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Reseller License Agreement

Revision Date: June, 2011

 

THIS RESELLER AGREEMENT (this "Agreement"), is made and entered into by and between the purchaser or subscriber (hereinafter referred to as "Reseller"), and MH & A, LLC. (hereinafter referred to as "Owner").

Owner and Reseller hereby agree as follows:

Article 1

PURPOSE

1.1 This Agreement sets forth the terms and conditions under which Reseller shall provide, and Owner shall receive, assistance in marketing the Program Offerings.

1.2 The Program Offerings consist of programs in executable or usable form and operator materials as described in this document. The Program Offerings consist of Copyable Materials, which consist of a custom set of software programs and documentation, provided to Reseller in copyable form for Reseller for providing Isis CMS as a service directly to End Users.

1.3 Publications, which consist of books, periodicals, audio and visual publi­cations, and any other materials, other than documentation included in the Isis CMS software package, offered by Owner to End Users of the Program to aid or enhance their use of Isis CMS software, whether provided to Reseller in preprinted, deliverable form or in the form of master media for Reseller to use.

Article 2

SCOPE

2.1 Owner hereby grants Reseller a non-exclusive right and license to use, execute, display, perform, market, and otherwise install (both internally and to End Users) copies of, and prepare derivative works of, the Copyable Materials (including derivative works thereof) to provide as a service. The foregoing includes all rights necessary for (1) copying and distributing the Copyable Materials for purposes of the lease, or license to End Users in the Territory, (2) demonstration or training activities in support of such distribution, and (3) the support or maintenance of End Users.

2.2 With respect to any Publications, Owner (1) appoints and authorizes Reseller to act as its non-exclusive agent for the sale, lease, or license of any Publications, out of the inventory of preprinted copies of the Publications provided by Owner to Reseller for such purpose, and (2) grants Reseller a non-exclusive right and license to use, execute, reproduce, display, perform, market, and otherwise distribute (both internally and to End Users) copies of, and prepare derivative works of, any Publications (including derivative works thereof) provided to Reseller in the form of master media.

2.3 Reseller may assign its rights and responsibilities under this Agreement to its parent corporation, subsidiaries or affiliates, in whole or in part, and may appoint or engage further distributors, dealers and/or agents to provide additional marketing assistance and/or support services.

Article 3

END-USER AGREEMENT

3.1 Form of Agreement. Reseller shall cause each End User to receive an End-User Agreement covering the Program Offerings it is provided. The form of End-User Agreement shall be modified by Owner to indicate that (1) Reseller has sole authority for establishing and collecting fees and charges there under, (2) Owner shall provide End Users with maintenance and support, (3) Reseller may offer services with respect to the Program Offerings.

3.2 The End-User Agreement shall be either pre-executed by Owner or authorized for execution by each End User without any requirement of execution by Owner, so that it becomes effective upon execution by the End User. Reseller shall periodically forward a copy of the fully executed copy to Owner for its records.

Article 4

OBLIGATIONS

4.1 Custom Modifications. If Reseller determines that the modification of commands, instructions or text material in the Program Offerings, including screen displays, output reports, and operator materials, to comply with industry business practices or End User requirements is important for the effective distribution of the Program Offerings, it shall so notify Owner. Owner agrees to take all reasonable and available steps to produce the requested modifications on a mutually agreeable, prompt timetable. In the event Owner declines or fails to produce such modifications, Reseller may, at its sole option, (i) attempt to distribute the Program Offerings in their current form, (ii) at its own expense but with Owner's cooperation and assistance, produce such modifications through its own efforts, or (iii) decline to distribute the Program Offerings.

4.2 Direct Services. Owner shall make available and provide to End Users the maintenance and support. Reseller is authorized to provide any further types of upgrades, maintenance and support for the benefit of End Users, at its own expense through the use of its own resources.

4.3 Marketing Support. Owner shall provide sales phone support, promotional materials and training, and participate in trade shows, industry events, and joint marketing calls with Reseller, as set forth in the form of a contract or agreement (to be created on a 'per-needed' basis).

4.4 Updated Versions. Owner shall make and introduce to Reseller for distribution updated versions of the Program Offerings including fixes, enhancements, and new releases or editions, of the same nature and on the same timetable as the updated versions made and introduced with respect to the Owner's other versions of the Program Offerings (if any). Owner shall notify Reseller at least 90 days before such updated versions are introduced and shall provide with such notice specifications of the updated versions in any form reasonably available.

Article 5

PROCEDURES

5.1 Demonstration Copies. Owner shall promptly provide Reseller, at no cost, copies of the Program Offerings in executable or usable form, accompanied by demonstration instructions, for Reseller's use in marketing, demonstration, training, maintenance, and support.

5.2 Internal Use License. To the extent Reseller wishes to acquire copies of the Program Offerings for productive use by Reseller, its subsidiaries, or affiliates, Reseller may do so for the fee it would pay Owner if they were leased, or licensed as a service to End Users.

5.3 Order Procedure. With regards to hard copies and print materials, Owner shall accept and fill Purchase Orders (submitted by Reseller by express reference to this Agreement) on the timetables and in accordance with the delivery procedures specified by Reseller from time to time. In the event Owner is unable for any reason to deliver the Program Offerings in the quantities and on the dates specified in any Purchase Order, Owner shall so notify Reseller within 5 days after receipt of the Purchase Order and shall propose an alternative delivery schedule in closest compliance with the terms requested by Reseller. Within 2 days, Reseller shall accept such alternative delivery schedule or cancel the Purchase Order, in each case in whole or in part and without liability. Reseller may delay any scheduled delivery date up to 30 days upon giving written notice to Owner at least 7 days prior to the scheduled delivery date.

5.4 Delivery and Acceptance. Owner shall deliver the Program Offerings via F.O.B. the location or locations (for hard copies and print) specified by Reseller from time to time in the pertinent Purchase Orders. Reseller may open, inspect, and test any number of Program Offerings to determine whether each shipment meets required quality levels, including 100% defect-free condition of all materials and media. If any shipment contains defects, Reseller may return some or all of the Program Offerings in the shipment, and, at Reseller's option, require Owner to replace such Program Offerings or refund any amounts paid by Reseller for such Program Offerings.

5.5 Updated Versions. Owner shall deliver any updated versions of the Program Offerings, including fixes, enhancements, and new releases or editions, for up to 90 days after the original Reseller subscription date.

5.6 Master Set. With regards to hard copies and print materials, Owner shall deliver to Reseller F.O.B. the location or locations specified by Reseller from time to time in the pertinent Purchase Order, at the time or times specified therein, master copies of the Program Offerings, which shall be in a form suitable for copying of all software programs contained in the Program Offerings, and shall include camera ready copies of all documentation, packaging, and promotional materials relating to the Program Offerings. Owner shall also deliver to Reseller any instructional materials necessary for Reseller to copy and produce Program Offerings in a form appropriate for delivery to End Users. Additional copies of such materials shall be made available on an expedited basis upon request in the event the master copies delivered prove to be defective.

Article 6

PAYMENTS

6.1 Payments for Programs.

Reseller will pay a monthly fee (determined at time of purchase) for their Reseller copy of Isis CMS. The Reseller may then sell it as a SERVICE for any amount they see fit.

6.2 Payment for Social Media Application Servers.

For each copy of the Publications leased, or licensed by Reseller to an End User (as reflected in Reseller's administrative and accounting records), Reseller shall pay Owner $10 per month to access Social Media Application Servers provided by Owner. These proprietary servers act as interfaces between Isis CMS and various Social Media Websites.

6.3 Adjustments.

Owner shall promptly inform Reseller of any changes in its pricing. The payment amount shall reset on January 1 of each year based on Owner's list price for the Program Offerings as in effect on December 1 of the immediately preceding year, if such date is representative of current pricing. Notwithstanding the foregoing, if during any calendar year Owner releases an updated version of the Program Offerings with substantially enhanced or additional functions at a new list price, Reseller will pay the amount provided above based on this new list price for any copies of such updated version that Reseller subsequently leases, or licenses to End Users.

6.4 Accounts and Auditing. Reseller is responsible for all accounting with regards to their services and offers.

6.5 End-User Prices. Reseller shall have sole responsibility for establishing and collecting, and shall be entitled to retain, all fees and charges applicable to End Users for the lease, or license of the Program Offerings hereunder, or any services provided by Reseller, its subsidiaries, distributors, dealers, or agents in connection therewith.

6.6 Taxes. With respect to any applicable property, sales and use, or similar taxes that are imposed for the sale, lease, or license of the Program Offerings by Reseller, Reseller shall collect, report, and pay to the relevant taxing authority, and indemnify Owner for any liability relating to, such taxes and charges.

6.7 Costs and Charges. Except as expressly provided in this Agreement, Owner shall not be entitled to any payment, cost reimbursement, or other assistance or compensation from Reseller for the Program Offerings or the obligations of Owner hereunder, and each party shall bear all its own expenses incurred in rendering performance, including facilities, work space, computers and computer time, utilities, management, clerical, reproduction services, supplies, and the like.

Article 7

TERMS

7.1 Term. The term of this Agreement shall commence upon its execution by both Owner and Reseller and shall continue for the remainder of the calendar year and for two full calendar years thereafter, unless earlier terminated pursuant to Article 7.2. Following such original term, this Agreement shall automatically renew for successive one-year renewal terms unless terminated pursuant to Article 7.2

7.2 Termination. This Agreement may be terminated only (1) by either party, in the event that the other party has committed a material breach of any of its obligations hereunder which has not been cured within 60 days after the breaching party has received notice thereof, (2) by either party upon the end of the original or any renewal term, provided such party gives written notice at least 90 days prior to the end of such term, or (3) by mutual written agreement of the parties.

7.3 Survival. Notwithstanding any termination of this Agreement, Owner's obligations concerning support and maintenance under Article 4.2, Reseller's obli­gations to pay for prior sales, leases, and licenses under Articles 6.1 and 6.2, Owner's assurances under Articles 8.1 and 8.9, and the general limitations contained in Article 8.4, shall survive and continue in effect in accordance with their terms.

Article 8

MISCELLANEOUS

8.1 Warranties. Owner represents and warrants, on a present and ongoing basis, that (1) Owner has all intellectual property rights in the Program Offerings necessary to enable Reseller to provide the assistance contemplated by this Agree­ment, to sell, lease, or license the Program Offerings to End Users in the Territory, and to perform its other obligations under this Agreement, (2) Owner's commitments and the rights and privileges granted to Reseller hereunder do not conflict with any other agreement or legal obligation of Owner, (3) the Program Offerings have been prepared with professional skill and diligence, meet the requirements of the descriptive materials provided by Owner to Reseller and/or the End Users, and conform to all quality and performance standards established by Owner for the Program Offerings, and (4) Owner has not, in entering this Agreement, relied on any promises, inducements or representations of Reseller except for those expressly stated in this Agreement.

8.2 Confidential Information. Unless otherwise agreed to in writing signed by the authorized representatives of both parties, neither party shall provide the other party with information that is confidential or proprietary to itself or any third party. Accordingly, no obligation of confidentiality of any kind is assumed by, or shall be implied against, either party by virtue of its discussions and/or correspondence with the other party, or with respect to any information received (in whatever form or whenever received) from the other party under this Agreement or in activities related thereto.

Notwithstanding the foregoing, Owner agrees to keep in strict confidence the terms and conditions of this Agreement for a period of three years from the date of execution of this Agreement, except for disclosures required by law, necessary to establish or assert rights hereunder, or authorized in writing by Reseller.

8.3 Administrators. The parties each hereby designate an Administrator to receive notices, payments, and any other contact between the parties pursuant to this Agreement.

Owner's Administrator is:

  • Edwin Huertas - V. President of MH&A, LLC.

 

Reseller's Administrator is:

  • Isis CMS Reseller Version Purchaser


Either party may change its Administrator pursuant to written notice to the other party containing an express reference to this Agreement.

8.4 Limitations. Neither party shall be entitled to indirect, incidental, nor consequential damages, including lost profits based on any breach or default under this Agreement. This limitation shall not apply to any liabilities of Owner for warranty matters or infringement or any liabilities based on obligations to third parties. In no event shall Reseller be liable under this Agreement to Owner or its successors and assigns for damages exceeding the amounts payable and as yet unpaid by Reseller under this Agreement in accordance with its terms.

8.5 Freedom of Action. Nothing in this Agreement shall be construed as prohibiting or restricting either party from independently developing or acquiring and marketing materials and/or programs which are competitive with the Program Offerings.

8.6 No Guarantee of Marketing Success. Reseller makes no representations, warranties, or promises, express or implied, to Owner as to the success of its marketing efforts pursuant to this Agreement or with respect to the amount of payments that may accrue under the terms of this Agreement. Reseller shall have full freedom and flexibility in the design and implementation of its marketing program including, without limitation, the selection of market channels, the timing and sequence of product announcements and roll-out programs, the level of effort to be devoted, the determination of pricing strategy, the specification of maintenance and support terms and conditions, and the offering of products in connection with or as a part of other software products and systems and with any computer hardware equipment.

8.7 Compliance With Laws. Except to the extent such obligation is expressly assumed by Reseller, Owner shall, at its own expense, comply with any laws relating to the sale, lease, or license of the Program Offerings, and shall procure all licenses and pay all fees and other charges required thereby. Both Owner and Reseller shall limit their actions hereunder, and Owner shall require each End User to limit its actions under the End-User Agreement, to conform to applicable laws regarding the export or re-export of any information, or any process, product, or service, to countries specified as prohibited destinations, including the Regulations of the U.S. Department of Commerce and/or the U.S. State Department, to the extent applicable.

8.8 Most Favorable Treatment. Owner warrants to Reseller that the rates and terms under this Agreement concerning the sale, lease, license, or remarketing of the Program Offerings shall not exceed those offered by Owner to others for similar work, services, or products. Owner agrees that if, while this Agreement is in effect, Owner offers to any other person or entity similar work, services, or products at lesser rates or terms, Owner shall immediately so notify Reseller and thereupon and thereafter Reseller shall receive such lesser rates and terms for all remaining work, services, or products.

8.9 Indemnity. Owner agrees to protect, defend, hold harmless, and indemnify Reseller, its subsidiaries, and their customers from and against any and all claims, damages, liabilities, losses, and expenses, arising out of any actual or alleged (1) defect or non-conformity of the Program Offerings, (2) non-compliance of Owner with the terms of the End-User Agreement or any other agreement between Owner and any third party, (3) non-compliance of Owner or the Program Offerings with applicable laws, or (4) breach of Owner's obligations under this Agreement. Owner shall pay all damages, settlements, expenses, and costs, including costs of investi­gation, court costs, and attorney fees, incurred in connection with such payment, provided that such payment shall be contingent on (1) notice by Reseller to Owner in writing of such claim, (2) cooperation by Reseller with Owner in the defense thereof, at Owner's expense, and (3) Reseller's obtaining Owner's prior written consent of any settlement by Reseller of such matters, which consent shall not be unreasonably withheld.

8.10 Independent Contractor. Owner is and shall remain an independent contractor with respect to all work completed pursuant to this Agreement. Neither Owner nor any employee of Owner shall be considered an employee or agent of Reseller for any purpose.

8.11 No Assignment. Owner may not sell, transfer, assign, or subcontract any right or obligation set forth in this Agreement without the prior written consent of Reseller. Any act in derogation of the foregoing shall be null and void.

8.12 Governing Law. The validity, construction, and performance of this Agreement will be governed by the substantive law of the State of Texas.

8.13 Amendments in Writing. No amendment, modification, or waiver of any provision of this Agreement shall be effective unless it is set forth in a writing which refers to the Agreement by number and the provisions so affected and is executed by an authorized representative of both parties. No failure or delay by Reseller in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy.

8.14 Entire Agreement. Owner agrees that it has assessed the opportunity for marketing the Owner Materials independently of any representation or information provided by Reseller. The provisions of this Agreement constitute the entire agreement between the parties and supersede all prior agreements, oral or written, relating to the subject matter of this Agreement except any agreements specifically referenced herein. Any terms contained in Owner invoices, acknowledgments, shipping instruc­tions, or other forms shall be void and of no effect.

 


 

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