SOFTWARE & DATABASE RESELLER AGREEMENT
This Software and Database Reseller Agreement (the “Agreement”) is effective [DATE],
BETWEEN CREDDER INC. (the "Company")
a company organized and existing under the laws of the United State with its head office located at:
One Sansome Street, Suite 3500, San Francisco, CA 94104
AND (RESELLER - INSERT FULL COMPANY NAME] (the "Reseller")
a company organized and existing under the laws of (INSERT HERE), with its headquarters located at:
(Address here) (Collectively “the Parties”)
WHEREAS the Company is the owner of certain Software Platform, API and Database known collectively as the Product (“the Product”).
AND WHEREAS the Company has developed and plans to continue the development of technology solutions (software, API and database) that facilitates the gathering of crowdsourced Content Reviews, an Enterprise Application Programming Interface (API), Database of content reviews, aggregated scores and rankings of articles, authors and news / content websites, as well as, services for the Implementation of the Product above;
AND WHEREAS The Reseller is a consulting, technology, platform or value-added reseller company, selling technology solutions, software, value-added services, database Products and related Services, and is currently active in the U.S. market;
AND WHEREAS the Reseller is focused on providing the CredderTM Product to their existing client base and new customers;
AND WHEREAS the Reseller may expand its business into other pre-agreed market verticals and geographic regions in the future;
AND WHEREAS the Reseller acknowledges and agrees that the Company, in entering into this Agreement, is relying on the representations made by the Reseller with respect to the Reseller's sales and marketing strength;
AND WHEREAS the Company is granting to the Reseller, as of the date hereof, non-exclusive Reseller rights with respect to Product;
AND WHEREAS the Company is granting to the Reseller, as of the date hereof, non-exclusive Reseller rights for the software platform Product known as Credder Content Review software, Credder Enterprise API, the Credder Content Credibility Database and related Implementation services;
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
1.1. “Content Review Software, Enterprise API, Content Credibility Database” means a cloud-based software platform and database Product developed by the "Company";
1.2. "Agent" means a person authorized pursuant to paragraph 3.2 of this Agreement to act as agent for the Reseller; 1.3. "Business Day" means a day other than a Saturday, Sunday or a public (bank) holiday in the United States;
1.4. “Company Officer" means a designated and authorized officer from the Company;
1.5. "Competitive Product" means any software product or solution that provides the same or substantially similar functionality and features as Credder’s Product;
1.6. “Confidential Information” means all material, non-public, business-related information, written or oral, whether or not it is marked as such, that is disclosed or made available to the receiving party, directly or indirectly, through any means of communication or observation, and any information or data disclosed to the other Party pursuant to this Agreement either in writing or orally, which shall have been designated to the other Party in writing or orally as confidential or which is treated as confidential by the other Party in accordance with normal practices in the Information Technology industry;
1.7. "Customer" means the beneficiary of a License to which the Reseller provides the Product(s);
1.8. “Exclusive” means the restricted opportunity per Customer basis, recorded and established either in terms of this agreement or in terms of a related agreement; “Non-exclusive” means the unrestricted opportunity for the Company to utilize other Resellers or the Company to limit the Reseller to a certain Industry or Territory;
1.9. “IPR” or “Company’s IP” (Intellectual Property Rights) includes patents, trademarks, service marks, registered designs, integrated circuit topography, including applications for any of the foregoing, as well as copyright, design rights, know-how, confidential information, trade and business names and any other similar rights in any country;
1.10. "Industry Verticals" means the vertical market in which Resellers or Agents offer goods and services specific to an industry, trade, profession, or other group of Customers with specialized needs;
1.11. "License" means the grant of authority by the Reseller (it's Sub-Resellers or Agents) to a Customer to operate company-wide access of the software and/or database Product on the designated cloud infrastructure, on the terms and conditions set out herein;
1.12. “Notify” meaning the submission of a support ticket to the Company;
1.13. "Planned Products" means those planned software developments and database enhancements presently included in the platform road map for the Company’s Content Review Software, Enterprise API, and Content Credibility Database;
1.14. "Preferential" means under terms and conditions no less favorable for the beneficiary of such conditions as those given, at the relevant time, to any third party under the same or similar circumstances;
1.15. "Product" means the executable version of the Company's Content Review Platform Software, Enterprise API Software, Content Credibility Database and any of its sub components, as the case may be, and all modifications, enhancements and replacements thereof and additions thereto which may be provided by the Company and made available to the Reseller from time to time pursuant to this Agreement and shall include any Planned Product(s) as soon as the Company shall consider, in its sole discretion, that any such Planned Product has achieved a sufficient level of development to be ready for Reseller;
1.16. "Product Description" means the documents describing the data and functions of the Product as may be supplied to the Reseller by the Company from time to time;
1.17. "Product Documentation" means any database specifications, operating manuals, API documentation, help screens and other documents provided by the Company to the Reseller from time to time for use by the Reseller or Customers in conjunction with the Product;
1.18. "Product Materials" means the relevant Product, together with the Product Description and the Product Documentation related to this Product and related Services;
1.19. "Related Agreements" means those ancillary agreements entered into between the Company and the Reseller, as of the date hereof;
1.20. "Reseller Officer" means authorized and designated officer from the Reseller;
1.21. "Standard" means published standard terms and conditions or, absent such publication, terms and conditions normally granted to unrelated third parties in the ordinary course of business for the provision of a given Product or Service;
1.22. "Company Officer" means an individual who shall be an officer or a full-time employee of the Company who is assigned special obligations on behalf of the Company with regards to “IPR” and “Source Code” protections for the Company, Reseller, Sub-Reseller and Customer;
1.23. “SLA” (Service Level Agreement) means the agreement between the Company and the Reseller, the terms of which describes and identifies both the services required and the expected level of services for the Product;
1.24. "Services" means any Product support, implementation, or consultancy services provided or to be provided by the Reseller pursuant to any agreement entered into with a Customer, including for the installation, the support, the mutually agreed upon custom programming and the enhancement of the Products (any custom programming by the Company will require scoping, estimating and approval by the Company);
1.25. "Source Code" means all existing and available logic, logic diagrams, flowcharts, orthographic representations, algorithms, routines, subroutines, utilities, modules, file structures, coding sheets, coding, source codes listings, functional specifications, functional diagrams, program specifications and all other existing and available materials and documents necessary to enable a reasonably skilled programmer to maintain, amend and enhance the relevant Product without reference to any other person or documentation, both in human-readable or machine-readable form;
1.26. “Sub-Reseller” means a third party Reseller authorized by the Reseller to sell the Product and Product Collateral (such as marketing materials);
1.27. "Taxes" means duties, sales and use taxes, withholding taxes, excise and value-added taxes, duties and charges imposed by federal, state or local governmental authorities, but excluding corporate income taxes and other taxes;
1.28. "Territory" means the territories referred to under the Section 2. When used in conjunction with the term “Product", "Product Materials", "Product Documentation" or "Product Description", the term "Territory" shall be understood as referring only to those defined geographic areas or countries, or part thereof, for which the Reseller rights with respect to the relevant Product, Product Materials, Product Documentation or Product Description are granted to the Reseller under Section 2;
1.29. "Trademarks" shall mean the following names and trademarks owned by ‘the Company:
1.29.1. “Credder”
2. APPOINTMENT
2.1. The Company hereby grants to the Reseller, who accepts, the non-exclusive worldwide right to resell its Products to Customers, subject to 2.2 herein, and to provide other Services for a Customer or for resale by an authorized Reseller pursuant to an order for the Product(s) in the Territory;
2.2. For the purpose of paragraph 2.1, the Territory and/or Industry Vertical shall be as stated in Schedule 35.1.B. herein.
3. SUB-RESELLERS AND AGENTS
3.1. The Reseller shall not be entitled to assign any of its rights or obligations under this Agreement or appoint any Sub-Reseller or Agent to perform such obligations, save in accordance with the provisions of this paragraph;
3.2. The Reseller may appoint Sub-Resellers or Agents provided:
3.2.1. That the Company has previously approved the appointment of each such Sub-Reseller and Agent in writing;
3.2.2. Such Sub-Reseller and Agent has acknowledged in writing to the Company in the terms set forth under the heading “CONFIDENTIALITY” hereinbelow, or such other terms as the Company may accept that such Sub-Reseller or Agent shall retain any confidential information reviewed by it pursuant to the Sub-Reseller or agency in confidence and apply it only for the purposes of the Sub-Reseller or agency;
3.2.3. No appointment shall be assignable or transferable;
3.2.4. The Reseller shall be directly responsible to the Company for the performance of all monetary obligations due from the Sub-Resellers or Agent to the Company as if they were due from the Reseller directly;
3.2.5. The Reseller shall notify the Company of any breach by any Sub-Reseller or Agent of the terms of its appointment within twenty-four (24) hours upon learning of it;
3.2.6. The Reseller shall be responsible to the Company for the enforcement of the terms of the appointment and for inspecting the records and accounts of each Sub-Reseller or Agent and to report to the Company any findings which might have a material effect on this provisions of this agreement or the business of the Company;
3.2.7. The Reseller shall remain liable to the Company for all acts or omissions of any Sub-Resellers or Agents so appointed;
3.2.8. No appointment shall continue after the termination of the Agreement; and
3.2.9. In the event of a change of control, investment, disposal, exit or financing which, in the absolute discretion of the Company introduces a competitor to the Company into the Reseller, a Sub-Reseller, Agent or Customer, the Company shall have the right to immediately terminate this agreement or any license granted under this agreement without notice.
4. TERM
This Agreement shall commence on the Effective Date and remain in force for a period of two (2) years until otherwise terminated in accordance with the provisions of this Agreement.
5. RESELLER AND SUB-LICENSING
5.1. The Reseller undertakes to the Company that it will ensure that any License granted by the Reseller to a Customer hereunder shall be personal to the Customer including affiliates, non-exclusive and non-transferable and shall at least include contractual provisions which:
5.1.1. restrict the use of the Product in object forms on a designated cloud infrastructure within a designated location where the Customer conducts its business or part of it, and for the Customer's own internal needs only;
5.1.2. prohibit the transfer of the Product without prior written agreement from the Company;
5.1.3. prohibit any Reproduction of the Product or any sub-component of the Product except for the Reproduction of a single backup or archival copy for the purposes of disaster recovery and with written approval from the Company;
5.1.4. prohibit the assignment, time-sharing, sale, rental, or other disposition of the Product; 5.1.5. 5.1.5. prohibit the copying, reverse engineering, disassembly or decompilation of the Product;
5.1.6. prohibit title to the Product, including any Intellectual Property Right therein, from passing to the Customer;
5.1.7. prohibit the Reseller from accepting orders or concluding contracts on behalf of the Company;
5.1.8. expressly release and discharge the Company from any liability for any damages, whether direct, indirect or consequential arising from the use of the Product, in terms at least as stringent as those set forth in in this Agreement;
5.1.9. require the Customer, at the termination of the License, to discontinue the use of the Product and destroy or return to the Reseller the Product Materials and all back-up, archival or other copies of the Product;
5.1.10. prohibit the transfer of the Product outside the Country, Territory or Industry Vertical(s) for which the License has been granted to the Customer, and specify the Company as a third party beneficiary of the License, with only those conflicting provisions which shall have been subject to prior written authorization from the Company;
5.2. Except as otherwise expressly provided herein, the Reseller shall not copy or otherwise reproduce the Product Materials, or any portion thereof, nor make or authorize any act with respect to the Product Materials which would amount to infringement or violation of the Company Intellectual Property Rights;
5.3. Unless provided otherwise in this Agreement the Reseller shall make the Product available to Customers in object forms only;
5.4. The Reseller shall not distribute the Product Materials to any consultant, so-called service bureau (whether using batch, remote access, online conferencing, timesharing or other procedures), programming entities, independent sales organization, value-added resellers or to any division or subsidiaries of such persons except with the prior written consent of the Company;
5.5. The Product and the Product Documentation shall be made available to Customers by the Reseller only in accordance with the provisions of a License duly executed by the Reseller and the Customer;
5.6. Except as provided otherwise in this Agreement, the Reseller shall not deliver possession of any copies of the Product or of the Product Documentation to any third party unless that person has first executed a License;
5.7. The Reseller shall enter into Licenses with respect to a given Product only with Customers located in the Territory within the which the Reseller is appointed with respect to that Product and whereby that Product is to be used only in such Territory or Industry Vertical;
5.8. The Reseller shall comply with and perform its obligations under each License fully and promptly failing which the Company may affect compliance on behalf of the Reseller, insofar as it is possible for the Company to do so and at the option of the Company, in which case the Reseller shall forthwith become liable to pay to the Company all reasonable costs and expenses so incurred by the Company;
5.9. The Reseller shall ensure that only the current version of the Product and the Product Documentation supplied to the Reseller from time to time are delivered to Customers and shall promptly make any new, enhanced or replacement versions available to those Customers who shall be contractually entitled to receive such new, enhanced or replacement version;
5.10. The Reseller shall at all times take proper care of the Data and the Product Documentation which are from time to time in its possession or under its control;
5.11. The Reseller shall deliver copies of the Product Description to bona fide prospective Customers only. This material must be provided by or pre-approved by the Company;
5.12. If any Customer breaches the terms of a License the Reseller shall use all best endeavors to ensure that the breach is remedied. If the Reseller is unsuccessful or the breach is of such a nature that it cannot be remedied within 30 (thirty) days, then the Reseller shall terminate the License in accordance with its terms and exercise its rights to recover the Data and Product Materials from the Customer or ensure that they are deleted or destroyed.
6. DELIVERY OF PRODUCTS
6.1. Access to the Product distributed by the Reseller shall be provided by the Company in object form only upon receipt by the Company of a duly completed Purchase Order between the Parties together with a copy of a License duly completed and signed by the Reseller and the relevant Customer.
6.2. Reseller shall issue Purchase Orders to the Company for each Customer and any additional Licenses who desire to license the products. Purchase Orders shall contain the following information:
6.2.1. Purchase Order Number;
6.2.2. Date of issuance;
6.2.3. Name of Customer;
6.2.4. The Purchase Price, using the prices set forth hereunder under the heading “REMUNERATION”, and as applicable to the Purchase Order;
6.2.5. Address of Customer;
6.2.6. Required Access or Delivery Date;
6.2.7. Shipping instructions and destination if applicable;
6.2.8. Full Description of Products and Services Ordered; and
6.2.9. Reference to this Agreement.
6.3. Acceptance; Within 5 (five) business days of the Company's receipt of each Purchase Order issued by the Reseller that complies with all the applicable order requirements set forth in this Agreement, the Company shall provide to the Reseller written acknowledgement of acceptance of such Purchase Order. Should the Company fail to provide the Reseller with such acceptance as the aforesaid, then that Purchase Order shall be deemed
accepted by Parties, except if it is expressly rejected.
7. REMUNERATION
7.1. The Reseller agrees to pay the Company the Purchase Price or fees applicable to the relevant Products or Services to be provided hereunder in accordance with the provisions hereto (the "Purchase Price");
7.2. On an annual basis, at least 60 days prior to each anniversary date of this Agreement, the Company shall provide the Reseller with an updated Price List;
7.3. Unless otherwise agreed in writing by the Parties, the payment of the Purchase Price for any given Product or Service shall be made by the Reseller, to the specified address or bank by wire service of the Company hereinabove mentioned, thirty 30 days after the date of delivery of the Product or the Services;
7.4. Notwithstanding 7.3, with respect to any Products or Services for which the Purchase Price shall be payable in the form of periodical installments, the Purchase Price for such Product agreement shall be payable by the Reseller to the Company as outlined in 7.8, following the date on which such installment payments were due by the Customer to the Reseller;
7.5. At the time of the payment of the Purchase Price with respect to any License or Services agreement, the Reseller shall supply the Company with one executed copy of each of the agreements to which the payment relates.
7.6. If the Reseller fails to make any payment to the Company on the due date or if the Parties fail to agree on a new Purchase Price list within the time period provided, whenever required, then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
7.6.1. Suspend the performance or further performance of its obligations under this Agreement without liability to the Reseller or its Customers;
7.6.2. Upon receipt of a written notice from the Company to this effect, to immediately suspend the Reseller's right to enter into any further License or Services agreement until payment in full is made, the Reseller hereby agreeing to comply with such suspension; and
7.6.3. Charge the Reseller a late fee on any overdue amount from the due date until the date of payment at an annual rate equal to 18% (1.5% per month) of the actual amount owed to the Company (while the payment is overdue)
7.7. The provisions of this Section shall survive the termination, for any reason whatsoever, of this Agreement. 7.8. “Purchase Price”
7.8.1. The Purchase Price (and the pricing structure) for all Products or Services provided under this Agreement shall be the price(s) agreed prior to the issue of each Purchase Order by the Reseller (and for the avoidance of doubt, if no price(s) are agreed for a Purchase Order prior to its issue, then that Purchase Order shall be null and void unless the Company elects, by written notice to the Reseller, to apply the Indicative Prices to that purchase order);
7.8.2. The prices at which the Company is willing to supply Products and Services under this Agreement are those set out in the Schedule to this Agreement (as may be amended from time to time by the Company).
8. TAXES
8.1. The Reseller shall be responsible for the payment of all taxes applicable to any Product sold, Services rendered or payments made hereunder.
8.2. In the event that the Company has paid such Taxes on behalf of the Reseller, then it shall be entitled to be reimbursed by the Reseller upon presentation of any proof of such payment.
9. VERIFICATION
9.1. The Reseller shall keep for at least 5 (five) years and shall make available to the Company and its auditors, on request, accurate records to enable the Company to verify all payments due to it hereunder, and to facilitate the provision of data pursuant to official requests by authorities and governing bodies to whom the Company is required by law or regulation to provide:
9.1.1. The records which shall be kept, will be detailed revenue streams per License, function and transaction;
9.1.2. and to facilitate the provision of data pursuant to official requests by authorities and governing bodies to whom the Company is required by law or regulation to provide;
9.2. During the term of this Agreement and for a 12 month period thereafter during which payments shall continue to become due by the Reseller to the Company, but upon a 30 Calendar Days' prior written notice, the Company shall have the right, during the Reseller's normal business hours, to send its auditors to audit the invoices, receipts and records of the Reseller relating to the obligations incumbent upon the Reseller hereunder and to verify the Payments due to the Company;
9.3. The Reseller shall give such an accountant full access to the relevant records. The Company shall use its reasonable endeavors to procure that such accountant shall keep such information confidential (and to enter into any confidentiality undertaking reasonably requested by the Reseller in respect thereof prior to any disclosure) except that the accountant shall be entitled to reveal to the Company any information necessary to provide the Company with confirmation of the accuracy of the Reseller's Payment, remittances or any deviations therefrom. The report of the auditors made hereunder shall be final and binding between the parties hereto;
9.4. Any such audit shall be carried out at the Company's expense unless it reveals a deficiency of 10 per cent or more of the payments remitted for the period elapsed since the most recent audit or, if none, the date of this
Agreement in which event the Reseller shall pay the costs thereof. Payment of such costs and any Payment deficiency shall be made by the Reseller within 30 days after the date of receipt by the Reseller of a notice from the Company together with a copy of the auditor's report and fee note showing the amounts due. Any such deficiency shall carry interest charged under the heading “REMUNERATION” hereinabove from the date it was originally due.
10. GENERAL OBLIGATIONS OF COMPANY
10.1. The Company shall;
10.1.1. Provide the Reseller with such marketing and technical assistance as necessary to assist the Reseller with the promotion of the Product and Services;
10.1.2. The Company agrees to provide updated Pricing timely, and negotiate in good faith Service Level Agreements (“SLA”) terms with the Reseller for the specific requirements of the Customer;
10.1.3. Answer all reasonable queries raised by the Reseller or Customers concerning the technical use or application of the Product, as defined in the SLA;
10.1.4. Provide the Reseller with a reasonable number of copies of any promotional material relating to the Product which the Company may produce from time to time;
10.1.5. Give the Reseller reasonable advance written notice (as defined in the SLA) of any change in or modification of the Product without proper training;
10.1.6. Provide the Reseller promptly with all information and assistance reasonably necessary to enable the Reseller to perform properly its obligations hereunder in respect of any modified, enhanced or replacement version of or addition to the Product;
10.2. The Company reserves the right, hereto:
10.2.1. To modify, enhance, replace or make additions to the Product in any way whatsoever as the Company may in its discretion determine;
10.2.2. To discontinue licensing or sub-licensing any Non-Exclusive Product in the Territory or Industry Vertical;
10.2.3. The Company will provide at least 3 months’ notice to the Reseller of its intention to modify, enhance, replace or make additions to the Products or to discontinue licensing as aforesaid;
10.2.4. However, it will not affect the already issued licenses under this Agreement for the respective contracted Terms agreed with the Customers.
11. GENERAL OBLIGATIONS OF THE RESELLER
The Reseller shall:
11.1. Actively and to the best of its ability promote, solicit and finalize the granting of Licenses and Service Level Agreements in accordance with this Agreement;
11.2. Actively provide Product Documentation and arrange for demonstrations of the Product, where applicable, to actual and potential Customers using its own equipment or facilities and other facilities as may be reasonable to the Reseller, in order to demonstrate the full range of features and capabilities of the Product;
11.3. Remain at all-time equipped and prepared to provide Product Documentation or give Product demonstrations in a reasonable manner as described in subparagraph 11.2, above;
11.4. Maintain adequate equipment and trained personnel for the promotion, demonstration, installation, and support of the Product;
11.5. Subject to receipt of adequate training from the Company, provide Customers with timely and professional support for the Product, including without limitation advice and assistance as to the installation and use of the Product;
11.6. Promptly inform the Company of any facts or opinions of which the Reseller becomes aware likely to be relevant in relation to the commercial exploitation of the Product and which are advantageous or disadvantageous to the interests of such exploitation;
11.7. At all times conduct its business in a manner that shall reflect favorably on the Product and related Services and on the good name and reputation of the Company;
11.8. Not by itself or with others participate in any illegal, deceptive, misleading or unethical practices including, but not limited to, disparagement of the Products and Services of the Company or other practices which may be detrimental to the Product, the Company or the public interest;
11.9. Observe and comply with all applicable United States Law orders, decrees, notices, rules and regulations relating to or in any way applicable to the sale and use of the Products in the Territory or Industry Vertical;
11.10. Not make any promises or representations or give any warranties, guarantees or indemnities in respect of the Products except such as are provided hereunder or as expressly authorized by the Company in writing;
11.11. Refrain to supply the Product to any person knowing that the Product cannot meet that person's specified requirements;
11.12. Not supply or recommend any computer equipment to a Customer for use in conjunction with the Products;
11.13. Supply to the Company such reports (financial or otherwise), returns and other information relating to orders and projected orders for the Product and regarding Customers as the Company may from time to time reasonably require;
11.14. Periodically, as practical, inform the Company in writing about Customers' and prospective customers' wishes and observations concerning the Product Features and/or Materials;
11.15. Permit the Company and its authorized Agents at all reasonable times to enter any of the Reseller's premises for the purpose of ascertaining that the Reseller is complying with its obligations under this Agreement, that the Reseller hereby irrevocably authorizes the Company, its employees and Agents to enter any such premises for such purpose during the term hereof;
11.16. Parties agree to actively develop, within reason, and document specific marketing initiatives and to articulate and document resource plans in order to meet agreed marketing initiatives which shall include but not be limited to personnel, travel, equipment, participation to conventions, trade shows or seminars, installation of demonstration rooms, creation and reseller of promotional material (including videos, literature or data) in order to enable the Reseller to achieve the marketing initiatives agreed upon by Parties;
11.17. The Reseller shall provide the Company each year, no later than 60 days from the date of the signed agreement, with sales forecasts, together with a Territory strategic plan, for the next calendar year, including an overview of marketing plans.
12. DEMONSTRATION
12.1. The Company grants to the Reseller a non-exclusive license, free of charge, to use the Product for demonstration and promotion purposes during the term of this Agreement only;
12.2. The Reseller shall be entitled to demonstrate the Product and the Product Documentation to any bona fide prospective Customer, but shall always retain the Product and the Product Documentation in its possession and under its control and shall not allow any such person to retain any copies of the whole or any part thereof. No free trials for access to the Product will be provided to prospective Customers;
12.3. Parties shall comply with all further obligations regarding promotion and demonstration of the Products as mutually agreed and documented between Company and Reseller;
12.4. For the avoidance of doubt, the Reseller shall be prohibited from demonstrating the Company's Product to any legal person or entity who, in the Company's reasonable opinion, is a competitor of the Company. Failure by the Reseller to confer with the Company prior to a demonstration as to whether the potential Customer is a competitor or not will be a material breach of this agreement.
13. TRAINING
13.1. The Company shall provide training in the installation, implementation support and use of the Product to the Reseller in a manner consistent with the cooperative spirit of the relationship of the Parties.
13.2. The Company agrees to provide periodic webinars covering overview, installation, administration, operations, planning and engineering, provisioning, integration, and maintenance of the Products.
13.3. Prices for all training support provided by the Company, including courses and materials identified in this Section are available in Attachment A: Schedule of Indicative Prices.
13.4. The Company shall provide training to enable the Reseller to sell and support the Product.
13.5. Any additional training required by the Reseller may be provided by the Company under preferential conditions for Exclusive Products or under Standard conditions for Non-Exclusive Products;
13.6. The Reseller shall use its best endeavors to encourage all Customers to complete training in accordance with the Company's minimum standard recommendations from time to time;
13.7. The Reseller shall offer initial training to Customers in accordance with the best practices according to the implementation fee and process mutually agreed and documented between Company and Reseller;
13.8. The Reseller shall at all times, employ sufficient qualified personnel in order to meet its obligations.
14. INSTALLATION, SUPPORT AND MAINTENANCE
14.1. The Company shall provide technical support services to the Reseller in accordance with the conditions agreed in terms of an SLA;
14.2. Except as otherwise provided, any additional support services that the Company may agree to provide to the Reseller for the Reseller itself or for Customers through Reseller's personnel (which Customer Support by the Company shall normally be restricted to the resolution of serious problems requiring programmer level conditions) is at the Company’s sole discretion;
14.3. The Reseller shall at all times employ sufficient qualified personnel in order to meet its obligations in terms of this Agreement.
15. DEVELOPMENT AND ENHANCEMENT
15.1. The Company shall devote sufficient resources including personnel, capital, equipment or other related expenses, at the Company’s sole discretion, in order to develop and enhance the Products with a view to ensure that such Products shall remain competitive in the Territory and targeted Industry Vertical(s);
15.2. The Parties agree that only the Company will manage and document any specific development initiatives, including functional specifications with respect to the Products;
15.3. Except as provided in paragraphs 15.1 to 15.2, the Company reserves the right to make or to refrain from making any changes or enhancements to the Products without incurring any liability or obligation whatsoever and without being required to make any corresponding changes in or improvements to the Products previously sold to the Reseller or their Customers.
16. CORRECTIONS AND MODIFICATIONS
16.1. The Reseller shall promptly notify the Company of any error or defect in the Product of which it becomes aware and provide the Company with documented examples of such error or defect.
16.2. The Company shall within ten (10) Business Days of receipt of such notification evaluate the notified error or defect and provide the Reseller with an estimate of the length of time it shall take to remedy the Product, which is affected by such error or defect, provided the Company deems a remedy is warranted. The Company shall use its reasonable endeavors to provide any such remedy within the estimated time-frame;
16.3. The Reseller shall not alter or modify the whole or any part of the Product in any way whatsoever.
17. ACCESS OR CHANGES TO THE SOURCE CODE BY THE RESELLER
17.1. The Reseller shall have no right to have access to or modify the Source Code of the Product for any purposes;
17.2. The Company acknowledges and agrees that it may be necessary for the Reseller to negotiate Source Code escrow agreements with highly reputable, large prospective Customers. This needs to be pre-agreed upon between the Company, the Reseller and Customer and treated on a case by case basis;
17.3. The Company shall consider in good faith and shall not unreasonably refuse any request made to this effect by the Reseller it being understood that such escrow arrangement shall be at least as stringent for the Customer as those set forth in the Escrow Agreement and shall, in any case subject to the prior written approval of the Company and its legal advisors;
17.4. Should it be a requirement in terms of a Customer’s standard policy to deposit information in escrow then the Company shall, at the expense of such Customer, deposit in escrow with a third party escrow agent acceptable to both the Company and the Customer and pursuant to an agreement, which agreement shall reflect, in addition to other essential and standard terms, the following provisions:
17.4.1. The Company shall have the option but not the obligation to encrypt and transmit the encrypted deposit into escrow;
17.4.2. Any party may request the third party escrow agent to perform a comprehensive deposit verification;
17.4.3. Upon receipt of the deposit, and subject to the terms, conditions, warranties and restrictions of this Agreement, the Customer shall have the right and hereby agrees to use the deposit, including copying and modification thereof, only as reasonably necessary for the sole purpose of enabling Customer to use the Product for its intended purpose;
17.4.4. The Customer shall use commercially reasonable measures to protect the integrity, security, and confidentiality of the deposit; and
17.4.5. Neither the Reseller nor the Customer shall grant, sell, assign or otherwise transfer any title to or ownership of all or any part of the deposit or Product, or related documentation, or any other property of the Company, and without limiting the foregoing, the Company does not grant to the Customer any right to publish, perform, adapt, create derivative works from, or distribute the Product or any part thereof.
17.5. The Company further acknowledges that it may be necessary for the Reseller to negotiate delivery of the Source Code by the Company with prospective Customers.
17.6. The Company shall consider in good faith and shall not unreasonably refuse any request made to this effect by the Reseller for highly reputable, large prospective Customers, it being understood that any such authorization shall be made under conditions at least as stringent as those set forth in this section;
17.7. The Source Code of the Company and its related Products shall at all times be stored under lock and key in a separate and safe storage (the "Storage") exclusively controlled by the “Company Officer”, in terms of which he / she shall take responsibility of all the provisions of this Agreement;
17.8. The Company Officer shall have the sole right and discretion to remove and replace Source Code from the Storage for the sole purpose of this section;
17.9. Any modification requested of the Source Code by the Reseller, to be made by the Company, shall be subject to a prior written authorization from the Company following a written request from the Reseller, which request shall at least indicate:
17.9.1. The Purpose for which to the Source Code is requested to be modified;
17.9.2. The name of the Customer for whom modifications are to be made, the name of the person for whom the demonstration version of the Product is to be provided or the Product to which the Company or the software platform shall be integrated with, as the case may be;
17.9.3. A reasonably detailed description of the modifications by the Company that the Reseller requests to make to the Source Code;
17.9.4. Upon receipt of the Request, the Company shall timely review and approve or disapprove the request to the Reseller;
17.9.5. The Reseller, upon approval by the Company will be responsible and liable to pay, in advance, for any developer time accrued the Company to execute any source code change requests;
17.9.6. Any changes or amendments to the Product resulting in improvements to IP, even if suggested by the Reseller or Customer, shall remain in the ownership of the Company;
17.10. Reseller will not attempt to challenge or register the Company's IP rights;
17.11. Reseller to cooperate in policing and enforcement of the Company's IP rights;
17.12. All goodwill related to IP to accrue to the Company, not the Reseller or the Customer.
18. CONFIDENTIALITY
18.1. Both Parties agree to consider and to treat Confidential Information as confidential; 18.2. The Parties agree that Confidential Information shall:
18.2.1. Be protected and kept in strict confidence by the Parties which must use the same degree of precaution and safeguard as is used to protect their own proprietary information of like importance, but in no case any less than reasonable care;
18.2.2. Be only disclosed to and used by those persons within the Parties' or a Sub-Reseller's or Agent's organization who have a need to know for the purposes of carrying out this Agreement for use solely for the purposes of this Agreement;
18.2.3. Not be used in whole or in part for any purpose other than the purpose of this Agreement without the prior written consent of the other Party;
18.2.4. Neither be disclosed nor caused to be disclosed whether directly or indirectly to any third party or other persons except as otherwise agreed to amongst the Parties;
18.2.5. Neither be copied, nor otherwise reproduced nor duplicated in whole or in part where such copying, reproduction or duplication have not been specifically authorized in writing by the Party to which this Confidential Information pertains;
18.3. Any documents or information media containing Confidential Information and copies thereof disclosed by the Company to the Reseller shall remain the property of the Company and shall be returned to the Company immediately upon termination of this Agreement;
18.4. Neither Party shall have obligations or restrictions with respect to any Confidential Information which it can prove:
18.4.1. Has come into the public domain prior to, or after the disclosure thereof and in such case through no wrongful act of the Party;
18.4.2. Is already known to the Party, as evidenced by written documentation in files of such Party;
18.4.3. Has been lawfully received from a third party without restrictions or breach of this Agreement or of a confidentiality agreement with the Party to which the Confidential Information pertains;
18.4.4. Has been or is published without violation of this Agreement; or
18.4.5. Is approved for release or use by written authorization of the Party to which the Confidential Information pertains;
18.5. The Reseller shall ensure that the persons referred to in paragraph 18.1. are aware of and comply with the confidentiality and non-disclosure provisions contained in this Section and the Reseller shall indemnify the Company against any loss or damage which the Company may sustain or incur as a result of any breach of confidence by any of these persons;
18.6. If the Reseller becomes aware of any breach of confidentiality with respect to the Confidential Information by any of its employees, then it shall promptly notify the Company and give the Company all reasonable assistance in connection with any proceedings, which the Company may institute against any such persons;
18.7. The provisions of this Section shall survive the termination for 2 years, for any reason whatsoever, of this Agreement.
19. MUTAL UNDERSTANDING
19.1. The Reseller agrees that during the term of this Agreement (whether alone or jointly and whether directly or indirectly) it shall:
19.1.1. Promptly forward to and notify the Company of any inquiries it may receive for the Products; and
19.1.2. Shall not hire or otherwise solicit any employee or representative of the Company or any of its subsidiaries during their employment with the Company, and for a period of 12 months from the date any employee or representative leaves the Company unless written approval is received from the Company;
19.2. Neither Party shall induce or recommend to any such employee or representative to leave the other Party;
19.3. Nothing in section 19 shall be construed preventing the Company to directly sell any Non-Exclusive Products to any Customer throughout the designated Territory or in any designated Industry Vertical as stated herein;
19.4. The Parties agree to actively cooperate and to keep each other aware of any relevant or material information they may be provided with respect to commercial opportunities or potential development in the targeted Industry Vertical(s) and non-exclusive Territories.
19.5. The key to a Reseller Channel Program is to avoid Channel Conflict as much as possible, while gaining maximum sales coverage. The Reseller will contact the Company to register all Reseller initiated Opportunities to ensure the Company is not actively selling to the prospect.
Registration of Opportunities – The Reseller will register a new Opportunity with the Company in order to avoid Channel Conflict by ensuring that the company is, A) Not a current customer of the Company or, B) Not already being actively sold to by the Company. Once the Reseller contacts the Company and registers the Opportunity, the Company will promptly approve (or disapprove provided the prospect is already a Customer of the Company or Company is actively selling to the prospect.) the Opportunity and record the Reseller’s registered Opportunity in the Company Customer Relationship Management (CRM) software.
In such cases where the Reseller properly registers the Opportunity with the Company, and the Company has already initiated a sales process with the prospect, but the Company acknowledges the Reseller’s strong relationship with prospect or the Opportunity is with a current Customer of the Reseller, the Company may approve the Reseller’s Opportunity and yield to the Reseller to pursue the Opportunity exclusively, with such approval not being unreasonably withheld.
20. PROPERTY RIGHT
20.1. The Product Materials and the Source Code and the Global Intellectual Property Rights therein or relating thereto are and shall remain the exclusive property of the Company and no title to these shall pass to the Reseller or to its Customers. All access to the Product, its Product Documentation and Materials thereof in the Reseller's possession, custody or control shall be returned to the Company or otherwise disposed of or deleted by the Reseller as requested and directed by the Company;
20.2. IP Rights in any newly developed solution developed by the Reseller and approved by the Company, which resulted from using the Product by a Customer or Reseller (“Solution”) shall be retained by Reseller or its Customer. The Company shall permit use of its Product to the extent it is embedded in such Solution provided the Customer and Reseller are timely with the payment of the Purchase Price to the Company,
20.3. The Reseller acknowledges and agrees that the Product, Product Documentation and Materials and the Source Code, including, without limitation, the Product, user interface, API, formats, modules and programming techniques developed and used in the Product Materials and the Source Code, and all enhancements, modifications and updates thereto made by the Company constitute the exclusive property of the Company, whether or not any portion thereof is nor may be copyrighted or patented and that title to and full ownership thereof shall at all times remain exclusively in the Company;
20.4. The Reseller shall notify the Company immediately if the Reseller becomes aware of any unauthorized use of any of the Product, Product Documentation or Materials or the Source Code relating to the Product or any of the Intellectual Property Rights therein or relating thereto and shall assist the Company, at the Company's expense, in taking all steps to protect or defend the Company's rights therein;
20.5. The Reseller shall not use, reproduce or deal in the Product, Product Documentation or Materials or the Source Code or any copies thereof except as expressly authorized under this Agreement;
20.6. The Reseller shall not at any time expressly or implicitly claim any right, title or interest in the Product Materials or in the Source Code nor pretend to acquire or have acquired any Intellectual Property Right in the Product, Product Documentation or Materials or in the Source Code from a third party;
20.7. The provisions of this Section shall survive the termination for any reason of this Agreement.
21. TRADEMARKS
21.1. Subject to restrictions set forth below, the Reseller shall have the right to use the Trademarks during the term of this Agreement only in connection with the use and marketing of the Products and Services;
21.2. The use of the Trademarks shall be subject to such reasonable restrictions and standards as the Company may from time to time adopt;
21.3. The Reseller shall not use the Trademarks in any way after the termination of this Agreement;
21.4. The Reseller shall not use any given Trademark in any country included in the Territory until such Trademark has been duly registered in that country;
21.5. The Reseller shall follow the Company's instructions as given to the Reseller from time to time as to the use of each Trademark and shall cooperate with the Company in the registration of such Trademark within the Territory;
21.6. Prior to any proposed use of a Trademark, the Reseller shall give the Company written notice of exactly how the Reseller proposes to use the Trademark, including drawings of all advertising copy. Such written notice shall be delivered to the Company at least 30 days before being made public, and the Reseller shall make whatever changes the Company requires in the use of the Trademark before making any public;
21.7. In any use of a Trademark, such Trademark shall not be combined with any other trademark, name, appellation, or marking unless the Company specifically consents in writing to such combination;
21.8. The Reseller shall use the Company's trade names relating to the Database and Software only in the registered or agreed style and shall not use such Trademarks or trade names in connection with any other Products or services or as part of the corporate or any trade name of the Reseller;
21.9. The Reseller shall not alter, obscure, remove, interfere with or add to any of the Trademarks, trade names, markings or notices affixed to or contained in the Software Materials delivered to the Reseller;
21.10. The Company may discontinue the use of any Company Trademark at any time and the Reseller shall thereupon cease to use such Trademark. The Company may add a new or altered Trademark at any time;
21.11. Notwithstanding the foregoing, the Reseller may, with the Company's prior written authorization, use other trademarks, designations or logo in conjunction with the Products or Services provided that the Reseller shall, in such instances, reasonably display or acknowledge the fact that the Products, Services or related technology originates from the Company. The Company may require from the Reseller information or samples with respect to the manner in which such display or acknowledgement is made by the Reseller and shall have the right to require that the Reseller carry on such reasonable changes with respect to such display or acknowledgement in order to ensure sufficient visibility or knowledge of the Company as the source of such Product, Services or technology.
22. INDEMNITIES
22.1. INDEMNITY BY THE COMPANY
22.2. The Company agrees to indemnify, defend, and hold harmless the Reseller and its Affiliates and their respective officers, directors, employees, agents, successors, and assigns, (the “Reseller Indemnified Party(ies)”), from any and all damages and losses from Customer or third party claims arising from, in connection with, or based on allegations of any of the following:
22.2.1. The Company’s failure to observe or perform any duties or obligations for third parties on or after the Effective Date (e.g., duties or obligations to sub-resellers);
22.2.2. The Company’s breach of its obligations with respect to Reseller Confidential Information;
22.2.3. Any claim, demand, charge, action, cause of action, or other proceeding asserted against a Reseller Indemnified Party, but resulting from an act or omission of the Company in its capacity as an employer of a person;
22.2.4. The Company’s breach of any representation, warranty, covenant, obligation, or responsibility set forth in this Agreement and;
22.2.5. The Company shall have no obligation to defend the Reseller or to make any payment of costs, damages, legal fees or otherwise for any claim based upon:
22.2.5.1. Use of other than a current unaltered version of the Product; or
22.2.5.2. The combination, operation or use of the Product with any hardware, product, equipment or process not specified by the Company or approved by the Company if such infringement would have been avoided but for such combination, operation or use.
22.3. INDEMNITY BY THE RESELLER
22.4. The Reseller agrees to indemnify, defend, and hold harmless the Company and its Affiliates and their respective officers, directors, employees, agents, successors, and assigns (the “Company Indemnified Party(ies)”), from any and all damages and losses from Customer or third party claims arising from, in connection with, or based on allegations of any of the following:
22.4.1. Reseller’s breach of its obligations with respect to Company’s Confidential Information;
22.4.2. Any claim, demand, charge, action, cause of action, or other proceeding asserted against a Company Indemnified Party, but which claim resulted from an act or omission of the Reseller in its capacity as an employer of a person;
22.4.3. Third party IP claim on account of unauthorized use of the Product for the reasons solely attributable to Reseller.
22.5. Related to any claim made against the Company for which indemnification is sought under this paragraph; the Company shall consult with the Reseller and, subject to being secured to its reasonable satisfaction, shall cooperate with the Reseller in relation to any reasonable request made by the Reseller in respect of such claim.
22.6. PERSONAL INJURY, INTENTIONAL MISCONDUCT AND GROSS NEGLIGENCE
Notwithstanding any provision to the contrary in this Agreement, the parties do not exclude or limit its liability for material injury caused through its intentional misconduct or gross negligence nor for bodily injuries caused to third parties.
22.7. INDEMNIFICATION FOR INFRINGEMENT
22.8. If use of the Product for any purpose within the scope of this Agreement becomes the subject of an infringement or misappropriation claim or proceeding; the Company shall indemnify, defend, and hold harmless the Reseller Indemnified Parties and Customer(s) who use the Product from and against any claim, liability, or damage as permitted under this Agreement from any third party claim, action, suit, proceeding, or settlement thereof, to the extent that such claim, actions, suit, or other proceedings against a Reseller Indemnified Party or Customer asserts that any patent, copyright, trade secret, or other intellectual property right is infringed by use of the Product.
22.9. The Company shall so indemnify, defend, and hold the Reseller Indemnified Parties and Customers harmless from all costs, liabilities, expenses, and damages, including court costs and reasonable attorney fees provided
the Company is promptly notified, given assistance as necessary, and permitted to direct the defense and settlement negotiations.
22.10. In the event the Reseller Indemnified Parties or Customers against which the claim is asserted do not provide notice of such claim to the Company within a reasonable time then the Company’s indemnification obligations under this Section shall be abrogated except to the extent that actual and material prejudice results.
22.11. The Company agrees to request the Reseller and/or its third party to provide reasonable efforts in support of the Company if it is engaged in defending an Indemnified Party or avoiding a claim under this Section.
22.12. In addition to all other rights and remedies under this Agreement, the Company agrees that if the use of the Product under this Agreement become enjoined in a claim that the Product infringes any Intellectual Property Right of any third party then the Company shall at its election and its expense:
22.12.1. Allow the Reseller Indemnified Party(ies) or Customers the right to continue using the Product;
22.13. Modify the Product to make it non-infringing insofar as it might be (without admission) while maintaining equivalent or better functionality, features, performance, and conformance to the Specifications; or
22.13.1. Terminate this Agreement.
22.14. COMPANY’S LIMITATION
Except for any obligations with regard to indemnifications under this section, if any, the Company’s liability for any and all claims, losses or expenses arising out of this Agreement, or out of any claim regardless of the legal theory, including but not limited to, negligence, strict liability, agency, warranty, trespass, breach, or any other liability shall not exceed the amount paid and the amounts due and owing under this Agreement as of the date the claim from which the liability arises is asserted.
22.15. RESELLER LIMITATION
Except for any obligations with regard to indemnifications under this section, if any, the Reseller liability for any and all damages, claims, losses, costs, or expenses arising out of this Agreement or out of any claim regardless of legal theory, including but not limited to, negligence, strict liability, agency, warranty, trespass, breach, or any other liability, shall not exceed the amount paid and the amounts due and owing under this Agreement as of the date the claim from which the liability arises is asserted.
22.16. DISCLAIMER
Except for any obligations with regard to indemnifications under this section; under no circumstances shall either party be liable to the other party for any indirect, consequential, exemplary, special, incidental, or punitive damages, including without limitation, loss of use or lost business, revenue, profits, or goodwill, arising in connection with this agreement under any theory of tort, contract, warranty, strict liability, or negligence.
23. WARRANTIES
23.1. The Company represents and warrants that it is the sole and exclusive legal and beneficial owner of all Intellectual Property Rights in and to the Product, Product Documentation and Materials and of the Source Code except for any portion of the Product Materials for which the Company has been licensed by third parties and, in such case, that the Company is entitled to grant to the Reseller hereunder with respect to such licensed portion of the Product.
23.2. The Company further represents and warrants that there is and shall be no potential or conflicting claim of ownership in or to the Intellectual Property Rights or any part thereof;
23.3. Excluded from the Company's warranties are any defects of the Product resulting from accident, abnormal physical, electrical or electromagnetic conditions, wrong use, variation of energy sources from the Company's specifications or failure to provide suggested air conditioning and humidity control in accordance with the Company's specifications;
23.4. The Company warrants that for a period of 1 year following the access of the Product to the Customer or the Reseller, the Product shall conform and function according to any Company technical specifications for the Product at the date of order if properly used according to the Company’s technical specifications.
23.5. Any warranties or representation, whether express or implied not stated herein, shall not be enforceable.
24. TERMINATION
24.1. This Agreement will auto renew at the expiry hereof, on the same terms and conditions, unless terminated by either party by such party providing three (3) month’s notice of cancellation;
24.2. The Reseller acknowledges that unauthorized disclosure of the Company’s Confidential Information or IPR will cause irreparable injury to the Company for which monetary damages would be insufficient compensation. Accordingly, the Company may seek and will be entitled without further proof of damages to injunctive relief in any court of competent jurisdiction for the breach or threatened breach of this clause, in addition to any other remedies available in law or equity;
24.3. This Agreement shall automatically terminate upon the occurrence of any of the following events of default, at the option and discretion of the non-defaulting Party:
24.3.1. If any Party becomes generally unable to pay its debts as they become due, admits in writing of its inability to pay its debts generally, makes an assignment for the benefit of its creditors;
24.3.2. If any proceedings are instituted against any Party which seek to adjudicate it as bankrupt or insolvent or which seek liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any United States Law relating to bankruptcy, insolvency or reorganization or relief of debtors or which seek the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, unless in any such case such proceedings are contested in good faith by such Party and any such order, appointment or other relief is stayed pending the outcome of the contested proceedings and such order, appointment or other relief or rescinded within thirty (30) days;
24.3.3. If any Party takes advantage of any United States Law relating to bankruptcy, insolvency or, generally, relief of debtors;
24.3.4. If Reseller (it's Sub-Resellers, Agents or Customers) brings the name or business of the Company into disrepute. The Reseller will be subject to any criminal charges, damages or civil liability for offenses related to dishonest or illegal conduct.
24.4. This Agreement may be terminated by the Company, at its discretion, if the Reseller is in breach of the provisions relating to the payment of the Purchase Price and does not remedy its default within thirty (30) days after having received from the Company notice specifying the default and requiring that it be remedied;
24.5. This Agreement may be terminated by any Party, at its discretion, by giving to the defaulting Party notice of termination if the other Party is in default under any provision of this Agreement and if the defaulting Party does not remedy such default (if such default is capable of being remedied) within thirty (30) days after having received from the non-defaulting Party notice specifying the default and requiring that it be remedied;
24.6. Any Party may terminate this Agreement at its discretion, at any time and without cause, upon a prior written notice of three (3) calendar months to that effect. This Agreement shall terminate, without any further notice, three (3) months after receipt of such termination notice.
25. EFFECT OF TERMINATION
25.1. Upon termination or expiration of this Agreement:
25.1.1. All rights and obligations of the Parties under this Agreement shall automatically terminate except:
25.1.1.1. For such rights of action as shall have accrued prior to such termination and any obligations which expressly or by implication are intended to come into or continue in
force on or after such termination;
25.1.1.2. That the terms of this Agreement shall remain in full force and effect solely to the extent and for the period necessary to permit the Reseller to properly perform its continuing
obligations under License or Service Agreements subsisting at the date of termination
and which shall have not been transferred to the Company in accordance with Section
27 (and the Reseller's obligations under paragraphs hereinbelow shall be suspended
during such period as those continuing obligations subsist);
25.1.1.3. That the obligations of the Parties contained in paragraphs 5.8 and 5.12 shall continue in respect of each License or Service Agreement subsisting on the date of termination;
25.1.2. The Reseller shall immediately eliminate from all its literature, business stationery, publications, notices and advertisements all references to the title "AUTHORIZED Credder Reseller" and all other representations of the Reseller's appointment hereunder;
25.1.3. The Reseller shall, at its own expense, forthwith return to the Company or otherwise dispose of as the Company may instruct all promotional materials and other documents and papers whatsoever sent to the Reseller and relating to the business of the Company (other than correspondence between the Parties), all property of the Company and all access to and copies of the Product, Product Documentation and Materials and the Source Code or Configurations relating to the Product, being in the Reseller's possession or under its control and certify in writing signed by a director of the Reseller that the Reseller has complied with its obligations under this paragraph 24;
25.1.4. The Reseller shall cause that every instance and associated material of the Product be erased internally, including but not limited to from all computers, repository or storage, or under the control of the Reseller and one of its officers shall declare under oath to the Company that the same has been done in accordance with the terms herewith;
25.1.5. If the event of default giving rise to termination is by the Reseller, all monies owing to the Company by the Reseller as at the time of termination shall become immediately due and payable to the Company;
25.1.6. Each License or Service Agreement then subsisting shall continue in effect and shall survive the termination of this Agreement subject to the provisions of Section 26.
26. JURISDICTION
This Agreement and any matters arising out of it shall be governed by and construed in accordance with the laws of the United States and the State of California.
27. PERFORMANCE OF OBLIGATIONS ARISING UNDER LICENCE AND SERVICE AGREEMENT AFTER TERMINATION
27.1. The Parties agree that following the termination of this Agreement for any reason:
27.1.1. Customers shall retain the right to use the Product, Product Documentation and Materials in accordance with the Licenses granted to them before the termination or expiration of this Agreement;
27.1.2. The Reseller shall have no right to use the Product, Product Documentation or Materials or to provide the Customers advice and assistance as to the implementation and use of the Product and Product Documentation and Materials except under License or Service Agreements which shall have not been assigned to Parties as per paragraph 26.2 hereof;
27.2. The Reseller irrevocably agrees to transfer, at no cost, all rights and obligations under any License or Service Agreement selected by the Company, by way of assignment or by such other legal means or operation which may be available under the laws of United States applicable to such Licenses or Service Agreements as the Company may direct, provided that following such transfer the Reseller shall have no further obligations toward Customers with respect to the performance of the Reseller's obligations following such transfer or that the Company or any third party for the benefit of whom such transfer shall be effected guarantee the Reseller against any claim arising for non-performance or faulty performance of such obligations (the "Transfer");
27.3. After the date of the Transfer, the Company, or any third party designated by the Company, shall comply with all reseller's obligations with respect to any License or Service Agreement so transferred and shall fully indemnify the Reseller for any claims from Customers based on non-performance or faulty performance of such obligations by the Company or such third party after the date of the relevant Transfer;
27.4. The Reseller shall give to the Company or to such third party that the Company may indicate, all reasonable cooperation in transferring the Reseller's rights and obligations under such License and Service Agreement to the Company or such third party;
27.5. For more certainty, the Company shall have no obligation to accept the Transfer of any License or Service Agreement relating to any third parties' Product or services (including other Products owned or distributed by the Reseller or Products which have been amalgamated with any company Products);
27.6. Upon the transfer, the Reseller shall immediately pay to the Company, or as it shall direct, a proportionate share of any Services fees paid in advance by the Customer thereunder apportioned from the effective date of the transfer to the expiry date on the basis of the total period to which the payment relates;
27.7. Unless this Agreement has been terminated by the Company by reason of a default of the Reseller which has not been cured at the Company's satisfaction within the delays provided for in under Section 23, the Company shall continue to provide to the Reseller support and maintenance services incumbent upon the Company hereunder under the Company's Standard Conditions.
28. PUBLIC ANNOUNCEMENTS AND PRESS RELEASES
28.1. Before the execution hereof, no Party shall make any public statement or issue any press release concerning the transactions contemplated by this Agreement except as may be necessary, in the opinion of counsel to the Party making such disclosure, to comply with the requirements of any United States, regulation, regulatory policy or the other of judgment of a court or tribunal or competent jurisdiction. If any such public statement or release is so required, the Party making such disclosure shall consult with the other Party prior to making such statement or release, and the Parties shall use all reasonable efforts, acting in good faith, to agree upon a text for such statement or release which is satisfactory to all Parties;
28.2. Following the signature of this Agreement, the Parties agree to develop and document press and public relations material which material shall not be disseminated in any form without the prior consent of both Parties.
29. LEGAL RELATIONSHIP
29.1. In giving effect to this Agreement, neither Party shall be or be deemed an Agent or employee of the other for any purpose, and that their relationship to each other shall be that of independent contractors. Nothing in this Agreement shall constitute a partnership or a joint venture between the Parties. Neither Party shall have the right to enter into contracts or pledge the credit of or incur expenses of liabilities on behalf of the other;
29.2. During the continuance of this Agreement the Reseller shall be entitled to use the title "AUTHORIZED Credder Reseller" or such other title which may be approved by the Company but such use shall be in accordance with the Company's policies in effect from time to time and before using such title (whether on the Reseller's business stationery, advertising material or elsewhere) the Reseller shall submit to the Company proof prints and such other details as the Company may require and the Company may in its discretion grant or withhold permission for such proposed use;
29.3. In this Reseller agreement and all future channel agreements, the Company and the Reseller are independent contractors acting for their own account and may act in their own interests. Neither Party is authorized to make any representation or commitment on behalf of the other Party. Neither Party shall use the terms “joint venture”, “legal partnership” or similar terms to describe their contractual relationships hereunder. Any inadvertent use of such terms shall refer to the spirit of cooperation between the parties and shall not create a legal partnership or joint venture or any responsibility by one Party for the actions of the other, either expressly or by implication. The use of the term “Partner” to describe one of the Parties is not intended to in any way detract from the foregoing.
30. ASSIGNMENT
The Reseller may not assign any rights or benefits in this Agreement to any person. The Reseller agrees to perform its obligations under this Agreement itself, and not arrange in any way for any other Person (save and except their employees) to perform those obligations except as expressly permitted herein. No assignment of benefits or arrangement for substituted performance by the Reseller shall be of any effect against the Company except to the extent that it has expressly authorized hereunder or consented in writing to it.
31. ANTI-BRIBERY / ANTI-MONEY LAUNDERING
The Company and The Reseller, must adhere to the anti-money laundering, anti-bribery and corruption laws of the United States, and both parties are subject to any related rules, regulations and guidance.
32. FORCE MAJEURE
No Party shall be liable for any default or delay in the performance of its obligations under this Agreement to the extent caused, directly or indirectly, by fire, flood, lightning, earthquake, elements of nature or acts of God, riots, civil disorders, rebellions, acts of terrorism, or revolutions in any country, or any other similar cause beyond the reasonable control of such Party; provided, however, that such default or delay is not caused by the non
performing Party, could not have been prevented by the reasonable precautions of the non-performing Party, and could not have been reasonably circumvented by the non-performing Party through the use of alternate sources, workaround plans, or other means. In such event, the non-performing Party shall be excused from the further performance of its obligation(s) affected for as long as such circumstances continue. Notwithstanding the foregoing, the non-performing Party shall continue to use its best efforts to recommence its performance whenever and to whatever extent possible throughout any default or delay caused by a force majeure occurrence. The non-performing Party shall immediately notify the Party to whom performance is due in writing within two (2) days of the inception of such delay and describe with reasonable detail the circumstances for such delay. If any event under this Section: Force Majeure substantially prevents, hinders, or delays the non-performing Party’s performance for more than thirty (30) consecutive days, then at the performing Party’s option it may: (i) terminate or modify any affected portion of any purchase order, the relevant Software License Agreement (SLA), or this Agreement, and any outstanding amounts owed the Company shall be equitably adjusted to reflect such termination; or (ii) terminate this Agreement without liability to any Party as of a date specified by the performing Party in a written notice of termination to the non performing party Neither Party shall have the right to any additional payments from the other Party for costs or expenses incurred as a result of any force majeure occurrence.
33. NOTICES
33.1. Any notice, demand or other communication (in this section, a "notice") required or permitted to be given or made hereunder shall be in writing and shall be sufficiently given or made if delivered in person during normal business hours on a Business Day and left with a receptionist or other responsible employee of the relevant Party at the applicable address set forth below or if sent by any electronic means of sending messages, including or facsimile of transmission, which produces a paper record ("Electronic Transmission") during normal business hours on a Business Day charges prepaid and confirmed by prepaid first class mail and which notice shall be delivered or sent at the following address:
33.1.1. In the case of a notice to the Company, addressed to it at:
Company:
Attention:
Email:
Phone:
33.1.2. And in the case of a notice to the Reseller, addressed to it at:
Reseller:
Attention:
Email:
Phone:
33.2. Each notice sent in accordance with this Section shall be deemed to have been received if delivered during the recipient's normal business hours, at the time on the day it was delivered, or at the start of business on the first Business Day thereafter if the day on which it was delivered was not a Business Day; or one hour after it was sent on the same date, it was sent by Electronic Transmission, or at the start of business on the first Business Day thereafter if the day on which it was sent by Electronic Transmission was not a Business Day;
33.3. Any Party may change its address for notice by giving notice to the other Party as provided in this Section; 33.4. Time is of the essence of each provision of this Agreement;
33.5. If any action is required to be taken pursuant to this Agreement on or by a specified date, which is not a Business Day, then such action shall be valid if taken on or by the next succeeding Business Day.
34. GENERAL
34.1. This Agreement, together with any agreements and other documents to be delivered pursuant or concurrently hereto constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between Parties. There are no representations, warranties, conditions, other agreements or acknowledgments, whether direct of collateral, expressed or implied, and form part of or affect this Agreement. The execution of this Agreement has not been induced by, nor do either of the Parties rely upon or regard as material, any representations, warranties, conditions, other agreements or acknowledgements not expressly made in this Agreement or in the agreements and other documents to be delivered pursuant hereto;
34.2. Each Party shall do such acts and shall execute such further documents and shall cause the doing of such acts and shall cause the execution of such further documents as are within its power, as the other Party may in writing at any time and from time to time reasonable request be done or executed, in order to give full effect to the provisions of this Agreement;
34.3. This Agreement may only be amended or supplemented only by a written agreement signed by each Party;
34.4. Any waiver of, or consent to depart from, the requirements of any provision of this Agreement shall be effective only if it is in writing and signed by the Party giving it, and only in the specific instance and for the specific purpose for which it has been given. No failure on the part of any Party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of such right. No single or partial exercise of any such right shall preclude any other further exercise of such right or the exercise of any other right;
34.5. This Agreement may be executed in any number of counterparts; each executed counterpart shall be deemed to be an original; all executed counterparts taken together shall constitute one agreement;
34.6. Except as expressly provided otherwise in this Agreement, dates and times which any Party is required to perform any obligation under this Agreement, other than payment of money, shall be postponed automatically to the extent, and for the period of time, that the Party is prevented from doing so by circumstances beyond its reasonable control. Such circumstances shall include acts of nature, strikes, lockouts, riots, acts of war, epidemics, government regulations imposed after the fact, fire, communications line failures, power failures, earthquakes or other disasters. The Party prevented from rendering performance must notify the other Party immediately and in detail of the commencement and nature of such circumstance and the probable consequences of it and other obligations of both Parties affected by this delay shall be adjusted accordingly. Each Party whose performance is delayed must use reasonable effort to perform its obligations in a timely manner, must employ all resources reasonably required in the circumstances and must obtain supplies or Services from other sources if reasonably available;
34.7. This Agreement shall be effective and shall be binding on the Parties hereto and their assigns, representatives, heirs and successors as of the date hereof. Furthermore, this Agreement shall be binding and effective against any purchaser or transferee of all or any part of the assets, undertakings, property, Products (for Licenses to use the Products granted in the usual and normal course of business).
35. SCHEDULES:
35.1. A: Schedule of Retail Purchase Prices
35.1. B: Territory and/or Industry Vertical
IN WITNESS WHEREOF, each party to this agreement has caused it to be executed on the date indicated.
Accepted and Agreed: Accepted and Agreed:
Credder Inc. Reseller: __________________
Name: __________________ Name: ____________________
By: _____________________ By: _______________________
Date: ___________________ Date: ____________________