FRONTSTEPS Dealer Program Terms and Conditions
1. Appointment, Scope and Territory.
(a) Appointment. Subject to the terms and conditions of this Agreement, Company hereby appoints Partner and Partner hereby accepts appointment, during the Term, as a non-exclusive Partner of Products for sale directly to retail end-users of Products (each, a “Customer”) of the products listed on Exhibit A (“Products”) for purposes of marketing, displaying, promoting, advertising, selling, and delivering such Products in the geographic areas contained on Exhibit B [“Territory”]. Company reserves the right to sell and promote, and to appoint other Partners to sell and promote, directly or indirectly, and in any geographic area, Products and other products of Company at Company’s sole discretion. Partner shall not (i) appoint any sub-distributors, sales agents, or other persons or entities to promote, demonstrate, distribute, or sell Products (ii) sell Products to other Partners, wholesalers, distributors or resellers, or (iii) delegate to any person or entity any of Partner’s rights or obligations under this Agreement, unless agreed to in writing by Company.
(b) Solicitation and Sales Outside of Territory. Company is appointing Partner solely with respect to the sale of Products in the Territory
(c) Partner’s Operations and Expenses/Independent Contractor. The detailed operations and related expenses of Partner under this Agreement are subject to the sole control and management of Partner. Nothing herein shall be construed to create a joint venture or partnership between the parties or an employee/employer relationship and neither party shall have any express or implied right or authority to assume or create any obligations on behalf of, or in the name of, the other party or to bind the other party to any contract, agreement or undertaking with any third party.
(d) No Franchise. The relationship between Company and Partner does not, and is not intended to, constitute or create a franchise. Company is not a franchisor and Partner is not a franchisee. Partner acknowledges that it has not paid a franchise fee of any kind to Company to enter into this Agreement. The parties acknowledge that (i) there is no community of interest between Partner and Company and (ii) Partner’s business is not substantially associated with the Licensed Items (as defined in he Agreement under the section referencing the use of Company Marks).
(e) Internet Sales. Partner is hereby granted the right to sell the Products via the internet, but only to Customers located within the Territory where such end-use Customer is buying such Products as part of an overall system install sale, not as standalone product purchases, and subject to such additional terms and conditions that Company may from time to time establish. This internet sales authorization may be revoked by Company at any time for any reason upon written notice to Partner.
2. Terms and Conditions of Sale.
(i) Orders for Products. Partner shall order Products from Company by submitting a written purchase order identifying the type and quantity of Products it wishes to purchase, the requested delivery date(s), any export information required to enable Company to fill the order, and such other information as Company may from time to time request. Company may ship and invoice for a quantity less than the quantity specified in Partner’s purchase order and Partner must accept and pay for such lesser quantity. All orders for Products are subject to acceptance by Company. Company shall have no liability to Partner with respect to purchase orders that are not accepted; provided, however, that Company shall not unreasonably reject any purchase order for Products that do not require any modifications or additions in order to meet the specifications of Partner or its customers.
(b) Standard Forms. In connection with the purchase by Partner of Products, Company and Partner may employ their respective forms of purchase order, order acknowledgement, invoice, and other standard documents (collectively, “Standard Forms”). Use of Standard Forms is for convenience only and no term or condition set forth in any Standard Form will operate to modify, delete, or supersede any term or condition of this Agreement. Company’s sale of Products to Partner is hereby expressly made conditional on the terms and conditions of this Agreement to the exclusion of all other terms and conditions.
(c) Forecasts. Partner acknowledges that Company needs forecasts from Partner to effectively manage its ability to supply Product under the Agreement. Partner shall provide to Company an updated rolling 12-month forecast at the end of each calendar quarter during the Term (each, a “Forecast”). Each Forecast shall include expected quantities, order dates, requested shipping dates, and any other particular requirements Partner anticipates. In the event of material changes to a submitted Forecast, Partner shall promptly provide Company with an interim, updated Forecast. A material change shall be defined as any change that is +/-10% of the quantities indicted in the immediately preceding Forecast. Forecasts are for planning purposes only, and Partner is not required to purchase Products projected to be ordered as set forth in the applicable Forecast, but Partner agrees to act in good faith in generating and submitting Forecasts.
(d) Product Pricing.
(i) Invoicing and Product Pricing. Pricing for each Product supplied by Company under this Agreement will be as set forth in Exhibit A (Product Pricing”) which is attached to this Agreement.
(ii) Changes to Product Pricing. Company reserves the right to change the prices of Products at any time upon  days prior notice. Except as set forth below, no change to the Product Pricing shall affect (1) purchase orders submitted by Partner and accepted by Company prior to the date such change becomes effective, or (2) outstanding invoices.
(e) Payment Terms. Partner shall pay the amounts specified on the applicable invoice, within thirty  days from the date of such invoice. Partner shall not make any deduction or offset of any kind from any payments due to Company.
(f) Responsibility for Taxes and Duties. All taxes related to any sales transaction are the responsibility of Partner, and, if paid or required to be paid by Company, the amount thereof shall be added to and become a part of the amounts payable by Partner. It is Partner’s obligation to provide a valid copy of any reseller certificate.
(g) Pricing for Customers. Partner shall be free to establish its own pricing for Products sold by Partner to Customers in the Territory.
(h) Shipping Terms; Title. Terms of shipment and passage of Title of Products are set forth on Exhibit C.
(i) Non-Conforming Shipments. All claims for non-conforming shipments must follow the RPA and RMA procedures attached on Exhibit D
(j) Returns. Returns of Products are subject to Company’s standard RPA and RMA polices which are attached on Exhibit D
3. Partner Financial Status.
(a) Creditworthiness. Partner represents and warrants to Company, on a continuing basis, that Partner can pay all bills when due. Partner shall, at Company’s request from time to time, furnish any financial statements or additional information as may be requested by Company in order to enable Company to determine Partner’s financial condition and creditworthiness. Additionally, Partner authorizes Company to request and obtain financial information from credit reporting agencies, Partner’s banks and suppliers, and other similar sources.
(b) Past Due Accounts. If Partner becomes delinquent in payment obligations, or fails to meet other credit or financial requirements established by Company, or, if in the sole judgment of Company, Partner’s credit becomes impaired, Company may exercise any or all of the following rights and remedies, in addition to any other rights or remedies provided in this Agreement or by Applicable Law:
(c) All amounts due and owing to Company but not paid by Partner on the due date will bear interest in U.S. dollars at the lower of 18% per annum or the maximum lawful interest rate permitted under Applicable Law, which interest will accrue on the balance of outstanding unpaid amounts from the date on which such amounts become due and owing until payment thereof in full.
(d) Company may, in its sole discretion, defer or suspend shipping Products to Partner if Partner exceeds its credit limit or Partner’s account is past due.
(e) Company may refuse to accept any new orders from Partner, may cancel or delay shipment of any orders accepted previously, and may stop any shipments in transit;
(f) Company may refuse to extend further credit to Partner and may require advance payment for new orders;
(g) Company may declare all outstanding amounts due and payable, notwithstanding any credit terms previously in effect;
4. Legal and Regulatory Compliance.
(a) Special Termination Right. If Company determines in its sole discretion that Partner has breached any obligation, representation, and/or warranty under this Section below related to Legal and Regulatory Compliance, it shall have the right to terminate this Agreement immediately and shall have no further obligation to make any payments to or on behalf of Partner in connection with the subject matter of this Agreement
(b) General Obligation to Comply with Applicable Law. Partner shall, at its sole cost and expense, comply with all applicable laws, rules, regulations, decrees, and other requirements (as each of the foregoing may be amended or modified from time to time) (collectively, “Applicable Law”) relating to or affecting this Agreement.
(c) Anti-Bribery Laws. Without limiting the generality of this section relating to Legal and Regulatory Compliance, Partner shall, at its sole cost and expense, comply with the U.S. Foreign Corrupt Practices Act (the “FCPA”), the U.K. Bribery Act, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and all anti-bribery and anti-corruption legislation in the Territory. In connection with this Agreement, and as required under the FCPA, Partner shall not, directly or indirectly, give, offer, promote, authorize or allow to be given, offered or promised, money, gifts or anything of value to a Government Official (as defined below), or to any other person(s) or party(ies), while knowing or having reason to know that such thing of value is to be given, offered or promised to a Government Official, in order to (i) improperly influence any official act or decision of such Government Official, or (ii) improperly induce such Government Official to use his influence to affect or influence any act or decision of any government entity (including the government(s) of the Territory, any department, agency or instrumentality thereof, or any entity owned or controlled by the government(s) of the Territory), for the purpose of assisting Company in obtaining or retaining business, in directing business to any person, or in securing any improper advantage. The term “Government Official” includes (1) any officer, employee, agent or representative of a national, state, regional or local governmental body, department, agency or any instrumentality thereof (including the government(s) of the Territory or any subdivision or branch thereof); (2) any person acting in an official capacity or performing public duties or functions on behalf of such governmental body, department, agency or instrumentality; (3) any officer, employee, agent or representative of a business or corporate entity owned or controlled by any such governmental body; (4) any political party or political party official; (5) any candidate for public office; and (6) any officer, employee or representative of a public international organization (such as the World Bank, International Monetary Fund, or United Nations). If Partner is a natural person, Partner hereby represents that he is not a Government Official and agrees that he will not become a Government Official or employ any Government Official during the Term. Partner further represents that no Government Official will derive any benefit, directly or indirectly, from any compensation paid to Partner in connection with this Agreement. Partner shall notify Company immediately of any solicitation, demand or other request for a bribe, gift or anything of value, made by or on behalf of a Government Official, relating to any activities performed by Partner pursuant to this Agreement.
(d) U.S. Export Laws and Regulations. Partner acknowledges that each Product (together with any software, technology, documents, and other material that may be embedded therein or provided therewith, the “Items”), may be subject to export controls of the United States government and of governments in the Territory. Such export controls may include those of the Export Administration Regulations of the United States Department of Commerce (the “EAR”), which may restrict the export of Items from the United States and their re-export from other countries. Partner shall comply with the EAR and all other Applicable Law relating to the export, re-export, transshipment, and diversion of any Item, and without limiting the foregoing, shall not, without first obtaining permission to do so from the appropriate government agencies and from Company, (i) export, re-export, transship, or divert any Item into any of those countries listed from time to time in the EAR as countries subject to embargo or to any persons who are specially designated nationals of such countries or (ii) export, re-export, transship, divert, transfer, distribute, or sell any Item to a person or entity if Partner knows or should know that such person or entity intends to export, re-export, transship, divert, transfer, distribute, or sell the Item to any such embargoed country or a national thereof or intends to use or allow others to use the Item for prohibited activities. Partner shall cooperate fully with Company in any official or unofficial audit or inspection related to the export control laws or regulations of the U.S. government. Partner further acknowledges that other countries from which Company or its Affiliates may ship Products to Partner may have export controls similar or dissimilar to those described in this Section and that Partner is likewise required to comply with such other export controls.
(i) Import/Export. Company shall, at its sole cost and expense, obtain all required licenses, permits, authorizations, consents, and approvals necessary for Company to export Products. Partner shall, at its sole cost and expense, obtain all required licenses, permits, authorizations, consents, and approvals necessary for Partner to import Products into the Territory. Each party shall provide to the other party such assistance as the other party may reasonably request in connection with obtaining the licenses, permits, authorizations, consents, and approvals described in this paragraph (including through the timely provision of appropriate documentation or information).
(ii) Distribution and Sale of Products in the Territory. Unless otherwise agreed by Company, Partner shall, at its sole cost and expense, obtain such product registrations, re-registrations, licenses, permits, authorizations, consents, and approvals as may be necessary for Partner to distribute and sell Products in the Territory. All such product registrations, re-registrations, licenses, permits, authorizations, consents, and approvals shall be in the name of, and shall inure to the benefit of, Company (unless Applicable Law in the Territory requires otherwise). Each party shall provide such assistance as the other party may reasonably request in connection with obtaining such product registrations, licenses, permits, authorizations, consents, and approvals.
(f) Required Disclosure. Notwithstanding the Confidentiality provisions of this Agreement, Company shall have the right to disclose the existence and terms of this Agreement to appropriate governmental authorities, both in the United States and in the Territory, if in the Company’s sole discretion it considers that such disclosure is legally mandated or otherwise appropriate.
5. Other Obligations of Partner.
(a) Installation of Certain Products. Partner acknowledges that certain Products provided under this Agreement are intended to be installed by properly trained personnel. In such cases, Partner shall (i) insure proper installation of all such Products at the Customers’ locations and (ii) provide training to the Customers on the proper use of such Products, and in each case in accordance with such training and documentation as Company may from time to time provide to Partner. Partner warrants that it will provide adequate safety, installation and general product training to all personnel dealing with Company’s products, including updated training on current warnings, technical bulletins, procedures and practices involving Company Products. In furtherance of the intent of this section, Partner shall designate in writing upon execution of the Agreement one or more individuals for purposes of training, updates and other notices pertaining to the subject matter of this section
(b) Sales Related Activities. Partner acknowledges that the quality and timeliness of their sales activities is a critical element of the relationship with the Company. To assure these goals are achieved Partner warrants that it will use commercially reasonable efforts, in conjunction with assistance from the Company as appropriate, to assure that all sales personnel are adequately trained in the nature, uses and performance aspects of the Company’s Products. In furtherance of the intent of this section, Partner shall designate in writing upon execution of the Agreement one or more individuals for purposes of training, updates and other notices pertaining to the subject matter of this section.
(c) Promotion Obligations. Partner shall use commercially reasonable efforts to promote and sell Company’s products in their assigned Territory. Partner shall be deemed to be in compliance with this requirement if they meet the Minimum Annual Purchase Requirements contained in Exhibit E.
(d) Warranty Service.
(i) Obligation to Provide Warranty Service. Partner shall not provide representations or warranties on behalf of, or purportedly binding on, Company or any of its Affiliates to any Customer regarding the performance, quality, functional capabilities or characteristics of Products.
(e) Incident Reports.
(i) Reporting Obligations. Partner shall report to Company within five business days all comments received in any form from a Customer, governmental entity or standards body related to the documentation, identity, quality, durability, reliability, safety, effectiveness, or performance of any Product or relating to adverse events, injuries, malfunctions or failures to meet applicable industry standards of, or involving, any Products.
(ii) Investigations. Partner shall assist Company, as necessary, in investigating any incidents, complaints, reports, notices, or comments listed in the Reporting Obligations section above. Partner shall not file any incident or near incident reports with any government authority and shall not initiate the recall of any Products for any reason without prior consultation with Company unless required by Applicable Law. Costs related to providing any documentation under this section shall be fairly allocated between the Parties.
(iii) Record Keeping. Partner shall use best efforts to maintain true and complete records (1) of all Products (including by serial number, name and model number, lot number, or other identifying text, numbers, and markings) that are delivered to each Customer in the Territory (including for purposes of facilitating prompt Product tracking, correction, and recall) and (2) of all incidents, near incidents, complaints, reports, notices, and comments described herein. Upon request from Company, Partner shall provide Company with copies of all records maintained under this Section
(iv) Product Safety. Partner shall procure and ensure that (1) all persons likely to use or come into contact with Products receive appropriate training and copies of applicable instructions and documentation supplied by Company, (2) all third parties who use or may be affected by or rely upon Products are given full and clear warning of any hazards associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with, and (3) any warning notices displayed on Products are not removed or obscured.
(v) Recalls. In the event of the occurrence of a recall, or field corrective action, of, or for, any Product, Partner shall fully cooperate (at Partner’s expense) with Company in implementing and completing such recall or field corrective action and all costs related to managing recall issues shall be fairly allocated between the Parties.
6. Company’s Obligations.
(a) Product Samples. Company may provide Partner with such marketing assistance and Product samples as Company considers appropriate to assist with the promotion of Products.
(b) Support. Company shall provide Partner support as Company deems necessary or desirable though advertising, product literature, local training, promotional programs, technical information and operating instructions for Partner to sell, install, repair, and maintain Products. Company will also assist Partner in evaluating the market potential for Products within the Territory and use commercially reasonable efforts to maintain the high quality and reputation of Products.
(c) Warranty Support. Company may designate maintenance and support personnel to assist Partner’s support personnel in providing maintenance and support services as Company considers appropriate.
(d) Post-Warranty Support. Company may provide, at its option, post-warranty support, field services, technical support, and other services at fees and upon terms and conditions as may be agreed upon by the parties from time to time.
(e) Number of Authorized Partners. Company will manage the number of authorized Partners in any given Territory solely at its discretion through the use of various tools including, but not limited to, the Metropolitan Statistical Areas [MSA] measurement and the Buying Power Index [BPI] measurement to assure that any given Territory contains a number of authorized Partners that are commensurate with the population and buying power of that given Territory.
7. Modification of Products.
(a) Removal of Products. Company may, upon reasonable notice to Partner, remove Products in its sole discretion from Exhibit A as attached to this Agreement.
(b) Addition of Products. The parties may, from time to time, agree to add products to Exhibit A. Any such addition shall be agreed in writing by both Parties and memorialized in the Agreement by amending Exhibit A.
(c) Modifications to Products by Company. Company has the right, at any time, and without notice, to make modifications to any Products that do not materially affect form, fit, or function of such Products or which are required by Applicable Law or which are necessary to comply with applicable standards or safety criteria. If a modification would have such a material effect, Company shall use reasonable efforts to give Partner reasonable notice of such modification.
(d) No Modifications by Partner. Partner may not customize, modify, or have customized or modified, any Product (or Product label, instruction, or documentation) unless it obtains the prior consent of Company, which consent may be withheld at the sole discretion of Company. Any unauthorized customization or modification of any Product (or Product label, instruction, or documentation) by Partner or any third party shall to the extent allowable by law, relieve Company from any obligation to Partner or other third party it would otherwise have with respect to such Product.
8. Records and Audits.
(a) During the Term and for a period of four years thereafter (or such longer period as required under Applicable Law), Partner shall maintain documentation and records sufficient to demonstrate its compliance with the requirements of this Agreement (including Partner’s compliance with all Applicable Law). Upon reasonable notice from Company, Partner shall provide Company, or its agents, with access to Partner’s premises during normal business hours to examine or copy all records requested by Company or otherwise relevant to determine whether Partner is in compliance with the requirements of this Agreement (including Partner’s compliance with Applicable Law); provided, that Company shall require treatment of (and shall require its agents to treat) such documentation and records as Confidential Information under this Agreement.
9. Use of Company’s Marks and Content.
(a) License Grant. Subject to the terms and conditions of this Agreement, Company hereby grants to Partner a non-exclusive, non-transferable, license to use such trademarks, trade names, service marks, logos, and other marks of Company relating to Products and such graphics, designs, descriptions, and other works of authorship, in each case as Company may, from time to time, specify (collectively, the “Licensed Items”) solely in connection with the promotion and sale of Products in the Territory. Partner may identify itself as an authorized Partner of Products in connection with all activities related thereto and but may not use any other trademark, trade name or logo to identify Company Products. Partner shall not attach any additional trademarks, trade names or logos to Products except Partner may identify itself as a reseller of the product. Partner shall use the Licensed Items in accordance with the terms and conditions of this Agreement and using good trademark and copyright practices, including protecting the value of the goodwill associated with the Licensed Items. Each initial use of the Licensed Items by Partner shall be subject to Company’s prior written approval. Partner shall not modify or create any derivative works of any Licensed Item.
(b) Quality Control. Partner acknowledges that the nature and quality of all advertising, promotional, and other items relating to Products that use any of the Licensed Items must conform to standards set by, and be under the control of the Company. Partner shall comply with any guidelines regarding the use of the Licensed Items that Company may, from time to time, provide to Partner in writing. Partner shall not use, or permit to be used, the Licensed Items in connection with any goods or services that are defamatory, offensive, or obscene or that may otherwise harm the goodwill or commercial reputation of Company or in any manner that would bring the Licensed Items into disrepute or that would jeopardize or invalidate their registrations, applications, or goodwill. Partner shall use appropriate trademark, copyright, or other symbols wherever appropriate and as directed by Company.
(c) Ownership; Goodwill. Partner acknowledges that Company owns all right, title and interest in, and to, all Licensed Items and any of Company’s other names, logos, trademarks, trade dress, service marks, designs, marks, domain names, patents, copyrights or copyrighted material, or other intellectual or proprietary property relating to Products and all systems, parts, components, Software, and other items that may be included in, or with, Products (the “Company Intellectual Property”), worldwide and the goodwill associated with the same. Partner hereby assigns to Company all rights it may acquire by operation of law or otherwise in the Company Intellectual Property, including all applications or registrations therefor, along with the goodwill associated therewith. Except as provided in the license agreement entered into pursuant to this Agreement , and Section 9(a), nothing in this Agreement shall be construed to grant to Partner any right, title, interest, or license in or to the Company Intellectual Property.
(d) Enforcement. Partner shall promptly notify Company of any known, threatened, or suspected infringement, imitation, or unauthorized use of the Company Intellectual Property by any third party. Partner shall use best efforts to cooperate with Company’s efforts in connection with enforcing its rights in the Company Intellectual Property, at Company’s expense, including making personnel available to testify and providing relevant documentation and information.
10. Terms and Termination.
(a) Term. The term of this Agreement commences on the Effective Date and continues a minimum period of One Year 12-months (the “Initial Term”).
(b) The Partner under this agreement understands on the start of NEW End-User billing cycle or NEW MRR agreement they will pay the Company for the agreed 12-months contract billing.
(c) After the Initial Term. The term of this Agreement shall be automatically renewed for additional one-year terms unless, at least 90 days prior to the expiration of the Initial Term or the renewal term either party gives the other party written notice of its election not to renew this Agreement. The Initial Term and all renewal terms are collectively, the “Term.”
(d) Termination. This Agreement may be terminated by notice to the non-terminating party any time after the 12-month contract and is paid in full.
(i) Immediately, by either party, if a court of competent jurisdiction or governmental authority, regulatory or administrative agency, or commission, shall have enacted any law, statute, rule, or regulation, or issued any final and non-appealable order or decree that permanently restrains, enjoins, or otherwise prohibits either party from performing or substantially performing under this Agreement;
(ii) Except as limited by law, by either party upon any voluntary or involuntary bankruptcy or insolvency of the other party, or if any action or proceeding is instituted against the other party relating to any of the foregoing and such action or other proceeding is not dismissed within 60 days after institution thereof;
(iii) By either party if the other party has breached or failed to comply with any material term or condition required to be performed or complied with by such other party, and such breach or failure is not cured within 30 days after notice thereof by the terminating party;
(iv) By Company if Partner breaches any obligations, representations or warranties under the Agreement
(v) By either party under the Force Majeure provisions of the Agreement in Section 16(i); or
(vi) By either party for any reason or no reason upon 90 days’ prior notice.
(e) Rights of Parties Upon Termination or Expiration. The following provisions shall apply upon the termination or expiration of this Agreement:
(i) No New Solicitations or Sales. Upon Termination Partner shall cease all solicitations for orders and new business related to Company Products.
(ii) Confidential Information. Partner shall cease all use of and destroy or, at the request of Company, return all Confidential Information previously furnished by Company then in Partner’s possession or control.
(iii) Registrations. Partner shall, in consultation and coordination with Company, promptly take such action as is necessary to (1) terminate Partner’s registration as an authorized Partner of Products in the Territory with any governmental authority, if any such registration was required, and (2) transfer to Company (or to a party designated by Company) product registrations, licenses, and other import, and sales related rights and documents.
(iv) Amounts Owed to Company. If Termination is for cause, all indebtedness of Partner to Company shall become immediately due and payable without any further notice or demand, which notice or demand is hereby expressly waived by Partner, and Company shall be entitled to reimbursement for any reasonable attorneys’ fees and court costs that it may incur in collecting or enforcing payment of such obligations.
(v) Licenses; No Further Authority. Upon Termination any licenses granted to Partner under the Agreement will be deemed terminated and any authority that Partner was granted under this Agreement, or otherwise to represent itself to the public as an authorized Partner, Partner, sales agent, or other representative of Company or any of its Affiliates will be deemed revoked. Partner shall remove from its property and immediately discontinue all use, directly or indirectly, of the Licensed Items. Partner shall, upon request, certify in writing to Company that Partner has completely terminated its use of any and all such Licensed Items which appeared in or upon any item or materials used in conjunction with Partner’s business. After the termination or expiration of this Agreement, Partner shall not represent itself as, or hold itself out to the public as, an authorized servicer of any Products, or any of Company’s or its Affiliates other products.
(f) Acknowledgement. Each party acknowledges that the terms and conditions of this Agreement will remain in full force and effect between (i) the date either party provides notice of its intent not to renew this Agreement under Section 10(a) or notice of any termination under Section 10(c) and (ii) the effective date of such expiration or termination.
(g) Survival of Terms. The following sections of the Agreement shall survive Termination or expiration of the Agreement;
(i) All outstanding payment obligations owing from Partner to Company
(ii) Indemnification obligations of the parties.
(iii) Confidentially provisions in accordance with the terms prescribed in the Agreement.
(iv) All other provisions, which by their nature should survive a Termination event or expiration.
11. Representations and Warranties.
(a) By Both Parties. Each party represents and warrants to the other party that (i) it has the requisite right, power, and authority to enter into and perform under this Agreement, (ii) the execution, delivery, and performance of this Agreement by it will not result in the breach of, constitute a default under, or interfere with its organizational and governing instruments and agreement, or any other contract, instrument, or obligation, whether written or oral, to which it is currently bound or violate any writ, order, injunction, decree, or any law, statute, rule, or regulation applicable to it, and (iii) this Agreement has been duly authorized, executed, and delivered by such party and constitutes a binding obligation of such party enforceable in accordance with its terms.
(b) Services. Partner represents that any services it may provide to an end use Customer related to any Company Product shall be performed by properly trained personnel and shall be of professional quality, consistent with generally-accepted industry standards and expectations for work of a similar nature.
(c) Product Warranties. ALL SALES TO PARTNER ARE SUBJECT TO COMPANY’S STANDARD WARRANTY POLICIES CONTAINED IN EXHIBIT F. COMPANY EXTENDS THESE LIMITED EXPRESS PRODUCT WARRANTIES SOLELY TO PARTNER. UNLESS OTHERWISE SPECIFICALLY STATED IN THE AGREEMENT, COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY OTHER KIND TO PARTNER OR CUSTOMERS WITH RESPECT TO ANY COMPANY PRODUCTS AND PARTNER SHALL MAKE NO WARRANTIES, REPRESENTATIONS, COVENANTS, OR INDEMNITIES, EITHER ORALLY OR IN WRITING, TO ANYONE ON BEHALF OF OR IN THE NAME OF COMPANY
(d) Disclaimer of Additional Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER OR TO ANY OTHER PERSON. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED.
12. Indemnification and Insurance.
(a) Indemnification by Partner. Partner shall indemnify, defend (with competent and experienced counsel reasonably acceptable to Company) and hold harmless Company and its Affiliates, and their respective directors, officers, suppliers, agents, and employees, from and against any third party claims, demands, investigations, suits, or causes of action (each, a “Claim”) relating to or arising out of (i) a breach of this Agreement by the Partner, (ii) breach by Partner of any agreement (whether written or oral) that Partner may enter into with any Customers, (iii) any assertions by employees or former employees of Partner that their employment contracts or rights to employment have been transferred to Company (or any of its Affiliates), (iv) a failure by Partner or Customers to follow specifications, instructions, warnings, documentation, guidance, or recommendations furnished by Company, (v) use of the Licensed Items in an unauthorized manner, (vi) misuse or mishandling of Products by Partner or Customers, (vii) use of any Products in combination with equipment, software, or other items not supplied by Company except in cases involving end-user customer installations where Company equipment is installed in combination with other non-Company equipment as part of an integrated overall end-user customer system installation. In such integrated installation cases Partner shall indemnify Company for all claims related to such installation where the installation or combination of Company and non-Company equipment fails to comply with customary prudent commercial practices or industry standards or where Partner fails to comply with all Company guidelines, recommendations, documentation and warnings related to such equipment and installations (viii) use of Products in an application or environment for which they were not designed, (ix) modifications of Products by anyone other than Company, without Company’s prior written approval, (x) Partner’s acts or omissions in the performance of Partner’s obligations under this Agreement, (xi) any statements, claims, representations or warranties made by Partner relating to Products, other than as authorized or made by Company in writing, and (xii) any claim of infringement of any patent, copyright, trademark, service mark, trade name, trade secret or any other property right of a third party arising from the use by Partner of any Products, other than solely as a result of the Licensed Items. Partner shall also indemnify and hold harmless Company and its Affiliates, and their respective directors, officers, agents and employees, from and against any and all damages, fines, penalties, costs, and other amounts (including attorneys’ and other professionals’ fees and expenses incurred by Partner in connection with defending against the subject Claim), in connection with the adjudication of the Claims for which Partner is required to defend Company as provided above, or any settlement of such Claims.
(b) Indemnification by Company. Company shall indemnify, defend and hold harmless Partner and Customers from and against any Claims relating to or arising out of (i) an allegation that Products infringe any patent, copyright, or trademark of a third party, or (ii) any product liability claim based on any Products delivered to Partner under this Agreement. Notwithstanding the foregoing, Company shall have no obligation under this Section to the extent any such Claims are based on (i) a failure by Partner or Customers to follow specifications, instructions, warnings, documentation, guidance, or recommendations furnished by Company, (ii) use of the Licensed Items in an unauthorized manner, (iii) misuse or mishandling of Products by Partner or Customers, (iv) any use of any Products in combination with equipment, software, or other items not supplied by Company (v) use of Products in an application or environment for which they were not designed, (vi) modifications of Products by anyone other than Company without Company’s prior written approval or (vii) any other claim founded on the negligence of the Partner. Company further agrees to indemnify and hold harmless Partner and Customers, from and against any and all damages, fines, penalties, costs, and other amounts (including attorneys’ and other professionals’ fees and expenses incurred by Company in connection with the defending against the subject Claim), in connection with the adjudication of the Claims for which Company is required to defend Partner as provided above, or any settlement of such Claims].
(c) Limited Remedy for IP Infringement. If any Products become, or in Company’s opinion are likely to become, subject to a third party claim of intellectual property infringement, Partner shall permit Company, at Company’s option and expense, (i) to procure for Partner and Customers the right to continue to possess, use, and distribute such Products as set forth in this Agreement, (ii) replace or modify (or have Partner modify pursuant to Company’s instructions, as the case may be) such Products so that they are non-infringing, or (iii) provide to Partner a refund of the amounts actually paid by Partner for the infringing Products. Company shall have no liability to Partner or any of Customers with respect to any claim that would be excluded from Company’s indemnification obligation set forth in subsections (i) through (vii) of Section 12(b) above. The limited remedies set forth in this Section shall be Partner’s sole and exclusive remedies, and Company’s sole and exclusive obligations, with respect to claims that Products infringe a third party’s intellectual property rights].
(d) Indemnification Process.
A party’s obligations to indemnify the other party with respect to any Claim shall be conditioned upon the indemnified party: (i) providing the indemnifying party with prompt written notice of such Claim (provided that failure to provide such notice shall not relieve the indemnifying party from its obligations under the Indemnity provisions contained in the Agreement unless the indemnifying party’s ability to defend or settle the subject Claim has been materially prejudiced), (ii) permitting the indemnifying party to assume and solely control the defense of such Claim and all related settlement negotiations, with counsel chosen by the indemnifying party, and (iii) cooperating at the indemnifying party’s request with the defense or settlement of such Claim, which cooperation shall include providing reasonable assistance and information at no cost to the indemnifying party. The indemnifying party may not settle any Claim unless the terms of the settlement include a full release of the indemnified party and does not involve any payment or performance by the indemnified party. The indemnified party shall have the right to approve any settlement in which the indemnified party is required to admit any culpability or that would in the indemnified party’s reasonable opinion damage its business reputation. Nothing herein shall restrict the right of a party to participate in a Claim through its own counsel and at its own expense.
13. Insurance Requirements.
(i) Partner Insurance Requirement. Partner shall carry at its expense during the entire Term and for three years after its termination, commercial general liability insurance written on an occurrence basis, including without limitation, blanket contractual liability coverage, broad form property damage, fire damage, legal liability coverage, independent contractor coverage, personal injury coverage, operations and products liability coverage, with a combined single limit of not less than $[5,000,000] per occurrence for personal injury and property damage. Partner shall maintain umbrella/excess liability insurance on an occurrence basis at least equivalent to the underlying commercial general liability insurance and which is at least as broad. The amounts of insurance required herein may be satisfied by Partner purchasing coverage for the limits specified or by any combination of underlying and umbrella limits, so long as the total amount of insurance is not less than $[5,000,000] combined single limit and aggregate limit. Coverage should be placed with a reputable or financially responsible carrier or carriers with a minimum A.M. Best rating of A+. Partner shall cause its insurers to endorse the required insurance to waive any rights of subrogation against the Company Indemnitees. This insurance must name the Company Indemnitees as additional insured’s under an “Additional Insured-Vendors” endorsement, must be primary over any insurance maintained by Company Indemnitees, and must provide that should any of the policies described herein be canceled before the expiration thereof, the insurer shall endeavor to mail to Company at least 30 days’ prior written notice of any cancellation or reduction in coverage. Upon execution of this Agreement, and thereafter 10 days prior to any renewals, Partner shall provide Company with a Certificate of Insurance evidencing the coverage required by this Agreement and identifying the “Certificate Holder” as [Name of Company]. Partner shall mail all Certificates of Insurance to the notification address set forth in Notices section of this Agreement. If Partner fails to adhere to the requirements of this subsection (a), Company may order any such insurance and charge the cost thereof to Partner, which amount shall be due and payable by Partner upon demand. Partner’s Certificate of Insurance is attached as Exhibit G.
(ii) Sufficiency of Insurance; Cooperation with Insurer. By requiring insurance herein, Partner does not represent that the coverage and limits will necessarily be adequate to protect the Company Indemnitees, and insurance effected or procured by Partner shall not reduce or limit its contractual obligation to indemnify and defend the Company Indemnitees as contemplated in this Section. Partner and Company shall fully cooperate, participate and comply with all reasonable requirements and recommendations of the insurers and insurance brokers issuing or arranging for the issuance of the insurance policies required hereunder, in all areas of safety, claims reporting and investigating, and audit procedures.
(iii) Self-Insurance. If Partner has any self-insured retentions or deductibles under any of the minimum required coverage, Partner must identify on the Certificate of Insurance the nature and amount of such self-insured retentions, deductibles and provide satisfactory evidence of financial responsibility for such obligations. All self-insured retentions or deductibles shall be the sole responsibility of Partner and are subject to approval by Company in its reasonable judgment.
14. Limitations on Liability.
(a) Limitation on Certain Damages. SUBJECT TO THE EXCLUSIONARY SECTION 14(c) BELOW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING FOR LOST PROFITS, LOST SALES, LOST BUSINESS OPPORTUNITY, LOSS OF REPUTATION, PREVIOUS EXPENDITURES OR INVESTMENTS, OR GOODWILL) IN CONNECTION WITH ANY PRODUCTS SUPPLIED OR TO BE SUPPLIED HEREUNDER, OR ANY OTHER MATTER COVERED BY THIS AGREEMENT, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Maximum Aggregate Liability. SUBJECT TO THE EXCLUSIONARY PROVISIONS OF THIS SECTION BELOW, in no event shall COMPANY’s maximum aggregate liability to PARTNER or any third party with respect to any and all claims concerning Products or any other matter covered by this Agreement, regardless of the form of action, exceed the amounts actually paid by Partner to Company hereunder during the three month period immediately preceding the first event giving rise to such liability.
(c) Exclusions. The limitations of liability set forth above will not apply with respect to (i) each party’s indemnification obligations under this Agreement, (ii) the gross negligence or willful misconduct of a party, (iii) a breach by either party of its confidentiality obligations under this Agreement, or (iv) a breach by Partner of the Agreement provisions covering Partner sales outside of the permitted Territory, breaches of Partners obligations related to Legal and Regulatory Compliance, or breaches by Partner related to permitted uses of Company Marks. Nothing in this Agreement shall exclude, or limit, any liability that cannot be excluded or limited under Applicable Law.
(d) Limitation on Actions. No action, suit, or proceeding arising out of, or relating to, this Agreement may be brought by either party more than two years after the first event giving rise thereto.
(e) Essential Part of the Bargain. Partner and Company acknowledge that the limitations of liability set forth in this Agreement (i) are an essential element of this Agreement, (ii) represent a deliberate and bargained for allocation of risk between the parties, (iii) were a material inducement to each party entering into this Agreement and the parties would not have entered into this Agreement without such limitations of liability, and (iv) are intended to be independent of any exclusive remedies available under this Agreement, including the failure of any such remedy to achieve its essential purpose.
(a) Definition. As used in this Agreement, “Confidential Information” means any material or information disclosed by either party to the other party, in writing, orally, or by inspection of tangible objects (including material or information relating to such party’s research, development, and current or prospective product or service offerings), which is designated as “Confidential,” “Proprietary” or some similar designation, or whose confidential or proprietary nature is, or should be, reasonably apparent under the circumstances.
(b) Pre-Existing Non-Disclosure Agreements: If the Parties executed a Non-Disclosure Agreement [NDA] prior to the execution of this Agreement, the terms and obligations of that NDA are incorporated into and made a part of this Agreement and the terms of such NDA shall govern the confidentiality obligations of the Parties under this Agreement. If no such NDA has been executed prior to the effective date of this Agreement, the terms below shall control the Parties obligations of confidentiality hereunder.
(i) Confidentiality and Non-Use. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Agreement, and shall not disclose such Confidential Information to any third party without the written consent of the disclosing party. Without limiting the foregoing, each party shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.
(ii) Exceptions. The provisions of this Section 15 do not apply to material or information that: (1) is or becomes generally known to the public other than as a result of disclosure by receiving party in violation of the terms of this Agreement; (2) is in the possession of receiving party at the time of disclosure by disclosing party, as reasonably evidenced by a prior or contemporaneous writing and other than as a result of receiving party’s breach of any legal obligation; (3) becomes known to receiving party through disclosure by sources other than disclosing party having the legal right, to the knowledge of receiving party, to disclose such information; or (4) is independently developed by receiving party without reference to the Confidential Information and through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information, as reasonably evidenced in writing by receiving party.
(c) Confidentiality of Agreement. The terms and conditions of this Agreement, but not its existence, shall be treated as Confidential Information of Company.
(d) Third Party Confidentiality. Partner represents and warrants that its activities in connection with soliciting orders or making sales of Products hereunder will not knowingly violate rights of confidentiality of any third parties and that Partner’s activities in connection with this Agreement shall not violate any contractual obligations or confidential relationships that Partner may have to/with any third party.
(e) Expiration. The confidentiality obligations of the parties expire three years from the end of the Term of the Agreement
16. Governing Law; Jurisdiction; Trial by Jury. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of California, without regard to conflicts of laws. Each party disclaims the applicability of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. The parties hereby consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the State of California, San Diego County in the United States for the purposes of adjudicating any matter arising from or in connection with this Agreement. Each party expressly waives any right to a trial by a jury in any proceeding arising directly or indirectly out of this Agreement.
17. Equitable Relief. Company may enforce any provision of this Agreement by obtaining equitable relief in addition to all other remedies at law or under this Agreement. The Parties acknowledge that Company’s remedies at law for a breach of any provision of this Agreement may be inadequate and Company may suffer irreparable harm from any such breach.
(a) Community Investors, Inc dba FRONTSTEPS Waiver. No term or provision of this Agreement will be considered waived and no breach consented to by either party unless such waiver or consent is in writing and signed on behalf of the party against whom it is asserted, and such writing includes a specific statement of such party’s intent to make such waiver or consent. No consent to or waiver of a breach of this Agreement by either party, whether express or implied, will constitute a consent to, waiver of, or excuse for any other, different, or subsequent breach of this Agreement by such party.
(b) Conflicts of Interest. If either party becomes aware of a conflict of interest relating to this Agreement, such party shall immediately notify the other party thereof and the parties shall work in good faith to resolve the conflict or otherwise resolve the situation.
(c) Modification. Amendments and modifications to this Agreement will be effective only if written and signed by both parties.
(d) Assignment. Partner acknowledges that Company is entering into this Agreement in reliance upon the personal reputation, qualifications, and abilities of the present owner or owners and employees of Partner’s business and operations. Accordingly, Partner shall not assign or transfer this Agreement or any of its rights, or delegate any of its duties or obligations, under this Agreement, whether voluntarily, by merger or operation of law, or otherwise, except with the prior consent of Company. A change in control of Partner’s business shall be deemed to be a prohibited assignment under this Section 18(e). For the purposes of this Section 18(d), “change of control” means the sale or transfer of a majority of the share capital (or right to direct the operations) of Partner, or the sale or transfer of a substantial portion of its business or assets or a similar type of transaction. Partner shall not employ or otherwise use any third parties to perform its obligations under this Agreement or in any substantive manner for the benefit of Company, without first identifying all such third parties to Company and obtaining Company’s advance written approval for their employment or use. This Agreement may be assigned by Company, without the consent of Partner, to (i) any Affiliate of Company, (ii) any entity with which or into which Company may consolidate or merge, or (iii) any entity acquiring all or substantially all of the assets of Company relating to this Agreement. In addition, Company shall have to right to delegate any of its obligations hereunder to an Affiliate or to an agent of Company. Any assignment, transfer, or delegation in contravention of this Section 18(d) shall be null and void. This Agreement shall inure to the benefit of the successors and assigns of Company.
(e) Entire Agreement. This Agreement (together with the Exhibits, schedules, and attachments) entered into by the parties from time to time) constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes all prior and simultaneous representations, discussions, negotiations, letters, proposals, agreements, and understandings between the parties with respect to the subject matter hereof, whether written or oral. Without limiting the generality of the foregoing, each party hereby acknowledges that any other distribution, sales agency, authorization letters, or other agreements (whether written or oral) relating to the promotion or sale of products of Company or its Affiliates in the Territory are hereby superseded and each party hereby waives all rights it may have to assert claims, whether known or unknown, in connection with, relating to, or arising under such superseded agreements, provided however, that any payment and service obligations of Partner shall survive. In the event of any conflict or inconsistency between the terms of this Agreement and any Exhibits hereto, this Agreement will control, except as specifically stated otherwise.
(f) No Rights by Implication. No rights or licenses with respect to Products or the Company Intellectual Property are granted or deemed granted or in connection herewith, other than those rights expressly granted in this Agreement.
(g) Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law, in equity or otherwise, except to the extent expressly provided in this Agreement to the contrary.
(h) Force Majeure; Other Events. Neither party shall be considered in default of its performance of any obligation hereunder (other than an obligation to make any payment due) to the extent that performance of such obligation is prevented or delayed by acts of God; acts of the other party; war (declared or undeclared); terrorism or other criminal conduct; fire; flood; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, orders, omissions or actions; unavailability of, or delays in, utilities or transportation; default of suppliers or other inability to obtain necessary materials; embargoes, or unforeseen circumstances or any other events or causes beyond party's reasonable control (each, a “Force Majeure Event”). If any Force Majeure Event does arise, occur, or result, the party subject thereto shall use commercially reasonable efforts to minimize the consequences of such event and to overcome such event as soon as reasonably possible. A party desiring to rely upon any Force Majeure Event as an excuse for failure, default, or delay in performance shall provide the other party with prompt written notice of the facts giving rise to said event when it arises and of the cessation of said event when it ceases to exist. If Partner is unable to substantially perform its obligations under this Agreement as a result of a Force Majeure Event for more than 30 days, Company shall have the option to terminate this Agreement upon written notice to Partner.
(i) Severability. If any provision in this Agreement is invalid or unenforceable in any circumstances, its application in any other circumstances and the remaining provisions of this Agreement will not be affected thereby.
(j) Publicity. Partner shall not make any public announcements or communicate with any news media regarding this Agreement or the transactions contemplated hereby without the prior written consent of Company.
(k) No Third-Party Beneficiaries. Except as expressly stated herein, each party intends that this Agreement will not benefit, or create any right or cause of action in or on behalf of, any person or entity other than the parties, Company’s Affiliates, and their successors and permitted assigns.
(l) Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) references to any gender include all genders, (c) the word “or” is disjunctive but not necessarily exclusive; and (d) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and will not affect the interpretation of this Agreement.
(m) Further Assurances. Partner shall, at its own expense, take such steps and execute and deliver such documents as may be required to satisfy any law or requirements in any jurisdiction where Partner distributes Products as authorized by this Agreement.
(n) English Language. This Agreement is in the English language only, which language is controlling in all respects, and all versions in any other language will not be binding on the parties. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
Execution.This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement.A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.