The following terms and conditions (“Vendor Terms”) are taken from an agreement (defined as “Agreement” in these Vendor Terms only) between NMS Data, Inc. (defined as “Partner” in these Vendor Terms only) and one of its vendors (defined as “Company” in these Vendor Terms only).
1. Appointment. Company hereby appoints Partner as a non-exclusive co-marketer of the Company during the term of this Agreement (the “Appointment”). Pursuant to this grant of Appointment and subject to the terms and conditions of this Agreement, Partner may (i) solicit prospective and potential customers (“Potential Customers”) to purchase Company’s Offerings; (ii) purchase from Company licenses to its software applications and sub-license said licenses to end-customers, in accordance with this Agreement; (iii) provide end-customers with implementation and support services; and (iv) engage third party co-marketers (“Third-Party Marketers”) with the purpose of having them promote and market Company’s Offerings. The Appointment is temporary, non-exclusive and non-transferable except as a permitted assignment under paragraph 18.4 of this Agreement, and Company shall not be prohibited by virtue of this Agreement from directly or indirectly soliciting any person or entity to acquire any products or services, and furthermore shall not be prohibited from entering into similar agreements with other entities in any territory. For clarity purposes, Partner shall not have the authority or power to extend the Appointment to any third-party entity, including Third-Party Marketers.
2. Partner’s Representations, Responsibilities and Obligations.
2.2. Promotion and Marketing Efforts. Partner shall use commercially reasonable endeavors to (i) promote and market the Company’s Offerings to Potential Customers; [and] (ii) acquire from Company licenses to use the Company’s software products and sub-license (and if needed, install and implement) said licenses to end-customers in accordance with this Agreement.
2.5. Limitations. Notwithstanding anything contained herein to the contrary, Partner has no authority to act on Company’s behalf or to contractually bind Company. Partner shall not hold itself out as having any such authority, shall make no representations or warranties on Company’s behalf, and shall not describe or refer to the Company’s Offerings in any way which is inconsistent Company’s then current published marketing materials. Except as permitted regarding private label products under this Agreement, Partner shall inform all Potential Customers that Company, and not Partner, is the owner of the Company Offerings, as applicable.
2.6. No Obligations by Company. Nothing in this Agreement shall obligate Company to enter into any agreement with any Potential Customer. If Company enters into any direct agreement with any such Potential Customer for the provision of Company Offerings, or if the Potential Customer indicates that it wants to enter into any such direct agreement with Company, then Company shall own and exclusively manage the account with such Potential Customer with respect to such Company Offerings, including, without limitation, any contract negotiations related to such account.
2.7. No costs to Company. All costs associated with the solicitation, marketing and support efforts taken by Partner and/or any Third-Party Marketer pursuant to this Agreement shall be borne exclusively by Partner and/or the relevant Third-Party Marketer. In any event, Partner shall not be entitled to receive from Company any consideration other than as expressly stipulated in this Agreement, and Third-Party Marketers shall not be entitled to receive from Company any consideration whatsoever. For clarity purposes, such consideration to Third-Party Marketers (if any) is the sole responsibility of Partner.
3.3. Provision of Last-Level Support. Company shall provide Partner with last-level support in the event that such support is needed, at an hourly rate of EUR 100 (excluding VAT), subject to the payment terms of Section 7 below.
3.4. Updates to Company’s Products. Company shall take commercially reasonable efforts to update its products to meet contemporary regulatory requirements as well as generally accepted accessibility standards. Notwithstanding the foregoing, Company does not guarantee that its products shall at all times fully comply with all such regulatory requirements and/or accessibility standards, or any, and Partner (and any Third-Party Marketer, if applicable) undertakes to notify any Potential Customers or existing customers of this.
4. Compliance with Laws. Without derogating from Company’s exclusion of warranties (where relevant), each Party shall comply with all applicable laws, regulations, rules, ordinances and orders regarding its activities related to this Agreement, including, without limitation, applicable export control laws, economic sanctions programs, applicable anti-corruption laws and any other laws related to allowable business practices.
5. Relationship of the Parties. Company and Partner are and shall remain independent contractors, and nothing in this Agreement shall be interpreted (i) to give either Party, including any Third-Party Marketer, the power to direct or control the day to day activities of the other, or (ii) to constitute the parties as partners, joint-ventures, co-owners or otherwise as participants in a joint or common understanding.
9. Confidential Information.
9.1. During the term of this Agreement and for an additional duration of five (5) years following termination and/or expiration of this Agreement for any reason (the “Extended Term”), the Parties undertake to keep in strict confidence and trust, to safeguard, and to not disclose to any person and/or entity, nor to use for the benefit of any party other than the Parties, any Confidential Information, other than with the prior express and written consent of the disclosing Party.
For purposes of this Agreement, “Confidential Information” shall include, without limitation, price lists, information, whether or not marked or designated as confidential, concerning technology, products, research and development, patents, copyrights, inventions, concepts, trade secrets, test results, formulae, processes, data, know-how, marketing, promotion, video footage, business and financial plans, policies, practices, strategies, surveys, analyses and forecasts, financial information, customer lists, agreements, transactions, undertakings and data concerning employees, service providers, officers, directors, and shareholders pertaining to either of the Parties. For clarity purposes, this Agreement and its contents are also Confidential Information. Confidential Information shall not include information that has become part of the public domain not as a result of a breach of any obligation owed by the non-disclosing Party.
9.2. Without derogating from the aforesaid, the Parties undertake to:
9.2.1. Treat Confidential Information as confidential and keep it secret;
9.2.2. Not disclose Confidential Information to any third party without the prior written
consent of Company;
9.2.3. Not use the Confidential Information for any purpose other than for performing their obligations pursuant to this Agreement;
9.2.4. Take reasonable technical and organizational measures to prevent unauthorized access to, unauthorized disclosure or unauthorized use of, whether intentional or negligently or otherwise, the Confidential Information;
9.2.5. Exercise at least the same reasonable level of care as they use to protect their own confidential information, however, not less than the reasonably commercially accepted level of care required for the handling of such confidential information.
9.3. Parties receiving Confidential Information may disclose Confidential Information if required by applicable law, court order and/or to comply with any other competent regulatory authority’s order.
9.4. Upon the termination or expiration of this Agreement for any reason, and/or upon a disclosing Party’s first written request, a receiving Party shall promptly deliver to the disclosing Party, and cause any of its employees and/or relevant representatives to promptly deliver to the disclosing Party, and not later than within three (3) days, any and all originals and copies of all documents and any and all materials (in any medium), which contain, summarize or embody the Confidential Information or any part thereof, which are then in its possession or under its control.
9.5. Upon the termination or expiration of the Agreement for any reason, each Party shall return all Confidential Information represented in tangible materials (e.g. documents) to the other Party and shall delete all electronically stored Confidential Information without undue delay. The Parties shall confirm the return and deletion of all Confidential Information in writing immediately after such actions had taken place.
9.6. The obligation to return or delete Confidential Information shall not apply to the extent that (i) a receiving Party is obligated to retain such Confidential Information pursuant to applicable law, or (ii) such Confidential Information is stored in back-up systems of the Parties and cannot be deleted without unreasonable effort; in such case, the Parties shall not use such Confidential Information and shall delete such Confidential Information as soon as reasonably possible.
10. Licenses and Access Rights.
10.1. Grant of Limited Trademark License. Company hereby grants to Partner, during the term of this Agreement, a non-exclusive, sub-licensable license to use any Company trademarks, service marks and/or trade names that Company specifies as acceptable for Partner’s use in writing in connection with this Agreement (collectively, the “Marks”), solely for the purpose of fulfilling this Agreement. Company reserves all other rights in and to the Marks. Partner shall not use the Marks for its own promotional purposes or for products or services that, in Company’s judgment, will diminish or otherwise damage its goodwill in the Marks. Company shall have the right to control and set standards for the quality of all products and services marketed under or in association with the Marks.
10.2. Proprietary Notices; Use of Marks; Approval of Promotional Materials. Partner shall clearly indicate Company’s ownership of the Marks whenever it uses the Marks. Upon request, Partner shall provide Company with an opportunity to inspect and approve any descriptive or promotional materials containing references to the Marks. Any goodwill arising out of use of the Marks shall inure solely to the benefit of Company.
10.3. No Infringement. Partner shall not at any time adopt, use or register any identical or similar mark or symbol or combination thereof which infringes any of the Marks.
11. Other Intellectual Property Matters.
11.1. Company retains all rights in and to the Company’s Offerings, Marks and its Confidential Information. Partner shall not represent to any person or entity that it has any ownership interest in the Company Offerings, Marks or Company’s Confidential Information. Partner hereby acknowledges that no action by it or on its behalf shall create in its favor any right, title or interest in or to such Company’s Offerings, Marks and/or Confidential Information, or in any registrations, filings, renewal or enforcement rights pertaining to them.
11.2. Without derogating from the foregoing, Company is and shall remain the sole and exclusive owner of any and all intellectual property rights in connection with its technology, underlying technology, data, information and/or content, including without limitation, any trade secrets, materials, information and know-how, inventions, marks, copyright, patents and patent applications, including any modifications, enhancements and derivatives thereof, and all re-issuances, continuations, continuations-in-part, divisions, revisions, extensions and re-examinations thereof, any information, invention, specification, data, ancillary materials, results, devices or know-how in connection therewith and/or in connection with their conduct of business (“Company’s Intellectual Property”).
12. Ethical Business Practices. Partner hereby represents and warrants to Company that: (i) with respect to its activities under this Agreement, it and its owners, officers, directors, employees, or agents thereof have not and will not pay, offer or promise to pay, or authorize the payment directly or indirectly, of any monies or anything of value to any government official or employee or any political party or candidate for political office for the purpose of influencing any act or decision of such official or of the government to obtain or retain business, or direct business to any person (any such payment is a “Prohibited Payment”); and (ii) no owner, partner, officer, director or employee of the Partner will otherwise breach applicable anti-corruption laws.
15. Limitation of Liability; Indemnification.
15.1. LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH A BREACH OF INTELLECTUAL PROPERTY RIGHTS, WILLFUL MISCONDUCT, FRAUD OR GROSS NEGLIGENCE, AND/OR PARTNER’S INDEMNIFICATION OBLIGATION AS SET FORTH UNDER SECTION 15.2 BELOW, THE PARTIES SHALL NOT BE LIABLE TO EACH OTHER FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, REGARDLESS OF THE LEGAL THEORY GIVING RISE TO SUCH CLAIMS, BE IT CONTRACTUAL, TORT-BASED AND/OR OTHERWISE. WITHOUT DEROGATING FROM THE FOREGOING, IT IS EXPRESSLY AGREED BY THE PARTIES THAT EACH PARTY’S TOTAL, EXHAUSTIVE AND CUMULATIVE LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO A TOTAL OF USD $100.
15.2. Indemnification of Company by Partner. Partner shall, at its own expense, and immediately upon Company’s first written request, indemnify and hold Company (and its respective directors, officers, employees and affiliates) harmless from and with respect to any and all claims, liabilities, losses, direct damages, costs and expenses, including, without limitation, the reasonable fees and disbursements of counsel (collectively, the “Losses”), related to or arising, directly or indirectly, out of (i) any material failure or any material breach by Partner of any representation or warranty, covenant, obligation or undertaking made by Partner hereunder; (ii) any Third-Party Marketer’s failure to meet and/or comply with the relevant and applicable provisions of this Agreement.
16.4. Effects of Termination or Expiration. Upon expiration or termination of this Agreement Partner shall: (a) immediately cease promoting, marketing and purchasing Company’s Offerings; (b) discontinue using the Marks and Company Confidential Information; (c) promptly return to Company, or at Company’s election, destroy any of Company’s Confidential Information in its possession; (d) notify any Third-Party Marketers of the termination of this Agreement. The termination or expiration of this Agreement shall not derogate from Partner’s and any Third-Party Marketer’s obligations to provide first-level Support to end-customers who purchased company’s products for the remainder of each product’s license period; (e) Expiration or Termination of this Agreement for whatever reason shall not derogate from Partner’s entitlement to receive any fees or payments accrued in Partner’s favor prior to the expiration or termination of this Agreement. In addition, for clarity purposes it is hereby clarified that expiration or termination of this Agreement shall not compel Company to revoke any licenses purchased from it in the course of the performance of this Agreement, and such decision shall be subject to Section 13 above.
16.5. Survival. The following provisions of this Agreement shall survive its expiration or termination, howsoever occurring: Sections 2.5, 2.6, 2.7, 7, 9, 10, 11, 14, 15, 16.4, 16.5, 17, and 18.
17. EXCLUSION OF WARRANTIES.
17.1. EXCLUSION OF WARRANTIES. THE COMPANY’S OFFERINGS AND MARKS ARE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY PROVIDES NO WARRANTIES RELATING TO SUCH COMPANY’S OFFERINGS OR MARKS UNDER THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, OR IMPLIED WARRANTY OF TITLE OR NON-INFRINGEMENT. SAVE AS SET OUT IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND OTHER TERMS IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THIS AGREEMENT.
18.1. Governing Law; Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Israel without regard to the conflicts of laws principles thereof. Any dispute or claim arising out of or in connection with the Agreement shall be finally and exclusively settled by the competent courts of Tel Aviv-Jaffa. For purposes of this Agreement, Company and Party hereby irrevocably consent to the exclusive jurisdiction of the competent courts in the city of Tel Aviv-Jaffa, Israel.
18.2. Entire Agreement. This Agreement constitutes the entire agreement between Company and Party with respect to the subject matter hereof and supersedes any prior agreements between the Parties with respect to the subject matter hereof. This Agreement may only be amended by a written instrument signed by both Parties.
18.3. No Waiver. Neither Party shall, by mere lapse of time, without giving notice thereof, be deemed to have waived any breach by the other Party of any terms or provisions of this Agreement. The waiver by either Party of any such breach shall not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.
18.4. Assignment. Neither Party may assign this Agreement, or any rights or obligation hereunder, in whole or in part, without the prior written consent of the other Party, and any attempt by a Party to so assign this Agreement shall be deemed null and void. Notwithstanding the foregoing, either Party may transfer its rights and obligations hereunder to a third party that acquires all, or substantially all, of the assets subject to this Agreement, or securities or assets of the transferring Party (including in connection with a merger).
18.5. Notices. All notices, demands, consents or other communications required or permitted to be given or made under this Agreement shall be in writing and shall be given to such Party’s address as set forth below or at such other address as the Party shall have furnished to each other Party in writing in accordance with this provision:
If to Company:
[send through Partner]
If to Partner:
NMS Data, Inc.
23172 Plaza Pointe Dr., Ste. 205
Laguna Hills CA 92653
Attention: Mr. Larry Neilson
Any notice sent in accordance with this Section 18.5 shall be effective (i) if mailed by registered mail, ten (10) business days after mailing, (ii) if sent by courier or messenger, upon delivery, and (iii) if sent via email or facsimile, upon transmission and electronic confirmation of receipt or, if transmitted and received on a non-business day, on the first business day following transmission and electronic confirmation of receipt (provided, however, that any notice of change of address shall only be valid upon receipt).
18.6. Amendments. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all Parties.
18.7. Severability. Each provision hereof is intended to be severable and the invalidity or illegality of any portion of this Agreement shall not affect the validity or legality of the remainder hereof.
18.8. Captions. Section and paragraph captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, or extend or describe the scope of this Agreement or the intent of any provision hereof.
18.9. Third Party Rights. It is expressly declared that no rights shall be conferred under this Agreement on any person other than the Partner and Company, and no person other than the Partner and Company shall have any right to enforce any term of this Agreement.
18.10. Currency. All prices stipulated in this Agreement and any attachments hereto are in EURO currency.
18.11. Agreement in Counterparts. This Agreement may be executed in several counterparts and all so executed shall constitute one Agreement, binding on all Parties hereto, notwithstanding that all the Parties are not signatories to the original or same counterpart.