This Reseller Agreement (“Agreement”) is entered between:
TimeCamp Joint-Stock Company located in Wroclaw (53-137) at al. Wiśniowa 36A lok. 311, registered in the District Court for Wroclaw-Fabryczna in Wroclaw, 6th Commercial Department of the National Court Register under KRS number 0000755317, Tax Identification Number: 8943003832, and you or your company, organization, or entity (“Reseller”), (collectively, the “Parties”).
WHEREAS, TimeCamp provides a comprehensive business application that monitors and tracks how time is spent on a computer. It empowers employees and managers to increase productivity by seeing their work patterns, trends and acting to make improvements. It also provides a breakdown of how much time is spent on each project, application, client, or task. TimeCamp enables customers to use this data to bill clients and have accurate records for paying employees.
WHEREAS, Reseller desires to become an approved member of the TimeCamp Reseller Program for the purpose of promoting the TimeCamp business applications to its customers and potential customers;
WHEREAS, by entering into this Agreement, Reseller and TimeCamp agree that any prior Reseller Agreements entered into between Reseller and TimeCamp are hereby terminated and this Agreement is the sole and exclusive agreement between the parties with respect to the subject matter contained herein, and
WHEREAS, TimeCamp seeks additional customers, and Reseller seeks an additional source of revenue, Reseller and TimeCamp have agreed to form a relationship according to the terms herein, which will mutually benefit both parties.
THE PARTIES NOW THEREFORE AGREE AS FOLLOWS:
§ 1. Defined Terms.
“Affiliate” shall mean any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with that Party, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of the Party.
“Applicable Currency” means United States dollars, which shall be the currency in which the Parties make all payments to each other pursuant to this Agreement.
“Authorized Third Party” means any third party whose products or services are included in and made a part of this Agreement by TimeCamp and Reseller.
“Authorized Third Party License Agreement” means the applicable agreement that governs an End User’s use of the Authorized Third Party’s Products and Services.
“Confidential Information” means any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the Disclosing Party to the Receiving Party for purposes arising out of or in connection with this Agreement, that: (a) in the case of information in tangible form, is marked “confidential” or “proprietary;” (b) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following disclosure; (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; (d) relates to the pricing or other terms of any product or service offering of either Party or its suppliers or of any agreement or proposed arrangement between the Parties; and (e) will include any reproduction of such information in any form or medium, or any part of such information. Confidential Information also includes End User Data, the terms of this Agreement, and names and information about each Party’s prospects and customers.
“Disclosing Party” means the Party disclosing information and may be an Affiliate of a Party.
“End User” means the TimeCamp or Authorized Third Party licensee and customer of TimeCamp or the Authorized Third Party and Reseller.
“End User Data” shall mean any data, information, or other materials of any nature whatsoever, provided to Reseller by an End User in the course of the demonstration or use of the Service, including any data otherwise captured or generated by the Service.
“Intellectual Property Rights” shall mean any and all intellectual property rights existing from time to time under any law or regulations, including without limitation TimeCamp software source code, patent law, copyright law, trade secret law, trademark law, unfair competition law, publicity rights law, or privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations of any of the foregoing, now or hereafter in force and effect.
“Marks” shall mean the service marks, trademarks, trade names, logos, and trade dress of TimeCamp or the applicable Authorized Third Party.
“TimeCamp Agreement” means the Terms and Conditions available at https://www.timecamp.com/terms-conditions (or equivalent agreement - Subscription Services Agreement if included) that governs an End User’s access and use of the Service.
“Party” or “Parties” shall mean TimeCamp and/or Reseller.
“Product Appendix” means an amendment to this Agreement describing Products and Services that are available for marketing and/or promotion by Reseller as set forth in this Agreement and such amendment.
“Product(s) and/or Service(s)” means the Service or an Authorized Third Party’s products or services that are listed in the Reseller Program Guidelines or in a Product Appendix as being available for marketing and/or promotion by a Reseller under this Agreement and the applicable Product Appendix.
“Receiving Party” means the Party receiving (including by being given access to) information and may be an Affiliate of a Party.
“Rules of Engagement” means the policies and guidelines regarding which sales team or sales person owns a lead, prospect or customer, which are posted on the “Partner Portal” or any successor web site or page, and which are subject to change, modification, or discontinuance by TimeCamp in its sole discretion.
“Service” means, with respect to TimeCamp, the TimeCamp branded Internet-based, ASP products, services and support, including, but not limited to providing a comprehensive application for businesses that details analytics of where time is spent on the work day, empowering employees and managers to increase productivity. It will also provide a breakdown of how much time is spent on each project, client, or task and other services offered by TimeCamp, or introduced by TimeCamp during the term of this Agreement.
“Reseller Program” means the TimeCamp Reseller Program.
“Reseller Program Guidelines” means the policies and procedures associated with promoting the Products and Services that are posted on the “Partner Portal” or any successor web site or page, and are subject to change, modification hereby acknowledges that it has received, reviewed, and agreed to the current terms of the Reseller Program Guidelines.
“Territory” is defined as: geographic regions such as LATAM, North America, JAPAC, and/or EMEA, but under no circumstances shall Territory include any country to which the European Union has chosen to embargo goods, as such a list of countries may be updated from time to time.
§ 2. Agreement Subject to Approval
The effectiveness of this Agreement is subject to TimeCamp’s approval in writing (via mail, fax or email) of Reseller’s application for participation in the Reseller Program, and this Agreement shall commence on the date of the latter of Reseller’s application and this signed Agreement with duly authorized signatures below (“Effective Date”). TimeCamp may reject or decline to accept Reseller’s application for any or no reason at its sole discretion. TimeCamp may conduct background checks and other screening measures of any sort in connection with Reseller’s application. If TimeCamp approves Reseller’s application, Reseller may refer sales leads within the Territory to TimeCamp in accordance with all terms and conditions of this Agreement, to enable TimeCamp to solicit orders for the Products and Services.
§ 3. Terms and Conditions of Participation.
3.1. Reseller Program Guidelines. Reseller agrees to comply with the terms and conditions of the Reseller Program Guidelines, and any subsequent modifications thereto which are posted on the TimeCamp “Partner Portal.” Reseller agrees that any and all modifications to the Reseller Program Guidelines shall be effective upon the earlier of TimeCamp notifying Reseller in writing via email or thirty (30) days after being posted. Notwithstanding the foregoing, if modifications to the Program Guidelines will materially change obligations of Reseller or TimeCamp, a six (6) month grace period will be granted from the date of notice before changes become effective.
3.2. Lead Submission and Acceptance.
3.2.1 Reseller may refer leads within the Territory who, in Reseller’s sole opinion, it identifies as potential customers of TimeCamp (“Reseller Lead”) to TimeCamp. In addition, from time- to-time TimeCamp may provide Reseller with sales leads (“TimeCamp Leads”). Reseller shall promptly follow up on each TimeCamp Lead. TimeCamp Leads and Reseller Leads are hereinafter collectively referred to as “Leads.”
3.2.2 In order for a Lead to qualify as a Commissionable Lead, for the purposes of this Agreement “Commissionable Lead” means following must have occurred:
(i) Reseller has complied with, continues to comply with, and is able to document compliance with, the Rules of Engagement, Reseller Program Guidelines or other processes required by TimeCamp in writing, including, without limitation, the process for submitting a Lead; and
(ii) TimeCamp has issued a Referral Confirmation (as defined below) for the Lead.
3.2.3 Acceptance of Leads. At its sole discretion, TimeCamp may provide Reseller with a written or electronic confirmation of its acceptance of a Lead (“Referral Confirmation”). For the avoidance of doubt, no Lead shall be deemed accepted unless and until TimeCamp has issued a Referral Confirmation. TimeCamp will be under no obligation to accept any Lead (including Leads that originated as TimeCamp Leads) and may reject or decline to accept any Lead for any or no reason at its sole discretion, including, without limitation, because: (i) the Lead was an existing customer of TimeCamp’s at the time of referral by Reseller; (ii) TimeCamp was already involved in preliminary or advanced discussions relating to the sale of Products and Services to the Lead at the time of referral by Reseller; (iii) a referral has already been submitted to TimeCamp by another Reseller or any third party with respect to the Lead; (iv) screening measures employed by TimeCamp reveal that the Lead (a) does not meet TimeCamp’s credit requirements, (b) is on a list of restricted or prohibited parties issued by the government of the United States or any other jurisdiction, or (c) is located in a country that is subject to a United States trade embargo or that is deemed a terrorist supporting country by the United States Government; (v) the Lead is located outside the Territory, or is located in an area in which TimeCamp has an exclusive arrangement for the sale of Products and Services, or TimeCamp is otherwise contractually prohibited from offering Products and Services to the Lead; or (vi) Reseller at any time fails to comply with any aspect of this Agreement (including the Rules of Engagement or the Reseller Program Guidelines), or is unable to document its compliance therewith.
3.4. Reseller License Execution. If a Reseller purchases any Products and Services for its own internal use, whether or not in conjunction with this Agreement, Reseller shall be required to execute a TimeCamp Agreement and Authorized Third Party License Agreement, if applicable.
3.5. Sale and Delivery of Products and Services. Reseller shall not misrepresent the capabilities of any TimeCamp’s or Authorized Third Party’s Products and Services nor the requirements for End Users of the Products and Services. All sales are subject to final acceptance and approval by TimeCamp or the applicable Authorized Third Party. Following a sale, at TimeCamp’s request, Reseller is responsible for assisting TimeCamp and/or the Authorized Third Party in the assignment and distribution of End User logon IDs and passwords to the End User. Reseller shall follow the process and procedures indicated for delivery of the Products and Services contained in the Reseller Program Guidelines or in the applicable Product Appendix.
3.6. Ensuring End User Satisfaction. Implementation, training, and support services (“Professional Services”) are a critical part of providing the Products and Services to an End User, and any Professional Services provided by the Reseller are necessary to achieve and maintain End User satisfaction in using the Products and Services. Reseller shall not promote any Products and Services or Professional Services to any End User where the Reseller does not have the experience, abilities, and resources necessary to provide the appropriate level of Professional Services to End Users sufficient to result in high End User satisfaction. Reseller shall competently serve the End User.
3.7. Protection of Confidential End User Data. Reseller may be given access to End User Data by the End User for Reseller’s demonstration purposes and/or following End User’s execution of a TimeCamp Agreement or Authorized Third Party License Agreement for the purpose of provisioning or populating End User’s account. Reseller agrees to hold and keep any End User Data in the strictest confidence and to protect against disclosure or dissemination of such End User Data by utilizing commercially reasonable efforts designed to protect against disclosure and/or dissemination. Neither TimeCamp nor an Authorized Third Party is in any way responsible for the disclosure or dissemination of any End User Data caused by Reseller.
3.8. Reseller’s Rights to End User Data. Reseller has no rights to End User Data entered or processed via the Products and Services. Reseller cannot compel TimeCamp or an Authorized Third Party to restrict or otherwise prevent End User from accessing the Products and Services following End User’s execution of a TimeCamp Agreement or Authorized Third Party License Agreement.
3.9. User Billing. TimeCamp and any Authorized Third Party shall be exclusively responsible for the billing and collection of fees from the sale of Products and Services to End Users, as well as any appropriate additional fees based upon End User’s increased usage of the Products and Services.
3.10. Minimum Participation Requirements. Reseller’s right to promote Products and Services is subject to meeting minimum sales levels, as indicated in the Reseller Program Guidelines or a Product Appendix, during the Initial Term or any Renewal Term of this Agreement.
3.11. Discontinuation of Program. TimeCamp may discontinue and/or cancel the Reseller Program at any time. If TimeCamp suspends or discontinues the Reseller Program, then TimeCamp’s sole obligation to Reseller is in accordance with Section 5.3 of this Agreement.
3.12. Non Exclusive Agreement. This Agreement does not create an exclusive agreement between the Parties. Each Party shall have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties. Notwithstanding the foregoing, once Reseller establishes a Commissionable Lead with TimeCamp, Reseller will not refer a direct competitor of TimeCamp to such Commissionable Lead. Reseller will not enter into an agreement with a third party the effect of which would prohibit Reseller’s submission of a Lead pursuant to this Agreement.
§ 4. Limitations on Activities.
Reseller’s activities under this Agreement shall be limited as follows:
4.1 Reseller shall conduct all of its business in Reseller’s own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all laws (as set forth in Section 14.6), and not perform any act which would or might reflect adversely upon the Products and Services or the business, integrity or goodwill of TimeCamp or an Authorized Third Party.
4.2 Reseller shall not be, or purport to be, authorized to legally represent TimeCamp or an Authorized Third Party or to conduct negotiations on behalf of TimeCamp or an Authorized Third Party. Reseller shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of TimeCamp or an Authorized Third Party or register this Agreement under any local registered agency law. TimeCamp nor any Authorized Third Party shall be liable for any acts, omissions to act, contracts, commitments, promises or representations made by Reseller.
4.3 Reseller is an independent contractor, and nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other; (b) create an employer-employee relationship; (c) give Reseller the authority to bind TimeCamp to any contract with a third party; (d) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (e) appoint Reseller as a commercial agent.
4.4 All financial and other obligations associated with Reseller’s business are solely Reseller’s responsibility. As an independent contractor, the mode, manner and method used by Reseller shall be under Reseller’s sole control and Reseller shall be solely responsible for risks incurred in the operation of its business and the benefits thereof. A Reseller shall bear all of its own expenses in connection with the performance of this Agreement and will not be entitled to reimbursement of any such expenses by TimeCamp.
4.5 Except as expressly authorized herein, Reseller shall not make any representations or other statements about Products and Services, prices or business practices, except that Reseller shall forward to potential customers (i) unmodified marketing materials provided by TimeCamp or an Authorized Third Party (except such modifications as expressly permitted in the material) and (ii) references to TimeCamp’s or an Authorized Third Party’s standard conditions of sale, as published by TimeCamp or an Authorized Third Party on its website or otherwise. Reseller will not in any way express or imply that any opinions contained in Reseller’s promotional activities are endorsed by TimeCamp or an Authorized Third Party, unless such promotional activities have in advance been approved or endorsed in advance in writing by TimeCamp or the applicable Authorized Third Party.
4.6 Reseller may only market and/or promote Products and Services to Commissionable Leads. Further, to the extent permissible under applicable law, neither Reseller nor someone acting for Reseller will market and/or promote products and/or services competitive with TimeCamp’s branded Service or an Authorized Third Party’s products and/or services to any persons or entities which Reseller knows to be (or should reasonably know to be) using the Service or applicable Authorized Third Party product or service. Reseller shall not scan TimeCamp’s or an Authorized Third Party’s website, purchase TimeCamp’s or an Authorized Third Party’s keywords, or otherwise engage in activities which interfere in TimeCamp’s or an Authorized Third Party’s relationships with its customers. Reseller shall use TimeCamp Leads only for the purposes expressly authorized herein and shall not disclose TimeCamp Leads to any other person or entity.
4.7 Pooling of Revenues Prohibited. Reseller may not aggregate or combine its revenues with any other Reseller in order to qualify for any (or additional) revenue share percentage. Reseller may enter into referral agreements or relationships with third parties allowing the third party to provide sales leads to Reseller for Products and Services (“Referral Agreement(s)”), provided that any such Referral Agreement shall meet all of the following requirements:
4.7.1 If Reseller elects to pursue Referral Agreements, Reseller shall be subject to, and shall require the other party to any such Referral Agreements to agree to be subject to, the terms of this Agreement and the Reseller Program Guidelines, including but not limited to all obligations under Section 3 (“Terms and Conditions of Participation”), Section 4 (“Limitations on Activities”), and Section 6.3 (“Reservation of Rights”).
4.7.2 Reseller shall be subject to, and shall require the other party to any Referral Agreement to agree to be subject to, Reseller’s confidentiality obligations set forth in Section 8, including the obligation not to disclose the terms of this Agreement or the Reseller Program Guidelines.
4.7.3 Any written materials or documentation used by Reseller in connection with any Referral Agreement shall be considered marketing materials subject to the provisions of Section 7.1 of this Agreement.
4.7.4 If TimeCamp in its sole discretion provides Reseller with written notice of its good faith objection to the terms of any Referral Agreement that Reseller has entered into pursuant to this Section 4.7 and Reseller fails to cure such objections within thirty (30) days, Reseller will be deemed to be in breach of this Agreement pursuant to Sections 13.1 and 13.5.2.
4.7.5 Any Referral Agreement may only include Authorized Third Party Products and Services if the Product Appendix expressly permits such Referral Agreements, and only pursuant to any additional terms set forth in the applicable Product Appendix.
§ 5. Commissions
5.1 Payment. Subject to the Reseller’s compliance with all terms and conditions of this Agreement, the Rules of Engagement and the Reseller Program Guidelines, TimeCamp shall pay Reseller its revenue share as set forth in the Reseller Program Guidelines. The revenue share equals the discount percentage, as indicated in the Reseller Program Guidelines, times the gross revenue collected by TimeCamp for sales to a Commissionable Lead net of refunds, subsequently credited charges, write-offs, charge-backs, cancellations, and adjustments. All payments will be made in the Applicable Currency.
5.2 Payment Resolution. If Reseller disputes TimeCamp’s calculation of the Reseller’s revenue share (under Section 5.1 herein) or any other payment obligation, Reseller must provide TimeCamp with a written statement explaining the basis for its position within sixty (60) days following the date payment was made. Reseller agrees to cooperate with TimeCamp by providing documents, explanations, and other information as requested by TimeCamp in good faith in an attempt to resolve the dispute. If Reseller fails to provide notice within sixty (60) days, or if Reseller does not cooperate in TimeCamp's investigation of the dispute, Reseller forever waives any and all rights to such payments.
5.3 TimeCamp’s Recurring Revenue Obligations. If TimeCamp discontinues or cancels the Reseller Program or the availability of any Authorized Third Party Products and Services hereunder, except for Reseller’s breach of this Agreement, and subject to Reseller’s continuing obligations under Sections 4 (“Limitations on Activities”), 8 (“Confidentiality), 13.8 (“Survival”) and 14.6 (“Compliance”) of this Agreement, then TimeCamp shall be obligated to pay to Reseller “Renewal Business,” as that term is defined in the Reseller Program Guidelines during the one (1) year period from such date of discontinuation or cancellation.
§ 6. License.
6.1 Product License Grant. Subject to the terms and conditions of this Agreement, and the terms and conditions of a “Trial Account Agreement4” that will be presented toReseller for acceptance upon provisioning of each demonstration or test account, TimeCamp hereby grants Reseller during the Term of this Agreement a non-exclusive, limited, non-transferable and terminable license to use and display content for three (3) demonstration accounts of the TimeCamp Service solely for demonstration purposes in order to promote and sell to End Users the Products and Services, provided such operations shall not include service bureau use, outsourcing, renting, or time-sharing the Service. At TimeCamp’s sole discretion, TimeCamp may authorize additional demonstration accounts for Reseller, which shall be subject to the terms of this Section 6.1 and this Agreement. The rights granted to Reseller here are provided to Reseller on the condition that Reseller does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile any TimeCamp software, or any part of the Service, or otherwise attempt to discover any source code, modify the Service, or any software associated or related therewith, in any manner or form, or use unauthorized modified versions of the software or Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service. The license granted is not a concurrent user license and Reseller is prohibited from sharing passwords and/or user names with unauthorized users. TimeCamp shall o
6.2 Use of Trademarks. TimeCamp hereby grants to Reseller the right to use the Marks solely during the Term of this Agreement and solely as necessary to perform the marketing and promotional obligations described herein. Any use of the Marks shall be subject to TimeCamp’s or the applicable Authorized Third Party’s right to review and approve or reject in advance each proposed use of the Marks, and shall conform with any trademark usage guidelines, policies, or requirements provided by TimeCamp or the applicable Authorized Third Party. Any rights not expressly licensed herein are reserved by TimeCamp or the applicable Authorized Third Party, and all use by Reseller shall accrue to the benefit of TimeCamp or the applicable Authorized Third Party. Reseller will not take any action that would conflict with or be contrary to TimeCamp’s or the applicable Authorized Third Party’s rights and interest in its Marks, including without limitation (i) asserting any ownership interests in or contesting the validity of the Marks, (ii) registering or causing to be registered the Marks or any trademarks, marks or trade names confusingly similar to the Marks, or (iii) using the Marks in any manner that is likely to cause confusion, mistake, or deception. Reseller will reproduce all copyright, trademark and other notices on any copies of the TimeCamp or Authorized Third Party promotional materials created or distributed by Reseller. TimeCamp is the sole and exclusive owner of its Marks and the applicable Authorized Third Party is the sole and exclusive owner of its Marks.
6.3 Reservation of Rights. Except as expressly provided herein, no license is granted under this Agreement to use or access any Products or Services, any of TimeCamp’s or any Authorized Third Party’s proprietary technologies embodied therein, or any data, information or other content provided thereby. As between TimeCamp, an Authorized Third Party and Reseller, TimeCamp and/or the applicable Authorized Third Party retains all right, title and interest in and to the Products and Services and all technology, data, information or other content embodied therein or provided thereby, as well as any intellectual property rights or similar rights in connection therewith, and Reseller neither owns nor acquires any rights in or to the Products and Services. Any rights not expressly granted herein are reserved by TimeCamp and the applicable Authorized Third Party.
§ 7. Marketing; Publicity.
7.1 Marketing. Subject to the terms and conditions of the Agreement, TimeCamp hereby authorizes Reseller to include in its marketing or product distributions, marketing materials about the Products and Services and any Authorized Third Party Products or Services, which TimeCamp has prepared and provided to Reseller for this purpose. Reseller shall not alter, modify or otherwise change any material provided to it by TimeCamp. Reseller may also use other marketing materials of its own to promote the Products and Services, however, all such marketing materials must be approved in advance in writing by TimeCamp.
7.2 Advertising. Reseller agrees not to publish or advertise, in any publicly available media, including, but not limited to, radio, television, print, Internet, or otherwise, any price for TimeCamp or Authorized Third Party Products and Services that are less than the then current suggested retail price that is listed in the then current Reseller Program Guidelines or any applicable Product Appendix. Reseller agrees to consult the Reseller Program Guidelines posted on the “Partner Portal”, including without limitation any Marketing Guidelines referenced therein, immediately prior to conducting any advertising for the Products and Services.
7.3 Publicity. TimeCamp will determine in its sole discretion whether a press release announcing the establishment of the Parties’ relationship is warranted. Reseller shall reasonably cooperate with TimeCamp as necessary to effectuate any such press release. TimeCamp shall have sole authority to approve any and all press releases, announcements, marketing materials mentioning TimeCamp (including without limitation any mention of TimeCamp), an Authorized Third Party, or any other materials submitted to any analyst or public source. Reseller shall have sole authority to approve the use of its name in any marketing or other materials submitted to any public source. Neither Party shall unreasonably withhold its approval.
§ 8. Confidentiality.
8.1 Non-Disclosure and Protection. Each Party anticipates that it may disclose certain Confidential Information to the other Party in connection with performance under this Agreement. Each Receiving Party agrees to: (a) preserve the confidentiality of the Disclosing Party’s Confidential Information; (b) not to disclose the Disclosing Party’s Confidential Information to any third party; (c) not to use the Disclosing Party’s Confidential Information except solely to the extent necessary to perform its obligations under this Agreement; and (d) to use at least the same degree of care, but not less than a reasonable degree of care, as it uses in protecting its own similar information to protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure. Notwithstanding the foregoing, TimeCamp may disclose Reseller’s Confidential Information to TimeCamp’s Affiliates and contractors provided that such Affiliates and contractors agree to obligations of confidentiality no less restrictive than those in this Agreement.
8.2 Exceptions. Confidential Information shall not include information, which: (i) is or becomes publicly known through no wrongful act or negligence of the Receiving Party; (ii) is rightfully received by Receiving Party from a third party without restriction and without breach of this Agreement; (iii) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is in the Receiving Party’s possession prior to disclosure of such information by the Disclosing Party, as evidenced by Receiving Party’s records and is not the subject of a separate non- disclosure agreement.
8.3 Government Request/Subpoena. Nothing contained in the above exceptions shall permit Reseller to disclose Confidential Information pursuant to the requirements of a court, governmental agency or operation of law unless and until notice of such required disclosure has been given to TimeCamp prior to disclosure and Reseller has used reasonable efforts to receive confidential or protected status for the Confidential Information.
8.4 Return of Materials. Upon termination of this Agreement by either Party for any reason, or expiration of this Agreement, each Party shall, within twenty (20) days of a written request, return any and all tangible materials containing Confidential Information of the other Party or an Authorized Third Party.
§ 9. Warranties.
9.1 Authority to Contract. Each Party warrants that it is a corporation duly organized, validly existing and in good standing and has the full and unrestricted power and authority to execute and deliver the Agreement and to carry out the transactions contemplated hereby. The Parties further warrant that the execution of this Agreement and the performance of any work and delivery of any products will not conflict with or violate any commitment, agreement or understanding either Party has with any other person or entity and there is nothing that will prevent the Parties from performing its obligations under the terms and conditions imposed on it by the Agreement. The Parties represent and warrant that the Agreement has been duly authorized by all necessary corporate action and constitutes a valid obligation, binding and enforceable in accordance with the terms hereof. Reseller warrants that the information provided in its application is accurate and complete.
9.2 Standard of Work. Reseller warrants and agrees that it will promote Products and Services in good faith, in a professional and ethical manner, with a quality of service that meets or exceeds industry standards, in compliance with the Reseller Program Guidelines and all applicable local, state, federal, and foreign laws, treaties, regulations and conventions in connection with Reseller’s performance of this Agreement including without limitation, privacy, anti-spam, none malware, advertising, copyright, trademark and other intellectual property laws. Reseller has submitted and will submit complete and truthful information in connection with its application and all referrals. Reseller will submit all filings and obtain any approvals that may be necessary for Reseller to perform its obligations under this Agreement. Reseller will commit no act that will reflect unfavorably on TimeCamp. Reseller agrees to render all work in a professional and timely manner and warrants that qualified personnel shall perform all work provided hereunder in a good and workmanlike manner in accordance with professional practices applicable to the work being performed. In the event of a breach of this warranty, Reseller agrees to timely engage in the re-performance of such work at no extra charge to any End User until the work performed is in accordance with this warranty.
9.3 Marketing Materials. TimeCamp warrants to Reseller that the information contained in TimeCamp generated and authorized marketing materials will be timely, accurate, and complete. In the event of a breach of this warranty, in addition to any other remedies provided under this Agreement, TimeCamp agrees to timely provide Reseller with current, updated, and/or corrected marketing materials.
§ 10. Disclaimer of Warranties.
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN SECTION 9 OF THIS AGREEMENT, THE PARTIES SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
§ 11. Limitations of Liability.
TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL TIMECAMP’S LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF TIMECAMP’S PAYMENT OBLIGATIONS TO THE RESELLER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST DATE AN EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
§ 12. Limitations of Liability.
Reseller will indemnify and defend TimeCamp from and against any and all claims, demands, liabilities, costs, losses, damages and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) brought by any third party against TimeCamp which arise out of or result from any act, default, misrepresentation or any omission of Reseller (including, without limitation, negligence and breach of this Agreement), or any of Reseller’s agents, employees or representatives, directly or indirectly relating to this Agreement or any Referral Agreement, including without limitation any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.
§ 13. Limitations of Liability.
13.1 Unless terminated pursuant to this Section 13 of this Agreement, this Agreement shall remain in effect from the Effective Date and shall continue for one (1) year from the Effective Date (“Initial Term”). Thereafter, the Agreement shall be automatically renewed for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, “Term”), unless either Party delivers notice of its intention not to renew at least thirty (30) days prior to the Initial Term or any Renewal Term.
13.2 In The Event of Breach. Either Party may terminate this Agreement in the event of a breach of any provision of this Agreement by the other Party, and the non-breaching Party provides the breaching Party with notice specifying the breach, and the breaching Party fails to cure such breach within thirty (30) days of the receipt of the written notice.
13.3 Reseller’s Failure to Meet Sales Levels. TimeCamp may terminate this Agreement for Reseller’s failure to meet minimum sales levels as outlined in the Reseller Program Guidelines with ten (10) days’ notice to Reseller.
13.4 Bankruptcy. Either Party may terminate this Agreement if the other Party becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code, or any similar statute.
13.5 Convenience. Either Party may terminate this Agreement upon giving thirty (30) days written notice to the other Party.
13.6 Effect on Payment Obligations.
13.5.1. For Convenience: If TimeCamp terminates this Agreement for convenience, then any revenue earned and/or due to Reseller from TimeCamp shall be paid to Reseller as set forth in Section 5.3 of this Agreement. If Reseller terminates this Agreement for convenience, then TimeCamp shall have no obligation to pay Reseller as of or after the date of the termination.
13.5.2. For Breach or Bankruptcy: Upon termination of this Agreement by TimeCamp for Reseller’s breach of this Agreement, or pursuant to Section 13.2 or 13.3, TimeCamp shall have no obligation to pay Reseller as of or after the date of the termination.
13.7 Effect of Termination on End Users. After expiration or termination of this Agreement, End Users may enter into arrangements directly with TimeCamp or another party to receive any services as necessary to continue to use the Products and Services, and these End Users will no longer be considered Reseller’s End Users and Reseller shall not be entitled to any commissions or revenue sharing for sales of Products and Services to these End Users after the expiration or termination of this Agreement.
13.8 Effect of Termination on Reseller. Effective immediately upon termination of this Agreement, any access and/or administration rights to End Users’ accounts shall be cancelled by TimeCamp and Reseller will no longer be permitted to promote TimeCamp’s or any Authorized Third Party’s Products and Services. Furthermore, Reseller’s access to the Service for its internal use as set forth in the Guidelines will terminate. Any further access and use of the Service and the associated number of users must be procured based on TimeCamp’s then-current pricing. Reseller shall have no rights or claims against TimeCamp in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, Reseller hereby irrevocably waives any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law
13.9 Survival. Any terms of this Agreement which by their nature extend beyond the day this Agreement ends remain in effect until fulfilled, and apply to respective successors and assigns. For clarity, Section 8 (Confidentiality), Section 11 (Limitation of Liability), and Section 12 (Indemnification) survives any termination or expiration of this Agreement. Except as provided for in a related agreement, upon termination or expiration of this Agreement, all rights and licenses granted to each party hereunder shall cease.
§ 14. Limitations of Liability.
14.1 Notice. Any notice required under this Agreement shall be provided to the other party in writing. If Reseller has a legal dispute with TimeCamp or if Reseller wishes to provide a notice under the Indemnification Section of this Agreement, or if Reseller becomes subject to insolvency or other similar legal proceedings, Reseller will promptly send written notice to: TimeCamp, Joint-Stock Company, Wroclaw (53-137) at al. Wiśniowej 36A lok. 311, Poland.
14.2 Force Majeure. Neither Party shall be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Products and Services date shall be extended to the extent of any delay resulting from any force majeure event.
14.3 Assignment. This Agreement shall insure to benefit and bind the Parties hereto, their successors and assigns, but Reseller may not assign this Agreement without written consent of TimeCamp. TimeCamp may assign this Agreement and delegate its obligations hereunder to any third party with or without Reseller’s consent.
14.4 Headings. The headings of the Sections of this Agreement are intended for convenience only, and will not affect the intent, scope, or meaning of any provision of this Agreement.
14.5 Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of Poland. The parties hereby consent to the exercise of exclusive jurisdiction by the court appropriate for TimeCamp, or any rights under, this Agreement.
14.6.1 Reseller represents and warrants that: (i) Reseller will conduct its business activities in a legal and ethical manner; (ii) Reseller has submitted and will submit complete and truthful information in connection with its application and all referrals; (iii) Reseller will submit all filings and obtain any approvals that may be necessary for Reseller to perform its obligations under this Agreement, (iv) Reseller will commit no act that would reflect unfavorably on TimeCamp; and (v) Reseller will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its performance of this Agreement, including without limitation, privacy, anti-spam, none malware, advertising, copyright, trademark and other intellectual property laws. Any act, omission, or breach by Reseller’s contractors, agents or Affiliates shall be deemed an action or breach by Reseller and Reseller waives all of those defenses that Reseller may have as to why it should not be liable for its contractors’, agents’ or Affiliates' acts, omissions and/or noncompliance with this Agreement.
14.6.2 Export laws and regulations of Poland, United States and other relevant local export laws and regulations apply to the programs. Reseller agrees that such export control laws govern Reseller’s use of the programs (including technical data) and any services deliverables provided under this agreement and Reseller agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Reseller agrees that no data, information, program and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation or development of missile technology.
14.6.3 Ethical Business Practices. Reseller further agrees that Reseller and Reseller’s owners, directors, officers, employees or agents have not paid, offered, given, promised to pay, or authorized the payment of, and will not pay, offer, give, promise to pay, or authorize the payment of, any money, commission, reward, gift, hospitality, inducement (including any facilitation payments) or anything else of value, directly or indirectly, to any government or public international organization officials, political parties, or candidates for political office, or employee of a commercial customer or supplier, for the purpose of obtaining or retaining business or securing any improper advantage. Reseller agrees to accurately document all transactions related to this Agreement and any TimeCamp business, in Reseller’s financial books, records, statements, and in reports or other documents provided to TimeCamp. No undisclosed or unrecorded fund or asset related to any TimeCamp transaction may be established or maintained for any purpose. Reseller agrees that any violation of this section constitutes just cause for the immediate termination by TimeCamp of this Agreement without any liability incurred by TimeCamp to Reseller. Reseller will also indemnify and hold TimeCamp, TimeCamp Corporation, and their subsidiaries, parents and affiliates harmless from any claims, losses and liabilities resulting from any breach of any of Reseller’s obligations under this section. The obligations under this section shall survive the termination or expiration of this Agreement.
14.7 Integration; No Waiver. There are no third-party beneficiaries to this Agreement. This Agreement (including the Reseller Program Guidelines, Rules of Engagement and any Exhibits or Product Appendices hereto, which are incorporated herein by reference) represent the entire agreement of the Parties and supersedes all prior discussions and/or agreements between the Parties including any prior Reseller Agreements and is intended to be the final expression of their agreement. Except as expressly provided herein, it shall not be modified or amended except in writing signed by both Parties. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Neither party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the party against which such waiver is asserted.
14.8 Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the maximum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
14.9 Entire Agreement. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings related to the subject matter of this Agreement.