Value Added Relationship (VAR)
VAR Agreement
This VAR Agreement (“Agreement”) is made this _
_ day of _
_,
_ (“Effective Date”) by
TAYLOR PROTOCOLS, INC., a Washington corporation, doing business at 16040 Christensen Road, Suite
205 Tukwila, WA 98188 (hereafter “Taylor Protocols”) and _
__ , a _
_ , doing business at
_
_ (hereafter “VAR”) (collectively, Taylor Protocols and VAR are referred to as the “Parties”).
RECITALS
A. Taylor Protocols is the owner and operator of an Internet website known as
TaylorProtocols.com, which is engaged in the business of providing direct access to products and
services related to human resource permanent placement, Top Performer Profiling and
prescreening for employment software, learning, training, employee and personal development,
corporate consulting and training, and Employee Core Values Index™ Assessments. Taylor
Protocols is the developer and owner of the Employee Core Values Index Assessment that is
used in the enterprise software solutions described above and also through a network of
coaches and consultants, and in training departments of Taylor Protocols’ clients. The Core
Values Index Assessment is the Core Values Index (“CVI”) methodology, its related database,
and all products that utilize the CVI, such as the Top Performer Profiles, Human Capital Audit
and Executive Leadership Profile (collectively, the “Taylor Protocols Technology”). Taylor
Protocols has developed technology and software programs that incorporate the above services
and the Taylor Protocols Technology into a Talent Management Platform (“Application and
Services”).
B. VAR desires to be a value-added relationship and provider of limited Taylor Protocols services in
connection with its consulting business. Taylor Protocols, Inc. engages the VAR as a nonexclusive independent contractor to solicit orders for the sale of Taylor Protocols, Inc. products,
at the price(s) and on such other terms and conditions established by Taylor Protocols, Inc.
documented in Exhibit A.
Now, therefore in consideration of the mutual covenants and promises contained herein, it
is agreed as follows:
AGREEMENT
1.0
Recitals Incorporated by Reference
The recitals set forth above are incorporated into and made a part of this Agreement.
2.0
Intellectual Property Ownership and Rights
Taylor Protocols is the sole owner of all aspects and components of the Application and Services and
nothing in this Agreement shall be interpreted as transferring any ownership rights to VAR. VAR shall
not modify the Application and Services. VAR shall not attempt to reverse engineer, decompile,
disassemble, or attempt to discover the source code for the Taylor Protocols Technology.
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3.0
Software and Services
Taylor Protocols shall provide Application and Services to VAR and VAR customers in accordance with
the terms of this Agreement.
3.1
Uptime Guarantee. Taylor Protocols warrants that the Application and Services shall be
available for use by VAR customers at least 99% of the time as measured on an annual
basis and not including Scheduled Maintenance time (the “Uptime Guarantee”), and
agrees to publish its uptime results on a semi-annual basis.
3.2
Scheduled Maintenance. Scheduled Maintenance means: (i) upgrades of hardware or
software; (ii) upgrades to increase capacity; and (iii) database backups and
maintenance. Scheduled Maintenance will occur from time to time and Taylor Protocols
agrees to provide at least five days written notice of any downtime associated with such
Scheduled Maintenance. Taylor Protocols shall use its best efforts to ensure that
Scheduled Maintenance shall not exceed 20 hours on an annual basis. Taylor Protocols
will make best efforts to perform such Scheduled Maintenance on weekends or
between 6PM and 5AM Pacific time on weekdays.
3.3
Unscheduled Maintenance. VAR acknowledges that Taylor Protocols may from time to
time be required to make the Application and Services unavailable to VAR or VAR
customers in order to perform unplanned system maintenance, upgrades or remedial
work. In such cases, Taylor Protocols will provide VAR three (3) days advance written
notice (time permitting) of any such service outage and shall use its best efforts to
perform and complete any such work on weekends or between 6PM and 5AM Pacific
time on weekdays.
3.4
Enhancements. The Services provided under this Agreement, and under any Customer
Order Form, shall also include, at no additional charge to VAR or VAR customers, all new
releases, updates, improvements, bug fixes, and maintenance and patch releases,
together with all documentation related thereto, applicable to the Application and
Services (collectively, the “Enhancements”); provided, however, that Taylor Protocols
may charge additional fees for any Enhancements that do not relate to the core
functionality of the Application , but only to the extent that such fees are being charged
to the majority of other licensees of the Application. Taylor Protocols shall continue to
develop and improve the software, technology and applications used to provide the
Application and Services. Taylor Protocols will notify VAR sixty (60) days prior to the
release of any Enhancements. Taylor Protocols will provide the appropriate support
documentation as soon as available, but in no event less than thirty (30) days prior to
the release of any Enhancements.
3.5
Branding. Taylor Protocols will display VAR logos on the web pages containing the
Application and Services for VAR customers, in the form and placement to be agreed
between the parties. VAR will not claim ownership or development authorship of the
Application and Services, and will include an attribution to Taylor Protocols (in a
mutually agreed form) in any materials (whether written or digitally distributed), in any
content used to advertise, sell and fulfill VAR customer orders, and in any VAR Service
Agreements and Licenses that in any way relate to the Application and Services.
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4.0
3.6
Statistical Information. As between Taylor Protocols and VAR, Taylor Protocols owns all
aggregate and anonymous information generated by the use of the Application and
Services, including the CVI database (the “Statistical Information”).
3.7
Customer Disclaimer. VAR will include in all Customer Agreements a provision that
requires the customer to indemnify VAR and Taylor Protocols against any damages,
losses, costs and expenses (including attorney fees) that arise from or relate to a
customer’s use of the Application and Services.
VAR Support and Training
4.1
Support. Taylor Protocols will provide the support, training and maintenance services to
all Taylor Protocols’ clients/customers in all applications of Taylor Protocols technology.
VAR will provide support and maintenance services relative to all consultative and
coaching services provided to any client/customer by the VAR.
4.2
5.0
Core Values Index™ (CVI™) Certification & VAR Licensure Training. The VAR is duly
obligated to attend at its own expense a “CVI Certification & VAR Licensure Training”.
Any appointed agents of the VAR and employees who represent Taylor Protocols
products and services to Client companies in any manner must also attend a training
session at the same time as VAR (at cost indicated in 19.0), or at some other time, and
expense of such training will also be assumed by the VAR. Regardless of the number of
individuals trained, The Certification & License fees must be paid in full by VAR in
advance of training.
Compensation
5.1
Projects. In full compensation of the services of the VAR, Taylor Protocols, Inc. shall pay
the VAR 20% of the project sale price of the first project sold to his/her referral client.
VAR will be paid 10% of all hiring success fees. Any and all subsequent sales to the same
referral client shall pay the VAR 10% of the sale price (see Exhibit A). Commissions do
not apply to Practitioner or VAR monthly license fees.
5.2
Direct Recruit Overrides. A “Direct Recruit” is any person or company that is directly
introduced by the VAR and purchases Practitioner or VAR training and licensure from
Taylor Protocols. VAR shall receive 10% override on Direct Recruit commissions on
Taylor Protocols applications or services (see Exhibit A). Commissions will be paid as
long as VAR maintains its monthly license fee.
5.3
Product Discount. VAR shall receive a 30% discount of the sales price of all CVIs™ and
books purchased by VAR.
5.4
Pricing Changes. The price sheet (Exhibit A) for such products is subject to change with
30 days written notice by Taylor to VAR. Taylor shall not change the compensation paid
to VAR for the purposes of establishing its own employee sales force and eliminating the
use of VARs.
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6.0
5.5
Method of establishing clients of VAR. A VAR creates the opportunity for receiving these
compensations by setting up sales calls with potential new Taylor Protocols clients. A
VAR may also talk personally with a client with whom they have a prior relationship, and
introduce that client to Taylor Protocols via email or otherwise introducing both parties
to each other. When Taylor Protocols places a call or two to this introduced client and
that client becomes a Taylor Protocols customer, then at that time the VAR will receive
appropriate commissions on the sales to this introduced VAR client. If the introduction
does not produce a telephone or in-person sales presentation appointment within 30
days, then and any future business with said client will not require compensation for
VAR. VAR will receive notification regarding each appointment that is successfully set
within 30 days and notification for each introduction that has not yielded a sales
presentation appointment. VAR may re-introduce client by making contact and getting
the appointment set-up between Taylor Protocols and the VAR’s client. Compensation
for new sales to any VAR client requires a successful telephone or in-person sales
appointment to Taylor Protocols within a 30 day window of time. All clients introduced
by the VAR to Taylor Protocols shall be listed on a client register maintained by Taylor
Protocols and shall be sent to the VAR from time to time as reasonably requested by the
VAR. All sales commissions shall be paid to the VAR on the 15th day of the following
month that Taylor Protocols receives payment from VAR client.
5.6
Fees. VAR training programs, performed onsite or online, may require a day-rate
training fee, travel and lodging expenses and will be quoted separately based upon the
number of participants, location of training and level of customization.
5.7
Additional VAR Facilitators. In order to be eligible for compensation, VAR is required to
pay Taylor Protocols $1000 per additional CVI Certified Practitioner facilitators within
VAR’s company for certification training.
Pricing
Price List. Attached as Exhibit A is the Taylor Protocols list of Enterprise Software Programs and Price
List. VAR will pay Taylor Protocols the discounted prices on the Price List for the Application and
Services ordered by VAR customers. Taylor Protocol will give VAR at least ninety (90) days prior written
notice of any change in the discounted price to be paid by VAR, and any price change will not impact any
existing customer agreements that are less than ninety (90) days away from renewal. Any price increase
will take effect on the next customer renewal. Exhibit A also states the Taylor Protocols suggested list
prices for customers (“MSRP”).
7.0
Project Fees and Payments
7.1
Fees. VAR shall quote all projects using standard Taylor Protocols Service Order forms.
All Service Orders require advance approval by Taylor Protocols prior to release by VAR
to any client/customer. All Fees for services quoted on Taylor Protocols Service Order
forms are paid directly to Taylor Protocols in U.S. dollars unless otherwise agreed to by
the Parties. As used herein, “Fees” shall mean both set up and other one-time (project)
fees and monthly fees.
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7.2
8.0
Payments. Taylor Protocols may invoice for any set-up and other one-time fees in
advance of the launch date for the customer site, including travel costs, and such fees
shall be paid in advance of the commencement of any services by Taylor Protocols.
Taylor Protocols will invoice and collect for all services quoted and rendered on Taylor
Protocols Service Order forms and forward payment to VAR the percentage due as
indicated in Exhibit A.
Term
The term of this Agreement shall begin on the Effective Date and shall remain in full force and effect
until termination pursuant to Section 9.
9.0
10.0
Termination
9.1
Material Breach. Except for failure to pay as set forth in Section 19.0, in the event of a
material breach of this Agreement that is not cured within thirty (30) days after the
breaching Party receives written notice thereof describing the nature of the breach, the
non-breaching Party may terminate this Agreement.
9.2
Bankruptcy. This Agreement may be terminated by either Party upon thirty (30) days
written notice in the event that the other Party becomes subject to: (a) an order or
resolution for winding up; (b) the appointment of an administrator over its business,
affairs and property; (c) the appointment of a receiver of its assets or undertakings; (d)
any arrangement or composition with its creditors; or (e) any similar or analogous action
in any jurisdiction in consequence of debt.
Effect Of Termination
In the event that this Agreement expires or is terminated by either Party, any and all VAR customer
agreements then in effect shall survive such expiration or termination and remain in full force and effect
until such time as they expire according to their terms. Provided that all payment obligations of VAR
remain current, Taylor Protocols shall continue to service VAR customers pursuant to the terms of any
such customer agreements and shall not be relieved of its obligations under such agreements until their
expiration, so long as VAR continues to fulfill its normal customer services for said customer.
11.0
Trademarks License
Taylor Protocols hereby requires and VAR agrees to use Taylor Protocols trademarks, trade names,
service marks, logos or other identifying or distinctive marks of Taylor Protocols (“Brands”) during the
term of this Agreement in connection with VARs provision of Taylor Protocols applications and services
and all advertising, marketing and sale of the Application and Services as part of VAR’s business. VAR
will use the Brands in accordance with the instructions of Taylor Protocols, and will obtain the approval
of Taylor Protocols prior to any intended use. All goodwill in the Brands will inure to the benefit of
Taylor Protocols.
12.0
Professional Responsibility
VAR shall perform its services in a good and workmanlike manner and in accordance with generally
accepted practices.
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13.0
14.0
Confidentiality
13.1
Definition. “Confidential Information” means all confidential or proprietary information
of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether
orally or in writing, that is designated as confidential or that reasonably should be
understood to be confidential given the nature of the information and the
circumstances of disclosure, including the terms and conditions of this Agreement,
(including pricing and other terms set forth in all Order Forms hereunder), business
information, specifications, research, software, trade secrets, designs, drawings, flow
charts, data, computer programs, marketing plans, budget figures, and other financial
and business information, or any such information of clients, parents, affiliates,
subsidiaries or agents of a party.
13.2
Treatment of Confidential Information. For the term of this Agreement and indefinitely
thereafter, the Receiving Party shall not use or disclose any Confidential Information of
the Disclosing party for any purpose outside the scope of this Agreement, except with
the Disclosing Party’s permission.
13.3
Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to
any Confidential Information that: (i) is or becomes publicly available without a breach
of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving
Party at the time of its disclosure by the Disclosing Party, without a breach of any
obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving
Party, is received by the Receiving Party from a third party without breach of any
obligation owed to the Disclosing Party; or (iv) is independently developed by the
Receiving Party without reference to or use of the Disclosing Party’s Confidential
Information; or (v) the Receiving Party is required to disclose by any applicable law, by
any rule or regulation of any court or government agency of competent jurisdiction, or
pursuant to legal process; provided that the Receiving Party provides the Disclosing
Party with prompt written notice of the requirement to disclose, reasonable assistance
in the opposing or limiting of such disclosure and limits such disclosure to that strictly
required by such court, government agency or legal process.
13.4
Injunctive Relief. The parties agree that any unauthorized disclosure of Confidential
Information may cause immediate and irreparable injury to the Disclosing Party and
that, in the event of such breach, the Receiving Party will be entitled, in addition to any
other available remedies, to immediate injunctive and other equitable relief, without
bond and without the necessity of showing actual monetary damages.
Intellectual Property Protection
Other than the limited certifications granted in this Agreement to enable VAR to re-sell the Application
and Services to customers, Taylor Protocols does not grant VAR any right, title or interest in any Taylor
Protocols intellectual property, including any embodied by or in a Taylor Protocols software program,
accrued database of Core Values Index scores, or service. Taylor Protocols exclusively retains all right,
title and interest in the Application and Services and the Taylor Protocols Technology. Any reference to
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or use of the Applications and Service or the Taylor Protocols Technology in a product or service sold by
VAR must be approved in advance by Taylor Protocols. VAR warrants that its intent is to market and
sell, distribute and support the Application and Service under license from Taylor Protocols in
connection with the consulting business of VAR.
15.0
Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3, TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER
PARTY MAKES ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE TAYLOR PROTOCOLS
TECHNOLOGY OR APPLICATION AND SERVICE, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR
CONDITIONS OF NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR
ANY PARTICULAR PURPOSE.
16.0
Indemnification
16.1
By Taylor Protocols. In no event will Taylor Protocols have any obligations or liability
under this Section arising from: (i) the negligence of VAR; (ii) use of the Application and
Service or any Brand in a modified form or in combination with materials not furnished
by Taylor Protocols; and (iii) any content, information or data provided by VAR or its
customers. Taylor Protocols shall ensure that its Customer Agreements contain language
designed to protect both VAR and Taylor Protocols from a customer’s use of the Taylor
Protocols Technology. The Taylor Protocols Technology is being used at the customer’s
sole risk as neither VAR nor Taylor Protocols have any control over how the technology
is used and the decisions that are made based on use of the technology.
16.2
By VAR. VAR will indemnify and defend Taylor Protocols from and against all liabilities,
damages, costs and expenses (including settlement costs and reasonable attorneys’
fees) arising out of a third party claim relating to or arising out of (i) any breach by VAR
of this Agreement; (ii) VAR’s negligent act or omission in the promotion, marketing and
sale of the Application and Services; and (iii) any claim by a VAR customer relating to the
provision of the Application and Services by VAR (except where such customer claim is
the result of a material breach caused by or the negligence of Taylor Protocols).
16.3
Possible Infringement. If Taylor Protocols reasonably believes the Application or
Services infringes a third party’s intellectual property rights, then Taylor Protocols will at
its own expense: (a) obtain the right for VAR customers to continue using the
Application and Services; (b) provide a non-infringing functionally equivalent
replacement; or (c) modify the Application and Services so that it no longer infringes. If
the foregoing options are not commercially reasonable, then Taylor Protocols may
suspend or terminate this Agreement. If a suspension under this Section continues for
more than six months, either party may either terminate this Agreement with
immediate effect.
16.4
General. The party seeking indemnification will promptly notify the other party of the
claim and cooperate with the other party in defending the claim. The indemnifying
party has full control and authority over the defense, except that: (a) any settlement
requiring the party seeking indemnification to admit liability or to pay any money will
require that party’s prior written consent, such consent not to be unreasonably
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withheld or delayed; and (b) the other party may join in the defense with its own
counsel at its own expense. THIS SECTION 16 STATES THE EXCLUSIVE RIGHTS AND
REMEDIES OF EACH PARTY FOR INDEMNIFICATION OF THE CLAIMS IT COVERS.
17.0
18.0
Limitation of Liability
17.1
Limitation on Indirect Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS
AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY
IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT
DAMAGES DO NOT SATISFY A REMEDY.
17.2
Limitation on Amount of Liability. NEITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING
UNDER THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY VAR TO TAYLOR
PROTOCOLS UNDER THIS AGREEMENT PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
17.3
Exceptions to Limitations. These limitations of liability do not apply to breaches of
confidentiality obligations, violations of the other party’s intellectual property rights, or
each party’s indemnification obligations under Section 16.
General.
18.1
Applicable Law and Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington, applicable to agreements made
and to be entirely performed within the State of Washington, without resort to its
conflict of law provisions. Parties agrees that any action at law or in equity arising out of
or relating to this Agreement shall be filed only in the state and federal courts located in
King County, Washington and Parties hereby irrevocably and unconditionally consents
and submits to the exclusive jurisdiction of such courts over any suit, action or
proceeding.
18.2
Assignment. Neither party may assign its rights or obligations under this Agreement to
any other person or entity except that Taylor Protocols may assign its rights under the
following circumstances: (i) with the express written consent of VAR, which shall not be
unreasonably withheld; (ii) as part of a re-organization or restructuring; (iii) to the
surviving entity of a merger transaction; or (iv) to the purchaser of a controlling interest
in or more than 50% of the assets of Taylor Protocols. Any attempted assignment or
delegation in violation of this Section is void. Subject to the foregoing, this Agreement
will bind and inure to the benefit of the parties and their respective successors and
assigns.
18.3
Waivers. Either party’s failure to enforce any provision of this Agreement will not be
deemed a waiver of the future enforcement of that provision or enforcement of any
other provision. In order to be binding, a waiver must be in writing and signed by the
party giving the waiver.
18.4
Independent Contractors. The parties are independent contractors. Neither party is the
agent or partner of the other party, or has any power or authority to act on behalf of
the other party.
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18.5
Severability. If any provision in this Agreement is found to be invalid or unenforceable
as written, the remaining provisions will remain in full force and effect and the invalid or
unenforceable provision is to be construed (and, if necessary, modified) so that it is valid
and enforceable to the greatest extent possible.
18.6
Attorneys’ Fees. The prevailing party in any action to enforce this Agreement will be
entitled to recover costs and expenses including reasonable attorneys’ fees.
18.7
Remedies. Except where this Agreement expressly provides exclusive remedies, all
rights and remedies of either party (including termination rights) are cumulative.
18.8
Force Majeure. Each party will be excused from performance of its obligations under
this Agreement to the extent that performance is rendered impossible by an event or
circumstance beyond that party’s reasonable control, such as earthquake, fire, flood,
governmental action, labor disruptions, or supplier failures.
18.9
Construction. Section headings in this Agreement are for convenience only. The word
“including” is not intended to be limiting. No rule of strict construction is to be used
when interpreting this Agreement.
18.10 Entire Agreement. This Agreement, the Order Forms, and any other referenced
documents reflect the entire agreement between the parties concerning the Application
and the Services, and supersede any prior or contemporaneous agreements,
communications, or understandings (whether written or oral). Both parties must agree
in writing to any amendments or modifications.
18.11 Notices. All notice required under this Agreement shall be sent to the following
addresses by first class U. S. mail, postage prepaid or by fax as follows:
Taylor Protocols, Inc.
16040 Christensen Road, Suite 205
Tukwila, Washington 98188
Fax: (206) 283-0844
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VAR
Company Name:
Attention:
Address:
Phone:
Email:
19.0
VAR License and Certification Fee
VAR agrees to pay a one-time Certification and Training Fee of $4,000 - payable upon signing this
agreement, and a monthly license fee of $50. This VAR agreement shall stay active as long as the
monthly fee is maintained. Additional VAR Representatives within the VARs company may also be
trained for $500 each.
Notes:
Amount due at signing: $
Monthly License Fee: $50/mo. Starting on
CC# to be kept on file with signature.
By signing below, each party represents that the person signing has the proper and sufficient authority
to bind their principal to this Agreement.
TAYLOR PROTOCOLS, INC.:
Signature:
By:
Title:
Date:
Taylor Protocols VAR Agreement
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VAR:
Signature:
By:
Title:
Date:
Referred by:
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Credit Card Information:
Type:
Visa
MasterCard
American Express
Discover
Card number:
Expiration:
Month:
Year:
Cardholder name:
First:
Last:
Card security code:
Billing street address:
Billing zip code:
Signature:
Taylor Protocols VAR Agreement
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