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.
2.1 [Omitted]
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.
17.2. Product Licenses Terms of Use. So long as Company publishes
Terms of Use for products and services on its website, each accessibility
product purchased from Company is and always shall be subject to Company's
Terms of Use, as may be in effect from time to time (at Company's
reasonable discretion), which can be found on [Company's website] or
delivered to Partner upon request, and which shall be deemed incorporated
herewith by reference. Partner undertakes to notify each applicable
end-customer and/or Third-Party Marketer of such and obtain their consent.
18. Miscellaneous.
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
Email: lneilson@neilsonmarketing.com
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.
