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Reseller Agreement
All contents copyright ©
Tivilon, Inc.
All rights reserved.
This Agreement is made and entered into as of the Effective Date and by Tivilon, Inc.,
a Delaware corporation, having a place of business at 4723 Nantucket Road, College Park,
MD 20740 ("Provider") and the following entity ("Reseller"):
Reseller:
Company
Address
Telephone
Fax
E-mail
URL
Provider and Reseller have read and agree to all of the terms and conditions
attached. This agreement shall be valid and binding upon all parties hereto only when
executed by both Tivilon and Reseller.
Effective Date:
Provider:
Tivilon, Inc.
Mark Zawodny
President & CEO
Company
Signature
Print Name
Title
Date
Terms and Conditions
- Definitions
- Effective Date: The date set forth on the signature page hereto as the effective date of this Agreement.
- Customer(s): The person or organization that purchases the Solutions from or through the Reseller.
- Solution(s): The good(s) and service(s) provided by Provider as they are currently, including all subsequent versions, modifications, corrections and enhancements thereof provided by Provider pursuant to this Agreement.
- Provider's Web Site: The website www.tivilon.com and all sub-pages, including, without limitation, www.tivilon.com/subpage or any successor website thereto.
- Term: One (1) year from the Effective Date, subject to extension or termination as provided in Section 9 herein.
- Territory: Throughout the World except (i) countries to which export or re-export of any Provider Solutions or the direct Services of any Provider Solution is prohibited by United States law, and (ii) countries that Provider may hereafter exclude by written notice to Reseller.
- Terms and Conditions of Appointment
- Appointment as Nonexclusive Reseller: Subject to the terms and conditions of this Agreement, Provider hereby appoints Reseller as an independent, non-exclusive authorized reseller of the Solutions, entitling Reseller, during the Term and within the Territory, to resell Solutions to Customers on a stand alone basis. The Solutions may be sold either under Provider's brand name or a different brand name approved in writing by Provider prior to such use, which approval will not be unreasonably withheld; provided such other brand name clearly identifies that the Solutions are the services of Provider and display one or more of the Provider's service marks or trademarks.
- Marketing Duties:
- Reseller shall market and promote the Solutions both directly and indirectly to potential Customers, subject to the terms and conditions set forth in this Agreement.
- Reseller will make available to the Customer such information, materials and documentation of Provider and/or Reseller, and provide first-line project management and other customer care activities, as is necessary to achieve a high level of customer satisfaction with the Solutions.
- Rights Reserved to Provider: Reseller acknowledges that the Solutions are the exclusive property of Provider and that Reseller has no right, title or interest in the foregoing except those expressly provided herein. Nothing herein shall be construed as restricting the Provider's right to modify the Solutions or any component thereof, or to sell, lease, license, publish or otherwise distribute the Solutions or any component thereof, to any other person or to enter into other distribution or reseller arrangements for the Solutions or any component thereof with one or more other parties. All rights not expressly granted to Reseller herein are reserved to Provider.
- Prohibited Activities: Reseller agrees and acknowledges that it is strictly prohibited under this Agreement from: (i) reselling, using or distributing or soliciting the resale, use or distribution of any Solution, or any component thereof other than as provided herein; (ii) directly or indirectly reselling or distributing any Solution or any component thereof, to any third party for the purpose of further resale or redistribution to any other person or entity; (iii) modifying any documentation, materials, data or files provided by Provider, or any portion thereof, without the express written consent of Provider; (iv) making any false or misleading representation with respect to the Solutions, or (v) publishing or using any deceptive or misleading advertising material with respect to any of the Solutions.
- Export of Solutions: Reseller shall be solely responsible for compliance with any laws, rules, or regulations governing the export of the Solutions or any portion thereof, including without limitation the procurement and renewal of all export or import licenses required under U.S. or any foreign law for the export or import of a Solution, and shall pay all costs and other expenses in connection with such procurement and renewal. Regardless of any disclosure made by Reseller to Provider of any ultimate destination of any Solution, Reseller shall not export or re-export the Solution, directly or indirectly, without first obtaining the written approval or required export license from the U.S. Department of Commerce or any other agency of the U.S. Government having jurisdiction over such transaction. Reseller shall be exclusively responsible at its own expense for compliance with all local laws relating to marketing or distributing Solutions. The assurances in this Section 2(e) shall survive the termination or expiration of this Agreement for any reason.
- Required Licenses: Reseller shall be solely responsible for securing, maintaining, and renewing any license registration, permit, authorization or approval necessary for the conduct of its business in the manner contemplated by this Agreement.
- Taxes: Except for taxes based on Provider's net income, Reseller shall pay, or require the Customers to pay, all federal, state, local or other governmental taxes, fees or duties imposed, levied, or based upon the licensing, sale, use, possession or export of Solutions, including without limitation any such taxes, fees or duties imposed by other countries based on international marketing and distribution of the Solutions.
- Personnel: Reseller will engage competent sales and support personnel to market Solutions and provide service to Customers in numbers sufficient to service the Customers and to provide the customer support obligations required hereunder.
- General: In carrying out this Agreement, Reseller will conduct itself in an ethical and lawful manner, will exercise its best efforts to achieve a high level of customer satisfaction and will do nothing to bring the reputation of Tivilon into disrepute.
- Provider's Warranties
- Disclaimer of Warranty: The Solutions and all components thereof are provided "as is." Provider specifically disclaims all warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and title and Reseller hereby waives any such warranties.
- Customer's Warranties and Limitations: Provider provides a limited warranty for Customers as set forth in Provider's standard Customer Service Agreement, a copy of which may be viewed at:
http://www.tivilon.com/legal/sa.asp
Reseller shall make no representations or warranties on behalf of Provider other than as set forth in Provider's Customer Service Agreement referred to above.
- Orders, Billing, and Terms of Payment
- Initial Payment: Reseller shall pay the Provider the Solution price at current set rates (please contact Tivilon for a list of current rates), and in accordance with the payment terms as hereinafter set forth.
- Subsequent Orders: Any Solutions ordered by Reseller for a Customer after the order initially submitted to Provider for that Customer shall be subject to the terms and conditions of this Agreement, subject further, however, to Provider's pricing and payment terms then in effect.
- Payment Terms: Reseller is bound to Tivilon's Customer Payment & Adjusted Rates Policy, a copy of which may be viewed at:
http://www.tivilon.com/legal/pdp.pdf
All payments shall be made in U.S. currency, without credit, set-off or reduction.
- Delinquent Payment: Reseller is bound to Tivilon's Customer Payment & Adjusted Rates Policy, a copy of which may be viewed at:
http://www.tivilon.com/legal/pdp.pdf
In the event any amount due to Provider remains unpaid for 30 days after presentation of invoice, Provider may discontinue, withhold or suspend Solutions to Reseller and/or any or all of its Customers to whom such unpaid amounts relate if traceable, otherwise to all of Reseller's Customers. Reseller shall indemnify and hold Provider harmless from and against any and all liabilities and expenses that may be incurred by Provider arising out of or related to the discontinuation, withholding or suspension of Solutions pursuant to this Section. Reseller shall be responsible for all reasonable costs of collection incurred after written notice of late payment, including reasonable legal fees, whether or not litigation is commenced.
- Property Rights
As between Provider and Reseller, Provider owns all right, title and interest in and to the Solutions and Provider's trade names, trademarks, service marks, inventions, copyrights (whether registered or not), trade secrets, patents, know-how and other intellectual property rights relating to the design, function, marketing, promotion and provision of services by Provider, and in the related hardware and software systems. Provider makes no claim to any trade names, service marks, inventions, copyrights, trade secrets, patents, or know-how acquired without infringing Provider's rights and used by Reseller to promote and provide Solutions to Reseller's Customers. Except as provided in Section 2 (a) herein, this Agreement does not constitute a license to Reseller to use Provider's trademarks, trade names or service marks. In any printed literature or publication issued by Reseller in which any reference is made to Provider, the Solution or to any trademark or trade name relating thereto, there shall be included in legible type a statement informing the reader of the proprietorship of the trademark and of any patent rights, the form thereof to be agreed upon in writing with Provider.
- Confidentiality
Reseller acknowledges that by reason of its relationship with Provider hereunder, it may have access to certain information and materials relating to Provider's business, plans, customers, pricing, customer complaints, technology, marketing strategies and any other confidential information of Provider, which value would be impaired if such information were disclosed to third parties. Reseller agrees that it will not use in any way for its own account or for the account of any third party, nor disclose to any third party, any such information revealed to it by Provider. Reseller further agrees that it will take every reasonable precaution to protect the confidentiality of such information that in every case will be at least as protective as the precautions Reseller takes to protect its own most confidential information. In the event of termination of this agreement, there shall be no use or disclosure by the Reseller of any such confidential information in its possession, and all confidential materials shall be returned to Provider or destroyed. The provisions of this section shall survive the termination of the agreement for any reason. Upon any breach or threatened breach of this section, Provider shall be entitled to injunctive relief, which relief shall not be contested by Reseller.
- Indemnification
Reseller shall indemnify and hold Provider harmless from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against Provider, its agents, customers, officers and/or contractors that arises from or relates to (i) any claims arising from the marketing, promotion, or distribution of any Solution; (ii) any failure by Reseller to comply with any of its representations, warranties or obligations set forth in this Agreement; or (iii) any other improper or unauthorized act or failure to act on the part of Reseller or its agents.
- Limitation of Liability
- Provider may discontinue servicing any Solution, or may require the fulfillment of reasonable conditions that Provider may choose to impose as a prerequisite for continuing to service any Solution. Provider agrees to provide Reseller with reasonable notice via e-mail and/or and fax of any such intent to discontinue or impose conditions.
- Services provided by Provider to Reseller and Customers shall be deemed accepted for all purposes thirty (30) days after presentation of invoice for such services to Reseller, if no written claim or objection regarding such services has been received by Provider within said thirty (30) day period. No claim related to such accepted services shall be made or be enforceable against Provider.
- Reseller will take all necessary measures to preclude Provider from being made a party to any lawsuit or claim regarding the Solutions provided to any Reseller or Customer.
- PROVIDER SHALL IN NO EVENT BE LIABLE TO RESELLER, ANY CUSTOMER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR ANY OTHER INDIRECT LOSS OR DAMAGE, INCLUDING LOST PROFITS, ARISING OUT OF THIS AGREEMENT OR ANY OBLIGATION RESULTING HEREFROM, OR THE USE OR PERFORMANCE OF ANY SERVICE, WHETHER IN AN ACTION FOR OR ARISING OUT OF ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. NO ACTION OR PROCEEDING AGAINST PROVIDER MAY BE COMMENCED MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION ARISES. PROVIDER'S LIABILITY HEREUNDER TO RESELLER AND CUSTOMER SHALL IN NO EVENT EXCEED IN THE AGGREGATE AN AMOUNT EQUAL TO THE SOLUTION RATES THEN PAID BY SUCH RESELLER OR CUSTOMER. THIS CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
- Term and Termination
- Term: This Agreement will continue in effect for one (1) year from the Effective Date, and will automatically renew for additional one (1) year periods unless terminated in accordance with the terms hereof.
- Termination for Cause: This Agreement may be terminated by either party for cause immediately by written notice upon the occurrence of any of the following events:
- If the other party ceases to do business, or otherwise terminates its business operations, provided, however, all payment obligations of Reseller to Provider hereunder shall survive such termination;
- If the other party becomes insolvent or seeks protection under any bankruptcy receivership trust deed, creditor's arrangement composition or comparable proceeding, or if any such proceeding is instituted against the other and not dismissed within thirty (30) days; or
- If either Party breaches any material provision of this Agreement (including, without limitation, failure to pay any fees or other charges when due) and fails to fully cure such breach within thirty (30) days (ten (10) days in the case of failure to pay) of written notice describing the breach.
- Termination by Provider: Without limitation of Sections 9 (a) and 9 (b), Provider may terminate this Agreement immediately if
- Reseller breaches its confidentiality obligations hereunder; or
- Reseller fails to perform or abide by any of its obligations under this Agreement, including, but not limited to, the provisions set forth in Solutions & Pricing pertaining to Customer Sales Support, Customer Billing, Project Management and Technical Support; or
- Reseller fails to promptly secure or renew any license registration, permit, authorization or approval for the conduct of its business in the manner contemplated by this Agreement or if any such license, registration, permit, authorization or approval is revoked or suspended and not reinstated within thirty (30) days.
- Effect of Termination: Upon termination of this Agreement for any reason, Reseller will
- Immediately cease sales of new orders of Solutions; and
- Remit all fees due to Provider within twenty (20) days of such termination; and
- Return to Provider any of Provider's Confidential Information in the possession or under the control of Reseller (including without limitation any Solutions not paid for).
- General Provisions
- Assignment: This Agreement may not be assigned by Reseller or by operation of law, and Reseller may not subcontract or assign any of its rights, duties, or obligations hereunder, to any other person, persons, firms, or corporations without the express written approval of Provider.
- Notices: Any notice required or permitted to be sent hereunder shall be in writing and shall be sent in a manner requiring a signed receipt such as authenticated facsimile transmission, overnight courier delivery, or if mailed, then mailed by registered or certified mail, return receipt requested. Notices shall be sent to the persons who signed on the cover sheet, at the addresses listed on the cover sheet, unless a Party changes its address by notice given pursuant to this Section 10(b). Copies of all notices to Provider shall be sent contemporaneously with the delivery of the original notice to Provider and in the same manner to Tivilon, Inc., Attention: Mark Zawodny, P.O. Box 854, College Park, MD 20741, Fax: 240.209.0529.
- Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflicts of law provisions thereof. The exclusive forum for any disputes arising out of or relating to this Agreement shall be an appropriate federal or state court sitting in Prince George's County, Maryland.
- Relationship of the Parties: Each party is acting as an independent contractor and not as an agent, partner, or joint venture with the other party for any purpose. Except as provided in this Agreement, neither party shall have the right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
- Survival of Certain Provisions: The following provisions shall survive the termination of the Agreement by either party for any reason: Sections 1, 2(d), 7, 8, 9, and this Section 10.
- Headings: The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify or place any construction upon or on any of the provisions of this Agreement.
- All Amendments in Writing: No provisions in any business forms employed by either party (including without limitation any Purchase Orders executed hereunder) will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.
- Entire Agreement: The parties have read this Agreement and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications, oral or written, and all other communications between them relating to the license and to the subject matter hereof. No representations or statements of any kind made by either party, which are not expressly stated herein, shall be binding on such party.
- Partial Invalidity: Should any of this agreement be held to be void, invalid or inoperative, the remaining provisions of this Agreement shall not be affected and shall continue in full force and effect.
Solutions and Pricing
- Solutions: The Solutions shall be those categorized as Identity Design, Web Site Design/Development, Application Design/Development, Database Design/Development, E-commerce, Internet Advertising, or Other Marketing as described at the Provider's web site. From time to time Provider may increase, decrease or otherwise change those Solutions. Any such change will be posted on Provider's web site.
- Pricing: Please contact Tivilon for a list of current rates or a customized quote for a particular project.
Reseller may set the prices paid to it by Customer. Provider has the right to revise its prices to Reseller with (10) days written notice. Such revisions shall apply to orders received by Provider on or after the effective date of this revision.
- Customer Care:
- Customer Sales Support: Reseller shall be solely responsible for Customer sales and sales support and all costs incurred in connection therewith.
- Customer Billing: Reseller shall be solely responsible for the process of, and any costs incurred during, the collection of funds from the Customer.
- Project Management and Technical Support: Reseller shall be responsible for providing administration, training, and support to the Customer. At no charge to Provider, Reseller shall be the sole contact for all maintenance and support requests from Customers of the Solutions, and shall provide maintenance and support to all of Customers in accordance with Provider's then current published software support policy, if any. Reseller shall not refer any Customers directly for maintenance and support requests that Reseller cannot fulfill, but shall communicate such maintenance and support requests to Provider, together with contact information for the Customer requesting support. Provider shall, at its sole discretion, respond directly to the Customers or provide a response to Reseller, which response Reseller shall promptly communicate to the Customers.
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