This BrainHQ Reseller Agreement (“Agreement”) is between Posit Science Corporation (“Posit Science”) and you (“you” or “Reseller”) and sets forth the terms and conditions under which you may resell to end users licenses to access and use the paid features of the BrainHQ online exercises and services offered by Posit Science (collectively, the “Offerings”).
[BY CLICKING THE ACCEPT BUTTON, YOU AGREE TO BE BOUND BY THIS AGREEMENT. YOU MAY NOT ACCEPT THIS AGREEMENT, IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH POSIT SCIENCE. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS, IN WHICH CASE “YOU” OR “RESELLER” SHALL REFER TO SUCH ENTITY.] [Note to draft: This language should accompany the checkbox or button that the user needs to click on to accept the agreement.]
Accounts. In order to resell licenses to the Offerings, you must register for an account (“Reseller Account”) on the Posit Science site at [insert URL] (“Site”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. Posit Science may suspend your Reseller Account at any time without notice if we believe that you are in breach of this Agreement. You are responsible for maintaining the confidentiality of your Reseller Account login information and are fully responsible for all activities that occur under your Reseller Account. You agree to immediately notify Posit Science of any unauthorized use, or suspected unauthorized use, of your Reseller Account or any other breach of security. Posit Science cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
Orders. You may place orders with Posit Science for Subscription Licenses by using the order placement process provided on the Site. All orders will be subject to acceptance by Posit Science in its sole discretion. Posit Science will notify you of acceptance of an order by email to the address specified in your Reseller Account or through such other means as specified on the Site. If Posit Science accepts the order, then Posit Science will provide you instructions on how to activate the Subscription Licenses through the Site and associate them with particular End Users. The terms of this Agreement will govern all such orders submitted by you to Posit Science; no additional or inconsistent term or condition in any such order will have any legal effect. “Subscription License” means a nonexclusive, limited right for an end user to access and use the Offerings on a subscription basis, subject to the BrainHQ Terms and Conditions [insert URL] and any other terms and conditions governing the use of the Offerings.
Fees and Payment
Fees and Subscription Renewals. For each order of Offerings accepted by Posit Science under this Agreement, Reseller will pay Posit Science the fees set forth in Posit Science’s then-current price list as specified on the Site. The fees paid for the initial order that is placed and accepted will cover the first subscription period of the applicable Subscription Licenses (the “Master Subscription Period”). At the end of the then-current Master Subscription Period, each Subscription Licenses will be automatically renewed, unless you notify Posit Science at least thirty (30) days prior to the end of the then-current Master Subscription Period of nonrenewal of that Subscription Licenses. At any time during a Master Subscription Period, you may also order additional Subscription Licenses. The initial subscription periods for those additional Subscription Licenses will terminate at the end of the then-current Master Subscription Period, and will then renew for the full succeeding Master Subscription Period, in accordance with this Agreement. Any fees for subscription periods that are shorter than the Master Subscription Period will be prorated. Posit Science reserves the right to change prices at any time upon thirty (30) days prior written notice to you, provided that any change for a Subscription License already purchased will not apply until the next Master Subscription Period. Reseller will have sole discretion to determine the pricing charged to End Users.
Payments. Fees for accepted orders to be paid by credit card are due immediately upon order placement. Automatic renewal fees will be due on the first day of the applicable Master Subscription Period. Posit Science will bill the credit card provided for all applicable fees when due. You hereby authorize Posit Science to bill your credit card or other payment method as described in this Section. For all other accepted orders, Posit Science will invoice you for all orders and associated renewals. You will pay to Posit Science each such invoice within thirty (30) days of the date of such invoice, provided that the initial Master Subscription Period will not begin until all applicable payments have been made. Any amount that is not paid when due will accrue a late fee calculated at a rate of eighteen percent (18%) per year or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments must be made in U.S. dollars and are nonrefundable. If credit card authorizations or charge attempts are declined or payment is not otherwise made when due, Posit Science may decline to provide the Subscription Licenses at issue or terminate them effective immediately upon written notice to you, as applicable.
End User Relationship
End User Terms. Reseller will inform all end users of the Offerings who purchase or receive Subscription Licenses from Reseller (“End Users”) prior to such purchase or receipt that the use of the Offerings is subject to separate terms and conditions that must be entered into directly between Posit Science and such End User, and that by using the Offerings the End User agrees to be bound by and comply with such terms and conditions. Reseller will not make or publish any representations, warranties, or guarantees concerning the Offerings, other than those expressly permitted as set forth on the Site at [insert URL]. Reseller will defend (at Posit Science’s option), indemnify and hold Posit Science harmless from and against any claims, actions, liabilities, losses, injuries, damages, costs, or expenses (including reasonable attorneys’ fees) brought by third parties that arise from or relate to any such representations, warranties, or guarantees.
End User Support. Reseller will be: (a) solely responsible for providing End Users customer support services for inquiries that relate to (i) the purchase of the Subscription Licenses, (ii) End Users’ computing systems and software (e.g., resetting the browser cache), or (iii) End Users’ access to the Internet; and (b) responsible for providing End Users first-level support for all other inquiries. Posit Science will have the right to refer to Reseller any such inquiries described in (a) that are made of Posit Science by End Users. Posit Science will provide second-level support services to Reseller in accordance with the terms of the support level option selected by Reseller during the registration process. Such services will consist solely of answering inquiries regarding the features of the Offerings, usage of the Offerings, and technical requirements for using the Offerings. Posit Science will have no obligation to provide any other support or maintenance to Reseller. Posit Science reserves the right, but will have no obligation, to provide support or maintenance directly to Reseller’s End Users.
End User Marketing. Posit Science agrees to flag End Users who purchase Subscription Licenses from Reseller as “do not market” in the Posit Science database as long as such End Users hold valid Subscription Licenses, provided that Posit Science may continue to send such End Users administrative and general marketing communications, such as password reset emails and the Posit Science newsletter.
Proprietary Rights
License. Subject to the terms and conditions of this Agreement, Posit Science grants to Reseller a non-exclusive, non-transferable (except as permitted under Section 11 (General)), revocable license to directly resell Subscription Licenses to the Offerings solely to End Users in the territory designated by Posit Science (“Territory”) when you register for a Reseller Account.
Restrictions. Reseller agrees not to, and agrees not to allow any third party to: (a) reproduce, modify, adapt, alter, translate, or create derivative works from the Offerings; (b) distribute, sublicense, sell, lease, rent, loan, make available, or otherwise transfer the Offerings to any third party, except as expressly permitted in Section 5.1 (License); (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Offerings; or (d) sell, lease, rent, loan, or otherwise transfer any Subscription License, in whole or in part, to any third party except as expressly permitted in Sections 5.1 (License) or 5.3 (Subscription License Transfer).
Subscription License Transfers. Reseller may transfer, and permit the transfer of, any valid Subscription License from one End User to another End User, provided that: (a) any such Subscription License may only be held by one End User at any given time; and (b) Reseller notifies Posit Science of such transfer in accordance with the then-current transfer procedure specified by Posit Science.
Trademark and Collateral License. Subject to the terms and conditions of this Agreement, Posit Science grants to Reseller a non-exclusive, non-transferable (except as permitted under Section 11 (General)), revocable license (without the right to grant sublicenses) to: (a) use and display the trademarks, service marks, and logos provided to Reseller by Posit Science (collectively, the “Marks”) solely in connection with promoting the Offerings in the Territory; and (b) use, reproduce, and distribute the publicly available content on www.positscience.com regarding the Offerings (“Collateral”) solely in connection with promoting the Offerings in the Territory. Reseller will not modify, edit, or translate the Collateral in any way, except as permitted by Posit Science in writing. Reseller will provide Posit Science with a sample of each proposed use of Marks and/or Collateral upon request. Reseller will use the Marks in the form provided and in conformance with any trademark usage policies provided, from time to time, by Posit Science to Reseller. Reseller acknowledges Posit Science’s exclusive ownership of the Marks and Collateral. Reseller agrees not to take any action inconsistent with such ownership and will cooperate, at Posit Science’s request and expense, in any action which Posit Science deems necessary or desirable to establish or preserve Posit Science’s exclusive rights in and to the Marks. Upon request, Reseller will immediately cease all use and display of the Marks and use, reproduction, and distribution of the Collateral.
Ownership of Offerings. The Offerings, and all worldwide intellectual property rights therein, are the exclusive property of Posit Science and its suppliers. There are no implied licenses granted hereunder, and all rights in and to the Offerings not expressly granted to Reseller in this Agreement are reserved by Posit Science and its suppliers.
End User Analytics. Posit Science may offer Reseller access to certain analytics regarding the use of the Offerings by End Users and such End Users’ performance in connection with the Offerings (collectively, the “End User Analytics”). The End User Analytics will be deemed the Confidential Information of Posit Science, unless otherwise agreed by the parties in writing.
Privacy. Posit Science may disclose to Reseller certain personally identifiable information of End Users (“PII”), including in connection with the End User Analytics. Reseller will only use any PII disclosed to Reseller as authorized in writing by Posit Science and, notwithstanding anything to the contrary in Section 6 (Confidentiality), will not disclose PII to any third party, except to the extent required by applicable law or a court order or with the express, informed consent of the applicable End User. Reseller will protect all such PII from unauthorized use, disclosure, or access.
Confidentiality. Reseller agrees to hold Posit Science’s Confidential Information in strict confidence and to refrain from any disclosure, use or publication of such Confidential Information, except as expressly authorized in writing by Posit Science, during the term of this Agreement and thereafter. “Confidential Information” means any and all information related to Posit Science’s business that is labeled or identified as “confidential” or “proprietary” or that Reseller otherwise knows, or would reasonably be expected to know, Posit Science considers to be confidential or proprietary. Reseller’s obligations set forth in this Section 6 shall not apply with respect to any portion of the Confidential Information that: (a) was in the public domain at the time it was communicated to Reseller by Posit Science; (b) entered the public domain through no fault of Reseller, subsequent to the time it was communicated to Reseller by Posit Science; (c) was in Reseller’s possession free of any obligation of confidence at the time it was communicated to Reseller by Posit Science; (d) was rightfully communicated to Reseller free of any obligation of confidence subsequent to the time it was communicated to Reseller by Posit Science; or (e) was developed by employees or agents of Reseller independently of and without reference to any information communicated to Reseller by Posit Science. Reseller may disclose Posit Science’s Confidential Information in response to a valid order by a court or other governmental body, or as otherwise required by law, after having given Posit Science sufficient prior notice to permit Posit Science a reasonable opportunity to lodge objections to such disclosure. As between Posit Science and Reseller, all Confidential Information furnished to Reseller by Posit Science is the sole and exclusive property of Posit Science. Upon request by Posit Science, Reseller agrees to (i) promptly deliver to Posit Science, or destroy, at Posit Science’s option, the original and any copies of the Confidential Information and (ii) permanently erase all electronic copies of the Confidential Information.
Term and Termination
Term. The term of this Agreement will begin on the Effective Date and will continue until terminated pursuant to Sections 7.2 (Termination) or 10 (Amendment).
Termination. Either party may terminate this Agreement for any reason or no reason upon sixty (60) days prior written notice. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if such other party breaches any provision of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party.
Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Posit Science under this Agreement before such termination or expiration will be immediately due and payable, all licensed rights granted in this Agreement will immediately cease to exist, and Reseller must promptly discontinue all further use of the Marks and Collateral and all further marketing and resale of the Subscription Licenses. Notwithstanding anything to the contrary, all Subscription Licenses granted to End Users will survive until the expiration of the then-current Master Subscription Period. Sections 3.2 (Payments) (to the extent any payment obligations have accrued), 4 (End User Relationship) (only with respect to the indemnification and defense obligations) 5.2 (License Restrictions), 5.5 (Ownership of Offerings), 5.7 (Privacy), 6 (Confidentiality), 7.3 (Effects of Termination), 8 (Warranty Disclaimer), 9 (Limitation of Liability), 10 (Amendment) and 11 (General) will survive expiration or termination of this Agreement for any reason.
Warranty Disclaimer. POSIT SCIENCE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE OFFERINGS AND COLLATERAL, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. RESELLER ACKNOWLEDGES THAT NO WARRANTIES ARE MADE BY ANY OF POSIT SCIENCE’S SUPPLIERS.
Limitation of Liability. IN NO EVENT WILL POSIT SCIENCE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT, THE OFFERINGS, OR THE COLLATERAL, EVEN IF POSIT SCIENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POSIT SCIENCE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE OFFERINGS, AND THE COLLATERAL, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO POSIT SCIENCE BY RESELLER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE FIRST CLAIM TO ARISE UNDER THIS AGREEMENT. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMITATION. Reseller acknowledges that the fees set forth in this Agreement reflect the allocation of risk set forth in this Agreement and that Posit Science would not enter into this Agreement without these limitations on its liability. Reseller agrees that Posit Science’s suppliers will have no liability of any kind under or as a result of this Agreement.
Amendment. This Agreement may be amended by Posit Science from time to time. If we make material changes to this Agreement, we may notify you in accordance with the notice procedure set forth in Section 11 (General) below. These changes will be effective thirty (30) calendar days following our dispatch of an e-mail notice to you. If you object to any change, your sole recourse shall be to immediately terminate this Agreement upon notice to Posit Science. Except as otherwise provided in this Section, no amendment to this Agreement will be valid.
General. This Agreement will be governed by the laws of the State of California without giving effect to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. Any action or proceeding arising from or relating to this Agreement may be brought in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. Reseller may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without Posit Science’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Posit Science may freely assign or transfer this Agreement, in whole or in part. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. If any provision in this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Reseller acknowledges that the Offerings contains valuable trade secrets and proprietary information of Posit Science, that any actual or threatened breach of Section 5.2 (Restrictions) or Section 6 (Confidentiality) will constitute immediate, irreparable harm to Posit Science for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. Reseller will comply with all applicable export and import control laws and regulations in connection with the Offerings and this Agreement. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. Reseller’s relationship to Posit Science is that of an independent contractor, and neither party is an agent or partner of the other. Reseller will not have, and will not represent to any third party that it has, any authority to act on behalf of Posit Science. All notices to you under this Agreement will be delivered to your email address specified in your Reseller Account. You are responsible at all times for updating your Reseller Account to provide to us your most current e-mail address. If the last e-mail address that you have provided to us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice. All notices to Posit Science must be delivered to the address set forth below in Section 12 (Contact Information) by certified or registered mail (postage prepaid and return receipt requested), and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner. We may change our notice address by giving notice of the new address to you. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word “including” means including without limitation. This Agreement constitutes the entire agreement between you and Posit Science regarding the subject matter hereof. The Site may contain additional terms and conditions relating to the Subscription Licenses, which will be posted therein and are hereby made a part of this Agreement. In the event of any conflict or inconsistency between the terms and conditions contained herein and any such additional terms and conditions, the additional terms and conditions will control but solely with respect to the subject matter thereof.
Contact Information. If you have any questions about this Agreement, please contact us by e-mail at customerdelight@positscience.com or by writing to us at Posit Science Corporation, 625 Market Street, 6th Floor, San Francisco, CA 94105, in each case marking the message “Attention: Reseller Agreement.”