Muvi Reseller Agreement

This Reseller Agreement (“Agreement”) is between Muvi LLC, a Delaware limited liability company (“Muvi”), and you (“you” or “Applicant”) in the application to become a reseller of Muvi Services, as described below. Muvi is the owner and operator of Muvi, a unique media platform and service that allows it’s customers to create a fully managed, end-to-end media solution for immediate distribution to their end-users. Muvi and Reseller are both in the business of marketing and selling certain complementary but different services to in the on-demand media industry. Reseller desires to broaden its scope of services to its customers (“Reseller’s Customers”) by entering into an agreement with Muvi whereby Reseller will be appointed as a non-exclusive reseller to market, and resell certain of Muvi’s services within the territory described in the above Application.

By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an application form that references this Agreement, Reseller agrees to the terms of the Agreement. Upon Muvi’s receipt of Applicant’s acceptance of the Agreement, this Agreement will become effective and binding on the parties on the date Muvi accepts Applicant in writing as a reseller of its services (“Effective Date”). This Agreement includes and incorporates the above Application, as well as the Referral Terms and Conditions (available at [INSERT URL]) and contains, among other things, a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions, warranty disclaimers, liability limitations and use limitations.

RESELLER TERMS AND CONDITIONS

  1. Appointment; Territory; Limitations; Relationship of Parties.
    1. Appointment. Subject to all of the terms and conditions in this Agreement, Muvi appoints Reseller to act, during the term of this Agreement, as a non-exclusive reseller authorized to market, resell and support Muvi’s services more fully described at https://www.muvi.com/pricing.html (the “Muvi Services”) directly to customers of Reseller (“Reseller’s Customers”) solely in connection with services of Reseller related to providing on-demand media, and Reseller accepts such appointment.
    2. Territory. Reseller shall market, resell and support Muvi Services to Reseller’s Customers whose principal place of business is located in the geographical or political areas specifically described in the Application that incorporates these Terms and Conditions (the “Territory”).
    3. No Restrictions on a Party’s Activities. Each party acknowledges that this Agreement is nonexclusive and, except as expressly set forth herein, nothing in this Agreement shall limit in any manner any party’s marketing, distribution or sales activities or its rights to market, distribute or sell, directly or indirectly, or appoint any other person or Muvi as a dealer, distributor, reseller, licensee or agent for its services, within or outside the Territory.
    4. Freedom of Action; Certain Restrictions. Each party may directly or indirectly (through resellers or otherwise) market, sell, offer or provide any of its respective products or services to any customer within or without the Territory and during or after the Term.
    5. Program Managers. Each party shall designate a program manager (“Program Manager”) who shall supervise the party’s activities hereunder including, with respect to Muvi’s Program Manager, sales training, support and resource allocation; and, with respect to the Reseller’s Program Manager, quality control. A party may change its Program Manager upon notice to the other party’s Program Manager. The Muvi Program Manager and the Reseller Program Manager shall each serve as the principal point of contact for the other party for the resolution of any issues or problems that may arise hereunder. The services of each party’s respective Program Manager shall be at no charge to the other party. Reseller’s initial Program Manager is the individual so designated in the Application that incorporates these Terms and Conditions. If reasonably requested by a party, the other party agrees to designate additional contact persons in key technical, service and support areas.
  1. License Grant; Restrictions; Customer Agreements.
    1. License Grant. Subject to all terms and conditions of this Agreement, Muvi grants to Reseller during the Term the non-exclusive, nontransferable right and license to enter into contracts with Reseller’s Customers in the Territory to provide Muvi Services together with all related software (the “Software”) and other intellectual property, and documentation (the “Documentation”) that are necessary or appropriate to enable Reseller to provide Muvi Services (the Software and such other intellectual property and the Documentation are collectively sometimes referred to as “Intellectual Property”) and to use the Intellectual Property for purposes of demonstrating the Muvi Services and providing support services to prospective customers and Reseller’s Customers as contemplated under this Agreement.
    2. License Restrictions. Reseller shall not appoint any other person, firm, or entity as a sub-distributor or agent for Muvi Services. Reseller shall not, for itself, for any affiliate of Reseller or for any third party: sell, sublicense, assign, or transfer the Software or any Documentation, except as permitted under this Agreement; decompile, disassemble, or reverse engineer the Software, except to the limited extent permitted by mandatory national law not capable of being waived; copy the Software or Documentation, except as expressly permitted hereunder or to the limited extent permitted by mandatory national law not capable of being waived; or remove from the Software or Documentation any language or designation indicating the confidential nature thereof or the proprietary rights of Muvi or its suppliers in such items.
    3. Customer Terms and Conditions; Right of Muvi to Restrict Content. All resales of Muvi Services by Reseller will be subject to the execution and delivery by each of Reseller’s Customer of a written, binding agreement that contains, at a minimum, the terms and conditions set forth in the Subscriber Terms of Service and that does not contain any terms or conditions inconsistent with this Agreement (the “Customer Agreement”). Prior to entering into any agreement for Muvi Services with any proposed customer, Reseller shall notify Muvi of the identity of such proposed customer and shall not enter into any agreement for Muvi Services with any proposed customer that Muvi notifies Reseller it disapproves pursuant to the provisions of this paragraph. Muvi shall notify Reseller of its approval of a prospective customer within five (5) business days after receiving Reseller’s request for approval and shall exercise its approval rights reasonably. If Muvi fails to notify Reseller of its approval or disapproval within such five (5) business day period, Muvi shall be deemed to have approved such customer. Notwithstanding any approval of a prospective customer, if Muvi subsequently becomes aware that the content of any of Reseller’s Customers is illegal it shall notify Reseller thereof and unless the illegal content is removed within seven (7) business days after such notice, Muvi may take steps to prevent such illegal content from being routed to, passed through or stored on or within Muvi’s network. Muvi shall promptly notify Reseller and the applicable Reseller’s Customer of such removal of any of Reseller’s Customer content pursuant to the foregoing provisions.
  1. Marketing Efforts; Promotional Materials.
    1. Co-Branded Service. Reseller agrees that the Muvi Services to be marketed, resold and supported by Reseller pursuant to the terms of this Agreement shall be co-branded in accordance with Muvi’s portal Trademark Usage Guidelinesin effect on the date of this Agreement, a copy of which is attached to this Agreement as Exhibit 3(a) (the “Guidelines”). Muvi may revise the Guidelines on at least sixty (60) days prior written notice to Reseller; provided, however, any change in the Guidelines which affects the size, placement, or appearance of Reseller’s marks shall require Reseller’s prior written approval before such change may be put into effect. Reseller will not unreasonably withhold or delay its said approval. The form or forms of logo or tagline used by Reseller to represent the co-branded service offering shall be subject to Muvi’s prior approval.
    2. Reseller’s Efforts.Reseller shall use commercially reasonable efforts to:
      1. aggressively market, resell and support Muvi Services to prospective customers in the Territory;
      2. dedicate adequate resources, financial and otherwise, and maintain facilities and staff, to market, resell and support Muvi Services in accordance with Reseller’s obligations under this Agreement, in a timely, diligent and professional manner using competent personnel;
      3. keep Muvi informed as to any problems encountered by Reseller’s Customers or by Reseller with the Muvi Services or any Intellectual Property, and communicate to Muvi any resolution or proposed resolutions relating to such problems;
      4. maintain accurate records of all Reseller’s Customers including their names and addresses, the date Muvi Services were initially provided to Reseller’s Customers, and the Customer Agreements therefor;
      5. maintain accurate records of all support services provided to Reseller’s Customers; and
      6. provide to Muvi and maintain and update as necessary emergency contact information for each of Reseller’s Customer.

      All information concerning Reseller’s Customers shall be deemed Confidential Information of Reseller in accordance with the provisions of Section 8 of this Agreement.

    3. Promotional Materials; Marketing. Muvi will provide Reseller with a reasonable amount of sales and marketing literature relating to the Muvi Services. The exact form and quantity of such literature will be determined at Muvi’s discretion. Reseller shall adhere to Muvi’s Guidelines, and Reseller shall not make any representations or statements regarding Muvi Services other than those contained in the sales and marketing literature and promotional materials provided to Reseller by Muvi, without the prior written approval of Muvi. Upon reasonable advance notice from Muvi, Reseller shall discontinue use of any marketing literature or promotional materials that Muvi no longer deems acceptable.
    4. Quality Control. Each party acknowledges the importance of upholding the good reputation of the other party and its respective products and services. Accordingly, each party agrees that it will maintain at all times during the Term the highest quality controls, business practices and ethics in performing its obligations and exercising its rights under this Agreement and will comply with all applicable laws and regulations.
    5. Publicity. On or about the Effective Date, the Reseller agrees, at the option of Muvi, to issue a joint press release announcing the relationship contemplated by this Agreement. The press release shall be subject to the approval of each party, which approval shall not be unreasonably withheld or delayed. During the term of this Agreement, subject to the restrictions contained in Section 5 below, each party may post on its web site the other party’s logo and/or a hyperlink to the other party’s web site, to use the other party’s name in connection with proposals to other prospective customers and otherwise refer to the other party and the co-branded service offering contemplated hereby in print or electronic form for marketing or reference purposes.
    6. Customers. During the Term, Reseller shall be solely responsible for billing Reseller’s Customers for their use of Muvi Services based on monthly data that is furnished by Muvi pursuant to this Agreement. During the Term, Muvi will provide Reseller with monthly data sorted by a code that is assigned to each Reseller’s Customer in a file format mutually agreed upon to reasonably enable Reseller to bill its Customers separately. Subject to Muvi obtaining specific advance written consent from Reseller’s Customers, Muvi shall be entitled to reference Reseller’s Customers on Muvi’s web site and in marketing materials as a Muvi Services customer. All data pertaining to any of Reseller’s Customers shall be deemed Confidential Information in accordance with the provisions of Section 8 of this Agreement. In addition, no party shall use any data pertaining to any of Reseller’s Customers in a manner that is inconsistent with Muvi’s published privacy policy, the applicable Customer Agreement, or applicable legal requirements.
  1. Reseller Personnel Training; Customer Support
    1. Training. Muvi shall provide to Reseller’s sales and technical personnel, at Muvi’s training facility or, if Muvi elects, at Reseller’s facilities:
      1. a reasonably sufficient number of training sessions and source training material to reasonably enable Reseller’s sales and support staff to become knowledgeable about the capabilities and operation of, and support for, the Intellectual Property and Muvi Services, such training to include, at Reseller’s request, a reasonable number of joint Muvi/Reseller on-site calls, and
      2. technical consulting services and training to reasonably ensure that Reseller has the internal capability to, among other things, provide the necessary services to Reseller’s Customers to perform its obligations under Customer Agreements, invoice Customers for Muvi Services, and provide the support for Muvi Services to Reseller’s Customers as contemplated in this Agreement.

      Each party shall be responsible for the travel, lodging and meal expenses of its employees who attend any training session. At the conclusion of such training, Muvi will formally certify the technical capability of each trainee who is qualified to represent the Muvi Services. Upon receiving certification from Muvi, Reseller may offer professional Software integration services to Customers, and Reseller will be permitted to charge its Customers for such professional integration services at any rate in its discretion and retain all revenue generated therefrom without further compensation to Muvi. Reseller will ensure that any of its personnel who provide support or integration services shall have received training and shall be and remain knowledgeable about the Muvi Services and Software.

    2. Customer Support. Muvi shall provide technical support directly to any of Reseller’s Customer in accordance with Muvi’s standard technical support terms and conditions. Each party shall timely provide its support obligations under this Agreement using knowledgeable, appropriately trained and competent personnel.
  1. Content Responsibility; Intellectual Property Rights.
    1. Customer Content. In the event Reseller becomes aware that any content of any of Reseller’s Customers that uses the Muvi Services (the “Customer Content”)
      1. violates or infringes upon the intellectual property or other rights of any third party,
      2. contains any libelous, defamatory, pornographic or obscene material, or
      3. violates any laws or regulations applicable to such Customer Content, Reseller shall notify the applicable customer and request that such customer remove such Customer Content so that it will not be routed to and not pass through Muvi’s network.

      If such customer fails to comply with Reseller’s request within a reasonable time, Reseller shall notify Muvi of the problem and Muvi may exercise the rights contained in the applicable Customer Agreement to so remove such Customer Content. Reseller’s Customers shall be solely responsible for maintaining the availability of the Customer computer and network systems, the connectivity of such computers and network systems to the Internet, and all Customer Content, IP addresses, domain names, hyperlinks, databases, applications and other resources as necessary for Reseller’s Customer to access the Muvi Services.

    2. Intellectual Property and Muvi Services. As between Muvi and Reseller or any Customer of Reseller, Muvi shall own all right, title and interest in and to the Intellectual Property and Muvi Services. Reseller acknowledges that the Software, Documentation, and Muvi Services includes proprietary information and trade secrets which are the sole and exclusive property of Muvi or its licensors and that the Software, Documentation and Muvi Services are or may be protected by patent, copyright, trade secret and/or similar laws and certain international treaty provisions. The following shall not, however, be considered to be proprietary information and trade secrets belonging to Muvi:
      1. information which is publicly known or which becomes publicly known through no fault of Reseller;
      2. information which is lawfully obtained by Reseller from a third party; and
      3. information which is the lawful possession of Reseller prior to such information having been initially disclosed by Muvi pursuant to this Agreement.

      This Agreement does not transfer or convey to Reseller or any of Reseller’s Customer or any third party any right, title or interest in or to the Intellectual Property Muvi Services or any associated intellectual property rights, but only a limited right of use revocable in accordance with the terms of this Agreement and any Customer Agreement.

    3. Marks; Usage Restrictions. Either party’s use, display or reference to the other party’s proprietary indicia, trademarks, service marks, trade names, logos, symbols and/or brand names (collectively “Marks”) shall be subject to the advance written approval of that party and compliance with the Guidelines, which approval shall not be unreasonably withheld. Neither party may remove, destroy or alter the other party’s Marks. Each party agrees that it shall not challenge or assist others to challenge the rights of the other party or its suppliers or licensors in the Marks or the registration of the Marks, or attempt to register any trademarks, service marks, trade names, logos, symbols, brand names or other proprietary indicia confusingly similar to the Marks. All use of a party’s Marks, including but not limited to use of any co-branded logo comprised of each party’s Marks, shall be subject to such party’s logo and trademark usage guide, as provided to the other party and as the same may be updated from time to time. Neither party grants any rights in the Marks or in any other trademark, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of the parties.
  1. Prices & Payment Terms.
    1. Discount Eligibility. Reseller is eligible to receive a fifteen percent (15%) discount on Muvi’s advertised subscription fees upon reselling the Muvi Service to three (3) or more of Reseller’s Customers (“Reseller Price”).
    2. Prices. Muvi will make the service available to Reseller for provision to Reseller’s Customers pursuant to the Subscriber Terms of Service,an applicable Order Form, and payment of the fees stated therein. Current pricing can always be found at https://www.muvi.com/pricing. Upon reselling the Muvi Service to three (3) or more of Reseller’s Customers at the fees in effect on the date an Order Form for the Muvi Services is executed, Reseller will become eligible to receive a fifteen percent (15%) discount on Muvi’s then-advertised fees. Reseller is entitled to resell Muvi Services to Customers at a price determined by Reseller in its sole discretion.
    3. Payment Terms; Taxes. All prices are in United States dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any jurisdiction. Reseller will be invoiced by Muvi monthly. Amounts due hereunder are payable within thirty (30) days after Reseller’s receipt of invoice. Each party shall be responsible for the payment of all taxes, withholdings, duties, fees and other governmental charges of any kind (including sales and use taxes) which are imposed by or under the authority of any government or any political subdivision thereof on the revenues it receives under this Agreement. Notwithstanding the foregoing, if any governmental authority hereafter during the Term of this Agreement imposes a tax on Muvi on sales of Muvi Services to customers of Reseller, Reseller will collect the amount of such taxes to the extent permissible under applicable law from its customers upon whose purchases of Muvi Services gave rise to such taxes and remit the amount so collected to Muvi. Muvi shall pay the amounts for taxes remitted to it to the applicable taxing authority and shall hold Reseller and the applicable customers harmless against the further payment of such taxes.
    4. Accurate Records; Right to Audit. Muvi shall maintain complete and accurate records for two years from the date on which they relate to support and document the fees charged to Reseller in connection with this Agreement. Reseller shall maintain complete and accurate records as required hereunder, and shall provide to Muvi upon request copies of all executed Customer Agreements. All Customer Agreements shall be considered Reseller’s Confidential Information in accordance with the provisions of Section 8 of this Agreement. During the Term and for two years after expiration or termination of this Agreement, each party shall, upon written request from the other, provide access to such records during regular business hours at the party’s convenience, to an independent auditor(s) chosen by the other party for the purposes of audit. Each party’s right to conduct such audits shall be reasonable as to duration and frequency. All information derived as a result of such audits shall also be considered such Confidential Information.
  1. Representations and Warranties.
    1. Muvi’s Representations and Warranties. Muvi represents and warrants that:
      1. Muvi and its licensors now and will throughout the Term, own or possess the necessary rights, title and licenses in and to the Intellectual Property and to operate the Muvi Services,
      2. Muvi has and will have throughout the Term the right to enter into this Agreement and to perform its obligations hereunder,
      3. Muvi has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations hereunder,
      4. the Intellectual Property and the Muvi Services do not and will not throughout the Term violate or infringe upon the intellectual property or other legal rights of anyone,
      5. the operation of the Muvi Services is and will be throughout the term in compliance with all applicable, material laws, rules and regulations of all relevant governmental authorities, and
      6. the Muvi Services will be operated throughout the Term substantially in conformity with its specifications.
    2. Reseller’s Representations and Warranties. Reseller represents and warrants that:
      1. Reseller has and will have throughout the Term the right to enter into this Agreement and to perform its obligations hereunder, and
      2. Reseller has obtained any and all consents, approvals and other authorizations necessary for the performance of its obligations hereunder.
    3. Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 7, BOTH PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NEITHER PARTY SHALL MAKE ANY REPRESENTATIONS OR WARRANTIES ON THE OTHER’S BEHALF WITHOUT SUCH OTHER PARTY’S EXPRESS WRITTEN CONSENT.
  1. Confidential Information.In the course of performing under this Agreement, each party may receive, be exposed to, or acquire information of the other party that by its nature is inherently recognizable as confidential and proprietary or is marked as such (“Confidential Information”). Each party shall protect the Confidential Information of the other party by using at least the same degree of care it uses to protect its own Confidential Information of similar importance or sensitivity, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or application of such Confidential Information. Neither party shall, except with the written consent of the other party, disclose the Confidential Information of the other party, or use it, except to its employees, contractors, and agents who have a need to know for purposes of this Agreement. Each party shall cause its employees, contractors, and agents receiving the other party’s Confidential Information to execute written nondisclosure agreements which provide the same or greater protection for such information as this Section provides. Despite anything to the contrary herein, each party shall be free to use, for its own business purposes, any ideas, suggestions, concepts, know how. or techniques contained in information received from the other party that directly relates to its own services. For example, each party shall be free to incorporate any suggested changes or modifications into services provided to other clients. Neither party’s receipt of Confidential Information under this Agreement shall create any obligation that in any way limits or restricts the assignment or reassignment of its employees or agents to different positions.The prohibitions contained in this Section shall not apply to information that is:
    1. available to the public other than by a breach of this Agreement;
    2. rightfully received from a third party not in breach of an obligation of confidentiality;
    3. independently developed by the receiving party without access to Confidential Information;
    4. known to the receiving party prior to the time of disclosure; or
    5. produced in compliance with applicable law or a court order, provided the disclosing party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.

    Subject to the above, the receiving party agrees to cease using any and all materials embodying Confidential Information, and to promptly return such materials to the disclosing party upon request.

  1. Term and Termination. Term; Initial Term; Renewals
    1. Term. This Agreement shall become effective as of the Effective Date and remain in full force and effect for one (1) year (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for one or more additional terms of one year (each, a “Renewal Term”) unless and until either party notifies the other party in writing of its intent to terminate at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. The Initial Term, together with any and all Renewal Terms, is sometimes collectively referred to as the “Term.”
    2. Termination Upon Default. Either party may terminate this Agreement in the event that the other party materially breaches or defaults in performing any obligation under this Agreement and such breach or default continues unremedied for a period of thirty (30) days following written notice of default.
    3. Termination Upon Insolvency. This Agreement shall terminate, effective upon delivery of written notice by a party:
      1. upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party;
      2. upon the making of a general assignment for the benefit of creditors by the other party; or
      3. upon the dissolution of the other party.
    4. Effect of Termination. The provisions of this Agreement intended to survive termination shall survive, including but not limited to Sections 5, 6, 7, 8, 9, 10, and 11. All other rights and obligations of the parties shall cease upon termination of this Agreement. The term of any license or rights granted hereunder shall expire upon expiration or termination of this Agreement.
  1. Dispute Resolution
    The parties agree to negotiate in good faith to resolve any dispute between them regarding this Agreement. If the negotiations do not resolve the dispute to the reasonable satisfaction of parties, then each party’s CEO or a representative designated by the CEO (“Representatives”) shall, within thirty (30) days of a written request by either party to call such a meeting, meet either in person or through any other media and alone (except for one assistant for each party) and shall attempt in good faith to resolve the dispute. If such representatives in such meeting cannot resolve the dispute(s), the parties agree that they shall, if requested in writing by either party, meet within thirty (30) days after such written notification for one day with an impartial mediator and consider dispute resolution alternatives other than litigation. The mediation will be treated as a settlement discussion and therefore will be confidential and may not be used in a later evidentiary proceeding. The mediator may not testify for either party in any later proceeding relating to the dispute. No recording or transcript shall be made of the mediation proceedings. Each party will bear its own costs in the mediation. The parties will share the fees and expenses of the mediator equally. If an alternative method of dispute resolution is not agreed upon within thirty (30) days after the one-day mediation, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York, New York and in the English language by a single arbitrator, unless the parties agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Either party may sue the other in a small claims court in New York, New York without first engaging in arbitration, but this does not absolve that party of its commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, Intellectual Property Rights or other proprietary rights.BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
  1. General Indemnification
    1. Limited Covenant to Defend Infringement Claims by Third Parties. Each party (the “Indemnitor”), at its own expense and subject to the terms and conditions of this Section 11, will
      1. defend claims brought against the other party, its permitted assignees and licensees, agents, officers and employees (the “Indemnitee”) by third parties (other than affiliates of the Indemnitee) that, if true, would constitute a breach by the Indemnitor of its representations and warranties set forth in this Agreement, and
      2. will indemnify and hold the Indemnitee harmless from and against any damages to real or tangible personal property and/or bodily injury to persons, including death, resulting from the negligence or willful misconduct of the employees or agents of the Indemnitor.
    2. Intellectual Property. Muvi shall defend, indemnify and hold harmless Reseller from and against any suit, proceeding, or assertion by a third party against Reseller or its affiliates, licensors, suppliers, officers, directors, employees and agents based upon a claim that any of the Software infringes any valid patent, copyright, trade secret, or other intellectual property right under the laws of the United States, provided that:
      1. Reseller promptly notifies Muvi, in writing, of the suit, claim or proceeding or a threat of suit, claim or proceeding;
      2. at Muvi’s reasonable request and expense, Reseller provides Muvi with reasonable assistance for the defense of the suit, claim or proceeding; and
      3. Muvi has sole control of the defense of any claim and all negotiations for settlement or compromise, except that Muvi shall not settle or compromise any claim without the prior written consent of Reseller, which consent shall not be unreasonably withheld or delayed.
      1. Right to Replace, etc. If a claim of infringement under this Section occurs, or if Muvi determines that a claim is likely to occur, Muvi will have the right, in its sole discretion, to either:
        1. procure for Reseller and its Customers the right or license to continue to use the Software free of the infringement claim; or
        2. replace or modify the Software to make it non-infringing provided that the replacement software substantially conforms to Muvi’s then-current specification for the Software. If these remedies are not reasonably available to Muvi, Muvi may, at its option, terminate this Agreement without liability, other than liability that may arise under Section 13(b), and Muvi shall return any fees paid by Reseller in respect of Muvi Services not provided.
      2. Limitations. Despite the provisions of this Section 13, Muvi has no obligation with respect to any claim of infringement that is based upon or arises out of:
        1. any modification to the Software if the modification was not made by or at the written direction of Muvi; or
        2. the use or combination of the Software with any hardware, software, products, data or other materials not specified or provided by Muvi; or
        3. Reseller’s or any Customer’s use of the Muvi Services other than in accordance with the Software documentation or Muvi’s written directions or policies.
    3. Conditions for Defense. To be entitled to defense by the Indemnitor against a third-party infringement claim:
      1. Indemnitee shall advise Indemnitor of the claim as contemplated by Section (d); and
      2. Indemnitor shall have the sole right to control the defense or settlement of the claim, in litigation or otherwise, provided that Indemnitor will not enter into a settlement on behalf of Indemnitee without Indemnitee’s prior written approval, such approval not to be unreasonably withheld.
    4. Expenses and Monetary Awards. If a third-party claim, of which Indemnitor was notified and which Indemnitor has a duty to defend in accordance with this Section 11, is brought, and if such claim is sustained in a final judgment from which no further appeal is taken or possible, then Indemnitor will pay or otherwise satisfy any monetary award entered against Indemnitee as part of such final judgment to the extent such award is adjudged in such final judgment to arise from such infringement, without regard to limitation of liability set forth in Section 12.
    5. Notices. An indemnitee seeking to be defgoverningended against a claim under this Section 11, shall notify the Indemnitor within thirty (30) days of the assertion of any claim(s) or discovery of any fact upon which the Indemnitee intends to base a claim for defense or indemnification. The Indemnitee’s failure to so notify the Indemnitor will not relieve the Indemnitor from any. liability under this Agreement to the Indemnitee with respect to defense or indemnity with respect to such claim(s), except to the extent the Indemnitor demonstrates that the defense of such claim was prejudiced by the failure to so notify.
    6. Counsel. If the Indemnitor defends the Indemnitee in a lawsuit, arbitration, negotiation, or other proceeding concerning a claim pursuant to this Section 11, then the Indemnitee may engage separate counsel, at the indemnitee’s expense, to monitor and advise the Indemnitee about the status and progress of the matter.
    7. Exceptions to Duties to Defend and Indemnify. Except as may be otherwise expressly provided in this Agreement, neither party will be required to defend or indemnify the other party with respect to losses, damages or expenses finally adjudged to have been caused by the indemnified party’s own negligence or willful misconduct.
  1. Limitation of Liability and Damages; Insurance.
    1. Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS AND A BREACH OF THE PROVISIONS OF THIS AGREEMENT RELATING TO CONFIDENTIAL INFORMATION AND TRADE SECRETS, EACH PARTY AGREES THAT IN NO EVENT WILL THE OTHER PARTY OR ITS SUPPLIERS OR LICENSORS BE LIABLE, UNDER ANY THEORY OF LIABILITY, HOWEVER ARISING; FOR ANY COSTS OF COVER OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS PROFITS, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY.
    2. Limitation of Damages. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS AND A BREACH OF THE PROVISIONS OF THIS AGREEMENT RELATING TO CONFIDENTIAL INFORMATION AND TRADE SECRETS, IF THERE SHALL BE ANY LIABILITY OF ONE PARTY TO THE OTHER THAT ARISES OUT OF OR IS IN ANY WAY CONNECTED TO THIS AGREEMENT, EACH PARTY’S AGGREGATE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, SHALL NOT EXCEED [THE FOLLOWING IS SUBJECT TO FURTHER NEGOTIATIONS: THE TOTAL AMOUNTS PAID BY THE CLAIMING PARTY TO THE LIABLE PARTY DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DAY THAT THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE CLAIM.] EACH PARTY ACKNOWLEDGES THAT THE OTHER IS NOT AN INSURER; THAT THE PAYMENTS MADE BY HEREUNDER ARE BASED SOLELY ON THE VALUE OF THE SERVICES AND ARE NOT SUFFICIENT TO WARRANT ASSUMING ANY RISK OF CONSEQUENTIAL OR OTHER DAMAGES DUE TO NEGLIGENCE OR FAILURE TO PERFORM. DUE TO THE NATURE OF THE SERVICES TO BE PERFORMED, IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES, IF ANY, WHICH MAY RESULT (PROXIMATELY OR OTHERWISE) FROM NEGLIGENCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY REFLECTS AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FEES CHARGED, IS NOT A PENALTY, AND SHALL BE EXCLUSIVE. THE LIMITATIONS IN THIS AGREEMENT SHALL APPLY DESPITE ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY.
    3. Insurance. EACH PARTY AGREES TO MAINTAIN IN EFFECT DURING THE TERM, AT SUCH PARTY’S EXPENSE, COMPREHENSIVE PROPERTY, CASUALTY AND GENERAL LIABILITY INSURANCE OF THE TYPES AND AMOUNTS, AND COVERING SUCH RISKS AS ARE REASONABLE AND CUSTOMARY FOR BUSINESSES ENGAGED IN A SIMILAR BUSINESS AND COVERING PROPERTIES SIMILAR TO THE PROPERTIES OWNED, LEASED OR OPERATED BY SUCH PARTY. IN ADDITION, EACH PARTY SHALL MAINTAIN IN EFFECT DURING THE TERM AN ERRORS AND OMISSIONS POLICY INSURING AGAINST ITS ERRORS AND OMISSIONS IN THE PERFORMANCE OF ITS SERVICES CONTEMPLATED UNDER THIS AGREEMENT WITH COVERAGE OF AT LEAST FIVE MILLION DOLLARS AS TO A SINGLE CLAIM AND FIVE MILLION DOLLARS AS TO ALL CLAIMS IN THE AGGREGATE. SUCH INSURANCE COVERAGE WILL BE OBTAINED FROM REPUTABLE INSURANCE COMPANIES OR ASSOCIATIONS. UPON THE REQUEST OF A PARTY, THE OTHER PARTY SHALL PROVIDE VALID CERTIFICATES OF INSURANCE.
  1. Miscellaneous.
      1. Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder.
      2. Notices. Any notice required or permitted hereunder shall be in writing (email acceptable) and shall be delivered as follows (with notice deemed given as indicated):
        1. by personal delivery when delivered personally;
        2. by established overnight courier upon written verification of receipt;
        3. by facsimile transmission when receipt is confirmed orally;
        4. by email upon sending or
        5. by certified mail, return receipt requested, upon verification of receipt.

        All notices must be sent to the following addresses:

    Muvi Notice Address:
    103 Patroon Dr, Suite 8, Guilderland, NY 12084
    For legal notices, provide copies to:
    Muvi LLC – Legal Department;
    legal@muvi.com
    Your Notice Address:
    Notices to Referral will be sent by email to the email address listed on Referral’s Application to the Program.

    Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.

    1. Assignment. Neither party may, without the prior written consent of the other party, assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void. Any change of control in the ownership of either party shall not be deemed an assignment subject to the prohibitions of this Section.
    2. Third Party Beneficiaries This Agreement is solely for the benefit of the parties and their successors and permitted assigns, and, except as expressly provided herein or in any schedule hereto, does not confer any rights or remedies on any other person or entity.
    3. Governing Law. The parties agree that the Muvi Services shall be deemed solely based in New York; and (ii) the Muvi Services shall be deemed a passive one that does not give rise to personal jurisdiction over Muvi, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Dispute Resolution provision in Section 10, including any provisional relief required to prevent irreparable harm. Reseller agrees that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision contained in Section 10 is found to be unenforceable.
    4. Entire Agreement and Waiver. This Agreement, including the Application and any Exhibits attached hereto shall constitute the entire agreement between Muvi and Reseller with respect to the subject matter hereof and all prior agreements, representations, and statement with respect to such subject matter are superseded hereby, including without limitation any non-disclosure agreement previously executed between the parties. The terms of this Agreement shall control in the event of any inconsistency with the terms of any Exhibit hereto. This Agreement may be changed only by written agreement signed by bothMuvi and Reseller. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.
    5. Severability. In the event any provision of this Agreement is held by a court of other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a suitable replacement provision.
    6. No Agency. Muvi and Reseller each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to:
      1. give either party the power to direct or control the day-to-day activities of the other; .
      2. deem the parties to be acting as partners, joint ventures, co-owners or otherwise as participants in a joint undertaking; or
      3. permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf or for the account of the other party for any purpose whatsoever.
    7. Non-Disclosure of Agreement Terms. Neither party shall disclose to third parties, other than its agents and representatives on a need-to-know basis, the terms of this Agreement or any Schedule hereto without the prior written consent of the other party, except either party shall be entitled to disclose
      1. such terms to the extent required by law, and
      2. the existence of this Agreement.
    8. Force Majeure. If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, vandals, or hackers (a “force majeure event”) the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided however, that if a party suffering a force majeure event is unable to cure that event within 30 days, the other party may terminate this Agreement.
    9. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, and all of which shall constitute one and the same Agreement.
    10. Remedies. Except as provided herein, the rights and remedies of each party set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.
    11. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors and permitted assigns.
    12. Amendments. Amendments to this Agreement, including amendments to any Exhibits, shall be effective only if they are in writing and signed by both parties.

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