This Reseller Program Operating Agreement (the 'Agreement' ) is made and entered into by and between mSpy ('mSpy' or 'we') and you ('you' or the 'Reseller' ), the party submitting an application to become a Reseller of mSpy parental control app (the “Product”). The terms and conditions contained in this Agreement apply to your participation with mSpy Reseller Program ( 'Reseller Program' ). By submitting an application or participating in the Reseller Program, you expressly consent to all the terms and conditions of this Agreement.
You must submit a Reseller Program application from our website. You must accurately complete the application to become a reseller (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Reseller Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
Subject to our acceptance of you as a reseller and your continued compliance with the terms and conditions of this Agreement, mSpy agrees as follows:
Reseller also agrees to:
The following additional program-specific terms shall apply to any promotional programs set forth below:
Except as otherwise provided in this Agreement or with the consent of mSpy, you agree that all information, including, without limitation, the terms of this Agreement, business and financial information, End User and vendor lists, and pricing and sales information, concerning us or any of our resellers provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for any purpose other than your participation in the Reseller Program, except and solely to the extent that any such information is generally known or available to the public through a source other than you. Reseller shall not use any information obtained from the Reseller Program to develop, enhance or operate a service that competes with the Reseller Program, or assist another party to do the same.
The Reseller is entitled to use the name “mSpy” as a trademark only for reselling of the Products, but it is not allowed to register any company or commercial name, trademark or domain names that consists of or contains the name “mSpy” or any similar name or other mSpy Trademarks. If this obligation is breached, mSpy will consider this a material breach and Reseller shall immediately transfer or assign the rights to any such registration to mSpy and pay the damages caused to mSpy. Reseller will not reproduce, copy, and duplicate the Product or trademarks owned by mSpy without the written consent of mSpy, except as necessary in the ordinary course of performing Reseller’s obligations under this Agreement. Reseller shall resell the Product under the conditions agreed with mSpy and only under the trademark established by mSpy. This obligation shall apply to any other product that may be sold by Reseller according to its agreement with mSpy.
mSpy authorizes Reseller to use Reseller’s own trademark for the reselling of the mSpy Products along with the trade mark(s) established by mSpy.
All graphic elements and materials used by Reseller in selling and promoting the Products, advertising images, images used for fairs and exhibitions as well as any other graphic elements mentioned in its agreement, must abide mSpy’s currently guidelines and the Reseller shall submitted to mSpy for prior approval which shall not be unreasonable withheld. Notwithstanding this provision, the logo and the logotype of the Product are not to be modified under any circumstances.
mSpy owns all intellectual property and other rights to the Products and hereby grants Reseller a limited, non-exclusive right to resell the Products as necessary for fulfillment of Reseller’s obligations under this Agreement. Reseller shall have no rights other than those expressly set forth in this Agreement. mSpy shall retain all rights, titles, interests and goodwill arisen in connection with the Product and to any modifications or improvements or translations of the Products made by the Reseller thereto, and all the materials related to the Product. Reseller will not obtain any rights in the Product as a result of its responsibilities hereunder. Reseller acknowledges mSpy’s rights in the Product. Reseller shall not at any time during or after the Effective date of the Agreement, dispute or contest, directly or indirectly, mSpy’s rights and titles to the Products or their validity thereof.
You may not alter, modify, manipulate or create derivative works of any mSpy graphics, creative, copy or other materials owned by, or licensed to, mSpy in any way. Except as expressly stated herein, nothing in this Agreement is intended to grant you any rights to any of mSpy's trademarks, service marks, copyrights, patents or trade secrets. You agree that mSpy may use any suggestion, comment or recommendation you choose to provide to mSpy without compensation. All rights not expressly granted in this Agreement are reserved by mSpy.
This Agreement shall commence on the date of our approval of your Reseller Program application and shall continue thereafter until terminated as provided herein. You may terminate your participation in the Reseller Program at any time by removing all Offers to sell Activation Links from your Media, deleting all copies of the Activation Links. We may terminate your participation in this Agreement at any time and for any reason which we deem appropriate with or without prior notice to you by disabling the Activation Links or providing you with a written notice. Upon termination of your participation in this Agreement for any reason, you will immediately cease all use of and delete all Activation Links, plus all mSpy or End User intellectual property, and will cease representing yourself as a mSpy or End User reseller for such one or more Offers. All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
In addition to any other rights and remedies available to us under this Agreement mSpy reserves the right to delete any user accounts submitted through your Activation Links if (i) mSpy determines that you have violated this Agreement, (ii) mSpy receives any complaints about your participation in the Reseller Program which mSpy reasonably believes to violate this Agreement or (iii) any of your activities in relation to mSpy and its products is later determined to have not met the requirements set forth in this Agreement or on the Reseller Program. In the event of a material breach of this Agreement, mSpy reserves the right to disclose your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by your actions.
You must strictly comply with the federal Privacy and Electronic Communications (EC Directive) Regulations 2003 (the 'Directive'). All emails sent in connection with the Reseller Program must include the appropriate party's opt-out link. From time to time, we may request - prior to your sending emails containing linking or referencing the Reseller Program that you submit the final version of your email to mSpy for approval by sending it to your mSpy representative and upon receiving written approval from mSpy of your email the email may be transmitted to third parties. It is solely your obligation to ensure that the email complies with the Directive. You agree not to rely upon mSpy's approval of your email for compliance with the Directive, or assert any claim that you are in compliance with the Directive based upon mSpy's approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other resellers or falsify information in connection with referrals through the Links or the generation of Commissions or exceed your permitted access to the Reseller Program.
You hereby represent and warrant that this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms and that you have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, mSpy represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to mSpy's own business operations or mSpy's proprietary products or services.
In addition to any notice permitted to be given under this Agreement, we may modify any of the terms and conditions of this Agreement at any time by providing you with a notification by email. The changes will become effective ten (10) business days after such notice. If the modifications are unacceptable to you, you may terminate this Agreement without penalty solely on the account of such termination within such ten (10) business day period. Your continued participation in this Reseller Program ten (10) business days after a change notice has been posted will constitute your acceptance of such change. In addition, mSpy may change, suspend or discontinue any aspect of the Reseller Program or Activation Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with the Reseller Program or Activation Link. Reseller agrees to promptly implement any request from mSpy to remove, alter or modify any graphic or banner ad that is being used by Reseller as part of the Reseller Program.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the Reseller Program and each Offer and are not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Reseller Program.
Reseller hereby agrees to indemnify, defend and hold harmless mSpy and End Users and their respective subsidiaries, affiliates, resellers and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Reseller herein, (ii) any misuse by Reseller, or by a party under the reasonable control of Reseller or obtaining access through Reseller, of the Activation Links, Reseller Program or mSpy or End User intellectual property, or (iii) any claim related to your Media, including but not limited to, the content contained on such Media.
mSpy hereby agrees to indemnify, defend and hold harmless Reseller and its subsidiaries, affiliates, resellers, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that mSpy is not authorized to provide you with the Links.
THE RESELLER PROGRAM AND ACTIVATION LINKS, AND THE PRODUCTS AND SERVICES PROVIDED IN CONNECTION THEREWITH, ARE PROVIDED TO RESELLERS ON THE 'AS IS' BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MSPY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MSPY DOES NOT WARRANT THAT THE RESELLER PROGRAM OR ACTIVATION LINKS WILL MEET RESELLER’S SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF THE RESELLER PROGRAM OR ACTIVATION LINKS WILL BE COMPLETELY ERROR- FREE OR UNINTERRUPTED. MSPY EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY ACT OR OMISSION OF A END USER OR THEIR PRODUCTS OR SERVICES. MSPY DOES NOT GUARANTEE THAT RESELLER WILL EARN ANY SPECIFIC AMOUNT OF COMMISSIONS.
IN NO EVENT SHALL MSPY BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE ACTIVATION LINKS, PROGRAM WEB SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF MSPY. IN NO EVENT WILL MSPY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PERSONAL INJURY / WRONGFUL DEATH, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT MSPY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. MSPY'S CUMULATIVE LIABILITY TO RESELLER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO MSPY BY RESELLER DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO SUCH CLAIM.
This Agreement is governed by the applicable law and will be interpreted in accordance with the relevant courts. The courts shall have exclusive jurisdiction to settle any claim or dispute which might arise out of or in connection with this Agreement. Resellers from different locations are responsible for compliance with local laws if and to the extent that local laws are applicable. Resellers shall consult their local attorney before entering into this Agreement. mSpy is not responsible for any illegal consequences for a Reseller out of its own jurisdiction. Resellers may enter into this Agreement at their own risk and responsibility.
Reseller shall be responsible for the payment of all attorneys’ fees and expenses incurred by mSpy to enforce the terms of this Agreement. This Agreement contains the entire agreement between mSpy and Reseller with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Reseller agrees that mSpy shall not be subject to or bound by any Reseller insertion order or online terms and conditions that amend, conflict with or supplement this Agreement, regardless of whether mSpy 'clicks through' or otherwise indicates its acceptance thereof. Reseller may not assign all or any part of this Agreement without mSpy's prior written consent. mSpy may assign this Agreement at any time with notice to Reseller. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto. The provisions of Section 3, 4(b), 6, 7, 8, 12-15 and any accrued payment obligations shall survive the termination of this Agreement. Except as set forth in the 'Modifications' section above, this Agreement may not be modified without the prior written consent of both parties. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties. No course of dealing nor any delay in exercising any rights hereunder shall operate as a waiver of any such rights. No waiver of any default or breach shall be deemed a continuing waiver or a waiver of any other breach or default.
By submitting and application to Reseller Program, you affirm and acknowledge that you have read this Agreement in its entirety and agree to be bound by all of its terms and conditions. If you do not wish to be bound by this Agreement, you should not submit an application to Reseller Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
This Agreement was last revised on 25 May 2018.