BEST SOFTWARE, INC.
LINKED SOFTWARE DEALER AGREEMENT
This Agreement is made between Best Software, Inc. of 00000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxx, XX 00000 ("Best") and Made2Manage Systems, Inc. of 0000 Xxxxxx
Xxxx, Xxxxx 000 Xxxxxxxxxxxx, Xxxxxxx 00000 ("Made2Manage"), subject to the
general terms and conditions set forth in Schedule B (the "General Terms and
Conditions"). For purposes of this Agreement, the term Best shall mean Best
Software, Inc. and its wholly owned subsidiaries, including without limitation
Abra Software, Inc. d/b/a the Abra Products Group.
WHEREAS, Best publishes computer software products including those Best
products ("Best Products") and third party products ("Other Products") listed on
Schedule A, as such Schedule may be modified (collectively, the "Products").
Made2Manage publishes and/or distributes software that is complementary to the
Products. Best and Made2Manage desire that Made2Manage act as an independent,
nonexclusive dealer in the Products.
THEREFORE, the parties agree as follows:
1. APPOINTMENT.
1.1 Scope. Best hereby appoints Made2Manage, and Made2Manage hereby accepts
such appointment, as an independent, nonexclusive dealer in the Products. In
conjunction with such appointment, Best grants to Made2Manage a nontransferable,
nonexclusive license to demonstrate and distribute the Products to End-Users.
"End-Users" are existing Made2Manage software licensees or bona fide Made2Manage
software prospects that sublicense a Product from Made2Manage for their own use.
Distribution to End-Users shall be pursuant to Best's End-User license agreement
and, in the case of the Other Products, to any requirements of the applicable
third party vendors. Made2Manage's distribution license does not transfer any
rights in any Product to Made2Manage or to any End-User and excludes sublicense
of its distribution rights by Made2Manage to any third party; provided, however,
that Made2Manage shall have the limited right to distribute the Product through
its resellers with whom it has an agreement.
1.2 Reserved Rights. Best reserves the right, from time to time and in its
sole discretion, (a) to increase or decrease the number of authorized dealers,
(b) to distribute Products directly to independent resellers and End-Users, or
(c) to change, or to add to or delete from the list of Products. In addition,
Best may from time to time impose special conditions concerning Made2Manage's
licensing of certain Products, or change or terminate the type of service or
support that Best makes available, after giving prior written notice to
Made2Manage; provided that Made2Manage's End-Users shall at all times during and
after the term of this Agreement be entitled to receive the same support being
provided to Best's general customer base for the same Products, as long as they
pay the appropriate fee therefor.
1.3 Export. Made2Manage will be solely responsible for compliance with any
applicable export control laws or regulations, and payment of any tariffs or
other fees that may be required in connection with distribution of any Product
outside of the United States. Best shall have no obligation under this
Agreement to directly distribute any Product outside of the United States. All
Products will be supported in US format only. Made2Manage shall be solely
responsible for international returns.
2. PRICE.
2.1 Prices. The current Best retail prices for the Products are as set
forth on the then-current applicable published Best Product Price Sheet. A copy
of the current applicable published Best Product Price Sheets have been provided
to Made2Manage as of the date of this Agreement. The discount applicable to the
Products is as set forth on Schedule A. Best may change the Best retail prices
at any time and may change the Made2Manage discount at any time after the
initial term of this Agreement; provided, however, that Best may increase the
price of Product to Made2Manage only after giving thirty days prior notice to
Made2Manage. Payment shall be made to Best by Made2Manage pursuant to the
payment policy set forth below. Made2Manage shall be solely responsible for
establishing the price at which Products are licensed or sold to its End-Users.
Discounts for training services, and professional services, and new SupportPlus
services are set forth in Schedule A.
2.2 Payment Terms. Full payment in U.S. dollars for Products received by
Made2Manage and related support contracts, is due and payable by Made2Manage to
Best within thirty (30) days of date of the invoice therefor; which invoice
shall be sent at the time of Product shipment. Interest shall accrue on any
delinquent amounts owed by Made2Manage at the lesser of 12% per annum or the
maximum rate permitted by law. If any portion of Made2Manage's outstanding
balance, not in dispute, is aged greater than 60 days (a "Late Payment
Condition"), Best may require full or partial payment in advance.
2.3 Taxes. Made2Manage shall pay any taxes (other than Best's income taxes)
which may arise by virtue of its distribution of the Products. The prices set
forth in this Agreement do not include any such taxes. Should any tax be
assessed against Best as a result of Made2Manage's distribution of the Products
hereunder, Made2Manage agrees to pay such tax. If, pursuant to this Agreement
and at the request of Made2Manage, Best ships Products to a state that has a
sales tax, Made2Manage agrees to provide Best with appropriate documentation
satisfactory to the applicable tax authorities for any claim of exemption from
any sales, use, value added or other taxes, duties or similar fees which may be
required upon delivery of Products or collection of payments due from
Made2Manage. Should Made2Manage fail to provide adequate exemption
documentation, or should any tax or levy be assessed against Best, Made2Manage
agrees to pay such tax or levy and indemnify Best for any claim for such tax or
levy.
2.4 Warranty. Best warrants to Made2Manage and the End Users that each
Product will reasonably conform to the documentation and materials supplied by
Best relating to the respective Product. If any Product fails to so conform,
Best shall correct the non-conformity within thirty (30) days or refund the End
User's purchase price.
3. SUPPORT AND RESELLER CERTIFICATION.
3.1 Providers. Best shall serve as first line of support with End-Users and
shall instruct their End-Users to call their support line in connection with the
Products. If, however, a customer contacts Best for support, Best shall provide
the level of support that the End-User has purchased based on Best's records.
Best reserves the exclusive right to provide Product updates to End-Users, via
the applicable support program. Best and Made2Manage shall develop mutually
agreeable procedures for handling customers who contact the wrong party for
technical support. Upon termination of this Agreement, Best shall continue to
offer first and second line support for each End User who remains a SupportPlus
customer.
3.2 Initial Subscription and Renewal. In connection with initial Product
license sales, Made2Manage shall pay Best the applicable first year maintenance
cost on behalf of each new End-User less 15%. Renewals of support shall be
solely the responsibility of Best and neither Made2Manage, nor any Made2Manage
reseller, shall have the right to sell support to End-Users other than in
connection with the initial Product license sale. Best's obligation to support
any Made2Manage user shall be contingent on Made2Manage's provision of the
appropriate End-User information to Best pursuant to the terms of Section 4.3.
Best shall ship Product updates directly to those End-Users who subscribe to a
Best support program.
3.3 Certification of Made2Manage Resellers. Made2Manage shall use
commercially reasonable efforts to ensure that none of its resellers, VARs or
distributors shall provide implementation services to any End User without first
obtaining certification from Best.
4. ORDER AND REPORTING PROCEDURES.
4.1 Purchase Orders. Purchase orders must be submitted to Best by
Made2Manage in writing. All purchase orders shall be subject to acceptance by
Best and shall not be binding until the earlier of such acceptance or shipment,
and, in the case of acceptance by shipment, only as to the portion of the order
actually shipped. Order cancellations must be confirmed in writing.
4.2 Controlling Terms. This Agreement will apply to each order and the
provisions of Made2Manage's form of purchase order will not supersede any of the
terms of this Agreement.
4.3 Reporting. For each Product order filled by Made2Manage, and for each
training contract and professional services contract entered into by
Made2Manage, Made2Manage will, from the information it gathers from the End-User
or based on data provided by its resellers, inform Best, of the date and content
of the order or contract, the name, address and telephone number of the
End-User(s) for whom the order was placed, the number of network users to use
any Product, the number of active employees to be covered by any Product,
whether each End-User has subscribed to the applicable Best support program and
such other information as Best may reasonably request. Failure by Made2Manage
to use its best efforts to provide the required End-User information will
constitute a material breach of the terms of this Agreement subject to
termination pursuant to Section 10.4(a).
5. SHIPMENT.
5.1 Shipment And Risk Of Loss. Best will ship all Products ordered directly
to the End-Users, in single or several lots, F.O.B. Best's point of shipment.
Best will select the carrier, provided that the carrier will be UPS or another
comparable carrier. Made2Manage will be responsible for and pay all shipping
and freight charges. All risk of loss of, or damage to, the Products shipped
will pass to Made2Manage upon delivery by Best to the carrier, freight forwarder
or Made2Manage, whichever comes first.
5.2 Delays. Should orders for t\'e Products exceed Best's available
inventory, Best will allocate its available inventory and make deliveries on a
basis Best deems equitable, in its sole discretion, and without liability to
Made2Manage on account of the method of allocation chosen or its implementation.
In any event, Best shall not be liable for any damages, direct, consequential,
special, or otherwise, to Made2Manage or to any other person for failure to
deliver or for any delay or error in delivery of the Products for any reason
whatsoever.
6. RETURNS OF PRODUCT. During the term of this Agreement, Made2Manage may
return unopened, superseded Products (support not included) to Best in exchange
for the then-current version of the same Product. If Made2Manage returns An
unopened Product to Best which has not been superseded, Best will grant
Made2Manage a credit equal to the price paid by Made2Manage for such returned
Product; provided, however, that a 20% restocking fee will be assessed for any
Products so returned. Prior to returning any Product, Made2Manage must obtain a
return authorization number from a Best representative. Made2Manage will be
responsible for and pay all shipping, freight and insurance charges for all
Products returned to Best and any Products to be returned to Made2Manage or an
End-User.
7. DATA LINK. Made2Manage shall be solely responsible for the definition
and development of links between the Products and Made2Manage's own software
products. Best shall provide all reasonably necessary technical information to
Made2Manage in order to enable it to develop and maintain the links.
8. MARKETING AND SALES.
8.1 Made2Manage User Solicitation. Best and Made2Manage will work together
in good faith to develop an announcement plan to Made2Manage End-Users and for
conducting joint mailings into the Made2Manage customer base. Best and
Made2Manage will share equally in production and mailing cost associated with
mutually agreed upon incentive programs. Made2Manage will handle telephone
follow-up and mailing administration at no charge to Best.
8.2 Demonstration Copies. Best will provide Made2Manage with demonstration
or evaluation copies of each Product, free of charge, for use by Made2Manage,
its VARs, distributors and dealers in connection with performing its obligations
under this Agreement. These copies may not be sold, further licensed or
modified.
8.3 Marketing Materials. Made2Manage shall purchase marketing collaterals
from the standard Best price list.
8.4 Training. During the term of the Agreement, Best will work with
Made2Manage to educate its sales and marketing group and support personnel
regarding the features and functionality of the Products.
8.5 Sales Support. If Made2Manage so requests, Best shall provide National
Accounts sales support for presentations and demonstrations to large prospects,
defined as five or more sites. In consideration for such assistance, the
parties agree that the discount on any such sales shall be reduced by 10 percent
from that specified in Schedule A and that further accommodations may also be
made based on mutual agreement of the parties. Except as expressly provided
herein, Made2Manage acknowledges that as between it and Best, Made2Manage is
solely responsible for all sales and marketing activities related to the
Products.
8.6 Conferences. Each of Best and Made2Manage agrees to waive any
registration fees that would otherwise be paid by the other for vendor
representative or exhibits at its user conferences. Each of Best and
Made2Manage agrees to permit the other to present/demo at its sales conferences,
agenda and timeframe permitting.
8.7 Annual Product Plans. During the term of this Agreement and upon
Made2Manages's request, Best shall use reasonable efforts to provide annual
product plans for the Products to Made2Manage which set forth (i) information
regarding upcoming releases to the Products, (ii) information regarding changes
to the Products expected to affect the links between the Products and
Made2Manage's own software products, and (iii) any other information that is
reasonably necessary to enable Made2Manage to modify its own software products
to maintain compatibility with the Products. These annual product plans shall
be treated and considered as Best confidential and proprietary information in
accordance with Section H of Schedule B.
8.8 Updates and New Releases. During the term of this Agreement, Best shall
use reasonable efforts to deliver a copy of any update or new release of the
Products to Made2Manage prior to release of such update or new release by Best
to its customers.
8.9 Account Managers. Best and Made2Manage shall each designate an account
manager who will be responsible for managing the sales and marketing
relationship and for providing a first line of contact on such issues.
8.10 Certification. Made2Manage shall have on its staff at least one person
who has attended Best's Certification program. Best will provide a person to
help train Made2Manage's sales force.
9. DURATION AND TERMINATION OF AGREEMENT.
9.1 Term. The term of this Agreement is twenty four months from the
effective date, subject to the terms of this Section 9, and shall automatically
renew for successive one year terms unless one party notifies the other in
writing at least ninety (90) days prior to the then current term that the
Agreement shall not be renewed.
9.2 Renewal. This Agreement is renewable, upon the mutual written agreement
of the parties, for a period of one calendar year at a time. The parties agree
that they will use all reasonable efforts to initiate negotiations relating to
renewal upon completion of the initial term no later than three months prior to
any Agreement expiration date.
9.3 Termination at Will. Either party may terminate this Agreement by
providing the other party with at least ninety days prior written notice of
termination.
9.4 Termination for Cause.
a. Either party will have the right to terminate this Agreement at any
time if the other party is in breach of any material term. Such termination
will become effective thirty days after the nonterminating party's receipt of a
notice of termination in the absence of a cure during such thirty day period.
b. Either party will have the right to terminate this Agreement at any
time if the other party (i) becomes insolvent; (ii) discontinues its business;
(iii) is merged, consolidated, or sells all or substantially all of its assets;
(iv) fails to pay its debts or perform its obligations in the ordinary course of
business as they mature; or (v) becomes the subject of any voluntary or
involuntary proceeding in bankruptcy, liquidation, dissolution, receivership,
attachment or composition for the benefit of creditors. Such termination will
become effective upon the nonterminating party's receipt of a notice of
termination at any time after the specified event.
c. Best will have the right to terminate this Agreement at any time if
any of the default conditions set forth below exist. Such termination will
become effective thirty days after Made2Manage's receipt of a notice of
termination in the absence of a cure during such thirty day period. Default
conditions are as follows:
i. Twenty percent (20%) of all Products orders placed by
Made2Manage in any six calendar month period during the term of this Agreement
are returned for credit/refund.
ii Made2Manage does not timely process customer refunds for the
Products or does not process such Product refunds in a commercially reasonable
manner resulting in documented customer complaints to Best and/or claims against
Best for such refunds.
9.5 Orders After Termination Notice. In the event that any notice of
termination of this Agreement is given, Best will be entitled to reject all or
part of any orders received from Made2Manage after the date of such notice.
Notwithstanding any credit terms made available to Made2Manage prior to such
notice, any Products shipped thereafter shall be paid for by certified or
cashier's check prior to shipment.
9.6 Effect of Termination. Upon termination or expiration of this
Agreement:
a. Best may, at its option, reacquire any or all of the Products then
in Made2Manage's possession at prices not greater than the prices paid by
Made2Manage for such Products. Upon receipt of any Products so reacquired from
Made2Manage, Best shall issue an appropriate credit to Made2Manage's account.
b. The due dates of all outstanding invoices to Made2Manage for the
Products automatically will be accelerated so they become due and payable on the
effective date of termination or expiration, even if longer terms had been
provided previously. All orders or portions thereof remaining unshipped as of
the effective date of termination will automatically be canceled.
c. Each party shall cease using any trademark, logo or tradename of the
other and Made2Manage's right to market and license any Products shall
automatically cease and terminate, unless Best agrees otherwise.
d. For a period of one year after the date of termination or
expiration, Made2Manage shall make available to Best for inspection all sales
records of Made2Manage that pertain to Made2Manage's compliance with the terms
of this Agreement.
9.7 No Damages for Termination. Made2Manage acknowledges and agrees that
Made2Manage has no expectation and has received no assurances that its business
relationship with Best will continue beyond the stated term of this Agreement or
its earlier termination in accordance with this Section 9 and will make no
claims against Best for damages or expenses (including damages which may arise
from the loss of prospective customers of Made2Manage, or expenses incurred or
investments made in connection with the establishment, development, or
maintenance of Made2Manage's business as a Best distributor) in connection with
any permitted termination.
9.8 Survival. Made2Manage's obligations to pay Best all amounts due
hereunder, as well as either party's obligations relating to indemnification,
warranties, disclaimers of warranty, protection of proprietary rights and
confidential information shall survive termination of this Agreement.
10. RELATIONSHIP OF THE PARTIES. Made2Manage's relationship with Best
during the term of the Agreement will be that of an independent contractor with
no power to bind Best, or to create any obligation on behalf of Best.
11. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement and Schedules A, B and
C represent the entire agreement between Made2Manage and Best with respect to
their subject matter, superseding all previous communications or agreements
regarding such subject matter. This Agreement may be modified only by a writing
signed by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the last date specified below.
BEST SOFTWARE, INC. MADE2MANAGE SYSTEMS, INC.
By:__________________________ By:_________________________________
Xxxxxxx Xxxxxxxx Xxxxxxxxxxx X. Xxxxx
Vice President Vice President
Date:_________________________ Date:_______________________________
SCHEDULE A
PRODUCTS AND DISCOUNTS
Discounts:
Subject to Section 2.1 of this Agreement, the discount for the term of the
Agreement for all Products will be 50% at the beginning of each 12 month period
commencing retroactively on January 1, 1998. Once Product, training services,
professional services, and new SupportPlus revenues payable from Made2Manage to
Best under this Agreement ("Sales Revenues") exceed $200,000 in such 12 month
period, the discount rate will increase to 60% for the remainder of such 12
month period. Upon commencement of the next 12 month period, the rate will once
again be 50% and will increase to 60% when Sales Revenues exceed $200,000 in
such next 12 month period. For purposes of this Schedule A, Sales Revenues
shall be defined to mean all cash receipts actually received by Best from
Made2Manage in such 12 month period from all sources, including Product sales,
SupportPlus fees, training, and professional services. Made2Manage shall be
entitled to the discounts set forth in this Schedule A for so long as all
Products, SupportPlus, training, and professional services are ordered from
Best, who will then invoice Made2Manage. All discounts are from Best's retail
price list which may be modified from time to time as set forth in Section 2.1
of this Agreement.
Best training services, professional services, and new SupportPlus are subject
to a standard 15% discount, assuming such services are booked through Best who
will then invoice Made2Manage for such services.
Best Products:
FAS for Windows
FAS Encore
FASTrack
Abra Suite
SCHEDULE B
GENERAL TERMS AND CONDITIONS
A. OBLIGATIONS AND REPRESENTATIONS OF MADE2MANAGE. Made2Manage agrees: (a)
to use commercially reasonable efforts to promote the marketing and licensing of
the Products using promotional material supplied by Best and to provide its
sales force with appropriate assistance; (b) to distribute the Products with all
sealed packaging, warranties, disclaimers and license agreements intact as
shipped from Best; (c) not to relicense any previously opened or used Products;
(d) to maintain, for at least two years after termination of this Agreement, its
records and accounts relating to distribution of the Products; (e) to conduct
business in a manner that reflects favorably upon the Products and Best
(although Made2Manage remains free to market products competitive with those of
Best); (f) not to engage in misleading practices or advertising detrimental to
the Products, Best or the public (although Made2Manage remains free to market
products competitive with those of Best); (g) to make no representations or
warranties with respect to the capabilities of the Products that are
inconsistent with the literature and licenses distributed by Best; and (h) to
comply with all applicable laws and regulations in any of its dealings with
respect to the Products; and (i) to use its best efforts to supply Best with
End-User names as required by this Agreement.
B. RESELLERS. Made2Manage represents to Best that each of its resellers
will be free to determine its own retail prices for the Products. During the
term of the Agreement, Made2Manage agrees that its resellers authorized to
distribute the Products shall assume obligations relating to its marketing of
the Products equivalent to those assumed by Made2Manage in these General Terms
and Conditions.
C. ADDITIONAL RESERVED RIGHTS.
C.1 Other Products. Made2Manage acknowledges that Best cannot guarantee
that its agreements with third parties for distribution of the Other Products,
if any, will continue. Best therefore reserves the right to discontinue
offering Other Products at any time without notice (though Best will use
reasonable efforts to give notice if the circumstances permit).
C.2 Order Cancellation by Best. Best may cancel or delay any purchase
orders placed by Made2Manage, without liability to Made2Manage, any reseller or
any other person, if Made2Manage if a Late Payment Condition exists, as defined
above in this Agreement or otherwise fails to comply with the material terms of
this Agreement, or if Best discontinues distribution of any Product ordered
(including support). Best shall give Made2Manage no less than thirty days prior
notice of its discontinuation of distribution of any Best Product, unless
reasonable Best business considerations dictate a shorter notice period. Any
cancellation or delay pursuant to the terms of this Section shall not be
considered a breach of this Agreement by Best.
C.3 Security Interest. Until any Product has been paid for in full, Best
retains a purchase money security in such Product delivered to Made2Manage and
in the proceeds therefrom. If Best so requests, Made2Manage will promptly file
financing statements and any other appropriate documents required to perfect
Best's security interest in all such Products and the proceeds therefrom. If
Made2Manage does not file such statements within two weeks of Best's request
therefor, Best shall automatically be granted, without further action by either
party, the power of attorney to execute any and all financing statements on
behalf of Made2Manage with respect to Best's security interest in all such
Products and proceeds therefrom and expressly authorizes Best to file the same
with the appropriate authorities.
D. TRADEMARKS, TRADENAMES AND COPYRIGHTS. Made2Manage agrees that any use
of Best's trademarks, service marks or tradenames will be in connection with the
promotion of the Products only, and shall be subject to the approval of Best.
Made2Manage agrees not to alter or remove any proprietary rights notice on any
Product or advertising material provided by Best. This Agreement does not give
either party any interest in any of the other's trademarks, tradenames,
copyrights or other proprietary rights. Each party agrees that it will not
assert or claim any interest in or do anything that may adversely affect the
validity or enforceability of any trademark, trade name, copyright or logo
belonging to or licensed to the other party. Made2Manage acknowledges that Best
owns or licenses all of the Products. Each party agrees to protect the other
party's proprietary rights. Made2Manage will notify Best in writing of any
claim or proceeding involving the Products within ten (10) days after
Made2Manage learns of such claim or proceeding.
E. ASSIGNMENT. This Agreement shall not be assignable by Made2Manage
without the prior written consent of Best. The provisions hereof shall be
binding upon and inure to the benefit of the parties, their successors and
permitted assigns.
F. WARRANTY; DISCLAIMER OF WARRANTIES; LIMITED LIABILITY.
F.l Warranty of Title. Best represents and warrants that it either owns, or
has a valid license to sublicense to Made2Manage, the Products.
F.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT,
BEST MAKES NO WARRANTIES OR REPRESENTATIONS AS TO PERFORMANCE OF THE PRODUCTS TO
MADE2MANAGE, ANY RESELLER, END-USER OR ANY OTHER PERSON. THE BEST PRODUCTS AND
ALL RELATED MATERIALS ARE SOLD "AS IS" WITHOUT WARRANTY AS TO THEIR PERFORMANCE,
AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL EXPRESS WARRANTIES, AND ALL
IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ARE
HEREBY EXCLUDED. This disclaimer of warranties is restated in the License
Agreements included with the Products. This disclaimer of warranties and the
limitation of liability below will not be affected by Best's rendering of
technical, programming, or other advice or service or the provision of support
for the Products.
BEST MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE OTHER PRODUCTS. If
any such warranties are provided by third party vendors, they are as set forth
in any literature provided by the vendors with the Other Products.
F.3 Limited Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY
RESELLER, END-USER, OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, OR
SPECIAL DAMAGES, EVEN IF THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR LOSSES. IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY FOR DAMAGES
RELATING TO ANY PRODUCT EXCEED THE ACTUAL AMOUNTS PAID BY MADE2MANAGE FOR SUCH
PRODUCT.
F.4 No Made2Manage Warranty. Made2Manage will make no warranty, guarantee
or representation, whether written or oral, on Best's behalf. Made2Manage and
its resellers have no right to make any distribution of the Products other than
under the terms of the License Agreement enclosed in each Product package.
F.5 Delays. Best shall not be liable for any damages, direct,
consequential, special, or otherwise, to Made2Manage or to any other person for
failure to deliver or for any delay or error in delivery of the Products for any
reason whatsoever.
G. INDEMNIFICATION.
G.1 Of Best. Made2Manage agrees to indemnify Best against and hold Best
harmless from, any and all claims (including reasonable attorneys' fees and
costs of litigation or defense incurred by Best) by any other party (including
any reseller or End-User) resulting from Made2Manage's acts, omissions or
misrepresentations (i) relating to Made2Manage's demonstration or distribution
of the Products or the Link, or (ii) arising out of Made2Manage's modification
of the terms of the license agreements included with the Products, regardless of
the form of action. Made2Manage's obligations hereunder survive termination of
this Agreement.
G.2 Of Made2Manage. Best agrees to indemnify Made2Manage against and hold
Made2Manage harmless from, any and all claims (including reasonable attorneys'
fees and costs of litigation or defense incurred by Made2Manage) by any other
party resulting from any inaccuracies made by Best in its marketing materials or
technical documentation. Notwithstanding the foregoing, Best shall not be
liable to Made2Manage for any claim arising from any alteration or modification
of any marketing materials or technical documentation made by Made2Manage.
In addition, Best agrees that if notified promptly in writing and, upon
Best's request, given sole control of the defense and all related settlement
negotiations, it will defend and hold Made2Manage harmless against any claim
based on an allegation that Made2Manage's distribution of any Product pursuant
to Made2Manage's distribution rights as set forth in this Agreement, or any use
of a Product by Made2Manage or an End User, infringes a copyright, patent, trade
secret or any other proprietary right of a third party. Best will pay any
resulting costs, damages and attorneys' fees reasonably incurred by Made2Manage
or an End User with respect to any such claims. In consideration of such
indemnification, Made2Manage agrees that, if any Product or any portion thereof,
becomes, or in Best's reasonable opinion is likely to become, the subject of a
claim based on an allegation that it infringes a copyright or any other
proprietary right of a third party, Made2Manage will permit Best, at Best's
option and expense, either to (i) procure the right for Made2Manage to continue
distributing the Product, or (ii) modify or replace the Product so that it
becomes noninfringing. If neither of the foregoing alternatives is available on
terms Best deems reasonable, Best may terminate Made2Manage's right to
distribute the Product(s) at issue and require immediate return or destruction
of such Product(s), including all copies. Best shall have no obligation to
Made2Manage with respect to infringement of third party proprietary rights
beyond that stated in this Section G.2. Notwithstanding the foregoing, Best
shall not be liable to Made2Manage for any infringement claim arising solely
from any alteration or modification of any Product made by Made2Manage. Best's
obligations hereunder survive termination of this Agreement.
H. CONFIDENTIALITY. Made2Manage acknowledges that in the course of
performing its obligations it may receive information which is confidential
and/or proprietary to Best and Made2Manage agrees not to use such information
except in performance of this Agreement and not to disclose such information to
third parties. Best acknowledges that in the course of performing its
obligations it may receive information which is confidential and/or proprietary
to Made2Manage and Best agrees not to use such information except in performance
of this Agreement and not to disclose such information to third parties.
I. GENERAL.
I.1 Waiver. The waiver by either party of any default by the other shall
not waive subsequent defaults of the same or different kind.
I.2 Notices. Any notices required or permitted hereunder shall be given to
the appropriate party at the address first specified above or at such other
address as the party shall specify in writing. Such notice shall be deemed
given upon personal delivery to the appropriate address or three business days
after sent by certified or registered mail or Federal Express (or equivalent
overnight carrier).
I.3 Governing Law; Venue; Severability. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Virginia
(without regard to conflicts of laws). If any provision of this Agreement is
for any reason found by a court of competent jurisdiction to be unenforceable,
that provision will be enforced to the maximum extent permissible, and the
remainder of this Agreement shall continue in full force and effect.
I.4 Execution of Agreement. This Agreement shall become effective only
after it has been signed by both parties, and its effective date shall be the
date on which it is executed by the last party to sign.
I.5 Section Headings. The section headings contained herein are for
reference only.
I.6 Equitable Relief. Each party acknowledges that any breach of its
obligations under this Agreement with respect to the proprietary rights or
confidential information of the other party may cause the other party
irreparable injury for which there are inadequate remedies at law, and therefore
each party will be entitled to seek equitable relief in addition to all other
remedies provided by this Agreement or available at law.
I.7 Force Majeure. Best shall not be responsible for any failure to perform
due to unforeseen circumstances or to causes beyond Best's control.
I.8 Controlling Terms. If there is any conflict between this Schedule B and
the main body of this Agreement, the main body of this Agreement shall govern.
