Non-Exclusive Vertical Leap Partner Agreement
VERTICAL LEAP is in the business of manufacturing, producing, distributing and licensing the use of certain computer software programs and related documentation for business and financial accounting applications.
PARTNER is engaged in, among other things, the business of reselling computer software and/or the implementation of software systems.
VERTICAL LEAP and Partner desire to enter into this Agreement, whereby Partner shall become an Authorized Partner of VERTICAL LEAP based upon the terms and conditions contained below.
2. List of Exhibits
Exhibit 1: Financial co-operation terms for VERTICAL LEAP and PARTNER
Exhibit 2: The End User License Agreement
In this Agreement, except as otherwise expressly provided herein, the following terms shall have the meanings set out below “Agreement” means this Non-Exclusive PARTNER Agreement together with all Exhibits, which may be amended from time to time;
“Authorized Recipients” means any person as either of the parties permits in writing;
“Connected Persons” means, in relation to each of the parties, to the extent that they are involved in the projects;
- The respective group undertakings and each of their respective officers, employees, advisers, agents and representatives; and
- Officers, employees and partners of parties’ advisers, agents and representatives or of their respective group undertakings;
"End User" means a person, entity or group of entities under common control that licenses the Programs solely for its own internal use without any right of further distribution or sublicensing of the Programs as further set out in this Agreement;
"End User License Agreement" shall mean the conditions containing the terms governing the End Users' use of the programs as stipulated and/or amended by VERTICAL LEAP from time to time. The End User License Agreement in force at the time of the signing of this Agreement is attached as Exhibit 2;
“Error” means failure in the Programs to perform in substantial conformity with the documentation;
“Exhibit” means any attachment to this Agreement, which shall be considered part of this Agreement;
“Information” means all information (regardless of form) including, without limitation, all statements, contracts or agreements, designs, specifications, drawings, reports, documents, technology, hereunder source codes, knowledge, know-how disclosed by VERTICAL LEAP to PARTNER at any time or known to PARTNER in relation to:
The Agreement; or
The contents of any customer communication and all materials (regardless of form) generated by any person and based on such information, and includes any part of such information.
“Partner” means the non-exclusive partner whose signature appears in Section 24 and as further identified in Section 25.
“Products” means New Version, Programs, Enhancement or any other product or solution that can be delivered by VERTICAL LEAP.
"New Version" means subsequently, commercially released versions of the Programs that VERTICAL LEAP, in its sole discretion, has released.
"Programs" means the VERTICAL LEAP software solutions and documentation together with any subsequently released New Versions and Upgrades of such software and documentation. The Programs are to be revised, updated and/or amended by VERTICAL LEAP from time to time.
“Term” means the period commencing on the date that the last party signs this Agreement in Section 24 below and continues through the date this Agreement is terminated as set forth herein.
"Upgrade" means subsequently, commercially released versions of the Programs that VERTICAL LEAP, in its sole discretion. Installing an upgrade version depend on the End User has the license to the Programs.
"Enhancements " are subsequent versions of the Products which have been modified to; have better or different features and functions; work on newer and different software platforms; fix problems in earlier versions.
VERTICAL LEAP hereby grants PARTNER, and PARTNER accepts a non-exclusive right of retail distribution of the Programs.
PARTNER shall ensure that the End Users sign the End User License Agreement. PARTNER shall provide VERTICAL LEAP with a copy of every granted and signed End User License Agreement.
PARTNER shall be obliged throughout the Term of the Agreement not to develop, sell, distribute, represent or in any other way market Products that are identical with the Products of the Agreement.
PARTNER shall purchase the Programs solely from VERTICAL LEAP.
PARTNER shall always during the Term of this Agreement use its best efforts to actively market and support the Programs, consistent with local laws and regulations and ethical business practices and in a manner that will reflect favorably on the Programs and on the goodwill and reputation of VERTICAL LEAP.
PARTNER shall cover all expenses from PARTNER’s marketing activities. VERTICAL LEAP will participate in the sales work if requested by PARTNER or if at VERTICAL LEAP’s discretion.
VERTICAL LEAP shall not be responsible for any production of brochures or any other types of sales and marketing materials. However, VERTICAL LEAP will make reasonable quantities of VERTICAL LEAP’s English language marketing material available (mostly in electronic format) to PARTNER subject to the terms and conditions specified by VERTICAL LEAP from time to time.
Marketing Materials produced by PARTNER or any references to the VERTICAL LEAP trademark or any other trademark of the VERTICAL LEAP shall be in accordance with the VERTICAL LEAP trademark usage guidelines and requires VERTICAL LEAP’s prior written consent.
VERTICAL LEAP’s price list is available on request in the form of an Excel worksheet that displays recommended list prices, partner discounts, Enhancement Agreement fees, etc. Generally VERTICAL LEAP does not discount, and any discount PARTNER gives to the end user shall be fully absorbed by PARTNER unless otherwise agreed in writing. VERTICAL LEAP shall be entitled to change the prices with 30 days written notice.
VERTICAL LEAP shall invoice PARTNER for:
Licenses when license agreements with End Users are configured
Enhancement fees annually (when not sending directly to End User)
VERTICAL LEAP shall invoice the amounts mentioned above based on PARTNER’s Partner Level and the percentages stated in Exhibit 1.
Marketing material and sales support tools shall be paid according to VERTICAL LEAP’s cost price.
VERTICAL LEAP prefers payment by credit card using the secure payment acceptance site listed on the bottom of the invoice. If requested, Bank Account Transfer (wire transfer) information can be supplied.
In case of delayed payment VERTICAL LEAP shall be entitled to:
- charge interest at the rate of one percent per initiated month including compound interest (or the highest legal amount, if less);
- suspend performance until all overdue amounts have been paid and/or;
- Execute existing orders subject to cash on delivery terms until all overdue amounts have been settled.
9. Enhancement Fees
Each new software Product purchased requires that enhancement fees be paid for the first year, at the time of sale. They are renewable annually thereafter. End User enhancement fees are calculated at 16% of the price the End User list price. VERTICAL LEAP offers a 20% Partner discount on Enhancement Fee renewals.
End User Customers current on their Enhancement Fees will always have access to the latest versions, bug fixes, service packs, and updates to the software.
If payment is not received by VERTICAL LEAP 60 days past the Enhancement Due Date, then the End User will be considered not on the Enhancement Plan and not be eligible for any of the benefits of the Enhancement Plan, nor any support. If an End User wishes to get current on the Enhancement Plan after lapsing, they must pay all past due fees plus an extra 16% of the list price license value as a penalty.
The PARTNER has the option of having VERTICAL LEAP contact the End User Customer directly and processing the Enhancement Fee. This is optional, and PARTNER can accept this option or not at the signature page.
If an End User fails to pay the annual Enhancement Agreement renewal fee, VERTICAL LEAP will send an invoice two months prior to the anniversary of the purchase in the subsequent year. If a company fails to maintain their Enhancement Agreement and wishes to receive software for an NAV version upgrade, VERTICAL LEAP will back bill all of the unpaid fees plus the current year in order to bring the account current.
Partners may send notice if an end user is no longer using VERTICAL LEAP software which will stop all billing. At that point, the End User will no longer be eligible for any software updates.
For billing convenience, Partner may request that VERTICAL LEAP prorate the Enhancement Renewal to match the Microsoft anniversary so that Partners may submit a single composite renewal invoice.
VERTICAL LEAP will provide reasonable technical support via e-mail to PARTNERs during regular published business hours (West Coast, USA / PST). Support activities do not cover customization of the Product or areas not pertaining specifically to potential errors in the products program.
If additional support is required VERTICAL LEAP will charge standard consulting fees as agreed on beforehand.
Only customers current on their Enhancement Fee are eligible for any kind of support.
PARTNERS should act as the first contact of support for their customers.
VERTICAL LEAP shall provide reasonable support in English for the Programs to PARTNER's support organization.
11. Intellectual property and trademarks
The PARTNER shall market the Programs under the trademarks, names, logos etc. specified by VERTICAL LEAP. The PARTNER shall be unauthorized to apply for or make registration of the VERTICAL LEAP’s trademarks or any other intellectual property rights being under ownership of VERTICAL LEAP.
All licenses granted to PARTNER under this Agreement are automatically and immediately revoked. [Comment: Licenses granted to End Users shall continue]
The PARTNER shall remove all advertising materials for the Programs, which have been supplied in connection with the Agreement and return them in the possession of VERTICAL LEAP and discontinue all advertisements relating to the Programs and any use of trademarks, service marks or logos of VERTICAL LEAP, irrespective of their form.
All electronic materials shall be destroyed or returned.
As long as the PARTNER is a party to the Agreement it shall be non-exclusively, entitled to use the designations, service marks and/or trademarks of VERTICAL LEAP, which have been released specifically by VERTICAL LEAP to the PARTNER for the purpose of recruiting new End Users. The PARTNER shall comply with all guidelines, which may be issued by VERTICAL LEAP concerning the use of the service marks, trademarks and/or the related designations and logos. If VERTICAL LEAP introduces new service marks and/or trademarks for the Programs, the same shall apply to these marks.
The PARTNER shall not register or in any other way use or modify, except as provided for in clause 11.3 above, any patents, trademarks, trade or brand names, register designs or other industrial or intellectual property rights covering products or processes owned, devised or manufactured by or on behalf of VERTICAL LEAP.
The PARTNER is entitled to make copies of the Programs, as reasonably necessary for back-up or archival purposes. Except as otherwise set forth herein, the PARTNER may not copy, distribute, reproduce, use or allow access to the Programs without the prior written approval of VERTICAL LEAP. Whenever PARTNER copies or reproduces all or any part of the Programs, all titles, copyright notices, patent notices or other proprietary markings must also be reproduced. The PARTNER will not alter or remove any of VERTICAL LEAP’s copyright notices, patent notices, or other proprietary notices affixed to the Programs.
VERTICAL LEAP owns all right, title and interest in and to (i) the Programs and (ii) all derivative works of the Programs. VERTICAL LEAP reserves all right not expressly granted hereunder. The PARTNER shall not reverse engineer any portion of the Programs.
The PARTNER shall not:
Sell, lease, license, sublicense or distribute the Programs except in accordance with the Agreement;
Provide, disclose, divulge or make available to, or permit use of the Programs by any third party without VERTICAL LEAP’s prior written consent in each instance, except as specifically authorized by the Agreement;
Use the Programs for any purpose except as expressly provided in the Agreement.
VERTICAL LEAP does not warrant that the Programs will be Error-free. If any copy of the Programs is demonstrated to VERTICAL LEAP to contain an Error or malfunction, VERTICAL LEAP will use all reasonable endeavors to correct such Error, or malfunction or (at its option) replace such copy of Programs, according to End User License Agreement to be entered into by End Users. VERTICAL LEAP will deliver a workaround or correction of the error within 40 working days unless the parties agree to an alternative arrangement.
Except as otherwise provided in this clause, VERTICAL LEAP makes no other representations or warranties and expressly excludes the same whether implied, statutory or otherwise; especially as to quality or fitness of the Programs for any particular purpose.
13. Limitation of Liability
The PARTNER shall indemnify VERTICAL LEAP against claims made by third parties, including the End Users, arising from the non-functioning, late functioning or improper functioning of hardware or software products supplied by the PARTNER or from circumstances attributable to the PARTNER in respect to the Programs.
To the extent lawfully permitted, the liability of VERTICAL LEAP in respect of a breach of a term agreed upon in writing relating to the supply of the Programs supplied by VERTICAL LEAP to the PARTNER in connection with this Agreement is limited, at the sole discretion of VERTICAL LEAP, to the re-supply of the Programs or payment of the costs of re-supplying the Programs.
A party will not be liable to the other party for any default or delay in the performance of its obligations under this Agreement, if and to the extent that the default or delay is caused by an event beyond the reasonable control of that party, including those events set forth in Section 14.1 below.
The parties will not be liable to each other (whether based on contract, tort or otherwise) for indirect, special, punitive, incidental or consequential loss or damage (including loss of profits, loss of revenue, loss of data or loss of savings) in connection with or arising out of this Agreement.
In cases where an End User has caused damages to VERTICAL LEAP for which the PARTNER has no liability towards VERTICAL LEAP under this Agreement, the PARTNER shall do its best efforts to recover the costs from the End User at VERTICAL LEAP's written request and expense.
In any event, the PARTNER’s right to claim under this Agreement or under tort shall lapse one year after the occurrence giving rise to the claim or action.
14. Force Majeure
VERTICAL LEAP shall not be under any liability to the PARTNER or any other party in any way whatsoever for destruction, damage, delay or any other matters of the nature whatsoever arising out of war, terrorist acts, rebellion, strikes, lockouts and industrial disputes; fire, explosion, earthquake, religion, flood, drought or bad weather; the unavailability of deliveries, supplies, Programs, disks or other media.
The PARTNER shall not be authorized to assign or in any other manner pass on his right and/or obligations under this Agreement without VERTICAL LEAP's prior written consent.
VERTICAL LEAP may assign its rights and obligations under this Agreement to any third party upon written notice to the PARTNER.
16. Independent Contractor
This Agreement shall not render PARTNER as an employee of VERTICAL LEAP for any purpose. PARTNER is and will remain an independent contractor to VERTICAL LEAP during the Term of this Agreement. VERTICAL LEAP shall therefore not be responsible for withholding taxes with respect to the fees paid by VERTICAL LEAP to the PARTNER hereunder. PARTNER shall be wholly responsible for the reporting and payment of all taxes arising for fees paid hereunder to PARTNER, and PARTNER shall indemnify and hold VERTICAL LEAP harmless therefrom.
Either party may terminate this Agreement at any time by 30 days’ written notice to the other party. In addition, if PARTNER is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directive of VERTICAL LEAP regarding the reselling of the Products, is guilty of serious misconduct in connection with performance hereunder, or materially breaches provisions of this Agreement, VERTICAL LEAP may immediately terminate this Agreement without prior written notice.
Upon termination, parties will honor any obligations in place at time of the termination, including but not limited to any monetary amount owed from one party to the other.
The parties will each hold the other party’s Information in strict confidence and will not disclose copy, reproduce or distribute any of it to any person other than the Authorized Recipients, and only on the basis that they will not disclose, copy, reproduce or distribute it to any person who is not an Authorized Recipient.
The receiving party will not and nor will any of its Connected Persons, without the prior written consent of the disclosing party use the Information for any purpose other than the Projects.
19. Unenforceability of Provisions
If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, that provision shall be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, superseding any and all previous proposals, representations or statements, oral or written. Any previous agreements between the parties pertaining the subject matter of this Agreement are hereby expressly cancelled and terminated. The terms of this Agreement shall supersede the terms of any invoice or purchase order issued by either party. Any modifications to this Agreement must be in writing and signed by the authorized representatives of both parties hereto.
This Agreement including all appendixes hereto shall be governed by the laws of California, United States of America, and shall be construed and interpreted in accordance herewith.
Any dispute or claim arising out of or in connection with this Agreement or in connection with any breach, termination or invalidity thereof shall be settled by arbitration.
The place of arbitration shall be California, United States of America.
The language of arbitration shall be the English language.