LAMBDATEST RESELLER PROGRAM AGREEMENT
Last Updated: August 09, 2024
By participating in the LambdaTest Reseller Program (“Program”), the company or entity that has accepted the Program (“Reseller”) agrees to be bound by this LambdaTest Reseller Program Agreement (“Agreement”), which includes terms outlined below.
For purposes of this Agreement, “Company” means LambdaTest Inc. having its place of business at 1390 Market Street, Suite 200, San Francisco, CA 94102, United States of America.
Background
i. Company offers a cloud hosted platform and service that enables customers to test their websites and applications across a wide range of web browsers, operating systems and virtual or physical device environments.
ii. Reseller desires to obtain the right to act as an independent Reseller of the Products (as defined below), with the non-exclusive right to market, promote and resell the Products.
The parties agree as follows:
1. APPOINTMENT AS A RESELLER
On the terms and subject to the conditions set forth herein, the Company appoints Reseller as an independent, non-exclusive authorized Reseller of the Company’s products (‘Products’) identified in a Purchase Order (as defined in Section 2 below) entered between the Reseller and the Company and Reseller hereby accepts such appointment. Reseller may advertise, promote, sub-license and resell the Products to third party End Users. The term "End User" means a person or entity that desires to use or acquire the Products for its own use, rather than for resale or distribution. Reseller may not authorize or appoint any dealers, sub-resellers, agents, representatives, subcontractors, or other third parties to advertise, promote, resell, or distribute the Products. The Company reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Products it offers, or to discontinue the service, support of publication, distribution, sale or licensing of any or all of the Products without liability of any kind.
2. DISCOUNTS AND ORDERS
(a) All purchase orders for Company Products for authorized End Users shall be submitted to Company in writing in the form required by Company (“Purchase Orders”). The Purchase Order shall be in US dollars unless otherwise agreed. Reseller may determine its own retail prices, taking into account suggested retail prices provided by the Company. Under each such Purchase Order, Reseller will pay Company’s list price for each Company Product, as determined by Company from time to time, less Reseller’s discount (the “Discount”), which is fixed at the rate of 30% from the list price during the first twelve (12) months from the Effective Date and 10% for every year thereafter as the sole and entire benefit of the Reseller under this Agreement.
(b) Fees shall become due and payable within 30 days of receipt of invoice. Reseller agrees to notify the Company about any concerns with the invoice within fifteen (15) days from the date of receiving the invoice failing which the invoice shall be deemed to have been accepted by the Reseller.
(c) All fees and payments made by Reseller to Company are non-refundable and does not include any applicable taxes. Invoices that remain unpaid beyond the payment due date shall be subject to an interest equal to 1.5% per month of the amount due or the maximum amount allowed by law.
(d) Reseller can offer the Products to end users at the price agreed between the Reseller and such end-user. It is hereby clarified that the Company is not a party to the transaction between the Reseller and the end user and therefore, shall not be involved in any disputes arising between the Reseller and end user.
3. INCENTIVE PROGRAMS
Company shall, at its discretion, organise sales incentive program for its community of resellers on a quarterly basis. The details of this program shall be communicated to the Reseller from time to time.
4. PROMOTION
Reseller shall use its best efforts to market and promote Products to End Users and will at all times perform its obligations hereunder in an ethical and professional manner and in accordance with this Agreement and any guidelines issued by Company. Reseller will: (a) conduct business in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of the Company ; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to the Company; (c) make no false or misleading representation with respect to the Company or the Products; and (d) make no representations with respect to the Company or the Products that are inconsistent with its end user license agreement for the Products, promotional materials including all liability limitations and disclaimers contained in such materials.
5. PERMITS. LICENSES AND COMPLIANCE WITH LAWS
Reseller will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules and regulations in the performance of this Agreement. Without limiting the generality of the foregoing, Reseller will comply with all applicable export laws.
6. PRIVACY/DATA COLLECTION
Reseller will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any End User data that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. Reseller will act in all instances in accordance with all applicable data protection laws, rules and regulations.
7. OWNERSHIP
All rights, title and interest including all intellectual property rights in the Product and related documentation and any derivatives, changes, and improvements, enhancements thereof shall at all times, vest with Company.
8. CONFIDENTIAL INFORMATION
(a.) Except as expressly provided in this Agreement, each Party shall (i) use confidential information of the other Party solely for the purpose of conducting the evaluation, (ii) not disclose confidential information of the other Party to any third-party without the express written permission of the other Party, and (iii) take measures to protect the secrecy of and avoid disclosure or use of confidential information of the other Party, using the same degree of care that the receiving Party utilizes to protect its own confidential information of a similar nature, but in no case less than a reasonable degree of care. The obligations under this Section 7 shall survive the expiration or termination of this Agreement.
(b.) Confidential information shall not include any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving Party; (ii) the receiving Party can demonstrate in its records to have had rightfully in its possession before disclosure of the confidential information by the disclosing Party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; or (iv) the receiving party has independently developed, without breach of the terms herein or any use of or reference to the confidential information of the disclosing Party.
9. DISCLAIMER OF WARRANTIES
The Product and all services are all provided on an “as is” basis, and Company makes warranties (whether express, implied or statutory) to any person or entity in connection with this Agreement, the product or the services, including but not limited to warranties of merchantability and fitness for a particular purpose, or that the product’s functions will meet the Company’s requirements or that its operation will be uninterrupted or error free. Reseller will make no warranty, express or implied, on behalf of the Company.
10. LIMITATION OF LIABILITY
COMPANY’S AGGREGATE LIABILITY TO RESELLER UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE PRICE PAID BY RESELLER FOR THE PURCHASE ORDER WHICH GIVES RISE TO THE CLAIM. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA ETC)
11. INDEMNITY
(a) Reseller will defend and indemnify Company from and against all costs, liabilities, damages, losses, and expenses (including reasonable legal fees) arising pursuant to (a) a breach by Reseller of any of its obligations under this Agreement; and/or (b) the negligent, willful, or fraudulent act or omission of the Reseller and/or its personnel. Reseller will be solely responsible for any claims, warranties or representations made by Reseller or Reseller's representatives or agents which differ from the warranties provided by Company in the applicable end user license agreement.
(b) Company will defend and indemnify the Reseller from and against all costs, liabilities, damages, losses, and expenses (including reasonable legal fees) arising pursuant to (a) a third-party claim arising out of any allegation that the Product infringes upon any intellectual property right of such third party, provided Company has control of such defense or settlement negotiations and Reseller gives Company prompt notice of any such claim and provides reasonable assistance in its defense. In the event of such a claim of infringement, Company , at its option, may provide Reseller with substitute Products reasonably satisfactory to Reseller to replace those affected Products. Company will not be liable under this Section if the infringement arises out of Reseller's acts or omissions. The foregoing states the entire liability of the Company with respect to infringement of intellectual property rights.
12. TECHNICAL SUPPORT
Company shall offer Reseller technical training through online means for the Products from time to lime upon reasonable request from Reseller at Company’s then-current charges for such training.
13. TRADEMARKS
Reseller may use the trademarks owned by Company for its Products solely for the purpose of performing its duties hereunder and in accordance with the instructions of Company.
14. TERM AND TERMINATION
(a) Term: This Agreement shall be effective for a term of one year from the Effective Date. It shall be automatically extended for further one-year terms unless either party gives written notice to the other at least 60 days before the expiration of the initial or any renewal term of the party's intent not to renew.
(b) Termination: Notwithstanding anything in this Agreement that may be interpreted to the contrary, Company may terminate this Agreement without cause and without liability upon 30 days' prior written notice to Reseller. Either party may terminate this Agreement for any material breach of the Agreement that is not cured to the non-breaching party's satisfaction within 30 days of written notice that specifies the breach.
(c) Effect of Termination: Upon termination of this Agreement, Reseller will cease all advertising, marketing and resale of the Products. Termination of this Agreement will not effect either party's rights or obligations with respect to Products distributed by Reseller prior to the effective date of the termination.
(d) No Liability for Termination: Neither party will be liable for any damages arising out of the termination of this Agreement in accordance with this Section 14. Reseller acknowledges and agrees that Company is not responsible for Reseller's dependence on revenues hereunder and Reseller agrees to release, hold harmless and indemnify Company from any and all claims and liabilities relating to Reseller's revenues, financial forecasts or economic value that may result from any termination by Company of this Agreement as permitted hereunder.
(e) Survival: Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature should survive will remain in effect after termination or expiration of this Agreement.
15. MISCELLANEOUS
(a) No-assignment: Neither Party may assign the rights and obligations under this Agreement (except to the extent to its affiliates) without the prior written consent of the other Party.
(b) Taxes: Any and all tax consequences, fees and other liabilities and obligations (as applicable from time to time) arising from the payment by the Company under this Agreement shall be borne solely by the Reseller, and Reseller will be solely liable for all taxes, fees and other liabilities. Company shall withhold taxes according to the requirements under the applicable laws, rules and regulations, including the withholding of taxes at the source.
(c) Independent Contractor: Reseller shall be an independent contractor and nothing contained herein shall be deemed to create any employer-employee relationship, partnership or joint venture between Reseller and/or anyone acting on its behalf and Company and/or anyone acting on its behalf.
(d) Severability: If any provision of this Agreement shall be found by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
(e) Governing Law and Jurisdiction: This Agreement shall be governed by the laws of the State of California, USA, without giving effect to its internal conflict of law provisions. Any dispute, claim or controversy arising from or relating to this Agreement, or the breach or validity thereof, will be adjudicated only by a court of competent jurisdiction in the County of San Mateo, State of California, and the Parties hereby expressly consent to the personal jurisdiction of such courts and waive any objections to such exclusive jurisdiction and venue.
(f) Entire Agreement. The Parties agree that this Agreement constitutes the complete agreement between the Parties concerning the subject matter hereof and replaces any prior oral or written communications between the Parties.
If you have any questions or concerns regarding this Agreement, please write to [email protected]