LighthouseAI Reseller Program Agreement with IP Indemnification
Last revised: May 1, 2023
This LighthouseAI Reseller Program Agreement (“Agreement”) is between Pharma Solutions USA, Inc., DBA LighthouseAI (“LighthouseAI”), a Pennsylvania corporation, located at 705 Montgomery Avenue, Suite 200 Penn Valley, Pennsylvania 19072, and Reseller and its Affiliates.
1. Distribution Grant. LighthouseAI grants to Reseller a non-exclusive, non-transferable license to resell Services for which it has met the requirements identified in Section 2 to end users in the Territory pursuant to the LighthouseAI license and/or service agreements applicable to such Services. “Services” as used herein means those LighthouseAI software-as-a-service offerings and associated professional services (including, but not limited to, consulting, management or monitoring) that LighthouseAI has chosen to make available hereunder in its sole discretion.
2. Reseller Requirements. Reseller has read the Reseller Program Guide (“Program Guide”) applicable to the Services it wishes to distribute located at www.lighthouse.com/reseller-program-guide and agrees to comply with the requirements, and will receive the benefits, set forth therein. Reseller shall retain the applicable number of full-time employees who have attained the certification(s) set forth in the Program Guide, if any. Requirements and benefits may be modified from time to time in LighthouseAI’s sole discretion by revisions to the Program Guide, but subject to thirty (30) days prior e-mail notice. The revised Program Guide will be posted as of the effective date (with a “Last revised” date reflecting such effective date).
3. Trademarks. During the term of this Agreement, LighthouseAI and Reseller shall have the right to identify Reseller as a “LighthouseAI Authorized Reseller.” Further, Reseller may refer to Services in compliance with the applicable LighthouseAI Trademark Guidelines which are incorporated herein by reference. Reseller shall obtain LighthouseAI’s written approval prior to the commencement of any other use of a LighthouseAI trademark, service mark or trade name. Reseller shall not register or apply for registration of any trademark service mark, business name, company name or trade name, which is identical or similar in whole part to any mark or name belonging to LighthouseAI. Reseller agrees that it will do all things necessary, including without limitation, executing any documentation, to support the transfer of any such trademark, service mark, business name, company name or trade name to LighthouseAI. Except as expressly granted herein, no license regarding the use of LighthouseAI’s copyrights, patents, trademarks or trade names is granted or implied.
4. Confidentiality. Each party expressly undertakes to retain in confidence the terms and conditions of this Agreement and all information transmitted to the other that (i) the disclosing party has identified in writing as confidential, or (ii) due to the circumstances of disclosure or the nature of the information, should reasonably be considered confidential. Either party may disclose confidential information as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party prior to its disclosing to the receiving party; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; or (iii) is independently developed by the receiving party. Each party’s obligation under this Section shall extend to the earlier of such time as the information protected hereby falls into the public domain through no fault of the receiving party or five (5) years from the date of disclosure.
5. Term and Termination. This Agreement shall take effect on the date of its acceptance by LighthouseAI (“Effective Date”), and unless terminated earlier as provided herein, shall continue until the first January 31st following the Effective Date. Notwithstanding the foregoing, if the Agreement Effective Date is in October, November, December or January, the expiration date of this Agreement shall be the following January 31st. Either party shall have the right to terminate this Agreement at any time, with or without cause and without the intervention of the courts, upon the giving of thirty (30) days prior written notice. Both parties agree that the opportunities presented by this Agreement constitute adequate consideration for such a termination right. Neither party shall be responsible to the other for any costs or damages resulting from the termination of this Agreement. Upon expiration or termination of this Agreement, all rights and licenses granted by this Agreement shall revert to LighthouseAI and Reseller shall immediately cease use of the same, and shall cease to represent itself as a LighthouseAI Reseller.
6. Sourcing, Payment and Delivery of Services. Services shall be sourced from LighthouseAI as instructed and made available by LighthouseAI. Reseller purchase orders shall be exclusively under the terms of this Agreement with payment due net thirty (30) days after the date of invoice. Notwithstanding, LighthouseAI does not control Reseller pricing as to its customers. In submitting orders to LighthouseAI, Reseller must provide LighthouseAI with a valid reseller tax exemption certificate for each state to which LighthouseAI will be selling Services, as well as the Reseller’s home state tax exemption certificate. Services shall be delivered electronically/remotely. Certain Services may be auto-renewing. Auto-renewals are for the same term as initially purchased. Reseller’s purchase and resale of an auto-renewing Service does not obligate or entitle it to participate in the purchase and resale of the renewal. Purchases of a multi-year SaaS subscription offering are always for the full value of all years of the subscription. Some SaaS subscriptions offerings are billed on an annualized basis (split over the term and paid in equal amounts prior to the start of each 12-month term). In the event of a default under any annual payment, any and all remaining payment amounts become immediately due and payable. If Reseller purchases a SaaS subscription offering under a consumption-based subscription model, Reseller’s purchase constitutes its agreement to be invoiced for and pay for consumption at intervals and pricing as defined in the subscription model. LighthouseAI reserves the right to suspend or terminate a customer Service offering or any portion thereof for non-payment and as otherwise set forth in the applicable end user terms of service. All orders, including renewals, are subject to acceptance by LighthouseAI in its sole discretion. All end user information provided by or on behalf of end user for a Service must be current, complete and accurate, and Reseller and the end user are responsible for keeping such information updated. All purchases from LighthouseAI shall be final with no right of cancellation, return or refund. Nothing contained in any purchase order or any other document submitted by Reseller shall in any way modify the terms and conditions contained in this Agreement.
7. New Services. Notwithstanding any other provisions of this Agreement, LighthouseAI may elect at any time during the term of this Agreement to announce new Services to which the terms and conditions of this Agreement may or may not apply. New versions (upgrades), minor product revisions (updates), and maintenance releases of existing offerings are not considered new Services. LighthouseAI may likewise elect to terminate availability of Services hereunder pursuant to its then current end-of-life policy.
8. Limited Warranties. LighthouseAI warrants Services to end-users under the terms set out in the license and/or service agreements applicable to such Services. THESE LIMITED WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT AND OF ALL OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON LIGHTHOUSEAI’S PART EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW. PRODUCTS AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR DISTRIBUTION OR USE WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Reseller warrants that it has the authority to bind under this Agreement those of its Affiliates distributing Services under this Agreement, if any. Reseller will be liable to LighthouseAI in the event any such Affiliate fails to comply with any term or condition of this Agreement.
9. IP Indemnification. LighthouseAI shall indemnify and defend Reseller against any third party Infringement Claim, and pay reasonable attorneys’ fees, court costs, damages finally awarded, or reasonable settlement costs, with respect to such Infringement Claim; provided that: (i) Reseller promptly notifies LighthouseAI in writing of an Infringement Claim such that LighthouseAI is not prejudiced by any delay of such notification; (ii) LighthouseAI has sole control over the defense and any settlement of any Infringement Claim; and (iii) Reseller provides reasonable assistance in the defense of same. If Reseller’s resale of the Services and/or its customers’ use is, or in LighthouseAI’s opinion is likely to be, enjoined as a result of an Infringement Claim, LighthouseAI shall, at its sole option and expense, either (i) procure for Reseller the right to continue to resell the Services as contemplated herein, or (ii) replace or modify the Services to make their resale and use non-infringing without degradation in performance or a material reduction in functionality. If options (i) and (ii) are not reasonably available, LighthouseAI may, in its sole discretion and upon written notice to Reseller, cancel access to the Services, including the right of Reseller to resell the Services, and refund any pre-paid unused fees for those Services (subject to Reseller’s flow-down of pre-paid unused fees to its customers which purchased those Services). For purposes of this Agreement, “Infringement Claim” means any claim, suit or proceeding brought against Reseller based on an allegation that the Services, as delivered by LighthouseAI, infringe upon any patent or copyright or violate any trade secret rights of any third party. LighthouseAI assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Reseller’s resale of the Services following notice of an Infringement Claim; (ii) any modification of the Services by Reseller or its customers at its direction; (iii) Reseller’s combination of the Services with its own products or services or any other third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by LighthouseAI or involving any marking or branding applied at Reseller’s request. THE FOREGOING STATES LIGHTHOUSEAI’S SOLE LIABILITY AND RESELLER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
10. Limitation of Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION UNDER SECTION 9, AND SUBJECT TO APPLICABLE LAW, NEITHER LIGHTHOUSEAI NOR ANY SUPPLIER WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SERVICES OR SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSSES OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, LOSS OF OPPORTUNITY AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, OR PROVISION OF, OR FAILURE TO PROVIDE, SUPPORT OR OTHER SERVICES, EVEN IF LIGHTHOUSEAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY. IN ANY EVENT, EXCEPT WITH RESPECT TO INDEMNIFICATION UNDER SECTION 9, AND AS OTHERWISE PROVIDED BY LAW, THE LIABILITY OF LIGHTHOUSEAI OR ITS SUPPLIERS, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE, SHALL, IN THE AGGREGATE, NOT EXCEED THE AMOUNT PAID OR PAYABLE BY RESELLER FOR THE SERVICES AT ISSUE. FURTHER, AS STATED IN SECTION 5, NEITHER PARTY SHALL BE RESPONSIBLE TO THE OTHER FOR ANY COSTS OR DAMAGES RESULTING FROM THE TERMINATION OF THIS AGREEMENT.
11. Territory. Reseller’s territory shall be worldwide (“Territory”). Reseller Territory is non-exclusive and this Agreement does not prohibit, impair or affect the right to LighthouseAI to market and sell Services directly in the Territory or indirectly through other Resellers or partners.
12.1 Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, franchise or agency relationship between LighthouseAI and Reseller. Reseller agrees that it shall inform its customers that Reseller is an independent business from LighthouseAI, and shall not hold itself out as an agent of LighthouseAI, or attempt to bind LighthouseAI to any third-party agreement. Reseller shall inform its customers in its marketing materials and through its sales process that use of Services are subject to the terms of the customers’ license and/or service agreements with LighthouseAI.
12.2 This Agreement shall be governed by the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by a panel of three (3) arbitrators administered by the American Arbitration Association under Commercial Arbitration Rules. The majority decision of the arbitration shall be final and binding upon the parties. The arbitration hearing shall take place in Philadelphia, Pennsylvania. The prevailing party shall be entitled to recover cost and attorney’s fees. In no event shall punitive damages be awarded. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Discovery shall be limited to written requests for information and documents, and any dispute regarding discovery shall be conclusively determined by the chair of the arbitration panel. Except to enforce the award, the parties shall treat the existence, content or result of arbitration as confidential information under this Agreement. Either party may apply to any court of competent jurisdiction for injunctive relief without waiver or breach of this provision.
12.3 Neither party will be responsible or have any liability for any delay or failure to perform its nonmonetary obligations hereunder to the extent due to unforeseen circumstances or causes beyond its reasonable control, including without limitation: (i) acts of God; (ii) pandemics, (iii) electrical power failures or surges; (iv) utilities or other telecommunications failures; (v) storms or other elements of nature; or (vi) terrorism or acts of war; but only for so long as such condition exists.
12.4 Reseller represents that neither it nor its owners, directors, employees, agents or partners has or will directly or indirectly offer, promise, give or pay, or authorize payment of anything of value to any person to improperly obtain, retain or direct business or secure an improper advantage in connection with the marketing or sale of LighthouseAI Services. Reseller represents that none of its owners, directors, employees, agents, or partners has been convicted of or pleaded guilty to bribery, fraud or related charges. Reseller shall comply with the then current LighthouseAI Supplier/Partner Code of Business Conduct. LighthouseAI Reseller shall also comply with the United States Foreign Corrupt Practices Act, the UK Bribery Act of 2010 or any other applicable anti-bribery and anti-corruption laws. Reseller agrees to implement adequate procedures to prevent a breach of this Section and to make all personnel engaged in the marketing and sale of Services available for compliance training, as reasonably requested by LighthouseAI.
Except as disclosed by Reseller to LighthouseAI, and to the best of its knowledge, none of Reseller’s owners, directors, employees, partners or agents, or close family members thereof (i.e., spouses, children, parents and siblings), is presently (or has been within the last year) a Government Official at an existing LighthouseAI end user or an entity for which the sale of Services is pending. Reseller acknowledges that, for purposes of this Section, a “Government Official” is (i) any officer or employee, appointed or elected, of a local, state, regional or federal government, or any department, agency, ministry or instrumentality of a government; (ii) any individual who, although temporarily or without payment, holds a public position, employment or function; (iii) any officer or employee of a public international organization; (iv) an individual acting in an official capacity for or on behalf of a government department, agency, ministry, instrumentality or public international organization; (v) a political party, a political party official, officer or employee or any candidate for political office; (vi) any officer or employee of an entity owned or controlled by a government, as well as entities that perform a government function; or (vii) a member of a royal family, including one who may lack formal authority, but could otherwise be influential in advancing LighthouseAI’s business interests, through, for example, partially owning or managing a state-owned or state-controlled entity. Reseller further acknowledges that, for purposes of this Section, a relative of a Government Official is also a Government Official if interactions with that relative are intended or have the effect of conferring anything of value on a Government Official. Reseller shall promptly inform LighthouseAI if Reseller learns that any such person, as described above, assumes such a position.
Reseller agrees to accurately and promptly track the type and value of hospitalities provided to LighthouseAI customers, and in particular, Government Officials in connection with LighthouseAI events. For example, Reseller agrees to keep records of the following information in connection with bringing LighthouseAI customers to LighthouseAI-sponsored marketing events: date, name of recipient, affiliated company, value, description of item (e.g., flight, lodging, dinner, giveaways), and whether recipient is a Government Official. Such records shall be made available to LighthouseAI promptly upon request.
Should Reseller become aware of a breach or potential breach of this Section, or applicable anti-corruption laws, Reseller shall promptly notify LighthouseAI. In the event that LighthouseAI has reason to believe that a breach of this Section has occurred or may occur, without limiting LighthouseAI’s remedy in law or equity, LighthouseAI may at its discretion, and without liability to Reseller, do either or both of the following: (i) terminate this Agreement immediately; and/or (ii) withhold delivery of any Services or any payments otherwise due and payable under this Agreement until it receives confirmation to its satisfaction that no breach has occurred or will occur.
Reseller represents that it has kept and will keep accurate books, accounts and records related to its LighthouseAI business and represents that no side or off-books funds exist. LighthouseAI Solution Adviser shall devise and maintain sufficient internal controls to ensure the accuracy of such books, accounts and records, and shall not cause or permit any incomplete or inaccurate entry in such books and records to be made. During the term of this Agreement and for a period of two (2) years thereafter (including, at a minimum, two (2) years after the final payment under this Agreement), Reseller shall allow LighthouseAI, or its independent audit firm, access, upon at least fourteen (14) days’ notice, to such books, accounts and records to verify compliance with this Subsection 12.4 or for any purpose set out in the Program Guide. LighthouseAI shall treat information provided by Reseller under this section as confidential information under this Agreement, and may disclose it only to its employees, officers and professional advisers who need to know the same, or as required by law.
12.5 Reseller acknowledges that the export of certain commodities, technical data, and services from the United States to a country outside the United States, as well as the re-export to a third country, retransfer to an unapproved end user, or modification to the end use of such commodities, technical data, or services, may require an export license, re-export license, or other authorization granted by the Government of the United States. Such licenses or other authorizations may impose further restrictions on the re-export, retransfer, or modification to the end use of such commodities, technical data, or services from such country. U.S. law also restricts the export, re-export, or retransfer of U.S.-origin goods, technology, or services to countries or persons subject to U.S. sanctions or embargoes. Reseller agrees to comply with all applicable U.S. export control, sanctions, and embargo regulations, including, but not limited to, the Arms Export Control Act, the International Traffic in Arms Regulations (“ITAR”), the Export Administration Regulations (“EAR”), and regulations promulgated by the U.S. Department of the Treasury Office of Foreign Assets Control. Reseller further agrees to comply with the terms of any licenses or other authorizations applicable to Services.
12.6 Reseller shall defend, indemnify, and hold harmless LighthouseAI from and against all liabilities, claims, costs, fines, and damages of any type (including attorney’s fees) arising out of or in any way related to Reseller’s (i) design, manufacture, marketing (including misrepresentation), sale or delivery of its own products or services to its customers; (ii) marketing (including misrepresentation) or sale of Services; (iii) failure to provide tax exemption certificates as required under Section 6; or (iv) breach of Subsection 12.4 or 12.5.
12.7 If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions. No waiver of any breach of any provisions of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the waiving party. Except for LighthouseAI documents incorporated by reference, no term or provision of this Agreement may be changed, waived, discharged or terminated except by a writing signed by duly authorized representatives of the parties hereof. The terms of any other documents or electronic communications exchanged (including the terms set forth on any purchase order) shall be of no force or effect unless incorporated herein as a modification or addition to the terms of this Agreement. The making and delivery of this Agreement have been induced by no representations, statements, warranties or agreements other than those herein expressed.
12.8 This Agreement and any rights or obligations hereunder, shall not be assigned or sublicensed by Reseller, without prior written consent from LighthouseAI. LighthouseAI may assign, novate or otherwise transfer, without Reseller’s approval, its rights or obligations arising out of or under this
Agreement pursuant to a merger, corporate reorganization, or a sale or transfer of all or substantially all of LighthouseAI’s assets; or to any of LighthouseAI’s affiliates. Reseller must do all things, include execute all documents, reasonably required by LighthouseAI to give effect to such assignment, novation or transfer. Subject to this restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
12.9. Termination or expiration of this Agreement shall not relieve either party of any liability or obligation intended by the parties to survive expiration or termination, specifically those under Sections 4, 6, 8, 9, and 10, and Subsections 12.1, 12.2, 12.6, 12.7, 12.8 and 12.9. All other rights and obligations of the parties shall cease upon expiration or termination of this Agreement.
12.10 LighthouseAI agrees to deal with any personal data relevant to Reseller’s customers in accordance with applicable data protection laws and regulations. Reseller acknowledges that LighthouseAI may use such personal data (and other data) as set forth its license and/or service agreements applicable to such Services. Reseller agrees to obtain any notices or obtain any necessary consents from its users or otherwise establish the required legal basis for the above purposes.
12.11 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications including all prior and current Reseller agreements. It shall not be modified except by a written agreement dated subsequent to the Effective Date of the Agreement and executed or accepted on behalf of Reseller and LighthouseAI by their respective duly authorized representatives.