RESELLER PARTNER AGREEMENT
TERMS AND CONDITIONS
This Reseller Agreement (the “Agreement”) is between EnableSoft, Inc. (“Company”) and the reseller (“Reseller”) and establishes the terms and conditions for Reseller’s participation in the Foxtrot Reseller Program (the “Program”). Under the Program, Company will provide marketing and promotional support to Reseller (1) as specified in this Agreement and its Exhibits, and (2) as detailed on the Foxtrot Partner Portal, all as related to Resellers license and relicense of Company’s products for resale.
Adoption of Preamble: The terms, conditions and provisions set out on Page 1 of this Agreement shall apply to this Agreement for all intents and purposes.
Product(s): Shall mean the Foxtrot software.
Service(s): Shall mean Company supported service offerings such as training, content conversion and custom development, implementation and deployment.
Documentation: User’s guides for the Product.
End-Users: A Customer or Customers who acquire Product for their internal use and not for redistribution, remarketing, time-sharing, or service bureau use.
Exhibits: Terms specific to a Reseller, in addition to the terms and conditions set out in this Reseller Agreement. All Exhibits shall be and become a part of this Reseller Agreement for all intents and purposes as if fully set out herein.
Agents: Marketing Resellers of Reseller who market and promote Reseller’s services and receive commission from the Reseller.
Currency: All monetary values in this Agreement or any Agreement governed by this Agreement are expressed in United States Dollars (US$).
Effective Date: The date of execution hereof by both parties as specified above.
1. Reseller Qualification
1.1 In order to ensure adequate technical and marketing support to End Users, Reseller’s eligibility to offer and license or relicense Company products is subject to meeting authorization requirements as described in the Program Materials. These Program Materials which can be found on the Foxtrot Partner Portal maintained by Company contain a detailed description of the benefits to a Reseller of, as well as the requirements of a Reseller under, this Program. Reseller will not sell Company products without arranging for adequate post-sales support for the Company Products to Reseller’s customer.
2.1. Reseller is an independent contractor engaged in offering Company products to End Users. Nothing in this Agreement shall create a partnership, and Reseller is not an agent or legal representative of Company for any purpose, and has no authority to act for, bind or commit Company.
2.2. Reseller has no authority to make any commitment on behalf of Company with respect to quantities, delivery, modifications, interfacing capability, suitability of software or suitability in specific applications. Reseller has no authority to modify the warranty offered with Company products. Reseller will indemnify Company from liability for any modified warranty or other commitment by Reseller not specifically authorized by Company.
2.3. Reseller will not represent itself in any way that implies Reseller is an agent or branch of Company. Reseller will immediately change or discontinue any representation or business practice found to be misleading or deceptive by Company immediately upon notice from Company.
3. Term, Limitations, Termination
3.1. The term of this Agreement is twelve (12) months from the last date of acceptance by either Reseller and Company as evidenced by their signature on the signature page of this Agreement. This Agreement shall automatically renew on each subsequent anniversary of the date of acceptance for a one-year term, unless it is terminated earlier in accordance with this Agreement.
3.2. Company or Reseller may terminate this Agreement without cause at any time upon thirty (30) days written notice or with cause at any time upon fifteen (15) days written notice, except that neither the expiration nor earlier termination of this Agreement shall release either party from any obligation which has accrued as of the date of termination.
3.3. Company may, from time to time, give Reseller written notice of amendments to this Agreement. Any such amendment will automatically become a part of this Agreement thirty (30) days from the date of the notice, unless otherwise specified in the notice.
3.4. Upon expiration, non-renewal or termination of this Agreement, all interests in marketing funds (if any) will automatically lapse.
3.5 Upon the termination of this Agreement, the rights and Not for Resale (NFR) licenses granted to Reseller pursuant to this Agreement will automatically cease. Notwithstanding the foregoing, all existing licenses to End Users will continue for the duration of such license. The unpaid balance of any fees then due shall become due and payable within thirty (30) days of such termination.
4. Reseller Programs
4.1. Company Reseller program will contain various participation levels. Company will invite Reseller from time to time to participate in the market development and promotional programs offered by Company as defined in the Program Materials. Reseller may, at its option, participate in such programs during the term of this Agreement. Company reserves the right to terminate or modify such programs at any time at its sole discretion.
4.2. Reseller shall exert best efforts to market Company products, and is able to use promotional materials supplied by Company.
4.3. As defined in the Program Materials, Reseller shall have sufficient technical knowledge of the Company products in general, and will have access to appropriate Company sales and technical training.
4.4. Company does not represent that it will continue to market or support any particular item, release or model of product indefinitely or even for any specific period. Company specifically reserves the right to modify any of the specifications or characteristics of its products, to remove any product from the market, and/or to cease manufacturing or supporting any product.
4.5. Reseller is expected and encouraged to advertise and promote Company’s Products through all appropriate media including trade show exhibits, catalogs and direct mailings, space advertising, educational meetings, sales aids, etc. Company must approve all original materials that use Company name or trademarks (aside from modifying existing Company supplied template materials).
5. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING ANY INFRINGEMENT CLAIMS, SHALL COMPANY BE LIABLE TO RESELLER OR ANY OTHER PARTY FOR ANY RE-PROCUREMENT COSTS, LOST REVENUE OR PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF COMPANY HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE.
6. Use of Company Trademarks
6.1. Reseller acknowledges the following:
6.1.1. Company owns all right, title and interest in the Company names and logotypes.
6.1.2. Company is the owner of certain other trademarks and tradenames used in connection with certain product lines and software.
6.1.3. Reseller will acquire no interest in any such trademarks or tradenames by virtue of this Agreement, its activities under it, or any relationship with Company.
6.2. During the term of this Agreement, Reseller may indicate to the trade and to the public that it is an authorized Reseller of the Company products. Reseller may also use the Company trademarks and trade names to promote and solicit licensing of Company products if done so in strict accordance with Company guidelines. Reseller will not adopt or use such trademarks or tradenames, or any confusingly similar word or symbol, as part of its company name or allow such marks or names to be used by others. Company will assist Reseller in advertising the Foxtrot logo on the Reseller website and promoting Company products in accordance with Company policy.
6.3. At the expiration or termination of this Agreement, Reseller shall immediately discontinue any use of the Company product and Company names or trademarks or any other combination of words, designs, trademarks or tradenames that would indicate that it is or was a reseller of the Company products.
7. Product Warranty
7.1. The warranty terms and conditions will be as specified in the Company Standard Terms and Conditions of License.
7.2. COMPANY WARRANTY SET OUT IN THE COMPANY STANDARD TERMS AND CONDITIONS OF LICENSE ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS AGREEMENT DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED.
The software license terms will be specified in the Company Standard Terms and Conditions of License entered into by Company and the End User.
9. Proprietary Information
9.1 Company and Reseller shall each exercise due diligence to maintain in confidence and not disclose to any third party any proprietary information furnished by the other to it on a confidential basis and identified as such when furnished. Except in accordance with this Agreement, neither party shall use such information without permission of the party that furnished it. As used in this paragraph, “due diligence” means the same precaution and standard of care which that party uses to safeguard its own proprietary data, but in no event less than reasonable care. The provisions of this Section shall survive for three (3) years beyond the expiration, non-renewal or termination of this Agreement.
9.2 This Agreement does not grant any license under any patents or other intellectual property rights owned or controlled by or licensed to Company. Reseller shall not have any right to manufacture or modify Company products.
10. Export Controls
Regardless of any disclosure made by Reseller to Company or Distributor of an ultimate destination of Company products, Reseller shall not export, either directly or indirectly, any documentation, Company products, or system incorporating such Company products without Company’s express written approval.
11. Compliance with Laws
11.1 Reseller agrees to comply with all laws and regulations that are applicable to the business that Reseller transacts. Reseller agrees to indemnify and hold Company harmless for all liability or damages caused by Resellers failure to comply with the terms of this provision.
11.2 Reseller shall pay all taxes, levies, or charges imposed by any governmental authority of any kind whatsoever applicable to any of the payments made to Reseller under this Agreement or the existence of this Agreement or the provision of Products and Services by Company under this Agreement.
12. Government Contract Conditions
In the event that Reseller elects to offer Company products or services to any Government (local, regional, national), Reseller does so solely at its own option and risk, and agrees not to obligate Company as a subcontractor or otherwise to the Government. Reseller remains solely and exclusively responsible for compliance with all statutes and regulations governing sales to the Government. Company makes no representations, certifications or warranties whatsoever with respect to the ability of its goods, services or prices to satisfy any such statutes and regulations.
Notices under this Agreement may be sent by telegram, telecopy, registered or certified mail, or e-mail if receipt of e-mail is acknowledged to the appropriate party at its location stated on the first page of this Agreement (or to a new address if the other has been properly notified of the change). A notice will not be effective until the addressee actually receives it.
This Agreement and the Foxtrot Partner Program schedule represent the entire agreement between the parties regarding this subject. This Agreement supersedes all previous oral or written communications between the parties regarding the subject, and it may not be modified or waived except in writing and signed by an officer or other authorized representative of each party. Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from a cause beyond its reasonable control. If any provision is held invalid, all other provisions shall remain valid, unless such invalidity would frustrate the purpose of this Agreement. Florida law governs this Agreement without consideration to that body of law referred to as “conflicts of laws”. Company and Reseller will attempt to settle any claim or controversy arising out of it through consultation and negotiation in good faith and a spirit of mutual cooperation. Any dispute which cannot be resolved through negotiation or mediation may be submitted to the courts of appropriate jurisdiction.
15. Restrictions on Employee Solicitation
During the term of this Agreement and for a period of two years after the termination of this Agreement (the “Restriction Period”), neither party, nor their owners, officers, directors, employees and agents will hire any employee of the other who currently works or within the preceding one year worked for the other. Each party will require that all of its owners, officers, directors, employees and agents execute non-compete agreements sufficient to enforce this provision.
16. Provisions Specific to Reseller
Reseller Specific Terms that apply to the relationship between Company and Reseller shall be set out in program guidelines found within the Foxtrot Partner Program and in other documents which Company and Reseller shall agree to in writing. Company reserves the right to, from time to time, give Reseller written notice of amendments to the Reseller Specific Terms. Any such amendment will automatically become a part of this Agreement thirty (30) days from the date of the notice, unless otherwise specified in the notice. If Reseller does not accept the amendment made by Company, then this Agreement shall terminate at the end of the thirty (30) day notice period.
17. Effect of this Agreement
This Reseller Agreement shall govern, control and take precedence over any and all other agreements, whether written or oral, between Reseller and Company unless any such other agreements specify in their terms, in writing, that they are intended to take precedence over the terms of this Agreement. By agreeing to this Reseller Agreement Reseller agrees to Company’s Program Materials which can be located on the Foxtrot Partner Portal.