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Effective as of 1st July 2022
1. Definitions. In addition to other terms defined in this Agreement, for purposes of this Agreement the following capitalized terms shall have the following meaning:
(a) "Customer" means a third party end-user that has purchased a license to ScreenCloud and executed an EULA.
(b) "EULA" means ScreenCloud’s then-current end-user license agreement located at: www.screencloud.com/terms.
(c) "Reseller Guide" means ScreenCloud's software reference materials provided to Reseller, as amended from time to time by ScreenCloud in ScreenCloud's sole discretion. All terms and conditions contained in the Reseller Guide are hereby incorporated in this Agreement unless otherwise stated in this Agreement. To the extent the terms or conditions of this Agreement conflict with the terms and conditions contained in the Reseller Guide, the terms and conditions of this Agreement shall supersede the terms and conditions of the Reseller Guide.
(d) "Software" means the software, hosted software subscription services and such other products and services identified on Schedule A that Reseller may purchase from ScreenCloud for resale to Customers during the Term. Reseller acknowledges that the rights granted to Reseller apply only to the Software listed in Schedule A and that ScreenCloud, and other authorized ScreenCloud resellers and distributors, may sell other ScreenCloud software and/or services not covered under this Agreement.
(e) “Territory” means the United States of America.
2. Appointment of Reseller.
(a) Resale of Software. ScreenCloud hereby grants to Reseller, during the Term, a limited non-exclusive, non-transferable, non-sublicensable right to: (i) market the Software and sell licenses and/or subscription of the Software to Customers; (ii) engage in demonstrations of the Software; (iii) provide support services to Customers; and (iv) provide training for use of the Software to Customers. The rights listed above are subject to the terms and conditions of this Agreement, the Reseller Guide and EULA. Unless otherwise permitted by ScreenCloud in writing, Reseller’s rights under this Agreement shall be limited to the Territory.
(b) Trademarks, Trade Names and Domain Names. ScreenCloud grants to Reseller during the Term, a limited and non-exclusive right and license to utilize the ScreenCloud trademark on and in connection with the sale, distribution, marketing and advertising of Software. Reseller agrees that it will not utilize the ScreenCloud trademark, or any other confusingly similar trademark, on or in connection with any other product(s) or service(s) other than the sale of the Software. Reseller shall not use the ScreenCloud trademark, or confusingly similar name, as part of Reseller’s business name. Reseller shall not register any domain name, social media account or online account that contains the ScreenCloud trademark or any other confusingly similar mark.
(c) Restrictions. Reseller shall not have any right to sublicense, assign or transfer its rights or obligations hereunder or to license or sublicense the Software to any third party. Reseller shall not have any right hereunder as a Customer or otherwise to use the Software. Reseller shall not, and shall not assist third parties that (i) modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the Software; (ii) create API’s or other interfaces with the Software; (iii) sublicense, lease, rent, or loan the Software; (iv) provide the use of the Software in any service bureau, rental or time-sharing arrangement; or (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software. ScreenCloud reserves all rights not expressly granted hereunder, including but not limited to the right to modify Software and prices, and the right to solicit sales, license and sublicense the Software.
(d) All Customers shall be required to agree to the terms and conditions contained in the EULA without modification, unless expressly agreed by ScreenCloud in writing.
3. Terms and Conditions of Sale.
(a) Prices and Terms. Reseller shall purchase licenses from ScreenCloud at the rates set forth in Schedule A and resell those licenses to Customers at rates determined by Reseller in its discretion. Reseller may bundle the Software with other products and/or services, whether offered by Reseller or third parties; provided however, that any agreement or terms and conditions pertaining to any Reseller or third party products and or services shall be set forth in a separate agreement between Reseller and such Customer and shall not modify any terms and conditions of the EULA. Reseller shall not make any express or implied representations or warranties regarding the Software that are binding on, or made on behalf of, ScreenCloud.
(b) Orders and Payment. ScreenCloud shall have the right to accept or reject any Customer in its sole discretion. For each transaction, Reseller shall submit an electronic or written order to ScreenCloud specifying customer’s contact data; company name, phone/fax/email numbers, product name/numbers and quantities, requested configuration and implementation dates and executed EULA (each an “Order”).
(c) Refunds. Refunds shall be made only if ScreenCloud is in material breach of a EULA and ScreenCloud has failed to cure such material breach in accordance with the EULA. ScreenCloud shall not be liable for, and Reseller shall indemnify ScreenCloud, for and against any claim from a Customer arising from Reseller’s material breach of this Agreement or any separate agreement entered into between a Customer and Reseller.
4. Obligations of Reseller.
(a) Sales Promotion. Reseller shall, at Reseller's own expense, use Reseller's best efforts to solicit sales of the Software. Reseller shall maintain at Reseller's own expense a business organization adequate in all respects as may be required to carry out Reseller's obligations under this Agreement, including without limitation a core of trained, qualified sales and/or pre-sales staff at levels required or approved by ScreenCloud. Reseller shall actively support ScreenCloud's marketing plan as provided by ScreenCloud from time to time.
(b) Support. Reseller shall be primarily responsible for Tier 1 support to Customers. During the term of this Agreement, ScreenCloud shall provide Tier 2 support to Reseller and may, in its discretion, offer support to Customers as requested by Reseller.
(c) Expenses. Except as otherwise explicitly stated herein, Reseller shall be responsible for all of its own expenses and overhead associated with Reseller’s operation of its business and complying with its obligations hereunder.
(d) Licenses and Approvals; Applicable Laws. Reseller shall, at Reseller's expense, obtain any licenses and governmental approvals that may be necessary to permit Reseller's activities hereunder and comply with any and all applicable laws.
(e) Sales Information. Reseller shall provide to ScreenCloud sales reports as ScreenCloud may reasonably require from time to time. To the extent permitted by applicable law, Reseller shall gather from Customers, and provide to ScreenCloud, such information regarding Reseller's Customers as ScreenCloud may request from time to time, including but not limited to Customer identities, contact persons, pricing, complaints, comments, suggestions, and sales figures. Information shall be provided through ScreenCloud's extranet or as otherwise specified by ScreenCloud from time to time.
5. Ownership. As between ScreenCloud and Reseller, Reseller acknowledges and agrees that ScreenCloud is the owner of all rights, title and interest in and to the Software and Reseller shall not, during the Term or thereafter, contest or attack ScreenCloud’s rights in, to or related to the Software, including without limitation to any patent, trade secret, copyright or trademark. Reseller herby assigns any and all rights, title and interest in and to any derivative works based on the Software, any trademarks and goodwill arising from Reseller’s use of the ScreenCloud trademark or any other trademark owned by ScreenCloud which may have been obtained by Reseller or which may have vested in Reseller through its reseller activities.
6. Term and Termination.
(a) Term. This Agreement shall commence on the Effective Date and shall terminate on the date set forth in Schedule A, unless terminated earlier pursuant to this Section 6. This Agreement shall automatically renew for subsequent one (1) year periods unless either party provides the other party with not less than sixty (60) days’ prior written notice of its intent not to renew this Agreement.
(b) Termination upon Mutual Agreement. The parties may terminate this agreement upon mutual written agreement. In the event the parties mutually agree to terminate this Agreement, Reseller shall have sixty (60) days to sell Reseller's remaining inventory of Software licenses (if any) and phase out Reseller's use of the ScreenCloud trademark.
(c) Termination for Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within fifteen (30) business days of receipt of notice from the other party. Any termination or expiration of this Agreement shall be without prejudice to any right or obligation that shall have accrued to either party prior to such termination or expiration.
(d) Insolvency. ScreenCloud may terminate this Agreement immediately if Reseller makes an assignment for the benefit of its creditors or if Reseller discontinues its business.
(e) Effect of Termination. Except as otherwise expressly permitted herein, upon termination or expiration of this Agreement:
i. Reseller shall cease all solicitation, marketing and other activities relating to the Software, shall cease to represent Reseller as an authorized reseller of ScreenCloud Software, and shall return to ScreenCloud immediately and cease all use of any Confidential Information, ScreenCloud property, ScreenCloud trademarks, sales materials and any materials which use ScreenCloud's intellectual property rights
ii. All indebtedness of Reseller to ScreenCloud, if any, shall become due and payable immediately without further notice. Any orders accepted subsequent to the date of notice of termination shall not be deemed a waiver of breach or an extension or renewal of this Agreement.
iii. Reseller shall promptly provide ScreenCloud with a list of all Customers or potential Customers who have inquired about the Software or are negotiating to license Software.
(f) Survival. The provisions of sections 1, 4, 5, 7, 8, 9 and 10, and such other provisions the performance or effectiveness of which would naturally survive the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement for any reason.
7. Representations, Warranties, Limitations of Liability and Indemnification.
(a) Warranty to Customers. ScreenCloud makes no representations or warranties to Reseller, whether express or implied. Any and all warranties regarding the Software are made directly to Customers only pursuant to the terms and conditions of the EULA.
(b) No Warranty on Behalf of ScreenCloud. Reseller shall not make any representations or warranties, express or implied, binding or purporting to bind ScreenCloud, including but not limited to any representations or warranties relating to the performance, condition, title, non-infringement, merchantability, fitness for a particular purpose, system integration, or data accuracy of any of the foregoing.
(c) Disclaimer of Warranties. SCREENCLOUD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR ANY OTHER OBLIGATION ON THE PART OF SCREENCLOUD WITH RESPECT TO ANY OF THE PRODUCTS EXCEPT THE WARRANTY OR WARRANTIES EXTENDED PURSUANT TO THIS PARAGRAPH.
(d) LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, LICENSEE AGREES THAT THE CUMULATIVE LIABILITY OF SCREENCLOUD FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR TORT ARISING FROM THIS LICENSE AGREEMENT, SHALL NOT EXCEED ANY AMOUNT PAID BY RESELLER TO SCREENCLOUD FOR THE PARTICULAR SALES OR SOFTWARE LICENSES THAT GAVE RISE TO SUCH CLAIM. EXCEPT AS OTHERWISE PROHIBITED BY APPLICABLE LAW, SCREENCLOUD, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND MANUFACTURES DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) ARISING FROM OR RELATED TO THIS AGREEMENT.
(a) Indemnification of Licensee. ScreenCloud will defend or settle, at its own expense but under its sole direction and contingent on Reseller’s total cooperation, any claim alleging that the Software, in its unmodified form, infringes any third party intellectual property rights in the United States. ScreenCloud shall not have any duty to indemnify Reseller or any Customer to the extent a claim arises from (i) modifications to the Software by Reseller, Customer or a third party without the express authorization of ScreenCloud; or (ii) the inclusion, bundling or use of other software, hardware or services not sold by ScreenCloud. If the Software becomes the subject of such a claim, ScreenCloud reserves the right, at its sole option, to either (i) modify the Software so that it becomes non-infringing or obtain for each affect Customer the right to continue to use the Software. In no event shall Reseller settle any such claim, lawsuit, or proceeding without ScreenCloud’s prior written approval, and ScreenCloud shall have no liability for any such unapproved settlement so made. This paragraph states the entire liability of ScreenCloud for any infringement involving the Software.
(b) Indemnification of ScreenCloud. Reseller, on behalf of itself, supplies, partners, agents and Customers, will indemnify and hold harmless any award of costs and damages, including attorneys' fees, brought against ScreenCloud, or any owner, officer, employee or agent of ScreenCloud, to the extent that such claim is based on (i) Reseller's breach of the terms, conditions, representations or warranties contained in this Agreement; or (ii) based on a claim arising from Reseller’s false, misleading or deceptive claims, statements, advertisements regarding ScreenCloud or the Software or their use not approved by ScreenCloud or inconsistent with ScreenCloud’s own marketing materials, product specifications and/or usage instructions; or (iii) Reseller’s trade practices. Reseller shall have the right to control the defense of all such claims, lawsuits, and other proceedings. In no event shall ScreenCloud settle any such claim, lawsuit, or proceeding without Reseller’s prior approval, and Reseller shall have no liability for any such unapproved settlement so made.
9. Confidentiality. Any information clearly marked or otherwise identified as "Confidential" relating to the products, business, marketing plans, and policies of either party, and any of ScreenCloud's suppliers, affiliates or contractors shall be deemed to be confidential, proprietary and the exclusive property of ScreenCloud. During and after the Term of this Agreement, neither party shall use the confidential and proprietary information of the other party for any purpose other than in furtherance of each party's duties and responsibilities hereunder; and neither party shall disclose such information to any third party without the prior, written consent of the owner of such confidential and proprietary information. Each party agrees to return or destroy all such confidential and proprietary information upon the expiration or earlier termination of this Agreement. This provision shall survive the expiration or earlier termination of this Agreement.
(a) Relationship of the Parties. ScreenCloud and Reseller acknowledge and agree that Reseller is an independent contractor. ScreenCloud shall not be responsible for any payment of compensation to Reseller’s employees, self-employment taxes and withholdings, payroll deduction and withholdings, employer's taxes and workers compensation insurance. Nothing in this Agreement shall be interpreted to create any employee/employer relationship of partnership or agency relationship between the parties. Reseller shall not have any authority to represent or bind ScreenCloud in any contract with any third party, or transact business in ScreenCloud's name or on ScreenCloud's behalf, or make any promises, representations or warranties on behalf of ScreenCloud.
(b) Entire Agreement. This Agreement, including any schedules and exhibits hereto, represents the entire Agreement between the parties on the subject matter hereof and supersedes all prior discussions, agreements, and understandings of every kind and nature between them. No modification of this Agreement will be effective unless in writing and signed by both parties.
(c) Notices. Notices or any other communications in connection with this Agreement shall be in writing and shall be delivered in person by Federal Express or other internationally recognized courier firm, or by registered or certified mail, return receipt requested, or by electronic mail, addressed to the address or e-mail address for notice set forth above. Notices shall be deemed delivered and shall be effective when received if delivered in person or by courier, or when posted if by registered or certified mail, or when sent, if by e-mail.
(d) Assignment. This Agreement shall be binding on and inure to the benefit of the parties and their respective permitted assigns. ScreenCloud may assign this Agreement to any of its successors or assigns. Except as otherwise expressly permitted herein, Reseller shall not sell, assign, delegate or transfer, by operation of law or otherwise, any of Reseller's rights or obligations hereunder without the prior written consent of ScreenCloud. For purposes of this Agreement, a transfer of voting control of Reseller or of any controlling parent entity of Reseller, whether in a single transaction or a series of related transactions, shall constitute an assignment of Reseller's rights or obligations hereunder.
(e) Governing Law. This Agreement shall be governed by the laws of the State of California, without any reference to any rule or provision thereof which would cause the application of the law of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this Agreement or sales or licenses hereunder.
(f) Waiver. Reseller agrees that Reseller's failure at any time to require performance by ScreenCloud of any provisions herein or ScreenCloud's failure to provide notice to Reseller of Reseller's breach or violation of any provision shall not operate as a waiver by ScreenCloud to request strict performance of the same or like provisions, or any other provisions hereof at a later time, operate as a waiver of Reseller's ongoing breach of any provisions of this Agreement, or operate to foreclose ScreenCloud from terminating the Agreement due to the breach or violation in the future.
(g) Severability. If any portion of this Agreement shall be found to be invalid or unenforceable for any reason, the remaining portions of this Agreement shall be severable and shall remain in full force and effect.
(h) Specific Performance. In the event of a controversy concerning the parties’ rights or obligations under this Agreement, such rights or obligations shall be enforceable by a decree of specific performance or other injunctive relief. Such remedy shall be cumulative and nonexclusive.
(i) Counterparts. This Agreement may be executed in counterparts, and together such counterparts shall constitute a single agreement.