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This agreement
("Agreement") is made effective as of the DD day of
MONTH, YYYY, by and between Ohioedge, an Ohio Limited Liability
Company (hereafter referred to as "Ohioedge"), located
at 668 Echo Drive, Mayfield Village, Ohio 44040 and
_________________ (hereafter referred to as "Reseller")
having its principal place of business at
______________________________________________________________.
1.1
Ohioedge is engaged in the business of developing and selling
computer software and services known as the "Product(s)"
as more specifically set forth in Exhibit A hereto; and
1.2
Reseller intends to sell the Product(s) to their customers with
primary business located in the "Region(s)" as more
specifically set forth in Exhibit B hereto; NOW
THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
2. Appointment:
Ohioedge hereby appoints Reseller as a non-exclusive agent for
Region(s) defined in Exhibit B, authorized to sell, market and
support those Product(s) defined in Exhibit A pursuant to the
terms and conditions of this Agreement. Ohioedge reserves the
right to make direct sales and to appoint other agents to sell,
market and support the Product(s) without notice or liability to
Reseller.
3. Term Agreement: The term of this agreement
shall be for a period of twelve (12) months starting on Effective
date (the "Initial Term"). Upon expiration of the
Initial Term, this Agreement shall automatically renew on a
month-to-month basis unless terminated by either party upon thirty
(30) days written notice of termination to the other party.
4.
Ohioedge’s Obligations:
4.1 Ohioedge hereby agrees that:
Ohioedge shall make available Product(s) as referenced in Appendix
A to Reseller for the purpose of resell by Reseller to Reseller’s
customer base. Ohioedge will supply Product(s) and any upgrades,
enhancements thereto or new releases thereof in appropriate
delivery form.
4.2 Ohioedge shall make available to Reseller
pertinent sales and market information, such as leads specific to
the Reseller's region, and assistance.
4.3 To assist in
Reseller’s sales efforts, Ohioedge will provide technical
support on the product on a need basis.
4.4 Ohioedge will
provide reasonable support to Reseller in pre and post sales
activities.
4.5 If Ohioedge makes any corrections,
enhancements, modifications and/or updates to the Product(s),
Ohioedge shall promptly make all such corrections, enhancements,
modifications and/or updates available to Reseller free of charge.
Ohioedge may discontinue the manufacture or sale of any Product(s)
or format, without incurring any liability whatsoever, including
any obligation to install or modify the same.
4.6 on
Product(s) previously ordered by Reseller. Ohioedge shall use
reasonable efforts to notify Reseller thirty (30) days in advance
of the discontinuation of any of the Product(s). Ohioedge shall
use reasonable efforts to provide Reseller with thirty (30) days
prior written notice of any new products.
5 Reseller hereby
represents and warrants that:
5.1
Reseller is familiar with the market for Ohioedge’s products and
that it is presently qualified to further the sales and provide
support of such Products in its marketing area, or that it shall
within a reasonable period of time develop such expertise.
5.2
Every calendar year, Reseller will purchase and attend a minimum
three-day Ohioedge Training Product(s) as set forth in Appendix A
hereto.
5.3 Reseller will maintain Ohioedge’s reputation and
goodwill. Reseller agrees and acknowledges that it will not in any
way misrepresent or disparage the Product(s). Reseller will not
sell any product(s) until it is officially "launched" by
Ohioedge.
5.4 During the term of this agreement and and any
renewals thereof and for a period of one year thereafter, Reseller
agrees not to engage in any kind of direct of indirect business
transactions or relationships with Ohioedge Suppliers without a
written permission from one of the managing officers of Ohioedge.
Ohioedge Suppliers are the individuals or legal entities that
assist Ohioedge with the design and or development of Ohioedge
Product(s) and or delivery of Ohioedge Product(s) to Resellers and
typically know the trade-secrets of Ohioedge.
5.5 During the
duration of this agreement and any renewals thereof and for a
period of one year after the termination of this agreement,
Reseller agrees not to create, sell or service under its own brand
name a line of products referencing, using, or in any way based
around Ohioedge Product(s) and or directly or indirectly work or
represent any individual or legal entity that offers products
referencing, using, or in any way based around Ohioedge
Product(s).
5.6 During the duration of this agreement and any
renewals thereof, Reseller will designate at least one individual
("the Ohioedge coordinator") who will be responsible for
coordinating all aspects of the Ohioedge line. Reseller shall have
the right to change the Ohioedge coordinator at any time, but
Reseller shall give notice in writing to Ohioedge within five
business days of any change in the Ohioedge coordinator. The
initial Ohioedge coordinator for Reseller will
be:__________________________________________.
6 Price
6.1
Ohioedge will supply licenses for Product(s) as they are requested
by Reseller. Reseller will remunerate Ohioedge in full according
to the individual resellers discount level off of Ohioedge’s
MSRP pricing as set forth in Appendix C hereto.
6.2 In the
regions served by Reseller, Ohioedge agrees not sell Ohioedge
Product(s) at prices lower than MSRP pricing as set forth in
Appendix C.
6.3 Ohioedge reserves all rights to set and or
modify prices for Ohioedge Product(s). Ohioedge however agrees to
inform Reseller about any such price change for at least five
business days in advance.
7 Payment and Purchase
Orders
7.1 Reseller will pay for all Products obtained from
Ohioedge in accordance with the terms and conditions set forth
herein. Reseller shall make all payments due to Ohioedge for
Product(s) prior to shipment. All payments shall be made in US
dollars.
8 Use of Trademarks and Trade Names
8.1 During
the term of the agreement, Reseller is authorized to use
Ohioedge’s trademarks, trade names and logos in connection with
Reseller’s sales, advertisement and promotion of the Products.
Upon termination of this agreement Reseller shall cease to use any
of such marks, names or logos and shall, within a reasonable time,
remove any references to Ohioedge from its advertising and
promotional material. Reseller shall provide Ohioedge, for its
prior review and written approval, all promotional, advertising,
business cards, printed other material using or displaying the
Ohioedge name or marks referring to Ohioedge. Reseller shall not
modify any material once approved by Ohioedge without first
obtaining Ohioedge’s prior written approval of such
modification. Reseller agrees to modify, at its own expense, any
such material as specified by Ohioedge.
9 Patent, Trademark
and Copyright Indemnity
9.1 Ohioedge hereby indemnifies and
holds Reseller harmless from and against any patent, trademark,
copyright or other intellectual property right of any third party.
Reseller shall permit Ohioedge to replace or modify any affected
Product(s) so as to avoid infringement, or to procure the right
for Reseller to continue use and remarketing of such items. If
neither of such alternatives is reasonably possible, Ohioedge’s
sole liability shall be to refund amounts paid therefore by
Reseller. Ohioedge shall have no obligation hereunder for or with
respect to claims, actions or demands alleging infringements that
arise by reason of combination of non-infringing items with any
items not supplied by Ohioedge.
10 Limitation of Liability
& Warranty
10.1 IN NO EVENT SHALL OHIOEDGE OR RESELLER BE
LIABLE FOR ANY INDIRECT, SPECIAL INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT, THE SERVICES PERFORMED, OR ANY OTHER MATTER RELATED
HERETO, INCLUDING WITHOUT LIMITATION, LOST BUSINESS OR LOST
PROFITS WHETHER FORESEEABLE OR NOT, EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitation of
liability in this section shall not apply to any provision of this
Agreement obligating a party to defend , indemnify, hold harmless
or reimburse the other party.
10.2 Except as otherwise
expressly set forth herein, Ohioedge makes no representations or
warranties of any kind, whether express or implied, for the
Product(s) and disclaims any warranties of any kind, including but
not limited to any warranty of title, merchantability,
non-infringement or fitness for a particular purpose. Ohioedge’s
sole obligation under this warranty is to use reasonable efforts
to correct or replace any non-conforming Licensed Software or, in
Ohioedge’s sole discretion, to require return of such Licensed
Software and refund to Reseller all amounts paid by Reseller
hereunder with respect to such non-conforming License Software.
Warranty claims must be made within ten (10) business days after
the thirty (30) day warranty period and must be made by Reseller
and not end-users.
10.3 THE EXPRESS WARRANTY AND THE REMEDIES
SET FORTH IN PARAGRAPH 10.2 ARE EXCLUSIVE. THEY ARE IN LIEU OF ANY
OTHER WARRANTIES OR REMEDIES, EXPRESS, IMPLIED OR STATUTORY.
OHIOEDGE SHALL HAVE NO LIABILITY FOR BREACH OF ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FOR BREACH OF ANY IMPLIED WARRANTY
OF FITNESS FOR A PARTICULAR PURPOSE.
11 Independent
Contractor and Indemnification
11.1 Ohioedge and Reseller agree
that they are Independent contractors without the power or
authority to bind, contract or commit the other party and will
represent themselves to any third parties only as such.
12
Taxes
12.1 Reseller shall be solely responsible for payment of
all federal, state and foreign taxes, including sales taxes, that
may be due on any sales of the Product(s) to their customers.
13
Termination
13.1 Either party shall have the right to terminate
this Agreement, with or without cause, upon ninety (90) days
written notice to the other party.
13.2 This Agreement may be
terminated immediately for cause by either party if Ohioedge or
Reseller (i) shall become insolvent or files for bankruptcy
protection; (ii) ceases to function as a going concern or to
conduct its operation in the normal course of business; (iii)
assigns or transfers, either voluntarily or by operations of law,
any or all of its rights and obligations under this Agreement
without having obtained the prior written consent of the other
party, whose consent shall not be unreasonably withheld; (iv)
fails to perform any of its obligations under this agreement so as
to be in default hereunder and fails to cure such default within
thirty (30) days written notice thereof.
13.3 Governing Law and
Dispute Resolution
This Agreement will be governed by and
construed in accordance with the laws of the State of Ohio.
14.
Dispute
14.1 Any dispute, controversy or claim arising out of
or relating to this agreement shall be finally settled by
arbitration in Cleveland, Ohio in accordance with the Commercial
Arbitration Rules of the American Arbitration Association in
effect on the date of this Agreement and any judgment upon the
award rendered by the arbitrator(s) may be entered in any court
having jurisdiction over the parties hereto.
15 Complete
Agreement
15.1 This Agreement and its Exhibits contain the
complete and exclusive agreement between the parties and supersede
all other prior or contemporaneous written or oral communications
between the parties relating to the subject matter hereof.
15.2
This Agreement shall not be revised, modified or amended except by
written amendment signed by Ohioedge and Reseller.
16
Notices
16.1 All notices, requests, demands and other
communications under this agreement shall be in writing and shall
be deemed to have been duly given if delivered or if mailed, by
United States certified or registered mails prepaid, to the
parties at the following address, or at such other address as may
be in given in writing in the future by either party to the other.
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17 Force
Majeure
17.1 Neither party shall be liable for any delay or
failure in performance due to Force Majeure, which shall include
without limitation acts of God, earthquake, labor disputes,
changes in law, regulation r government policy, riots, war, fire,
epidemics, acts or omissions of vendors or suppliers, equipment
failures, transportation difficulties, or other occurrences which
are beyond the delayed parties reasonable control, provided that
the delayed party provides the other party with prompt notice of
such delay.
18. Assignment
18.1 Reseller may not assign
or transfer any of its rights or obligations under this Agreement
without the express, prior written consent of one of the managing
members of Ohioedge. Ohioedge or its affiliates or subcontractors
may perform some or all of the services provided hereunder. For
purposes of this Agreement, an "affiliate" shall mean
any company controlling, controlled by, or under common control
with a party.
19. Separate Counterparts
19.1 This
agreement may be executed in two or more counterparts, and each
such counterpart shall be deemed an original.
IN WITNESS
WHEREOF, the parties hereto have executed this agreement the day
and year written below.
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