This Kustom360 Reseller Agreement (“Agreement”) is entered into this day of
, 20__ (“Effective Date”) at , by and between Mobilemo, Inc., a corporation duly organized and existing under the laws of the Philippines, with its office address at 15th Floor, Pacific Star Bldg., Sen. Gil Puyat Ave. cor. Makati Ave., 1200 Makati City, Philippines (“Kustom360”) and , a corporation duly organized and existing under the laws of the Philippines, with its office address at
(“Reseller”). Kustom360 and Reseller may each be referred to as a “Party” and together the “Parties” in this Agreement.
1. Purpose. This Agreement contains the terms and conditions in which Kustom360 grants Reseller a license to market and distribute Kustom360’s Service to
2. Definitions. The following definitions shall apply:
2.1. “Customers” shall mean end-user customers of Reseller that subscribe to Kustom360’s Service.
2.2. “Kustom360 Marks” shall mean the trademarks, service marks, trade names, slogans, and brand names, domain names, and any other source identifier of
2.3. “Kustom360’s Terms of Service” shall mean Kustom360’s applicable form of service agreement for Customers as it may be in effect from time to time. Kustom360 may modify the terms of Kustom360’s Terms of Service at any time. The current form of Kustom360’s Terms of Service is attached as Annex
2.4. “Service” shall mean Kustom360’s service products – mobile application, web application, and website – that are available for subscription by
2.5. “Support Services” shall mean support services for the Service as specified in Section
2.6. “Term” shall mean the term of this Agreement as specified in Section
2.7. “Territory” shall mean the geographic area or scope defined in Annex B or by written agreement of the Parties.
4. The Territory. Reseller agrees to market and distribute the Service and to sell the Service only in the Territory. To avoid conflict particularly resulting from internet or web promotion or marketing, among others, Reseller will take such reasonable steps as Kustom360 may direct.
5. Orders and Subscriptions. Reseller shall be responsible for all communications with Customers and all orders for the Service by Customers, which may be submitted electronically, specifying the Service ordered subject to acceptance by Kustom360 and subscription by Customers of the Service. To facilitate processing, Kustom360 may establish such procedures for Reseller’s orders and subscriptions in this Agreement.
6. License to Trademarks. Kustom360 hereby grants to Reseller during the Term a non- exclusive, revocable, and non-transferable license to Kustom360 Marks as follows:
6.1. Kustom360 Marks will be used for the purpose of identifying the Service to the Customers within the Territory for normal advertising and promotion of the Service. Reseller may hold itself out in the Territory as Kustom360’s authorized reseller.
6.2. Reseller will not remove Kustom360 Marks from any portion of the Service or any materials pertaining to the Service.
6.3. Reseller may not create the commercial impression that Kustom360 Marks pertain to the Reseller.
6.4. Any and all trademarks and trade names licensed hereunder are and remain the exclusive property of Kustom360. Reseller may not adopt or register any trademark in any jurisdiction that is the same as or confusingly to Kustom360 Marks. Reseller agrees to adhere to all applicable trademark usage guidelines, as may be prescribed by Kustom360 from time to time. Nothing contained in this Agreement will be deemed to give Reseller any right, title or interest in any Kustom360 Marks, and all goodwill associated with each Kustom360 Marks will belong to Kustom360.
7. Price and Payment.
7.1. Price. Kustom360 will pay Reseller the standard commission rate of thirty percent (30%) of paid and collected monthly revenues from each Reseller Customer with a Kustom360 subscription. Kustom360 may also increase or decrease its standard retail price upon written notice to Reseller. Requests for special prices for large volumes of business may be made and granted by Kustom360 in its sole discretion. All amounts are exclusive of all taxes, including but not limited to Value-Added Tax (VAT), which shall be for the account of Reseller.
7.2. Payment; Late Payment; Credit Policies. Commissions are due and payable to Reseller are due on or before the thirtieth (30th) day of the month following the month in which Kustom360 receives payment of its invoice to the Reseller’s Customers.
7.3. Taxes. In addition to the Price, Reseller shall pay all taxes, including but not limited to VAT, in this Agreement.
7.4. Records; Inspection. Reseller will maintain detailed records of receipts, revenues, and costs relating to the sale of the Service. Kustom360 may, upon reasonable notice, inspect the records of Reseller during Reseller’s normal business hours to monitor and verify compliance with this Agreement.
7.5. Payment of Commissions upon Termination. Kustom360 shall no longer pay 30% reseller commissions upon termination of reseller contract. However, for Reseller’s Customers who subscribed to the Service less than 3 years from the date of termination of this Agreement, the commission rate will be downgraded to a prorated referral commission for the first three years of the Customer’s subscription. The referral commission rate will be 15% in the first year, 15% in the second year, and 10% in the third and final year.
8. Support Services. Reseller agrees to provide Level 1 Support Services to Customers to which Reseller has sold the Service. Level 1 Support means product orientation, user onboarding, training, and customer support including answers to questions about using the Service. Technical issues such as bugs, service downtimes, and access and data issues should be promptly referred to by Reseller to Kustom360 with complete details to facilitate resolution. At all times, Reseller will maintain adequate trained customer support personnel for the Service.
9. Confidentiality and Proprietary Rights.
Confidentiality. Each Party acknowledges that in the course of dealings between the Parties, each may acquire information about the other, its business activities and operations, its technical information, and trade secrets (“Confidential Information”). Confidential Information does not include: (i) information generally available to or known by the public, (ii) information independently developed outside the scope of this Agreement without reference to that made available under this Agreement, or (iii) information which was known to the recipient prior to receipt from the other Party. For the Term, and for a period of five (5) years thereafter, each Party will use commercially reasonable efforts to (i) hold all such Confidential Information in strict confidence and will not reveal the same except pursuant to a court order or upon written permission from the disclosing Party and (ii) use such Confidential Information only as expressly permitted hereunder. Each Party will safeguard the Confidential Information with at least as great a degree of care as the Party uses to safeguard its own most confidential materials or data relating to its own business, but in no event less than a reasonable degree of care. Each Party will immediately return to the other Party or destroy all Confidential Information of the other Party upon termination or written request and upon written request will certify that it has done so.
9.1. Proprietary Rights; Restrictions. Reseller acknowledges and agrees that the Service is the proprietary property of Kustom360. Reseller will not reverse engineer or decompile the Service. Reseller may not, and may not permit Customers or third parties, to use, reproduce, sublicense, distribute, dispose of, or exploit the Service except as expressly permitted under this Agreement.
10. Reseller Obligations.
10.1. Marketing Efforts. Reseller agrees to use commercially reasonable efforts to promote the sale of the Service. Reseller agrees to permit Kustom360 to review all of Reseller’s promotion and advertising materials for the Service prior to use. Reseller will withdraw any promotion or advertising that Kustom360 finds unsuitable.
10.2. Web Linking. During the Term, the Parties may link their web sites, subject to the Parties’ assent, which will not be unreasonably denied or withdrawn.
10.3. Customer Information. Reseller will provide Kustom360 with up-to-date information on Customers as Kustom360 may reasonably request. Kustom360 requires Customers to use the Kustom360 registration form to subscribe to the Service.
10.4. Forecasting. During the Term, Reseller will, at the beginning of each calendar quarter, provide Kustom360 its non-binding sales forecasts for the next following four quarters. Both Parties may use the forecast to plan and predict their businesses.
10.5. Prohibited Conduct. Reseller may not make any contracts or commitments on behalf of Kustom360 nor make any warranties or other representations regarding the Service other than those authorized herein or by Kustom360 in a separate writing. Reseller will not engage in any conduct that in Kustom360’s reasonable determination would diminish public perception of Kustom360 or the Service.
11. Term and Termination.
11.1. Term. Unless otherwise terminated as permitted in this Agreement, this Agreement will have an initial term of one (1) year from the Effective Date (“Initial Term”) and will thereafter be renewed for successive one (1) year periods (each a “Renewal Term”) unless either Party provides notice of termination no less than ninety (90) days before the end of the Initial Term or any Renewal Term.
11.2. Termination. This Agreement may be terminated immediately by written notice under any of the following conditions:
11.2.1. by a Party, if the other Party is declared insolvent or bankrupt;
11.2.2. by Kustom360, if Reseller defaults its payment obligations and fails to cure the same within ten (10) days after written notice of such default; or
11.2.3. by a Party, if the other Party materially breaches the terms of this Agreement, and such breach is not cured within thirty (30) days after written notice of such breach is given by the non-breaching Party.
11.3. Duties upon Termination. Upon termination, Reseller will cease use and distribution of the Service and all of Reseller’s rights and licenses granted hereunder will immediately cease.
11.5. Survival. Certain provisions of this Agreement intended to survive termination shall survive and continue for such time as such may remain applicable. Accrued payment obligations will survive.
12. Indemnification. Reseller will indemnify, defend, and hold Kustom360 harmless from any claims, demands, liabilities, or expenses against Kustom360 as a result of any claim or proceeding against Kustom360 arising out of or based upon any claims that arise from unauthorized representations by Reseller.
13. Authority. Each of the Parties represents and warrants that (i) its entry into this Agreement is duly authorized, and binding upon it and (ii) in entering into and performing this Agreement, it does not violate any third party agreement.
14. Reservation of Rights. All licenses granted to Reseller are non-exclusive. Without limiting the foregoing, Kustom360 will have the right, at its discretion, to license, sell, distribute, and provide the Service to any entity or person inside or outside the Territory.
15. Injunctive Relief. If Reseller uses the Service other than as licensed, breaches the obligations of this Agreement regarding Confidential Information, or has violated Kustom360’s intellectual property rights, Kustom360 will have, in addition to all other remedies, the right to seek injunctive relief. The Parties agree that such relief is required to prevent immediate and irreparable harm to Kustom360.
16. Miscellaneous Provisions.
16.1. Reputation of Kustom360. Reseller shall at all times act professionally and in a manner that enhances the reputation of Kustom360 and the Service.
16.2. Force Majeure. Neither Party shall be liable for loss or damage, failures or delays because of causes beyond its reasonable control, such as but not limited to strikes, lockouts, or labor disputes, fires, acts of God or public enemy, riots, incendiaries, interference by civil or military authorities, compliance with the law, orders, or policies of any governmental authority, delays in transportation or communications or failures of sources of raw materials or production facilities.
16.3. Entire Agreement. This is the entire agreement of the Parties and supersedes any earlier representation, discussion, promise, or agreement regarding this subject matter.
16.4. Relationship of the Parties. Kustom360 and Reseller are acting hereunder as independent contractors, and under no circumstances will any of the employees of one Party be deemed the employees of the other for any purpose. This Agreement will not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except to the extent and for the purposes provided for herein.
16.5. Damage Limitation. Other than Kustom360’s claims for Reseller’s breach of provisions regarding Kustom360 Marks, Confidential Information, and proprietary rights, neither Party shall be liable to the other for any indirect, incidental, or consequential damages, including but not limited to, loss of profits, loss of business opportunities or loss of business investment.
16.6. Legal Compliance.
16.6.1. Reseller shall comply with all laws, rules and regulations issued by any governmental entity having jurisdiction over it.
16.6.2. Reseller shall take no steps and have no understanding, written or verbal, to encourage, arrange, pay or receive any payment or consideration: (a) which involves any illegal purpose, or (b) which, whether legal or illegal, involves government officials or employees, political candidates or parties or (c) which consists of kickbacks or bribes.
16.6.3. Documentation of all business transactions shall properly describe the pertinent events and such records must not be false, distorted, or misleading. No undisclosed or unrecorded fund or asset shall be established for any purpose.
16.7. Assignment. Reseller shall not assign this Agreement. Reseller shall not appoint subagents or otherwise delegate its duties. Any such assignment, appointment, or delegation shall be void.
16.8. Notice. Notices to either Party shall be in writing and will be deemed received upon receipt by registered mail with postage paid to the addresses set forth in this Agreement, or when received by electronic mail or facsimile, or when delivered personally. Either Party may change its address by giving notice to the other Party in accordance with this Section.
16.9. Changes in Writing. Any change to this Agreement shall not be binding unless approved in writing by persons authorized by the Parties.
16.10. No Waiver. Failing to perform a term or a condition, or waiving breach thereof, shall not prevent a subsequent enforcement of such term or condition nor be a waiver of any subsequent breach.
16.11. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the Philippines. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof must be filed within one (1) year. Otherwise, any such dispute will be permanently barred. Any such dispute will first be referred to senior management for resolution. If senior management is unable to resolve any such dispute, it will then be referred to the Philippine Dispute Resolution Center, Inc. (“PDRCI”) for mediation. If mediation fails, then any such dispute will finally be settled by arbitration in the Philippines in accordance with the PDRCI Arbitration Rules as at present in force. Should interim judicial relief be necessary in connection with this Agreement, the Parties may seek appropriate relief before the courts of Makati City, Philippines to the exclusion of other venues. To the extent permissible, any dispute resolution in this Agreement may be conducted in person, through the submission of documents, by phone, or online.
16.12. Counterparts. This Agreement may be executed in counterparts, each of which will constitute an original and all of which taken together will constitute one and the same instrument.
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