Terms of Agreement - Reseller

GENERAL PROVISIONS

1. Definitions

Product shall mean the ShotCode, the use of the OP3 software which generates a message after a camera shot of a ShotCode;
ShotCode offline web links. When captured by a mobile camera, ShotCodes instantly and effortlessly take users to any desired location on the internet.
Term shall mean that period commencing on the date hereof and lasting for a period of 12 (twelve) complete months. Thereafter, automatically renew for one-year terms until terminated upon at least a 10 (ten) days notice by either party.
OP3 OP3 B.V., a limited liability company incorporated under the laws of the Netherlands who has its registered office and place of business in Amsterdam, at 53-(II) Overtoom, (1054 HB), The Netherlands.
Reseller the person or company that enrolls on the OP3 website to become a party that resells the Product to customers.

1. Formation of the agreement

The enrolment process starts by submitting a properly completed Reseller application using the online form on the OP3 website. The Agreement will only begin upon acceptance by OP3 of the Reseller application. OP3 has the right to reject an application without stating any reason.

2. Appointment

OP3 appoints as a non-exclusive independent trade agent for the Product listed above, and Reseller hereby accepts such appointment. Reseller's sole authority shall be to offer applications for the Product in accordance with these Terms of Agreement. Reseller shall not have the authority to make any commitments whatsoever on behalf of OP3.

3. General Duties

Reseller shall use its best efforts to promote the product and maximize the sale of the product through its sales channels.

4. Reserved Rights

OP3 is at its sole discretion to fully control the strategy, marketing, pricing, business model and distribution of the Product.

5. Conflict of Interest

Reseller shall not sell or develop any software which is similar, identical or competitive to OP3Õs ShotCode technology for at least 2 year after the Agreement has ended.

6. Independent Contractor

Reseller is an independent contractor, and nothing contained in These terms of Agreement shall be construed to
(i) give either party the power to direct and control the day-to-day activities of the other,
(ii) constitute the parties as partners, joint ventures, co-owners or otherwise, or
(iii) allow Reseller to create or assume any obligation on behalf of OP3 for any purpose whatsoever. Reseller is not an employee of OP3 and is not entitled to any employee benefits. Reseller shall be responsible for paying all income taxes and other taxes charged to Reseller on amounts earned hereunder. All obligations associated with Reseller's business are the sole responsibility of Reseller.

7. Indemnification

A. Reseller shall indemnify and hold OP3 free and harmless from any and all claims, damages or lawsuits (including reasonable attorneys' fees) arising out of negligence or malfeasant acts of Reseller, its employees or its agents.
B. OP3 shall indemnify and hold Reseller free and harmless from any and all claims, damages or lawsuits arising out of defects in the Products caused by OP3.

8. Commission

A. Basis of Commission. The Commission shall apply to all sold Products by Reseller, that have been accepted by OP3 and for which funding has occurred. After OP3 has received the revenues, it shall pay Reseller a 50% of Net Sales, as applicable, as its commission earned for the sale (ÒCommissionÓ).
B. Net Sales is the Gross Sales minus the Transaction Costs of the sale.
C. The Transaction Costs are 0,25 Euro per transaction plus 3,6% of Net Sales.
D. The minimum revenueshare to be payed out for Reseller is 100 Euros.
E. When OP3 has received payment of the revenues in its bankaccount, OP3 will payout the revenueshare to Reseller within 1 (one) month.
F. Statements. OP3 shall provide Reseller with a reseller account with up to date statements of commissions due and payable to Reseller under the terms of the Agreement, with reference to the specific cash advances on which the commissions are being paid.
G. Inspection. Reseller shall have the right, at its own expense and not more than once in any 6 month period, to inspect at reasonable times OP3's relevant accounting records to verify the accuracy of commissions paid by OP3 under the terms of the Agreement. If the audit correctly reveals that OP3 has underpaid Reseller by 10% (ten percent) or more, then OP3 shall reimburse Reseller for the cost of the audit, in addition to the amount of underpayment.
H. Additional Fees. Reseller agrees that their applicant will pay no upfront fee's, commissions, origination fee's, or whatsoever.

9. Marketing Materials

Any brochures, documents, web pages or marketing materials provided by OP3 to Reseller shall remain the property of OP3. Reseller shall have full responsibility of keeping these materials up to date during the entire time that they represent the company's programs. Within 7 (seven) days of a written request from OP3, Reseller shall return all marketing and proprietary information to OP3.

10. Additional Responsibilities of Reseller

A. Expense of Doing Business. Unless otherwise agreed to in writing, Reseller shall bear the entire cost and expense of conducting its business in accordance with the terms of the Agreement.
B. Facilities. Reseller shall provide itself with, and be solely responsible for,
a. such facilities, employees, and business organization, and
b. such permits, licenses, and other forms of clearance from governmental or regulatory agencies, if any, as are necessary for the conduct of Reseller's business operations in accordance with the Agreement.
C. Promotion of the product.
Reseller shall, at its own expense, promote the sale of and stimulate demand for the product. In no event shall Reseller make any representation, guarantee or warranty concerning the product except as expressly authorized by OP3.
D. Customer Service. Reseller shall diligently assist merchants personnel in using the product and shall perform such additional customer services as good salesmanship requires and as OP3 may reasonably request.
E. Advising of Changes. Reseller shall promptly advise OP3 of
a. any changes in the status of any major customers of OP3, and
b. any political, financial, legislative, industrial or other events that could affect the mutual business interests of Reseller and OP3, whether harmful or beneficial.
F. Books and Records. Reseller shall maintain accurate books, records, and accounts relating to the business of Reseller with respect to cash advances funded. Reseller shall also maintain a record of any merchant complaints regarding either the product or OP3 and immediately forward to OP3 the information regarding those complaints.

11. Additional Obligations of OP3

A. Assistance in Promotion. OP3 shall, at its own expense, promptly provide Reseller with OP3 branded marketing, instructional material and any other appropriate materials that will assist Reseller if needed.
B. Assistance in Customer Problems. OP3 shall, at its own expense, assist Reseller and customers in all ways deemed reasonable by OP3 in the solution of any problems relating to OP3's product.
C. New Developments. OP3 shall inform Reseller of new product developments that are associated with the product from time to time.

12. Trademarks and Trade names

A. Use. During the term of the Agreement, Reseller shall have the right to indicate to the public that it is an authorized Reseller of OP3's Product and to advertise such Products under the trademarks, marks, and trade names that OP3 may adopt from time to time ("OP3's Trademarks"). Nothing herein shall grant Reseller any right, title, or interest in OP3's Trademarks. At no time during or after the term of the Agreement shall Reseller challenge or assist others to challenge OP3's Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of OP3. OP3 indemnifies its Reseller for all use of OP3's Trademarks.
B. Approval of Representations. All presentations of OP3's Trademarks that Reseller intends to use shall first be submitted to OP3 for approval (which shall not be unreasonably withheld) of design, colour, and other details or shall be exact copies of those used by OP3.

13. Term and Termination

A. Term. The Agreement shall commence upon the acceptance of the Reseller application and continue for 12 (twelve) months, unless terminated earlier as provided herein. Thereafter, automatically renew for one-year terms until terminated upon at least a two month notice by either party.
B. Termination for Cause. If either party defaults in the performance of any material obligation in the Agreement, then the non-defaulting party may give written notice to the defaulting party and if the default is not corrected within 30 (thirty) days following such notice, the Agreement will be terminated.
C. Termination for Insolvency. The Agreement shall terminate, without prior notice,
a. upon the institution by or against Reseller of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Reseller 's debts,
b. upon Reseller 's making an assignment for the benefit of creditors, or
c. upon initiation of dissolution proceedings of the Reseller.
D. Additional Commissions. In addition to any commissions already earned by Reseller but not yet paid by OP3 under the terms herein, OP3 shall pay commissions to Reseller on all fundings that were solicited by Reseller, that were funded by OP3 within 7 (seven) days after the date of receipt of the final contracts by OP3, and for which OP3 receives payments within 7 (seven) days after the date of termination of the Agreement ("Additional Commissions"). The payment of such Additional Commissions shall only be applicable, however, if Reseller has complied in a timely manner with the provisions of subsection E. below. The schedule and basis for Additional Commissions shall be as set forth in Section 8 above. No Additional Commissions shall be earned by Reseller or paid by OP3 until full payment for the product on which the additional commission is based is received by OP3.
E. Return of Materials. All of OP3's trademarks, trade names, patents, copyrights, designs, drawings, formulas or other data, photographs, demonstrators, literature, and sales aids of every kind shall remain the property of OP3. Within 7 (seven) days after the termination of the Agreement, PARTY B shall return all such items to OP3 at Reseller 's expense. Reseller shall not make or retain any copies of any confidential items or information that may have been entrusted to it. Effective upon the termination of the Agreement, Reseller shall cease to use all trademarks, marks and trade name of OP3.

14. Limitation on Liability

In the event of termination by either party in accordance with any of the provisions of the Agreement, neither party shall be liable to the other, because of the termination for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, investments, leases or commitments in connection with the business or goodwill of OP3 or Reseller. OP3's sole liability under the terms of the Agreement shall be for any unpaid commissions.

15. Confidentiality

Reseller acknowledges that by reason of its relationship to OP3 hereunder, it will have access to certain information and materials concerning OP3's business plans, customers, technology, and products that is confidential and of substantial value to OP3, which value would be impaired if such information were disclosed to third parties. Reseller agrees that it shall not use in any way for its own account or the account of any third party, nor disclose to any third party, any such confidential information revealed to it by OP3. OP3 shall advise Reseller whether or not it considers any particular information or materials to be confidential. Reseller shall not publish any technical description of the Products beyond the description published by OP3. In the event of termination of the Agreement, there shall be no use or disclosure by Reseller of any confidential information of OP3, and Reseller shall not manufacture or have manufactured any devices, components or assemblies utilizing OP3's patents, inventions, copyrights, know-how or trade secrets.

16. Assignment

Neither party may assign or otherwise transfer the Agreement without the written consent of the other party. The Agreement shall endure to the benefit of and bind the parties hereto and their respective legal representatives, successors and assigns.

17. Entire Agreement

The Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes any prior discussions or agreements between them. No modification of or amendment to the Agreement, nor any waiver of any rights under the Agreement, shall be effective unless in writing signed by the party to be charged.

18. Currency

All calculations shall be done in Euro, excluding VAT.
All payments and revenue shares will be done in Euros, including VAT if necessary.

19. Notice

Any notice required or permitted to be given hereunder shall be in writing and shall be deemed given
* when delivered personally to any officer of the party being notified; or
* on the third business day after being sent by registered or certified mail, postage prepaid, facsimile telecopy, addressed as follows:

To OP3:
Dennis Timmermans
Overtoom 53 - II
1054HB Amsterdam
The Netherlands
Phone: 0031 653 616199
Fax:: 0031 020 489 4606
Email: dtimmermans@op3.com

20. Non-Assignability and Binding Effect

A mutually agreed consideration for OP3's entering into the Agreement is the reputation, business standing, and goodwill already honoured and enjoyed by Reseller under its present ownership, and, accordingly, Reseller agrees that its rights and obligations under the Agreement may not be transferred or assigned directly or indirectly. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.

21. Force Majeure

Neither party hereto shall be responsible for any losses or damages to the other occasioned by delays in the performance or non-performance of any of said partyÕs obligations when caused by Acts of God, strike, acts of war, inability of supplies or material or labour or any other cause beyond the reasonable control of the said party.

22. Severability

In the event any portion of the Agreement is deemed to be invalid or unenforceable, such portion shall be deemed severed and the parties agree that the remaining portions of the Agreement shall remain in full force and effect.

23. Legal Expenses

The prevailing party in any legal action brought by one party against the other and arising out of the Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys' fees.

24. Headings

Headings used in the Agreement are provided for convenience only and shall not be used to construe meaning or intent.

25. Warranties

* Each party warrants and represents that it has the full right and authority to enter into the agreement and that it is not aware of any impediment which would inhibit its ability to perform the terms and conditions imposed on it.
* Neither party makes any representation or extends any warranties of any kind either express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, or validity of any patents issued or pending

26. Counterparts

The Agreement may be executed in counterparts in the same form and such parts so executed shall together form one original document and be read and construed as if one copy of the Agreement had been executed.

27. Governing Law

The Agreement is constructed with and governed by the laws of The Netherlands without regard to any conflict of laws provisions. All disputes, which may arise outside or in connection with an Agreement shall be submitted to the exclusive jurisdiction of competent court in Amsterdam, the Netherlands.