LINCOLN METHOD SOFTWARE RESELLER AGREEMENT
This Reseller Agreement (the "Agreement") is entered into by and between Lincoln Method ("LM") and your organization ("Reseller"). LM may amend the terms and conditions of this Agreement at any time upon notice to Reseller.
- License Grant
1.1. Subject to the terms and conditions of this Agreement, LM grants Reseller a non- transferable, non-assignable license, without right to sublicense, within "an assigned territory" to Market, promote, and resell software products developed by LM (the "Products"), and use LM trademark, service mark and logo solely for its performance under this Agreement. The Reseller will place its orders for the Products directly with LM. The Reseller shall not make any representation or warranty regarding the Products to any third party other than that authorized in writing by LM. All intellectual property rights, other than those expressly granted under this Agreement, that relate to the Products shall remain with LM.
1.2. The Reseller may advertise in publications of general circulation that it is an authorized reseller of the Products, subject to LM's prior written approval for each such publication.
1.3. The Reseller's rights to resell the Products within the Territory shall not be exclusive unless otherwise agreed in writing.
1.4. Agreement is subject to approval by LM.
2.1. All prices for the Products provided by LM to the Reseller are in US dollars. LM has the right to revise the prices for the Products to the Reseller upon thirty (90) days written notice. Such revisions shall apply to orders received by LM on or after the effective date of the revision.
2.2. The Reseller may set the prices for the Products for resale.
2.3. The Reseller shall be responsible for paying all taxes of any nature which become due with regard to the Products it purchases and/or resells, except for taxes on LM's income, irrespective of which party may be responsible for reporting or collecting such taxes.
- Payment and Terms
3.1 Payments are due on the terms that have been agreed to with the resellers in the Reseller Terms Sheet. If due to bank charges, transfer fees, or the like, LM should receive less than its invoice amount, LM will re-invoice Reseller for the shortfall. Should payment in full of any invoice (aside from such shortfalls) not be received by LM, LM will impose a debt service charge as stated in the Reseller Terms Sheet.
3.2. Failure of Reseller's clients to pay in no way relieves the Partner's obligations to make full payment.
3.3. Reseller agrees to provide LM the names, addresses and phone numbers of it's clients for the Products as well all feedbacks from its clients regarding the Products.
3.4. Reseller hereby agrees to pay any and all attorney fees, court costs, and related expenses incurred by LM in the collection of any amount due it.
- Duties of Reseller
4.1. LM Promotion: The Reseller agrees to promote LM Products on its own website. Reseller also agrees to add a link to LM Website www.LincolnMethod.com on its home page.
4.2. Sales Support: The Reseller will support end users by providing technical support in the means of email, phone, video conference, and on-site support if needed.
4.3. Technical Support: LM will support end users by providing technical support in the means of email, phone, video conference, and on-site support if needed.
4.4. General: In carrying out this Agreement, the Reseller will conduct itself in an ethical, professional and lawful manner, will exercise its best efforts to achieve a high level of customer satisfaction, and will refrain from doing anything to impair the reputation of LM.
- Limitation of LM's Obligation & Liability
5.1. LM shall not be liable to the Reseller or any of its customers for any special indirect, consequential, incidental or exemplary damages, including, but not limited to, loss of business, loss of profit, loss or damage resulting from the loss of data, inability to access Internet, or inability to transmit or receive information, caused by, or resulting from, delays, non-deliveries, or service interruptions caused by LM or the Products, even if LM has been advised of the possibility of such damages.
5.2. LM's liability to the Reseller and any customer of Reseller is limited to the purchase price received by LM for the relevant Products.
5.3. The Reseller will take all necessary measures to preclude LM from being made a party to any lawsuit or claim regarding the Products provided to customers of Reseller. The Reseller hereby agrees to defend, indemnify and hold harmless LM from any and all claims of whatever nature brought by any of Reseller's customers against LM arising from the Reseller's breach of this Agreement or any misconduct or wrongful omission of the Reseller.
The Reseller acknowledges that by reason of its relationship with LM hereunder, it may have access to certain information and materials relating to LM's business, suppliers, customers, personnel, technology, and marketing strategies that is confidential and of substantial value to LM (collectively, "Confidential Information"). The Reseller agrees that it will not use in any way for its own benefit (other than to perform under this Agreement) or for the benefit of any third party, nor will Reseller disclose to any third party any Confidential Information. The Reseller further agrees that it will return to LM or destroy all copies of Confidential Information under its custody or control upon request by LM or termination of this Agreement. The provisions of this section shall survive the termination of the Agreement for any reason. Upon any breach or threatened breach of this section, LM shall be entitled to injunctive relief in addition to other remedies, which injunctive relief shall not be contested by the Reseller.
- 1 Relationship of the Parties
The relationship between LM and the Reseller is that of independent contractors and neither party is an employee, agent, partner or joint venture of the other. The Reseller has no authority, apparent or otherwise, to contract for or on behalf of LM, or in any other way legally bind LM in any fashion.
The parties may use each other’s names and logos in marketing and promotional material. This includes; print and online media.
The reseller agrees not to claim ownership of any of Lincoln Method’s individual property in any of the marketing and/ or promotional content on print or on online media.
The parties shall attempt to resolve all disputes arising out of this Agreement in a spirit of cooperation without formal proceedings. Any dispute which cannot be so resolved (other than the collection of money due on unpaid invoices) and other than the injunctive relief referred to in section 6 shall be subject to arbitration upon written demand of either party. Arbitration shall take place in Delaware. The arbitration shall follow the guidelines established by the American Arbitration Association.
- Terms & Termination
The initial term of this Agreement is one year starting from the Effective Date. This Agreement shall automatically renew for one year term thereafter, until terminated by either party with ninety (90) days prior notice unless otherwise terminated as follows:
9.1. By LM, upon ninety (90) days written notice;
9.2. By LM immediately upon notice if Reseller breaches any provision of this Agreement;
9.3. There is an instituted bankruptcy or insolvency proceeding against the Reseller, which is not vacated within sixty (60) days from the date of filing;
9.4. The Reseller institutes a voluntary bankruptcy or insolvency proceeding, or otherwise is insolvency;
9.5. The Reseller makes an assignment of all or part of its assets for the benefit of creditors;
The Reseller's rights and obligations under this agreement may not be transferred or assigned directly or indirectly without the prior written consent of LM.
- Partial Invalidity
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect.
- Applicable Law, Jurisdictional Matters
This Agreement is governed by and construed under the laws of the State of Delaware without regard to its conflict of law rules. The federal and state courts of located in Delaware shall have exclusive jurisdiction to adjudicate any non-arbitrable dispute arising out of this Agreement.
All notices may be sent by email, fax, or express mail to the email address, fax number, or address most recently provided and will be effective upon transmission.
- Entire Agreement, Modifications
This Agreement sets forth the entire agreement and understanding between the parties with regard to the subject matter hereof and supersedes any and all prior agreements between them. LM may make changes to this agreement upon thirty (30) days written notice to Reseller.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, do hereby execute this instrument, with each signatory warranting its authority to enter into this agreement on behalf of the party it represents.