VALUE-ADDED RESELLER AGREEMENT
THIS
AGREEMENT
is made
and entered into as of Dec 10, 2007 (herein called the “Effective Date”) by and
between Splinternet Holdings, Inc. a Delaware corporation with its principal
place of business located at 000 Xxxxxxxxxxx Xxx. Xxxxxxx, XX 00000
(“SPLINTERNET”) and VIDIATION, LLC, a limited liability company organized and
existing under the laws of the State of Nevada, and having a principal place
of
business located at 000 Xxxxx Xxxxxxxx Xxxx Xxxxx, Xxxxx #000, X. Xxxxxxxxxx,
Xxxxxxxx 00000, its heirs and assigns (“RESELLER”).
WHEREAS,
SPLINTERNET has developed technology related to analyzing streams of
surveillance video and/or utilizing surveillance video equipment in conjunction
with proprietary software or other technology to detect radiation and/or other
hazardous or dangerous conditions (the “Technology”);
WHEREAS,
RESELLER distributes certain products and/or services and wishes to incorporate,
embed or make use of SPLINTERNET’s technology in conjunction with such products
or services; and
WHEREAS,
SPLINTERNET seeks channel or alliance partners to resell and distribute its
Technology and RESELLER wishes to serve as a channel or alliance partner of
SPLINTERNET.
For
good
and valuable consideration, the receipt and sufficiency of which is hereby
expressly acknowledged, IT IS HEREBY AGREED as follows:
ARTICLE
1. DEFINITIONS
1.1
“Party”
or “Parties”
shall,
as the content indicates in this Agreement, mean SPLINTERNET and RESELLER and
their respective successors and/or assigns.
1.2
“Affiliate”
shall
mean, with respect to a Party, any Person now or in the future directly or
indirectly controlling, controlled by, or under common control with such
Party.
1.3
“Person”
shall
mean any individual, corporation, partnership, firm, joint venture, association,
joint-stock company, trust, unincorporated organization, government body or
agency or other entity not actually a Party to this Agreement.
1.4
“The
Products”
shall
mean systems (including software), apparatuses or devices developed,
manufactured, acquired, marketed or sold by SPLINTERNET, which systems,
apparatuses or devices are listed in Appendix A hereto or as amended from time
to time.
1.5 “Application”
means a
value-added application, surveillance solution, computer program, system,
equipment or product which is developed or assembled and distributed by RESELLER
and which embeds, integrates, makes use of or incorporates one or more
SPLINTERNET Products.
1.6 “Basic
Maintenance”
means
SPLINTERNET’s maintenance program which offers new releases (other than those
designated as new products by SPLINTERNET) for existing Products during a twelve
month period for an annual fee payable in advance. SPLINTERNET reserves the
right, in its sole discretion, to change the form and content of its maintenance
program from time to time and will provide RESELLER with a thirty (30) day
advance notice of any such change(s).
1.7 “End
User”
means
any third party individual, business or governmental customer of RESELLER which
acquires one or more Applications for personal or internal business use, and
not
to transfer to others.
1.8 “Level
1 Support”
means
SPLINTERNET’s support program that provides telephone support during
SPLINTERNET’s normal business hours, and Basic Maintenance for existing Products
during a twelve month period for an annual fee payable in advance. SPLINTERNET
reserves the right, in its sole discretion, to change the form and content
of
its maintenance program from time to time upon notice and will provide RESELLER
with a thirty (30) day advance notice of any such change(s).
1.9 “Level
2 Support”
means
SPLINTERNET’s support program that provides twenty-four hours per day and seven
days per week telephone support, and Basic Maintenance for existing Products
during a twelve month period for an annual fee payable in advance. SPLINTERNET
reserves the right, in its sole discretion, to change the form and content
of
its maintenance program from time to time upon notice and will provide RESELLER
with a thirty (30) day advance notice of any such change(s).
1.10 “Level
3 Support”
means
assistance or troubleshooting in cases which are deemed too difficult or
involved to be handled by Level 2 Support and include cases involving the
reproduction of high severity/difficulty issues, those of which require
verification of problem reproduction developed by Level 2 Support staff, and
those which involve undocumented features or functionality.
1.11 “Consulting
Services”
are any
services provided by SPLINTERNET that are not covered by any standard annual
license fees paid by RESELLER and which are available for SPLINTERNET at its
customary time and materials rates, plus any related travel or business
expenses.
1.12 “Software
Copy or Copies”
means
any SPLINTERNET software (in object code form only) utilized in any Product
identified in Appendix A hereto and licensed hereunder in accordance with this
Agreement and for the fees specified in Appendix B which SPLINTERNET allows
RESELLER to imbed, integrate or utilize as part of its product or service
offerings (i.e., Applications) to End Users.
1.13 “User
Documentation”
means
the then-current SPLINTERNET user manual(s) and other written materials on
the
proper installation and use of the Products, and which are normally distributed
with the Products.
2
1.14 “Confidential
Information”
or “Confidential
Materials”
means
any information or materials, and any intellectual and/or proprietary rights
therein, including, without limitation, any technical, business, financial
or
customer information, drawings, specifications, designs, records or other
information disclosed by any Party to the other that is identified or treated
as
confidential by the disclosing Party. “Confidential Information” does not
include information already in the public domain, or in the rightful possession
of the other Party prior to the execution of this Agreement, or which enters
the
public domain other than by unauthorized acts of any person, or which is
independently developed by either Party without the use of the Confidential
Information or in violation of the terms of this Agreement or any other
contractual or other obligation of confidentiality.
1.15 “Export
Laws”
means
all export laws, administrative regulations and executive orders of any
applicable jurisdiction relating to the control of imports and exports of
commodities and technical data, including, without limitation, the U.S.
Department of Commerce.
ARTICLE
2. APPOINTMENT
OF RESELLER
2.1 Appointment.
SPLINTERNET hereby appoints RESELLER as an authorized, non-exclusive Value-Added
Reseller and channel or alliance partner of SPLINTERNET (“VAR”). A VAR develops,
owns and licenses (to more than one End User) one or more valued-added
Applications. RESELLER must at a minimum license its Application with each
Software Copy it distributes.
2.2 Relationship
of the Parties.
The
relationship of the Parties shall be that of RESELLER licensing and embedding,
integrating or incorporating SPLINTERNET’s Products (including Software Copies)
for the fees specified in Appendix B, and purchasing services as an independent
contractor from SPLINTERNET and reselling and sublicensing End Users. RESELLER
and its employees are not agents or representatives of SPLINTERNET for any
purpose and have no power or authority to represent, act for, bind or commit
SPLINTERNET.
ARTICLE
3. RESELLER’S
RIGHTS, REPRESENTATIONS AND OBLIGATIONS
3.1 License
Grant.
SPLINTERNET hereby grants and RESELLER hereby accepts the non-exclusive
non-transferable right to license (“License”) a subset of SPLINTERNET’s Products
(including Software Copies) as outlined in Appendix A in conjunction with
RESELLER’s product and service offerings (i.e., Applications), in accordance
with the User Documentation and this Agreement: (a) to internally use and
develop Applications; (b) to distribute as part of an embedded or integrated
offering SPLINTERNET’s Software Copies for use solely as part of an Application;
and (c) to use in unaltered form the SPLINTERNET trademarks, service marks
or
marketing logos (the “SPLINTERNET Trademarks”) solely to promote the
Applications, provided RESELLER obtains SPLINTERNET’s prior written approval for
each new usage. SPLINTERNET retains all title and, except as unambiguously
licensed herein, all rights, including all intellectual property rights, in
and
to the Products, and all copies and derivative works thereof (by whomever
produced). RESELLER shall pay SPLINTERNET the requisite license and other fees
specified in Appendix B hereto.
3
3.2 Minimum
Commitment.
In
consideration for the license conferred hereunder and the support on other
services provided hereunder by SPLINTERNET, RESELLER agrees to exercise its
best
efforts to satisfy the minimum sales commitment specified in Appendix C hereto.
3.3 Restrictions.
RESELLER
shall not (a) distribute the Software Copies on a stand-alone basis, (b)
distribute the Software Copies in any way except as part of an Application,
(c)
modify or alter the object code of the Products or Software Copies in any way,
(d) use any SPLINTERNET trademarks or trade names in a way that implies RESELLER
is an agency or branch of SPLINTERNET, or (e) distribute, provide, lease, lend,
use or allow others to use the Product or Software Copies to or for the benefit
of any third parties who are or may be competitors of SPLINTERNET.
3.4 Authorized
End Users.
RESELLER
agrees not to resell, distribute or sublicense SPLINTERNET’s Software Copies to
customers other than End Users, except where such customers are approved in
writing in advance by SPLINTERNET; such approval not to be unreasonably
withheld.
3.5 Marketing
of Applications.
RESELLER, within a reasonable time period, and after an Application is made
available by RESELLER, shall actively market the Application consistent with
RESELLER’s marketing goals and market conditions.
3.6 Back-Up
Copies.
RESELLER
may make one (1) back-up copy of Products used internally to develop
Applications.
3.7 Marketing
Claims and Obligations.
RESELLER agrees that all statements and/or claims not previously provided in
writing to RESELLER by SPLINTERNET regarding product functionality and/or
capabilities incorporated into any RESELLER marketing materials or sales
proposals must be submitted to SPLINTERNET for written approval five (5) days
prior to any public release.
3.8 End
User Agreement.
RESELLER
shall ensure that the end user agreement utilized by RESELLER is no less
restrictive than SPLINTERNET’s own End User License Agreement (a copy of which
is attached as Appendix D hereto) for each copy of an Application that has
embedded pr integrated SPLINTERNET’s Software Copies and is distributed by
RESELLER. In addition, RESELLER shall perform any other actions reasonably
necessary to assure adequate protection of SPLINTERNET’s interests in its
intellectual property rights contained in the Product(s) and Software Copies.
In
all jurisdictions where SPLINTERNET’s End User Agreement must be in writing and
signed by the End User in order to be effective, the Software Copies may not
be
distributed unless RESELLER’s End User signs a written license agreement which
is no less restrictive than SPLINTERNET’s own End User License Agreement.
SPLINTERNET does not undertake to inform RESELLER of the jurisdictions where
a
signed, written software license is necessary.
4
3.9
SPLINTERNET’s
Intellectual Property Rights.
The
Product, Software Copies and all related documentation are protected under
patent and/or copyright and/or trade secret laws and contain proprietary
information of SPLINTERNET and/or its licensors. RESELLER shall abide by the
terms of any proprietary notices or markings, and shall use the documentation
and the Software Copies only for the purposes contemplated by this Agreement,
and shall not disclose to others or reproduce the Product (except as
specifically permitted under this Agreement), unless specifically authorized
by
SPLINTERNET, and shall be liable for all loss or damage to SPLINTERNET from
any
failure to so abide or from any unauthorized disclosure by RESELLER, its agents
or End Users of the Product, Software Copies or related documentation. RESELLER
shall not translate any portion of the Software Copies or associated
documentation into any other format or language without the prior written
consent of SPLINTERNET. In the event such translation is made by RESELLER,
RESELLER shall grant to SPLINTERNET all right, title and interest in any such
translation or, if applicable, an exclusive, royalty free license to exploit
any
copyright or other intellectual property rights created by such
translation.
3.10
Notice
of Unauthorized Use of Confidential Information.
RESELLER
shall promptly notify SPLINTERNET of any actual or suspected unauthorized use
or
disclosure of any Confidential Information received from SPLINTERNET, and shall
provide reasonable assistance to SPLINTERNET in the investigation and
prosecution of unauthorized uses or disclosure.
3.11
Restrictions
On Use of Confidential Information and SPLINTERNET’s Intellectual Property and
Technology.
Except
as specifically permitted by this Agreement, RESELLER shall not directly or
indirectly (i) use any Confidential Information of SPLINTERNET to create any
computer software program or user documentation which is substantially similar
to any Product; (ii) reverse engineer, disassemble or decompile, or otherwise
attempt to derive the source code for, any Product; (iii) encumber, timeshare,
rent or lease the rights granted by this Agreement; or (iv) copy, manufacture,
adapt, create derivative works of, translate, localize, port or otherwise modify
any Products or other SPLINTERNET Confidential Information or allow any agent
or
End User of RESELLER to engage in similar conduct. The Parties acknowledge
that
money damages will not be an adequate remedy if this Section is breached and
therefore, SPLINTERNET may, in addition to any other legal or equitable
remedies, seek an injunction or similar equitable relief against any such
breach.
3.12
RESELLER’s
Obligation to Honor SPLINTERNET’s Confidential Information and Intellectual
Property.
RESELLER
does not have, and shall not claim that it has any right in or to any of the
Products, Software Copies, or the Confidential Information received from
SPLINTERNET other than as specifically granted by this Agreement.
3.13
Compliance
With Export Laws and Regulations.
Any and
all obligations of SPLINTERNET to provide the Products, as well as any technical
assistance, will be subject in all respects to such United States laws and
regulations as will from time to time govern the license and deliver of
technology and products abroad by persons subject to the jurisdiction of the
United States, including the Export Administration Act of 1979, as amended,
any
successor legislation, and the Export Administration Regulations issued by
the
Department of Commerce, Bureau of Export Administration. RESELLER warrants
that
it will not export or re-export the Product, Software Copies or any Confidential
Information or a Solution, or technical data related thereto, except in
conformity with such laws and regulations. RESELLER agrees that unless prior
written authorization is obtained from the Bureau of Export Administration
or
the Export Administration Regulations explicitly permit the re-export without
such written authorization, it will not export, re-export, or transship,
directly or indirectly, the Product, Software Copies or any Confidential
Information or a Solution to country groups S or Z (as defined in the export
Administration Regulations), or to any other country as to which the U.S.
Government has placed an embargo against the shipment of products which is
in
effect during the term of this Agreement.
5
If
at any
time SPLINTERNET determines in its sole discretion that the laws of any country
are or become insufficient to protect SPLINTERNET’s intellectual or proprietary
rights in the Products, SPLINTERNET reserves the right to restrict or terminate
RESELLER’s rights to use Products, Software Copies or distribute Software Copies
or Confidential Information in that country. RESELLER shall take all actions
reasonable necessary to enforce this restriction to protect SPLINTERNET’s
rights.
3.14
U.S.
Government Sales.
This
provision applies to all Products, and Software Copies acquired directly or
indirectly by or on behalf of the United States Government. The Products and
Software Copies are commercial products, licensed on the open market at market
prices, and were developed entirely at private expense and without the use
of
any U.S. Government funds. If the Products or Software Copies are supplied
to
the Department of Defense, the U.S. Government acquires only the license rights
customarily provided to the public and specified in this Agreement. If the
Products or Software Copies are supplied to any unit or agency of the U.S.
Government other than the Department of Defense, the license to the U.S.
Government is granted only with restricted rights. Use, duplication, or
disclosure by the U.S. Government is subject to the restrictions set forth
in
subparagraph (c) of the Commercial Computer Software Restricted Rights clause
of
FAR 52.227-19.
3.15
SPLINTERNET
Trademark.
During
the term of this Agreement, RESELLER shall have the right to use the SPLINTERNET
Trademarks in accordance with Section 3.1, provided that upon thirty (30) days
prior written notice, SPLINTERNET may substitute alternative marks for any
or
all of the SPLINTERNET Trademarks. All representations of SPLINTERNET Trademarks
that RESELLER intends to use shall first be submitted to SPLINTERNET for
approval (which shall not be unreasonably withheld) of design, color and other
details, or shall be exact copies of those used by SPLINTERNET. In addition,
RESELLER shall fully comply with all reasonable guidelines, if any, communicated
by SPLINTERNET concerning the use of SPLINTERNET Trademarks.
RESELLER
will not alter or remove any of the SPLINTERNET Trademarks applied to the
Software, Products or User Documentation by SPLINTERNET. Except for the
authorization set forth in this Section 3.13, nothing herein grants or will
be
deemed to grant to RESELLER any right, title or interest in SPLINTERNET
Trademarks. All uses of the SPLINTERNET Trademarks will inure solely to
SPLINTERNET, and RESELLER shall obtain no rights with respect to any of these
SPLINTERNET Trademarks, other than the right to distribute the Products and
Software Copies as set forth herein, and RESELLER irrevocably assigns to
SPLINTERNET all such right, title and interest, if any, in any SPLINTERNET
Trademarks. At no time during the term of this Agreement will RESELLER challenge
or assist others in challenging the SPLINTERNET Trademarks or the registration
thereof, or attempt to register any trademarks, marks or trade names confusingly
similar to those of SPLINTERNET. Upon termination of this Agreement, RESELLER
shall immediately cease to use any and all of the SPLINTERNET
Trademarks.
6
3.16
Developer
Credit.
In
connection with any Applications promoted, marketed, distributed or sold by
RESELLER, RESELLER agrees to include in its promotional materials, on its
website and/or on any goods or labels that its radiation detection solution
or
application is “powered by SPLINTERNET Radiation Analytic Detection System
(V-RADs™)”.
3.17
Insurance.
With
respect to any occurrences during the term of this Agreement, RESELLER shall
carry and maintain policies with at least the coverage amounts listed below
and
in such form and with an insurance company having an A-(Excellent) or better
Best’s Rating:
|
Coverage
|
Amount
|
|
Professional
Liability
|
$10
million
|
|
Employer’s
Liability
|
$2
million
|
|
Automobile
Liability
|
$2
million
|
|
General
Liability
|
$2
million
|
|
Workers’
Compensation
|
as
required by law
|
|
Excess
Liability (excess coverage for at least General Liability and Advertising
Injury)
|
$5
million
|
|
E&O
|
$10
million
|
|
Media
Liability
|
$10
million
|
|
Advertising
Injury
|
$2
million
|
SPLINTERNET
shall be named as an additional insured in all policies (other than Employer’s
Liability and Workers’ Compensation) required under this Section and RESELLER
shall be solely responsible for any deductibles under any such policies. Within
thirty (30) days of the Effective Date, RESELLER shall deliver to SPLINTERNET
a
certificate of insurance showing that all policies are in full force and effect,
and that such policies can not be cancelled during the term of this Agreement
without at least thirty (30) days written notice to SPLINTERNET from the carrier
issuing the policy.
7
3.18
Non-Compete.
RESELLER
agrees during the term of this Agreement and for one-year thereafter not to
develop, distribute and/or offer for sale to any End User any radiation
detection system or solution other than that of SPLINTERNET.
3.19
Intellectual
Property.
RESELLER
acknowledges and agrees that any new discoveries, inventions, developments
or
derived works resulting in improvements in or to SPLINTERNET’s Products or
Technology (including new or improved functionability, features, capabilities
or
efficiencies), whether made singly or in combination with anyone else, shall
be
considered a work made for hire under United States copyright law and shall
be
owned exclusively by SPLINTERNET (the “Improvements”). RESELLER shall have a
non-exclusive license in or to any Improvements for the term of the Agreement.
RESELLER agrees to take any actions reasonably requested of it by SPLINTERNET
to
effect or document SPLINTERNET’s ownership rights in and to any Improvements,
including executing any assignments or other writings.
ARTICLE
4. SPLINTERNET’S
OBLIGATIONS
4.1 Delivery
of Systems.
In
consideration for payment of an initial up-front fee and an annual license
fee,
SPLINTERNET shall provide RESELLER for its own internal use a radiation
surveillance system for research and product development purposes and a second
system for demonstration purposes.
4.2 Integration
Support. SPLINTERNET
during the first year of this Agreement shall provide RESELLER with __40_ hours
of front-end engineering and integration support to assist RESELLER in the
development of Applications that integrate or embed SPLINTERNET’s Products as
part of RESELLER’s surveillance solutions or equipment.
4.3 Marketing
Support.
SPLINTERNET during the term of this Agreement shall provide RESELLER with
marketing and promotional support, including sales leads. RESELLER agrees that
all statements and/or claims not previously provided in writing to RESELLER
by
SPLINTERNET regarding SPLINTERNET radiation detection alert product
functionality and/or capabilities incorporated into any RESELLER marketing
materials or sales proposals must be submitted to SPLINTERNET for written
approval prior to any public release.
4.4 Training.
SPLINTERNET during the first year of this Agreement shall provide _40__ hours
of
technical training to RESELLER to enable RESELLER to provide Level 1 and Level
2
Support to its end users in connection with SPLINTERNET’s Products that are
incorporated, embedded or integrated into any Application.
4.5 Technology
Support.
SPLINTERNET will commit to providing RESELLER with up to __40__ hours of
technical support per year, including installation, calibration and consulting
services, on a time and materials basis.
8
ARTICLE
5. TRAINING
AND SUPPORT SERVICES
5.1 Training.
Within a
reasonable time period, and after the Applications are made available by
RESELLER, RESELLER shall train and maintain a sufficient number of capable
technical and sales personnel as SPLINTERNET and RESELLER shall mutually deem
necessary and appropriate for RESELLER to carry out its obligations and
responsibilities under this Agreement.
5.2 End-User
Support.
Regardless of whether RESELLER or any End Users purchase maintenance or support
services directly from SPLINTERNET, RESELLER shall provide an appropriate level
of support, skilled instruction and assistance to End Users. In any event,
RESELLER must provide all support for its Application(s). Unless otherwise
agreed in a specific instance, SPLINTERNET has no obligation to provide support
to RESELLER’s end users, customers or distributors.
5.3 SPLINTERNET
Support.
For
Products used internally by RESELLER in accordance with the terms of this
Agreement, RESELLER may purchase from SPLINTERNET on an annual basis, Xxxxx
0
Xxxxxxx, Xxxxx 0 Support or Level 3 Support in accordance with the terms of
the
then-current support and maintenance programs made available by SPLINTERNET
for
the fees described in Appendix B (as amended from time to time).
5.4 SPLINTERNET
Maintenance Services.
For
Products and Software Copies distributed by RESELLER in accordance with the
terms of this Agreement, RESELLER may purchase from SPLINTERNET for the initial
year, and thereafter may purchase on an annual basis, Xxxxx 0 Support or Level
2
Support in accordance with the terms of the then current support and maintenance
programs made available by SPLINTERNET for the fees described in Appendix B
(as
amended from time to time).
ARTICLE
6. LIMITED
WARRANTIES
6.1 SPLINTERNET’s
Warranties.
SPLINTERNET warrants that (i) it has full power to enter into and perform this
Agreement; (ii) during the first thirty (30) days from the date RESELLER
receives an unmodified Product (“Warranty Period”) manufactured by SPLINTERNET,
the Products will, under normal use and operating conditions, be free of defects
in materials and workmanship and will substantially conform to the User
Documentation.
EXCEPT
FOR THESE EXPRESS LIMITED WARRANTIES, RESELLER AND ANY END USER ACCEPT THE
PRODUCTS “AS IS” WITH NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF
ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. RESELLER MAKES NO WARRANTIES REGARDING THE
APPLICATION(S) OR SOLUTIONS.
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6.2 Hold
Harmless.
Both
SPLINTERNET and RESELLER shall mutually hold its officers, directors, agents
and
employees harmless from damages awarded to a third party by a final appealed
court judgment on account of such third party’s claim of infringement by the
Products of any U.S. patent issued as of the date of the first copy of the
applicable Product or Software Copies, or any copyright, trademark or trade
secret, provided SPLINTERNET is promptly notified of any and all threats, claims
and proceedings related thereto and given reasonable assistance and the
opportunity to assume sole control over the defense and all negotiations for
a
settlement or compromise; SPLINTERNET will not be responsible for any settlement
it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES
OF
NON-INFRINGEMENT, WHICH ARE HEREBY DISCLAIMED. The foregoing obligation of
SPLINTERNET does not apply with respect to any products or portions or
components thereof (i) not supplied by SPLINTERNET, (ii) made in whole or in
part in accordance to RESELLER specifications, (iii) which are modified after
shipment by RESELLER, if the alleged infringement relates to such modification,
(iv) combined with other products, processes or materials where the alleged
infringement relates to such combination, (v) where RESELLER continues allegedly
infringing activity after being notified thereof or after being informed of
modifications that would have avoided the alleged infringement, or (vi) where
RESELLER’s use of the Products or Software is incident to an infringement not
resulting primarily from the Products or is not strictly in accordance with
the
License.
6.3 Remedy.
RESELLER’s sole remedy for SPLINTERNET’s breach of Section 5.1(ii) is outlined
under SPLINTERNET’s Support policy in Exhibit B. SPLINTERNET shall, in its sole
discretion and at its option, provide modifications to keep the Software in
substantial conformance with the related User Documentation, replace the
Products, or refund the license fees paid to SPLINTERNET for the defective
Products.
6.4 Indemnification.
RESELLER
and SPLINTERNET shall, at their own expense, indemnify, defend, save and hold
harmless each other from and against any claim, loss, expense, or judgment
(including reasonable attorneys fees) which arises (i) from any asserted failure
by either party to act in accordance with this Agreement; (ii)
misrepresentations made by either party, or (iii) from any other act or failure
to act by either party, its employees or agents.
6.5 RESELLER’s
Indemnification.
RESELLER
shall, at its expense, indemnify, defend, save and hold harmless SPLINTERNET
from and against any claim, loss, expense, or judgment (including reasonable
attorneys fees) which arises (i) from any warranties granted in excess of those
made by SPLINTERNET in this Agreement, (ii) inadequate installation maintenance
or support of the Products or Software Copies by RESELLER; (iii) the marketing
of the Products or Software Copies by RESELLER; or (iv) from infringement by
the
Applications or solutions or any material supplied by RESELLER of any patent,
copyright, trademark or trade secret of any third party.
ARTICLE
7. LIMITATION
OF LIABILITY
7.1 IN
NO
EVENT WILL SPLINTERNET BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS), EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS OBLIGATIONS UNDER
SECTION 5.2 ABOVE, SPLINTERNET’S LIABILITY TO RESELLER OR ANY THIRD PARTY FOR A
CLAIM OF ANY KIND RELATED TO THIS AGREEMENT OR ANY PRODUCTS WHETHER FOR BREACH
OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL NOT
EXCEED THE AGGREGATE OF FEES PAID TO SPLINTERNET FOR THE PRODUCTS OR SERVICES
INVOLVED IN THE CLAIM. NO ACTION, REGARDLESS OF FORM ARISING OUT OF THE
TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN
1
YEAR AFTER THE EVENTS WHICH GAVE RISE TO THE CAUSE OF ACTION
OCCURRED.
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ARTICLE
8. RECORDS,
FEES, AUDITS, PAYMENTS, DISCOUNTS
8.1 License
Fees.
(a) RESELLER
shall pay to SPLINTERNET a license fee (“License Fee”) for Products licensed
hereunder, as set forth in Appendix B.
(b) RESELLER
acknowledges and agrees that all fees payable by RESELLER to SPLINTERNET for
Products or Software Copies resold by RESELLER hereunder shall be based upon
the
number of embedded Software Copies or Products distributed by RESELLER with
its
Applications. Each payment shall be accompanied by the corresponding Copy Record
as described in this Section 8. RESELLER shall have the right to set the fees
it
charges to End Users in its sole discretion.
(c) For
each
Software Copy manufactured, distributed or sold by RESELLER, RESELLER shall
maintain complete and accurate records (“Copy Records”) indicating for each
quarter: the Product name and the number of licenses resold. Within 30 business
days of the end of each quarter, RESELLER shall deliver to SPLINTERNET the
Copy
Records applicable to that quarter in a report in the form of Appendix E
accompanied by any additional payment due to SPLINTERNET relating to such Copy
Records.
(d) No
more
than once each year, at SPLINTERNET’s expense and with ten (10) days prior
written notice, SPLINTERNET may audit all records of RESELLER relating to this
Agreement during RESELLER’s normal business hours. If an audit reveals that the
amount which should have been paid to SPLINTERNET is at least five percent
(5%)
more than the amount reported by RESELLER, RESELLER shall pay the cost of the
audit to SPLINTERNET. Any shortfall uncovered as a result of an audit as well
as
the cost of the audit, if required by the preceding sentence, shall be paid
by
RESELLER to SPLINTERNET within 30 days of the date SPLINTERNET notifies RESELLER
that an amount is due.
(e) RESELLER
shall pay any amounts owed to SPLINTERNET on the first day of the second month
of each quarter according to the schedule in Appendix E. The amounts owed must
be paid in full. Any amount that is recognized by RESELLER above the minimum
commitments specified in the Schedule in Appendix E, may be rolled forward
for a
maximum of one (1) quarter and according to the terms of this Agreement. Each
party is solely responsible for its own expenses incurred in the performance
of
this Agreement. If RESELLER fails to make any payment when due, and upon 10
days
advance written notice, this Agreement will terminate.
11
(f) Payments
will be in United States dollars. Any overdue amount shall bear interest at
a
rate of eight percent (8%) per annum or the maximum rate allowed by law if
less.
Costs of conversion, outside collection and related bank charges shall be paid
by RESELLER. RESELLER shall be responsible for all taxes, tariffs and
transportation costs related to this Agreement (including any value added or
sales taxes) other than taxes measured by or in relation to SPLINTERNET’s
income. All shipments by SPLINTERNET shall be F.O.B. origin. Risk of loss and
damage will pass to RESELLER upon delivery to a shipper at SPLINTERNET’s
facility.
(g) Discounts
do not apply to User Documentation ordered separately, marketing collateral
materials, or other products or services offered by SPLINTERNET and not
mentioned in Appendix B.
(h) Subsequent
to the end of the Initial Term, discounts shall continue in the Initial Term
until such a time as otherwise negotiated between the parties.
ARTICLE
9. TERM
AND TERMINATION
9.1 Initial
Term.
The term
of this Agreement shall be three (3) years from December 15, 2007 (“Initial
Term”). At the expiration of the Initial Term, this Agreement shall
automatically renew annually for successive calendar years unless terminated
according to this Section 9.
9.2 Termination.
This
Agreement will terminate: (a) for breach of any material term of this Agreement
or for failure to pay any amount when due, upon 10 days prior written notice
by
the non-breaching party to the other, unless the cause is susceptible of being
cured and is cured within the 10 day notice period; (b) immediately upon written
notice to RESELLER in the event RESELLER breaches Sections 3.3, 3.7, 3.8, 3.10,
3.14, 5.2, 5.4 and 5.5; (c) immediately in the event RESELLER assigns this
Agreement without SPLINTERNET’s prior written consent; (d) immediately and
automatically if a receiver or other liquidating officer is appointed for
substantially all of the assets or business of RESELLER, or if RESELLER makes
an
assignment for the benefit of creditors, or RESELLER becomes insolvent or
bankrupt or the rights or interest of RESELLER under this Agreement become
attached under any bankruptcy, insolvency or reorganization proceedings; (e)
at
RESELLER’s option if a receiver or other liquidating officer is appointed for
substantially all of the assets or business of SPLINTERNET, or if SPLINTERNET
makes an assignment for the benefit of creditors, or SPLINTERNET becomes
insolvent or bankrupt or the rights or interest of SPLINTERNET under this
Agreement become attached under any bankruptcy, insolvency or reorganization
proceedings; or (f) upon written notice given by either party to the other
at
least 60 days prior to the end of the then current term. The date termination
becomes effective is called the “Termination Date”.
9.3 Rights
Upon Termination.
If this
Agreement is terminated pursuant to Section 9.2 all rights granted under this
Agreement will terminate. If this Agreement is terminated for any other reason,
all rights granted under this Agreement shall terminate, except for RESELLER’s
continued right to use Software Copies for the sole purpose of fulfilling any
existing contractual obligations for services to End Users and for its internal
Development License. Use after the Termination Date shall be subject to all
the
restrictions contained herein and those provisions of this Agreement which
survive termination. Upon termination or expiration of this Agreement, RESELLER
will immediately cease to be an authorized SPLINTERNET VAR and shall refrain
from representing itself as such and from using any SPLINTERNET trademark or
tradename.
12
9.4 Return
of Confidential Information.
Subject
to Section 9.3, within thirty (30) days of the Termination Date, all Products,
Confidential Information of SPLINTERNET and related materials in RESELLER’s
possession or control shall be returned to SPLINTERNET, or, upon SPLINTERNET’s
written request, destroyed by RESELLER. Similarly, subject to Section 9.3,
within 30 days of the Termination Date, all Confidential Information of RESELLER
and related materials in SPLINTERNET’s possession or control shall be returned
to RESELLER or, upon RESELLER’s written request, destroyed by
SPLINTERNET.
9.5 Payment
Upon Termination.
All
outstanding obligations due on or before the Termination Date per the Agreement
will become due and payable within thirty (30) days after such termination
or
the period otherwise provided in this Agreement, whichever is
earlier.
9.6 Survival
of Obligations.
All
sections of this Agreement which by their terms imply an on-going obligation
shall survive any termination of this Agreement.
ARTICLE
10. ESCROW
10.1 Escrow
of Source Code.
SPLINTERNET and RESELLER shall enter into an escrow agreement in the form
attached as Appendix F (“Escrow Agreement”) where SPLINTERNET shall place in
escrow with Escrow Associates, or a third party acceptable to RESELLER fully
annotated source code of the Product only for the purpose of maintaining and
supporting the Application and all related documentation. RESELLER shall be
solely responsible for all charges related to the establishment and
implementation of the Escrow Agreement. RESELLER shall be entitled to receive
a
copy of the foregoing materials from escrow in accordance with the terms and
conditions of the Escrow Agreement executed by the parties.
ARTICLE
11. GENERAL
TERMS
11.1 Independent
Contractor.
The
parties hereto expressly understand and agree that each party is an independent
contractor in the performance of each and every part of this Agreement, is
solely responsible for all of its employees and agents and its labor costs
and
expenses arising in connection therewith. Neither party is in any manner
associated with or otherwise connected with the actual performance of this
Agreement on the part of the other party, nor with the other party’s employment
of other persons or incurring of other expenses.
13
11.2 Changes
to Products.
SPLINTERNET has the right at its sole discretion, with sixty (60) days advanced
notice to RESELLER, to make changes in the design or specifications of the
Products at any time.
11.3 Assignments.
This
Agreement may not be assigned by RESELLER without the prior written consent
of
SPLINTERNET, which shall not be unreasonably withheld. Any purported assignment
in contravention of this section is null and void. Notwithstanding the foregoing
this Agreement shall bind and inure to the benefit of any successors or
assigns.
11.4 Force
Majeure.
Neither
party will be responsible for failure of performance, other than for any
obligation to pay money, due to causes beyond its control, including without
limitation, acts of God or nature; acts of war or terrorism; communications
or
power line failures or interruptions; labor disputes; sovereign acts of any
federal, state or foreign government; or shortage of materials.
11.5 Notices.
Notices
will be delivered to a party’s address to the following individuals outlined
below, or to another address which a party properly notified the other that
notices should be sent:
|
If
to SPLINTERNET:
Xxxxx
Xxxxxxx
Splinternet
Holdings, Inc
000
Xxxxxxxxxxx Xxxxxx
Xxxxxxx,
XX 00000
P:
203-354-9164
F:
000-000-0000
|
If
to VIDIATION, LLC:
000
Xxxxx Xxxxxxxx Xxxx Xxxxx
Xxxxx
#000
X.
Xxxxxxxxxx, XX 00000
Attention:
Xxxxx X’Xxxxxx, CEO
Phone:
(000) 000-0000
Fax:
(000) 000-0000
|
11.6 Entire
Agreement.
This
Agreement, including all attachments, exhibits and appendices, is the complete
and exclusive statement of the parties to this Agreement on these subjects,
and
supersedes all prior written or oral proposals and understandings relating
thereto. Except as otherwise provided, this Agreement may only be modified
by a
writing signed by an authorized officer of each of the parties. This Agreement
takes precedence over any purchase order issued by RESELLER, which is accepted
by SPLINTERNET for administrative convenience only. To the extent there is
a
conflict between this Agreement and the End User Agreement, the terms of this
Agreement control. If any court of competent jurisdiction determines that any
provision of this Agreement is invalid, the remainder of the Agreement will
continue in full force and effect. The offending provision shall be interpreted
to whatever extent possible to give effect to its stated intent.
11.7 No
Waiver.
Failure
to require performance of any provisions or waiver of a breach of a provision
does not waive a party’s right to subsequently require full and proper
performance of that provision. Singular terms will be construed as plural,
and
vice versa. Section headings are for convenience only and will not be considered
part of this Agreement.
14
11.8 Governing
Law.
This
Agreement is governed by the laws of the State of Connecticut without giving
effect to its conflict of law provisions. The United Nations Convention on
Contracts for the International Sales of Goods will not apply to this Agreement.
SPLINTERNET may seek to enforce or prevent a breach of any term of this
Agreement in the appropriate courts of any state or country in which the
Products are deployed by RESELLER or in which RESELLER maintains an office.
The
prevailing party in any suit under this Agreement shall recover all costs,
expenses and reasonable attorney fees incurred in such action. Nothing in this
Agreement will be deemed a waiver by either party of any and all available
legal
or equitable remedies.
|
VIDIATION,
LLC
By:
 Xxxxx
X’Xxxxxx
CEO
000
Xxxxx Xxxxxxxx Xxxx Xxxxx
Xxxxx
#000
X.
Xxxxxxxxxx, XX 00000
|
SPLINTERNET
 |
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