Data Reseller Terms & Conditions
These Data Reseller Terms & Conditions (the “Agreement”) apply to the below-described business arrangement between DAIS TECHNOLOGY, INC., a Delaware corporation (“DAIS”) and organizations entering data reseller orders with DAIS (each such organization, “Company”), and is effective as of the date of the order entered by DAIS and Company (the “Effective Date”). Company and DAIS are each sometimes referred to herein as a “Party,” and collectively, as the “Parties.” By entering into an order with DAIS referencing this Agreement, Company agrees to be bound by this Agreement.
WHEREAS, DAIS has and continues to develop a unique insurance distribution channel and accompanying data asset, which it is monetizing and will continue to monetize through its Internet of Insurance platform (“Platform”) and other means;
WHEREAS, Company owns or otherwise has rights sufficient to certain data assets described on an order referencing this Agreement and desires to appoint DAIS as a reseller of such data (“Licensed Data”), on the terms and conditions set forth in this Agreement; and
WHEREAS, DAIS desires to be so appointed as a reseller of the Licensed Data, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements of the Parties, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Terms used in this Agreement with initial capital letters shall have the respective meanings set forth in Article 10. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
2. BUSINESS REFERRALS
2.1 Appointment. Company hereby appoints DAIS as a non-exclusive reseller of the Licensed Data. Such appointment includes the right to offer and sell the Licensed Data in DAIS’ discretion (including with respect to the price of resale) on the Platform.
2.2 DAIS Use of Licensed Data. Company hereby grants to DAIS a non-exclusive, royalty-free, fully paid-up, worldwide, non-sublicensable license to use the Licensed Data solely for DAIS’ internal business purposes, at no cost to DAIS. For the avoidance of doubt, such license grant does not give DAIS the right to redistribute such no-cost data to third parties.
3. INTELLECTUAL PROPERTY
Company acknowledges and agrees that DAIS shall retain full, exclusive ownership of all right, title and interest in and to all Intellectual Property Rights in and to the Platform, whether developed prior to or after the Effective Date. Nothing herein shall be construed to transfer any right, title or ownership of any such Intellectual Property Rights to Company. Company hereby covenants and agrees with DAIS that Company shall not sue or otherwise assert any intellectual property rights owned or controlled by Company or any of its affiliates against DAIS or any customer of DAIS with respect to the Platform. Company acknowledges and agrees that any feedback provided by Company or any of its affiliates to DAIS with respect to the Platform shall be owned by DAIS, and Company irrevocably assigns and agrees to further assign to DAIS all intellectual property rights in and to any such feedback.
DAIS acknowledges and agrees that, as between DAIS and Company, Company shall retain full, exclusive ownership of all right, title and interest in and to all Intellectual Property Rights in and to the Licensed Data, whether developed prior to or after the Effective Date. Nothing herein shall be construed to transfer any right, title or ownership of any such Intellectual Property Rights to DAIS.
4.1 Fee Amount. The amount per item of data within the Licensed Data shall be as set forth in the order referencing this Agreement.
4.2 Methods of Payment. Within sixty (60) days after the end of each calendar month during the Term, DAIS shall pay Company the applicable fees due to Company pursuant to the order based on cash actually received by DAIS during such calendar month. DAIS shall make each payment due hereunder by wire transfer or electronic funds transfer using instructions from Company, unless otherwise specified by DAIS. Company shall be solely responsible for all tax obligations in connection with any fees it receives under this Agreement.
5. TERM; TERMINATION
5.1 Term. This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect for one (1) year, at the end of which this Agreement shall automatically renew for successive periods of one (1) year each unless terminated in accordance with the terms of this Agreement; provided, however, that either Party may elect not to renew this Agreement by providing sixty (60) days written notice to other Party of intent not to renew. The initial term, in addition to all such renewal terms, are collectively referred to herein as the “Term”.
(a) Termination for Convenience. Either Party may terminate this Agreement for convenience at any time upon sixty (60) days’ written notice to the other Party.
(b) Termination for Breach. Either Party may terminate this Agreement in the event of: (i) the other Party’s material breach of its obligations, representations, or warranties under this Agreement; or (ii) a series of breaches of this Agreement by the other Party over time that taken together constitute a material breach, if such material breach, in each case, is not cured within thirty (30) days after the non-breaching Party notifies the breaching Party in writing of such material breach.
(c) Termination for Change in Law. If any change in applicable Laws, change in the implementation or enforcement thereof, or a Party’s compliance with antitrust Laws results in an imposition of a material burden or additional material cost to comply on DAIS, or otherwise materially adversely affects DAIS’ performance of the services contemplated herein, or would result in any material legal liability to a third party or Government Authority, then either Party may terminate the affected portion of this Agreement by giving the other Party thirty (30) days written notice.
(d) Insolvency. Either Party may terminate this Agreement upon written notice to the other Party if the other Party makes a general assignment for the benefit of creditors in connection with becoming insolvent, becomes insolvent, or a receiver is appointed for, or a court approves reorganization or arrangement proceedings on, such other Party.
5.3 Effect of Termination. Expiration or termination of this Agreement shall not relieve the Parties of any obligation accruing prior thereto and shall be without prejudice to, and shall not otherwise limit, the rights and remedies of either Party with respect to this Agreement or any breach of any of the provisions of this Agreement by the other Party. Both Parties shall destroy or return any Confidential Information of the other Party received by such Party under this Agreement upon expiration or termination of this Agreement.
6. REPRESENTATIONS AND WARRANTIES
6.1 Mutual. Each Party represents, warrants and covenants to the other Party that: (i) it has the full right, power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not and will not violate any Law or regulation, or any agreement to which it is a party or by which it is bound; (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered, enforceable against it in accordance with its terms; (iv) it shall perform its obligations hereunder in a professional and workmanlike manner in accordance with generally accepted industry standards; and (v) it shall comply with all Laws applicable to it in the course of performance of its obligations under this Agreement.
6.2 Company Warranties. Company represents, warrants and covenants to DAIS that Company has sufficient right and title in the Licensed Data to: (i) make the appointment of DAIS as a reseller as contemplated under this Agreement; (ii) allow DAIS to resell the Licensed Data as contemplated by this Agreement; and (iii) grant the license rights contemplated hereunder.
7.1 Confidential Information. Each Party shall keep confidential all information and materials provided by the other Party that is marked as confidential or proprietary, or which based on the nature of the information disclosed and/or circumstances surrounding disclosure should reasonably be recognized to be confidential or proprietary even though it is not so marked, whether in tangible or intangible form, including non-public information concerning each Party’s business, products, services, data, code, documentation, trade secrets, interfaces, and technical information, including DAIS’ proprietary algorithms, data, pricing strategy, rules, methods, mix information, and all other data and information regarding DAIS’ products, including its source code (“Confidential Information”). Each Party shall keep and instruct its employees and agents to keep the other Party’s Confidential Information confidential by using at least the same care and discretion as used with that Party’s own confidential information, but in no case less than a prudent and reasonable standard of care. Neither Party shall use the other Party’s Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing Party.
7.2 Exceptions to Confidentiality. Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving Party; (ii) known to the receiving Party prior to the time of disclosure by the disclosing Party; (iii) lawfully and rightfully disclosed to the receiving Party by a third party having the right to disclose such information and without obligations of confidentiality; or (iv) developed by the receiving Party without reference to Confidential Information of the other Party.
7.3 Required Disclosures. Notwithstanding the confidentiality obligations of this Article 7, a Party may disclose the Confidential Information of the other Party if required or compelled by Law or legal process, rule, regulation, government requirement, court order or subpoena, provided that the receiving Party promptly provide notice to the disclosing Party of such request or requirement so the disclosing Party may seek a protective order or other appropriate remedy.
7.4 Remedy. It is understood and agreed that in the event of a breach of this Article 7, money damages will not be an adequate remedy and the non-breaching Party shall be entitled to seek injunctive relief to restrain any such breach, threatened or actual, without the need to prove irreparable harm or otherwise post a bond or other security, in addition to any other remedies that may be available to the non-breaching Party under this Agreement, at law, in equity, or otherwise.
7.5 Non-Solicit. Each of the Parties shall not solicit or make any offer of employment to any employee, contractor, or agent of the other Party while such employee, contractor or agent is engaged by the other Party and such restriction shall continue with respect to each such employee, contractor and agent until the earlier of: (i) the two (2) year anniversary after such employee, contractor or agents is no longer engaged by the other Party; and (ii) one (1) year after the conclusion of the Term.
8. LIMITATIONS OF LIABILITY
8.1 Limitation on Damages. Except as provided in Section 8.3, the total and cumulative liability of each Party (whether a claim therefor is based on warranty, contract, tort (including negligence or strict liability), statute, or otherwise) arising out of, or relating to, this Agreement shall be limited in the aggregate for all claims to the sum of the total fees payable to Company hereunder during the twelve (12) months immediately preceding the date of the Claim.
8.2 Exclusion of Certain Damages. EXCEPT AS PROVIDED FOR IN SECTION 8.3, OR AS OTHERWISE REQUIRED BY LAW, NEITHER PARTY NOR ITS AFFILIATES OR ITS OR THEIR RESPECTIVE EQUITY HOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUB-CONTRACTORS, OR LICENSORS, SHALL BE LIABLE TO THE OTHER PARTY, OR ITS DIRECTORS, OFFICERS, EQUITYHOLDERS, EMPLOYEES, AGENTS, MEMBERS, AFFILIATES, OR SUBCONTRACTORS, FOR CLAIMS FOR INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OR REVENUE, LOSS OF SAVINGS, OR LOSSES BY REASON OF COST OF CAPITAL, CONNECTED WITH, OR ARISING OR RESULTING FROM, ANY PERFORMANCE OR LACK OF PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR THE PARTY SOUGHT TO BE HELD LIABLE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE.
8.3 Exceptions. The limitations set forth in Section 8.1 and the exclusion of certain damages set forth in Section 8.2 shall not apply to either Party’s breach of Article 7 (Confidentiality), for which breaches, neither Party’s aggregate liability shall exceed one million dollars ($1,000,000.00).
9.1 Relationship of the Parties. The Parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the Party hereto, or an employee-employer relationship. No Party shall have any right to obligate or bind any other Party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
9.2 Publicity. Each Party may publicly disclose the existence of its relationship with the other Party, to the extent such public disclosures are authorized by the other Party, consent not to be unreasonably withheld, conditioned or delayed.
9.3 Assignment. Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign its rights and obligations under this Agreement without the consent of the other Party: (i) to an Affiliate of the assigning Party; (ii) in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change of control or sale of all or substantially all of its assets related to this Agreement or similar transaction; and (iii) to its lenders as collateral security. Any assignment or attempted assignment of this Agreement in contravention of this Section 9.3 shall be null and void ab initio. This Agreement inures to the benefit of and shall be binding on the Parties’ permitted assignees, transferees and successors.
9.4 Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement to the extent such failure or delay is caused by a Force Majeure Event. Upon the occurrence of a Force Majeure Event, the non-performing Party shall promptly notify the other Party of the circumstances hindering its performance and of its plans and efforts to implement a work-around, in which case the non-performing Party shall be excused from any further performance or observance of the affected obligation(s) for as long as such circumstances prevail, and such Party uses commercially reasonable efforts to recommence performance or observance to the greatest extent reasonably possible without delay. The non-performing Party will also notify the other Party promptly when the Force Majeure Event has abated.
9.5 Construction. Unless otherwise expressly stated in this Agreement, the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, Subsection, or other subdivision. The words “include” and “including” shall not be construed or interpreted as terms of limitation. Section headings are for reference purposes only, and should not be used in the interpretation hereof. No provision of this Agreement will be construed against either Party as the drafter thereof. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either Party. Each Party has had the opportunity to consult with counsel in the negotiation of this Agreement.
9.6 Notices. All notices or other communication under or in connection with the terms of this Agreement (a “Notice”) shall be given in writing and sent by internationally recognized overnight carrier with delivery confirmation or shall be delivered by hand to the addresses set forth on the applicable order(s). All notices shall be presumed to have been received when they are hand delivered, or on the business day following the day of delivery by overnight carrier.
9.7 Amendments; Waiver. No provision of this Agreement may be supplemented, amended or waived (including by course of performance or of dealing, or usage of trade) unless such amendment or waiver is in writing and signed, in the case of an amendment, by the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. No failure or delay by a Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No regular practice or method of dealing between the Party shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
9.8 Severability; Counterparts. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. This Agreement may be signed in counterparts. Each of them is an original, and all of them constitute one agreement.
9.9 Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without reference to conflicts of laws principles. The Parties agree that the federal and state courts in the county of New Castle County, Delaware will have exclusive jurisdiction and venue under this Agreement, and each Party hereby agrees to submit to such jurisdiction exclusively.
9.10 Entire Agreement. This Agreement constitutes the complete, final and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Neither Party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
10. DEFINED TERMS
10.1 Affiliate. The term “Affiliate” shall mean, with respect to an entity, any entity that Controls, is Controlled by, or is under common Control with, that entity whether before or after the Effective Date of the Agreement. For the avoidance of doubt, for purposes of this Agreement, DAIS and its Affiliates shall not be deemed to be Affiliates of Company.
10.2 Control. The term “Control” (including with correlative meanings, the terms “Controlling,” “Controlled by” and “under common Control with”) shall mean the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise.
10.3 Force Majeure Event. The term “Force Majeure Event” shall mean an event that is outside of the reasonable control of a Party, including without limitation the following: acts of war, terrorism, civil riots or rebellions, the regulatory acts of Governmental Authorities, labor strikes, non-performance of subcontractors or third party suppliers, quarantines, embargoes and other similar unusual governmental action; extraordinary elements of nature or acts of God.
10.4 Governmental Authority. The term “Governmental Authority” shall mean any federal, state, provincial, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign, or international.
10.5 Intellectual Property Rights. The term “Intellectual Property Rights” means all intellectual property rights in any jurisdiction, including: (i) copyrights and copyrightable subject matter; (ii) trademarks, service marks, brand names, trade dress, logos, slogans and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing; (iii) Internet domain names and numbers; (iv) patents, invention disclosures and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions and extensions thereof; (v) rights in computers programs and applications (whether in source code, object code or other form), databases, compilations and documentation related to any of the foregoing; (vi) trade secrets, confidential information and proprietary know-how (including processes, procedures, research and development, concepts, algorithms and specifications); (vii) registrations and applications relating to any of the foregoing; and (viii) any other intellectual or proprietary rights anywhere in the world.
10.6 Person. The term “Person” shall mean any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity or other entity.