Partner Reseller Agreement

This Reseller Partner Agreement (“Agreement”) is hereby entered into between Spot AI, Inc., a Delaware corporation with its principal place of business at 23785 Cabot Blvd., Suite 323, Hayward, CA, 94545 (“Spot AI”) and the reseller partner that accepts these terms as indicated below (“Partner”) (each of Spot AI and Partner, a “Party”, and collectively, the “Parties”).

By accepting this Agreement, whether by clicking a box indicating its acceptance or navigating through a login page where a link to this Agreement is provided, Partner agrees to be bound by the terms hereof. This Agreement is effective as of the date that Partner accepts the terms of this Agreement as indicated above (“Effective Date”). Spot AI reserves the right to modify or update the terms of this Agreement in its discretion, the effective date of which will be the earlier of (i) 30 days from the date of such update or modification and (ii) Partner’s continued participation in Spot AI’s partner program following such update.

The Parties hereby agree as follows:

Definitions
- “Claim” means any and all claims, suits, legal actions or proceedings against a Party, including by another Party, a third party, or by an employee of a Party.
- “Confidential Information” means all know-how, specifications, pricing information, maintenance, data sheets, sales, service and technical bulletins, customer lists, sales and marketing programs, price lists, cost data, and all other publications and information, whether or not reduced to writing, relating to the formulation, manufacture, use, marketing and sale of the Products, as well as any other information relating to the business of a Party which may be divulged to the other Party in connection with this Agreement.
- “Customer Agreement” means the agreement between Partner and End Customer for the purchase of Products.
- “Documentation” means Terms of use of Spot AI relating to the Products, their functionality, and their use, available at spotai.com.The terms of use can be found here: https://www.spot.ai/terms-of-use
- “End Customer” means Partner’s customer and the entity licensed under the End User Agreement to use the Products for its own internal purposes and not for resale, lease, loan, or redistribution to, or use on behalf of, other third parties.
- “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks and Marks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
- “Liabilities” means any and all damages, liabilities, settlement amounts, expenses (including reasonable attorney’s fees) and costs in connection with a Claim.
- “Marks” means a Party’s trade names, trademarks, service marks, symbols, and logos.
- “Order” means a written purchase order Partner will submit to Spot AI for the purchase of Products to be used by End Customers.
- “Partner Indemnified Parties” means Partner, its affiliates, and each of their officers, directors, employees and contractors.
- “Partner Opportunity” means an opportunity for the purchase of Products by an End Customer that is initiated by a Partner.
- “Partner Portal” means the website maintained by Spot AI that provides various resources to partners, including Product information, corresponding list prices, Partner Opportunity deal registration requirements, and marketing collateral, available at https://www.spotai.com/partners
- “Products” means Spot AI’s enterprise security platform, and related hardware as may be set forth in an Order.
- “Reseller Price List” means the price list for the Products setting forth the various discounts available to Partner. Reseller Price Lists are available at the Partner Portal and may vary by region.
- “Taxes” means applicable duties, sales tax, value added tax or any equivalent tax and any applicable withholding taxes, customs, duties and other charges and fees related to the sale of the Products.
- “Spot AI Indemnified Parties” means Spot AI, its affiliates, and each of their officers, directors, employees and contractors.
- “Spot AI Installation Processes” means the processes required for performance of installation of the Products by a Partner.
Appointment
- Subject to Partner’s continued compliance with this Agreement, Spot AI appoints Partner as a non-exclusive reseller and/or dealer of the Products found on the Reseller Price List. Partner will buy and sell the Products in its own name and for its own account. Partner will act as an independent entity and is not authorized to represent Spot AI or to act on behalf or in the name of Spot AI. If Partner uses the Products to provide managed services, then Partner will be subject to the terms of the End User Agreement.
Partner Obligations
- 3.1
- Promotion and Marketing. Partner will use its best efforts to promote and market the Products, which will include: (i) conducting itself in a professional and diligent manner representing the Products; (ii) using only marketing materials about the Products that have been approved in writing by Spot AI (which may include by email); and (iii) meeting standards set by Spot AI for promoting, displaying, demonstrating, and explaining the Products to End Customers. Partner will avoid deceptive, misleading, or unethical practices and will not knowingly solicit orders from any End Customer that engages in illegal or deceptive practices.
  Subject to the terms and conditions of this Agreement, Spot AI grants Partner a non-exclusive, limited license to use Spot AI’s Marks solely to fulfill Partner’s obligations as set forth in this Agreement. Each type of use of Spot AI’s Marks must be pre-approved, in writing, by Spot AI. Except as set forth in this Section 3.1, nothing in this Agreement will grant to Partner any right, title or interest in or to Spot AI’s Marks; and, all use of Spot AI’s Marks will inure solely to the benefit of Licensor. Partner will promptly notify Spot AI of: (a) any use by any third party of Spot AI’s Marks; or (b) any use by any third party of similar Marks which may constitute an infringement or “passing off” of Spot AI’s Marks. To the extent Partner (including any Partner employees) choose to participate in a Spot AI partner program promotion, Partner’s participation in such promotion will be governed by the rules set forth in the Partner Portal.
- 3.2
- Restrictions. Except as expressly authorized by this Agreement, Partner may not: (a) modify, copy, disclose, alter or create derivative works of any of the Products, the Documentation, or Spot AI’s Marks; (b) license, sublicense, resell, distribute, lease or otherwise dispose of any of the Products, the Documentation, or Spot AI’s Marks; (c) use any of the Products or the Documentation, or allow the transfer, transmission, export or re-export any of the Products, in violation of the export control laws or regulations of the United States or any other country; (d) cause or permit any other party to do any of the foregoing; or (e) add the Products to any governmental (i.e., local, state, or federal) contract or purchasing consortium unless authorized by Spot AI in writing. Further, partner will not: (i) adopt, use or register any words, phrases or symbols that are identical to or confusingly similar to any of Spot AI’s Marks within any territory; (ii) challenge or assist others to challenge Spot AI’s Marks or the registration thereof or attempt to register any Marks confusingly similar to Spot AI’s Marks; and (iii) remove, alter or obscure any proprietary notices or any of Spot AI’s Marks in or on the Products including copyright notices, or permit any other party to do so.
  Partner represents: that neither Partner nor any of its respective subsidiaries or, to the knowledge of the Partner, any director, officer, employee, agent, affiliate or representative of Partner, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is (A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“Sanctions”), nor (B) located, organized or resident in a country or territory that is the subject of Sanctions; that Partner will not, directly or indirectly, fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Person; and Partner has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
- 3.3
- Ownership and Reservation of Rights. As between the Parties and subject to Sections 3.1 and 3.2, Spot AI will own all right, title and interest in and to Spot AI’s Marks and the Intellectual Property Rights associated with the Products. Spot AI reserves all rights not expressly granted in this Agreement, and no licenses are granted by Spot AI to Partner under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth herein. Further, all references in this Agreement to the “purchase” or “sale” of the Products means, with respect to each of the Products which are covered by Intellectual Property Rights owned by Spot AI (or to which Spot AI has rights), the acquiring or granting, respectively, of a license to use such Products, and to exercise any other rights pertaining to such parts which are expressly set forth herein.
- 3.4
- Customer Agreements. Before Partner issues an Order to Spot AI, Partner will execute a binding purchase commitment in writing with the End Customer that includes the types and quantities of the Products set forth on the Order.
- 3.5
- Compliance. Partner will: (i) comply with all applicable local, state, federal or international laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, including, without limitation, the “Foreign Corrupt Practices Act” enacted by the United States, as amended, and any and all laws pertaining to customs, taxes and contracts, in its performance of this Agreement and its distribution, licensing and use of the Products and documentation; (ii) not engage in, or acquiesce in, any extortion, kickbacks, or other unlawful or improper means of obtaining business or promoting the Products; (iii) promptly inform Spot AI of any claim, action, or proceeding, whether threatened or pending, that comes to Partner’s attention and involves Spot AI or the Products; and (iv) immediately notify Spot AI of any known or suspected breach of the End User Agreement or other unauthorized use of the Products by an End Customer.
Pricing; Registration
- 4.1
- As an authorized reseller of the Products, Partner will be entitled to purchase the Products at the various discounted prices set forth on the then-current Reseller Price List, depending on whether it is a Partner Opportunity or an opportunity initiated by Spot AI. Prices are on a net basis and exclusive of any Taxes or shipping charges, which shall be borne by Partner. Partner will advertise the Products, including in both print and online materials, only at the suggested list prices set forth in the applicable Reseller Price List, however Partner may sell the Products at a price agreed upon between Partner and the End Customer.
- 4.2
- Partner may register a Partner Opportunity by submitting the opportunity to Spot AI via the registration form provided in the Partner Portal in order to secure the additional discounting provided for in such instances on the Reseller Price List. The registration of a Partner Opportunity must be approved in writing by a Spot AI representative, in his or her sole discretion, following an initial contact with the End Customer to qualify the opportunity. If such approval is granted, then the Partner Opportunity will be considered a registered opportunity (“Registered Opportunity”).
Product Orders; Delivery
- 5.1
- Partner will submit Orders to Spot AI via email to partnerorders@SpotAI.co. The Order must include, at a minimum: (i) Product names and Model; (ii) quantity of each Product; (iii) the pricing in accordance with Section 2; (iv) the name and physical address to which the Products are to be shipped; (v) the name, physical address, and email address of the entity to be billed; (vi) if applicable, the requested delivery date of the Products; and (vii) all applicable contact information of the End Customer, including full company name, contact person, physical address, phone number, and email address. In addition, Partner will include Partner’s freight account number on the Order, otherwise Spot AI will bill the freight on its own account and include the cost on the invoice to Partner. Any terms stated on the Order that differ from the terms of this Agreement or the End User Agreement will have no force or effect. Any Order that indicates it is a draft, pending approval, or similar designation, or is missing a signature where one is required, will be rejected. Each Order will be deemed accepted when submitted, unless Spot AI rejects the Order in writing or by e-mail to Partner within two (2) business days following receipt of the Order by Spot AI.
- 5.2
- If an Order includes a requested delivery date, Spot AI will use commercially reasonable efforts to deliver the Products in accordance with the requested delivery dates, but will not be bound by such dates. Spot AI will mark all Products for shipment to the name and address specified in the Order, and will deliver the Products to a carrier or forwarding agent chosen by Spot AI or specified in the Order. If Partner specifies a carrier in the Order, then Partner will also provide an active account number, otherwise Spot AI will ship under its account with the carrier, and Partner will pay all shipping expenses set forth on the invoice. Title and risk of loss for hardware Products will pass to Partner at Spot AI’s shipping point.
- 5.3
- Partner understands that the End Customer’s use of the Products is subject to the terms of the End User Agreement. Partner will ensure that a prominent link to the Spot AI Terms of Service is included on all quotations to End Customers. Spot AI makes all warranties regarding the Products directly to End Customers via the End User Agreement. Spot AI will not be liable for any different or additional warranties or other commitments Partner makes to End Customers.
Payments
- 6.1
- Spot AI will issue an invoice to Partner following shipment of each Order. Payments on undisputed invoices are due and payable without any deductions, setoff or counterclaims by Partner within thirty (30) days of the invoice and will be made by wire transfer, bank check, money order or such other means as Spot AI may specify on the invoice or otherwise, at Partner’s expense.
- 6.2
- Spot AI reserves the right to charge Partner interest on any overdue payments at one-and-one-half percent (1.5%) per month (18% per year), or the maximum amount allowed by applicable law, whichever is less. If Partner fails to make payment within one hundred twenty (120) days from the date of invoice, Spot AI will be entitled to withdraw any allowances, discounts or other concessions granted to Partner and all outstanding demands shall become due immediately.
Returns
- Spot AI makes warranties regarding the Products directly to End Customers, not to Partner, via the End User Agreement. Spot AI warranties the Hardware on the terms set forth in the End User Agreement, generally for a period specified in the sales order (“Warranty Period will be equivalent to the term of the contract”). End Customer may return the defective Products within the Warranty Period directly to Spot AI, pursuant to the terms of the End User Agreement. Alternatively, if an End Customer contacts Partner within the Warranty Period to initiate a warranty return, then Partner may work with Spot AI to effect such return. To do so, Partner must send a return request to Spot AI at support@SpotAI.co and clearly state details on where and when the End Customer purchased the Hardware, the serial numbers of the applicable Hardware unit(s), the End Customer’s reason for returning the Hardware, and the End Customer’s name, mailing address, email address, and daytime phone number. If approved in Spot AI’s sole discretion, Spot AI will provide Partner with a Return Materials Authorization (“RMA”) and prepaid shipping label via email that must be included with the return shipment to Spot AI. Partner must return the Hardware unit(s) listed in the RMA together with all included accessories, as well as the RMA document, within the 14 days from the day on which Spot AI issued the RMA. Spot AI will either repair or replace the Hardware with new or refurbished units in its sole discretion.
Indemnification
- 8.1
- Partner will indemnify Spot AI Indemnified Parties from and against Liabilities incurred by any Spot AI Indemnified Parties arising out of: (a) any written or oral warranty to End Customers with respect to the Products not authorized in the Documentation or End User Agreement; (b) any improper use or disposition of the Products by Partner, or any modification, installation, service or repair of the Product not performed by Spot AI or under Spot AI’s direction, including any breach by Partner of Section 5.3; (c) any violation of applicable law by Partner; or (d) any fraud, gross negligence, or intentional misconduct by Partner or any of its representatives.
- 8.2
- Spot AI will indemnify Partner Indemnified Parties from and against any and all Liabilities incurred by Partner Indemnified Parties arising out of the alleged infringement, violation or misappropriation of any valid third party intellectual property right by the Products sold to Partner pursuant to this Agreement, unless the third party claim, action or proceeding arises out of: (i) combination or use of the Products with any product, service or process not provided by Spot AI; (ii) Spot AI’s compliance with any requirements or specifications provided by Partner or the End Customer; or (iii) any modification made to a Product by any person or entity other than Spot AI.
- 8.3
- If making a claim for indemnification hereunder, the indemnified Party will provide: (i) prompt written notice of any such Claim, provided that any failure to provide notice promptly shall only relieve the indemnifying Party of its obligation if its defense is materially prejudiced by the delay; (ii) the indemnifying Party with sole control of the defense and settlement of the Claims; and (iii) all reasonably requested cooperation and assistance in connection with the defense of such Claim, at the indemnifying Party’s expense. The indemnified Party shall not settle or compromise a Claim for which it is seeking indemnification without the prior written consent of the indemnifying Party. The indemnified Party will have the right to employ separate counsel at its own expense, subject to the indemnifying Party’s control of such defense.
Term and Termination
- 9.1
- Either Party may terminate this Agreement at any time, for any reason or no reason, upon thirty (30) days’ prior written notice to the other Party.
- 9.2
- This Agreement may also be terminated as follows: (a) by written notice, in the event of a material breach of this Agreement by either Party, thirty (30) business days after the date of receipt of written notice thereof, if such breach has not been cured by the expiration of the 30-day notice period; or (b) by written notice in the case of a Party’s bankruptcy, insolvency or similar event.
- 9.3
- Termination, expiration, cancellation, or abandonment of this Agreement through any means and for any reason shall not relieve the Parties of any obligation accruing prior thereto and shall be without prejudice to the rights and remedies of either Party with respect to any antecedent breach of any of the provisions of this Agreement.
- 9.4
- Following expiration or termination of this Agreement, Partner may continue to close the sale of Products registered with Spot AI prior to the effective date of expiration or termination for up to thirty (30) days, provided that it does so in accordance with the requirements of this Agreement.
- 9.5
- Sections 1, 6 and 7 (each, solely with respect to obligations accrued prior to the effective date of termination or expiration), 8, 9.4 (to the extent Partner sells Products under this Agreement after expiration or termination pursuant to Section 9.4), 10, 11.2, 11.3 and 12, as well as any other sections which, by their nature when taken as a whole, a reasonable person would deem intended to survive, will survive any termination or expiration of this Agreement. Expiration or termination of this Agreement will not affect remedies either Party may have for breach of this Agreement by the other Party prior to such expiration or termination.
Confidentiality
- Each Party will treat as confidential all Confidential Information of the other Party received by it from the other Party in connection with this Agreement. The receiving Party will not use such Confidential Information except to exercise its rights or perform its obligations under this Agreement and will not disclose such Confidential Information to any third party. The obligations hereunder will not apply to Confidential Information which is (i) in the public domain or subsequently enters the public domain through no act or omission of the Partner; or (ii) already known to the receiving Party at the time of disclosure without a duty of confidentiality, as established by competent proof. The receiving Party will not be restricted from disclosing Confidential Information to the extent that it is required to be disclosed by law, government agency, governmental regulation, or court order, so long as the receiving Party provides the disclosing Party with prior written notice of any such disclosure and a reasonable opportunity to seek confidential treatment or a protective order, if appropriate. The obligations in this Section 10 will be applicable during the term of this Agreement and for a period of three years following the return or destruction of the Confidential Information and all copies thereof. The confidentiality provisions of this Agreement supercede and replace the terms of any nondisclosure agreement previously executed between Spot AI and Partner.
Disclaimer of Warranties; Limitation of Liability
- 11.1
- EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SPOT AI MAKES NO EXPRESS WARRANTIES AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCTS UNDER THIS AGREEMENT, WHICH ARE OTHERWISE PROVIDED “AS IS”, OR THAT THE PRODUCTS WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE.
- 11.2
- IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, MULTIPLE, LOST PROFITS OR OTHER INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
- 11.3
- EXCEPT FOR EITHER PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, OR ANY LIABILITY ASSOCIATED WITH PARTNER’S PERFORMANCE. IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY PARTNER TO SPOTt AI UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS THAT GIVE RISE TO THE APPLICABLE CLAIM.
Miscellaneous
- 12.1
- Assignment. This Agreement will be binding upon and inure to the benefit of the respective Parties and their permitted assigns and successors in interest. Neither Party may assign this Agreement without the written consent of the other Party. The merger or sale of all or substantially all of a Party’s assets shall not be considered an assignment for purposes of this Section 12.1.
- 12.2
- Severability. If any term or provision of this Agreement is determined to be invalid, void or unenforceable, the remainder of this Agreement will nonetheless remain in full force and effect.
- 12.3
- Waivers. All waivers must be in writing and signed by the waiving Party. Neither Party will, by the lapse of time, and without giving notice, be deemed to have waived any of its rights under this Agreement. No waiver of a breach of any provision of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
- 12.4
- Notices. Any notices required hereunder this Agreement: (1) must be in writing (which may be by electronic mail); (2) must be delivered either by a nationally or internationally recognized overnight delivery service with delivery confirmation and tracking services or electronically, in the case of Partner, to Partner’s main contact email address on file with Spot AI, and in the case of Spot AI, to legal@Spotai.co; (3) must be delivered to the applicable Party at the address set forth below, or such other address as a Party may designate by notice in accordance with this provision; and (4) will be deemed given on the date of delivery.
- 12.5
- Equitable Relief. Partner acknowledges that a breach by it of the terms and conditions of this Agreement may cause irreparable harm to Spot AI, which may not be compensable by monetary damages. Accordingly, in addition to potential money damages, Partner acknowledges that a breach by it of the terms and conditions of this Agreement shall be sufficient grounds for the granting of an injunction against Partner by a court of competent jurisdiction.
- 12.6
- Governing Law. This Agreement shall be construed and enforced under the laws of the State of California without regard to its conflicts of laws principles and any action maintained by the Parties hereto shall be commenced solely within the state or federal courts located in Santa Clara County, California, and any defense of lack of personal jurisdiction, improper venue, or forum non-conveniens is hereby waived.

Partner Reseller Agreement

Definitions

Appointment

Partner Obligations

Pricing; Registration

Product Orders; Delivery

Payments

Returns

Indemnification

Term and Termination

Confidentiality

Disclaimer of Warranties; Limitation of Liability

Miscellaneous