Digital Code Resale Agreement
This Digital Code Resale Agreement (the “Agreement”) is between Rixty, Inc., a wholly owned subsidiary of Razer Inc. (“Company”), and (“Authorized Reseller”). The Agreement will be effective on the later date of signing by both parties (the “Effective Date”).
The purpose of this Agreement is to grant limited distribution rights to Authorized Reseller to distribute digitally delivered product, virtual currency, and/or gift value codes (individually and collectively, “Codes”) through authorized digital transmission formats, in whole or in part, in accordance with the terms and conditions of the Agreement.
1. Distribution Services. Authorized Reseller agrees to provide promotional, marketing and distribution services of the Company’s Code reseller program (the “Program”) as described in this Agreement. Authorized Reseller will be an authorized supplier of marketing and fulfillment of Codes solely for and in connection with Permitted Distribution as defined below. Authorized Reseller shall devote time and resources to marketing the Program similar to that devoted to marketing its other product, virtual currency or gift value codes, and Authorized Reseller will provide the Program with positioning and presence in Authorized Reseller marketing materials, presentations, etc. that is no less favorable than that afforded any other product, virtual currency or gift value codes. All marketing, advertising, and promotional materials will be subject to the approval of Company.
2. Code Delivery. Codes will be delivered to Authorized Reseller for redistribution to End Users according to instructions provided by Company.
3. Order and Payment Terms.
4. Permitted Distribution. Distribution directly to End Users as specified in the Permitted Territory Appendix, and only at the full face value of the product with no discounts or added fees (i.e. a $5 Code shall only be sold for $5.00), unless approved in writing by the Company. No bulk or individual sales of Codes to another company or individual for resale shall be permitted.
5. Term. The term of the Agreement starts on the Effective Date and ends one (1) year thereafter, unless earlier terminated pursuant to this Section (the “Term”). The Agreement will automatically renew for successive one (1) month periods, unless a party provides the other with written notice prior to the end of the then-current term.
6. Termination Company may terminate the Agreement immediately on written notice at any time, if unless otherwise authorized in writing by Company, Authorized Reseller distributes Codes to any entities other than individuals located in the Permitted Territory who obtain Codes from Authorized Reseller for their own use rather than for resale or distribution (“End Users”). Company may terminate this Agreement at any time with seven (7) days prior written notice to the Authorized Reseller. Either party may terminate the Agreement (including one or more Distribution Appendices) immediately on written notice at any time, if a party breaches any of the material terms or conditions of the Agreement, or a party (A) makes an assignment for the benefit of creditors, (B) files a voluntary petition under any bankruptcy act, receivership statute or the like, (C) becomes subject to any proceeding under any bankruptcy act, receivership statute or the like and such proceeding is not resolved in such party’s favor within sixty (60) days.
a. Effect of Termination or Expiration. Upon termination or expiration of this Agreement: (i) All amounts due and payable from either party shall be immediately due and payable, (ii) Authorized Reseller shall discontinue all marketing, and distribution of Codes as of the termination or expiration date. Company and Authorized Reseller shall agree in writing on a post-termination sell-off period for Authorized Reseller’s customers to distribute Code inventory remaining on the termination or expiration date, and (iii) Any licenses granted to Authorized Reseller under the Agreement will terminate upon termination of this agreement.
7. Survival. Sections 4, 6.a, and 8, through 15 of this Agreement will survive expiration or termination of the Agreement.
8. Representations and Warranties. Each party represents and warrants that (i) performance of the Agreement is not in conflict with, and will not cause an event of default under, any agreement or instrument to which that party is a party, or by which that party is bound. Company represents and warrants that (i) it has the right and the authority to sell the Codes to the Authorized Reseller as set forth herein and for the purposes contemplated herein; (ii) Company’s marketing, issuance and redemption of the Codes will not violate any applicable law, statute, rule, regulation, or ordinance. The Authorized Reseller represents and warrants that (i) it will not alter the design, logos, packaging, labeling, terms of use or other content provided by Company for its Codes without the Company’s prior written consent; and (ii) Authorized Reseller’s marketing and issuance of the Codes will not violate any provision of this Agreement or any terms of use provided with a Code, or any applicable law, statute, rule, regulation, or ordinance.
- \nReserved Rights. Company retains ownership of the Program and all rights not explicitly granted to Authorized Reseller hereunder, including without limitation the right to directly distribute Codes and/or appoint additional distribution partners authorized to engage in Permitted Distribution during the term of this Agreement.
10. Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify and hold harmless the other party, its officers, directors, employees, or agents (the “Indemnified Parties”) from and against any and all liabilities, losses, damages, claims, suits, judgments, settlements, costs, and expenses (including reasonable attorney’s fees and the costs of any investigation or action related thereto) (“Losses”) suffered or incurred by the Indemnified Parties in connection with or as a result of (i) any actual or alleged breach of the Indemnifying Party’s confidentiality obligations hereunder, (ii) the gross negligence or willful misconduct of the Indemnifying Party, (iii) any violation of any federal, state or local laws by the Indemnifying Party in connection with its exercise of its rights or fulfillment of its obligations under this Agreement, or (iv) any third party (other than any affiliate of or related party to an Indemnified Party) claim alleging intellectual property infringement by the Indemnifying Party involving the Codes (each a “Claim”).
11. Disclaimers. EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN OR PERFORMANCE UNDER THIS AGREEMENT.
12. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF EITHER PARTY’S INDEMNIFICATION OR PAYMENT OBLIGATIONS HEREUNDER, EITHER PARTY’S GROSS NEGLIGENCE OR WILFULL MISCONDUCT, OR DAMAGES RESULTING FROM UNAUTHORIZED DISTRIBUTION OR MODIFICATION OF CODES, IN NO EVENT WILL: (A) EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST REVENUE, PROFITS OR BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY BREACH HEREOF) OR THE TRANSACTIONS CONTEMPLATED HEREBY, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BY THE OTHER PARTY, AND (B) EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE GREATER OF (I) THE AGGREGATE AMOUNTS PAID BY AUTHORIZED RESELLER TO COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR (II) FIVE HUNDRED THOUSAND DOLLARS (US$500,000).
13. Assignment. Neither this Agreement nor any duties or obligations under this Agreement may be assigned by either party without the prior consent of the other party, which consent may not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement without such consent to any purchaser of all or substantially all of the assets of the assigning party or to any successor by way of merger, consolidation or similar transaction, provided that such purchaser or successor assumes the assigning party's obligations under this Agreement.
14. Force Majeure. Neither party shall be liable to the other for any delay or failure in performance under this Agreement arising out of a cause beyond its control or without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of regulatory agencies, or national disasters.
15. Miscellaneous. This Agreement, including these terms and conditions, and any attachments to this Agreement, sets forth the entire agreement of the parties, and supersedes all prior agreements, oral or written, regarding the same. This Agreement may not be modified except by a written instrument signed by the Company and by the Authorized Reseller. Each party agrees to pay upon demand all reasonable attorney’s fees, costs and expenses incurred by the other party in connection with such other party’s enforcement of its rights under this Agreement, provided that the other party is the prevailing party in connection with such enforcement. This Agreement, and the rights and obligations of the parties hereto, and any claim or dispute relating thereto, shall be governed by and construed in accordance with the laws of the State of California (excluding its choice of laws principles). If any one or more of the provisions of this Agreement is declared void or invalid by an authority having legal jurisdiction or is determined to be inconsistent with the primary purpose of this Agreement, such declaration or determination shall not be construed so as to impair the validity of the remaining provisions, it being the intent of the parties that this Agreement is to be executed and is to remain effective as if the void, invalid, or inconsistent provisions had not been included herein.
Pricelist Appendix
Discount off face value for Razer Gold Codes: 4%
Discount off face value for other Codes made available to Authorized Retailer by Company: 3%
