EHUNGRY RESELLER AGREEMENT
Last updated: March 31, 2019
eHungry offers a Service (as defined below) that facilitates online ordering between food service businesses and their customers. eHungry allows individuals or entities to promote, market, and sell the Service to one or more restaurants or businesses (each a “Restaurant”), and to use and access the Service to manage online ordering on behalf of one or more Restaurants (“Reseller Program”). This eHungry Reseller Agreement (“Reseller Agreement”) is between the applicable reseller (“you” or “Reseller”), and eHungry, Inc., a North Carolina corporation (“eHungry”), and applies to all access and use of the Service in connection with the Reseller Program.
If you are participating in the Reseller Program and agreeing to this Reseller Agreement on behalf of your company, rather than as an individual or sole proprietor, then "Reseller" or "you" or “your” means your company, and you are binding your company to this Reseller Agreement and representing to eHungry that you have the authority to act on behalf of that company and bind the company to this Reseller Agreement. If you do not have such authority, or if you do not agree with this Reseller Agreement, you must not accept this Reseller Agreement and may not use any of the Services.
This Reseller Agreement does not have to be signed in order to be binding. You indicate your agreement and consent to the terms by clicking on the "I agree" (or similar button) that is presented to you when you create a Reseller Account (as defined below), and when you sign into your Reseller Account.
1. RESELLER LICENSE
1.1. The Service. The “Service” includes (a) the eHungry website located at www.ehungry.com (“Site”); (b) the mobile application, which allows Reseller to access and manage their account (“App”); (c) the application programming interface (“API”); (d) the online ordering system, tools, features, and services provided and/or made available through the Site, App, and API, and; and (d) all Technology provided and/or made available through the Site, App, and API. “Technology” means the underlying technology and all materials and information related to the Service, including without limitation, software (including source code), ideas, service descriptions, content, know-how, data, databases, documentation, designs, audio, video, text, photographs, and graphics related to the Service and/or made available to Reseller in connection with this Reseller Agreement.
1.2. License. Subject to the terms of this Reseller Agreement, eHungry hereby grants to Reseller a non-exclusive, non-transferable and revocable license to market and promote the Service to Restaurants, and to use and access the Service to process and manage online ordering on behalf of Restaurants, either under the eHungry.com brand or under the Reseller's own brand via a white-label version of the Technology . Notwithstanding anything to the contrary contained in this Reseller Agreement, except for the limited license right in this Section, eHungry owns and shall retain all right, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to (a) the Service and Technology; (b) all copies, improvements, derivative works, developments, enhancements or modifications to the Service and/or Technology; and (c) any software, applications, inventions, materials, work product, or other technology developed or delivered by or on behalf of eHungry in connection with the foregoing or otherwise.
2. RESELLER ACCOUNT & FEES
2.1. Reseller Account. eHungry will issue login credentials to Reseller for Reseller and/or its authorized employees and agents to access and use the Service via a unique account (“Reseller Account”). Reseller can manage online orders for one or more Restaurants through Reseller’s Account. Reseller may add a Restaurant to Reseller’s Account by entering the applicable Restaurant information in Reseller’s Account. Reseller is solely responsible for all Restaurant information that is submitted or uploaded by Reseller. Reseller must obtain authorization from the Restaurant prior to adding any Restaurant to Reseller’s Account.
2.2. Service Fees. Reseller agrees to pay processing fees as listed on eHungry’s Pricing Page (which can be found here: https://www.ehungry.com/pricing) for all orders processed for all Restaurants included in Reseller’s Account (“Fees”). eHungry will bill Reseller on a monthly basis for all Fees applicable for the immediately preceding month.
2.3. Reseller Must Collect Fees from Restaurants. Reseller understands and agrees that all Fees are due and payable by Reseller, and eHungry will not collect fees directly from Restaurants included in Reseller’s Account. Reseller is solely responsible for setting pricing for Restaurants and for collection of fees from Restaurants. Reseller bears all risk of non-payment by Restaurants, and Reseller is solely responsible for all of its own costs and expenses. Reseller may not terminate any orders or receive any refunds due to non-payment by a Restaurant.
2.4. Payment Methods; Late Payments. Reseller must have an active American Express, Visa, MasterCard or Discover credit card on file for eHungry to bill. If eHungry cannot successfully charge Reseller’s credit card on the date Fees are due in a given month, eHungry will notify Reseller, and eHungry may suspend Reseller’s Account if Reseller does not submit payment within 72 hours. If Reseller has not paid outstanding Fees within sixty (60) days, eHungry reserves the right to delete Reseller’s Account and suspend processing orders for all Restaurants included in Reseller’s Account. eHungry reserves the right to change the Fees or applicable charges, and to institute new charges and Fees upon thirty (30) days prior notice to Reseller (which may be sent by email).
3. RESELLER OBLIGATIONS & RESTRICTIONS
3.1. Reseller Obligations. Reseller must accurately describe the Services to each Restaurant. Without limiting the generality of the foregoing, Reseller may not make any representation, warranty, or descriptions regarding the performance, functional characteristics, or other aspects of the Service or any other services offered by eHungry except in accordance with eHungry’s approved marketing and promotional materials. Reseller may not represent itself as an agent or employee of eHungry, and shall not make any representations regarding eHungry on eHungry’s behalf. Reseller shall not delegate performance of any of its obligations under this Agreement (other than to its own employees) without eHungry’s prior written authorization. Reseller is solely responsible for all use of the Service and Technology by its authorized employees and agents, and for their compliance with this Reseller Agreement and with eHungry’s TOS.
3.2. Prohibited Activities. Reseller will not, directly or indirectly: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by this Reseller Agreement; (b) use the Service on behalf of any Restaurant or third party without such third parties’ consent; (c) use the Service to create, develop and/or commercialize services that are directly competitive with or substantially similar to the Service or any component of the Service; (d) remove any proprietary notices or labels; (e) access or attempt to access any other party’s account to process orders and/or obtain sensitive account information; (f) decipher, decompile, disassemble, or reverse engineer any component of the Service or Technology; (g) circumvent, bypass, disable, or otherwise interfere with securityrelated features of the Service; (h) use the Service in any manner that would infringe upon or violate the intellectual property or any other rights of a third party; or (i) use the Service for any unlawful purpose or in any manner that would violate any applicable law or regulation.
3.3. Lawful Communication Practices. Please be aware that text messaging and phone calls areis heavily regulated on a country by country basis. For example, in the United States, federal and state law and regulation governs text messaging and phone calls for commercial purposes. Some of the United States laws and regulations applicable to text messaging and phone calls are the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act may apply to your activities, including activities related to the confirmation and/or processing of orders through the Service. You must obtain consent from all Restaurants with which you interact through or in regards to the Service prior to contacting any such Restaurants via phone call or text message, whether to confirm orders or otherwise. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU ARE COMPLYING WITH ANY AND ALL LAWS AND REGULATIONS (REGARDLESS OF COUNTRY) TO WHICH YOU ARE, AND YOUR USE OF THE SERVICE IS, SUBJECT. IF YOU HAVE ANY QUESTIONS OR CONCERNS ABOUT LAW OR REGULATION, PLEASE CONTACT A QUALIFIED ATTORNEY.
3.4. Spam Policy. eHungry will not tolerate your use of the Service to send messages or place phone calls that constitute Spam (as defined below) to any Restaurant, individual, or other entity. Notwithstanding anything else in this Reseller Agreement, you agree to not send Spam using the Service. Any Reseller which sends Spam may be suspended and terminated, and eHungry may participate in the prosecution of those who send Spam. For the avoidance of doubt, we consider “Spam” to mean any text message or phone call that (i) is for the principal purpose of promoting the sale of goods or services, including the content of a website which is operated on a commercial basis, or (ii) is for the principal purpose of promoting a political purpose or objective, or (iii) contains advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or any other item (tangible or intangible) of a commercial purpose. Spam does not include a text message or phone call that is sent to an individual or entity with whom the Reseller has a pre-existing relationship; who has consented to receive phone calls and/or text messages in connection with business transactions related to such pre-existing relationship; and which are sent only in relation to and to the extent necessary or consented to by such individual or entity in connection to facilitate such business transactions. 3.5. Ethical Practices and Compliance with Laws. Reseller must not engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to eHungry or its products, and Reseller agrees to comply with all applicable federal, state and local laws and regulations while operating under this Reseller Agreement. This Agreement is made subject to any applicable restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the parties from time to time. Each party agrees that it will not export, directly or indirectly, any technical information acquired from the other party under this Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable law.
4. EHUNGRY OBLIGATIONS
4.1. Maintenance of the Service by eHungry. eHungry will host and maintain the Service on servers maintained by or on behalf of eHungry. Subject to the terms of this Reseller Agreement, eHungry will use commercially reasonable efforts to provide the Service in an uninterrupted and error-free fashion consistent with standard industry practices. eHungry reserves the right, in its sole discretion, to refuse to provide the Service to any Restaurant.
4.2. Customer Service & Technical Support. eHungry will provide customer service and technical support and assistance to Reseller during normal business hours via email and other online methods during the Term, provided that Reseller is current on payment of Fees and is otherwise not in breach of this Reseller Agreement.
4.3. Ownership and Use of Data. To the extent permissible and in compliance with applicable laws and regulations, eHungry shall own and retain full ownership of all data submitted by Reseller and/or the Restaurant(s) in connection with each Restaurant’s enrollment for and use of the Service, and hosted or stored on eHungry servers, including but not limited to: name, mailing and delivery address, email address, phone number, dollar amount of purchase, type of purchase and description of purchase (“Restaurant Data”). Nothing in this Agreement shall prevent or restrict Reseller from using any Restaurant Data or other information it collects or receives independent of its performance under this Agreement. eHungry shall not be liable for any of Reseller’s practices and/or procedures related to collecting Restaurant Data or other information for use in connection with the Service or otherwise, or for the accuracy of any such Restaurant Data or information. Upon termination or expiration of this Agreement for any reason, eHungry shall not be required to return any Restaurant Data to Reseller. The Service does not replace the need for Reseller to maintain regular data backups or redundant data archives. EHUNGRY SHALL HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF RESTAURANT DATA.
5. TERMINATION OF RESELLER AGREEMENT
5.1. Termination. eHungry may terminate this Reseller Agreement if you materially breach any provision in this Reseller Agreement and fail to cure such breach within 48 hours of written notice of such breach (which may be sent via email). In addition, either party may terminate this Reseller Agreement for any reason or no reason upon thirty (30) days’ written notice to the other party. eHungry may also terminate this Reseller Agreement immediately upon notice to you if: (a) it ceases to offer the Reseller Program; (b) it has reason to believe that there is an alleged or actual violation by Reseller or any of its employees or agents of any applicable laws, policies, guidelines, regulations, ordinances, rules and/or court orders; (c) any person or entity that eHungry reasonably determines to be a competitor or prospective competitor of eHungry acquires the power or ability, directly or indirectly, to exercise any controlling influence over Reseller or Reseller’s management, operations or policies (either alone or pursuant to an arrangement or understanding with one or more third parties); or (d) it reasonably believes that continuing hereunder could result in business or legal liability for eHungry, or otherwise harm eHungry or any third party
5.2. Effect of Termination. Upon termination or expiration of this Reseller Agreement for any reason: (a) you must immediately cease all efforts related to the Service and pay for any outstanding Fees; (b) you must return all equipment, marketing materials, documentation, and other materials supplied by eHungry; (c) you must destroy all Confidential Information in your possession and certify such destruction (unless we request that you return such materials to us). In addition to the foregoing, eHungry may choose to continue to provide the Service directly to any and all Restaurants included in Reseller’s Account (including any Restaurants there were in Reseller's Account at any time during the Term), and assume sole responsibility for such Restaurants. If Reseller violates this Reseller Agreement or eHungry’s TOS, Reseller understands that Reseller will immediately forfeit all Restaurants included in Reseller’s Account, including all data related to such Restaurants and orders processed in connection with Reseller’s Account, and eHungry may offer and/or provide the Service directly to any such Restaurants. You expressly agree that eHungry will have no obligation or liability to you resulting from: (1) termination or expiration of this Reseller Agreement for any reason in accordance with its terms, (2) any loss of business, profits, revenue, customers, and/or goodwill associated with termination of your Reseller Account in accordance with the terms of this Reseller Agreement; or (3) eHungry's offer and/or provision of the Service to any Restaurants following termination or expiration of this Agreement for any reason.
6.1. Confidential Information. Each party (the “Recipient”) understands that the other party (the “Discloser”) has disclosed or may disclose business, technical or financial information relating to the Discloser’s business (hereinafter referred to as “Confidential Information” of the Discloser). Confidential Information of eHungry includes non-public information regarding, features, pricing, functionality, and performance of the Service and Technology, and any other information about eHungry’s business and operations. Confidential Information of Reseller includes non-public data provided by Reseller for billing and payment purposes, or otherwise to enable the provision of the Service. Confidential Information shall not include any information that the Recipient can document (i) is or becomes generally available to the public, or (ii) was in its possession or known by it prior to receipt from the Discloser, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Discloser or (e) is required to be disclosed by law.
6.2. Confidential Information Obligations. During the Term and for a period of three (3) years after Termination, Recipient agrees to not use or disclose any Confidential Information of Discloser (i) unless necessary to satisfy Recipient’s obligations under this Agreement, or (ii) without first obtaining the express written consent of Discloser. Recipient agrees to use the same degree of care in protecting Discloser’s Confidential Information as it uses to protect its own Confidential Information; provided, however, that Recipient shall use at least commercially reasonable care in protecting Discloser’s Confidential Information.
6.3. Legal Disclosure. If Recipient becomes legally compelled to disclose any of Discloser’s Confidential Information, Recipient shall (i) provide prompt written notice of such requirement to Discloser so that Discloser may seek, at its sole cost and expense, a protective order or limitation of disclosure; (ii) provide reasonable assistance to Discloser, at Discloser’s expense, in opposing such disclosure or seeking a protective order or limitation of disclosure. If, after providing such notice and assistance, Recipient remains legally required to disclose such Confidential Information, Recipient shall only disclose the portion of Confidential Information legally required.
7. Indemnification. Reseller is fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of Reseller’s promotion, marketing, resale, and use of the Service. Reseller agrees defend, indemnify, and hold harmless eHungry and its and its officers, directors, employees, agents, successors, and assigns from and against any and all costs, damages, liabilities, losses, and expenses related to any claim or action by a third party arising out of or resulting from: (a) breach by Reseller or any of its employees or agents of any of the terms and conditions of this Reseller Agreement or eHungry’s TOS; (b) gross negligence or more culpable act or omission of Reseller or any of its employees or agents; (c) Reseller’s advertising, marketing, promotion, sale, or distribution of any of the Service; or (d) Reseller’s provision to eHungry of inaccurate or unauthorized information regarding a Restaurant (including by entering or uploading to the Service).
8. DISCLAIMER. THE SERVICE AND RESELLER PROGRAM IS PROVIDED ON AN ASIS AND ASAVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SERVICE WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, EHUNGRY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WE MAKE NO WARRANTY OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE, CONTENT, OR THE CONTENT OF ANY WEBSITES LINKED TO THE SERVICE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EHUNGRY WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.
9. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EHUNGRY OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES; SO, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
10. DISPUTE RESOLUTION
10.1. Binding Arbitration. If the parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT THIS PROVISION AFFECTS YOUR RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association ("AAA") and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes ("AAA Rules"), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA Rules or applicable law, the arbitration will take place in Wake County, North Carolina. Except as otherwise provided herein, the parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in Wake County, North Carolina, and the parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Notwithstanding the provisions of this Section 10, nothing in this Reseller Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
10.2. Restrictions. The parties agree that any arbitration shall be limited to the Dispute between the parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a classaction basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
10.3. Exceptions to Arbitration. The parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
11. CHANGES TO THE SERVICE AND THIS RESELLER AGREEMENT
11.1. Updates to the Service. We may update the Service at any time to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, and patterns of system use. We will make reasonable efforts to ensure that any such updates to the Service do not materially reduce the level of performance, functionality, security or availability of the Service.
11.2. Modifications to this Reseller Agreement. From time to time, we may modify this Reseller Agreement. The version of this Reseller Agreement in place at the time any orders are processed in connection with your Reseller Account is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication, but we also suggest that you refer to this Reseller Agreement periodically.
12.1. Relationship of the Parties. eHungry and Reseller are independent contractors. Nothing contained in this Reseller Agreement will be construed as creating any agency, partnership, franchise, joint venture or other form of joint enterprise, employment or fiduciary relationship between eHungry and Reseller. No exclusive relationship is formed between Reseller and eHungry by this Reseller Agreement or otherwise. Either party may engage or be engaged by a third party to this Reseller Agreement in a similar relationship to the relationship contemplated under this Reseller Agreement.
12.2. Publicity. The parties may work together to issue publicity and general marketing communications concerning their relationship and other mutually agreed-upon matters, provided, however, that neither party will have any obligation to do so. In addition, neither party will issue such publicity and general marketing communications concerning this relationship without the prior written consent of the other party.
12.3. Assignment. Reseller may not assign or transfer its rights or delegate its obligations under this Reseller Agreement without eHungry’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void.
12.4. Waiver. No waiver under this Reseller Agreement shall be effective unless agreed to in writing by the party waiving its rights hereunder. No failure or delay by either party in exercising any right or remedy under this Reseller Agreement will operate or be deemed as a waiver of any such right or remedy. The waiver of a breach of this Reseller Agreement will in no event constitute a waiver as to any other breach or prevent the exercise of any right under this Reseller Agreement.
12.5. Force Majeure. Neither Party shall be liable for any loss or delay resulting from any force majeure event, including acts of God, fire, natural disaster, labor stoppage, war or military hostilities, or inability of carriers to make scheduled deliveries.
12.6. Governing Law. This Reseller Agreement and all actions arising from this Reseller Agreement shall be governed by the laws of the state of North Carolina without giving effect to principles of conflicts of law.
12.7. Severability. If any provision of this Reseller Agreement is held to be unenforceable, then the parties agree that such provision shall be modified by the court or arbitrator, if any, to be enforceable under the maximum extent allowed by law; and, if such provision is found to be unenforceable to any extent, then such provision shall be completely excluded from this Reseller Agreement, and the remainder of the Reseller Agreement shall be enforceable in accordance with its terms.
12.8. Survival. Upon expiration or termination of this Reseller Agreement for any reason, all rights and obligations of the parties under this Reseller Agreement shall be extinguished, except that: (a) all accrued payment obligations hereunder shall survive such expiration or termination, if applicable; and (b) any other provisions of this Reseller Agreement that should reasonably survive expiration or termination shall survive such expiration or termination.
12.9. Entire Agreement. This Reseller Agreement constitutes the entire agreement between the parties relating to the subject matter herein, and supersedes all prior or contemporaneous discussions, understandings and agreements relating to the subject matter of this Reseller Agreement.