[INTERACTIVE INTELLIGENCE LOGO]
RESELLER AGREEMENT
THIS RESELLER AGREEMENT (this "Agreement"), effective July 8, 1998
(hereinafter "Effective Date") by and between Interactive Intelligence, Inc.
(hereinafter "Publisher"), a corporation organized under the laws of Indiana,
with principal offices located at 0000 XxXxxx Xxxx., Xxxxx 0000,
Xxxxxxxxxxxx, XX 00000, and NHancement Technologies Inc. (hereinafter
"Reseller"), a corporation organized under the laws of Delaware, with
principal offices at 00000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Publisher is willing to supply Reseller with software and related
training and certification to allow Reseller to deliver Publisher's
client/server computer telephony software (the "Products") to end-user
customers;
WHEREAS, Reseller represents that it is in the process of developing certain
members of its workforce to become technically skilled and experienced at
marketing, licensing and supporting client/server computer telephony
solutions of the type for which it is to be appointed as a reseller by
Publisher;
WHEREAS, Reseller either operates directly, has majority-owned subsidiaries
or controls certain affiliated companies which operate, offices for
consulting, selling and/or supporting the Products at locations identified at
Exhibit A attached hereto and made a part hereof (the "Authorized Locations")
or such other locations that may be identified and mutually agreed to from
time to time, which Reseller represents have facilities and competently
trained staff necessary for the marketing, sales and support of such Products;
WHEREAS, Reseller wishes to procure the rights to produce copies of the
Products from a master copy provided by Publisher in order to provide
solutions to its customers which may include the fulfillment of software,
hardware, consulting services, implementation services, support and/or
training as an authorized reseller of the Products under the terms and
conditions of this Agreement;
NOW, THEREFORE, the parties agree as follows:
SECTION 1
DEFINITIONS
When used in this Agreement, the following capitalized terms shall have the
meanings set forth in this Section:
1.1 "PROGRAM LEVEL." Publisher appoints resellers at one of two Program
Levels, either "Reseller Partner" or "Premier Partner" depending upon
Reseller's qualifications and level of commitment to Publisher. Premier
Partner shall execute and abide by the Premier Partner terms as defined in
Exhibit B, attached hereto and made a part hereof.
1
1.2 "PROGRAM LICENSE FEE." Publisher's annual fee for active, ongoing
participation in one of Publisher's reseller programs as listed in the
then-current Reseller Price list and as amended from time to time by
Publisher.
1.3 "PRODUCTS." Publisher's software packages consisting of (1) program
code in machine-readable form recorded on electronic media; (2) a copy of the
standard end-user documentation for such programs; (3) an End-User License
Agreement setting forth license terms and establishing the rights and
obligations of an End-User with respect to such programs; and (4) other
written materials or electronic media relating to the programs and
documentation, in a form ready to be supplied to customers of Reseller.
1.4 "END-USER." Customer of Reseller who has executed an End-User
License Agreement and who has acquired Products directly from the Reseller
for its own use (and not for resale, re-marketing, timesharing, or service
bureau use) in accordance with the terms of Publisher's End-User License
Agreement.
1.5 "RESELLER PRICE LIST." A list of Publisher's prices to be paid by
Reseller, for program and Products and as amended from time to time by
Publisher.
1.6 "TECHNICAL SUPPORT." Technical assistance provided by Reseller
through telephone support or at Reseller's locations relating to installation
or use of Products by End-Users. Technical Support is to be provided by
personnel of Reseller who have been trained and certified by Publisher.
1.7 "PUBLISHER'S WARRANTY." The limited warranties with respect to the
Products as defined in Section 9 hereof.
SECTION 2
RESELLER'S APPOINTMENT
2.1 APPOINTMENT OF RESELLER. Publisher hereby appoints Reseller as a
reseller of the Products at the Authorized Locations specified in Exhibit A
or such other locations as may be identified and mutually agreed upon from
time to time, subject to the terms and conditions hereof. Reseller shall be
authorized to market, license, install, support and/or deliver services based
on Products at the Authorized Locations. With regard to the geographical area
in which Reseller can resell the Products from each specified Authorized
Location, it is agreed and understood that Reseller can resell the Products
to any location in North America. At such time as Reseller can reasonably
demonstrate to Publisher that Reseller has the ability to market, license,
install and support the Products to End-Users in other countries, Reseller
shall be permitted to apply for authorization to carry on such activities in
such countries by signing a copy of the Interactive Intelligence
International Reseller agreement.
2.2 PROGRAM LEVEL. The terms of Publisher's appointment of Reseller,
and Reseller's rights, shall be at the Program Level of "Reseller Partner" as
defined by the current reseller program and as amended from time to time by
Publisher at its discretion, unless and until Publisher and Reseller have
mutually executed Exhibit B.
2.3 NON-EXCLUSIVE. While this Agreement is in effect and at all times
thereafter, Publisher shall have the unrestricted right to appoint other
resellers to license the Products for installation in any industry or
territory, including those in which Reseller operates. Publisher will not
2
appoint a Reseller's End User to license the products as a Reseller partner
without written notification to Reseller.
SECTION 3
RESELLER'S OBLIGATIONS
3.1 PROGRAM APPLICATION. Reseller represents and warrants that all the
information provided on its membership application for the Publisher's
reseller program is true and correct and warrants that the information will
continue to be so during the term of this Agreement. Should there be any
material changes in such information during the term of this Agreement,
Reseller agrees to promptly inform Publisher in writing, detailing such
changes.
3.2 BUSINESS PLAN. Reseller shall submit an annual business plan for
approval by Publisher within 30 days of the Effective Date or date of renewal
of this Agreement using Publisher's then-current business plan form. Reseller
acknowledges that a failure to submit such business plan may be grounds for
termination or non-renewal of this Agreement. Reseller represents that it will
use its best good faith reasonable business efforts to develop and implement
such business plan as approved by Publisher, provided, however, that the
failure to meet the goals or projections set forth in such annual business
plan shall not, of itself, constitute grounds for termination of this
Agreement.
3.3 DEMONSTRATION FACILITIES. Reseller shall maintain at its cost and
expense suitable demonstration facilities at which Products will be installed
within 90 days of the Effective Date of this Agreement. Such facilities
shall be comprised of appropriate compatible servers and associated
peripheral equipment and system software in good and operating condition.
3.4 CERTIFIED PERSONNEL. Reseller warrants that at all times it will
employ a sufficient number of, but in no event less thant two (2), full-time
technicians and one (1) full-time sales professional trained and certified by
Publisher on the Products, subject to the need from time to train
replacements for former or disabled employees. Reseller further warrants that
it will maintain at least one engineer trained and certified on the Products
at each Authorized Location located more than 250 miles from Reseller's
principal offices, or have a Publisher approved plan for providing local
service and support for these areas. Reseller shall bear the expense of such
training including travel, lodging, and personnel costs of Reseller's
employees.
3.5 TECHNICAL SUPPORT. Reseller agrees to offer first-level Technical
Support of Products for its customers, billable at Reseller's discretion at
reasonable terms and conditions, as follows: (i) Reseller shall provide
Technical Support to its customers, whether over the telephone, via
electronic mail, the internet or otherwise, regarding the use of Publisher's
Products; and (ii) Reseller shall offer and make available such Technical
Support to its customers 24 hours-per-day, 7 days-per-week. Any Technical
Support provided by Reseller to End-Users shall be provided by personnel of
Reseller that have been trained and certified by Publisher. Publisher shall
provide back-up support on a customer-by-customer basis only for those that
(i) have Product currently under Publisher's Warranty, or (ii) that have
purchased a maintenance version of a software license for which Reseller has
paid Publisher. At its sole discretion, Publisher may refer back to Reseller
for Reseller's prompt handling of any inquiries received by Publisher from
Reseller's customers.
3.6 CUSTOMER SATISFACTION. Reseller agrees to maintain an acceptable
level of customer satisfaction. Publisher reserves the right to contact
3
Reseller's customers directly from time to time and survey Reseller's
customers for overall satisfaction.
3.7 SALES QUOTA. Reseller acknowledges that a failure to achieve the
minimum volumes defined in Exhibit C may be grounds for termination of this
agreement. With regard to Reseller's status as a Premier Partner, Publisher
shall be entitled to evaluate Reseller's progress quarterly. In the event
that Reseller fails to meet the Sales Quota for two (2) consecutive quarters,
Publisher may notify Reseller in writing that Reseller has been placed on a
minimum six (6) month probation as a Premier Partner. Reseller shall then
submit to Publisher, within thirty (30) days of such notice, a satisfactory
plan to meet the Sales Quota as a Premier Partner. If Publisher determines,
in it's good faith discretion, that Reseller has not made satisfactory
progress within the probation period, or has not met the applicable Sales
Quota for four (4) consecutive quarters following the probation notice, then
Publisher may terminate this agreement upon ten (10) days written notice to
Reseller. If Reseller achieves the assigned Sales Quota for Premier Partner
status for the following two (2) consecutive quarters, Reseller shall be
re-instated as a Premier Partner.
3.8 ORDERS. Reseller shall prepare and submit orders to Publisher
within two (2) business days of having received a valid order, contract or
End-User License Agreement from an End-User customer. Reseller's orders shall
be submitted (by written correspondence, electronic form, e-mail, or
facsimile) using Publisher's standard order form consistent with the terms
hereof and as otherwise approved by Publisher. Upon acceptance by Publisher,
Reseller's orders shall constitute binding commitments to accept and pay for
the number and type of Products stated therein, in accordance with the terms
and conditions hereof. Any terms or conditions contained in Reseller's
orders other than the number and type of Products that Reseller is ordering
shall not be binding unless accepted in writing by Publisher. Any conflict
between the terms and conditions of this Agreement and the terms and
conditions of any order or other communication submitted by Reseller to
Publisher shall be resolved in favor of the terms and conditions of this
Agreement.
3.9 END-USER DELIVERABLES. Reseller agrees to provide each End-User
with all Product warranty terms, limitations of liability, and license terms
as defined and provided by Publisher. Reseller further agrees to deliver
Products to each End-User in their entirety, reproduced accurately in their
current release on quality materials and free from any and all defects in
accordance with the original Products as provided by Publisher.
3.10 RETURN OF PRODUCTS. Reseller agrees to accept returns of opened
Products that are defective provided the Publisher's Warranty covers same and
Publisher performs all warranty obligations to Reseller. Opened Products that
are returned to Reseller by its customers solely by reason of defects may be
returned to Publisher, insured and shipping prepaid by Reseller, for
processing in accordance with the warranty provisions of this Agreement.
3.11 COMPLIANCE WITH LAWS. Reseller warrants that it shall, at its own
expense, (i) comply with any and all laws applicable to its activities and
obligations under this Agreement and (ii) without limiting the generality of
the foregoing, obtain and maintain in force at all times all licenses,
registrations and other reports and authorizations applicable to Reseller's
activities and obligations under this Agreement.
SECTION 4
RESELLER INTERNAL-USE SOFTWARE
4.1 DEVELOPER LICENSE. During the term of this Agreement, Publisher
grants Reseller a non-exclusive, non-transferable, royalty-free, software
4
license of Product, which shall terminate with the termination of this
Agreement (the "Developer License") for: (i) use in prototyping and/or
developing custom applications; (ii) providing demonstrations to End-Users
and potential End-Users; and (iii) testing and debugging such applications.
This Developer License is for Reseller internal-use only and is limited to:
(a) a single server license at each Authorized Location and; (b) a total of
five (5) Call Center User Licenses. The Developer License is software only
and does not include required hardware.
4.2 RESELLER'S INTERNAL-USE LICENSE. During the term of this Agreement
Publisher shall license the Products to Reseller, pursuant to the execution
of an End-User License Agreement, solely for Reseller's internal use (the
"Reseller End-User License"). The Reseller End-User License shall survive
termination of this Agreement. While this Agreement is in effect, Reseller
may purchase non-exclusive, non-transferable, royalty-free, terminable
Reseller End-User Licenses and maintenance at a discount of 50% on the
then-current List Price as defined in the Reseller Price List. The Reseller
End-User License is software only and does not include required hardware.
Upon termination of this Agreement any further obligations of Publisher with
respect to the Products subject to the Reseller End-User License shall be at
the then-current List Price.
4.3 DEMONSTRATION SOFTWARE. Reseller may use multiple copies of each
Product at any Authorized Location for demonstration purposes. Further,
full-time representatives of Reseller may use copies of each Product in the
field for demonstrations.
SECTION 5
LEAD DISTRIBUTION AND REPORTING
5.1 LEAD DISTRIBUTION. Publisher may, at its discretion, transmit lead
information to Reseller. Reseller agrees to take appropriate action regarding
said leads within ten (10) business days of receipt of such information from
Publisher. Should Reseller fail to act upon leads provided by Publisher, then
Publisher reserves the right to reassign any such leads to another reseller,
or act directly thereupon for its own benefit. Nothing herein obligates
Publisher to provide lead information to Reseller, other than to Premier
Partners as defined in Exhibit B.
5.2 FOLLOW-UP REPORTS. Reseller agrees to submit follow-up reports to
Publisher, in a manner to be prescribed by Publisher, that explain the status
of leads supplied to Reseller by Publisher.
5.3 FORECAST REPORTS. Reseller agrees to submit monthly revenue
forecast reports to Publisher, in a manner prescribed by Publisher and as
amended from time to time by Publisher, that detail the status of Reseller's
prospective business for Publisher's products.
SECTION 6
PRICING AND PAYMENT
6.1 PROGRAM LICENSE FEE. Reseller shall pay Publisher an annual Program
License Fee according to the then-current Reseller Price List as defined by
Publisher. Publisher reserves the right to amend the Reseller Price List at
any time upon thirty (30) days prior written notice to Reseller. If Reseller
and Publisher renew this Agreement (and executed Exhibits, if any), pursuant
to Section 11.1 hereof, then the current Program License Fee shall be due and
payable on each anniversary of the Effective Date. Reseller shall be
responsible for paying any taxes
5
applicable to such licenses, except those assessed on the net income of
Publisher.
6.2 RESELLER TRANSFER PRICE. The Reseller Transfer Price shall be in
accordance with Publisher's then-current Reseller Price List (referred to
herein as "Reseller Transfer Price"). All published prices are transfer
prices only. Publisher may increase or decrease its Reseller Transfer Prices
at any time upon thirty (30) days prior written notice to Reseller. Any such
change will apply to purchase orders placed with Publisher after the
effective date of such change. Reseller shall have the benefit of any price
decrease on accepted orders the scheduled shipment date for which is at least
thirty (30) days following the effective date of the price decrease, and
provided Reseller submits a change order notice to Publisher to effect such
change.
6.3 PAYMENT TERMS. All payments hereunder shall be made in U.S.
dollars within thirty (30) days from date of invoice. Late payments, except
as excluded in paragraph 7.3, are subject to a late payment charge of two
percent (2%) per month. Reseller shall receive a discount of one and one-half
(1 1/2%) from the then-applicable Transfer Price if Reseller's Order, as
submitted in accordance with Section 3.8 hereof, is accompanied by payment
for such order.
6.4 TAXES. Reseller shall be responsible for, and shall hold Publisher
harmless from, the payment of any taxes applicable with respect to the
Products provided hereunder, except for taxes imposed on the net income of
Publisher. Reseller shall provide Publisher with a current copy of Reseller's
permit showing that sales of Products to Reseller hereunder are exempt from
any state or local sales or use tax.
SECTION 7
PUBLISHER'S DELIVERY OF PRODUCTS
7.1 SHIPMENT AND PACKING. Unless otherwise agreed, Publisher shall, at
its expense, promptly fill Reseller orders and package Products in accordance
with Publisher's customary procedures. Reseller shall bear sole
responsibility for all other costs and expenses associated with shipment of
Products. Unless Reseller designates a preferred carrier, shipment shall be
by a carrier selected by Publisher. Products shall be shipped F.O.B. point of
shipment. Risk of loss of the tangible embodiment of the Products shall pass
to Reseller at the time of delivery to Reseller.
7.2 INVOICES. Publisher shall invoice Reseller upon receipt of order
for all Products ordered or upon shipment, whichever is later.
7.3 DELIVERY. Publisher shall devote reasonable efforts to ship the
Products within ten (10) days after receipt and acceptance of the order
pertaining to such Products.
SECTION 8
PROPRIETARY RIGHTS OF PUBLISHER
8.1 NO TRANSFER OF RIGHTS. All use of the Products by Reseller shall be
subject to the terms and conditions of the End-User License Agreement
included with each Product. This Agreement shall not be construed to grant to
Reseller any right, title, or interest in any intellectual property rights
embodied in or associated with the Products or any right to copy or modify
the Products except as set-forth in this Agreement. Under no circumstances
shall Reseller decompile the object code portion of the Products to a source
code version.
6
8.2 PROHIBITION ON LOANS OR ACCESS. Reseller agrees not to loan, rent,
or provide access to the Products, for a fee or otherwise, to any third party
for the purpose of any execution, use, or copying of such Products not
authorized by the End-User License included with each Product.
8.3 SURVIVAL OF PROVISIONS. The provisions of this Section 8 shall
survive termination of this Agreement for any reason.
SECTION 9
LIMITED WARRANTY; LIMITATION OF LIABILITIES AND REMEDIES
9.1 SCOPE OF WARRANTY; DISCLAIMER. Publisher warrants that, for the
term of one year from the execution of this Agreement and in accordance with
Section 9.4 hereof, the Products shall conform to the technical and
operational specifications set forth in its then-current Product
specifications, and shall be free in material respects from defects in
material and workmanship; provided, however, that the foregoing warranties
are expressly contingent (and shall otherwise be void) upon installation and
use of the Products strictly in accordance with such specifications and
without Reseller's misuse, damage, alteration, or modification thereto.
Publisher further warrants that it owns or has the right to license the
Products and enter into this Agreement. Warranty on any third party products
provided to Reseller by Publisher will be provided by the original
manufacturer of those products. THE WARRANTIES SET FORTH IN THIS SECTION 9.1
ARE IN LIEU OF ALL OTHER WARRANTIES AND PUBLISHER DISCLAIMS ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9.2 EXCLUSIVE REMEDY. As Reseller's exclusive remedy for any defect or
nonconformity in the Product, Publisher shall at Publisher's expense,
promptly repair or replace the Products containing such defect or
nonconformity (referred to hereinafter as "Affected Products"). In
furtherance of such undertaking, if Reseller reasonably believes that any
Product contains a defect or nonconformity for which Publisher is
responsible, Reseller shall inform Publisher of the nature of such defect or
nonconformity in reasonable detail and shall request authorization from
Publisher to return the Affected Products to Publisher for repair or
replacement. All Products so returned shall be shipped prepaid to Publisher's
facility or authorized service center. If Publisher fails to repair or
replace the Affected Products within a reasonable time after Reseller has so
returned them to Publisher, Reseller shall be entitled to repayment or credit
of the original price of the defective or nonconforming Product as its
exclusive further remedy.
9.3 LIMITATION OF LIABILITY. The liability of Publisher to Reseller
for any claim whatsoever related to the Products or this Agreement, including
any cause of action sounding in contract, tort, or strict liability, shall
not exceed the total amount of payments made to Publisher hereunder in
connection with the individual sale from which the claim arose. Regardless of
any other breach hereunder or any other claim by Reseller against Publisher,
Publisher in no event shall be liable to Reseller for any loss of profits;
any incidental, special, exemplary, or consequential damages; or any claims
or demands brought against Reseller by any other party (except as
specifically provided in Section 9 hereof), regardless of whether Publisher
has been previously advised of the possibility of such claims or demands. The
foregoing limitation shall not apply in the event of willful misconduct by
Reseller in connection with misappropriation, disassembling, decompiling or
reverse engineering of any of the Products, or any portion thereof, by
Reseller, or willful misconduct by Publisher in connection with its
obligations hereunder.
7
9.4 REPORTING OF WARRANTY CLAIMS. Reseller shall report all claims
based on breach of Section 9.1 hereof, including all defects or
non-conformities in the Products, to Publisher within the warranty period. In
its report to Publisher, Reseller shall describe the nature of its claim in
reasonable detail and shall specifically identify all Affected Products and,
if such claim arose after Reseller's delivery of such Products to its
customers, the identity of the customers having purchased any Affected
Products and the date of delivery or shipment of such Products by Reseller to
such customers. Reseller shall be entitled to no remedy at law or equity with
respect to any claim that Reseller has failed to report within such
limitations period.
9.5 WARRANTY TO END-USERS. Warranties and limitations on warranties
and related license terms respecting undertakings to End-Users of the
Products shall be as set forth in the End-User License Agreement included
with the Products, which warranties shall be no less extensive than as
contained herein, and which limitations on warranties shall be no less
restrictive than as contained herein. Reseller shall be entitled to assert
any breach of warranty claims that an End-User might have on behalf of that
End-User during the period in which End-User is covered by the warranty of
Publisher.
SECTION 10
INDEMNITIES
10.1 INDEMNITY BY PUBLISHER. Notwithstanding any other provision of
this Agreement, Publisher hereby indemnifies and shall hold harmless Reseller
from and against any claim, actions, costs, losses, and liabilities
(including, without limitation, reasonable attorney's fees) arising from
allegations that the Products supplied hereunder infringe any U.S. patent,
trademark, copyright or trade secret rights of any third party, and Publisher
shall pay resulting reasonable costs, damages, and attorney fees finally
awarded by a court of competent jurisdiction.
10.2 INDEMNITY BY RESELLER. Reseller hereby indemnifies and shall hold
harmless Publisher from and against any and all claims, actions, costs,
losses, and liabilities based on or arising out of (i) any false or
misleading statements made by or on behalf of Reseller to an End-User with
respect to the Products, except for statements that are a direct and correct
reference to information in the Product documentation and marketing materials
provided by Publisher, or (ii) any willful misconduct in connection with
the misappropriation, disassembling, decompiling, or reverse engineering of
any of the Products, or any portion thereof, by Reseller, or (iii) any
willful misconduct by Reseller constituting a material breach or violation
hereof by Reseller, and Reseller shall pay resulting reasonable costs,
damages, and attorney fees finally awarded by a court of competent
jurisdiction.
10.3 CONDITIONS TO INDEMNIFICATION. The foregoing indemnities are in
addition to rights otherwise arising hereunder, but shall be expressly
contingent on (i) the party seeking indemnify providing prompt notice to the
indemnifying party of any claim, demand, or cause of action for which
indemnity is sought and (ii) the indemnifying party shall fully control the
defense, negotiations or settlement of any and all claims, demands, or
actions.
8
SECTION 11
TERM AND TERMINATION
11.1 TERM OF AGREEMENT. This Agreement shall commence on the Effective
Date, and shall continue for the period of two years (the "Initial Term").
The Program License Fee will remain annual and will be invoiced annually. All
Exhibits initially or subsequently executed by both parties as relate to this
Agreement shall become effective as of the date such Exhibits are accepted by
Publisher. This Agreement shall be extended automatically for successive one
(1) year terms unless one party notifies the other in writing of termination
at least 6 months prior to the anniversary date hereof. Notwithstanding the
foregoing, Publisher may assign Reseller a revised annual Sales Quota,
established in good faith and consistent with revisions applicable to other
resellers at the same Program Level, in writing for each succeeding one (1)
year term.
11.2 TERMINATION FOR CAUSE. Either party may terminate this Agreement
if the other party commits a material breach of any of the terms hereof which
is subject to cure by providing the other party with 30 days' written notice
of such termination, including the nature of the breach upon which such
notice is based. If the party receiving such notice cures the alleged breach
within said 30-day period, the notice shall be deemed null and void.
Notwithstanding the above, this Agreement shall terminate immediately without
notice in the event of any of the following: (i) Reseller reverse engineers,
disassembles or decompiles any Product to a source code version, or attempts
the same; or (ii) Reseller impermissibly transfers or assigns its rights or
rights to the Products.
11.3 CONTINUING OBLIGATIONS. Notwithstanding termination or expiration
in the Agreement, Reseller's obligation to pay for all Products provided
hereunder shall continue. Any obligations, duties, or rights that by their
nature extend beyond the expiration or termination of this Agreement,
including Reseller's right to provide support, maintenance, development,
upgrades and enhancements to Products, shall survive any expiration or
termination and remain in effect and Publisher shall provide such technical
support as may be reasonably required at Publisher's then-current fee
structure to enable Reseller to exercise such rights for inventory on hand at
time of notice of termination.
SECTION 12
MISCELLANEOUS
12.1 NOTICES. All notices, demands, or other communications between
the parties hereunder shall be in writing (by mail or facsimile) or
electronic transmission as and when permitted by this agreement, postage or
transmission costs prepaid, and shall be addressed to the parties at their
Notice Addresses set forth below. All such notices, orders, acceptances and
communications shall be deemed properly given when received by the party to
whom it is addressed.
Until changed by written notice given in accordance with the terms of this
Agreement, the Notice Addresses of the parties shall be as follows:
9
PUBLISHER: RESELLER:
Interactive Intelligence, Inc. NHANCEMENT Technologies Inc.
0000 Xxxxxx Xxxx., Xxxxx 0000 00000 Xxxxxxx Xx., Xxxxx 000
Xxxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Phone No. : 000-000-0000 x000 Phone No.: 000-000-0000
Fax No.: 000-000-0000 Fax No.: 000-000-0000
E-mail: xxxxx@xxxxx-xxxxxxx.xxx E-mail: xxxxxxxx@XXXX.xxx
xxxxxxxx@xxxxxxxxx.xxx
Attention: Director, Channel Dev. Attention: Xxxxxxx Xxxx, Exec Vice
President & CFO
Xxxxx Xxxxxxx, Vice
President, Sales
12.2 TRADEMARKS. All trademarks, service marks, trade names, logos or
other works or symbols identifying the Publisher's Products or business (the
"Marks") are and will remain the exclusive property of the Publisher or its
licensors, whether or not specifically recognized or perfected under the laws
of the United States, or elsewhere. Reseller will not take any action that
jeopardizes Publisher or its licensors' proprietary rights or acquire any
rights in the Marks, except the limited use rights verified in this
Agreement. Reseller will not register, directly or indirectly, any
trademarks, service marks, trade names, copyrights, company name or other
proprietary or commercial right which is identical or confusingly similar to
the Marks.
Reseller may identify itself as an "Interactive Intelligence Reseller
Partner" or "Premier Partner," as applicable, and use the Marks designed by
Publisher in designation of the program in the United States and/or Canada in
connection with Reseller's activities under this Agreement. The appropriate
trademark symbol, either "-TM-" (standard trademark) or "-Registered
Trademark-" (registered trademark), shall be used whenever Publisher's
product name is mentioned in any advertisement, brochure, or material
circulated or published in any form whatsoever by Reseller. The appropriate
trademark symbol must be used in conjunction with, at least, the first
reference to each Publisher product in all Reseller circulation or
publications. Publisher reserves the right to amend any Xxxx and agrees to
notify Reseller of any such amendments that are relevant to Reseller's
business.
Publisher reserves the right to require Reseller to submit all related
Product advertising and marketing material to Publisher for review and
approval prior to use. Publisher also reserves the right to require Reseller
to discontinue use of any such advertising and marketing materials that
Publisher reasonably believes will have a detrimental effect on Publisher's
business.
12.3 CONFIDENTIALITY. Each party agrees that all source code,
inventions, algorithms, and know-how it obtains from the other, as well as
all other business, technical and financial information it obtains from the
other are the confidential property of the disclosing party ("Proprietary
Information"). Proprietary Information shall also include other information,
whether written or oral, that by its nature is such that the parties, being
sensitive to the need to protect the confidential information of the other,
should inquire as to its confidential status (unless upon inquiry the party
is advised that the information is not confidential). Except as expressly
allowed herein, the receiving party will hold in confidence and not use or
disclose any Proprietary Information except to employees for whom access is
necessary in order to perform their jobs in accordance with the purposes of
this Agreement, and even then all
10
such employees shall be subject to written agreements similarly binding them.
Notwithstanding the foregoing, Proprietary Information shall not include any
information which (i) is or falls within the public domain without fault of
the recipient (ii) is hereafter rightfully obtained by the recipient from a
third party without breach of any obligation to the disclosing party; (iii)
the recipient independently develops by employees without access to or the
benefit of any Proprietary Information as shown by documentary evidence; or
(iv) is produced in compliance with applicable law or the requirement of any
judicial, legislative or regulatory authority, provided that the recipient
first gives the disclosing party written notice of such law or order in order
that the disclosing party may have an opportunity to object and/or attempt to
limit such production.
12.4 NO ASSIGNMENT. Reseller shall not assign this Agreement without
the prior written consent of Publisher other than to a successor for
substantially all its business, providing that such successor is not a direct
competitor of Publisher as determined in the sole discretion of Publisher.
Any such impermissible attempt by Reseller to assign any of the rights,
duties, or obligations of this Agreement without such consent is void.
12.5 SEVERABILITY. If any provision or provisions of this Agreement
shall be held to be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
12.6 APPLICABLE LAW AND CONSENT TO JURISDICTION. This Agreement shall
be deemed to be made in the State of Indiana and shall in all respects be
interpreted, construed, and governed by and in accordance with the laws of
the State of Indiana without regard to principles of conflicts of law.
12.7 INDEPENDENT CONTRACTORS. The parties to this Agreement are
independent contractors and are not partners, co-venturers, agents or
representatives of each other. Neither party shall have the power to bind the
other, nor shall either party misstate or misrepresent its relationship
hereunder.
12.8 NO WAIVER. Neither party shall, by mere lapse of time, without
giving notice or taking other action hereunder, be deemed to have waived any
breach by the other party of any of the provisions of this Agreement.
Further, the waiver by either party of a particular breach of this Agreement
by the other shall not be construed as nor constitute a continuing waiver of
such breach or of breaches of the same or other provisions of this Agreement.
12.9 FORCE MAJEURE. Neither party shall be in default if its failure to
perform any obligation hereunder is caused solely by supervening conditions
beyond that party's reasonable control; provided, however, that in order to
avail itself of the excuse from performance under this Section, the party
seeking such excuse shall demonstrate diligence in attempting to remedy any
such supervening conditions.
12.10 EXHIBITS. All exhibits referred to in and attached to this
Agreement are a part of this Agreement and are incorporated herein by
reference.
12.11 ENTIRE AGREEMENT. The parties hereto acknowledge that this
Agreement is the complete and exclusive statement of their agreement and
supersedes all prior understandings and other communications between the
parties relating hereto. This Agreement may be amended only by a subsequent
11
writing that specifically refers to this Agreement and that is signed by both
parties.
12.12 RESELLER'S APPROVAL. As long as Reseller is performing in
accordance with assigned quotas, Publisher will not license into the I3
Reseller Program, any organization, which has been established with Voice
Plus employees as its principals, for a period of one (1) year from the
termination date of said employee without the prior written consent of
VoicePlus.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized representatives as set for forth below.
[PUBLISHER] [RESELLER]
INTERACTIVE INTELLIGENCE, INC. NHANCEMENT TECHNOLOGIES INC.
By: By: /s/ Xxxxxxx X. Xxxx
------------------------------- -----------------------------
Name: Name: Xxxxxxx X. Xxxx
----------------------------- --------------------------
Title: Title: Executive VP & CFO
---------------------------- --------------------------
Date: Date: July 8, 1998
--------------------, 19 --- --------------------------
12
EXHIBIT A
RESELLER'S AUTHORIZED LOCATIONS
Reseller designates the following as outlets to be approved by Publisher as
Authorized Locations for marketing, selling, and supporting Publisher's
Products (attach list if more than six):
SEE ATTACHMENT A FOR ADDITIONAL LOCATIONS
Location Name/Number:_________________ Location Name/Number:_________________
Voice Plus ______________________________________
Name
00000 Xxxxxxx Xxxxxx ______________________________________
Xxxxxxx, XX 00000 Street Address
______________________________________
City, State, Zip Code
Phone Number 000-000-0000 ______________________________________
Telephone Number
Contact Xxxxx Xxxxxxx ______________________________________
Contact
E-mail Xxxxxxxx@xxxxxxxxx.xxx ______________________________________
E-mail
Location Name/Number:_________________ Location Name/Number:_________________
______________________________________ ______________________________________
Name Name
______________________________________ ______________________________________
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
______________________________________ ______________________________________
City, State, Zip Code City, State, Zip Code
______________________________________ ______________________________________
Telephone Number Telephone Number
______________________________________ ______________________________________
Contact Contact
______________________________________ ______________________________________
E-mail E-mail
Location Name/Number:_________________ Location Name/Number:_________________
______________________________________ ______________________________________
Name Name
______________________________________ ______________________________________
Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
______________________________________ ______________________________________
City, State, Zip Code City, State, Zip Code
______________________________________ ______________________________________
Telephone Number Telephone Number
______________________________________ ______________________________________
Contact Contact
______________________________________ ______________________________________
E-mail E-mail
13
EXHIBIT B
"PREMIER PARTNER" TERMS
By agreeing to and observing the terms and conditions of this "Premier
Partner" Exhibit, Reseller shall be designated at the Program Level of
"Premier Partner".
SECTION B-1
RESELLER'S OBLIGATIONS AS A "PREMIER PARTNER"
B-1.1 REQUIREMENTS COMMITMENT. Reseller shall, during the term hereof,
seek to procure from Publisher Reseller's entire requirements for products of
a same or similar type as the Products, except to the limited extent Reseller
is unable to satisfy its requirements for such products by obtaining Products
from Publisher.
B-1.2 SALES PROFESSIONALS. Reseller warrants that at all times it will
employ a sufficient number of, but in no event less than two (2), full-time
sales professionals that market and sell the Products, subject to the need
from time to time to train replacements for former or disabled employees.
Reseller further warrants that it will maintain at least one (1) sales
professional that markets and sells the Products at each Authorized Location
located more than 250 miles from Reseller's principal offices.
B-1.3 CERTIFIED TECHNICAL PERSONNEL. Reseller warrants that at all
times it will employ a sufficient number of, but in no event less than four
(4), full-time technicians trained and certified by Publisher on the
Products, subject to the need from time to time to train replacements for
former or disabled employees. Reseller shall bear the expense of such
training including travel, lodging, and personnel costs of Reseller's
employees.
SECTION B-2
RESELLER INTERNAL-USE SOFTWARE
B-2.1 RESELLER INTERNAL-USE LICENSE. Upon execution of this Exhibit,
Publisher grants Reseller a non-exclusive, non-transferable, royalty-free,
terminable software license of Product (the "Reseller Internal-Use License")
for internal-use only and limited to; (i) a single EIC Server Bundle license
for use at one (1) location and; (ii) a total of thirty (30) station and
corresponding Business User Plus workstation licenses. The delivery of the
Reseller Internal-Use License by Publisher is subject to the execution by
Reseller of an End-User License Agreement which shall contain the terms and
conditions of the Reseller End-User License. The Reseller End-User License is
software only and does not include required hardware. Reseller may purchase
additional licenses for internal-use at a discount of 50% of the then-current
List Price as defined in Section 4.2 of this Agreement.
SECTION B-3
SALES QUOTA
B-3.1 SALES QUOTA. Reseller acknowledges that a failure to achieve the
Sales Quota defined in Exhibit C may be grounds for termination as a "Premier
Partner" and related benefits and reassignment to the "Reseller Partner"
level, but shall not constitute a breach or default.
14
IN WITNESS WHEREOF, the parties have caused this Exhibit B to be executed
by their duly authorized representatives.
[Publisher] [Reseller]
Interactive Intelligence, Inc. NHancement Technologies Inc.
______________________________________ /s/ Xxxxxxx X. Xxxx
Signature --------------------------------------
Xxxxxxx X. Xxxx
______________________________________ Executive Vice President & CFO
Title
______________________________________ July 8, 1998
Date
15
EXHIBIT C
RESELLER SALES QUOTA
Reseller shall maintain a minimum quarterly purchase volume during the term
of this Agreement (the "Sales Quota"). The Sales Quota is subject to change
and may be adjusted by Publisher upon renewal of this Agreement.
Following is the minimum quarterly and annual Sales Quota assigned to
Reseller under the terms and conditions of this Agreement:
VOICE PLUS--FREMONT________________________________VOICE PLUS--DALLAS______
Location Name/Number Location Name/Number
1st Q $100K 1st Q $ 0K
------------- ----------------------
2nd Q $100K_150K 2nd Q $ 0K
------------- ----------------------
3rd Q $150K_250K 3rd Q $ 50K
------------- ----------------------
4th Q $250K_250K 4th Q $ 50K
------------- ----------------------
VOICE PLUS--ARIZONA________________________________VOICE PLUS--UTAH______
Location Name/Number Location Name/Number
1st Q $ 0K 1st Q $ 0K
--- ---------- ----------------------
2nd Q $ 0K 2nd Q $ 0K
------ ------- ----------------------
3rd Q $ 50K 3rd Q $ 50K
--------- ---- ----------------------
4th Q $ 50K 4th Q $ 50K
------------- ----------------------
VOICE PLUS--NEW YORK_______________________________VOICE PLUS--GEORGIA______
Location Name/Number Location Name/Number
1st Q $ 0K 1st Q $ 0K
--- ---------- ----------------------
2nd Q $ 0K 2nd Q $ 0K
------ ------- ----------------------
3rd Q $ 50K 3rd Q $ 50K
--------------- ----------------------
4th Q $ 50K 4th Q $ 50K
------------- ----------------------
TOTAL SALES QUOTA: = $ 1,250,000
----------------------
***As an incentive to increase the productivity in all remote locations,
Reseller is hereby granted three (3) additional training credits for the
first year only. Note: Questions: These are wholly owned subsidiaries or
controlled affiliates. Billing will be centralized through NHancement
Technologies Inc. in Fremont, CA. Sales quotas can be aggregated and/or
allocated
IN WITNESS WHEREOF, the parties have caused this Exhibit to be executed
by their duly authorized representatives.
[Publisher] [Reseller]
Interactive Intelligence, Inc. NHancement Technologies Inc.
/s/ Xxxxxxx X. Xxxx
---------------------------------- --------------------------------
Signature Signature
Xxxxxxx X. Xxxx
---------------------------------- ---------------
----------------------------------
Name Name
----------------------------------
CFO
----------------------------------
Title Title EXEC. VP & CFO
---------------------------------- --------------------------------
Date Date July 8, 1998
16
Exhibit A Attachment
Voice Plus
EXHIBIT A ATTACHMENT
Voice Plus
00000 Xxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000
Voice Plus
-----------------------------
0000 X. Xxx xx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Voice Plus
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Voice Plus
000 Xxxxxxx Xxx., Xxxxx 0000
Xxx Xxxx, XX 00000-0000
Voice Plus
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Voice Plus
0000 X. Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Voice Plus
00000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Voice Plus
000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Voice Plus
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
17
