This Ascend Reseller Agreement (the “Reseller Agreement”) is between the applicable reseller (“you” or “Reseller”), and Mindbox Studios, Inc., doing business as Ascend (“Ascend“, “we”, “us”, or “our”). If you are agreeing to this Reseller Agreement not as an individual but on behalf of your company, then “Reseller” or “you” means your company, and you are binding your company to this Reseller Agreement.
This Reseller Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by clicking on the “I agree” (or similar button) that is presented to you at the time of your order, or by requesting a new customer account be provisioned via email.
To the extent that we make Products available for resale, You may order such Products for resale by following the directions set forth on our website (currently at https://goascend.io/reseller-licensing/). You must provide all of the requested information including, without limitation, the identity of the end user, the end user’s business and email addresses, and the specific Software licenses, Hosted Services subscriptions, or other Products to be resold in your order (“Reseller Order”). All such information must be accurate and complete and must reflect bona fide orders you have received from end users.
Limited Right to Resell
End User Terms
Identification as Reseller
Subject to this Reseller Agreement, you are permitted to identify yourself as an Ascend “Reseller” solely in connection with your resales of Products. You may not use any Ascend trademark, logo or service mark (“Ascend Marks”) except as permitted by written permission of an official Ascend representative. All goodwill arising from your use of Ascend Marks inures to the benefit of Ascend.
Payment and Delivery
Your non-refundable, non-cancelable payment to Ascend is due when you submit your Reseller Order.
Upon receipt of payment, we will deliver the applicable Software license key, Hosted Services login information, or other information necessary for end users to use or access the applicable Products directly to the delivery contact specified in the Reseller Order in accordance with our standard delivery procedures. If we deliver the license keys or logins to you, you agree that you will, in turn, deliver them directly to the end user specified in the Reseller Order, and not to use or access the Software, Hosted Services, or other Products in any way. You must either delete all license keys promptly thereafter or maintain them in confidence.
Payments made by you under this Reseller Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Ascend, you must pay to Ascend the amount of such taxes or duties in addition to any fees owed under this Reseller Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Ascend any such exemption information, and Ascend will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
End User Pricing and Payment; Refunds
You will independently set your own pricing to each end user. You bear all risk of non-payment by end users, and you are solely responsible for all of your costs and expenses. You may not terminate a Reseller Order or receive any refunds due to non-payment by an end user. If Ascend provides any refund to an end user under our standard return policy, Ascend, at its option, will refund the applicable amounts either directly to the end user or to you for distribution to the end user. You agree to cooperate with Ascend in connection with any such refund.
If you provide any feedback, comments, suggestions, ideas, description of processes, or other information to us about or in connection with the Products or our Reseller program, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback”), then you grant us a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this Reseller Agreement (including without limitation “Confidentiality” section herein) limits Ascend’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
No Use Rights; Ascend Reserved Rights
Reseller Obligations and Liability
End User Relationships; Business Practices
You agree not to represent yourself as an agent or employee of Ascend and agree that we will have primary control over any end user communication regarding the Products once you submit a Reseller Order. You will not make any representations regarding Ascend, on Ascend’s behalf, or about any Products. You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Ascend or its products and agree to comply with all applicable federal, state and local laws and regulations while operating under this Reseller Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and any similar laws or regulations in any applicable jurisdiction. You further agree to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.
We may terminate this Reseller Agreement if you materially breach any provision in this Reseller Agreement and fail to cure such breach within five (5) days of written notice of such breach. In addition, either party may terminate this Reseller Agreement for any reason or no reason upon thirty (30) days’ written notice to the other party. Ascend may also terminate this Reseller Agreement immediately upon notice to you if (a) it ceases to offer the current Reseller program or (b) it reasonably believes that continuing hereunder could result in business or legal liability for Ascend or otherwise harm Ascend or its end users.
Effect of Termination
You expressly agree that Ascend will have no obligation or liability to you resulting from termination or expiration of this Reseller Agreement in accordance with its terms. Upon termination or expiration of this Reseller Agreement: (a) you must immediately cease identifying yourself as an Ascend Reseller and using Ascend Marks in connection with your resale activities hereunder, (b) you must destroy all Confidential Information in your possession and certify destruction (unless we request that you return such materials to us) and (c) Sections herein: “Payment and Delivery” (but only with respect to Reseller Orders completed during the Term), “Feedback” and “No Use Rights; Ascend Reserved Rights” through “General will survive.
Changes to Agreement
From time to time, we may modify this Reseller Agreement. The version of this Reseller Agreement in place at the time you submit each Reseller Order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication, but we also suggest that you bookmark this Reseller Agreement and read it periodically.
Except as otherwise set forth in this Reseller Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (as “Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Ascend Technology and any performance information relating to the Products shall be deemed Confidential Information of Ascend without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
Ascend Commitments; DISCLAIMER OF WARRANTIES
LIMITATION OF LIABILITY
Waiver of Consequential Damages
TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER ASCEND NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
TO THE FULLEST EXTENT ALLOWED BY LAW, ASCEND’S AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY UNDER THIS RESELLER AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY RESELLER TO ASCEND IN RESPECT OF THE RESELLER ORDER THAT IS THE SUBJECT OF THIS RESELLER AGREEMENT.
Dispute Resolution; Governing Law
U.S. Government Rights
The Products are commercial computer software. If the user or licensee of the Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Reseller Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
This Reseller Agreement is the entire agreement between you and Ascend relating to the resale of Ascend products as described in this Reseller Agreement and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Reseller Agreement. If any provision of this Reseller Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Reseller Agreement may not be modified or amended except as described in “Changes to Agreement” section herein or otherwise with the written agreement of Ascend (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, “including” (and its variants) means “including without limitation” (and its variants). If either party to this Reseller Agreement breaches any provision of this Reseller Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Reseller Agreement. No failure or delay by the injured party to this Reseller Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Reseller Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.
Should you have any questions concerning this Reseller Agreement, or if you desire to contact Ascend for any reason, please contact us.