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Published by Enhelion, 2019-12-08 11:30:22



Reseller Agreement Effective Date: December 20, 2002

“PARTIES” ("Reseller")

WHEREAS, Manufacturer appoints Reseller as its exclusive Representative and Reseller in Reseller’s
Territory to sell, license, market and distribute Manufacturer’s Products, and WHEREAS, Reseller
accepts the appointment and agrees to sell and distribute Manufacturer’s Products within its Territory,
NOW, THEREFORE, in consideration of the mutual covenants and premises hereinabove and
hereinafter set forth, the Parties hereby agree as follows:

Section 1. Definitions

The following terms shall have the meanings indicated:
(1) “Agreement” (also referred to herein as the "Contract Documents", “Contract”, “Agreement”):

this Reseller Agreement, Exhibits, Addendums, Schedules and Amendments attached hereto.
(2) “Manufacturer” means a party and its subsidiaries engaged in manufacturing products.
(3) “Reseller” means a party duly authorized to sell products or services to the public or to an end

(4) “Equipment” means hardware, materials, and accessories.
(5) “Software” means executable Software object code or binary code and firmware be embedded

in Equipment.
(6) “Work” means any ongoing or one-time Services furnished by Manufacturer or Reseller.
(7) “Documentation” means and specifications, manuals, drawings or other technical data in

electronic format or other media provided for Equipment, Software or Work.
(8) “Products” means all current and future Software, Equipment, Documentation and Work

provided by Manufacturer.
(9) “Territory” means any location within the political borders of the United States of America.
(10) “System” means the combination of Products from various Manufacturers.
(11) “End User” or “Customer” means a person or entity to whom Reseller distributes a copy of the

Software, Equipment and Documentation for private use, who has agreed to be bound by all
the terms of the Software License Agreement, or any other Agreement applicable to the
distribution of Manufacturer’s Products by Reseller.
(12) “OEM” means a party that purchases Products from Manufacturer, adds other hardware or
software, and resells the systems with its own branding and after-sale support and warranty for
specific applications.
(13) "Sub-Distributor" means third parties which, pursuant to a sub-distribution agreement entered
into with Reseller ("Sub-Distribution Agreement"), shall purchase Products from Reseller for
distribution solely to End Users.
(14) “Competition” means rivalry between two or more parties seeking or striving for the same
Customer or market.

(15) “Compete” means to seek or strive for the same Customer or market.

(16) “Acceptance” (also referred to as “Sign-Off”) means the point in time when consistent with
industry standards the Work has been completed and the Products have been delivered
without exceptions.

(17) “List Price” means, with respect to a Product, Manufacturer’s standard and published list price
for the Product in the Territory.

(18) “Customer Price” means the price for products a Customer agrees to pay.

(19) “Reseller Discount” means the applicable percentage discount from the Customer Price of
Manufacturer’s products.

(20) “Software License Agreement” means a license agreement governing the use of the Software.

(21) “Update” means any change to the Products or Documentation provided by Manufacturer to
Reseller following prior delivery of the particular Product or Documentation.

(22) “Customization” means changes to the Software required for a specific Customer.

(23) “OEM” means Original Equipment Manufacturer. A Party who sells its Products to another
party for distribution of Products with the branding and support of such other party.

Section 2. Exclusivity

(1) Subject to Reseller’s compliance with terms and conditions set forth in this Agreement,
Manufacturer agrees to not appoint any other indirect sales organization for distribution of its
products within Reseller’s Territory, and agrees that any sale to any end-user within Reseller’s
territory will be effected by Reseller, except for (i) OEM agreement: In the event Manufacturer
enters into an OEM agreement through a direct sales effort by Manufacturer, Reseller would
not be entitled to any compensation. Manufacturer shall not appoint OEM Resellers that would
compete with Reseller’s business. OEM Agreements brokered by Reseller shall be eligible for
standard discounts/commissions to Reseller; (ii) Direct sales: Reseller agrees that Manufacturer
shall conduct direct sales. Direct sales within Reseller’s territory shall not be considered as a
sale made by Reseller. Manufacturer agrees to not make direct sales which would compete
with Reseller; however, to the extent Reseller is involved for the purposes of local support
requirements for the above exceptions, Reseller would be eligible for commissions or discounts,
agreed to in writing on a case to case basis.

(2) Subject to Manufacturer’s compliance with terms and conditions set forth in this Agreement,
Reseller agrees to not market products that compete with Manufacturer’s Products within
Reseller’s Territory. This non-compete provision shall apply to Manufacturer’s Products in
existence before the Effective Date of this Agreement, or as otherwise agreed to in writing.

(3) Reseller shall use commercially reasonable efforts to ensure that it does not make sales outside
the Territory. Without limiting the foregoing, Reseller shall require End User to affirm in writing
or over the Internet by click-wrap, under penalty of perjury, that they are resident within the
Territory. If, now or in the future, Reseller can through reasonable commercial efforts and at
minimal costs determine the location of a prospective customer, then Reseller shall from that
time utilize such measures and/or technology and shall not sell the Software to anyone with a
location so indicated to be outside the Territory.

(4) The parties acknowledge and agree that legal damages shall not be an adequate remedy for any
breach or attempted breach of the provisions of this Section 2 and agree that equitable relief,

including injunctive relief, shall be required in appropriate circumstances. The parties hereby
waive any requirement for the securing or posting of any bond in connection with the obtaining
of any such injunctive relief.

Section 3. License and Distribution

(1) Subject to Reseller’s compliance with terms and conditions set forth in this Agreement,
Manufacturer grants Reseller, and Reseller accepts, during the term of this Agreement, a
transferable, exclusive license and right (i) to store one or more copies of its Software, Products
and Documentation in Reseller’s facility for the purpose of distribution to Customers or for
demonstration to Customers; (ii) to distribute the Products and Documentation to Customers in
the Territory; and (iii) to demonstrate, market and promote the Software to Customers.

(2) Reseller’s Purchase Orders shall contain the following information: (1) name and address of
Customer; (2) detailed description of the Products to be purchased; and (3) confirmation of
Purchase Price to be paid to Manufacturer by Reseller for each Product.

(3) Reseller shall submit a Software License Agreement covering the applicable Products duly
executed by the End User.

(4) Any Sub-Distribution Agreement(s) entered into by Reseller must have terms and conditions
which shall be substantially similar to, and in no event less restrictive than, those set forth in
this Agreement. Upon request of Manufacturer, Reseller shall provide Manufacturer with
copies of Sub-Distribution Agreements.

(5) Reseller shall not make representations or warranties other than those contained in
Manufacturer’s Documentation.

Section 4. Sales, Marketing, and Minimum Sales Quota

(1) The Parties agree to use commercially reasonable efforts to promote the sale of Manufacturer’s
Products in the Territory according to the plan outlined in Exhibit C “Marketing Plan”.

(2) Reseller agrees to provide Manufacturer with quarterly sales forecasts outlining the quantities
of Products anticipated to be purchased and sold by Reseller during the next subsequent

(3) The Parties agree to jointly review all promotional and advertising materials for the Products
prior to use

(4) Reseller shall not make any contracts or commitments on behalf of Manufacturer nor make any
warranties or other representations regarding the Products other than those authorized by
Manufacturer in writing.

(5) Reseller agrees to a minimum sales quota beginning from the signature date herein:
a. Quarters One and Two, 1 each so-called ‘Beta Site’ account with an aggregate revenue
to Manufacturer of USD $125,000 (one hundred twenty five thousand)
b. Quarters Three and Four, 4 each so-called ‘Early Adopter’ reference accounts with an
aggregate revenue to Manufacturer of USD $360,000 (three hundred sixty thousand)
c. Year 2 - $1,800,000 (one million eight hundred thousand)

(6) The Parties agree to negotiate in good faith sales quotas for each subsequent year 3 months
prior to the renewal date of the Agreement.

(7) Manufacturer acknowledges that its own performance is of the essence to allow Reseller to
achieve its quota. Manufacturer’s performance includes, but is not limited to, delivering
products and services free of defects or deviations from specifications described in the then
current brochures and promotional materials or specific agreements with Customers, and
timely delivery of accepted Reseller purchase orders. Manufacturer therefore acknowledges
that its failure to perform shall give Reseller the right to reasonably reduce its sales quota
without being considered to be in violation of this Section 4 of this Agreement.

(8) Reseller acknowledges that missing sales quotas by more than 10% due to reasons within its
reasonable control shall grant Manufacturer the right to appoint other Resellers at its discretion
in Reseller’s territory.

(9) Reseller covenants that it shall use commercially reasonable efforts to fulfill its contractual and
legal obligations to Customers. Reseller further covenants that it will (i) provide Customers with
quality sales and technical support for Manufacturer’s Products sold by Reseller; (ii) promptly,
courteously and appropriately respond to Customers; and (iii) generally approach Customers in
a professional manner to add to the good reputation of Reseller and Manufacturer. To the
extent that Reseller is unable to fulfill these obligations to Customers, Reseller agrees that
Manufacturer shall elect to fulfill those obligations, or any portion thereof, and Reseller shall
reimburse Manufacturer reasonable costs and expenses so incurred by Manufacturer.

(10) Taxes, Tariffs, Fees. Manufacturer's Suggested Prices and Per Copy Fees are FOB Resellers place
of Business in San Jose, California and do not include any other national, state or local sales,
use, value added or other taxes, customs duties, or similar tariffs and fees which shall be
required to be paid or collected upon the delivery of the Products or upon collection of the
prices for the Products or the Per Copy Fees to Customer. Should any additional tax or levy be
made, Reseller agrees to pay such tax or levy and indemnify Manufacturer against any claim for
such amount. Reseller represents and warrants to Manufacturer that all Software acquired
hereunder is for redistribution in the ordinary course of Reseller's business, and Reseller agrees
to provide Manufacturer with appropriate resale certificate numbers and other documentation
satisfactory to the applicable taxing authorities to substantiate any claim of exemption from
any such taxes or fees.

Section 5. Schedule and Receipt

(1) Manufacturer shall deliver the Products at Reseller or Customer facility, as instructed by

(2) The Parties acknowledge that delivery time is of the essence.

(3) Upon receipt regardless of its location specified in 5.1 above, Reseller shall inspect the Products
and shall within 30 days of receipt give written notice to Manufacturer of any claim of damage
or missing items. Should Reseller fail to give such notice, or fail to obtain an extension of such
30-day period from Manufacturer receipt shall be deemed to be accepted by Reseller.
Manufacturer will reasonably accommodate Reseller's request to replace its master copy of
software, which becomes corrupted or damaged. Reseller shall contractually require its End
Users to report any claim of damage or shortages for Software shipped to them within thirty
(30) days of the End Users receipt of such package (or the time required by applicable law, if
longer). This paragraph addresses exclusively the act of physical receipt of Products and does

not constitute Acceptance or Sign-off of Product’s or Manufacturer’s performance, as described
in Section 6 below.

(4) If a Party’s performance of any of its obligations under this Agreement is delayed or impaired
by reason of any act of God, war, civil disturbance, strike, adverse weather conditions, delays in
transportation, inability to obtain or delays in obtaining any permits or any law, rule or order of
any governmental agency or official or for any other cause not reasonably within the party's
control and not due to any fault or negligent act or omission on such party's part, then that
party shall be entitled to an extension of time for a period equivalent to the lost time; provided,
however, that the affected Party must give the other Party notice within ten (10) business days
(unless circumstances require immediate notification) of the commencement of such claimed
delay or impairment. Neither party shall be liable for any damages, whether direct or indirect,
special, exemplary or consequential as a result of non-performance or late performance arising
out of these circumstances.

(5) In addition to the above specified circumstances, the time for delivery of the Products shall be
extended if and to the extent (i) Reseller fails to make payments when due; and/or (ii) Reseller
fails to approve Manufacturer's submittals requiring approvals within reasonable times, or (iii)
Reseller fails to satisfy any of its other obligations.

(6) Except as otherwise provided herein, Manufacturer shall ship by whatever means it deems
appropriate for Delivery of the Products within agreed to delivery times, and shall have the
right to designate and control agents and brokers (including freight forwarders and
transportation agents).

Section 6. Acceptance

(1) Manufacturer accepts that Reseller shall give its Customer a Notice of Completion when the
Product is fit for its intended use, upon which Customer shall inspect the Product, Work, and/or
Customization and shall either: (i) accept the Product, Work and/or Customization in writing, or
(ii) in good faith reject the same or portions of either by specifically stating the reasons
therefore in writing. If Customer rejects the Products or Work or any portion of either, then
Manufacturer shall diligently work to correct the noted deficiencies and shall give Reseller
notice of work completion, and Reseller shall submit Notice of Completion to Customer.
Customer shall inspect and either accept or in good faith reject the Products or Work in the
manner set forth in this Section within five (5) days from such notice; if the Customer again so
rejects same, then Manufacturer shall diligently work to correct noted deficiencies until
Customer finally accepts same. Such process shall be repeated until noted exceptions shall be
corrected. When Customer accepts the Products without exceptions to the mutually agreed-to
specifications, the Products shall be “delivered”. Modifications are commonly accepted on a
separate schedule.

(2) The Parties acknowledge that this acceptance manner shall not affect either Party's right to
seek appropriate relief against the other at law due to the Customer’s failure to reasonably and
in good faith accept the Products or Manufacturer's failure to correct noted deficiencies.

(3) Reseller acknowledges that neither the failure nor malfunction nor late delivery nor system
malfunction caused by other Equipment, Software, Systems or Work and not provided by
Manufacturer shall be grounds for rejection of the Products.

Section 7. Customization

(1) The Parties shall collaborate in scheduling Product Customization and Delivery.
(2) Manufacturer shall diligently work to deliver the Customization of Products in accordance with

the terms and conditions of this Agreement and an agreed to Scope of Work.
(3) Manufacturer shall supervise and direct the Work and be responsible for its means, methods,

techniques, sequences and procedures and for the coordination. Except as otherwise noted,
Manufacturer shall purchase or provide all labor, materials, Equipment, tools, machinery, and
other services necessary for the prosecution and completion of the Customization Work.

Section 8. Payments, Taxes

(1) Manufacturer invoices shall reference a respective Customer or Reseller’s Project Number.
(2) Invoices shall be payable net 30 days.
(3) Reseller shall not make any subtraction or deduction from any payment unless Reseller

received an official credit memorandum authorizing such subtraction or deduction.
(4) If Reseller fails to make any payment to Manufacturer when due, Manufacturer shall upon ten

(10) working days prior written notice to Reseller, suspend execution of the Work until such
payment is received in full and the period of suspension shall be added to the time at which
Manufacturer is required to complete performance of the Work.
(5) Manufacturer shall establish the prices payable by Reseller for the Products (the "Prices"),
which shall be based on a discount from Customer Price, unless otherwise agreed to be the
Parties in writing.
(6) List Prices shall be set forth in Exhibit A. Manufacturer shall increase or decrease any of the
prices upon mutual written agreement.
(7) Manufacturer’s prices shall be FOB Reseller’s or Customer’s place of business, freight prepaid,
unless otherwise agreed to in writing.
(8) Manufacturer shall use its best efforts to timely deliver accepted Orders of Reseller.

Section 9. Title Transfer, Risk Of Loss

(1) Title to each item of Equipment, Software or materials shall pass to Reseller upon Reseller's
Acceptance and payment for same.

(2) Risk of loss of each item of Equipment shall pass to Reseller upon Delivery.
(3) The Parties certify that they maintain adequate insurance coverage for the regular course of

their business, including liability insurance and legally required insurance, such as workman’s

Section 10. Restrictions

(1) Reseller shall not modify, supplement, enhance or bundle the Software, except where
permitted by the use of Visual Basic for Applications (VBA) licensed in the Software, and shall
distribute the Software solely in the form in which it was provided to Reseller by Manufacturer
or customized by Manufacturer. Reseller shall not have the right to sublicense the Software or
Documentation, and Reseller shall ensure that all Customers execute the then-current Software

License Agreement with Manufacturer before they shall be permitted to use or access the

(2) Reseller agrees not to: (i) disassemble, decompile or otherwise reverse engineer the Software
or otherwise attempt to learn the source code, structure, or algorithms underlying the
Software; (ii) take any action contrary to Manufacturer’s Software License Agreement except as
expressly allowed under this Agreement.

(3) Manufacturer shall not appoint any other Resellers for sale or distribution of the Products
within the Territory without prior written consent by Reseller, which it shall give at its sole
discretion, except for provisions made specifically in this Agreement.

(4) Manufacturer shall not change the Territory without prior written consent by Reseller, which it
shall give at its sole discretion.

Section 11. Intellectual Property, Infringement and Indemnification

(1) Manufacturer warrants and certifies that each product or service provided by Manufacturer or
bearing Manufacturer's name or logo shall be free of any known and rightful claim of patent,
trademark or copyright infringement.

(2) Ownership. As between Manufacturer and Reseller, Manufacturer owns and retains all right,
title, and interest in and to all Software and Documentation; all trademarks, service marks or
trade names associated with the Software or Documentation (the "Trademarks"); all copyrights,
patents, trade secret rights, and other intellectual property rights therein (collectively, together
with the Software, Documentation, and Trademarks, the "Property"). Except as expressly
granted herein, Manufacturer does not grant to Reseller any right or license, either express or
implied, in the Software, Documentation or Property. Reseller shall not reverse engineer,
disassemble, de-compile, or otherwise attempt to derive source code from the Software.

(3) Product Indemnity. Manufacturer will indemnify, defend and hold Reseller and its subsidiaries
(each, an "Indemnified Party"), harmless from and against any and all claims, losses, costs,
liabilities and expenses (including reasonable attorneys' fees), arising as a result of or in
connection with any claim that the Software or Documentation provided by Manufacturer
infringes any intellectual property right of a third party provided: (i) the Indemnified Party
promptly gives written notice of any claim to Manufacturer; (ii) the Indemnified Party provides
any assistance which Manufacturer shall reasonably request for the defense of the claim (with
reasonable out of pocket expenses paid by Manufacturer); and (iii) Manufacturer has the right
to control of the defense or settlement of the claim, provided, however, that the Indemnified
Party shall have the right to participate in, but not control, any litigation for which
indemnification is sought with counsel of its own choosing, at its own expense. Additionally, if
an injunction or order issues restricting the use or distribution of any of the Software or
Documentation, or if Manufacturer determines that the Software or Documentation are likely
to become the subject of a claim of infringement or violation of any proprietary right of any
third party, Manufacturer shall in its discretion and, at its option (a) procure the right to
continue using, reproducing, and distributing the Software and Documentation; (b) replace or
modify the Software and Documentation so that they become noninfringing, provided such
modification or replacement does not materially alter or affect the specifications for or the use

or operation of the Software; require return of the Software to Manufacturer and refund any
licensing fees relating to the future use of the Software.

(4) Protection of Proprietary Rights. Reseller shall reasonably cooperate without charge (provided
that Manufacturer will reimburse out of pocket expenses as agreed in advance in writing), in
Manufacturer's efforts to protect Manufacturer's rights in the Property. Reseller shall promptly
notify Manufacturer of any infringements of Manufacturer's Property Rights that come to
Reseller's attention. Manufacturer shall have the exclusive right to institute infringement or
other appropriate legal action against alleged infringers of its Property Rights. Manufacturer
shall incur all expenses in connection therewith and shall retain all monetary recoveries
received there from.

(5) Reseller shall not obtain or claim any ownership interest in the Software or Documentation, or
any portion thereof, or any Intellectual Property therein, unless otherwise agreed to in writing.

(6) Trademarks; Property. During the term of this Agreement, Reseller shall have the right to use
and reproduce the Trademarks in connection with Reseller's marketing, advertising, promotion
and distribution of the Software. Reseller's use of the Trademarks shall not create any right,
title or interest therein. Reseller shall use the Trademarks only in a manner, which complies in
all material respects with Manufacturer's reasonable policies in effect from time to time, a copy
of which shall be delivered to Reseller, and all such use shall be for Manufacturer's benefit and
Reseller shall reproduce, on every copy of the Software and Documentation made by or for it,
all patent, copyright, trademark, service mark or other markings or legends contained therein
of thereon. Reseller shall not remove, obscure or alter Manufacturer's copyright notice or the
Trademarks from the Software or Documentation. If Reseller, in the course of distributing the
Software, acquires any goodwill or reputation in any of the Trademarks, all such goodwill or
reputation shall automatically be transferred to and shall vest in Manufacturer when and as, on
an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration
or termination of this Agreement, without any separate payment or other consideration of any
kind to Reseller, and Reseller agrees to take all such actions necessary to effect such vesting.
Reseller shall not contest the validity of any of the Property or Manufacturer's exclusive
ownership of them. Reseller shall not adopt, use, or register, whether as a corporate name,
trademark, service mark or other indication of origin, any of the Trademarks, or any word or
mark confusingly similar to the Trademarks in any jurisdiction.

(7) The Parties shall not register any of each other’s trademarks, logos, domain names or brands,
or confusingly similar trademarks, logos, domain names or brands, anywhere in the world.

(8) Manufacturer shall, at its own expense, defend, indemnify and hold harmless Reseller and its
directors, officers, employees and agents from and against any suit or claim brought against
them, or award of damages and costs (including reasonable attorneys' fees and costs) by any
court, including a court of last resort, resulting from any claim of infringement by
Manufacturer’s Products of any patent, trademark or copyright of the United States. In case of
a similar infringment by Reseller, any related claims and liabilities would be to Resellers

Section 12. System Warranties And Disclaimers

(1) Reseller shall include the first year of Manufacturer mandatory First Year Software
Maintenance Agreement in any sale to a Customer. Subsequent yearly Maintenance
Agreements shall be optional.

(2) Manufacturer warrants for a period of three hundred sixty (360) days from the date of
Acceptance, that the Work shall conform in all material respects to the highest applicable
workmanship standards, and that all Products shall be free from defects.

(3) Manufacturer shall assign to Reseller the warranty and warranty terms for the Products for
transfer to the Customer.

(4) Manufacturer shall have no liability or obligation to Reseller or Customer with respect to any
portion of the System materially damaged or altered by abuse, improper use, negligence,
accident, modification, End-User errors and omissions in operating or maintenance procedures,
attempted repair by non-qualified personnel, operation of the Products outside of the normal
environmental and electrical specifications, provided that such damage or alteration was not
caused by Manufacturer.

(5) Manufacturer warrants the merchantability and/or fitness of the Products for their intended

(6) Reseller shall take necessary action to ensure that (i) the Software or Documentation stored on
Reseller's servers or computer systems is appropriately secured so that the Software or
Documentation can only be viewed, copied, or utilized by licensed End Users; and (ii) that the
object code of the Software can only be accessed by employees authorized by Manufacturer
and cannot be copied or downloaded by any of Reseller's licensees or by any other third party.
In addition, Reseller shall make its offices and equipment available in person, upon reasonable
notice, and to the extent feasible remotely, to Manufacturer to inspect and test Reseller's
physical and technical set-up to ensure that Reseller is complying with its obligations under this

Section 13. Maintenance and Support

(1) Manufacturer shall provide Reseller and Customer with the support defined in Exhibit B, to
include the distribution of Product Updates.

(2) Reseller shall provide Sub-Distributors and End Users with Reseller Support as set forth in
Exhibit B.

(3) Manufacturer shall provide Reseller with the sales, marketing and product training set forth in
Exhibit B. Reseller shall be solely responsible for the training of Sub-Distributors and/or End

(4) Reseller shall and shall cause each of its Sub-distributors to maintain accurate books and
records of: (1) all licenses granted for the Products; (2) the name, address and contact person
for each End User and Sub-distributor; (3) all support and maintenance provided to End Users
(“Product Records”). Reseller shall provide resulting records to Manufacturer periodically.

(5) Reseller shall deliver to Manufacturer the name, address and contact person for each End User
or Sub-distributor within thirty (30) days of sale. Reseller and Sub-distributors shall deliver a
summary of all maintenance provided to End Users on a quarterly basis. Upon reasonable

notice to Reseller, and no more frequently than four (4) times per year, Reseller shall make
Product Records available to Manufacturer at Reseller's place of business during normal
business hours.

Section 14. Permits, Compliance, Government Provisions

(1) The Parties shall at their own cost and expense: (i) obtain all consents, licenses, permits,
approvals, authorizations and inspections from any government authorities, agencies or
officials required for the performance of obligations under this Agreement; (ii) comply with all
laws, ordinances, rules, regulations, codes, standards, orders, and notices required for the
performance of obligations under this Agreement.

(2) Unless otherwise provided under this Agreement, no term or condition required in any U.S. or
other Government contract or subcontract shall be deemed a part hereof.

(3) The Parties shall comply with all laws and regulations applicable to their respective marketing
and distribution of the Software hereunder. Without limiting the generality of the foregoing,
the Parties shall, at their own expense, make, obtain, and maintain in force at all times during
the term of this Agreement, all filings, registrations, licenses, permits and authorizations
required for the performance of their respective obligations under this Agreement. The Parties
shall provide each other with English language copies of evidence of compliance with applicable
laws upon reasonable request.

Section 15. Confidentiality

(1) The Parties shall reveal to the other certain confidential, proprietary and/or trade secret
information concerning its business, operations, products, features and/or services in whatever
form provided, which is “Confidential Information” and shall remain the property of such Party.

(2) Each Party shall make use of that information or data disclosed to it by the other Party, only for
the purpose of effectuating this Agreement.

(3) Confidential information shall at all times be kept within each Party’s organization and shall not
be disclosed in any way by the party, its employees, agents, attorneys, accountants, or advisors.
Each party shall inform its agents, employees, attorneys, accountants and advisors of the
confidential nature of all information disclosed by the other party to it and shall require that
such persons or entities be bound by the provisions of the Agreement with respect to the
disclosure of that information.

(4) The Parties agree that the restrictions set out herein shall not apply to Confidential Information
of a party, which is or becomes, through no fault of the other Party information available in the
public domain.

(5) The Parties shall not use or refer to this Agreement or any element thereof or any
representation thereof in any promotional materials, including advertisements or other public
promotional materials without prior written consent of the other party.

Section 16. General Indemnity

(1) Each Party shall defend, indemnify and hold the other (including its holdings, officers, directors,
employees, and agents) harmless from and against any and all claims or suits for losses,
damages, liabilities, costs, and expenses (including reasonable attorneys' fees and costs) which

arise from or shall be incident to any death, bodily injury, or tangible property damage
proximately caused by such party's negligence, willful misconduct, or strict liability in tort with
respect to the subject matter of this Agreement, provided the indemnifying Party has sole
control over the defense and settlement of any such claims or suits.

(2) Except as otherwise provided for elsewhere in this Agreement, Manufacturer's or its licensors'
liability to Reseller or any third party arising out of this Agreement shall not exceed the total
amount actually received by Manufacturer hereunder during the previous six (6) months. In no
event shall any party or Manufacturer's licensors be liable to another party or any third party
for loss of data, costs of procurements of substitute goods or services or any indirect,
incidental, special, or consequential damages under any cause of action, even if such party has
been advised of the possibility of such damages.

(3) Reseller shall indemnify and hold Manufacturer harmless from and against any and all damages,
liabilities, costs and expenses (including reasonable attorney's fees) which Manufacturer incurs
as a result of any claim based on any breach of any representation or warranty, covenant or
agreement by Reseller under this Agreement or any breach of this Agreement by Reseller;
provided: (i) that Manufacturer promptly gives written notice of any claim to Reseller; (ii) at
Reseller's expense, Manufacturer provides reasonable assistance which Reseller shall
reasonably request for the defense of the claim; and (iii) Reseller has the right to control the
defense or settlement of the claim, provided, however, that Manufacturer shall have the right
to participate in, but not control, any litigation for which indemnification is sought with counsel
of its own choosing, at its own expense.

Section 17. Term And Termination

(1) The initial Term of this Agreement shall be for three years of the effective date and shall
thereafter automatically renew in successive 12-month terms (“Renewal Term”). Either Party
shall cancel this Agreement effective on the last day of the Initial Term, or any Renewal Term,
by serving written notice of such termination on the other Party at least forty-five (45) days
prior to the effective date thereof.

(2) Manufacturer shall terminate the Agreement for convenience prior to its Term in the event
Manufacturer ownership and/or corporate governance changes. In such event, Manufacturer
agrees to: Either (i) compensate Reseller for the premature termination through an "Agreement
Dissolution Fee" as shall be negotiated at the time of the termination; or (ii) enter into an OEM
Agreement with Reseller, whose terms and conditions are agreed to at the time of such
termination request, and which the parties agree to negotiate in good faith. This OEM
Agreement shall include provisions for support, favorable pricing and compensation for capital
investments made by Reseller.

(3) In the event a termination for convenience is requested for by Manufacturer within the first 6
months from the Effective Date of this Agreement, the aforementioned provisions of Section 17
Paragraph 2 shall not apply, except for the compensation to Reseller for any unsold inventories
and equipment procured by Reseller exclusively to support Manufacturers products.

(4) Except as otherwise provided for herein, either Party shall terminate this Agreement upon
giving Notice to the other in the event that such other party shall breach or be in default of any
of the covenants, obligations, warranties, representations, terms or conditions of this

Agreement and such other party fails to cure such breach or default within thirty (30) days after
Notice thereof from the party not in default. Such Notice shall provide in reasonable detail the
basis upon which the breach is claimed. In the event of such non performance, especially with
respect to revenue targets, Manufacturer, after providing all such notices and grace periods to
Reseller as shall be required, shall be entitled to appoint other Resellers in the Territory or to
terminate this Agreement to enter into the exclusive appointment of another reseller.

(5) The Parties agree to continue their cooperation in order to effect an orderly termination of
their relationship and termination of this Agreement shall be adjourned for a period not to
exceed three (3) months, during which time Reseller shall continue to market and distribute its
inventory of the Products. During such three (3) month period, Reseller shall have no right to
order or receive any additional copies of the Products. Within four (4) days of termination,
Reseller shall return all copies of promotional materials, marketing literature, written
information and reports pertaining to the Products that have been supplied by Manufacturer.
Manufacturer agrees to indemnify and hold Reseller harmless in the event a termination causes
Reseller loss of profits or investments made or for like causes.

(6) Upon the expiration or termination of this Agreement Reseller shall, within thirty (90) days, pay
to Manufacturer all amounts when due hereunder, return to Manufacturer all products and
demonstration copies received from Manufacturer, erase any and all of the foregoing from all
computer memories and storage devices within Reseller's possession or control and, if
requested, provide Manufacturer with a signed written statement that Reseller has complied
with the foregoing obligations. All rights and licenses granted by Manufacturer hereunder shall
terminate, provided such termination shall not result in the termination of end user licenses for
copies of the Software which already have been purchased by end users in accordance with the
provisions of this Agreement.

(7) Notwithstanding other provisions herein, Manufacturer shall not be liable to Reseller because
of such termination for compensation, reimbursement or damages on account of the loss of
prospective profits or anticipated sales or on account of expenditures, inventory, investments,
leases or commitments in connection with the business or goodwill of Reseller.

Section 18. Representations

(1) Reseller represents and warrants to Manufacturer as follows:(i) Reseller is a limited liability
company duly organized, validly existing and in good standing under the laws of the State of
California, USA (Reseller). (ii) Reseller’s signing and delivery of this Agreement, and its
performance of its obligations hereunder have been duly authorized by all necessary corporate
action; and do not conflict with any terms or conditions of its Articles of Organization or By-
laws; and do not violate any law, regulation, order, judgment or decree by which it shall be
bound; and shall not violate or result in a breach, acceleration or default under any agreement
or understanding to which it is a party or by which it shall be bound which shall materially affect
its ability to perform its obligations hereunder.

(2) Manufacturer represents and warrants to Reseller as follows: (i) Manufacturer is a corporation
duly organized, validly existing and in good standing under the laws of the State of Delaware,
USA. (ii) Manufacturer’s signing and delivery of this Agreement, and its performance of its
obligations hereunder have been duly authorized by all necessary corporate action; and do not
conflict with any terms or conditions of its Articles of Organization or By-laws; and do not

violate any law, regulation, order, judgment or decree by which it shall be bound; and shall not
violate or result in a breach, acceleration or default under any agreement or understanding to
which it is a party or by which it shall be bound which shall materially affect its ability to
perform its obligations hereunder.

Section 19. Dispute Resolution

(1) Management Escalation. The parties agree that in the event any dispute arising out of or
related to this Agreement is not resolved in the ordinary course of business, the parties shall in
good faith attempt to resolve the dispute through negotiation by their representatives who
shall be at a higher level of management than those involved in the day to day administration
of the Contract and who have authority to settle the dispute. Accordingly, each party agrees
that it shall not commence legal action against the other in connection with such dispute
without first attempting to resolve the dispute in accordance with the following procedure: (a)
Written notice of the dispute (Notice of Dispute) shall be issued to the other (for purposes of
this Section the party issuing the Notice of Dispute shall be referred to as the "Claimant" and
the other party shall be referred to as the "Respondent"). Such notice shall state the nature of
the dispute, the Claimant’s position, and its reasons supporting its position. Within thirty (30)
days of Respondent's receipt of the Notice of Dispute, representatives of each party who have
authority to settle the dispute shall meet at a mutually agreeable time and place to attempt to
negotiate a resolution to the dispute. If these representatives fail to resolve the dispute within
forty-five (45) days of the Recipient's receipt of the Notice of Dispute, then either party shall
commence legal action as permitted by law. (b) All negotiations pursuant to this Section shall
be confidential and treated as settlement discussions for purposes of the Federal Rules of
Evidence and applicable state rules of evidence.

(2) Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach
thereof, not resolved by Management Escalation shall be settled by binding arbitration in
California, under the Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator(s) shall be entered in any court having
jurisdiction over the subject matter of the controversy.

Section 20. Notices

All notices and other communications required or permitted to be given under this Agreement
("Notice") shall be in writing and shall be delivered personally, or mailed by registered or certified mail,
return receipt requested, postage prepaid, or by telex, telecopy or other form of rapid transmission,
confirmed by mailing as described above, addressed as follows:

If to Reseller: If to Manufacturer:

Any Notice so addressed and delivered personally or by rapid transmission shall be deemed given upon
receipt. Any Notice so addressed and mailed shall be deemed given as of the date it is deposited in the
United States mails. Either party shall change its address by giving the other written Notice thereof in
the manner provided in this Section.

Section 21. General Provisions

(1) The headings of the sections and subsections of this Agreement shall be for general information
and reference only and they in no way define, limit or describe the scope of the provisions of
such sections and shall not be considered in the interpretation or enforcement of this

(2) Either party's waiver or failure to enforce any of the terms and conditions of this Agreement in
any instance shall not be deemed or construed to be a waiver of such term or condition for that
instance or of any subsequent breach thereof.

(3) Nothing contained in this Agreement is intended to create, or does create, a joint venture or
partnership or any other relationship between the parties other than the relationship of
independent contractor between Reseller and Manufacturer nor to make Manufacturer or
Reseller the agent of the other. Manufacturer and Reseller each agree not to hold itself out as
an employee, partner, agent or representative of the other. Nothing contained herein shall be
deemed to limit Manufacturer from entering into any agreement with any other party.

(4) The Parties shall act in good faith and refrain from activities that attempt to overtly induce each
other’s staff to leave each other’s respective employ, or to interfere with the Party’s
relationship with its employees. Further, the Parties agree that during the term of this
Agreement or for 6 months after its completion, Purchaser shall not in any way, directly or
indirectly (i) induce or attempt to induce any of its employees to quit employment; (ii)
otherwise interfere with or disrupt the Party’s relationship with its employees; or (iii) solicit,
entice, or hire away any employees of the other Party.

(5) Whenever possible each provision of this Agreement shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of the Agreement shall be
prohibited by or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition without invalidating the remainder of such provision or the
remaining provisions of this Agreement.

(6) All the representations and warranties made by either party in this Agreement and all the
obligations of the parties intended by their terms to survive the signing and delivery of this
Agreement and its expiration or termination shall so survive.

(7) If there is any litigation between the parties regarding this Agreement, the prevailing party (i.e.,
the party entitled to recover the costs of suit at such time as all appeals have been exhausted or
the time for taking such appeals has expired) shall be entitled to recover reasonable attorneys'
fees and court costs in addition to such other relief as the court shall award. This Agreement
shall be construed and enforced in accordance with the local law of the District of Columbia,
United States of America without reference to or application of its rules governing conflicts of
law. The Parties hereby consent and submit to the jurisdiction of the federal and state courts
located in California, United States of America and agree that any action or suit arising out of or
related to this Agreement shall be brought only in the federal or state courts located in
California that have proper jurisdiction over the subject matter of the action or suit.

(8) The parties consent that any process, or notice of motion or other application to any state or
federal court located or a judge thereof where the action is brought, or any notice in
connection with any proceedings, shall be served inside or outside the state where the action is
brought by registered or certified mail, return receipt request directed to Reseller at the

address set forth below, or of which Reseller advises Manufacturer in writing, and service so
made shall be deemed complete five (5) days after the same shall be posted, or in such manner
as shall be permissible under the rules of said Courts.

(9) Unless separately agreed to in writing, no provision required in a United States or other
Government contract or subcontract shall be a part of this Agreement or imposed upon or
binding upon Manufacturer.

(10) This Agreement shall be modified only by a written instrument signed by both parties, making
specific reference to this Agreement and to the charges to be made.

(11) This Agreement shall be deemed to have been made and executed in the State of California and
any dispute arising hereunder shall be resolved in accordance with the local laws of the State of
California, without reference to or application of its rules governing conflicts of law.

(12) If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid or enforceable, such determination shall not affect the validity or enforceability of any
other part or provision of this Agreement.

(13) The failure of either Party to insist upon or enforce strict performance by the other Party or any
provision of this Agreement or to exercise any right under this Agreement shall not be
construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely
upon any such provision or right in that or any other instance; rather, the same shall be and
remain in full force and effect.

(11) The Parties agree to inform each other immediately of any changes in its organization or
method of doing business, which might affect the performance of the Party’s duties hereunder.

(14) This Agreement shall be binding upon and inure to the benefit of the Parties and their
respective administrators, executors, legal representatives, successors and permitted assigns,
which will include without limitation any successor to all or substantially all of the Parties’
assets or any acquirer of a majority of the voting power of the Parties’ capital stock.

(15) This Agreement incorporates the parties' entire understanding and there shall be no
warranties, representations, or understandings of any kind, nature, or description whatsoever
made by either party to the other, except such as shall be expressly noted.

In witness whereof, the parties by their duly authorized representatives have executed this Agreement
as of the date first indicated above.

“Reseller” “Manufacturer”



Exhibit A: Price List and Standard Terms of Sale
Exhibit B: Support
Exhibit C: Joint Marketing

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