This Business Partner Agreement ('Agreement') is made and entered into by and between MB Software & Consulting, Inc., with its principal office and place of business at 1101 East Cumberland Ave, Suite 201H-3119, Tampa, FL 33602 USA (hereinafter 'MB Software') and the undersigned, ('Partner').
1. Purpose of the Agreement
1.1 Partner desires to obtain the right to market, promote and distribute the Workload Performance Series software and all future enhancements and modifications (hereinafter referred to as 'Software') to its end-user Customers under the terms and conditions of this Agreement. MB Software hereby appoints Partner as a non exclusive Partner of the Software under the terms and conditions of this Agreement.
2. No License Grant and Non-Exclusivity
2.1 Partner shall not permit any of its Customers or other third party, to copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Software. This Agreement is non-exclusive and shall not be construed to require Partner to license any specific amount of Software from MB Software.
3. Partner's Obligations
3.1 Registration and Demonstration. In order to qualify for a Finder's Fee as set forth in Section 3.2, the Partner must get Customer to do the following: (a) register on the MB Software web site in its own name; (b) download the Software; © install the Software on its server(s) and (d) schedule and participate in a free Demonstration and Performance Review Session. The Partner will continue to qualify for a Finder's Fee for a period of 6 months after the initial Registration and Demonstration.
3.2 Finder's Fee. The Partner is entitled to a 12.5% Finder's Fee on the initial software license fees only for all sales of the Software to Customer. No Finder's Fee will be paid for software maintenance.
3.3 Invoicing. All invoicing for the sale of the Software will be done by MB Software directly to the Customer. Once MB Software is paid in full by the Customer, MB Software will notify Partner so that they may invoice MB Software for the Finder's Fee. The invoice will be paid upon receipt.
3.4 Initial Access Codes. Temporary Software access codes will be issued during the Registration and Demonstration period. These access codes will allow Customer to collect high level performance data for 30 days. During the free Performance Review Session, Customer will be issued a separate temporary access code for the online inquiry and web hosted graphical portions of the Software. These free initial access codes will be used for analysis purposes only during the day of the Demonstration and Performance Review Session.
3.5 Additional Analysis and Extended Software Trial. Customer or Partner (on behalf of Customer), may elect to have full use of the Software for 30 day periods. In such a case, Customer or Partner will pay MB Software $500 for each 30 day license period on each system/LPAR. If Customer or Partner requests MB Software to provide training and support during a 30 day license period, there will be an additional $500 charge per system/LPAR. If Partner provides the training and support during the 30 day license period(s), there will be no additional charge. Additional temporary 30 day access codes will be issued for complete use of all modules within the Software for each 30 day license period elected, once a purchase order has been received from the Customer or Partner.
3.6 Services. All demonstration, analysis, training and support services provided by MB Software will be delivered via the Internet and teleconference. No Customer or Partner on-site visits will be provided by MB Software as part of this Agreement. All services provided by MB Software are provided as training services. Customer and/or Partner are expected to provide trainee(s) with appropriate levels of experience, who will participate productively.
3.7 Option of Refusal. MB Software reserves the right to refuse a Customer for any reason including but not limited to: (a) Customer has already received a free Performance Review Session in the recent past; (b) Customer has used the Software in the past, without any intent to license it; © Customer has defaulted on prior Software License & Maintenance Agreement; or (d) Partner continues to engage with small Customers with little or no interest or ability to license the Software.
4. Resale of the Software
4.1 Partner agrees to market, promote, and sell the Software to Partner's customers in accordance with the terms of this Agreement. All Customers purchasing Software from MB Software or Partner shall execute and be bound by the MB Software & Consulting, Inc. Software License & Maintenance Agreement.
5. Suspension of Software
5.1 MB Software reserves the right to cancel or suspend Partner's or any Customer's access to the Software, or to refuse or delay provision thereof, if Partner: (a) fails to make any payment as provided herein or in any invoice, or (b) otherwise fails, to comply with any material term or condition of this Agreement. MB Software shall provide Partner and Customer notice of the material breach specified in sub-sections (a) or (b) above, and, if Partner or Customer cures the default after such notice, then MB Software shall restore the access to the Software.
6. Software Standards
6.1 MB Software shall provide the Software under this Agreement with the same functionality, and quality as it makes available to its own customers.
7. Partner Branding
7.1 Partner shall not resell the Software under the Partner's brand name or service marks.
8.1 Except where the tax laws provide for an exemption, Partner and its customers shall remain liable for all applicable federal, state or local taxes, arising out of a sale or lease of the Software.
9. Term of the Agreement
9.1 This Agreement shall be in effect as of the date the Partner signs this Agreement and shall continue for a period of one year, unless earlier terminated or extended as set forth below. The Agreement shall thereafter automatically renew for one year periods unless terminated by either Party after providing the other Party with sixty (60) days written notice prior to the expiration that it elects not to renew.
10.1 Termination without Cause. At any time either Party may terminate this Agreement without cause, effective sixty (60) days after delivery of written notice to the other Party. The termination shall not prejudice the rights or liabilities of the Customers with respect to Software rendered, or any indebtedness then owed by either Party to the other.
10.2 Termination for Cause. Either party may immediately terminate this Agreement, without liability, upon the occurrence of any of the following triggering events; (a) the other party materially breaches the performance of any of the provisions or requirements of this Agreement and such breach is not corrected within fifteen (15) days after receipt of written notification from the non-breaching party; or (b) the other party ceases to conduct business in the normal manner, or is adjudicated bankrupt, or if a receiver or trustee is appointed for all or a substantial portion of its assets, or if any assignment for the benefit of its creditors is made.
10.3 Effect of Termination. Expiration or termination of this Agreement shall not relieve the Parties of any rights or obligations accruing prior to such expiration or termination. Upon expiration or termination of this Agreement for any reason, each Party shall immediately: (a) return to the other Party all Confidential Information, as defined herein of the other Party in its possession or control, including all copies thereof, and (b) cease all use of the Trademarks of the other Party, and return all marketing and promotional materials relating to the Software. Following any expiration or termination of this Agreement for any reason, Partner shall cease all marketing, promotion and sale of the Software.
11.1 Quiet Enjoyment and Non Infringement. MB Software represents and warrants that Partner shall have quiet enjoyment of the Software and Partner's use thereof shall be free from all claims of infringement, misuse or misappropriation of any intellectual property right. As to Software or embedded materials for which MB Software does not have title, MB Software warrants that it has rights in the Software sufficient to permit the license of the Software to Partner and that MB Software has full right, power and authority to license the Software or convey ownership rights in developed software and any other rights granted hereunder to Partner.
11.2 No Defects. MB Software represents and warrants that the Software is and will remain, free from defects in material and workmanship and that all related Software provided by MB Software shall be rendered by professionally trained, qualified personnel who will perform the tasks assigned consistent with best professional practices. MB Software represents and warrants that the Software does not and during the term of this Agreement will not cause the Software, other software, or the computer system or network on which the Software is installed to perform an unauthorized function or to operate in an unauthorized manner. In the event of a breach of this warranty MB Software shall indemnify and hold harmless Partner for any and all damages resulting from such breach. The warranty in this subsection shall survive termination of the Agreement.
11.3 Mutual Warranty. Both parties represent and warrant in the course of selling or installing the Software: (a) it will not, without the other's written approval, make any representation, warranties, or guarantees on behalf of MB Software concerning the Software, other than as expressly set forth in this Agreement, or (b) it will not knowingly provide to Customers content or other material in connection with its provision of the Software which: (a) infringes any third party's patent, copyright or trademark or misappropriates any trade secret or other intellectual property rights of a third party, (b) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing, © violates any laws regarding unfair competition, anti-discrimination or false advertising, (d) contains any viruses, worms, or other computer programming routines that are intended to damage, or interfere with the Software or related software or technology, or (e) otherwise violates any law, statute, ordinance or regulation (including without limitation any laws and regulations governing export control). Partner shall not make representations regarding the features and functionalities of the Software to its Customers that deviate from the representations made by MB Software to its Customers. Any such additional representations shall not be made by Partner without the prior written approval of MB Software.
11.4 EXCEPT AS SET FORTH IN THIS SECTION, THE SOFTWARE IS PROVIDED ON AN 'AS IS' BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MB SOFTWARE DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, BY OPERATION OF LAW, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. EXCEPT AS SET FORTH IN THIS SECTION, MB SOFTWARE DOES NOT WARRANT THAT THE SOFTWARE WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE. Partner acknowledges that it has relied on no warranties other than the express warranties in this Agreement. The Parties agree and acknowledge that MB Software shall in no event be held responsible for any problems with the Software attributable to the Internet, hardware or a customer's inability to connect to the Internet if such problems are not solely and intentionally caused by MB Software's Software or MB Software's failure to provide due care.
12.1 Indemnification. Each Party shall defend, indemnify, and hold harmless each other and its affiliates, licensors, officers, directors, employees and agents from and against any and all damage, cost, liability, and expenses (including court costs and reasonable attorneys' fees), incurred as a direct result of (a) all claims, suits, or proceedings brought by any third party (including any Customer of Partner) that arise from or relate to any breach by the other Party of any representations and warranties given by either Party under this Agreement, including, without limitation, the warranties and representations made by either Party; and (b) any failure by either Party to fulfill its responsibilities to each other or Partner's Customers.
12.2 Indemnification Procedures. Each Party's obligations under this Section are conditioned upon the indemnified party providing the indemnifying party with: (a) the prompt written notice of any claim for which indemnification is sought; (b) complete control of the defense and settlement of such claim; and © reasonable assistance and cooperation in such defense at the indemnifying party's expense. Notwithstanding the foregoing, the indemnifying party may not enter into a settlement of a claim that involves a remedy other than the payment of money by the indemnified party without the indemnified party's written consent.
12.3 Limitation of Liability. EXCEPT IN THE CASE OF A VIOLATION OF THE ABOVE SECTIONS OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INFRINGEMENT, DEATH, PERSONAL INJURY AND PROPERTY DAMAGE, IN ANY EVENT, MB SOFTWARE'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE RENDERED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO GENERAL MONEY DAMAGES AND SHALL NOT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY MB SOFTWARE FROM CUSTOMER PURSUANT TO THIS AGREEMENT.
13. MB Software Trademark License and Limitations
13.1 For the term of this Agreement, MB Software hereby grants to Partner a non-exclusive, non-assignable, royalty-free, worldwide license to use and reproduce all names, trademarks and logos of the Software ('MB Software's Trademarks') and artwork, designs, ads and similar materials solely as necessary to implement the terms of this Agreement. Partner, as a licensee of the names, trademarks and logos of MB Software, agrees that MB Software, as the licensor of its names, trademarks and logos, has the right to control the nature and quality of their use. Partner, as a licensee, agrees that it shall only use the MB Software Trademarks and logos in conformity to the instruction of MB Software. Partner further acknowledges that MB Software is the sole and exclusive owner of rights in the MB Software Licensed Marks, undertakes not to challenge the validity of registration or ownership of the MB Software's Licensed Marks, and agrees that it will do nothing inconsistent with such ownership.
14.1 All Software, content or other material provided to MB Software by Partner or Customers is and shall remain exclusive property of Partner or Customers, as the case may be. As applicable, Partner, Customers, and their licensors shall retain ownership of all copyrights, patents, trademarks, trade secrets, and other intellectual property rights relating to or residing in such content or other material.
15. Intellectual Property of Software and MB Software Technology
15.1 The Software, and any revisions thereto, are and shall remain exclusive property of MB Software. MB Software shall retain ownership of all copyrights, patents, trademarks, trade secrets, and other intellectual property rights relating to or residing in the Software and any Revisions thereto, and Partner shall have no right, title, or interest in or to the same.
16.1 During the course of this Agreement, each party ('Recipient') may have access to confidential, proprietary or trade secret information disclosed by the other party ('Owner') during the term of this Agreement, including, without limitation, ideas, trade secrets, procedures, methods, systems, customers, end users and concepts, and other information relating to the Software, and the functionality, operation, pricing, and composition thereof, whether disclosed orally or in writing or by any other media ('Confidential Information'). Recipient agrees that the Confidential Information is to be considered confidential and proprietary to Owner and Recipient shall hold the same in confidence, shall not use the Confidential Information other than for the purposes of its business with Owner, and shall disclose it only to its officers, directors, or employees with a specific need to know. Recipient will not disclose, publish or otherwise reveal any of the Confidential Information received from Owner to any other party whatsoever except with the specific prior written authorization of Owner.
17.1 All terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and permitted assigns, including successors by operation of law or reason of corporate merger. The rights and obligations of the parties shall neither be assigned nor delegated without the prior written consent of the other Party. Such consent shall not be unreasonably withheld or delayed. However, any Party may assign or delegate its respective rights and obligations, in whole or in part, to any parent, subsidiary, Affiliate, or successor in interest to a majority of the assets or business of such parent, Affiliate or subsidiary.
18. Force Majeure
18.1 Neither Party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, terror, explosion, war, embargo, government requirement, civil or military authority, acts of nature, labor strikes, or any circumstances beyond its control and not involving any fault or negligence of the party affected.
19. Choice of Law and Jurisdiction
19.1 The construction, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of New York in the United States without regard to any conflicts of law principles that would require the application of the laws of any other jurisdiction. The application of the U.N. Convention on Contracts for the International Sale of Goods is specifically excluded from this Agreement.
20. Compliance with Laws
20.1 Each Party shall comply with the provisions of all applicable federal, state, county, municipal and local laws, ordinances, regulations and codes in performing its obligations under this Agreement. Each party shall indemnify, defend and hold the other party harmless against all claims, loss (including reasonable attorney's fees) or damage caused by its noncompliance with such laws, ordinances, regulations and codes.
21. Relationship of the Parties
21.1 In providing any Software under this Agreement, each Party is acting solely as an independent contractor and not as an agent of the other Party. Persons furnished by the respective Parties shall not be considered employees of the other Party for any purpose. Nothing contained in this Agreement is intended to give rise to a partnership or joint venture between the Parties.
22.1 Any written notice either party may give the other concerning the subject matter of this Agreement shall be in writing and given or made by means of facsimile transmission, U.S. certified or registered mail, express mail or other overnight delivery service, or hand delivery, proper postage or other charges paid and addressed or directed to the respective parties.
23.1 If any of the provisions of this agreement shall be invalid or unenforceable, then such invalidity or unenforceability shall be considered of no further force and effect and the Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions.
24.1 Any failure or delay by either Party to exercise any right, power, or privilege hereunder, will not operate as waiver hereto.
25. Entire Agreement
25.1 This Agreement constitutes the entire agreement between the Parties and cancels all prior agreements, whether written or oral, with respect to the subject matter of this Agreement. No amendment or modification shall be made to this Agreement unless in writing and signed by authorized representatives of the Parties.
Each Party represents that it has executed this Agreement through its authorized corporate representative on the date set forth below.
MB SOFTWARE & CONSULTING, INC.
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