Intellogy - Reseller Agreement
Last Updated 1-1-2008
BY BECOMING AN INTELLOGY SOLUTIONS RESELLER, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE TERMS OF THIS AGREEMENT. THE TERM "VAR" REFERS TO: (1) THE COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES AND USERS, OR (2) AN INDIVIDUAL, IN THE CASE OF A NON-LEGAL ENTITY, AS DEFINED IN THE REGISTRATION INFORMATION PROVIDED TO INTELLOGY SOLUTIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT BECOME A VALUE-ADDED RESELLER OF INTELLOGY SOLUTIONS.
This Value Added Reseller Agreement ("Agreement") is made and effective upon acceptance, by and between Intellogy Solutions and VAR. Intellogy Solutions has developed certain software which it markets directly to end users and also markets through intermediaries such as VAR. VAR is in the business of creating and adding value to existing software and technology products and remarketing the value-added products to end users. VAR desires to take a license in certain of Intellogy Solutions's products and to add value to same and remarket the value-added products, all pursuant to this Agreement.
2. Nonexclusive Appointment.
VAR is hereby appointed a nonexclusive value-added reseller of the Products for sale in the United States pursuant to this Agreement. VAR accepts such appointment and agrees to serve as a value-added reseller of the Products to end users as provided herein. This Agreement is not exclusive to VAR, and Intellogy Solutions reserves the unrestricted right to sell, license, market and distribute or to grant to others the right to sell, license, market and distribute the Products and value added versions thereof anywhere in the world.
3. Price and Discounts.
Prices, discounts, and other terms, if any, for the Products are subject to change at any time.
4. Product Changes.
Intellogy Solutions has the right to modify, alter, amend or delete from the Products at any time at its discretion. VAR agrees not to remove from the Products any copyright notice included therein.
5. Ordering, Delivery, and Shipment.
a. Purchases of Product pursuant to this Agreement shall be made by Intellogy Solutions's purchase forms at the Intellogy website.
b. All orders must specify the Product or Products to be purchased; the appropriate purchase price; the requested setup date if applicable.
c. VARs shall be responsible to pay, or reimburse Intellogy Solutions, as appropriate, for any sales, use, excise or similar tax levied on the transactions hereunder, or any personal property tax attributable to the license granted VAR herein.
a. Intellogy Solutions grants and VAR accepts a limited, nonexclusive license to the Products as provided in this Agreement. The license granted herein shall permit VAR to combine or include the Products with VAR's other software or hardware for the purpose of adding to or increasing the value, functionality or utility of such software or hardware for VAR's end user customers. VAR may not copy any of the Products or distribute or transfer the Products except as provided herein.
b. Intellogy Solutions hereby grants VAR a limited, nonexclusive license to grant sublicenses of the Product to VAR's end user customers in the normal course of business. Any sublicense of the product by VAR shall be pursuant to the following terms:
(i) VAR's sublicensee shall have no right to copy, modify, reproduce, publish or convey any part of any Product.
(ii) VAR's sublicensee shall acquire no ownership in the Product.
(iii) VAR's sublicensee shall look solely to VAR in the event of any defect, damage or inoperability of the product or part thereof.
c. If VAR's sublicensee fails to perform any material obligation with respect to Product pursuant to this Agreement, then VAR shall cooperate with Intellogy Solutions to protect and enforce Intellogy Solutions's rights and title with respect to the Products.
In the performance of this Agreement, each party may have access to confidential, proprietary or trade secret information owned or provided by the other party relating to software computer programs, object code, source code, marketing plans, business plans, financial information, specifications, flow charts and other data ("Confidential Information"). All Confidential Information supplied by one party to another pursuant to this Agreement shall remain the exclusive property of the disclosing party. The receiving party shall use such Confidential Information only for the purposes of this Agreement and shall not copy, disclose, convey or transfer any of the Confidential Information or any part thereof to any third party, except that VAR may sublicense the Products as set forth in this Agreement. Neither party shall have any obligation with respect to Confidential Information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (ii) was previously known to the a receiving party or rightly received by a receiving party from a third party; or (iii) is independently developed by or a the receiving party.
8. VAR Sales Organization and Activities.
In connection with the performance of its obligations in this Agreement in a professional and businesslike manner, VAR agrees to:
a. Hire, train and employ at its place or places of business competent, professional and ethical sales, technical and support personnel to sell and support products.
b. Provide prompt, reliable and competent technical and other assistance to VAR's end user customers with respect to the Products.
c. Conduct its business in a professional, businesslike manner that will reflect favorably on Intellogy Solutions and the Products, and not engage in deceptive, fraudulent, misleading, illegal or unethical business practices, whether with respect to the Products or otherwise.
9. Intellogy Solutions's Sales Assistance.
Intellogy Solutions will provide reasonable commercial and technical assistance to VAR as may be necessary and appropriate to assist VAR in effectively carrying out its obligations under this Agreement and in the promotion and sale of the Products to VAR's end user customers. Intellogy Solutions will from time to time and subject to availability provide to VAR and its agents sales promotion materials, technical manuals, sales aides and other materials helpful in the promotion or sales of the Products. Intellogy Solutions may also provide consulting and scripting services to VAR at standard billing rates.
10. Limited Warranties.
a. Intellogy Solutions warrants that it is the owner of or otherwise has the right to license the Products and otherwise perform its obligations set forth herein.
b. Intellogy Solutions warrants that each Product will perform the functions substantially according to Intellogy Solutions's regular specifications document with respect to such Product. In the event of any breach the warranty set forth in this section 10.B., VAR's sole remedy, and Intellogy Solutions's sole liability, will be that Intellogy Solutions must promptly repair the Products so as to conform to the warranty or, at Intellogy Solutions's election, refund the purchase price.
IN NO EVENT SHALL INTELLOGY SOLUTIONS BE LIABLE TO VAR FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR PROFITS, WITH A CLAIM BY REASON OF BREACH OF WARRANTY OR BASED ON CONTRACT, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER INTELLOGY SOLUTIONS HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES IN ADVANCE.
a. VAR agrees to indemnify and hold harmless Intellogy Solutions from and against loss, suit, damage or claim including reasonable attorney's fees and costs, arising out of or connecting with the sale, sublicense or use of any of the Products which have been modified by VAR or anyone else.
b. Intellogy Solutions shall, at its own expense, defend any suit that may be instituted against VAR or any end user customer of VAR for any alleged infringement of any United States patent, trademark or copyright related to the Product as provided by Intellogy Solutions hereunder, provided that:
(i). Such alleged infringement consists only of the use of the Product in the manner for which the Product was designed by itself, and does not relate to any modification or alteration or combination with other works.
(ii). VAR gives Intellogy Solutions immediate notice in writing of any such suit and permits Intellogy Solutions, with counsel of its choice, to defend such suits.
(iii). VAR provides Intellogy Solutions all of the necessary information, assistance and authority, to enable Intellogy Solutions to defend such suit, and similarly causes all VAR's end user customers to similarly provide all needed information, assistance and authority, all at VAR's expense.
(iv). Intellogy Solutions's indemnity shall not apply with respect to any claim arising out of or based upon any modification or alteration of the Products created by or for Intellogy Solutions.
13. Relationship of the Parties.
It is expressly understood and agreed that the relationship between the parties is solely that of "seller" and "buyer". VAR is not, and shall not be, a partner, agent, representative or joint venturer of Intellogy Solutions. VAR has no authority to assume or create any obligation for or on behalf of Intellogy Solutions, express or implied, with respect to the Products or otherwise.
14. Intellogy Solutions's Marks.
a. Intellogy Solutions hereby grants to VAR a limited, nonexclusive right to use Intellogy Solutions's regular trade names, trademarks, titles and logos (the "Licensed Marks") in the advertising, promotion and sale of the Products. VAR shall not make or permit alteration or removal of tags, labels, or identifying marks placed by Intellogy Solutions on or within the Software program of any product. VAR will not use Intellogy Solutions's trade names or abbreviations (with the exception of a logo or mark or graphic design provided by Intellogy Solutions which indicates VAR is an authorized reseller of Intellogy Solutions) in VAR's corporate title, or name or in any way that might result in confusion as to separate and distinct identities of Intellogy Solutions and VAR. Upon the expiration or earlier termination of this Agreement, the license granted to VAR in the Licensed Marks shall immediately terminate and VAR shall immediately cease and desist all use of the Licensed Marks.
b. VAR recognizes and acknowledges Intellogy Solutions's ownership and title to the Licensed Marks and the goodwill related thereto and agrees that any goodwill which accrues because of VAR's use of such marks shall become the property of Intellogy Solutions. VAR further agrees not to contest or take any action in opposition to any trademark, service mark, trade name or logo of Intellogy Solutions or to use, employ or attempt to register any mark or trade name which is similar to any mark or name of Intellogy Solutions.
c. VAR shall apply the Licensed Marks only to products which have been manufactured in accordance with the standards of quality in materials, design, workmanship, use, advertising and promotion set forth in Intellogy Solutions's trademark use specifications and product control specifications ("Control Specifications"), copies of which will be furnished to VAR in confidence pursuant to Section 7 of this Agreement.
d. Intellogy Solutions shall have the right at any time to conduct examination of products created by VAR to determine compliance of such products with the applicable Control Specifications. If at any time such products shall, in the sole opinion of Intellogy Solutions, fail to conform with the standards of quality in materials, design, workmanship, use, advertising, and promotion set forth in such Control Specifications, Intellogy Solutions shall so notify VAR. Upon such notification, VAR shall promptly cease to use the Licensed Marks on such products and shall not sell such nonconforming products until the standards of quality contained in the applicable Control Specifications have been met to the satisfaction of Intellogy Solutions.
15. Term and Termination.
a. This Agreement shall commence upon acceptance and continue for a Term of one year. Thereafter, this Agreement shall continue until a party shall give notice to the other party of its desire to terminate this Agreement upon at least ninety (90) days prior written notice.
b. In the event that VAR has failed to pay any amount when due or is in breach or default of any other material obligation set forth in this Agreement, then Intellogy Solutions may notify VAR and if VAR has not paid the entire amount due or cured its other breach or default within 90 days following such notice, then Intellogy Solutions may elect to terminate this Agreement.
c. In the event of any other breach or default of any material obligation owed by Intellogy Solutions in this Agreement, then the VAR may provide notice to Intellogy Solutions and if such breach or default is not cured within 90 days following such notice, the Agreement may be terminated by VAR.
d. A "Reseller Fee" of $199.00 per year will be charged automatically on VAR's term renewal date, unless canceled prior to term renewal date. Intellogy Solutions will waive the annual Reseller Fee for any VAR with $1,000.00 or more gross sales in the previous term.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services;
If to Intellogy Solutions:
2618-A Battleground Ave, #279
Greensboro, NC 27408
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
18. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws of the state of North Carolina.
19. Modification to Terms.
Intellogy Solutions reserves the right to change the terms and conditions of this Agreement or its policies relating to the Products at any time and shall notify VAR by posting an updated version of this Agreement on the Intellogy website. VAR is responsible for regularly reviewing this Agreement. Continued use of Products after any such changes shall constitute VAR's consent to such changes.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
BY BECOMING AN INTELLOGY SOLUTIONS RESELLER, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO AGREEMENT ABOVE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT AS SET FORTH ABOVE, DO NOT BECOME A VALUE-ADDED RESELLER OF INTELLOGY SOLUTIONS.