WHEREAS, AppointmentPlus offers a software as a service online scheduling application and related services (the “Services“); and
WHEREAS, Partner desires to resell the Services and AppointmentPlus is willing to allow Partner to do so.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, AppointmentPlus and Partner agree as follows:
When used in this Agreement, the following capitalized terms shall have the meanings set forth in this Section:
1.1 End User.” Any customer of Reseller who has accepted the then-current Terms & Conditions applicable to the Services
1.2 “Price List.” A list of AppointmentPlus’s suggested retail prices for the Services, as may be amended from time to time by AppointmentPlus in its sole and absolute discretion.
1.3 “Partner Services.” Any installation, configuration, training, and technical support services provided by AppointmentPlus to Partner in connection with this Agreement.
2.1 Appointment of Partner. AppointmentPlus hereby appoints Partner as a non-exclusive reseller of the Services solely to End Users, subject to the terms and conditions of this Agreement.
2.2 Non-Exclusive. While this Agreement is in effect and at all times thereafter, AppointmentPlus has the unrestricted right to sell directly to the End Users and appoint other reseller partners, referral partners, independent sales representatives or other distributors to license or sell the Services in any industry or territory, including those in which the Partner operates.
PARTNER’S AND APPOINTMENTPLUS’ OBLIGATIONS
3.2 Sales and Technical Training to Partner. AppointmentPlus shall provide training to Partner’s sales staff as mutually agreed between the parties.
3.3 Compliance with Laws. Partner warrants that it shall, at its own expense, (i) comply with any and all laws applicable to its activities and obligations under this Agreement and (ii) without limiting the generality of the foregoing, obtain and maintain in force at all times all licenses, registrations and other reports and authorizations applicable to Partner’s activities and obligations under this Agreement.
PRICING AND PAYMENT
4.1 Partner Pricing. The pricing paid by Partner to AppointmentPlus for the Services (the “Partner Pricing“) shall be based on current partner pricing. AppointmentPlus may change the prices at any time upon thirty (30) days prior written notice to Partner.
4.2 Payment Terms. Payment terms are net fifteen (15) days.
4.3 Taxes. Partner shall be responsible for, and shall hold AppointmentPlus harmless from, the payment of any taxes applicable with respect to the Services provided hereunder, except for taxes imposed on the net income of AppointmentPlus. Partner shall provide AppointmentPlus with appropriate documentation showing that provision of the Services to Partner hereunder are exempt from any state or local sales or use tax.
4.4 Retail Prices. Partner shall have sole and absolute control to set the retail price for the provision of all Services provided to End Users.
PROPRIETARY RIGHTS OF APPOINTMENTPLUS
5.2 Survival of Provisions. The provisions of this Section 6 shall survive termination of this Agreement for any reason.
DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITIES AND REMEDIES, TRANSFER OF END USERS
6.2 Limitation of Liability. Except for the indemnification obligations pursuant to Section 7, the total aggregate liability of AppointmentPlus to Partner for any and all claims whatsoever related to the Services or this Agreement, including any cause of action sounding in contract, tort (including actions for negligence), strict liability or otherwise, shall not exceed in the aggregate the total amount of payments made to AppointmentPlus for the Services giving rise to a claim in the twelve (12)-month period immediately preceding that claim. Except for the indemnification obligations pursuant to Section 7, regardless of any other breach hereunder or any other claim by Partner against AppointmentPlus, to the maximum extent permitted by applicable law, in no event shall AppointmentPlus be liable to Partner for any loss of profits; any incidental, special, exemplary, or consequential damages (including cost of cover, lost savings, currency conversion losses, or loss of other economic advantage); or any claims or demands brought against Partner by any other party (except as specifically provided in Section 6 hereof), regardless of whether AppointmentPlus has been previously advised of the possibility of such claims or demands and notwithstanding the failure of essential purpose of any limited remedy.
6.4 Transfer of End Users to AppointmentPlus. In the event that Partner is in breach of, or otherwise violates, the payment terms of this Agreement, Partner agrees that AppointmentPlus will automatically have the right, but not the obligation, to directly contact any End User and transfer such End User to AppointmentPlus as a direct customer. From and after any such transfer of an End User, such End User will not owe any further amounts to Partner and no fees or other obligations of such End User to Partner will arise out of such transfer (e.g. termination fees).
7.2 Indemnity by Partner. Partner hereby indemnifies and shall hold harmless AppointmentPlus from and against any and all claims, actions, costs, losses, and liabilities (including, without limitation, reasonable attorney’s fees) based on or arising out of (i) any false or misleading statements made by or on behalf of Partner to an End User with respect to the Services, except for statements that are a direct and correct reference to information in the end user documentation and marketing materials provided by AppointmentPlus, or (ii) any gross negligence or willful misconduct in connection with the misappropriation, disassembling, decompiling, or reverse engineering of any of the Services, or any portion thereof, by Partner, or (iii) any gross negligence or willful misconduct by Partner constituting a material breach or violation hereof by Partner, or (iv) the Partner Indemnity Responsibilities.
7.3 Conditions to Indemnification. The foregoing indemnities are in addition to rights otherwise arising hereunder, but shall be expressly contingent on (i) the party seeking indemnity providing prompt notice to the indemnifying party of any claim, demand, or cause of action for which indemnity is sought (unless such delay in no way prejudices the indemnifying party) and (ii) the indemnifying party shall fully control the defense, negotiations or settlement of any and all claims, demands, or actions; provided, however, that the indemnifying party may not settle or compromise any such claim without the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed, unless such settlement or compromise (1) includes an unconditional release of indemnified from all liability arising out of such claim, or (2) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the indemnified party.
TERM AND TERMINATION
8.1 Term of Agreement. This Agreement shall commence on the Effective Date, and shall continue for the period of one (1) year after the Effective Date (the “Initial Term“). The Effective Date is defined as either the date the Partner signs the Partner Agreement or the date the Partner establishes an AppointmentPlus end-user account. All Exhibits subsequently executed by both parties as relate to this Agreement shall become effective as of the date such Exhibits are accepted by AppointmentPlus. This Agreement shall be extended automatically for successive one (1) year terms unless one party notifies the other in writing of its election not to renew at least thirty (30) days prior to the anniversary date hereof.
8.2 Termination for Convenience. Either party may terminate this Agreement by providing the other with no less than thirty (30) days’ prior written notice of termination.
8.3 Termination for Cause. Either party may terminate this Agreement for a material breach of this Agreement by the other party upon thirty (30) days prior written notice to the breaching party if during such thirty (30) day period, the default is not cured to the reasonable satisfaction of the non-defaulting party. Notwithstanding the above, this Agreement shall terminate immediately without notice in the event of any of the following: (i) Partner reverse engineers, disassembles or decompiles any Service to a source code version, or attempts the same; or (ii) Partner impermissibly transfers or assigns its rights under this Agreement or rights to the Services.
8.4 Termination Upon Bankruptcy. Effective immediately and without any requirement of notice, either party may, at its option, terminate this Agreement and/or suspend its performance in the event that (i) the other party files a voluntary petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors; (ii) a receiver, trustee, or similar officer is appointed for the business or property of such party; (iii) any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such party and not stayed, enjoined, or discharged within sixty (60) days; or (iv) the other party adopts a resolution for discontinuance of its business or for dissolution.
8.5 Continuing Obligations. Notwithstanding termination or expiration of this Agreement, Partner’s obligation to pay for all Services ordered prior to the effective date of termination or expiration shall continue. Any obligations, duties, or rights that by their nature extend beyond the expiration or termination of this Agreement, shall survive any expiration or termination and remain in effect.
9.1 Notices. All notices required or permitted by this Agreement shall be in writing and may be delivered personally, or may be sent by email or reputable overnight carrier, to the address set forth below, unless the parties are subsequently notified of any change of address in accordance with this Section 9.1. Any notice shall be deemed to have been received as follows: (i) by personal delivery, upon receipt; (ii) by email three (3) hours after transmission or dispatch; (iii) by certified mail, one (1) business day after delivery to the reputable overnight carrier by the party serving notice. If notice is sent by email, a confirming copy of the same shall be sent by mail to the same address.
Stormsource, LLC dba AppointmentPlus
|Address:||15300 N. 90th Street, Suite 100|
|Address 2:||Scottsdale, AZ 85260|
9.2 Trademarks. All trademarks, service marks, trade names, logos or other works or symbols identifying AppointmentPlus’s Services or business (the “Marks“) are and will remain the exclusive property of AppointmentPlus or its licensors, whether or not specifically recognized or perfected under the laws of the United States, or elsewhere. Partner will not take any action that jeopardizes AppointmentPlus’s or its licensors’ proprietary rights or acquire any rights in the Marks, except the limited use rights set forth in this Agreement. Partner will not register, directly or indirectly, any trademarks, service marks, trade names, copyrights, company name or other proprietary or commercial right which is identical or confusingly similar to the Marks.
Partner may identify itself as an “AppointmentPlus Partner” and use the marks designed by AppointmentPlus in designation of the program in the United States in connection with Partner’s activities under this Agreement. The appropriate trademark symbol, either “TM” (standard trademark) or “â” (registered trademark), shall be used whenever an AppointmentPlus Service name is mentioned in any advertisement, brochure, or material circulated or published in any form whatsoever by Partner. The appropriate trademark symbol must be used in conjunction with, at least, the first reference to each AppointmentPlus Service in all Partner circulations or publications. AppointmentPlus reserves the right to amend any mark and agrees to notify Partner of any such amendments that are relevant to Partner’s business.
AppointmentPlus reserves the right to require Partner to submit all related Service advertising and marketing material to AppointmentPlus for review and approval prior to use. AppointmentPlus also reserves the right to require Partner to discontinue use of any such advertising and marketing, materials that AppointmentPlus reasonably believes will have a detrimental effect on AppointmentPlus’s business.
9.3 Confidentiality. Partner will not disclose confidential information provided to Partner by AppointmentPlus, or any information derived from such confidential information, to any person or entity except to Partner’s employees for whom access is necessary in order to fulfill its obligations under this Agreement. This obligation does not apply to information (i) known by Partner prior to its receipt from AppointmentPlus and not subject to restrictions on disclosure, (ii) rightfully received by Partner from a third party without restriction on disclosure then known to Partner, (iii) independently developed by Partner, or (iv) publicly available without restriction other than as a result of any act or omission of Partner.
9.4 No Assignment. Partner shall not assign this Agreement without the prior written consent of AppointmentPlus other than to a successor of substantially all its business, providing that such successor is not a competitor of AppointmentPlus as determined in the sole discretion of AppointmentPlus. Any such impermissible attempt by Partner to assign any of the rights, duties, or obligations of this Agreement without such consent is void.
9.5 Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9.6 Applicable Law and Consent to Jurisdictions. This Agreement shall be construed and enforced in accordance with the substantive laws of the state of Arizona as it applies to contracts negotiated, executed, delivered, and performed solely within such jurisdiction. The parties agree that the state and federal courts sitting in Maricopa Country, Arizona shall have exclusive jurisdiction over any and all disputes under this Agreement and Partner consents to the personal jurisdiction of such courts. Any law or regulation which provides that language of a contract shall be construed against the drafter shall not apply to this Agreement.
9.7 Independent Contractors. The parties to this Agreement are independent contractors and are not partners, co-venturers, agents or representatives of each other. Neither party shall have the power to bind the other, nor shall either party misstate or misrepresent its relationship hereunder.
9.8 No Waiver. Neither party shall, by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other shall not be construed as nor constitute a continuing waiver of such breach or of breaches of the same or other provisions of this Agreement.
9.9 Force Majeure. Neither party shall be in default if its failure to perform any obligation hereunder is caused solely by supervening conditions beyond that party’s reasonable control; provided, however, that in order to avail itself of the excuse from performance under this Section 9.9, the party seeking such excuse shall demonstrate diligence in attempting to remedy any such supervening conditions.
9.10 Entire Agreement. The parties hereto acknowledge that this Agreement is the complete and exclusive agreement and supersedes all prior understandings and other communications between the parties relating hereto. This Agreement may be amended only by a subsequent writing that specifically refers to this Agreement and that is signed by both parties.
Reseller agrees to:
- Create customer accounts
- Set up and configure customer accounts
- Provide direct support to customers
- Bill customers directly
AppointmentPlus agrees to:
- Provide support directly to reseller
- Bill reseller for customer accounts
Reseller may only sell the AppointmentPlus Gold subscription. Bronze, Silver, Platinum and Diamond subscription tiers are not available in the reseller program. Annual billing and annual discounts are not available on the reseller program.
Additional Appointments Pricing
The Gold subscription tier includes up to 500 appointments per month. After that, additional appointment fees apply. Additional appointments are priced at $.10 (10 cents) per appointment over 500. Billing for additional appointments is in arrears (it’s billed the following month for the appointments from the prior month).
All Non-Cancelled Accounts Will Be Billed
Accounts are billed in advance on the first of each month. Accounts that are added will not be billed until the first of the following month. To avoid being billed for an account, the account must be in “cancelled” status by the last day of the month. No refunds or credits will be provided for accounts cancelled prior to the end of the month.
If Reseller wants to maintain a demonstration account, it is a billable account.