Marketing Representative Agreement

Marketing Representative Agreement for Software

This Marketing Representative Agreement, hereinafter called the Agreement, is made on the day of , 20, between ,

,

with its principal office located at , referred to herein as Company, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Representative.

Whereas, Company and Representative desire to enter into a relationship whereby Representative will act as a marketing representative of Company for the Software, as such terms are defined below, on the terms and conditions hereinafter set forth.

Now, therefore, for and in consideration of the mutual promises and covenants set forth herein, Company and Representative hereby agree as follows:

I. Definitions. The following terms when used in this Agreement shall have the following meanings:

A. Software shall mean the most current version of Company's computer software programs otherwise known as in machine readable object code form as listed in Exhibit A hereto and Company’s most current proprietary, copyrighted user manuals and documentation associated therewith, and shall also include all modifications and enhancements to such computer programs and documentation as provided by Company, and all authorized back-up or archival copies.

B. Marketing Representative shall mean a .

C. License Agreement shall mean Company's standard customer end user License Agreement attached hereto as Exhibit B, which Agreement must be entered into by each Customer as a precondition to use of Software. This License may also appear in the form of a click-on license via an electronic communications over the Internet.

D. Customer shall mean a end-user person or entity brought to Company's attention for the first time by Representative who has not previously been contacted by Company and who as a result of the actions of Representative enters into a License Agreement with Company for the purchase and use of the Software.

II. Appointment of Representative.

A. Except as set forth herein, during the term hereof, Company hereby appoints Representative as Company's nonexclusive Representative for marketing of Software. Representative agrees that the marketing rights granted hereby are non-transferable and non-assignable. Representative shall not by virtue of this appointment be deemed to be granted any authority to market Software to anyone who intends to further market the Software either as independent products or as an original equipment manufacturer (OEM) or a value added dealer or reseller (VAD or VAR). Representative shall have the right to solicit orders for Software from any potential customer, except those potential customers or classes of customers if any, described on Exhibit C attached hereto.

B. Noncompetition
During the term of this Agreement, Representative shall not engage in the development, distribution, or representation, directly or indirectly, of any computer program similar to, or competitive with, Software.

III. Pricing and Terms of Use for Software
Company shall have the absolute right to establish the prices, charges and terms governing the licensing of Software (collectively the License Policies) to any Customer. The License Policies in effect from the date of this Agreement until further notice are set forth on Exhibit D attached hereto. At least fifteen (15) days prior to a change in the License Policies of Company, Company shall give written notice to Representative of such proposed change and shall specify therein the effective date of such change.

IV. Referral Fee

A. On each order (represented by a License Agreement executed by a Customer) for Software (Order). Company shall pay to Representative a Referral Fee determined in accordance with Section IV-B and Exhibit E attached hereto.

B. Earned Referral Fee. A Referral Fee shall be deemed earned by Representative upon receipt of payment by Company of a license fee for an Order after six (6) months of continuous use by Customer. All commissions earned by Representative hereunder shall be due on or before the thirtieth (30th) day after the license fee for the previous six (6) months is received by Company from the end-user Customer.

C. Commissions after Termination. If this Agreement shall terminate for any reason whatsoever prior to the end of the Customer's six (6)-month continuous subscription, Representative shall not be entitled to receive its full commissions.

D. Taxes. All taxes, duties, fees and other governmental charges of any kind including withholding taxes (except United States taxes based on the gross revenues or net income of Company) which are levied, assessed or otherwise imposed by or under the authority of any government or any political subdivision thereof on licenses of Software by Company shall be borne by Customer and shall not be considered a part of, deducted from, or offset against any commission payable to Representative.

E. Ancillary Services. Representative may provide additional services to the end-user Customers for assistance in deploying Software. Representative shall be entitled to retain any and all fees generated by Representative in the performance of such related services provided such services have been approved or authorized by Company, and such approval shall not to be unreasonably withheld. By way of example and not limitation such services may include billing services, computer system and network support and best practices for the end-user Customer. Representative will provide all such services at it's own risk and liability and will defend, indemnify and hold harmless Company from any damages or liability that might result from the delivery of such services by Representative.

V. Obligations of Company.

A. Support. Company shall provide such support to Representative as Company deems to be reasonably necessary to enable Representative to perform its obligations under this Agreement.

B. Technical Support. Company or its designee shall provide technical and maintenance support for Software to Customers, pursuant to the License Agreement.

C. Warranty. The Software under this Agreement is warranted by Company only in accordance with the warranties expressly set forth in the License Agreement. Such warranties may be modified by Company from time to time.

D. Limitation of Remedies. Company shall not be liable for any loss or damage caused by delay in furnishing software services or any other performance under or pursuant to this Agreement. In no event shall Company's liability of any kind include any special, incidental or consequential losses or damages, even if Company shall have been advised of the possibility of such potential loss or damage.

VI. Obligations of Representative.

A. Marketing. Representative shall use its best efforts to market the Software. Representative shall be solely responsible for paying all costs of advertising and promotion of Software. Representative shall provide Company with copies of all such proposed advertising or promotion thirty (30) days in advance of use by Representative. Representative shall maintain a sufficient sales organization to effectively market the Software in the Territory.

B. Authorized Statements. Representative is authorized to represent to its customers only such facts about Software as Company itself states in its product descriptions, advertising, and promotional materials or as may be stated in other nonconfidential, written material furnished by Company. Representative agrees to defend, indemnify and hold Company harmless from any liability arising in connection with any unauthorized statement or misrepresentation of fact made by Representative or its agents to any party with respect to Software.

C. License Agreements. Under no circumstances shall Representative release the Software to a Customer prior to execution by the Customer of the License Agreement set forth in Exhibit B, nor prior to approval of the signed License Agreement by Company through Company's execution of the License Agreement. Representative shall cause to be delivered to each prospective licensee of the Software a License Agreement and shall use its reasonable best efforts to ensure that such prospective licensee sign and abide by the terms of the License Agreement. Representative shall not alter, amend, enlarge or limit any term, condition or provision in the License Agreement without the express prior written consent of Company. Representative shall forward to Company the original copy of the Customer-executed License Agreement no later than ten (10) days immediately following receipt by Representative of the License Agreement signed by the prospective licensee. All such License Agreements signed by prospective licensees shall be subject to final acceptance or rejection by Company. In all cases, rejections by Company shall be given by written notice to the prospective licensee with a copy thereof to Representative. Acceptance of a License Agreement by Company shall be deemed to have occurred only upon Company's execution of the License Agreement. Company reserves the right to reject any License Agreement solicited or submitted by Representative. All Customers that are referred to Company by Representative shall be required by Company to acknowledge acceptance of the terms of use of Software through a click-on or similar license agreement made available to Customer via the Internet.

D. Confidentiality. Representative understands and agrees that, in Company's performance of its duties hereunder, Company will communicate to Representative certain confidential and proprietary information concerning the Software and know-how, technology, techniques or marketing plans relating thereto (collectively the Know-How), all of which are confidential, proprietary to and trade secrets of Company. All such disclosures shall be made by Company to Representative in utmost confidence. Representative agrees to hold all of such Know-How within its own organization and shall not, without specific prior written consent of an authorized officer of Company, utilize in any manner, communicate or disclose any part thereof to any third party. Representative shall return all written copies of Know-How to Company upon any termination of this Agreement, or upon written request by Company at any time. Representative shall make no attempts to reverse compile, disassemble, or otherwise reverse engineer the Software or any portion thereof, nor shall Representative permit others to do so. Representative shall require all of its customers, agents and employees to sign a confidentiality agreement which requires compliance by such personnel of the provisions of this Agreement and which is satisfactory to Company, shall vigorously enforce such agreement, and shall take all steps which Representative takes to protect its most valuable trade secrets, and by no event less than reasonable steps. Representative acknowledges that:

1. The restrictions contained in this Agreement are reasonable and necessary to protect Company's legitimate interest,

2. Remedies at law will be inadequate and any violation of these restrictions will cause irreparable damage to Company within a short period of time, and

3. Company will be entitled to injunctive relief against each violation.

Representative further agrees that all confidentiality and restrictions on use commitments hereunder shall survive termination of this Agreement for any reason.

E. Proprietary Markings. Representative agrees not to remove or destroy any proprietary, trademark or copyright markings or confidential legends placed upon or contained within the Software or any related materials or documentation. Representative further agrees to insert and maintain such proprietary or copyright markings or confidential legends within any related materials or documentation. Representative acknowledges and agrees that Company is the sole owner of all right, title and interest in the Software and all such proprietary, trademark or copyright markings throughout the world. Representative shall not do anything or commit any act which might prejudice or adversely affect the validity of such markings or ownership by Company thereof, and shall cease to use Company's trademarks or any similar markings, in any manner on the expiration or other termination of this Agreement.

F. Legal Notices. Representative shall immediately advise Company of any legal notices served on Representative which might affect Company. Representative further agrees reasonably to assist and cooperate with Company's engineers, accountants, attorneys, and service and sales personnel during trips to the Territory relative to the Software and this Agreement.

G. Costs and Expenses. Representative shall be solely responsible for all its costs, salaries and other expenses incurred in connection with the performance of its obligations hereunder, and Company shall have no liability, obligation or responsibility therefore.

H. Ownership and Protection of Proprietary Rights. All applicable rights in patents, copyrights, trade secrets and other confidential and proprietary information, trademarks and any other intellectual property rights in the Software are and shall remain in Company. Representative shall, at its own cost and expense, protect and defend Company's ownership of the Software and all patents, copyrights, trademarks and trade secrets associated therewith against all claims, liens, legal processes of creditors of Representative and misappropriations by employees, agents or other third parties from Representative, or from its agents or employees, and shall keep the same free and clear from all such claims, liens, processes, and misappropriations.

VII. Term and Termination

A. This Agreement shall commence as of the date first set forth above and shall remain in effect for one (1) year. It shall automatically be renewed without interruption for successive one (1) year terms, unless, not less than thirty (30) days before the end of any term, either Company or Representative notifies the other party, in writing, of its election not to renew, in which event, this Agreement will terminate at the end of such term. Notwithstanding the foregoing, this Agreement may be terminated upon the failure or neglect of either party to observe, keep, or perform any of the terms and provisions of this Agreement, and the same is not corrected by the defaulting party within thirty (30) days of such party's receipt of written notice or demand from the other party that the same be corrected.

B. Insolvency. In the event that either party be adjudged insolvent or bankrupt, or upon the institution of any proceedings by or against it seeking relief, reorganization or arrangement under any laws relating to insolvency, or upon any assignment for the benefit of creditors, or upon the appointment of a receiver, liquidator or trustee of any of its property or assets, or upon the liquidation, dissolution or winding up of its business, then and in any such events this Agreement may be terminated or cancelled by the other party upon giving written notice thereof, and upon the giving of such notice this Agreement shall terminate.

C. Disposition of Software on Termination. Upon the termination of this Agreement for any reason, the marketing rights granted hereby shall immediately cease and terminate and Representative shall promptly return to Company all Software still in Representative's possession; provided, however, that Company shall remit to Representative all commissions due Representative and Representative shall remit to Company all payments due Company pursuant to Section IV above.

D. Confidentiality. In the event of termination of this Agreement for any reason, the confidentiality provisions contained in Section VI-D and ownership rights set forth in Section VI-H above shall survive such termination and continue in full force and effect.

VIII. Hold Harmless

Neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf of, or binding upon, the other party. Representative shall be solely responsible for all investments made or expenses incurred in connection with the establishment or operation of its business. Representative expressly agrees that it will act under this Agreement as an independent contractor in accordance with the terms of this Agreement and to hold Company free and harmless from, any and all claims, liabilities, losses, damages, costs and expenses arising from or with respect to the discharge or termination of any personnel employed by Representative as a result of the termination of this Agreement, and the assessment of any payments, taxes or other charges payable with respect to any such personnel, persons, corporations, or other business entities as a result of such termination of this Agreement or any acts of Representative or its agents which give rise to claims that such acts were committed by or on behalf of Company by Representative acting in the role of Representative or otherwise.

IX. Miscellaneous Provisions.

A. Not a Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between Company and Representative. Company and Representative shall have no power to control the activities and operations of the other and their status is, and at all times will continue to be, that of independent contractor with respect to each other. Neither party shall have any power or authority to bind or commit the other.

B. Severability. The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

C. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

D. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

E. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

F. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, a reasonable sum for the successful party's attorney fees.

G. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the contrary, any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

H. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement.

I. Modification of Agreement. Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party.

J. Assignment of Rights. The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party.

K. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

L. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

WITNESS our signatures as of the day and date first above stated.