ABRA CADABRA SOFTWARE RESELLER AGREEMENT
THIS AGREEMENT is entered into this 1st day of August, 1995, between Abra
Cadabra Software, Inc. (ACS) with offices at 000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx
000, Xx. Xxxxxxxxxx, Xxxxxxx, 00000 and Made2Manage Systems, Inc. (RESELLER)
maintaining its principal place of business at 0000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxx 00000.
Whereas ACS publishes and distributes certain computer software and
hardware products including those ACS products ("ACS Products") and third party
products ("Other Products") listed on Schedule A hereto, as such Schedule may be
modified pursuant to the terms of this Agreement (collectively, the "Products").
Products which are now or may in the future be offered for distribution by ACS
but which are not listed on Schedule A or any amendment thereto are expressly
excluded from this Agreement.
ACS and RESELLER desire that RESELLER act as an independent, non-exclusive
reseller to distribute certain Products under ACS' standard Product License
Agreements to RESELLER's customers.
THEREFORE, the parties agree as follows:
1. APPOINTMENT
1.1 NON-EXCLUSIVE APPOINTMENT. ACS hereby appoints RESELLER, and RESELLER
hereby accepts such appointment, as an independent, non-exclusive
reseller of the Products for ACS. In the case of Other Products, ACS'
appointment of RESELLER shall be subject to the terms and conditions
applying to the sale of Other Products as supplied by the third party
vendors with the Other Products (the "Other Products Sales
Conditions").
1.2 LIMITATIONS. RESELLER's appointment only grants to RESELLER a
nontransferable, non-exclusive license to demonstrate, market, install
and distribute the Products to End-Users. "End-Users" are licensees
of the Products who license the Products for their own use in
accordance with ACS' standard license agreement and not for sub
license or distribution to others. This License does not transfer any
right, title or interest in any Product to RESELLER. RESELLER agrees
that any changes made to any ACS Product by RESELLER shall become part
of such Product and RESELLER hereby assigns all of its rights in such
changes to ACS. In addition, this license does not convey to RESELLER
the right to use any Product for its internal business purposes or to
process data for any third party unless approved in writing by ACS.
RESELLER understands and acknowledges that if it wants a license to
use any product for its internal business purposes, it shall be
required to purchase a standard End-User Product License from ACS.
2. OBLIGATIONS AND REPRESENTATIONS OF RESELLER
2.1 PROMOTION EFFORTS. RESELLER, at its expense, will use all reasonable
efforts to promote the marketing and licensing of the Products to
End-Users by using commercially available and acceptable means of
marketing including, but not limited to, advertising, telemarketing,
other direct mail campaigns, seminars, personal solicitation,
demonstrations, and distribution of promotional materials, all in
accordance with this Agreement. Prior written approval of ACS must be
obtained on any media advertising not utilizing ACS prepared language.
If media advertising copy is deemed inappropriate by ACS, RESELLER
agrees to immediately stop publishing, utilizing or causing to be
printed any portion of the inappropriate material. Violation of this
paragraph could result in immediate termination.
2.2 TECHNICAL CAPABILITY. RESELLER will have the technical capability to
enable it to demonstrate and explain in detail to End-Users the
features and capabilities of the Products.
2.3 NO TAMPERING OR RELICENSING. RESELLER will distribute the Products
with all packaging and warranties, disclaimers and license agreements
intact and not obscured, as shipped from ACS. Resellers will advise
End Users as to the nature and terms of the License Agreements
applicable to the Products. All Product diskettes will be distributed
in sealed diskette envelopes as shipped from ACS. RESELLER may not
relicense any previously opened or used Product.
2.4 DISTRIBUTION RESTRICTION. RESELLER shall not distribute any Products
as a mail order business (mail order is defined as solicitation,
through advertising or otherwise, for orders by mail or telephone,
rather than through a physical location at which an End-User can
obtain personal customer service and/or Product demonstration from the
RESELLER).
2.5 FINANCIAL CONDITION. RESELLER represents that as of the effective
date of this Agreement, it is in good financial condition. RESELLER
will promptly notify ACS of any significant negative change and/or
reversal of its financial condition.
2.6 RECORDS. RESELLER will maintain full and complete records of all
licensees of the Products including such records as may be required
for the purpose of Product recall or correction. RESELLER will
maintain, for at least two years after termination of this Agreement,
its records and accounts relating to distribution of the Products. If
ACS has a bona fide concern, based on reliable evidence, that RESELLER
may not be reporting all sales of ACS Products, ACS' may request
RESELLER to provide ACS, by the fifth day of the following month or
otherwise in accordance with a schedule established by ACS, a complete
monthly record of all products licensed
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during the month, including but not limited to the names and addresses
of all End-Users and Products sold or licensed to such End-Users.
2.7 COVENANTS. RESELLER agrees: (a) to conduct business in a manner that
reflects favorably upon the Products and their high quality image and
reputation, and upon the reputation of ACS; (b)to avoid illegal or
misleading practices that are or might be detrimental to the Products,
ACS or the public; (c) to make no false or misleading representation
with regard to ACS or the Products; (d) not to publish or employ or
cooperate in the publication or employment of any misleading or
deceptive advertising material; (e) to make no representations,
warranties or guarantees to customers or the trade with respect to the
capabilities of the Products that are inconsistent with the literature
distributed by ACS, including all warranties and disclaimers contained
in such literature.
2.8 COMPLIANCE WITH LAW. RESELLER will comply with all applicable laws
and regulations in performing its duties hereunder and in any dealings
with respect to the Products.
2.9 STANDARD REQUIREMENTS. RESELLER agrees to maintain standard
requirements as set forth on Schedule A, which may include a minimum
sales volume and/or minimum marketing effort requirements, to remain
an ACS reseller. The standard requirements are subject to change by
ACS with 30 days prior written notice to RESELLER
3. ACS' RESERVED RIGHTS
3.1 ACS' RESERVED RIGHTS. ACS reserves the right, from time to time and
in its sole discretion: (a) to increase or decrease the number of
authorized distributors, resellers and/or dealers; (b) to distribute
Products directly to End Users and other customers, using its own
personnel or independent sales representatives; (c) to change, add or
delete from the list of Products; (d) to change or terminate the level
or type of service or support that ACS makes available; or (e) to
increase or decrease the RESELLER discounts or Products prices.
RESELLER's appointment as an authorized reseller does not constitute a
grant of any specific territory or geographic area.
3.2 TERMINATION OF LICENSING OR SALE OF OTHER PRODUCTS. RESELLER
acknowledges that ACS has entered into agreements with third parties
for the licensing and sale of the Other Products, and there is no
guarantee by ACS that these agreements will continue. RESELLER
acknowledges that ACS reserves the right, pursuant to Section 3.1, to
discontinue offering Other Products at any time.
3.3 ORDER CANCELLATION BY ACS. ACS may cancel any purchase orders placed
by RESELLER and accepted by ACS or refuse or delay shipment thereof:
(a) if RESELLER fails to make any payment as provided in this
Agreement; b) if
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RESELLER fails to comply with the terms and conditions of this
Agreement; or (c) if ACS discontinues distribution of any Product.
ACS will have the right to cancel any orders, for reasons set forth
in this paragraph, without liability of any kind to RESELLER or to
any other person.
3.4 SECURITY INTEREST. Until any Product has been paid for in lull, ACS
retains a purchase money security in such Product in RESELLER's
possession and in the proceeds therefrom. RESELLER grants ACS the
power of attorney to execute any and all financing statements on
behalf of the RESELLER with respect to ACS' security interest in all
such Product and proceeds therefrom and expressly authorizes ACS to
file the same with the appropriate authorities.
4. PRICE
4.1 ACS RETAIL PRICES; RESELLER DISCOUNTS. The price to be paid by
RESELLER for any Product shall be determined based on the ACS Retail
Price and applicable RESELLER Discount in effect as of the date the
order is received by ACS. The ACS Retail Prices and RESELLER
Discounts in effect as of the effective date are as set forth on
Schedule A. ACS may change the ACS Retail Prices and RESELLER
Discounts at any time; provided, however, that ACS may increase the
price paid by RESELLER only after giving RESELLER thirty days prior
notice. RESELLER shall be solely responsible for establishing the
price at which Products are licensed or sold to End-Users.
4.2 PAYMENT TERMS. Initial orders are C.O.D. If credit terms are
extended, full payment in U. S. dollars is due and payable by RESELLER
to ACS on or before the due date specified on the invoice. Any credit
terms extended to the RESELLER will be solely at the discretion of ACS
based on the financial strength and demonstrated ability to repay such
credit terms. Extension of credit terms does not guarantee continued
credit availability and credit terms may be withdrawn at any time
should RESELLER fail to pay invoices when due. ACS reserves the right
to charge interest on any delinquent amounts owed by RESELLER at the
lesser of 18% per annum or the maximum rate permitted by law. If in
ACS' sole discretion the financial condition of RESELLER does not
justify continuance of shipment on the above terms of payment, ACS may
require full payment in advance. In addition, ACS reserves the right
to charge an additional fee of TWENTY ($20) DOLLARS for any checks of
RESELLER that are dishonored.
4.3 TAXES, TARIFFS, FEES. Promptly after execution of this Agreement,
RESELLER agrees to provide ACS 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 to be paid or collected upon
delivery of the Products or upon collection of the price from
Reseller. The prices set forth in this
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Agreement do not include any such taxes and fees. Should RESELLER
fail to provide adequate exemption documentation as is legally
required, or should any tax or levy be assessed against ACS as a
result of RESELLER's marketing of Products, RESELLER agrees to pay
such tax or levy and indemnify ACS for any claim for such tax or levy.
5. ORDER PROCEDURE
5.1 ORDER ACCEPTANCE. Purchase orders may be submitted to ACS by RESELLER
in writing or by telephone. All purchase orders are subject to
acceptance by ACS and shall not be binding until the earlier of
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. The terms and conditions
of this Agreement and of the applicable ACS invoice or confirmation
will apply to each order accepted or shipped by ACS hereunder. The
provisions of RESELLER's form of purchase order or other business
forms will not apply to any order notwithstanding ACS' acceptance of
such order.
5.2 ORDER INFORMATION. Except for Evaluation/Demo Products, at time of
order, RESELLER shall provide ACS with the following information:
a. Name of Products to be licensed and quantity of each.
b. Name and address of each client for whom Product licenses
are being purchased, including valid telephone number.
c. Billing address, including telephone number.
d. Shipping address, including telephone number.
e. Client name and contact name.
f. RESELLER named company name and contact name.
g. RESELLER purchase order number and any special instructions.
5.3 END-USER SUPPORT. ACS reserves the exclusive right to provide product
updates, enhancements and releases to End-Users. ACS shall also
supply telephone technical support via the Abra Cadabra Support
Program. At RESELLER's request, ACS will provide RESELLER with sales
and marketing materials for the support program. All membership
renewals in ACS' Support Program will be handled solely by ACS. ACS
will have no obligation to support any End-Users whose names have not
been provided to ACS pursuant to Section 5.2 above.
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6. SHIPMENT AND RISK OF LOSS
6.1 SHIPMENT. ACS will ship all Products ordered, in single or several
lots, F.O.B. ACS' point of shipment. ACS will select the carrier.
RESELLER will be responsible for and pay all shipping freight charges.
6.2 RISK OF LOSS. All risk of loss to, or damage to, the Products shipped
will pass to RESELLER upon delivery by ACS to the carrier, freight
forwarder or RESELLER, whichever comes first. RESELLER is solely
responsible for insuring the Products at and from the F.O.B. point.
7. RETURNS
7.1 PRODUCT RETURNS. During the Contract Period, RESELLER may return any
complete Product package, including all original materials provided by
ACS, to ACS within thirty days from delivery of such Product to
RESELLER and ACS will grant RESELLER a credit equal to the price paid
by RESELLER for such returned Product. In case of termination of this
Agreement, all credits will first be applied to any outstanding
balances of the RESELLER. If no balances exist, a refund will be
issued. Prior to returning any Product, RESELLER must obtain a return
authorization number from an ACS representative. RESELLER will be
responsible for and pay all shipping, freight and insurance charges
for all Products returned to ACS.
7.2 UNSHIPPED PRODUCT CREDIT. For any cancellations, by RESELLER or ACS,
of unshipped products that have been fully paid by the RESELLER, ACS
will grant the RESELLER a credit equal to the price paid by RESELLER
of such Products.
8. DURATION AND TERMINATION OF AGREEMENT
8.1 TERM. The term of this Agreement is from the effective date until the
first March 31st following the effective date (this initial period and
any renewal period, the "Contract Period"). Nothing contained herein
shall be interpreted as requiring either party to renew this
Agreement. This Agreement may be terminated prior to the expiration
of its stated terms as set forth below. This Agreement is renewable
for a period of one year at a time. This Agreement shall
automatically renew for subsequent one year Periods (April 1st through
March 31st) unless either party gives the other no less than 30 days
prior written notification of its intent to let this Agreement expire
on March 31st of that Contract Period.
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8.2 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
undertaken which such party fails to cure within fifteen days
after receiving notice of the breach and the party's intention to
terminate. Such termination will become effective upon the
nonterminating party's receipt of notice and automatically be in
effect upon expiration of the cure period in the absence of a
cure. Such termination will become effective upon the
nonterminating party's receipt of a notice of termination at any
time after the specified event.
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, sells
all or substantially all of it assets, or implements or suffers
any substantial change in management or control; (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.
8.3 TERMINATION AT WILL. RESELLER or ACS may terminate this Agreement at
will, at any time during the Contract Period, with or without cause,
by written notice given to the other party not less than sixty (60)
days prior to the effective date of such termination.
8.4 EFFECT OF TERMINATION. Upon termination of this Agreement:
a. ACS may, at its option, (i) cancel any or all paid and/or unpaid
orders prior to shipment and apply all payments to any
outstanding balances of RESELLER. If no balances exist, a refund
will be made to RESELLER all payments made in connection
therewith. After termination notice, the due dates of all
outstanding invoices to RESELLER for the Products 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. Notwithstanding any credit terms made
available to RESELLER prior to such notice, any Products shipped
thereafter shall be paid for by certified or cashier's check
prior to shipment.
b. Unless ACS agrees otherwise, RESELLER shall return to ACS any
unopened Products in its possession on the date of termination,
and ACS shall apply the amount originally paid by RESELLER for
such returned Products against any
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outstanding RESELLER account balance. After satisfaction of
RESELLER's account, ACS shall refund any remaining amounts to
RESELLER.
c. RESELLER shall cease using any ACS trademark, logo or trade name
and RESELLER's right to market and license any Products shall
automatically terminate.
8.5 NO DAMAGES FOR TERMINATION. RESELLER acknowledges and agrees that
RESELLER has no expectation and has received no assurances that its
business relationship with ACS will continue beyond the stated term of
this Agreement or its earlier termination in accordance with this
Section 8 and will make no claims against ACS for damages or expenses
(including damages which may arise from the loss of prospective
customers of RESELLER or expenses incurred or investments made in
connection with the establishment, development, or maintenance of
RESELLER's business as an ACS reseller) in connection with any
termination.
8.6 SURVIVAL. Either party's obligations to pay the other 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.
9. TRADEMARKS, TRADENAMES AND COPYRIGHTS
9.1 USE DURING AGREEMENT. RESELLER agrees that any use of ACS'
trademarks, logos or tradenames will be in connection with the
advertising, promotion, and sale of the corresponding Product only;
and that RESELLER will not use such marks or names in any manner
likely to confuse, mislead, or deceive the public or which would be
injurious to ACS or ACS' rights in the marks. All use shall be
subject to the written approval of ACS, and rights to use such marks
and names shall terminate immediately upon termination of this
Agreement. RESELLER agrees not to attach any additional trademarks,
logos or trade designations to any Product.
9.2 COPYRIGHT AND TRADEMARK NOTICES. RESELLER will include on each copy
of ACS Products that it distributes and on all containers and storage
media thereof, all trademark, copyright and other notices of
proprietary rights included by ACS on such Products. RESELLER agrees
not to alter, erase, deface or overprint any such notice on anything
provided by ACS.
9.3 NO RESELLER RIGHTS IN TRADEMARKS OR COPYRIGHTS. Nothing contained in
this Agreement shall give RESELLER any interest in any of ACS'
trademarks, tradenames, copyrights or other proprietary rights.
RESELLER acknowledges that ACS owns or licenses all ACS Products, and
agrees that it will not at any time during or after this Agreement
assert or claim any interest in or do anything that may
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adversely affect the validity or enforceability of any trademark,
trade name, copyright or logo belonging to or licensed to ACS.
9.4 NO REPRODUCTION. Except for the Self Running Demonstration
Diskette, RESELLER shall not at any time, except at ACS' request,
print, copy or otherwise reproduce (except as permitted for back-up
purposes only), in whole or in part, any Products, components or
Products or related materials, or any promotional and marketing
materials provided to RESELLER by ACS.
9.5 OBLIGATION TO PROTECT AND NOTIFY. RESELLER agrees to protect ACS'
proprietary rights and to cooperate in ACS' efforts to protect its
proprietary rights. RESELLER agrees to notify ACS of any known or
suspected breach of ACS' proprietary rights that comes to RESELLER's
attention. RESELLER will notify ACS in writing of any claim or
proceeding involving the Products within ten (10) days after
RESELLER learns of such claim or proceeding.
10. ASSIGNMENT
RESELLER is appointed as an authorized ACS reseller and this assignment is
not transferable by RESELLER (including in the case of any change in
management or control of RESELLER or any transfer of more than 25% of
RESELLER's voting control or a transfer of substantially all of its assets
to a competitor of ACS) without the prior written consent of ACS. The
provisions hereof shall be binding upon and inure to the benefit of the
parties, their successors and permitted assigns.
11. RELATIONSHIP OF THE PARTIES
RESELLER's relationship with ACS during the Contract Period will be that of
an independent contractor. RESELLER will not have, and will not represent
that it has, any power to bind ACS, or to create any obligation on behalf
of ACS. Nothing stated in this Agreement shall be construed as
constituting RESELLER and ACS as partners or as creating the relationships
of employer/employee, franchisor/franchisee, or principal/agent between the
parties.
12. DISCLAIMER OF WARRANTIES; LIMITED LIABILITY
12.1 DISCLAIMER OF WARRANTIES. ACS MAKES NO WARRANTIES OR REPRESENTATIONS
AS TO PERFORMANCE OF THE ACS PRODUCTS. THE SOFTWARE IS PROVIDED "AS
IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR ANY OTHER STATUTORY OR COMMON LAW WARRANTIES.
NO WARRANTY IS MADE REGARDING THE PERFORMANCE OF THE SOFTWARE OR THE
RESULTS THAT MAY BE OBTAINED BY USING
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THE SOFTWARE. THE ENTIRE RISK AS TO THE INSTALLATION, USE, QUALITY
AND PERFORMANCE OF THE SOFTWARE IS WITH END USER. This disclaimer
of warranties is restated in the License Agreement included with the
Products. ACS reserves the right to change its warranty policy.
This disclaimer of warranties and the limitation of liability below
will not be modified, diminished or affected by, and no obligation
or liability will arise or grow out of ACS' rendering of technical,
programming, or other advice or service or the provision of support
for the Products.
ACS 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 the Other Products Sales
Conditions.
12.2 LIMITED LIABILITY. RESELLER's sole remedy for any defective Product
is return of the Product pursuant to Section 7 of this Agreement.
ACS SHALL NOT BE LIABLE TO RESELLER, ANY END-USER, OR ANY THIRD
PARTY FOR ANY DAMAGES ARISING FROM THIS AGREEMENT OR ANY PRODUCT
DISTRIBUTED HEREUNDER, INCLUDING BUT NOT LIMITED TO INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES (SUCH AS LOSS OF DATA, LOSS OF
USE, LOSS OF REVENUES, LOSS OF PROFITS OR DELAY DAMAGES) EVEN IF ACS
WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO
EVENT SHALL THE LIABILITY OF ACS FOR DAMAGES RELATING TO ANY PRODUCT
EXCEED THE ACTUAL AMOUNTS PAID BY RESELLER OR END-USER FOR THE
PRODUCT TO WHICH THE CLAIM RELATED, NOR SHALL THE LIABILITY OF ACS
FOR DAMAGES RELATING TO THIS AGREEMENT EXCEED $5,000.00.
12.3 NO RESELLER WARRANTY. RESELLER will make no warranty, guarantee or
representation, whether written or oral, on ACS' behalf RESELLER has
no rights or authority to make any distribution of the Products
other than under the terms of the License Agreement enclosed in each
Product package.
12.4 DELAYS. ACS shall not be responsible for any failure to perform due
to unforeseen circumstances or to causes beyond ACS' control,
including but not limited to acts of God, war, riot, embargoes, acts
of civil or military authorities, fire, floods, accidents, strikes,
or shortages of transportation, facilities, fuel, energy, labor or
materials. In the event of any such delay, ACS may defer the
delivery date of orders for the Products for a period equal to the
time of such delay. ACS SHALL NOT BE LIABLE FOR ANY DAMAGES,
DIRECT, CONSEQUENTIAL, SPECIAL OR OTHERWISE, TO RESELLER OR TO ANY
OTHER PERSON FOR FAILURE TO DELIVER OR FOR ANY DELAY OR ERROR IN
DELIVERY OF THE PRODUCTS FOR ANY REASON WHATSOEVER.
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13. INDEMNIFICATION
13.1 INDEMNIFICATION OF ACS. RESELLER agrees to indemnify ACS against
and hold ACS harmless from, any and all claims (including reasonable
attorneys' fees and costs of litigation or defense incurred by ACS
by any other party (including any End-User) resulting from
RESELLER's acts, omissions or misrepresentations (i) relating to
RESELLER's demonstration, marketing or distribution of the Products,
or (ii) arising out of any breach of the terms and conditions of
this Agreement by RESELLER, or (iii) arising from the termination of
any personnel employed by RESELLER as a result of termination of
this Agreement, or (iv) arising from the acts of RESELLER which give
rise to claims that such acts were committed by or on behalf of ACS
by RESELLER acting in the role of a gent or otherwise, or (v)
arising out of RESELLER's modification of the terms of the License
Agreement ACS includes with the ACS Products, regardless of the form
of action. RESELLER agrees to pay all indemnifiable amounts due to
ACS within thirty days alter ACS' request therefor.
13.2 INDEMNIFICATION OF RESELLER. ACS agrees to indemnity RESELLER
against and hold harmless from, any and all claims (including
reasonable attorneys' fees and costs of litigation or defense
incurred by RESELLER by any other party (including any End-User)
resulting from acts, omissions or misrepresentations (i) arising out
of any breach of the terms and conditions of this agreement by ACS,
or (ii) arising from the acts of ACS which give rise to claims that
such acts were committed by or on behalf of RESELLER by ACS acting
in the role of agent or otherwise.
14. CONFIDENTIALITY
RESELLER acknowledges that in the course of performing its obligations it
will receive information which is confidential and/or proprietary to ACS,
including, without limitation, information relating to End-Users, RESELLER
price lists, manner of operation, and fixture plans. RESELLER agrees not
to use such information except in performance of this Agreement and not to
disclose such information to third parties.
15. GENERAL
15.1 WAIVER. The waiver by either party of any default by the other
shall not waive subsequent defaults of the same or different kind.
15.2 NOTICES. Any notices required or permitted by this Agreement shall
be given to the ACS at 888 Executive Xxxxxx Xxxx, Xxxxx 000, Xx.
Xxxxxxxxxx, Xxxxxxx 00000 to the attention of the Vice President of
Sales in writing. Notices to RESELLER shall be sent to the address
first above written. Such notice shall be deemed given upon
personal delivery to the appropriate address or three business days
alter sent by certified or registered mail or Federal Express (or
equivalent overnight carrier).
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15.3 ATTORNEYS' FEES. If any action at law or in equity is necessary to
enforce the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and other expenses in
addition to any other relief to which such prevailing party may be
entitled.
15.4 GOVERNING LAW; VENUE: SEVERABILITY. This Agreement shall be
governed by and construed in accordance with the Laws of the State
of Florida (without regard to conflicts of law). Any suit hereunder
will be brought in the federal or state courts in Florida and
RESELLER hereby submits to the personal jurisdiction thereof. 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.
15.5 AUDIT VERIFICATION. If ACS has a bona fide concern, based on
reliable evidence, that RESELLER may be violating the terms of this
Agreement by mailing copies of any Product or otherwise using or
distributing any Product in violation of the terms of this
Agreement, RESELLER agrees that ACS shall have the right to retain
an independent certified public accountant for the purpose of
inspecting, during normal business hours, RESELLER's books,
financial accounts and income tax returns, with respect only to the
business relationship between RESELLER and ACS, in insure RESELLER's
compliance with the terms of this Agreement, ACS shall retain this
audit right for one year after termination of this Agreement. ACS
shall treat any records examined as RESELLER confidential
information and shall not disclose such information unless required
in any legal or other proceeding in order to protect its proprietary
rights or insure that all monies owed hereunder have been paid.
15.6 EXECUTION OF AGREEMENT. This Agreement shall become effective only
after it has been signed by RESELLER and has been accepted by ACS,
and its effective date shall be the date on which it is signed by
ACS.
15.7 SECTION HEADING. The section headings contained herein are for
reference only and shall be not considered substantive parts of this
Agreement.
15.8 EQUITABLE RELIEF. Both Parties acknowledges that any material
breach of its obligations under this Agreement with respect to the
proprietary rights or confidential information of the other party
will cause irreparable injury for which there are inadequate
remedies at law, and therefore the other party will be entitled to
equitable relief in addition to all other remedies provided by this
Agreement or available at law.
16. ENTIRE AGREEMENT
This Agreement and Schedule A represent the entire agreement between
RESELLER and ACS with respect to their subject matter, superseding all
previous oral or written
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communications, representations, or agreements regarding the 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 date specified below.
Abra Cadabra Software, Inc. RESELLER: Made2Manage Systems, Inc.
I HAVE READ AND AGREE TO THE TERMS OF
THIS RESELLER AGREEMENT
By: Xxxxx Xxxxxxxxx By: /s/ Xxxxxxxxx Xxxxxxxxx
--------------------------- --------------------------------
Name: Xxxxx Xxxxxxxxx Name: Xxxxxxxxx Xxxxxxxxx
------------------------- ------------------------------
Title: VP - Sales & Marketing Title: Corporate Secretary
------------------------ -----------------------------
Date: 8/16/95 Date: August 1, 1995
------------------------- ------------------------------
(This is the effective date of
the Agreement)
State Resale No.: 002797291 001 0
------------------
Federal Tax I.D. No.: 00-0000000
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SCHEDULE A
(EFFECTIVE 9-1-94)
PRODUCTS:
Abra 2000 Base System/unlimited employees and 150 employees
Abra 2000 Network Option
Abra 2000 Attendance
Abra 2000 Mufti-Company Consolidation
Upgrades from Abra 2000/150, Abra 2000/75
AbraChart
AbraTrak Base System
AbraTrak Network Option
AbraScan Resume Scanning Option
AbraPay Base System/unlimited employees and 75 employees
AbraPay Network Option
AbraPay Laser and Laser Signature
Upgrade from AbraPayBase System/75 to unlimited
AbraPCS Base System
AbraPCS Network Option
AbraPCS Custom Screen Option
AbraTrain Base System
AbraTrain Network Option
AbraBenefits Base System
AbraBeneflts/FSA Option
AbraBenefits Network Option
Envoy HR Base System/75, /150, /500, /1000, / and unlimited employee
versions
Envoy HR Network Seats Options
Envoy Applicant Base System
Envoy Applicant Network Seat Options
Envoy Pay Base System/75, /150, /500, /1000, / and unlimited employee
versions
Envoy Pay Network Seats Options
Envoy Pay Laser and Laser Signature
Envoy Organizer Seat Options
Envoy Analysis Seat Options
Envoy Multi-Site Consolidation
Evaluation Systems (Demos) Abra 2000, AbraTrak, AbraPay, AbraPCS,
AbraTrain, EnvoyHR, EnvoyAP, EnvoyPay
INTERFACES:
AbraPort, Abralink/SBT, Abra 2000 to SBT Payroll, Abralink to Service
Bureau, EnvoyLink, Envoy to Abra link
- 14 -
SUPPORT AND UPDATE SERVICES
Abra 2000, AbraTrak, AbraTrain, AbraPCS, AbraPay, Multi-user,
Attendance, AbraScan, Multi-company, DOS Source Code, Envoy HR,
Envoy AP, EnvoyPay, Envoy HR/AP/Pay Network seats, Envoy Organizer,
EnvoyLink, Support Plus Gold
PRODUCT RETAIL PRICES
As stated in the then current ACS Price List, published by ACS from time to
time
PRODUCT DISCOUNTS
Gold Level 50%
Silver Level 40%
Bronze Level 30%
(Reseller level and discount eligibility are defined in the ProfitPlus
Reseller Benefit Plan. ACS reserves the right to change the ProfitPlus
Reseller Benefit Plan requirements from time to time.)
* All discounts are from the suggested retail price of the then
current ACS Price List
* Support and Update Services and ACS End-User training classes are
precluded from Product Discount
OTHER PRODUCTS
R & R Report Writer
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RESELLER APPLICATION
(Please type or print) Date: July 3, 1995
--------------------------------------------------
Reseller Name: Xxxxx Xxxxxxxxx Title: Manager, Finance & Administration
------------------------- ------------------------------------------------
Company Name: Made2Manage Systems, Inc.
------------------------------------------------------------------------------------------
Address: 0000 Xxxxxx Xxxx, Xxxxx 000
------------------------------------------------------------------------------------------
City: Indianapolis State: IN Zip: 46268
-------------------------------------- -------- ---------------
Phone: ( 000 ) 000-0000 Fax: ( 000 ) 000-0000
------ ---------------------------- -------- ---------------
ProfitPlus Level Applying for: / /Gold / /Silver / /Bronze
Type of Business:
/ /Value Added Reseller / /HR Consultant / /System Integrator / /Accounting/CPA Firm
/ /Other (please specify):
------------------------
Business History:
Year Business Started: 1986 Number of Locations: 1
------ -----
Total Revenue Last Year: $4.5 million
------------
Revenue Breakdown:
Hardware 5 % Software 55 % Installation % Training 5 %
---- ----- --- ----
Consulting 5 % Support 25 % Customizing %
---- ----- ---
Market Focus:
Sell Other HR Products (List)
----------------------------------------------------------------------------
Sell Accounting Software Products (List)
-----------------------------------------------------------------
Sell Into Specific Vertical Market(s) (List Manufacturing
------------------------------------------------------------
Special Services:
/ /Customization / /Clipper or Dbase Programming x Training x Installation x Support
/ /Other (please specify)
--------------------------------------------------------------------------
Operational Organization: (Please show number of employees for the following, counting each employee only once.)
Total Employees: F/T 48 P/T 3
----- -----
Inside Sales 3 Outside Sales 8 Support 15 Programmers 14 Trainers 2 Admin 6
---- ----- ------ ------ ----- -----
Marketing Strategy:
What are your primary lead sources? Direct mail, Trade Advertising, Trade Shows
-----------------------------------------------------------------
Telemarketing (hours per week) 35
-------
Direct Mail (frequency & volume) 5-6 year (target audience) small to mid size manufacturers
-------- -------------------------------------
Yellow Pages -0- Vertical Publications(specify)
------- -------------------------------------------------------
Trade Shows (specify) Eastec, Westec
------------------------------------------------------------------------------------
Other Marketing Methods Referral
---------------------------------------------------------------------------------
(PLEASE FAX OR MAIL, ATT: RESELLER RECRUITING. ALL APPLICATIONS ARE SUBJECT TO APPROVAL BY ABRA CADABRA
SOFTWARE.)
