EXPERIENCE IN SOFTWARE
SOFTWARE RESELLER AGREEMENT
THIS SOFTWARE RESELLER AGREEMENT (the "Agreement") is made by and between EXPERIENCE IN SOFTWARE, a California Corporation, with offices at 2029 Durant Ave, Berkeley, CA 94704 ("EIS" or "We") and ____________________________________ with offices at ________________________________________ ("RESELLER" or "You") and who is accepted by EIS as further described herein (collectively the "Parties").
RECITALS
WHEREAS EIS has established a Reseller Partner Program (the "Program") enabling organizations to distribute EIS's products to End Users and;
WHEREAS PARTNER wishes to participate in the Program under the terms and conditions of this Agreement;
WHEREAS RESELLER desires to obtain the rights to distribute Products to End Users (as those terms are defined herein) under the terms and conditions of this Agreement; and
WHEREAS EIS desires to have RESELLER distribute Products to End Users under the terms and conditions of this Agreement;
NOW THEREFORE in consideration for the mutual covenants and obligations set forth herein, the Parties hereby agree as follows:
TERMS AND CONDITIONS
1. Definitions.
"End User" means that entity which acquires the Product for its own use from RESELLER and which has no right to sublicense or transfer the Product to any third party.
"Product" means any version of the EIS software in object code form, together with any documentation provided therewith.
2. Establishment of Relationship.
A. EIS grants RESELLER the nonexclusive right, during the term of this Agreement, to procure Products from EIS for redistribution solely to End User customers for their own internal use and for no other use.
B. RESELLER represents that the Products procured from EIS hereunder will be supplied to End Users in the regular course of RESELLER's business, and that the Products will not be supplied to any others. RESELLER agrees that Products intended for purposes other than those specified in this Section shall not be procured under this Agreement without the prior express written consent of EIS. Upon EIS's request, RESELLER shall furnish reasonable evidence of its compliance with this Section.
3. Term And Termination.
A. Initial Term. This Agreement shall become effective upon written or electronic notice of acceptance transmitted by EIS to RESELLER (the "Effective Date") and shall continue for one year from the Effective Date or until earlier terminated as provided herein. This Agreement is not effective until such notice of acceptance is transmitted by EIS.
B. Renewal Terms. Unless terminated as provided herein, this Agreement shall automatically renew for successive one-year terms upon the anniversary date of the Effective Date.
C. Termination. Either Party may terminate this Agreement at any time upon written notice with or without cause. Upon termination or expiration of this Agreement, the licenses set forth in this Agreement shall immediately terminate. Any termination hereunder shall be in addition to any other remedy either Party may have at law or in equity.
4. Obligations of RESELLER.
A. RESELLER will conduct its business in a professional and high quality manner which will favorably reflect upon EIS and the Products and RESELLER shall at all times comply with good business practices and all laws and regulations relevant to this Agreement on the subject matter hereof.
B. RESELLER will maintain an accurate and complete list of all End Users to whom RESELLER distributes Product or provides an evaluation, including the names and addresses of each End User or entity, the date of delivery of the Product and the License Agreement. RESELLER shall permit EIS and/or its licensors or each's appointed agent(s) on reasonable notice to audit such records relevant to this Agreement. Such audit shall not interfere with RESELLER’s business, or the employees required to carry out such business. If such audit reveals an underpayment of more than five percent (5%), then in addition to RESELLER's payments of such underpayment, RESELLER shall bear the cost of such audit.
5. Obligations of EIS.
A. RESELLER's right to distribute the Products is nonexclusive. Nothing in this Agreement shall be construed as limiting in any manner EIS's marketing or distribution activities or it's appointment of other resellers, distributors, licensees or agents in or for the Territory or for any other territory.
B. EIS shall maintain first level technical support for the Products.
6. Orders for Products.
A. Product prices and availability may vary from time to time. EIS will use commercially reasonable efforts to present accurate information, but EIS cannot guarantee the availability or price of any particular product.
B. For each transaction, RESELLER shall submit an electronic or written order to EIS specifying RESELLERS contact data; company name, phone/fax/email numbers, shipping address, product name/numbers and quantities, shipping instructions, requested delivery dates and any other information reasonably requested by EIS in order to fulfill the order. EIS will not ship directly to the End User, unless requested by RESELLER.
C. EIS shall accept or reject each order within five (5) business days of EIS's receipt of such written orders. Acceptance or rejection of orders shall be by first class mail, telex, email or facsimile. Upon acceptance of an order, such order and acceptance shall constitute a contract between RESELLER and EIS and shall be noncancellable except as specifically permitted herein. EIS will make reasonable efforts to meet requested delivery dates.
D. By entering into this Agreement, RESELLER waives any preprinted terms and conditions set forth in its order, and as to any non-preprinted terms and conditions, agrees that they apply only if expressly acknowledged and accepted by EIS by means of EIS initialing such terms on the order itself.
E. Under no circumstances shall EIS be responsible to RESELLER for failure to fill accepted orders, or for its delay in fulfilling accepted orders, when such failure is due to any cause beyond EIS's reasonable control. EIS shall have the sole right of credit approval or credit refusal for RESELLER's credit line, if any, with EIS.
7. Prices and Payment Terms.
A. Subject to applicable discounts as described on EIS's site or Partner Program documents, prices for Products shall be as set forth on the EIS Price List in effect at the time of receipt by EIS of RESELLER's Order (the "Price List"). The Price List and discounts shall be posted on EIS's web site or in Partner Program documents.
B. EIS may change the Price List and discounts with a 30 day notice to RESELLER during the term of this Agreement.
C. Depending on the Partner Program level, sales shall be by major credit card, processed through the EIS web site. In the US, reseller sales can also be by Purchase Order (PO). Our terms are NET 30. Any applicable discounts are conditional on prompt payment. Should RESELLER exceed its stated credit terms or EIS determine that RESELLER's ability to make payment is in doubt, then EIS may seek alternative guarantees of payment
D. The prices stated are exclusive of any taxes, fees, duties, licenses or levies (the "Taxes") now or hereinafter imposed upon the production, storage, sale, transportation or use of the Products described herein. Any Taxes related to this Agreement shall be paid by RESELLER (other than a tax measured by EIS's net income) or in lieu thereof, RESELLER shall provide an exemption certificate acceptable to the taxing authorities. All Taxes shall be billed as a separate item on the invoice.
E. In addition to any other sums payable hereunder, RESELLER shall pay all charges, including without limitation charges for transportation, shipping and insurance.
8. Trademarks, Service Marks, Branding and Trade name License.
A. During the term of this Agreement, RESELLER is hereby granted a license to use the trademarks, service marks and trade names (the "Marks") used by EIS in connection with the Products. Such license is expressly limited to uses by RESELLER necessary or appropriate in connection with the performance of this Agreement. RESELLER shall not remove or deface any Marks appearing on the Products or on any documentation provided by EIS hereunder. Upon termination for any reason or expiration of this Agreement, the license set forth in this Section shall immediately terminate.
B. Nothing herein shall grant to RESELLER any right, title or interest in EIS's Marks. At no time during or after the term of this Agreement shall RESELLER challenge or assist others to challenge EIS's Marks or use or attempt to register any trademarks, service marks or trade names confusingly similar to those of EIS's Marks in any jurisdiction or country.
C. All representations of EIS's Marks and EIS's visual branding (including packaging, CD label, sell sheets) that RESELLER intends to use shall be first submitted to EIS for approval of design, color and other details or shall be exact copies of those used by EIS.
9. Software License.
A. Subject to the terms of this Agreement, EIS hereby grants to RESELLER and RESELLER hereby accepts from EIS a non-exclusive, non-transferable (except as provided below) license to use the Products supplied by EIS to RESELLER solely for the following purposes: (a) to test and demonstrate the Products; and (b) to distribute the Products only to RESELLER's End User customers and subject to the restrictions set forth in this Agreement.
B. RESELLER may use the Products only in the form originally supplied by EIS. RESELLER may not modify, decompile, disassemble, translate or reverse engineer the Products, in whole or in part, and may not sublicense, rent, lease or otherwise disclose or disseminate the Products to any third party except in accordance with the provisions of this Section. RESELLER may not copy the Products, in whole or in part, other than for the sole purpose of backup or archive, provided that RESELLER reproduces all copyright, trademark, confidential or other proprietary notices. Documentation may not be copied.
C. RESELLER acknowledges that EIS considers the Products to be protected by copyright and other rights and that RESELLER is receiving no title or other interest in the Products except the licenses expressly granted in this Agreement. Ownership of all Products supplied by EIS, including all copyright and other rights, is retained by EIS and EIS's licensors.
D. RESELLER shall provide End User customers with EIS's End-User software license agreement.
10. Confidentiality.
A. RESELLER understands and acknowledges that by execution of this Agreement a confidential relationship is created whereby RESELLER may have access to certain information and materials concerning EIS's business, plans, customers, technology and products that are confidential and of substantial value to EIS, the value of such would be impaired if such information were improperly used or disclosed to third parties. RESELLER therefore agrees that it will not disclose to any third party, or use in any way for its own account or the account of any third party, any such confidential information revealed to it by EIS other than to fulfill its express obligations under this Agreement.
B. All End User customer lists, potential customer lists, marketing and financial information, business plans and technical information whether written or verbal of either Party, relating to the Products, and the Product and all code, inventions, algorithms, know how and ideas relating thereto shall be deemed confidential information of EIS.
C. RESELLER shall keep and have its agents and employees keep all confidential information of EIS 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 EIS. Upon expiration or termination of this Agreement, RESELLER shall return to EIS all copies of all confidential information, whether printed or otherwise.
D. EIS retains all rights and title to its confidential information, in any form, disclosed to the RESELLER pursuant to this Agreement. RESELLER acknowledges that such confidential information is of substantial value to EIS and that any disclosure or misuse of such confidential information is likely to cause irreparable harm.
11. Warranty.
A. EIS warrants that it has and will during the term of this Agreement maintain the right to grant RESELLER the right to use and distribute the Products under this Agreement.
B. EIS warrants that for a term of ninety (90) days from the date of delivery to End Users the Products will perform substantially in accordance with the Documentation provided. If the End User asserts a defect in the Products during the above defined warranty period, RESELLER shall be entitled as its sole remedy, at EIS's sole option and expense, to have the defective Product replaced by EIS with software that substantially conforms to the Documentation. If the replacement does not rectify the defect, or if the replacement is unduly delayed, RESELLER shall be entitled to a refund or reduction of the price paid.
C. EIS shall not be liable under this warranty if its testing and examination discloses that the alleged defect in the Product does not exist or was caused by RESELLER'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 Products, or by accident, fire lightning, or other hazard.
D. EIS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED WITHIN THE 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 PRODOUCTS WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN THE 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, EIS'S ENTIRE LIABILITY FOR BREACH OF WARRANTY SHALL BE LIMITED TO A REFUND OF THE PURCHASE PRICE FOR SUCH PRODUCT.
12. Indemnity By RESELLER. RESELLER agrees to indemnify and hold EIS harmless from and against any and all claims, liabilities, costs and expenses, however stated, relating to or arising from RESELLER's performance under this Agreement, changes, additions or modifications made to the Products by RESELLER negligence or other acts or omissions of RESELLER its officers, agents and employees, and delay, misuse, malfunction or other cause solely within the control of or under the authority of RESELLER.
13. Limitation of Liability. EXCEPT AS OTHERWISE SET FORTH HEREIN, EITHER PARTY's ENTIRE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR SALE/LICENSE/ DISTRIBUTION OF PRODUCTS SHALL BE LIMITED TO THE AMOUNT PAID BY RESELLER FOR SUCH PRODUCTS. IN NO EVENT SHALL EIS OR RESELLER 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 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 EIS OR RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF EITHER PARTY ARISING OUT OF THIS AGREEMENT AND/OR SALE/LICENSE/DISTRIBUTION OF PRODUCTS.
14. General Provisions.
A. Assignment. Except as stated in this Section, neither Party may assign this Agreement without the prior written consent of the other Party. Any attempted assignment in violation of this Article shall be void. Notwithstanding the foregoing, either Party may assign this Agreement to any entity which may acquire all or substantially all of its assets or business. This Agreement shall be binding on an inure to the benefit of any such successor assignee.
B. Independent Contractors. The relationship of EIS and RESELLER established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the day to day activities of the other Party, (ii) constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow RESELLER to create or assume any obligation on behalf of EIS for any purpose whatsoever. All financial obligations associated with RESELLER's business are the sole responsibility of RESELLER. All sales and other agreements between RESELLER and its End Users are RESELLER'S exclusive responsibility and shall have no effect on RESELLER's obligations under this Agreement. RESELLER shall be solely responsible for, and shall indemnify and hold EIS free and harmless from, all claims, damages or lawsuits (including EIS's attorneys' fees) arising out of the acts of RESELLER, its employees or it agents.
C. Waiver. Any waiver of any right or remedy or limit on liability under this Agreement must be in writing and signed by the Party 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.
D. 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 effects 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.
E. 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.
F. Notices. All notices and requests required or authorized hereunder, shall be given in writing either by personal delivery to the Party to whom notice is given, or by registered or certified mail, return receipt requested, or by electronic mail, telex or facsimile to the address set forth at the beginning of this Agreement. The date upon which any such notice is so personally delivered, or if the notice is given by registered or certified mail, the date three (3) days after it is deposited in the mail, or if the notice is given by electronic mail, telex or facsimile, the date the electronic mail, telex or facsimile is sent, shall be deemed to be the date of such notice, irrespective of the date appearing therein.
G. Governing Law. This Agreement shall be governed exclusively by and construed according to the laws of the State of California, except its law regarding choice of law, as applied to contracts between California residents entered into and to be performed entirely within California. RESELLER for itself and its property, hereby submits to the jurisdiction and venue of the courts of the State of California located in the county of Alameda and the United States courts for the Northern District of California in relation to any claim or dispute that may arise with respect to this Agreement and any judgment that may be rendered in connection with any such claim or dispute. Service of process upon RESELLER shall be valid if served by certified mail, return receipt requested and to the most current address provided by RESELLER.
H. Captions. All Section captions and titles are for reference only and do not form part of this Agreement.
I. Survival. The Provisions of Paragraphs 2.B [re: certification as to Establishment of Relationship], 8 [Trademark License], 9 [Software License], 10 [Confidentiality], 11.C [Warranty], 11.D [Exclusions], 12 [Indemnity by RESELLER], 13 [Limitation of Liability], and 14.G [Governing Law] shall survive the expiration or termination of this Agreement.
J. Entire Agreement; Modification.
This Agreement, together with the provisions incorporated by reference, 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. EIS may modify any of the terms and conditions contained in this Agreement, at any time and in its sole discretion, by posting a change notice or a new agreement on its web site. Modifications may include, for example, changes to the Price List Exhibits, payment procedures, and other rules and/or procedures. IF ANY MODIFICATION IS UNACCEPTABLE TO RESELLER, RESELLER's ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. RESELLER's CONTINUED PARTICIPATION IN THE EIS RESELLER PARTNER PROGRAM FOLLOWING EIS's POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON ITS SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE EFFECTIVE AS OF THE DATE OF POSTING ON THE WEBSITE.
Signed this ____ day of _____________, _______ by:
_____________________________Title
Reseller
_____________________________
Roy A. Nierenberg
President
Experience In Software, Inc.
Please fax to Experience In Software 1 510 644 3823