AppSmart Authorized Technology Advisor Agreement
CLOUD SERVICE PARTNERS, INC. AUTHORIZED AFFILIATE AGREEMENT
This Authorized Technology Agreement (this “Agreement") is by and between Cloud Services Partners, Inc., a Delaware corporation with offices at 3128 Highwoods Blvd., Suite 140, Raleigh, NC 27604, dba AppSmart (“AppSmart”), and the Advisor requesting registration as an authorized Technology Advisor of AppSmart pursuant to the terms hereof. This Agreement is effective as of the date the Advisor is notified (by email or other electronic communication) by AppSmart of AppSmart’s acceptance of the Advisor's request for registration (the “Effective Date"). This Agreement consists of this cover page, the attached Standard Terms and Conditions, the attached Commercial Terms Schedule, and (if applicable) Exhibit A attached hereto.
Services
Subject to the below Terms and Conditions, Advisor is authorized, on a non-exclusive basis, to market and solicit sales for AppSmart’s then-current Services as described on our website at https://www.appsmart.com.
STANDARD TERMS AND CONDITIONS FOR AUTHORIZED TECHNOLOGY ADVISOR AGREEMENT
1. Introduction. AppSmart aggregates and resells certain cloud-based services, and also provides related technical support and consulting services. Advisor has experience in providing information technology and related services. Under the terms hereof, Advisor is hereby appointed as a non-exclusive representative of the AppSmart Cloud Services set forth on the Cover Page (the “Services").
2. Relationship. Advisor is an independent contractor and is not an employee of AppSmart. Except as expressly set forth in this Agreement, there is no joint venture, partnership, or principal-agent relationship between the parties. Advisor has no authority to act for, or on behalf of AppSmart and is not authorized to incur any obligation on behalf of AppSmart or bind AppSmart in any manner whatsoever. Advisor is responsible for all expenses and obligations incurred by it related to this Agreement.
3. Appointment. AppSmart appoints Advisor as a non-exclusive representative to promote the sale of and solicit orders from new business customers for the Services. AppSmart shall make available to Advisor marketing literature and materials relating to AppSmart and the Services. Advisor shall not develop or use any product literature other than that provided by AppSmart without the written consent of AppSmart.
4. Limited Agency. Subject to written agreement of the parties in the attached Commercial Terms Schedule, AppSmart appoints Advisor as AppSmart's non-exclusive, limited sales agent solely to: (a) market and promote the Services in accordance with this Agreement; (b) solicit and receive orders for the Services on AppSmart's behalf, and (c) submit invoices and/or collect payments for the Services from Converted Prospects (as defined below).
5. Prospects and Contract Process.
A. Advisor will communicate information to AppSmart about prospects that Advisor identifies for the Services (“Prospects") as reasonably requested by AppSmart from time to time. AppSmart may in its sole discretion determine that a Prospect will not be covered by this Agreement if that Prospect has already been contacted by AppSmart or another AppSmart Advisor or representative.
B. A “Converted Prospect" is a Prospect that executes an agreement with AppSmart for the purchase of Services within six (6) months after the date that Advisor first contacts the Prospect. Except as set forth in the Commercial Terms Schedule attached hereto, all sales and contracts with Converted Prospects shall be made directly between AppSmart and the Converted Prospect, and Advisor shall not be a party to any such agreements. Advisor shall not make any representations or warranties regarding the Services except as expressly set forth in documentation provided by AppSmart to Advisor.
6. Duties of Advisor. Advisor:
A. shall use best efforts to market the Services and secure customers for Cloud Service Partners in an ethical and responsible manner. Unless otherwise agreed in writing by AppSmart, AppSmart shall have no responsibility for customer development or marketing.
B. may place an approved logo of AppSmart and a link to AppSmart's website in a mutually agreed prominent location on Advisor's website.
C. shall follow AppSmart's Advisor procedures, as provided by AppSmart to Advisor from time to time by AppSmart in its sole discretion (“Procedures”). Advisor acknowledges that the Advisor Procedures include, but are not limited to, matters relating to (i) the proper representation of the Services which AppSmart will provide customers and (ii) the manner in which to complete technical and other information and documentation with respect to Prospects.
D. shall provide reasonable assistance to AppSmart, at AppSmart's request, in connection with AppSmart's servicing of all Converted Prospects. Advisor shall not provide customer service to any Converted Prospect, including billing, collections or repair service, unless authorized in writing by AppSmart in the Commercial Terms Schedule; however, Advisor agrees to assist with collections from time to time, if requested by AppSmart.
E. shall comply with all applicable laws, rules and regulations in the course of Advisor's performance of its obligations hereunder.
F. during the term of the Agreement and for a period of one (1) year following the termination of this Agreement, will not, directly or indirectly, solicit, or attempt to solicit, the business of any customer of AppSmart with which Advisor had contact, or any customer or prospective customer of AppSmart which was provided to Advisor by AppSmart (whether on a lead list or otherwise) for the purposes of selling products or services of another provider that are substantially similar to the Services.
7. Payments.
A. During the term of this Agreement and provided Advisor is not in material breach of any obligation hereunder, Advisor will earn a commission or an agency fee as described in the Commercial Terms Schedule for Converted Prospects. As described in the Commercial Terms Schedule, the calculation of the commission may vary depending on whether the products sold are Marketplace Products or Legacy products. All federal, state, local and other taxes that may be due as a result of commission and any other payment by AppSmart to Advisor will be the sole responsibility of Advisor.
B. Advisor agrees that AppSmart may, in AppSmart's sole discretion, on a calendar quarterly basis modify the commission, agency fee or other payment terms listed on the Commercial Terms Schedule. Any such modification shall take effect no earlier than thirty (30) days after AppSmart gives Advisor notice thereof and such change shall be effective for contracts for Services or renewals after the effective date of the changed payment structure.
In the event of termination of this Agreement by AppSmart pursuant to Section 8(B) of this Agreement or by Advisor pursuant to Section 8(C) of this Agreement, AppSmart agrees to pay Advisor full commission or agency fee as indicated in the Commercial Terms Schedule based on revenue generated by Advisor from the sale of Services to Converted Prospects for the initial three (3) months following termination. No commission shall be payable following termination by Advisor pursuant to Section 8(B) of this Agreement, or any termination by AppSmart pursuant to Section 8(C) of this Agreement.
C. Advisor may, but shall not be required to, become a customer of AppSmart with respect to its needs for Services. In such event, during the term of this Agreement and thereafter (regardless of the reason, if any, for termination of this Agreement), Advisor shall pay all AppSmart invoices for Services in accordance with their respective terms and subject to the terms of the Customer Agreement between Advisor and AppSmart. In its sole discretion, AppSmart may at any time suspend the payment of all commissions due to Advisor until Advisor has paid in full any past due invoice(s) for Services.
D. Advisor or any party acting for or on behalf of Advisor may not allege that Advisor has a claim to any commission, compensation, profits, or damages whatsoever with respect to any Services: (i) when AppSmart has rejected the Prospect for any reason, (ii) that may be cancelled by a customer, whether or not due to a default by AppSmart, (iii) for which the account becomes uncollectible, or (iv) when the Services are provided in full satisfaction of any warranty or other contract breach, tort or other claim.
8. Term and Termination.
A. The initial term of this Agreement shall be for twelve (12) months from the Effective Date and shall be renewed thereafter automatically on a year-to-year basis, unless sooner terminated as provided below.
B. Either party may terminate this Agreement for convenience upon giving the other party sixty (60) days prior written notice.
C. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such material breach within thirty (30) days after written notice.
D. Sections 9-16 of this Agreement, and any provision which, by its terms, survives the expiration or earlier termination of this Agreement, shall survive such termination or expiration.
9. Intellectual Property.
A. Advisor acknowledges and agrees that AppSmart and its licensors are the sole owners of all intellectual property rights in and to the Services and all associated software (“Software"), including but not limited to the structure, organization, design, algorithms, methods, templates, data models, logic flow, content, documentation, and screen displays associated therewith. Advisor will not reverse engineer, decompile or disassemble the Software, and will not otherwise attempt to reconstruct or discover the source code for the Software. AppSmart reserves all rights in the Software and the Services not expressly granted to Advisor hereunder. Advisor agrees to notify AppSmart promptly if it becomes aware of any unauthorized possession, misuse, or infringement of AppSmart's intellectual property.
B. AppSmart grants Advisor a limited, non-transferable, non-exclusive restricted license to use during the term the trademarks associated with Services, as specified by AppSmart. All use by Advisor of AppSmart trademarks will be in accordance with AppSmart's guidelines and directions and is subject to review by AppSmart. All use of third-party trademarks related to the Services will be in accordance with terms, policies, and guidelines as specified by the applicable third party vendor. All rights in AppSmart's trademarks will remain solely with AppSmart, and all use by Advisor of AppSmart's marks will inure to the benefit of AppSmart. Upon termination of this Agreement, Advisor agrees to no longer use or refer to AppSmart or any AppSmart trademarks in Advisor's marketing materials.
C. Advisor grants AppSmart a limited, non-transferable, non-exclusive restricted license to use during the term the trademarks specified by Advisor in connection with the promotion of this Agreement. All use by AppSmart of Advisor trademarks will be in accordance with Advisor's guidelines and directions and is subject to review by Advisor. All rights in Advisor's trademarks will remain solely with Advisor, and all use by AppSmart of Advisor's marks will inure to the benefit of Advisor. Upon termination of this Agreement, AppSmart agrees to no longer use or refer to Advisor or any Advisor Trademarks in AppSmart's marketing materials.
D. AppSmart hereby grants to Advisor a nonexclusive, nontransferable license during the term of this Agreement to use such parts of the Services as may be made available by AppSmart to Advisor in its sole discretion, solely to: (a) demonstrate such Services to Prospects, and (b) internally learn about such Services.
10. Confidential Information. During the term of this Agreement, Advisor may from time to time have access to confidential information and trade secrets of AppSmart, which may include research and development activities, software, customer names, potential customer lists, cost data and information about the Services (all such confidential information or trade secrets being referred to as the "Confidential Information"). Advisor acknowledges that any disclosure of Confidential Information would have an adverse effect on AppSmart and agrees that during the term of this Agreement, and for a period of five (5) years following the termination of this Agreement, Advisor will hold in confidence the Confidential Information and will not disclose it to any person except with the specific prior written consent of AppSmart. Confidential Information does not include information that: (a) is or becomes generally available to the public other than as a result of a wrongful disclosure by or at the direction of the receiving party; (b) is or becomes available to the receiving party on a non-confidential basis from a source that is entitled to disclose it to such party; (c) was known to the receiving party prior to receipt from the disclosing party without any restriction on its use or disclosure; or (d) is developed by the receiving party without the benefit of the Confidential Information. Notwithstanding any of the foregoing, a party may disclose Confidential Information if and solely to the extent that such disclosure is required by law, court order, judicial process, subpoena, or similar process, or applicable rule or regulation, provided that such party shall use commercially reasonable efforts to seek confidential treatment for any such disclosed Confidential Information, and to the extent legally permissible, promptly notify the disclosing party of such disclosure. Advisor agrees that upon the termination of this Agreement, Advisor will promptly return all Confidential Information to AppSmart, or destroy such Confidential Information, and not retain any copies of the Confidential Information.
11. Representations and Warranties. Advisor represents, warrants and covenants to AppSmart that:
A. Advisor is duly organized and in good standing and qualified to do business under the laws of its state of incorporation or organization and has full power and authority to execute and perform under this Agreement.
B. Advisor has obtained all licenses, permits and other authorizations necessary to perform its obligations under this Agreement and shall maintain same, as required, in full force and effect during the term of this Agreement and shall comply with all regulations and orders of judicial and regulatory bodies.
C. That neither the execution and delivery of this Agreement nor the sales of Services in accordance with the terms of this Agreement violates or will violate i) the provisions or obligations of any other agreement to which Advisor is a party or by which it is bound, or ii) Advisor's articles of incorporation, by-laws or similar corporate governance documents.
12. Indemnification. Advisor shall indemnify, defend and hold AppSmart and its affiliated companies (and all officers, directors, employees, agents and representatives thereof) harmless from and against any and all claims, demands, judgments, actions, losses, damages, assessments, charges, liabilities, costs and expenses (including without limitation, attorney's fees) which may be suffered or incurred by, or be asserted against, any and all of them, directly or indirectly, on account of or in connection with: (a) Advisor's breach or default under any provision(s) herein; and (b) bodily injury (including death), damage to property, or economic or other damages to any person or entity (including any employee of Advisor and any third person), arising, directly or indirectly, from acts or omissions of Advisor's employees, contractors and agents.
13. DISCLAIMER OF WARRANTIES. APPSMART HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY STATUTORY OR EXPRESS WARRANTIES, AND ANY WARRANTIES OR DUTIES REGARDING ITS SERVICES OR THIS AGREEMENT.
14. EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL APPSMART BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY, INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR FOR NEGLIGENCE), ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF APPSMART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. LIMITATION OF LIABILITY. THE ENTIRE LIABILITY OF APPSMART UNDER ANY PROVISION OF THIS AGREEMENT OR WITH RESPECT TO THE SERVICES AND ADVISOR'S EXCLUSIVE REMEDY AGAINST APPSMART SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO ADVISOR HEREUNDER DURING THE PRIOR THREE (3) MONTHS. THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS HEREIN (INCLUDING SECTIONS 13 AND 14 ABOVE) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY SET FORTH HEREIN IS FOR ANY AND ALL MATTERS FOR WHICH APPSMART MAY OTHERWISE HAVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER THE CLAIM ARISES IN CONTRACT, TORT, STATUTE OR OTHERWISE. THE FOREGOING CAP IS IN AGGREGATE FOR ALL CLAIMS AND SHALL NOT BE INCREASED BY MULTIPLE CLAIMS SUBJECT TO THE SAME, OVERLAPPING, OR ENTIRELY SEPARATE LOOKBACK PERIODS.
16. Miscellaneous.
A. Assignment. Advisor may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of AppSmart, which shall not be unreasonably withheld. AppSmart may assign without notice all or any part of this Agreement to (i) any other Advisor or successor of AppSmart or (ii) the purchaser of all or substantially all of the assets of AppSmart. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement shall bind and inure to the benefit of the respective successors and assigns of the parties.
B. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.
C. Waiver. Either party's failure to enforce any provision of this Agreement shall not in any way be construed as a waiver of any such provision as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provision of this Agreement. The rights granted the parties herein are cumulative and the waiver by a party of any single remedy shall not constitute a waiver of such party's right to assert all other legal remedies available to such party under the circumstances.
D. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered personally to the recipient, (ii) sent to the recipient by reputable express courier service (charges prepaid) or mailed to the recipient by certified or registered mail and postage prepaid, or (iii) transmitted by fax to the recipient with a confirmation copy to follow the next day to be delivered by overnight carrier. Such notices, demands and other communications shall be sent to the addresses indicated on the Cover Page, or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.
E. Entire Agreement. Except as otherwise expressly set forth herein, this Agreement sets forth the entire understanding of the parties, and supersedes and preempts all prior oral or written understandings and agreements with respect to the subject matter hereof. No modification, termination or attempted waiver of this Agreement shall be valid unless in writing and signed by the party against whom the same is sought to be entered.
F. Governing Law. This Agreement shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of the Agreement shall be governed by, the laws of the State of North Carolina, without giving effect to provisions thereof regarding conflict of laws.
G. Disputes. In the event of a disagreement between the parties relating to this Agreement or its performance, or any asserted breach thereof, the parties shall attempt to negotiate a mutually satisfactory resolution within forty-five (45) days. Should such negotiations fail, either party may submit the disagreement for binding arbitration before a single arbitrator pursuant to the Commercial Arbitration Rules and Expedited Procedures of the American Arbitration Association. The arbitration will take place in Raleigh, North Carolina. The arbitrator shall be required to apply the laws of the state of North Carolina, without regard to its conflicts of laws principles, and shall not be authorized to vary or ignore the provisions of this Agreement. The arbitrator shall provide detailed findings of facts and conclusions of law as part of any award. The award of the arbitrator shall be enforceable in any court of law having jurisdiction. Nothing in the foregoing shall prevent either party from bringing a claim for temporary injunctive relief in a court of competent jurisdiction. The parties irrevocably consent to the jurisdiction of the state and federal courts of the state of North Carolina.
H. Changes in the Law. Should any of the provisions of this Agreement need to be changed due to legal or regulatory requirements, AppSmart shall notify Advisor of the need for such change and the parties shall execute an amendment to this Agreement or a new Agreement with the change contemplated. If the parties cannot agree on an amendment or a new Agreement, AppSmart may terminate this Agreement without any further liability to Advisor.
17. Signatures. An authorized officer or manager of Advisor must certify the accuracy and electronically submit this Agreement. This Agreement is not valid until notice of its acceptance is provided by email or other electronic communication by AppSmart. Any and all pricing terms set forth in this Agreement expire sixty (60) days after submission to Advisor.
COMMERCIAL TERMS SCHEDULE
Commission
Advisor shall be entitled to a commission payment in accordance with the terms set forth herein as follows (“Commission Payment”):
Monthly Billed Revenue | Commission |
$0.00 - $49,999.99 | SVR |
$50,000.00 - $99,999.99 | SVR x (1 + 10%) OR |
$100,000.00 or Greater | SVR x (1 + 20%) OR |
“Monthly Billed Revenue” means, in the aggregate, the face value of the monthly subscription revenue AppSmart receives from all sales credited to Advisor, as calculated on a monthly basis, disregarding any non-recurring charges, cancellations, one-time purchases, or terminations.
“SVR” is the Standard Variable Rate, determined on a product by product basis and equal to the difference between AppSmart Marketplace sale price minus the wholesale price.
“AppSmart Solutions” are products notated in the Marketplace by an “By AppSmart” sash on the product profile logo and “By AppSmart” in the product profile title.
Advisor acknowledges and agrees that Commission Payment is subject to change upon notice by AppSmart. Advisor acknowledges and agrees that Commission Payment shall be subject to a changed reduced payment or delayed payment, or no payment if, for any reason, AppSmart: (i) receives no payment from Converted Prospect; (ii) receives a reduced payment from Converted Prospect; (iii) is directed to allocate payment for another cause (by customers); or (iv) receives a delayed payment from Converted Prospect.
If overbilling or overpayment results from mistakes in quantities, sale price, mistaken reporting or an error, or if any of AppSmart’s products or service offerings are rejected by a Converted Customer, a proportionate amount of the Commission Payment previously paid to Advisor with respect to the sale of such AppSmart products or service offerings shall be deducted from the future Commission Payment to be paid to Advisor. If there are insufficient future Commission Payments to cover the chargeback amount within six (6) months of the chargeback, then Advisor shall promptly pay to AppSmart the amounts due to AppSmart as a result of the chargeback upon AppSmart’s written request.
AppSmart shall have the right to charge back to or set-off against Advisor's Commission Payment any amounts owed to AppSmart by Advisor under this Agreement or any other agreement or arrangement.
Due Date: Net-15 following the end of the month in which a Commission Payment is earned.