These Terms and Conditions (the “Terms”) govern the White Label Reseller Program of Retheron LLC (“Company” or “we”), a Delaware limited liability company. These Terms become a valid and binding legal agreement upon acceptance by the applicable reseller (“Reseller” or “you”). If you are accepting on behalf of an entity, you represent and warrant that: (i) you have full legal authority to bind such entity to these Terms; (ii) you have read and understand this Terms; and (iii) you accept and agree to these Terms on behalf of yourself and/or the party that you represent. Please read these Terms thoroughly.
Reseller or Company may be referred to as a “Party” and, together, Company and Reseller may be referred to as the “Parties”.
To expressly accept these Terms and become a Reseller in Company’s White Label Reseller program, send an email to Company at support@retheron.com with your name, the name of the business you represent (if any), the preferred email address for the exchange of communications with the Company (if different), and request that Company transmit its “White Label Reseller Agreement” (which incorporates these Terms) to the email address indicated. Upon full execution of that document by you and by Company, it shall represent a valid and binding legal agreement in accordance with these Terms (the “Agreement”).
Products and services offered for white label resale by Reseller (the “Offerings”) include those as described at http://retheron.com and as modified from time to time.
Offerings include:
(a) Cloud storage programs and applications through Company’s web-based user portal ‘XLvault’ or via the ‘My Open Access’ mobile apps available for iOS and Android devices;
(b) Virtual Private Network products via VPN software available for iOS devices; and
(c) Digital File Conversion service packages enabling Customers to upload digital files for conversion into different digital formats (the “Offerings” are sometimes referred to as ‘Software Products.”)
3.1. Resale of Offerings.
(a) Limited Right to Resell Offerings. Subject to all of the terms and conditions of this Terms, during the Term, Company grants to Reseller a non-exclusive right to resell licenses or subscriptions (as applicable) to the Offerings directly to Customers, for the Customer’s own use (i) within the applicable Scope of Use and (ii) pursuant to a Customer Terms as further set forth in Section 4.2 (Customer Terms and Warranties) through or at one or more Reseller e-commerce websites (the “Site” or “Sites”).
(b) No Indirect Sales. Reseller’s rights under this Terms are non-transferable and non- sublicensable. Reseller may not resell Offerings to Customers or third parties for further resale, redistribution, sharing or transfer. Nor may Reseller resell any Offerings except pursuant to Orders directly with Company in accordance with this Terms (e.g., Reseller may not resell Offerings purchased from other Company resellers).
(c) Company-Provided Offerings. For clarity, Reseller will not act as a sublicensor or provider of the Offerings and has no right to rebrand, reframe, operate or control the Offerings. However, as to each Customer, Reseller will be solely responsible for ongoing account-related activities such as billing, collecting fees and refunds as further set forth in Section 7 (Orders and Payment).
3.2. License Restrictions. Reseller will not, and will not permit any third party to: (a) sell, provide access to, distribute or sublicense the Offerings to a third party except as expressly authorized in this Terms; (b) incorporate the Offerings into Reseller’s products or services or resell the Offerings on a bundled or OEM basis; (c) use the Offerings to; (i) develop a similar or competing product or service (ii) or to copy any idea, feature or function; (d) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the Offerings, except to the extent expressly permitted by applicable law (and then only with prior notice to Company); (e) modify or create derivative works of the Offerings; (f) copy any element of the Offerings; or (g) remove, obscure or modify in any way any proprietary or other notices or attributions in the Offerings.
3.3. Identification as Reseller. During the Term, subject to these Terms (and only where applicable) and any quality standards and usage guidelines that either Party specifically prescribes, each Party grants to the other the right to use such Party’s brand elements solely in connection with identifying itself, as applicable, in connection with the authorized resale of the Offerings. At no time during the Term or after the end of the Term will Reseller (a) register or acquire any domain names that contain any terms that are the same or similar to the Offerings or Company’s domains, (b) challenge or assist others to challenge Company’s trademark rights in its brand elements or the registration thereof, (c) attempt to register or acquire any trademarks confusingly similar to those in Company’s brand elements, or (d) use Company’s brand elements except as expressly permitted in this Terms.
3.4. Non-Exclusive. The rights granted to Reseller hereunder are non-exclusive and nothing under this Terms will be deemed to prohibit Company from entering into any reseller, end- user license, services or other agreements with any party anywhere in the world either during or after the Term.
3.5. Affiliates and Contractors. Company may permit its contractors to exercise its rights and fulfill its obligations under these Terms but remains responsible for its overall performance under this Terms.
3.6. Non-Competition. During the Term, Reseller shall not: (a) directly or indirectly market, promote, or solicit customers or subscriptions for, supply, sell or re-sell any product or service in competition with the Offerings (including the Software Products); (b) have any controlling interest in any entity that markets, promotes, sells or provides any product or service in competition with the Offerings (including the Software Products); (c) enter into any agreements with any provider to resell, redistribute, sub-license or otherwise commercialize any product or service that competes with the Offerings (including the Software Products); or (d) display on its Site or elsewhere any advertising or marketing materials of any provider of any product or service that compete with the Offerings (including the Software Products). Company shall have the continuing right to market and sell the Offerings (including the Software Products) and any other products or services to any third parties, including but not limited to current, future and potential Customers which shall include the right, title and interest in customer data and reseller data.
3.7. Company Responsibilities for the Services. Company shall provide Reseller with the Offerings for the purpose of the resale to Customers. The Offerings shall be made available by Company subject to any unavailability caused by circumstances beyond Company’s reasonable control, including any force majeure events as contemplated in Section 15.2 and any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within Company’s possession or reasonable control, and denial of service attacks. The Services may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation. Company shall attempt to notify Reseller of scheduled and unscheduled network outages that are expected to last more than four (4) hours and that may affect the Offerings. Company shall be entitled to change the Offerings during the Term.
4.1. Reseller Conduct. Reseller shall maintain marketing and customer service standards that are appropriate in order to maintain high-quality Offerings and to reflect favorably on Reseller’s and Company’s reputation. Reseller shall provide Customers with prompt, courteous, and efficient service, shall take every reasonable precaution not to disclose any Customer information, other than as permitted by any Applicable Data Protection Laws, and shall deal with Customers honestly and fairly. Reseller shall be responsible for all activities of Customers and Reseller shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Offerings and shall notify Company promptly of any such unauthorized access or use; and (ii) comply with all applicable local, state, provincial, federal and foreign laws in respect to the promotion and re- sale of the Offerings. If Reseller breaches this Section 4.1, without limiting its other remedies, Company may terminate this Terms with 10 days’ prior notice.
4.2. Customer Terms and Warranties. Each Reseller Site will include Terms of Service (Customer Terms), which are binding on Customers. Customer must have accepted Customer Terms, at or before such Customer’s purchase or use of the Offerings, on the Site(s) in a manner that is legally binding upon the Customer.
4.3. Mutual Obligations. Neither party shall by way of statement, act or omission, discredit or reflect adversely upon the reputation of or the quality of the other party or the products or services provided by the other party.
5.1. Launch of the Services with Reseller. Upon written acceptance of these Terms or execution of Company’s Reseller Agreement, the parties will co-operate and use commercially reasonable efforts to integrate the Offerings into one or more Sites, branded to Reseller by Company, with software or infrastructure to interact in order to allow them to be marketed by Reseller to Customers. Once the Offerings have been integrated with Reseller’s Site(s), the Reseller shall be in a position to obtain one or more merchant accounts for such Site(s), as described in Section 7, infra, to enable Reseller to accept Customer purchase transactions at the Site(s), with Company’s co-operation and assistance.
5.2. Support. Company shall provide basic support for the Offerings and Sites to Reseller, together with technical and customer support, marketing campaigns and strategies, maintenance and additional advisory services. Customer support shall be provided to Reseller’s Customers by Company via a unique Toll-free number and unique support email address set up and staffed by Company’s designees.
5.3. Whitelabelling. Company shall brand the Sites with Reseller-specific brand elements prior to making the Offerings available for re-sale by Reseller. The Offerings shall in all cases retain any relevant patent, copyright and/or other intellectual property notices as may be determined to be appropriate by Company. Should Reseller not have Reseller-specific brand elements, Company can develop those elements on Reseller’s behalf.
5.4. Company Protection of Customer Data. Company shall maintain commercially reasonable administrative and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Except as allowed under this Terms Company shall not: (a) modify Customer Data except to the extent required to provide the Offerings, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Reseller or the applicable Customer, or (c) access Customer Data except to provide the Offerings and prevent or address service or technical problems or in connection with Customer support matters.
6.1. Reservation of Rights and Ownership. Neither Party grants the other Party any rights or licenses not expressly set forth in this Terms. The Offerings (including without limitation any content or information contained therein) and all copies thereof are protected by copyright and other intellectual property laws and treaties. The Parties, their suppliers, vendors and providers have and will retain all rights, title and interest (including without limitation all patent rights, copyrights, trade secret rights, trademarks, service marks, related goodwill and confidential and proprietary information) in and to their respective intellectual property.
6.2. Customer and Reseller Data. Company shall have the right to use the Customer Data and Reseller Data to provide the Offerings in accordance with these Terms and Reseller shall obtain such rights from its Customers for Company. By entering into these Terms, the Parties agree and acknowledge that Customers and Users will be required to agree that Company shall acquire the right, title and interest from Reseller and any Customers under these Terms in and to Customer Data and Reseller Data, including any intellectual property rights and in compliance with applicable Data Privacy Laws therein.
7.1. Merchant and Bank Accounts. Reseller shall apply for, legally obtain and diligently maintain one or more merchant bank accounts and bank deposit account as Company deems reasonably necessary to successfully operate the Sites, including but not limited to, accept and process credit card transactions at or through the Sites, collect Customer purchase revenue, pay bank, processing and gateway fees, and effect the revenue sharing and distributions described herein. Reseller will take no action with respect to these bank accounts in conflict with the guidance, advice and goals of Company which will be communicated to Reseller by Company from time to time. At Company’s request, Reseller agrees to execute and furnish to Company all documents needed for Company to apply for and/or manage the merchant bank and DDA accounts.
7.2. Processed Payments. It is understood and agreed by the Parties that so long as any Reseller merchant account is active, and until all funds held in reserve by the merchant bank relating to such account are dispersed, all revenues processed or received by or through such account shall be exclusively utilized for Company’s Reseller program, excepting revenue sharing distributions made to Reseller or its principal as provided in these Terms.
7.3. Revenue Sharing and Distributions. The revenue sharing split between the Parties shall be set forth as a Schedule to the written acceptance of these Terms, or as a Schedule to Company’s Reseller Agreement, and is confidential in nature. Reseller’s revenue share will be calculated on a monthly basis and distributed between the 15th and 20th day of the following month via ACH or bank wire, subject to minimum thresholds.
7.4. Records and Audit. Company shall maintain adequate books and records in connection with activity under these Terms. Such records shall include, without limitation, executed sales and subscription, the information required in or related to the revenue reports and/or revenue share calculations and distributions. Reseller may request such information and may audit the relevant books and records of Company with are relevant to Reseller’s Customer’s and sales transactions. Any such audit shall be conducted during regular business hours at Company’s offices or other designated location, and shall not interfere unreasonably with Company’s business activities. If an audit reveals that Company has underpaid fees to Reseller, Company shall be invoiced for such underpaid fees. Audits shall be made no more than once annually and no more twice in any five year span.
THE OFFERINGS, ANY SUPPORT AND ALL OTHER SERVICES ARE PROVIDED HEREUNDER “AS IS”. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR OR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
9.1. If a third party makes a claim against the Reseller that: i) the Offering infringes any patent, copyright or trademark, or misappropriates any trade secret, ii) Company violates any applicable law or regulation; or (iii) any representations or warranties made by Company in respect to the Offerings or any portions thereof that cannot not be cured within a commercially reasonable period; Company shall defend, indemnify and hold harmless the Reseller and its directors, officers and employees against the claim at Company’s expense, and Company shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction against such parties or agreed to in a written settlement agreement signed by Company, to the extent arising from the claim.
9.2. Procedures. Company’s obligations in this Section 9 are subject to receiving (a) prompt written notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the Reseller, at the Company’s expense for reasonable out-of-pocket costs. The Reseller may not settle a claim without the Company’s prior written consent (not to be unreasonably withheld) if the settlement would require the indemnified Party to admit fault or take or refrain from taking any action (other than ceasing use or sale of infringing materials). Reseller can choose to participate in the defense of any claim with its own counsel at its own expense.
10.1. Definition. “Confidential Information” means information disclosed by reason of these Terms that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure or information which is marked “confidential” or “proprietary”. Company’s Confidential Information includes the terms and conditions of this Terms, the Offerings, revenue shares, any technical or performance information about the Offerings, any non-public documentation provided by Company and any new product information regarding the Offerings.
10.2. Obligations. As receiving Party, each Party will (a) hold the disclosing Party’s Confidential Information in confidence and not disclose such Confidential Information to third parties except as permitted in this Terms and (b) only use such Confidential Information to fulfill its obligations and exercise its rights in this Terms. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. The receiving Party may disclose the disclosing Party’s Confidential Information to its employees, agents, contractors, auditors, accountants, legal counsel and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 10 and they are bound to confidentiality obligations no less protective than this Section 10. Upon any termination of this Terms, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.
10.3. Exclusions. These confidentiality obligations do not apply to information that the receiving Party can document (a) is or becomes public knowledge through no fault of the receiving Party, (b) it rightfully knew or possessed prior to receiving it through these Terms, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing Party’s Confidential Information. The receiving Party may disclose the disclosing Party’s Confidential Information if required by law, subpoena or court order, provided, if permitted by law, it notifies the disclosing Party in advance.
10.4. Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
10.5. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 10.
11.1. Term. These Terms become effective on the date of their acceptance in writing by Reseller (the “Effective Date”) and continue in effect for an initial term of 12 months and will automatically renew for successive 12-month periods, unless either Party gives the other Party notice of non-renewal at least 90 days before the current term ends (the “Term”).
11.2. Termination. In additional to any other remedies, the Term may be terminated as follows: (i) if Company fails to make any payment due hereunder within sixty (60) days after receiving written notice from the Reseller that such payment is delinquent, the Reseller may terminate on written notice to Company at any time following the end of such period; (ii) if either Party breaches any material term or condition of this Terms and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching Party may terminate this Terms on written notice at any time following the end of such thirty (30) day period; (iii) if either Party becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due) or makes an assignment for the benefit of creditors, then the other Party may terminate this Terms immediately upon notice; or (iv) without cause, with a one hundred twenty (120) day written notice. Termination shall not affect Company’s right to Customer Data and Reseller Data nor Company’s right to receive or collect Reseller merchant account funds held in reserve after the effective date of termination, and Reseller shall co-operate with Company regarding receipt, transfer or recovery of such merchant reserve funds.
11.3. Consequences of Termination. Upon any expiration or termination of this Terms, Reseller will (a) cease to be an authorized reseller of Offerings, (b) immediately cease all advertising, marketing and other resale activities with respect to the Offerings and (c) cease use of the Offerings to the extent permitted under the Terms, and any Company resources provided under this Terms and destroy any and all copies of such Offerings.
11.5. Customer Contracts. Any Customer licenses or subscriptions granted prior to the termination or expiration of this Agreement will survive in accordance with the terms of the applicable Customer contract or terms of service, provided that in no event may such licenses be extended or renewed without the prior written consent of Company. The Parties agree to continue cooperating to carry out an orderly termination of their relationship.
12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS OR AFFILIATES) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS TERMS FOR ANY LOST PROFITS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Terms is found to have failed of its essential purpose.
13.1. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts of either (i) the County of the principal place of the Party bringing the action; (ii) the County of the principal place of business of the Party against whom the action was initiated; or (ii) such other court location as may be mutually agreed by the Parties, and both parties submit to the personal jurisdiction of those courts.
13.2. Injunctive Relief; Enforcement. Notwithstanding Section 13.1 (Governing Law; Jurisdiction and Venue), nothing in this Terms will prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
Company may update these Terms from time-to-time at its sole discretion by posting the updated terms to this website or a successor site, and will provide electronic notice of such change(s) to Reseller. Once electronic notice of such update is provided to Reseller, the change shall be automatically incorporated into the Agreement and shall take precedence over any conflicting phrase, condition or provision therein.
15.1. Contact Information. Except as otherwise set out in this Terms, please direct your communications concerning this Terms to sales@Company.com. Company may send you notices to your email address that is on file with Company, which you have provided when placing an Order, or through your Company account.
15.2. Force Majeure. Neither Party will be liable to the other for any delay or failure to perform any obligation under this Terms (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, pandemic or natural disaster.
15.3. Assignment. Reseller may not assign or transfer this Agreement without the prior written consent of Company. However, Company may assign this Agreement in its entirety to a related, affiliated or successor entity resulting from a merger, reorganization, acquisition or sale of all or substantially all of its assets. Company may delegate various of its rights and responsibilities under this Agreement to related or affiliated entities or to well-qualified contracting entities.
15.4. Waivers; Severability. No failure or delay by the injured Party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Waivers must be signed by the waiving Party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Terms remains in effect.
15.5. Independent Contractors. The Parties are independent contractors. Nothing herein is intended to, nor shall it be construed to, create or document a partnership, joint venture, employment relationship between the Parties.