Last Modified: March 14, 2022
This Reseller Agreement (the “Agreement”) between Abstract Studio Design, Inc. a Delaware corporation (“Abstract”), and you. For the purposes of the Agreement, “you”, “your”, “Reseller” or “Customer” means the party identified as the reseller in the applicable Order Form. By executing an Order Form that references the Agreement, each party signifies that it has read, understands, and agrees to be bound by the Agreement. The Agreement shall be effective as of the date the first applicable Order Form is executed. The Agreement governs all Order Forms and any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by the parties.
Abstract hereby authorizes and appoints Reseller as a non-exclusive reseller of Abstract’s version control and design workflow management software-as-a service platform as well as downloadable software that facilitates the use of the platform (collectively, the “Solution”).
To order a subscription to the Solution on behalf of a certain end user, Reseller must submit a purchase order that references this Agreement and such purchase order must be accepted by Abstract (“Purchase Order”). Reseller may only sell the Solution to the end user customer identified in the Purchase Order (“End User”). The Purchase Order must also include the contact name, email address and location of the End User. The Solution may not be resold to any entity other than the End User under any circumstances. For the avoidance of doubt, the Solution is licensed and not sold. The End User’s subscription of the Solution will begin on the date stated in the applicable Purchaser Order. Unless either party provides notice of its intent not to renew at least sixty (60) days prior to the end of a subscription, the End User’s subscription will automatically renew for periods of one (1) year and Reseller will be obligated to pay for such subscription. Abstract will send invoices to Reseller thirty (30) days prior to any renewal term.
Provision of the Solution
Upon acceptance of a Purchase Order, Abstract will provide information to a single user of the End User to begin the registration process for the Solution. Any delay by an End User in registering for the Solution will not affect the subscription start date on an applicable Purchase Order.
Abstract will be responsible for providing technical support to End Users. Reseller agrees to direct all support requests to Abstract.
Abstract will provide an invoice for the fees stated on the Purchase Order to Reseller upon acceptance of such Purchase Order; unless otherwise specified in the Purchase Order, Reseller will pay such invoice within thirty (30) days of receipt of the invoice regardless of whether the Reseller has been paid by the End User. For the avoidance of doubt, Reseller is free to determine pricing for the Solution that will be paid by the End User in its sole discretion. The amounts payable to Abstract are exclusive of any sales, use, value added, or other applicable taxes, tariffs or duties; Reseller is solely responsible for payment of all such taxes except for any taxes based solely on Abstract’s income. All payments will be made in United States dollars to an account or address specified by Abstract. Overdue amounts will bear interest at a rate equal to one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. Reseller will pay all costs and expenses, including reasonable attorneys’ fees, expended or incurred by Abstract in connection with the collection of any delinquent amounts hereunder.
End User Agreement
Reseller will require that each End User agrees to be bound by the applicable Abstract’s terms of service (“End User Agreement”). End Users subscribing to the Business or Pro Plan shall be subject to the Customer Terms of Service, https://www.abstract.com/legal/customer-terms-of-service. End Users subscribing to the Enterprise Plan shall be subject to the Enterprise Terms of Service, https://www.abstract.com/legal/enterprise-terms-of-service. Each of the Customer Terms of Service and EnterpriseTerms of Service shall be an “End User Agreement.” Reseller shall execute an ordering document with the End User specifying that the Solution is provided subject to (a) the End User Agreement, and (b) the terms of the ordering document between Reseller and the End User. Any modification to the End User Agreement must be agreed to in writing by Abstract. Each End User is required to accept and be bound to the End User Agreement in order to receive access to the Solution. It is solely Reseller’s responsibility to ensure that each End User accepts and is bound by the applicable End User Agreement.
Term and Termination
This Agreement will a terminate if (a) Reseller fails to pay Abstract any amounts due hereunder within five (5) days after Abstract provides Reseller with written notice of Reseller’s failure to pay, (b) either party materially breaches of the terms of this Purchase Order and such breach is not remedied by the breaching party within thirty (30) days after written notice by the other party of its intent to terminate, or (c) either party gives sixty (60) days written notice to the other party of its intent to terminate. Termination of this Agreement will not release Reseller from its obligation to pay any amount owed to Abstract. All Purchaser Orders are non-cancelable and non-refundable.
Abstract’s pricing and any non-public information regarding the Solution is Abstract’s confidential information; Reseller will not use such information for any purpose other than to fulfill its obligations hereunder and will not disclose such information to any third parties.
Upon the End User’s acceptance or execution of the End User Agreement, Abstract will grant the End User the warranties detailed in the End User Agreement. Warranties may only be granted directly by Abstract to End Users. WITH RESPECT TO RESELLER, ABSTRACT DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN THE PRODUCT INCLUDING, WITHOUT LIMITATION THE WARRANTIES OF DESIGN, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Reseller will indemnify, defend and hold Abstract harmless, at Reseller’s expense, any third party claim brought against Abstract or its employees, officers, directors, agents, or licensors arising from or related to (a) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Reseller regarding the Solution, or (b) Reseller’s failure to obtain an End User’s acceptance of the End User Agreement, and Reseller will pay any amounts agreed to in a settlement signed by an authorized officer of Reseller or final judgments awarded to the third party claimant by a court of competent jurisdiction.
Limitation of Liability
ABSTRACT WILL NOT BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR (B) ANY DAMAGES THAT EXCEED THE TOTAL FEES PAID OR PAYABLE BY RESELLER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
This Agreement and all Purchase Orders are governed by the laws of the State of California without regard to choice of law provisions. Any judicial action or proceeding brought in connection with this Agreement will be brought in the city of San Francisco, California in the state or federal courts therein. The parties hereby consent to personal jurisdiction in the state of California as applicable in accordance with the foregoing. Notices to be given or submitted by either party to other under this Agreement will be in writing and will be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, and postage prepaid. Notices will be addressed to the addresses set forth in the preamble of this Agreement unless either party gives notice to the other. The parties acknowledge that (a) they are acting as independent contractors, (b) the parties will not be deemed to be agents of each other, and (c) no joint venture, franchise, partnership, agency, or other relationship will be created or implied by this Agreement. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be illegal, unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. If any provision is adjudged as such, its removal from the Agreement will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The failure of either party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Neither party may transfer or assign this Agreement, or any portion thereof, without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Abstract may assign this Agreement upon notice to Reseller in the event of a merger, or acquisition of all or substantially all of its assets, or for purposes of corporate restructuring. Any attempt to assign this Agreement in contravention of this section will be null and void. This Agreement, constitutes the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which will constitute the same instrument. This Agreement may only be amended, modified or supplemented by an agreement in writing by non-preprinted agreements clearly understood by both parties to be an amendment and signed by each party hereto. The headings in this Agreement are for convenience only and will not be considered a part of, or be deemed to affect the construction or interpretation of, any provision of this Agreement.