Software Sales Partner Agreement
Revision 7.0 (Aug 21, 2024)
This Sales Partner Agreement (“Agreement”) sets forth the terms and conditions under which Alloy Software, Inc. (“Vendor”) shall provide products and services for resale to undersigned Sales Partner (“Partner”), whose name and address are set forth in the signature section of this Agreement.
WHEREAS, Vendor is the business of developing, selling, and otherwise making available computer software and related services (“Products”) as listed in Exhibit A;
WHEREAS, Partner has experience in selling business-to-business software and wishes to sell and promote designated Vendor’s products and services for the period and on the terms and conditions set forth herein.
DEFINITIONS
“Party” or “Parties” means Vendor, Partner, Customer (or End User), Third (3rd) Party, or a combination of any or all.
“Customer” means any third party that purchases, subscribes for, or otherwise uses the Products through Partner.
“Documentation” means written and/or on-line material provided by Vendor to assist Customer in the use of the Software.
“End User” means the ultimate consumer of the Software or Services as set forth herein, the person or organization that uses the Software or Services.
“End User License Agreement” means the legal agreement between Vendor and the End User.
“Software Maintenance and Support Agreement” means the legal agreement between Vendor and the user of the Software, which defines various maintenance and support services in connection with the Product.
“Intellectual Property” means all rights, title, interest and benefit of a Party hereto in and to intellectual property of every nature, whether registered or unregistered, including all copyrights, patents, trademarks, certification marks and industrial designs, applications for any of the foregoing, trade names, brand names, business names, trade secrets, instruction manuals, source codes, digital files, URLs, technology, the Software, marketing rights of the forgoing, Proprietary Materials, together with all rights under license agreements, sublicense agreements, strategic alliances, development agreements, technology transfer agreements and other agreements or instruments relating to any of the foregoing, that are owned by a Party hereto or used in connection with the Services.
“Information” means the Product, all information and Proprietary Materials related thereto as well as information related to the business of Vendor or Customer.
“New Sale” means the acquisition of a new Customer.
“Perpetual” means a type of licensing model where the Software, Documentation and any related Services that are provided by the Vendor to the Customer are paid for up-front and the customer is entitled to use it indefinitely.
“Professional Services” means product training, consulting, report development or other services which are in addition to, and outside the boundaries of, Technical Support.
“Product”, “Products” or “Software Products” means the Software, Documentation and any related Services that are provided by Vendor to Partner for resale.
“Proprietary Materials” include all text, images, illustrations, URLs, audio and multimedia files and/or text, technology, software, Web site data, source codes, digital files, customer lists, technical information, data, plans, user identifications, account numbers, encryption keys, digital certificates, account access and log-in information, passwords, and all other similar materials or information related to the Services that are owned, used, or licensed by a Party.
“Partner Web Portal” or “Website” means a web site maintained by the Vendor with various information and tools which assist the Partner in representing the Product and placing orders.
“Services” mean any service associated with the Software Products, including Technical Support, Maintenance, Training, Custom Development, and other Professional Services that are provided by Vendor to Partner for resale.
“Software” means Vendor’s software and any updates, modifications and corrections thereto provided by Vendor to Customer hereunder.
“Subscription” means a type of licensing model where the Software, Documentation and any related Services that are provided by the Vendor to the Customer are paid for based on subscription terms and the Customer is only entitled to use the software during that specified subscription term.
“URL” means Uniform Resource Locator, which is the protocol for specifying addresses on the Internet.
1. Establishment of Relationship
1.1 Appointment. The Vendor hereby appoints the Partner, as an authorized seller of Alloy Software products and services with the non-assignable, non-exclusive right to promote and sell Products, upon the terms and conditions and commission arrangements as hereinafter set forth, and Partner hereby accepts such designation and appointment. Partner recognizes that Vendor may appoint other Parties to resell Products within the Territory as set forth herein, including other Parties who may compete with Partner. Now therefore in consideration for the mutual covenants and obligations set forth herein, the Parties hereby agree to the terms and conditions of this Agreement.
1.2 Grant of Right. The Vendor, subject to the terms and conditions set forth herein, hereby grants Partner a nonexclusive, nontransferable right and license during the term of this Agreement to promote and sell Products.
1.3 Liability. Each Party shall provide the services referred to in this agreement solely at their own discretion and shall not be liable to the other Party for the failure to provide any such services. Neither Party shall be liable to the other for failures to attain any results pursuant to this Agreement.
2. Obligations of Partner
2.1 Partner Prohibitions. Partner agrees not to distribute the Products (a) by rental or lease, (b) in bulk for redistribution, without prior written approval from Vendor, (c) at prices that exceed the retail price schedule as established by Vendor, except for added local taxes, without prior written approval from Vendor, (d) Partner may not use the Products for its own business or for any purpose, except for demonstrating the product to potential buyers, as set forth herein.
2.2 Demonstrations. Partner’s rights in Software Products used for demonstration purposes shall be subject to the terms and conditions of the End User License Agreement.
2.3 Restrictions on Copying and Decompiling. Partner agrees not to copy, disassemble, decompile, or reverse engineer the Software in whole or in part. Partner will use its best efforts to prevent unlicensed copying, decompilation and disassembly of the Software by the End User, by any employee or agent of Partner or any other third Party which has access to the Software by means of a relationship with Partner.
2.4 End User. Partner acknowledges that each End User is required to accept the terms of the End User License Agreement. Vendor shall post and maintain a current End User License Agreement as specified in Exhibit C: End-User License Agreement, or such other Vendor website as Vendor may specify from time to time by written notice. Partner hereby acknowledges that the End User License Agreement is subject to change without notice by Vendor.
2.5 Marketing. Partner will bear all expenses for its operation and staff. Partner will use its best effort to advertise and promote Software Products, at Partner’s expense. Partner agrees to prepare marketing materials, incorporating marketing materials and Software Products data provided by Vendor. Vendor reserves the right to review such materials and require modifications if the Partner’s marketing materials are misleading or not consistent with Vendor’s overall marketing and branding strategy.
2.6 Business Practices. Partner will conduct its business in a professional manner which will favorably reflect upon Vendor. Partner shall at all times comply with good business practices and all applicable laws and regulations relevant to this Agreement on the subject matter hereof. Partner shall inform the appropriate personnel in its sales force of the existence of this Agreement and distribute to such sales force any bulletin and other promotional material prepared hereunder.
2.7 Spam. Partner shall not send or cause to be sent any unsolicited e-mail (“Spam”), including newsgroup postings, regarding Vendor, Vendor’s Products, or services involving Products.
2.8 Piracy Report. Partner agrees to promptly report to Vendor any suspected illegal use or copying of Products.
2.9 Records. Partner will maintain an accurate and complete list of all End Users to whom Partner resells Products or provides an evaluation, including the names and addresses of each End User and the date of delivery of the Product. Partner shall permit Vendor and/or its appointed agent(s) on reasonable notice to audit such records relevant to this Agreement.
2.10 Billing. Partner shall be responsible for all End User billing and collection of payments from End User.
2.11 Territory. Subject to the United States Export Restrictions, as defined in the End User License Agreement, the Partner is granted the right to resale Vendor products worldwide.
2.12 Sub-Partners. Partner may authorize third parties (“Sub-Partners”) to make the Product available for further resale to End Users. However, the Partner shall bear sole responsibility for all activities, actions, and liabilities associated with any Sub-Partner. The Vendor shall have no responsibility or liability whatsoever for any actions, omissions, or liabilities arising from the conduct of any Sub-Partner. Partner will take all commercially reasonable measures to ensure that Vendor is fully protected from all Sub-Partners, namely by binding Sub-Partners to terms and conditions substantially and materially similar to the terms and conditions of this Agreement.
2.13 Restrictions. Partner will not, and will not permit any of its Customers or other third party to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to any of the Software Products, Services, and Proprietary Materials to ascertain, derive, and/or appropriate for any reason or purpose the source code or source listings for the Services or any trade secret information or process contained in the Software or remove any product identification, copyright or other notices.
2.14 License to Other Parties. Partner agrees that Vendor may grant to other parties the rights to market, sell, and distribute the Services. Partner understands that the grant of such rights to third parties may compete with Partner’s own marketing, sale, and distribution of the Services.
2.15 Technical Support. In situations where Partner provides their own services to the End User and requires assistance from Vendor, Partner must provide End User information to the Vendor when requesting service.
2.16 Sales Support. Partner will provide reasonable advance notice when requesting the Vendor participate in sales-related support (product demonstrations, Q&A sessions, Technical Answers, etc.).
2.17 Professional Services. Partner is prohibited from reusing product training, consulting, report development or materials from any other Professional Services engagement to resell in any way outside the requirements of this agreement.
3. Rights and Obligations of Vendor
3.1 General. Nothing in this Agreement shall be construed as limiting in any manner Vendor’s marketing or distribution activities or its appointment of other Partners, distributors, licensees, or agents, or selling the Software Product directly to any End User. Vendor reserves the right, in its own discretion, to include the Partner’s name and logo image in the official sales partner list, published on the Website.
3.2 Claims. Vendor shall defend, indemnify and hold harmless the Partner from any and all third-party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the use of Vendor’s Software. Vendor agrees to defend against any and all third-party claims at Vendor’s expense, whether or not such claims become the subject of litigation provided the Customer: (i) notifies Vendor promptly in writing of such claim, (ii) grants Vendor sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to Vendor’s requests for assistance. Partner will provide reasonable assistance in the defense of such claims if so requested by the Vendor. The Vendor, if requested by Partner, at its sole cost and expense, participate in the defense or settlement of any such claim provided always that Vendor shall have sole responsibility for the control of such defense or settlement.
3.3 Technical Support. Vendor shall provide technical support for the Software Products to End Users in the manner set forth in an applicable Service Agreement published on the Website.
3.4 Sales Support. Vendor shall, within reason, make technical and sales personnel available to the Partner to participate in sales-related support, such as product demonstrations, Q&A sessions, Technical Answers, etc.
3.5 Right of Refusal. Vendor reserves the right to refuse Partner the right to promote Vendor, Vendor’s Products or any other affiliation with Vendor.
3.6 Right to Contact End Users. The Vendor reserves the right to contact End Users directly regarding the delivery of software licenses, to provide support and maintenance services to End Users, or to validate the terms and conditions of this Agreement.
4. Orders for Software Products
4.1 Orders. For each order, Partner shall submit a written order by electronic mail to Vendor which shall comply with Vendor’s standard requirements, which shall include (i) Partner’s name, postal address, e-mail address, telephone numbers; (ii) the End User’s name, postal address, email address and telephone numbers; (iii) a description of the Software Products and Services being purchased; and (iv) the number of licenses being purchased. Partner may use their own order forms, if the order carries the corporate identification information, an authorized signature of a Partner representative, and provides the required information.
4.2 Prices. The price of the Software Product (“Price List”) shall be distributed to Partner. Vendor reserves the right to change its Price List at any time. Vendor shall notify Partner of price changes and distribute Price List updates when such changes take place. All prices for the Software Products shall be in U.S. dollars.
4.3 Order Acceptance. Vendor shall have two (2) business days to accept each written order it receives. Vendor’s acceptance of an order shall be evidenced by a written invoice which shall be transmitted by Vendor or its agent to Partner by electronic mail, facsimile, or postal mail. Upon Vendor’s acceptance of an order, such order and acceptance shall constitute a binding contract between Partner and Vendor, and shall be non-cancelable except as specifically permitted herein. Vendor’s failure to confirm an order within two (2) business days shall be deemed a rejection of the order received from Partner, and such rejection shall confer no rights upon Partner under the terms of this Agreement.
4.4 Payment. Payment for the Software Products, which shall be payable in U.S. dollars by certified check, a company check, wire transfer, or major credit card, shall be due as set forth below. When paying by wire transfer, Partner shall pay all local and intermediary bank fees. Any bank or customs fees, duties, local or import taxes of any kind shall be the sole responsibility of the purchaser. Vendor may, in its sole discretion, grant credit approval, in which case all payments shall be due within thirty (30) days of the date of the invoice. All sums not paid within thirty (30) days of the date of invoice shall accrue interest daily at the lesser of an annual rate of eighteen percent (18%) or the highest rate permissible by law on the unpaid balance until paid in full. Vendor reserves the right to terminate or modify the terms of credit payments when, in its sole discretion, Vendor believes that its payments may be at risk. In cases where Vendor has not granted credit approval, or if payment has been late multiple times, orders will be considered pre-payment. Vendor will be unable to release any pre-payment order until the total amount due has been received by Vendor.
4.5 Fulfillment and Delivery. Vendor will release the information for purchased Product directly to the End User, unless the End User requests Vendor to release the product to the Partner. Vendor shall use commercially reasonable efforts to meet delivery dates requested by Partner; provided however, unless credit approval has been granted to the Partner by Vendor, the Products will not be delivered, until Vendor has received the payment in full for the Products ordered by the Partner. In no event shall Vendor be liable for its failure to meet Partner’s requested delivery dates, irrespective of whether payment has been made for the Products.
4.6 Taxes. All prices quoted by Vendor to Partner, unless explicitly specified, do not include any national, state or local sales, use, value added or other taxes, customs duties, or similar tariffs and fees which may be required to be paid or collected upon the delivery of the Product or upon collection of the prices for the Product. Should any tax or levy be made, Partner agrees to pay such tax or levy and indemnify Vendor against any claim for such amount. Partner represents and warrants to Vendor that all Software Products acquired hereunder is for redistribution in the ordinary course of Partner’s business, and Partner agrees to provide Vendor 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.
5. Terms and Termination
5.1 Commencement of Term. This Agreement commences on the date specified as the “Effective Date” in the signature section of this this Agreement and will continue in full force and effect until terminated in accordance with the provisions set forth herein.
5.2 Termination by Vendor. Vendor may terminate this Agreement without further obligation or liability to Partner if: (i) Partner fails to timely pay any amounts due under this Agreement and fails to make such payments within ten (10) days of notice from Vendor; (ii) Partner commits any material breach of this Agreement and fails to remedy such breach within ten (10) days of notice from Vendor; (iii) Partner becomes the subject of a petition in bankruptcy; is or becomes insolvent; or admits a general inability to pay its debts as they become due; or (iv) Partner produces no sales of Vendor’s products within a period of one (1) year.
5.3 Termination by Partner. Partner may terminate this Agreement for any reason with no less than thirty (30) days of notice to Vendor.
5.4 Rights Upon Termination. Upon termination of this Agreement, Parties retain no further obligations, except for payment by the Partner for all services rendered and Products furnished prior to the date of termination.
6. Discount Schedule
6.1 Partner Commission for Products. Partner shall receive a discount off the price of the Products in accordance with the schedule set forth by the Vendor as specified in Exhibit B: Discount Schedule, section (a). Vendor reserves the right, in its discretion, to change the discount schedule without notice.
7. Restrictions and Distribution Channel Conflicts
7.1 Conflicts with Other Distribution Channels. In the event that two Partners are in contact with the same prospective customer, the first to submit a Purchase Order shall be considered the selling entity. In the event that Partner and Vendor’s direct sales force are in contact with the same prospective customer, the first to register a Purchase Order in Vendor’s order processing system shall be considered the selling entity.
7.2 Internet Promotion. Partner is encouraged to promote Partner’s business and the sale of the Products through Internet promotion and web sites, and Vendor will provide reasonable authorization for links to Vendor’s content for such purpose. However, Partner shall not engage in direct Internet sales of the Products or services related to the Products and shall not post Vendor’s pricing on the Internet or any other mass media forum.
7.3 Partners with Competitive Products. Partners other than Vendor’s – exclusive Partners shall not engage in comparative advertising or promotion for the sale of products which are competitive with the Products by, for example and without limitation, creating comparative pricing, feature, or technical specification displays which utilize information related to Vendor’s Products.
7.4 Not to Exceed Price. Partner agrees not to distribute Products at prices that exceed Vendor’s Price List prices, except for added local taxes.
7.5 Other Partner Agreements. Partner agrees that this Agreement supersedes any other partner agreement for users of Vendor’s products and services.
8. Intellectual Property License
8.1 Limited License. During the term of this Agreement, Partner is hereby granted a nonexclusive, limited license to use the Vendor trademarks, service marks, trade name and URLs (the “Marks”) solely in its distribution, advertising, and promotion of the Products. Such license is expressly limited to uses by Partner necessary or appropriate in connection with the performance of this Agreement. Partner shall not remove or deface any Marks appearing on the Products or on any Documentation provided by Vendor hereunder. Partner shall not attach any additional trademarks, logos, or trade designations to the Products. Upon termination for any reason or expiration of this Agreement, the license set forth herein shall immediately terminate.
8.2 No Transfer of Title. Nothing herein shall grant to Partner any right, title or interest in Vendor’s Marks and Proprietary Materials. At no time during or after the term of this Agreement shall Partner challenge or assist others to challenge Vendor’s Marks or use or attempt to register any trademarks, service marks, trade names or URLs confusingly similar to those of Vendor’s Marks in any jurisdiction or country.
8.3 Approval for Use of Marks. All representations of Vendor’s Marks that Partner intends to use shall be submitted to Vendor for Vendor’s sole and exclusive approval prior to use by Partner, or the Marks used shall be exact copies, or reproductions of the Marks on any medium, of those used by Vendor.
8.4 Term of License. The Intellectual Property license set forth herein will cease immediately upon the expiration or termination of this Agreement. Each Party’s use of the license granted herein, and any goodwill arising therefrom, will inure to the sole benefit of the Party owning the Intellectual Property.
9. Software License
9.1 Limited License. Subject to the terms of this Agreement, Vendor hereby grants to Partner and Partner hereby accepts from Vendor a non-exclusive, non-transferable (except as provided below) limited license to use the Products supplied by Vendor to Partner solely for the following purposes: (a) to test and learn Software Products; and (b) to demonstrate the Software Products to prospective customers.
9.2 Restrictions. Partner may use the Software only in the form originally supplied by Vendor. Partner may not modify, de-compile, disassemble, translate or reverse engineer the Software, in whole or in part, and may not sublicense, rent, lease or otherwise disclose or disseminate the Software Products to any third Party except in accordance with the provisions of this Section. Partner may not copy the Software, in whole or in part, other than for the sole purpose of backup or archive, provided that Partner reproduces all copyright, trademark, confidential or other proprietary notices. Documentation may not be copied or reproduced in any manner.
9.3 Proprietary to Vendor. Partner acknowledges that the Software Products are proprietary to Vendor and that Vendor retains exclusive ownership of the Software Products. The Software Products are protected by copyright and other laws. Partner is receiving no title or other interest in the Software Products except the licenses expressly granted in this Agreement. Partner acknowledges that it is merely selling the Software Products in accordance with the terms of this Agreement.
10. Confidentiality
10.1 General. Partner understands and acknowledges that by execution of this Agreement a confidential relationship is created whereby Partner may have access to certain information and materials (the “Confidential Information”). Partner agrees that it shall not misuse, misappropriate or disclose any such Confidential Information, directly or indirectly, to any third Party or use any such Confidential Information in any way, either during the Term of this Agreement or at any time thereafter. Partner acknowledges and agrees that the sale or unauthorized use or disclosure of any such Confidential Information shall constitute unfair competition and shall cause Vendor to suffer great and irreparable harm. Partner further acknowledges and agrees that, except as otherwise provided in this Agreement, all such Confidential Information is and will remain the sole and exclusive property of Vendor. The terms of this Section shall survive the expiration or termination of this Agreement.
For purposes of this section 10, “Confidential Information” means (a) any information concerning the Software and Documentation, including but not limited to, the object code, flow charts, logic diagrams, algorithms, user manuals and screens discoveries; (b) business information, including but not limited to, End User lists, potential End Users, technical information and Vendor’s marketing and business plans; (c) any information designated as “confidential”, “proprietary”, or “secret” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential, proprietary or secret.
For a period commencing upon the date of this Agreement and lasting until five (5) years following the termination of all customer Agreements, Partner shall use reasonable efforts to prevent the disclosure to any other person, firm or corporation of any information relating to the above-identified subject matter which it receives from Vendor that is marked CONFIDENTIAL or the like, except as provided hereinafter, and shall use the same degree of care to avoid disclosure of such information as Partner employs with respect to its own proprietary and confidential information of like importance.
Any reports or other documents resulting from such exchange of information between Partner and Vendor shall be governed by the same terms and conditions with respect to confidentiality as is the exchange of information between the Parties.
10.2 Exceptions. The obligations of section 10.1 shall not apply to the extent that any Confidential Information (a) becomes generally available to the public through no fault of Partner; or (b) is required to be disclosed under any laws, rules, regulations or governmental orders or orders of a court of competent jurisdiction provided, however, that Partner shall have the burden of proving any of the foregoing exceptions by conclusive relevant evidence.
10.3 Third Party. Partner shall keep and have its agents and employees keep all Confidential Information confidential and shall not copy or disclose the same or authorize its employees or agents to copy or disclose the same, except as specifically authorized by this Agreement, without the prior written consent of Vendor. Upon expiration or termination of this Agreement, Partner shall immediately return to Vendor any Confidential Information in its possession, whether printed or otherwise.
10.4 Title. Vendor retains all rights and title to its Confidential Information, in any form, disclosed to the Partner pursuant to this Agreement.
11. Warranty
11.1 Right to Grant. Vendor warrants that it has and will during the term of this Agreement maintain the right to grant Partner the right to use and resell the Software Products under this Agreement.
11.2 As Is. Vendor provides the Software Products “AS IS.” VENDOR MAKES NO WARRANTY RELATING TO THE SOFTWARE PRODUCTS, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTIBILITY. NO PERSON IS AUTHORIZED TO MAKE ANY WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE SOFTWARE PRODUCTS OTHER THAN AS PROVIDED IN THIS SECTION AND IN THE END USER AGREEMENT. RESELLER SHALL MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF VENDOR.
11.3 Limitation. Vendor shall not be liable under this warranty if its testing and examination discloses that the alleged defect in the Software Product does not exist or was caused by Partner’s or End User’s or any third Party’s misuse, neglect, improper installation or testing, unauthorized attempts to repair or modify, or any other cause beyond the range of the intended use of the Software Products, or by accident, fire lightning, or other hazard.
11.4 Exclusion. VENDOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED WITHIN THE SOFTWARE PRODUCTS WILL MEET END USER REQUIREMENTS OR WILL OPERATE IN ANY COMBINATION WHICH MAY BE SELECTED FOR USE BY RESELLER OR END USER, OR THAT OPERATION OF THE SOFTWARE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN THE SOFTWARE PRODUCTS WILL BE CORRECTED. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NOTWITHSTANDING ANY FAILURE OF THE PURPOSE OF ANY LIMITED REMEDY, VENDOR’S ENTIRE LIABILITY FOR BREACH OF WARRANTY SHALL BE LIMITED TO A REFUND OF THE PURCHASE PRICE FOR SUCH PRODUCT.
12. Indemnity by Partner
Partner agrees to indemnify and hold Vendor harmless from and against any and all claims, liabilities, costs and expenses, including reasonable attorney fees, however stated, relating to or arising from Partner’s performance under this Agreement, changes, additions or modifications made to the Software Products by Partner negligence or other acts or omissions of Partner its officers, agents and employees, and delay, misuse, malfunction or other cause solely within the control of or under the authority of Partner.
13. Limitation of Liability
EXCEPT AS OTHERWISE SET FORTH HEREIN, VENDOR’S ENTIRE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE/LICENSE /DISTRIBUTION OF SOFTWARE PRODUCTS SHALL BE LIMITED TO THE AMOUNT PAID BY RESELLER FOR SOFTWARE PRODUCTS. IN NO EVENT SHALL VENDOR BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, LOSS OF USE, DATA, OR PROFITS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF SOFTWARE PRODUCTS HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
14. General Provisions
14.1 Assignment. Partner may not assign this Agreement without the prior written consent of Vendor. Any attempted assignment in violation of this Agreement shall be void.
14.2 Independent Contractors. The relationship of Vendor and Partner established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed to (1) give either Party the power to direct and control the day to day activities of the other Party, (2) constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (3) allow Partner to create or assume any obligation on behalf of Vendor for any purpose whatsoever. All financial obligations associated with Partner’s business are the sole responsibility of Partner. All sales and other agreements between Partner and its End Users are Partner’s exclusive responsibility and shall have no effect on Partner’s obligations under this Agreement. Partner shall be solely responsible for, and shall indemnify and hold Vendor free and harmless from, all claims, damages or lawsuits (including Vendor’s attorneys’ fees) arising out of the acts of Partner, its employees or its agents.
14.3 Waiver. Any waiver of any right or remedy or limit on liability under this Agreement must be in writing and signed by the Parties to be bound to be effective. No delay or omission in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on any one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
14.4 Severability. If any provision or portion thereof of this Agreement is held to be unenforceable or invalid, the remaining provisions and portions thereof shall nevertheless be given full force and effect, and the Parties agree to negotiate, in good faith, a substitute valid provision which most nearly affects the Parties’ intent in entering into this Agreement.
WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION. FURTHER, IN THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL REMAIN IN EFFECT.
14.5 Force Majeure. Except for the obligation to pay money, either Party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, an act of God.
14.6 Notices. All notices under this Agreement, unless expressly provided for otherwise, are to be delivered by (i) depositing the notice within the U.S. in the mail, using registered mail, return receipt requested, addressed to the address below or to any other address as the Party may designate by providing notice, (ii) facsimile transmission of the notice by using facsimile number provided below or any other facsimile number as the Party may designate by providing notice, (iii) electronic mail to the e-mail address provided below or any other e-mail address as the Party may designate by providing notice, (iv) overnight delivery service addressed to the address below or to any other address as the Party may designate by providing notice, or (v) hand delivery to the Party at the address provided below or such address as the Party may provide by notice. The notice shall be deemed delivered, unless expressly provided for otherwise, (a) if by U.S. registered mail, five (5) days after the notice’s deposit in the U.S. mail, (b) if by facsimile or electronic mail, upon confirmed receipt if sent by electronic mail or facsimile, (c) if by overnight delivery service, on the day of delivery, and (d) if by hand delivery, on the date of hand delivery.
14.7 Governing Law. This Agreement shall be governed by and construed under the substantive laws of the State of New Jersey, without regard to conflict of law’s provisions and the 1980 United Nations Convention on Contracts for the International Sale of Goods.
14.8 Jurisdiction. The Parties agree to the exclusive jurisdiction of and venue in the state and federal courts of New Jersey, U.S.A. for any disputes arising out of this Agreement.
14.9 Process. Partner irrevocably submits and consents, and irrevocably waives any and all objections to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court of the State of New Jersey, including without limitation, service by certified or registered mail, return receipt requested. If Partner is a resident or otherwise operating under or in accordance with the laws of a non-U.S. jurisdiction, Partner hereby specifically consents to service of process by international registered mail, return receipt requested, and, to the extent permitted by New Jersey law, any other means of transmitting a notice as provided for in Section 14.6 of this Agreement. Partner further acknowledges that in any suit, action or proceeding it may commence against Vendor, it must serve Vendor in accordance with the laws of the State of New Jersey and not rely on any means of transmitting notices set forth by Section 14.6 of this Agreement which are not specifically permitted under New Jersey law.
Any controversy or claim arising out of or relating to this Agreement shall be submitted first to voluntary non-binding mediation. A mediator will be selected by voluntary agreement by both Parties in New Jersey, or in the event both Parties cannot agree on a mediator, a mediator will be selected in accordance with the rules of the American Arbitration Association with such mediation to take place in Hackensack, New Jersey.
In the event mediation is not successful and a lawsuit is brought, then the Parties knowingly and willingly each waive their respective rights to a trial by jury of any claim or cause of action based upon or arising out of or related to this agreement or the transactions contemplated hereby, in any action, proceeding or other litigation of any type brought by any of the Parties against the other Party or Parties, whether with respect to contact claims, tort claims, or otherwise. Each Party agrees that such claims or cause of action shall be tried by a court trial without a jury.
Without limiting the foregoing, the Parties further agree that their respective rights to a trial by jury is waived by operation of this section as to any action, counterclaim or their proceeding which seeks, in whole or in part, to challenge the validity or enforceability of this agreement or any provision hereof or thereof. This waiver shall apply to any subsequent amendments, renewals, supplements, or modifications to this agreement.
14.10 Limitation of Actions. No action or claim relating to this Agreement may be instituted by Partner or Vendor more than six (6) months after the event giving rise to such action or claim.
14.11 Notice of Action. Partner hereby expressly agrees to (i) notify Vendor in writing at least thirty (30) days prior to its filing of any complaint in any court, or otherwise commencing any suit, action or proceeding against Vendor, which such thirty (30) days period shall be calculated from Vendor’s receipt of notice as set forth in Section 13.6 of this Agreement; and (ii) to negotiate in good faith with Vendor prior to the commencement of any action to attempt to resolve its dispute with Vendor. The term “disputes” includes, without limitation, any disagreements between the Parties concerning the existence, formation, and interpretation of this Agreement.
14.12 Captions. All Section captions and titles are for reference only and do not form part of this Agreement.
14.13 Counterparts and Copies. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute but one agreement. Copies of this Agreement, including facsimile copies may be used in lieu of the originals for all purposes. If a Party signs this Agreement and then transmits an electronic facsimile of the signature page to any other Party, that Party who receives the transmission may rely upon the electronic facsimile as a signed original of this Agreement.
14.14 Survival. The provisions of Section 1 (Establishment of Relationship), 8 (Trademark License), 9 (Software License), 10 (Confidentiality), 11.3 (Limitation), 11.4 (Exclusion), 12 (Indemnity by Partner), 13 (Limitation of Liability), and 14.7 (Governing Law) shall survive the expiration or termination of this Agreement.
14.15 Entire Agreement. This Agreement, together with the provisions incorporated by reference and all exhibits and schedules attached and referenced to herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof, superseding any prior or contemporaneous oral or written agreements or understandings. Except as set forth in this Agreement, this Agreement may not be modified except by a subsequently dated written amendment or appendix signed by Vendor and Partner.
EXHIBITS TO SOFTWARE RESELLER AGREEMENT
Exhibit A: Products and Services
- Alloy Navigator Enterprise
- Alloy Navigator Express
- Alloy Discovery Enterprise
- AlloyScan
Exhibit B: Discount Schedule
- Perpetual Licensing, New Sales. Discounts are cumulative and provide a maximum discount of 40% which depends on the Partner involvement in the sale. Partner hereby expressly agrees that (i) generating new business that leads to a successful sale results in a 15% discount (ii) handling the entire sales process without the involvement of the Vendor results in a 15% discount (iii) handling only a part of the sales process with the involvement of the Vendor results in a 5% discount (iv) adding value to the sale by overcoming language or time zone restrictions or providing access to a GSA schedule results in a 5% discount (v) Partners only processing paperwork to facilitate billing receive a 2% discount.
- Perpetual Licensing, Renewals. Discounts are cumulative and provide a maximum discount of 25% which depends on the Partner involvement in the sale. Partner hereby expressly agrees that (i) handling the entire sales process without the involvement of the Vendor results in a 15% discount (ii) handling only a part of the sales process with the involvement of the Vendor results in a 5% discount (iii) adding value to the sale by overcoming language or time zone restrictions that would normally prevent Vendor success or providing access to a GSA schedule results in a 5% discount (iv) Partners only processing paperwork to facilitate billing receive a 2% discount.
- Subscription Licensing, New Sales. Discounts are cumulative and provide a maximum discount of 50% which depends on the Partner involvement in the sale. Partner hereby expressly agrees that (i) generating new business that leads to a successful sale results in a 20% discount (ii) handling the entire sales process without the involvement of the Vendor results in a 20% discount (iii) handling only a part of the sales process with the involvement of the Vendor results in a 5% discount (iv) adding value to the sale by overcoming language or time zone restrictions or providing access to a GSA schedule results in a 5% discount (v) Partners only processing paperwork to facilitate billing receive a 2% discount.
- Subscription Licensing, Renewals. Discounts are cumulative and provide a maximum discount of 25% which depends on the Partner involvement in the sale. Partner hereby expressly agrees that (i) handling the entire sales process without the involvement of the Vendor results in a 15% discount (ii) handling only a part of the sales process with the involvement of the Vendor results in a 5% discount (iii) adding value to the sale by overcoming language or time zone restrictions that would normally prevent Vendor success or providing access to a GSA schedule results in a 5% discount (iv) Partners only processing paperwork to facilitate billing receive a 2% discount.
- Professional Services. Discounts are cumulative and provide a maximum discount of 25% which depends on the Partner involvement in the sale. Partner hereby expressly agrees that (i) handling the entire sales process without the involvement of the Vendor results in a 15% discount (ii) handling only a part of the sales process with the involvement of the Vendor results in a 5% discount (iii) adding value to the sale by overcoming language or time zone restrictions that would normally prevent Vendor success or providing access to a GSA schedule results in a 5% discount (iv) Partners only processing paperwork to facilitate billing receive a 2% discount.
Exhibit C: End-User License Agreement
Alloy Software maintains the End-User License Agreement at the following URL:
