KioWare Partner Agreement for OEM’s
This PARTNER AGREEMENT (“Agreement”) is by and between Analytical Design
Solutions, Inc. (hereinafter “Supplier”), a corporation with its principal offices at 227 W. Market St,
Suite 200, York, PA, 17401, U.S.A. and _______________________________________
(hereinafter “Partner”), a company with its principal offices at
___________________________________________.
WHEREAS, Supplier is in the business of developing, marketing, operating and selling
Software; and
WHEREAS, Partner is interested in purchasing Software from Supplier and reselling
Software to its clients.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
combined, the sufficiency and receipt of which are hereby agreed and acknowledged, the parties
hereby agree as follows:
Section 1
DEFINITIONS
As used herein, the following words or phrases shall have the following meanings:
1.1
“End User(s)” An individual or organization that has acquired Software through Supplier
or Reseller for its own use (and not for redistribution, sublicensing, remarketing or
timesharing).
1.2
“Software” A group of computer programs that currently consists of KioWare Kiosk,
KioWare Server and KioWare Lite Kiosk System software, and includes any future
program additions to the KioWare software family without the necessity of a written
addendum hereto.
1.3
“Partner” An individual or organization that purchases Software from Supplier and
resells same Software to an End User. Partner may integrate the Software with physical
computer components to make a complete system to resell, or the Partner may integrate
the Software with their own application program and sell as a complete system.
1.4
“KioWare Web Portal” A Supplier provided web portal that enables a Partner to create
quotes, enter transactions and end-user information, and manage licensing.
1.5
“KioWare Web Service” A Supplier provided web API that enables a Partner’s website,
using standard HTTPS, to execute registration, purchase and licensing functions on
KioWare’s web server.
Section 2
PARTNER APPOINTMENT AND TERMS
2.1
Supplier grants Partner the right to market and resell the Software to End Users.
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2.2
Partner will contact Supplier or consult the KioWare Web Portal for current pricing
information when quoting to End Users.
2.3
All payments made under this Agreement shall be payable in U.S. dollars. If funds are
wired, all origination and bank fees are the Partner’s responsibility.
2.4
End User Licensing will be managed by Supplier and will require contact information of
End User including, at a minimum, the name, phone number and email address for the
End User contact.
2.5
End User licensing will not occur until Supplier has received license payment from
Partner unless Supplier and Partner have agreed to credit terms.
Section 3
SUPPLIER AND PARTNER MARKETING SUPPORT
3.1
Partner shall promote the Software in its published marketing materials and web assets
to the extent it deems commercially reasonable in its good business judgment.
3.2
Partner will provide Supplier with at least one (1) copy (can be digital representation) of
any marketing materials it develops that contains the Supplier’s trademark and/or Logo
and/or references to the Software.
3.3
Supplier shall provide Partner with access to marketing material and product logo
designs in standard graphic design format.
3.4
Supplier shall provide to Partner current and future Software development plans including
scheduled beta and ship dates.
3.5
Partner shall inform Supplier of features or capabilities to be added to the Software that
would help to market the Software.
3.6
Partner must provide Supplier with their logo image and short description of their
business to be added to Supplier’s Partners web page.
Section 4
SUPPLIER AND PARTNER SALES SUPPORT
4.1
Supplier will provide Partner with pre-sales support via email and, where economical and
time zones match, via telephone. All communication will be in English.
4.2
Supplier will provide Partner with on-line sales training opportunities and/or the option to
schedule pre-sales WebEx-based training opportunities.
4.3
Partner shall employ at least one (1) full-time sales person who is trained and certified in
KioWare Product Sales so they may competently sell the software to the End Users.
4.4
Supplier and Partner shall jointly develop annual End User sales goals and shall make
best faith efforts to cooperate with each other in achieving these goals.
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4.5
Supplier will provide to Partner one (1) fully functional license of each Software product to
be installed and used by Partner in the sales process; these licenses are not for resale.
4.6
Supplier will notify Partner three months prior and one month prior to the End User’s
support expiration date to afford Partner the opportunity to sell the support renewal.
Supplier will contact End User directly to renew support if renewal is not received from
Partner by the expiration date.
Section 5
SUPPLIER AND END USER TECHNICAL SUPPORT
5.1
Supplier will provide Partner with technical support via email and, where economical and
time zones match, via telephone. All communication will be in English.
5.2
Supplier will provide access to internal web-based technical tools to Partner to help with
technical issues.
5.3
Supplier will provide two (2) hour turnaround technical support for issues received via
email or telephone during regular business hours (Mon-Fri, 8am – 5pm EST).
5.4
Partner shall employ at least one (1) full-time employee who is trained and certified in the
technical aspects and use of the Software to the level necessary to be able to
competently install and support the software to End Users.
5.5
Supplier will provide to Partner one (1) fully functional license of each Software product to
be installed and used by Partner in the technical support process.
Section 6
PARTNER PERFORMANCE OBJECTIVES
6.1
The Required License Volume (RLV) for Partner for a one year period beginning each
calendar year must equal or exceed 28 KioWare licenses. If Supplier and Partner enter
into this Agreement mid-calendar year, the RLV for the remainder of that calendar year
will be prorated. RLV for subsequent calendar years is subject to change with written
notification to Partner not later than October 1st of the current calendar year.
6.2
Partner is required to include the corresponding KioWare support on all quotations for
KioWare licenses submitted to End User(s). Quotations must also contain the following
statement to offer explanation why the End User is advised to purchase support with
KioWare licenses.
6.2.1
Maintenance and support is charged annually and provides free priority phone
and e-mail support as well as free product updates during the year.
Section 7
PARTNER DISCOUNT REWARDS
7.1
Partner will initially receive a 15% discount from Supplier on Software and annual
maintenance and support, including renewals, purchased under this Agreement. Partner
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may earn discount rewards for the following calendar year based on their total KioWare
sales for the current year as outlined in the following table.
7.1.2
Partner Level
Total Yearly Sales
Basic Partner
Bronze Partner
Silver Partner
Gold Partner
$0 - $9,999
$10,000 - $24,999
$25,000 - $49,999
$50,000 +
Discount for next
calendar year
15%
17.5%
20%
25%
Total sales = Invoiced sales to Partner + credit card transactions for Partner in a
given calendar year.
7.2
Partner will be notified by Supplier no later than the 16th of January or upon receipt of the
first Purchase Order from Partner in the new calendar year of their total sales for the
previous year and discount for the new year.
7.3
Discounts are assigned each year based on the previous year’s sales. A Partner will
remain at a given level if their sales continue to be at that level. In other words, being a
Gold Partner one year does not mean that Partner will remain a Gold Partner unless the
sales volume reached is at the Gold level.
Section 8
KIOWARE WEB SERVICE
8.1
Using Supplier’s KioWare Web Service, Partner can integrate KioWare product download
registration, purchasing and licensing functionality into Partner’s website.
8.2
Supplier shall put forth commercially reasonable efforts to make its KioWare Web Service
available. However, Supplier is not responsible for any damages or losses related to any
system errors or interruptions affecting the KioWare Web Service and the processing of
any transaction related to the KioWare Web Service. Partner understands that the
KioWare Web Service may be unavailable unexpectedly as a result of circumstances
beyond Supplier's control. Supplier is not responsible for technical or mechanical
problems affecting Partner’s computer equipment.
8.3
When Partner uses the KioWare Web Service, Partner represents, warrants and agrees
that Partner will not:
8.3.1
Falsify or misrepresent any information regarding Partner’s identity or intentions
with respect to any matter
8.3.2
Attempt to logon to the KioWare Web Service with other than Partner’s
credentials.
8.3.3
Use any robot, spider, or other automatic device to post data to the KioWare
Web Service.
8.3.4
Other than for testing purpose, create transactions without associated legitimate
End User(s).
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Section 9
KIOWARE WEB Portal
9.1
Supplier will provide Partner with an account to login to the KioWare Web Portal.
9.2
Using Supplier’s KioWare Web Portal, Partner can generate quotes, enter transactions
and manage End User’s company, contact and license information.
9.3
Supplier will provide Reseller with a logon to our Partner Portal for purposes of quote
generation and transaction and license management
Supplier shall put forth commercially reasonable efforts to make its KioWare Web Portal
available. However, Supplier is not responsible for any damages or losses related to any
system errors or interruptions affecting the KioWare Web Portal and the processing of
any transaction related to the KioWare Web Portal. Partner understands that the KioWare
Web Portal may be unavailable unexpectedly as a result of circumstances beyond
Supplier's control.
9.4
9.5
When Partner uses the KioWare Web Portal, Partner represents, warrants and agrees
that Partner will not:
9.5.1
Falsify or misrepresent any information regarding Partner’s identity or intentions
with respect to any matter
9.5.2
Attempt to logon to the KioWare Web Portal with other than Partner’s credentials.
9.5.3
Use any robot, spider, or other automatic device to post data to the KioWare
Web Portal.
9.5.4
Other than for testing purpose, create transactions without associated legitimate
End User(s).
Section 10
TRADEMARKS AND INDEMNIFICATION OF PRODUCTS
10.1
Partner may use and display the trademarks of Supplier as they relate to the Software to
identify and market the Software on its business cards, stationery, web site and
marketing material. In each case, Partner shall comply with Supplier’s trademark
advertising guidelines, if any, and shall clearly state that it is a Reseller for Supplier. Any
other use of Supplier’s trademarks must be approved in writing by Supplier.
Section 11
CONFIDENTIALITY
11.1
A separate confidential nondisclosure agreement must be executed by both parties for
this agreement to be binding.
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Section 12
INTELLECTUAL PROPERTY RIGHTS
12.1
Partner shall be authorized only to market, license (by presenting Supplier’s license
agreement for End User’s signature), and distribute the Software in the form and
packaging as delivered by Supplier to Partner in accordance with the terms of this
Agreement. This Agreement shall not be construed to grant Partner any other right, title,
or interest in any intellectual property rights, including without limitation any patent,
copyrights, trademark or trade secret rights, embodied in or associated with the Software,
or any right to copy, modify, loan, lease, license, or sell the Software. All other use of the
Software by Partner shall be subject to the terms and conditions of the End User License
Agreement included with the Software. Under no circumstances shall Partner de-compile
the object source code portion of the Software to a source code version.
12.2
Partner agrees not to loan, rent, or provide access to the Software except as may be
desirable during the sales process, for a fee or otherwise, to any third party for the
purpose of any execution, use, copying of such Software not authorized by the End User
License Agreement included with the Software.
Section 13
REPRESENTATIONS AND WARRANTIES
13.1
Supplier warrants to and for the benefit of Partner and End Users that Supplier owns or
has rights to the Software, including any intellectual property rights associated therewith,
adequate to enable Supplier to perform its obligations, to authorize the marketing of the
Software by Partner, and to authorize the Software’s use by End Users in accordance
with the terms and conditions of the End User License Agreement.
Section 14
LIMITATION OF WARRANTY
14.1
THE LIABILITY OF SUPPLIER TO PARTNER FOR ANY CLAIM WHATSOEVER
RELATED TO THE SOFTWARE OR THIS AGREEMENT, INCLUDING ANY CAUSE OF
ACTION ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE SHALL
NOT EXCEED THE SUM OF ALL FEES PAID BY PARTNER IN THE IMMEDIATELY
PRECEDING TWELVE (12) MONTH PERIOD REGARDLESS OF ANY OTHER
BREACH HEREUNDER OR ANY OTHER CLAIM BY PARTNER AGAINST SUPPLIER.
SUPPLIER IN NO EVENT SHALL BE LIABLE TO PARTNER FOR ANY LOSS OF
PROFITS, LOSS OF DATA, ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE,
ECONOMIC, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY CLAIMS
OR DEMANDS BROUGHT AGAINST PARTNER BY ANY OTHER PARTY,
REGARDLESS OF WHETHER SUPPLIER HAS BEEN PREVIOUSLY ADVISED OF
THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THE PARTIES
ACKNOWLEDGE THAT THESE LIMITATIONS WERE AN ESSENTIAL ELEMENT IN
SETTING CONSIDERATION UNDER THIS AGREEMENT.
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Section 15
INDEMNIFICATION
15.1
Supplier hereby indemnifies and agrees to hold Partner harmless from and against any
and all claims, demands, or actions and costs, liabilities, or losses arising out of any
actual infringement of any trademark or copyright or violation of any trade secret by any
of the Software furnished hereunder; provided, however that Supplier is not liable for any
damages arising out of infringement or any statement or misstatement in the
documentation and/or marketing materials due to any alteration, modification or addition
made by Partner.
15.2
Partner hereby indemnifies and agrees to hold Supplier harmless from and against any
and all claims, demands, or actions and any cost, liabilities, or losses arising out of any
statements or representations made by Partner or Partner’s employees, or agents with
respect to the Software, except for statement that are consistent with the documentation
and marketing materials provided by Supplier to Partner for use in connection with the
marketing of the Software.
15.3
The foregoing indemnities are in addition to any rights otherwise under this Agreement,
but shall be expressly contingent on the party seeking indemnity (a) notifying the
indemnifying party in writing of the existence or possibility of such claim, demand, action,
or liability within thirty (30) days of learning of such claim; (b) cooperating in the defense
or settlement thereof; and (c) allowing the indemnifying party to control the defense or
settlement of the same.
Section 16
TERM AND TERMINATION
16.1
The term of this Agreement shall be one (1) year beginning with the date of execution of
this Agreement as shown below.
16.2
This Agreement shall be extended automatically from year to year if Partner satisfies
Performance Objectives unless one party notifies the other in writing of its intent to
terminate the Agreement at least thirty (30) days prior to the anniversary date thereof.
16.3
Either party may terminate this Agreement if the other party commits a material breach of
any of the terms hereof and such breach remains uncured thirty (30) days after written
notice of the breach has been furnished to the party in breach by the other party.
16.4
Within thirty (30) days from notice of termination, Partner will provide Supplier with
current list of End Users who have ever purchased Software from Partner, including
company/organization name and address, and sales and technical contact names with
phone or email addresses, if applicable. Partner will also certify that all copies of
evaluation Software have been removed from Partner’s computers.
Section 17
MISCELLANEOUS
17.1
Partner is an independent contractor under this Agreement, and nothing herein shall be
construed to create a partnership, joint venture, or agency relationship between the
parties hereto. Partner shall have no authority to enter into agreements of any kind on
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behalf of Supplier and shall not have the power or authority to bind or oblige Supplier in
any manner to any third party.
17.2
All questions concerning the validity, operation, interpretation, and construction of this
Agreement will be governed by and determined in accordance with the laws of the State
of Pennsylvania, United States of America, without giving effect to any principles of
conflicts of law. Any legal action or proceeding between Supplier and Partner related to
this Agreement shall be brought exclusively in a federal or state court of competent
jurisdiction sitting in the state of Pennsylvania, United States of America.
17.3
Neither party shall, by lapse of time, be deemed to have waived any breach by the other
party of any of the provisions of this Agreement. Further, the waiver by either party of a
particular breach of this Agreement by the other shall not be construed as or constitute a
continuing waiver of such breach or of other breaches of the same or other provisions of
this Agreement. All claims related to this Agreement shall be brought within one (1) year
after such cause of action arose or be forever barred.
17.4
Any of the provisions of this Agreement which are determined to be invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability in such jurisdiction, without rendering invalid or unenforceable the
remaining provisions hereof or affecting the validity or unenforceability of any of the terms
of this Agreement in any other jurisdiction.
17.5
All notices required to be in writing shall be delivered by hand, sent by recognized courier
(such as Federal Express, Airborne or UPS), or mailed by certified or registered mail,
return receipt requested, postage pre-paid, addressed to the parties as follows, and shall
be deemed received upon actual receipt:
If to Supplier:
Attn: President
Analytical Design Solutions, Inc.
227 W. Market St., Suite 200
York, PA 17401
U.S.A.
If to Partner:
Attn:
___________________________
___________________________
___________________________
___________________________
17.6
The parties hereto acknowledge that this Agreement is the complete and exclusive
statement of agreement respecting the subject matter hereto and supersedes all
proposals (oral or written), understandings, representations, conditions, and other
communications between the parties relating hereto. This Agreement may be amended
only by a subsequent writing that specifically refers to this Agreement and is jointly
signed by Reseller and Supplier. No other act, document, usage, custom shall be
deemed to amend this Agreement.
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WHEREBY, the parties have caused this Agreement to be executed by their duly
authorized officers as set forth below effective this ______ day of __________________, ______.
Analytical Design Solutions, Inc.
Partner
By: ___________________________
By: ___________________________
Title:__________________________
Title:__________________________
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