Scribe Software Corporation
This Agreement (the “Agreement”) is by and between Scribe Software Corporation (“Scribe”), a Delaware Corporation with its principal office at 150 Dow Street, Suite 543A, Manchester, NH, 03101 USA and you (“Reseller”).
In consideration of the following terms and conditions, the sufficiency of which the parties acknowledge, the parties agree as follows:
Section 1 Definitions.
The following terms shall have the following meanings for purposes of this Agreement:
1.1 End-User – An existing or prospective customer(s) of Reseller to whom (i) Reseller distributes Products for internal end use in the course of such customer(s) business and who executes an End User License Agreement, or (ii) who is referred to Scribe by Reseller in accordance with the terms of Scribe Online Reseller Terms and who executes an End User License Agreement for the use of Scribe Online.
1.2 End-User License Agreement – Also may be referred to as Terms of Service. The agreement whereby Scribe grants an End-User the right and license to use either the Product(s) or Scribe Online and establishes the terms for such use. Scribe shall amend the terms of the End User License Agreement from time to time in its sole discretion.
1.3 Scribe Online– The Scribe software online services.
1.4 Scribe Price List- means the current list of licensed software and published pricing for licensed software.
1.5 Scribe Works – means the online application Reseller may use to quote and configure Scribe Online services and provision end-user trials of the Scribe Online services.
1.6 Products – are Scribe Product(s) which consist of one or more Product(s) as listed within the Scribe Works application or the then current Scribe Price List, either of which may be amended from time to time, as well as the associated Scribe created documentation for use with said Product(s) such as reference guides, user manuals, and on-line help. Product(s) shall also include all updates and upgrades to those items listed in the Scribe works application or the then current Scribe Price List.
1.7 Licensed Software– means the Products and Services.
1.8 Proprietary Information- Product(s) or written information marked as confidential at the time of disclosure, or any other information of either party which, under reasonable circumstances would be considered confidential and proprietary. Proprietary Information shall not include information which (i) is lawfully in the other party’s possession prior to the disclosure; (ii) is lawfully disclosed to such party by a third-party without restrictions on its disclosure; (iii) is independently developed by such party; or (iv) became known to such party from a source other than the other party other than by the breach of an obligation of confidentiality owed to the other party.
Section 2 Appointment
2.1 Non-Exclusivity. Scribe hereby grants Reseller the nonexclusive worldwide right to resell the Products and/or Scribe Online. In the event Reseller has been granted the right to resell the Products, the resale of the Products shall be governed by the terms of this Agreement and the Product Reseller Terms. In the event Reseller has been granted the right to resell Scribe Online, the resale of, or referral of customers with respect to, Scribe Online shall be governed by the terms of this Agreement.
2.2 Requirements of Reseller:
- Reseller shall include the appropriate Scribe Reseller logo on its web site as provided by Scribe to Reseller.
- Reseller shall use commercially reasonable efforts to market, advertise and otherwise promote the Products and Scribe Online (as applicable).
- Reseller shall use the Scribe Works application, as applicable, in configuring and quoting Scribe Online services, and in provisioning end-user trials of the Scribe Online service.
Section 3 Scribe Online Reseller Terms
The following terms shall apply to Reseller’s resale of Scribe Online, or referral of End Users to Scribe with respect to Scribe Online, as applicable.
3.1 Resale of Software Service or Referral of End Users Regarding Software Service
Reseller shall have the right to resell Scribe Online or refer End Users to Scribe for Scribe Online as provided in this Agreement. In the event Reseller sells Scribe Online to an End User (a “Reseller End User”), Reseller shall do so pursuant to a minimum 12 month contract and Reseller shall collect and retain any and all fees for the sale of Scribe Online directly from the Reseller End User. In the case of the resale of Scribe Online, Reseller shall be entitled to charge any fee as it shall determine in its sole discretion. In the event Reseller refers an End User to Scribe for the direct purchase of Scribe Online from Scribe by the End User (a “Referred End User”), Scribe shall collect all fees for Scribe Online directly from the End User and Scribe shall be entitled to charge any fee for Scribe Online as it shall determine in its sole discretion.
3.2 Prices, Commissions, and Payments
Upon the sale of Scribe Online to End User, Reseller shall notify Scribe and shall pay Scribe the fees specified in the Scribe Works application or the Scribe Online Price list, whichever is applicable.
With respect to a Referred End User or Reseller End User, Reseller shall be entitled to the payment of a commission of 15% of net payable to Scribe for contracts executed with Referred End User, provided Scribe is notified in advance of this purchase. In no event shall Scribe be obligated to pay more than one commission to any reseller with respect to any End User and in the event of a dispute regarding the payment of any commission hereunder, Scribe’s decision regarding the payment of such commission, including any determination of qualification hereunder, shall be final and dispositive. Commissions will be payable by Scribe to Reseller 30 (thirty) days following the month in which Scribe receives a minimum of a full 12 month contract payment from an eligible Reseller End User or Referred End User.
Section 4 Pricing and Payment
4.1 Pricing and Payment: Pricing with respect to the Products and Scribe Online shall be governed by the Scribe Works application or the then current Scribe Reseller Price List. Scribe shall have the right to change the pricing and payment terms specified in the Price List at any time in its sole discretion upon thirty (30) days notice to Reseller. Scribe Works or Price List items quoted by Reseller prior to a Scribe Works or Price List change may be honored for a period not to exceed ninety days (90) days from the date of the Reseller quote, unless otherwise mutually agreed upon by both parties.
4.2 Tender and Payment. All amounts to be paid under this Agreement are payable in U.S. Dollars, unless otherwise specified in the Scribe Works application or the then current Scribe Price List. Payments due Scribe hereunder shall be paid in advance of order processing and may be made to Scribe via credit card, bank transfer, wire transfer, or company check.
4.3 Taxes. Reseller shall be responsible for the payment of any sales, use, VAT, excise or similar taxes imposed on payments under this Agreement. Reseller agrees to indemnify and hold Scribe harmless from any claims or damages resulting from Reseller’s failure to comply with this paragraph. This paragraph shall survive termination of this Agreement.
Section 5 Marketing
5.1 Publicity and Advertisement. Each party, at its own discretion, may from time to time issue its own press releases related to this Agreement. Before either party issues any such press release, it will submit the press release to the other party for its written approval, which approval will not be unreasonably withheld or delayed.
During the term of this Agreement, the parties may participate in additional mutually agreed upon joint marketing efforts, which will promote Product(s) and the parties’ respective services. Such activities may include joint sales calls, public announcements, press releases, analyst tours, development of collateral materials, joint trade show activities, seminars, webinars, and speaking engagements.
5.2 Trademarks. Scribe grants to Reseller the limited permission to use both Scribe’s trademarks solely to identify Product(s) licensed from Scribe under this Agreement. Reseller shall use Scribe’s trademarks and registered trademarks only for purposes of advertisement, promotion, and distribution of Product(s) and for no other purposes. Reseller shall use such trademarks and registered trademarks in accordance with the guidelines established by Scribe from time to time and shall not use such marks in any manner likely to confuse or mislead the public, or to be adverse to the best interests of Scribe. All goodwill arising from the use of Scribe trademarks by Reseller shall accrue solely to Scribe.
Section 6 Confidentiality
6.1 Agreement. Neither Scribe nor Reseller shall disclose the terms of this Agreement to anyone other than (i) its employees who reasonably acquire such knowledge in the ordinary course and scope of their employment; (ii) its agents or representatives whose assigned duties reasonably require such disclosure; or (iii) End-User, to the extent necessary to distribute, license and/or maintain Licensed Software. Scribe and Reseller shall take all reasonable steps to ensure that the terms of this Agreement are not disclosed further by its employees, agents or representatives or by any End-User, its employees, agents or representatives.
6.2 Scribe Information. Reseller agrees to hold in confidence Proprietary Information of Scribe and shall not make Proprietary Information available in any form for the use or benefit of any person or entity other than Reseller and/or End-User without the prior written consent of Scribe. Notwithstanding the foregoing, Scribe agrees that Reseller and/or End-User shall be permitted to disclose relevant aspects of Licensed Software to their employees and agents to the extent reasonably necessary for Reseller or End-User use of the Licensed Software; provided that Reseller and/or End-User shall take all reasonable steps to ensure that the Licensed Software are not further disclosed or duplicated. Neither Reseller nor End-User shall allow any attachment, levy, or execution upon or against the Licensed Software, and each shall immediately notify Scribe in writing regarding any such attempt. Scribe reserves the right to designate in writing which of its Proprietary Information may be disclosed by Reseller under the provisions of this Agreement.
6.3 Reseller Information. Scribe and its employees, agents or representatives shall not use, duplicate, or disclose to any third-party such Proprietary Information of Reseller without Reseller’s prior written consent, except to the extent reasonably necessary for the performance of Scribe’s obligations under this Agreement. Scribe shall take all reasonable steps to ensure Reseller’s Proprietary Information hereunder is not used, duplicated, or disclosed in contravention of this Agreement.
6.4 Disclosure Required by Law. Nothing in this Section shall restrict disclosure by either party required by any applicable law, or regulation, by the order of any court or administrative agency having jurisdiction regarding such matters, or in conjunction with legal due diligence for a pending merger, acquisition or public financing event. However, either party shall promptly upon receiving notice of any required disclosure, notify the other party in writing, providing all information and assistance for such party to defend its rights hereunder.
6.5 Injunctive Relief. In the event of a breach of the provisions of this Section, the parties shall be entitled to obtain injunctive or other equitable relief from a court of competent jurisdiction to restrain the use or disclosure of its Proprietary Information. Such remedy shall be in addition to, and not in lieu of, any other remedies provided for in this Agreement.
6.6 Material Breach. Failure to adhere to the provisions of this Section by either party shall be considered a material breach of the Agreement.
6.7 Survival. The terms of this Section shall survive termination of this Agreement.
Section 7 Warranties
7.1 Warranty The only warranties (and remedies for breach thereof) made by Scribe with respect to the Licensed Software and related services shall be those made to End-User in the End User License Agreement between Scribe and End-User. Reseller shall not make or give any representation, warranty, promise or assurance with respect to the Licensed Software and related services other than as contained in each such End-User Software License Agreement.
7.2 DISCLAIMER OF WARRANTIES. RESELLER EXPRESSLY AGREES AND ACKNOWLEDGES THAT THE FOREGOING WARRANTIES IN PARAGRAPH 6.1 ARE IN LIEU OF ANY AND ALL OTHER SCRIBE WARRANTIES, EXPRESS OR IMPLIED. SCRIBE, ON BEHALF OF ITSELF AND ITS SUPPLIERS, DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. RESELLER AGREES THAT THIS DISCLAIMER IS REASONABLE AND THAT RESELLER HAS HAD ADEQUATE PRIOR OPPORTUNITY TO ASSESS FULLY THE OPERATION AND PERFORMANCE OF THE PRODUCTS AND SOFTWARE SERVICES. RESELLER SHALL NOT TAKE ANY CONTRARY OR INCONSISTENT POSITION.
7.3 The terms of this section shall survive termination of this Agreement.
Section 8 Remedies/Limitation of Liability
8.1 LIMITATION OF SCRIBE LIABILITY. THE PARTIES AGREE THAT THE CUMULATIVE LIABILITY OF SCRIBE AND ITS SUPPLIERS FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR TORT, SHALL NOT EXCEED (I) IN THE CASE WHERE THE CLAIM ARISES FROM THE PRODUCTS, ANY AMOUNT PAID BY RESELLER TO SCRIBE FOR THE PRODUCTS, AND UNALLOCATED MAINTENANCE AND SUPPORT FEES RELATING THERETO, COMPRISING THE SUBJECT MATTER OF THE ACTION, OR (II) IN THE CASE WHERE THE CLAIM ARISES FROM SCRIBE ONLINE, THE AMOUNTS PAID BY RESELLER TO SCRIBE AND/OR PAID OR PAYABLE BY SCRIBE TO RESELLER WITH RESPECT TO THE PARTICULAR SCRIBE ONLINE SERVICE GIVING RISE TO THE CLAIM.
8.2 LIABILITY DISCLAIMER. IN NO EVENT SHALL EITHER PARTY OR THEIR SUPPLIERS BE LIABLE UNDER ANY FORM OF ACTION FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA OR BUSINESS) ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRODUCTS OR THE SOFTWARE SERVICES EVEN IF SUCH PARTY OR ITS SUPPLIERS HAVE BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 Time Limitation. Any legal proceeding based upon this Agreement must be instituted within one (1) year of the date
the cause of action first occurred.
8.4 Survival. The terms of this Section shall survive termination of this Agreement.
Section 9 Term/Termination
9.1 Term. This Agreement shall commence upon acceptance and shall continue until terminated as provided in Section 9.2.
9.2 Termination. This Agreement shall terminate 1) automatically if Reseller breaches any provision of this Agreement; 2) automatically if Reseller becomes insolvent or is the subject of a proceeding in bankruptcy, is placed in receivership, or enters into an arrangement for the benefit of its creditors; or 3) for any reason, upon thirty (30) days written notice by either party to the other party. Reseller waives any right, either express or implied by applicable law or otherwise, to any damages or compensation for the termination of this Agreement.
9.3 Effect of Termination. Upon termination of this Agreement, all rights granted to Reseller hereunder shall immediately cease and Reseller shall immediately return to Scribe all confidential information provided to reseller by Scribe. Upon termination of this Agreement, all End-User License Agreements shall remain in effect in accordance with their respective terms.
Section 10 Intellectual Property
As between Scribe and Reseller, Scribe shall own all right, title and interest in the Licensed Software and all parts thereof, including all intellectual property rights therein, and all modifications, improvements or developments with respect thereto, however originating or arising.
Section 11 Indemnification
11.1 Indemnification of Reseller. Scribe will defend or settle, at its own expense but under its sole direction and contingent on Reseller’s total cooperation, and indemnify and hold harmless Reseller against any claim alleging that Licensed Software in its unmodified form infringes any United States patent, trademark or copyright. If any of the Licensed Software become the subject of such a claim, Scribe reserves the right, at its sole option, to either (i) modify or replace the affected parts so the Licensed Software become non-infringing, (ii) obtain for Reseller and any End-User the right to continue to use the Licensed Software, or (iii) terminate this Agreement immediately if options (i) and (ii) listed above are commercially impracticable. In no event shall Reseller settle any such claim, lawsuit, or proceeding without Scribe’s prior approval, and Scribe shall have no liability for any such unapproved settlement so made. This paragraph states the entire liability of Scribe for any infringement involving the Licensed Software or any parts thereof.
11.2 Additional Indemnification of Reseller. In the event an action is brought against Reseller by any End-User claiming (i) any of the Licensed Software (made available to the End-User in accordance with the terms and conditions of the End-user Software License Agreement entered into between Scribe and the End-User) do not operate in substantial conformance with its related user documentation; (ii) the Licensed Software or Maintenance and Support Product services are discontinued by Scribe; or (iii) Scribe is otherwise in breach of the terms and conditions set forth in the underlying End-User License Agreement as entered into between Scribe and the End-User, then Scribe agrees to indemnify Reseller against and hold Reseller harmless from any loss, liability, or expense finally awarded against Reseller as a result of said claim(s); provided, however, that (i) Reseller notifies Scribe in writing promptly upon learning that such claim has or may be asserted, and (ii) Scribe shall have sole control over the defense of such claim and any negotiations for the settlement or compromise thereof. Scribe shall have no obligation under this Section to the extent that any claim is caused by (i) any installation, training, consulting, supporting and/or programming service(s) offered and performed by Reseller, (ii) any modification to or customization of the Licensed Software made by or for or on behalf of Reseller; (iii) misrepresentations by Reseller made to an End-User regarding the Licensed Software or related services; or (iv) a breach of Reseller of any of the obligations/limitations of Reseller as set forth in this Agreement.
11.3 Indemnification of Scribe. In the event an action is brought against Scribe by any End-User arising out of (i) the installation or configuration of the Licensed Software by Reseller or its agents; or (ii) modification, translation, customization or localization to the the Licensed Software by Reseller or its agents; or (iii) any representation or warranty of the Licensed Software by Reseller (other than that stated in the End-User License Agreement), then Reseller agrees to indemnify Scribe against and hold Scribe harmless from any loss, damage, liability, or expense finally awarded against Scribe or settlement thereof as a result of said claim(s); provided, however, that (i) Scribe notifies Reseller in writing promptly upon learning that such claim has or may be asserted, and (ii) Reseller shall have sole control over the defense of such claim and any negotiations for the settlement or compromise thereof. Reseller shall have no obligation under this Section to the extent that any claim is caused by (i) any of the Licensed Software (made available to the End-User in accordance with the terms and conditions of the End-user Software License Agreement entered into between Scribe and the End-User) not operating in substantial conformance with its related user documentation; or (ii) Scribe’s breach of the terms and conditions set forth in the underlying End-user Software License Agreement as entered into between Scribe and the End-User, or (iii) Scribe’s discontinuance of Maintenance and Support services to End-User.
11.4 Survival. The provisions of this Section shall survive termination of the Agreement for any reason.
Section 12 Miscellaneous General Provisions
12.1 Independent Contractors. Each party shall be and remain an independent contractor and nothing herein shall be deemed to constitute the parties as partners or agents. Neither party shall have any authority to act, or attempt to act, or represent itself directly or by implication, as an agent or in any manner assume or create any obligation on behalf of or in the name of the other, nor shall either be deemed the agent or employee of the other. Reseller shall have no authority to appoint any other dealer or re-marketer of the the Licensed Software. Each party will be solely responsible for payment of all compensation, employment‑related taxes, and insurance regarding its respective personnel.
12.2 Force Majeure. Neither party shall be liable for delays in its performance hereunder due to causes beyond its reasonable control, including but not limited to, acts of God, acts of public enemy, acts of government or courts of law or equity, civil war, insurrection or riots, fires, floods, explosions, earthquakes or other casualties, strikes or other labor troubles.
12.3 Successors. No assignment or transfer of this Agreement or any right or privilege granted hereunder, including any assignment by operation of law pursuant to a merger, liquidation, foreclosure, or involuntary sale in bankruptcy, shall be permitted of Reseller or shall be effective or binding on Scribe without Scribe’s prior written consent. Subject to the foregoing limitation, this Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors, and assigns. In the event of any assignment, conveyance or transfer of this Agreement by Scribe or any merger or acquisition of Scribe with, into or by another entity, the assignee or surviving entity shall assume all of the obligations and benefits of this Agreement.
12.4 Validity of Agreement. If any provision of this Agreement shall be held illegal, unenforceable, or in conflict with any law of a federal, state, or local government having jurisdiction over this Agreement, the validity of the remaining portions or provisions hereof shall not be affected thereby.
12.5 Governing Law. This Agreement shall be construed in accordance with and be governed by laws of the State of New Hampshire, United States of America, excluding conflict of laws interpretations.
12.6 Amendments in Writing. No amendment, modification, or waiver of any provision of this Agreement shall be effective unless it is set forth in a writing that refers to this Agreement and the provisions so affected and is executed by an authorized representative of both parties. No failure or delay by either party in exercising any right, power, or remedy will operate as a waiver of any such right, power, or remedy.
12.7 Expiration. This Agreement shall be valid only if executed by both parties within thirty (30) days of first execution.
12.8 Entire Agreement. This Agreement and its attached Exhibits constitute the entire agreement between the parties regarding the subject matter; superseding all previous communications, representations or agreements, either written or oral, with respect to the subject matter.
12.9 No Solicitation. For the duration of this Agreement and for the period of one (1) year following termination hereof, neither party shall, directly or indirectly, recruit or attempt to recruit any employee of the other party or otherwise initiate any offer or promise of employment with any employee or agent of the other party without the prior written consent of the other party. In the event of any violation of this section, the breaching party shall pay as liquidated damages a fee to the other party in an amount equal to one (1) times the annual salary of such employee with the other party. It shall not be violation of this section if a party hires an employee of the other party who responds to an undirected general advertisement.
12.10 Compliance with Applicable Laws. Reseller shall comply with all applicable local laws and regulations related to its activities hereunder, including any export regulations of the United States of America. Reseller shall indemnify and hold Scribe harmless from any claims and damages resulting from Reseller’s failure to comply with the provisions of this paragraph. This paragraph shall survive termination of this Agreement.
12.11 Survival. The terms of this Section shall survive termination of this Agreement.