own use.
VAR may use the identification of or reference to any trade name, trademark, service mark, service name or symbol of MobStac (“MobStac Marks”) in any advertising or Promotion efforts, with MobStac’s prior written consent. For this limited purpose, MobStac hereby grants the VAR a non-transferable, non-sublicensable, royalty-free license to use the MobStac Marks. MobStac shall be permitted to use the name of the VAR in publicity releases, testimonials, advertising, or similar activities without the prior written consent of the VAR.
Each Party hereby agrees to indemnify the other, from and against, any and all claims, causes of action, and liabilities (including reasonable attorney’s fees) which arise directly from the other Party’s breach of this Agreement, applicable law, or, the other Party’s negligent or wilful misconduct.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR BUSINESS), HOWSOEVER ARISING, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED ABOUT THE POSSIBILITY OF THE SAME. FURTHER, EACH PARTY’S LIABILITY SHALL NOT EXCEED THE LOWER OF THE AMOUNTS PAID TO MOBSTAC DURING THE QUARTER IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR USD 5,000 (FIVE THOUSAND UNITED STATES DOLLARS).
This Agreement will be effective as of the Effective Date and shall remain valid until it is terminated in accordance with the terms hereof. This Agreement may be terminated by either Party (i) without cause, at any time, by giving the other Party at least 45 (forty five) days prior written notice; or (ii) with cause, i.e., if the other Party is in breach of the terms and conditions hereof or any applicable law and fails to remedy the same within 30 (thirty) days of receipt of a written notice to that effect from the Party not in breach.
Upon termination of this Agreement for any reason, all rights granted to the VAR hereunder will immediately cease, and the VAR will forthwith: (i) discontinue supply of the Products to the Customers; (ii) cooperate with MobStac to terminate relations with existing Customers in an orderly manner; (iii) pay MobStac all due and outstanding amounts, it being agreed that any deferred payment schedule will get automatically accelerated to the date of termination of this Agreement; and (iv) purge from its computer systems, storage media and other files and, at MobStac’s option, destroy or deliver to MobStac or its designee all copies of the SDK and all items that contain MobStac’s Confidential Information or bear a MobStac Mark, including any marketing collateral that is in the VAR’s possession or control. Further, MobStac shall forthwith cease provision of SaaS to the Customers.