GLOBAL IHA SOFTWARE AFFILIATE AGREEMENT
Thank you for choosing IHA Software
FURTHER BY ENTERING INTO THIS GLOBAL AGREEMENT, THE OWNER(LICENSOR) OF THE SOFTWARE PROGRAM EXCLUSIVELY GRANTS THE SOFTWARE RIGHTS FOR A CERTAIN TERRITORY TO A THIRD PARTY I.E. THE DISTRIBUTOR WHICH INTURN SELL THEM TO THE USERS I.E. THE LICENSEES. BY VIRTUE OF THE SAID RELATIONSHIP THE LICENSOR RECEIVE AN INITIAL SUM IN ADDITION TO ROYALITIES FOR EVERY SOFTWARE LICENSES WHICH THE DISTRIBUTOR SELLS IN THE GIVEN TERIITORY. THIS AGREEMENT ENSURES BY WAY OF ADDED CLAUSES THAT THE LICENSOR HAS CONTROL OF THE SOFTWARE LICENSES GRANTED TO THE DISTRIBUTOR AND THE INTELLECTUAL PROPERTY RIGHTS ARE PROPERLY USED FOR THE PURPOSE GRANTED.
A. Supplier has created certain owned products known as “IHA Software” which are proprietary to Supplier.
B. Distributor desires that Supplier appoint Distributor as Supplier’s exclusive distributor with respect to the distribution and sale of the products
C. Supplier has agreed to appoint the distributor as its exclusive distributor to distribute in the territory (mentioned in the exhibit/application) under the terms and conditions hereinafter contained.
D. Supplier and Distributor also desire that [Supplier/Distributor] produce copies of the Products for distribution and sale by Distributor as more particularly set forth herein.
NOW, THEREFORE, in consideration of their mutual promises set forth below and other valuable consideration, the parties agree as follows:
1. SCOPE OF AGREEMENT
1.1 Definitions. In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
“Calendar day” means any day including a Saturday, Sunday or a public holiday in the Territory.
“Intellectual Property Rights” means patents, trademarks, service marks, registered designs, source code, applications for any of the foregoing, copyright, design rights, know-how, confidential information, trade and business names and any other similar protected rights in any country.
“Licensee” means a person or company situated in the Territory who has acquired license to use the Software from the Distributor.
“Product Description” means IHA Software. Software includes sub products- a. Password Armor-www.passwordarmor.com, Driver Armor- www.driverarmor.com, Privacy ProTech- www.privacyprotech.com, PopGuard- www.popguard.org “IHA Software“ manufactured in accordance with the Specification, and any improved versions of the product(s) introduced by Supplier from time to time.
“Software” means IHA Software and all modifications, enhancements and replacements thereof and additions thereto provided by the Supplier and made available to the Distributor pursuant to this Agreement.
“Software License Agreement” means a software license agreement between the Distributor and the Licensees to use the software known as IHA Software.
“Software Materials” means the Software and the Product Description.
“Source Materials” means all logic, logic diagrams, flowcharts, orthographic representations, algorithms, routines, sub-routines, utilities, modules, file structures, coding sheets, source codes listings, functional specifications, program specifications and all other materials and documents necessary to enable a reasonably skilled programmer to maintain, amend and enhance the software in question without reference to any other person or documentation.
“Support Services” means the software support services provided by the Supplier and Distributor to the Licensees.
“Territory” means the country/countries or region/regions (as mentioned in the exhibit/application) for which the
Supplier grants Distributor software exclusivity for the use of the Software.
“Year” means any period of 12 months or any anniversary of the date hereof.
“Product Keys” means a unique code that allows the Licensees to use the Software once they have signed the Software License Agreement with the Distributor.
2.1 The Supplier hereby appoints the Distributor and the Distributor hereby agrees to act as the exclusive distributor of the Supplier to distribute the Software Materials via online or offline channels in the Territory. The Supplier hereby grants to the Distributor during the Term an exclusive right to distribute and sell the Software to the Licensees within the Territory. Such rights shall be exclusive to the Distributor, and the Supplier shall not allow any third party to distribute the Software Materials to other users within the Territory.
2.2 The Distributor shall not be entitled to assign or sub-contract any of its rights or obligations under this Agreement or appoint any agent to perform such obligations.
2.3 The Distributor represents and warrants to the Supplier that it has the ability and experience to carry out the obligations assumed by it under this Agreement and that by virtue of entering into this Agreement it is not and will not be in breach of any express or implied obligation to any third party binding upon it.
2.4 This Agreement does not grant to Distributor any rights with respect to the distribution and sale of the Products in any market other than [Marketing Niche] in the country the exclusive right granted Distributor to distribute and sell Products to [Marketing Niche] is expressly made subject to Section 2.1.a below. Distributor acknowledges and agrees that Supplier has retained for itself and/or granted to others the rights to distribute and sell the Products in markets other than [Marketing Niche] in the country. Accordingly, Distributor agrees (i) to not distribute or sell Products except to [Marketing Niche] in the country through Distributor’s normal distribution channels and (ii) to require that each Distributor contractor, agent, representative, and/or sub- distributor selling or handling Products (“Sub-distributors”) will comply with the limitations and restrictions imposed by this Section 1.4; and (iii) to take all reasonable steps to enforce such limitations and restrictions on the Sub-distributors. Distributor’s failure to comply with any of the provisions of this Section 1.4 shall be a material breach of this Agreement.Distributor will sell the product through conexus.ihasoft.co or through the approved URL only.
2.5 Independent Contractors. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors.
2.6 No Other Terms and Conditions. The parties acknowledge and agree that any terms and conditions of any purchase order, sales acknowledgement or other document submitted to the other by either party which conflict with the terms and conditions of this Agreement shall be of no force or effect, and the terms and conditions hereof control and supersede such conflicting documents and any course of conduct or usage of the trade inconsistent with any of the terms and conditions hereof.
2.7 Distributor shall be providing all the technical assistance to the licensees for fixing IHA software and for which shall be given a proper training by the team IHA i.e. the Supplier.
2.8 In case the vendor is unable to fix the IHA software related issue then he can connect the licensees or himself directly to the team IHA for getting the issues fixed.
This Agreement shall commence on the day when it is accepted by the Distributor unless terminated earlier as provided in this Agreement. The term of this Agreement will be automatically renewed until unless terminated by either of the parties.
4. Obligations of Software Owner and Distributor and their common responsibilities.
4.1 Delivery of Software. Software Owner shall provide Distributor with a copy of the Software.
4.2 Training. Supplier shall be responsible for initial training of Distributor’s sales force and professional services and support personnel with respect to the Licensed Product prior to the date of the Initial Release (the “Initial Training”) and for providing periodic training to appropriate training personnel of Distributor on all Upgrades so that such training personnel of Distributor may train other employees of Distributor on all such Upgrades. Supplier shall also be responsible for providing on-line training, for all the customers of the Licensed Product.
4.3 Subject to the terms and conditions set forth herein, Supplier agrees to sell, and Distributor agrees to purchase Products in accordance with Distributor’s purchase orders and this Agreement. In this regard:
4.4 Distributor agrees to purchase and take delivery of not less than the following minimum quantity of Products in each Calendar Year:
4.5 The foregoing minimum purchase requirement will be satisfied for any given Contract Year if Distributor’s aggregate purchases of Product “units” equals or exceeds the minimum number for that Contract Year. If Distributor fails to meet or exceed the foregoing minimum purchase requirement in any given Contract Year, then, as Supplier’s sole remedy, Supplier may elect, by written notice to Distributor (i) to terminate this Agreement or (ii) to make non-exclusive for all purposes the sales and distribution rights granted to Distributor by Clause 1.
4.6 Unless otherwise agreed, the minimum order quantity is 50 units for any given Product.
4.7 All Products will be sold under Supplier’s trademarks and tradenames only, using Supplier’s trade dress, and Supplier will retain all proprietary rights in and to the same.
4.8 Purchase Orders and Forecasts. Upon execution of this Agreement, Distributor shall provide Supplier with an initial six (6) months firm purchase order for the purchase of Products and a forecast of its Product requirements for the seventh (7th) through twelfth (12th) months thereafter divided on a monthly basis, which initial purchase order and forecast are attached hereto as Exhibits B and C, respectively. Commencing with the fourth (4th) month of the first Contract Year and continuing thereafter, will provide Supplier, on or before the last day of each calendar month during the term of this Agreement, an additional firm purchase for Products for the third full calendar month thereafter and a revised or supplemental forecast of Product requirements for the fourth (4th) through ninth (9th) months thereafter (unless the term hereof is shorter), it being the intent that (except for the initial six months guaranteed purchase order) in general Distributor will provide three (3) months purchase orders and six (6) months forecasts on a rolling monthly basis during the term of this Agreement. Distributor’s purchase orders for a given month, in order to be conforming, must specify only delivery dates during that month. Distributor’s forecasts are non-binding but shall be Distributor’s reasonable best estimate of its future Product requirements.
4.9 Acceptance of Purchase Orders. Within ten (10) days of receipt of a purchase order from Distributor, Supplier may request in writing a modification of the Product designations, quantities, delivery dates. Supplier’s failure to request a modification or to reject a purchase order within the ten (10) day period shall be deemed an acceptance thereof. Upon actual or deemed acceptance of a purchase order by Supplier, a binding contract for the sale and purchase of Product shall exist between Supplier and Distributor in accordance with this Agreement and Distributor’s purchase order. If Supplier requests modification of any of the aforementioned terms of Distributor’s purchase order, then Distributor shall have ten (10) days following receipt of the request to accept or reject Supplier’s modifications. If Distributor does not respond or object to Supplier’s request within ten (10) days of receipt, the modifications specified thereon shall be deemed accepted by Distributor. Upon Distributor’s actual or deemed acceptance of purchase order modifications by Supplier, a binding contract for the sale and purchase of Products shall exist between Supplier and Distributor in accordance with this Agreement and Distributor’s purchase order as so modified. The foregoing modification procedure shall apply only with the regard to Product designations, quantities, delivery dates. With respect to all other terms, Supplier and Distributor agree that the terms and conditions of this Agreement shall apply to the sale of Product hereunder and cannot be modified or amended except as provided in Section 22.8.
4.10 Non-Conforming Orders. Supplier will use reasonable commercial efforts to fill non-conforming purchase orders for Products in accordance with Distributor’s requests.
4.11 The Supplier agrees to sell, and Distributor agrees to purchase, the Products in accordance with the Prices and Volume Discount Prices (depending on the purchase orders). Volume Discount Prices shall only be subject to increase in purchase orders. Any change in the price of the product will be shared in writing and over the email by the Supplier and subject to acceptance by the Distributor.
4.12 Marketing. Distributor will bear all expenses for its operation and staff. Distributor will advertise and promote the Software at Distributor’s expense.
4.13 Distributor’s Services. Distributor will provide installation assistance and provide first level support and maintenance services, which will include resolving problems not caused primarily by the Software’s malfunction.
4.14 No Modification or Reverse Engineering. Distributor will not modify or enhance the Software without Software Owner’s prior written consent. Software Owner shall own all proprietary rights In any such modifications or enhancements and Distributor transfers and assigns to Software Owner all proprietary rights, including copyright, patent, and trade secret rights, to any such modifications or enhancements. In addition, Distributor agrees not to reverse engineer or decompile the Software.
4.15 Trouble Report identifying any problems believed by Distributor to be caused by errors in the Software.
4.16 Records. Distributor agrees to maintain full, clear and accurate records with respect to the Software, all licenses and agreements related to the Software, and all revenue derived from the Software.
4.17 Non-compete. During the term of this Agreement, Distributor agrees not to engage in the marketing or development of any computer programs with functionality substantially similar to or competitive with the Software.
4.18 While placing orders with the Supplier, the Distributor shall clearly describe the Software and quantity ordered of each Product. The orders shall not be binding unless and until they are accepted by the Supplier in writing.
4.19 The Company shall provide the Distributor with Product Keys as orders within 24 hrs from the order acceptance.
4.20 Distributor ensures no other sale plan shall be pitched other than sale plan accepted on behalf of the Supplier.
4.21 The Distributor shall further ensure that no sale shall be processed by impersonation using the name of the reputed brands.
4. PRICES AND PAYMENT.
4.1 The sales payment shall be made on the official account of the Affiliate as per exhibit B, the details of which are very much available on the website and the Distributor shall only be entitled to commissions which shall be released to him initially i.e. sales made between 1 to 15 of every month shall be cleared on the 7th of next month and the ales during 16th to 30th of every month shall be cleared on 20th of the following month of the first payment after deducting the requisite taxes. That the payment shall only be made by IHA to the distributor upon the receipt of the invoices. Further as per the price schedule the Distributor can’t charge above the price mentioned on www.ihasoft.com.
4.2 Distributor agrees for the wire transfer fee as applicable and the same shall not be more than 65$. (Sixty Five).
4.3 Price Changes. The prices set forth on Exhibit B shall be revised annually, on or before the start of each Calendar Year, to reflect any increase or decrease in manufacturing costs for the Products reasonably projected by Supplier for the next Calendar Year (in each case, determined in accordance with generally accepted accounting principles, consistently applied), with the first pricing review occurring ten (10) months after the Effective Date of this Agreement. Price changes are not effective unless mutually agreed to in writing (agreement not to be unreasonably withheld if consistent with this Section 4.3), with the change being effective with respect to invoices for shipment during the next ensuing Contract Year.
4.4 Distributor shall be responsible for all taxes applicable to Product supplied under this Agreement, unless Distributor provides written proof of exemption.
4.5 Payment Distributor shall issue invoices for Product on or after the date of delivery for the agreed commission and shall prepare a list of the product sold and price to be actuated form such end user.
4.6 In case, the customer requests for the chargeback/refund for any reasons from the Supplier, then the Supplier will claim the amount from the Distributor which is charged by the concerned Bank for the chargeback.
4.7 Distributor agrees that the percentage of the chargeback shall not in any case reach more than 2%. Every Chargeback shall have a fee of 65$.
4.8 Further incase the Bank of the Supplier holds the payments of the Supplier due to rise in the chargeback/refund made by the customer for any reason, then the payment to the Distributor will be released as when the Bank release the payment to the Supplier.
4.9 The Purchase Price will be paid in [insert currency].
4.10 At the time of the payment of the Purchase Price with respect to any Software License Agreement, the Distributor shall supply the Supplier with one executed copy of each Agreement to which the payment relates.
4.11 If the Parties fail to agree on a new Purchase Prices list, whenever required, then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
4.11.1 suspend the performance or further performance of its obligations under this Agreement without liability to the Distributor or its Licensees;
4.11.2 immediately suspend the Distributor’s right to enter into any further Software License Agreement until the new purchase prices list is accepted by the Distributor.
5. Taxes Deductions
4.11.3 Distributor agrees to pay all taxes, fees, value added surcharges, and other assessments levied by federal, state, local and other governments in the Territories related to the license and maintenance of the Software under this Agreement unless Distributor provides written proof of exemption. Distributor will withhold taxes on amounts due Supplier in accordance with any applicable conventions or treaties with the United States.
5.1 In the event that Company has paid such Taxes on behalf of the Distributor, then it shall be entitled to be reimbursed by the Distributor upon presentation of any documentary proof of such payment.
6. SPECIFICATIONS, QUALITY CONTROL AND ACCEPTANCE.
6.1 Specifications. Subject to Section 6.3, [Supplier/Distributor] shall produce copies of the Product in all material respects in accordance with the Specifications and all applicable state and local laws and regulations.
6.2 Specification Changes. Supplier reserves the right to change the Specifications by written notice to Distributor. If Distributor objects to any Specification change proposed by Supplier, then the parties will consult in good faith to resolve their differences and Supplier will not implement the change without Distributor’s consent (not to be unreasonably withheld).
6.3 Quality Assurance. Supplier shall be responsible for ensuring that the Products meet Supplier’s internal quality assurance tests and procedures prior to delivery. Upon request, Supplier will provide Distributor with written certification by a responsible supervisory employee of Supplier that the requirements of this Section 4.3 have been met.
6.4 Acceptance. Products delivered hereunder shall be subject to acceptance by Distributor within fifteen (15) days of receipt. Distributor shall promptly inform Supplier of any Product rejected as non-conforming and at Supplier’s request shall return non-conforming Products to Supplier, at Supplier’s risk of loss and expense. Products as to which no rejection has occurred within fifteen (15) days shall be deemed accepted.
7. SOFTWARE LICENSE
Distributor is granted a non-exclusive license during the term of this Agreement to use and further sublicense the right to use the Products purchased hereunder in accordance with this Agreement. Distributor agrees that all Products delivered under this Agreement are only for such use, and that despite any use of the terms “purchase” and “sale” in connection with Products, such Products shall not be sold nor shall title thereto be transferred to Distributor and Distributor has no interest in the Products obtained by it other than the license rights specifically set forth in this section. Supplier shall retain all ownership right, title and interest in the Products furnished to Distributor pursuant to this Agreement. Except as separately agreed to by Supplier, Distributor may not modify in any way, or copy or otherwise reproduce in any form, any computer program (including manuals and other supplied documentation) supplied with any Product or purchased hereunder. Distributor will comply with the policies and requirements of Supplier in effect from time to time with respect to (i) the licensing by Supplier of its proprietary, protected or confidential material and information and (iii) any Products which are subject to one or more license agreements between Supplier and third parties.
8. PROPRIETARY NOTICES
Distributor shall maintain and place on any copy of a Product which it reproduces, whether for internal use or for distribution, all such notices as are authorized and/or required hereunder. Distributor shall use the following notice, or such other reasonable notice as Supplier shall from time to time require, on each copy of the Product. Such notice shall be loaded in the computer memory for use, display, or reproduction and shall be embedded in program source code and object code, in the video screen display, on the physical medium embodying the Product copy, and on any documentation and sublicensee reference manuals ( mention the code to be displayed on the notice)
This software and documentation constitute an unpublished work and contain valuable trade secrets and proprietary information belonging to supplier. None of the foregoing material may be copied, duplicated or disclosed without the express written permission of Supplier. SUPPLIER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THIS SOFTWARE AND DOCUMENTATION, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE, AND WARRANTIES OF PERFORMANCE, AND ANY WARRANTY THAT MIGHT OTHERWISE ARISE FROM COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE USE OF THE SOFTWARE OR DOCUMENTATION. Under no circumstances shall SUPPLIER be liable for incidental, special, indirect, direct or consequential damages or loss of profits, interruption of business, or related expenses which may arise from use of software or documentation, including but not limited to those resulting from defects in software and/or documentation, or loss or inaccuracy of data of any kind.
9. REFUND POLICY AND LIMITATION OF LIABILITY
9.1 Refund – Supplier warrants to Distributor that the Products purchased hereunder shall be free from defects to the Specifications and in case of any defect the same shall be notified by the Distributor or by the end user to the Supplier who upon proper inspection and verification shall on being satisfied shall rectify the defect or refund the payment and the same may be as per the requirement mentioned in Exhibit C. The Distributor/end user shall be able to avail the refund against the product within the limitation of 15 days after purchase of the said software. The Distributor shall send all the refund request at firstname.lastname@example.org.
9.2 Limitation of Liability. DISTRIBUTOR SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE SALE OR USE OF ITS PRODUCTS, WHETHER OR NOT SUPPLIER HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. IF SUPPLIER BREACHES ANY PROVISION OF THIS AGREEMENT, SUPPLIER’S SOLE AND EXCLUSIVE MAXIMUM LIABILITY, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE CONTRACT PRICE FOR THE PARTICULAR PRODUCTS. THE IHA SHALL NOT BE HELD RESPONSIBLE FOR ANY CRIMINAL OR ILLEGAL ACTIVITIES DONE BY THE DISTRIBUTOR INCIDENTAL OR ANCILLARY TO THE PRESENT AGREEMENT AND SHALL BE WHOLLY AND SOLELY RESPONSIBLE FOR THE SAME.
THE SUPPLIER WILL NOT BE RESPONSIBLE FOR THE MARKETING ACTIVIS AND OPERATIONS PEFORMED BY THE DISTRIBUTOR AND ITS AFFILIATES.
9.3 Distributor assumes full responsibility for its selection of the Products specified herein and any other equipment, programs or services used with the Products, their use, and results obtained therefrom.
10. PROPRIETARY INFORMATION
10.1 Protection of Proprietary Information. Supplier and Distributor agree to keep in confidence and not disclose to others all knowledge, information and data furnished to either by the other party and claimed by the other party to be proprietary, provided such information is given in writing or, if oral, is reduced to writing within thirty (30) days and such writing is marked to indicate the claims of ownership and/or secrecy. Supplier and Distributor agree that neither shall use, nor reproduce for use in any way, any proprietary information of the other except in furtherance of the relationship set forth herein. Supplier and Distributor agree to protect the proprietary information of the other with the same standard of care and procedures used by each to protect its own proprietary information of similar importance but at all times using at least a reasonable degree of care.
10.2 Limitations. Section 10.1 shall not be applicable and shall impose no obligation on a party with respect to any portion of proprietary information which:
A. Was at the time received or which thereafter becomes, through no act or failure on the part of such party, generally known or available to the public;
B. Is known to such party at the time of receiving such information as evidenced by documentation then rightfully in the possession of either party;
C. Is furnished to others by the other party without restriction of disclosure;
D. Is thereafter rightfully furnished to such party by a third party without restriction by that third party on disclosure; or
E. Has been disclosed pursuant to the requirements of law or court order without restrictions or other protection against public disclosure; provided, however, that the other party shall have been given a reasonable opportunity to resist disclosure and/or to obtain a suitable protective order.
10.3 Survival. The covenants of confidentiality set forth herein shall survive and continue and be maintained from the Effective Date hereof until three (3) years after termination of this Agreement.
11. TERM AND TERMINATION
11.1 Term. The initial term of this Agreement shall commence upon the Effective Date and shall continue for a period of One (1) Contract Years (the “Initial Term”). Thereafter, this Agreement shall be renewed for successive one (1) year terms unless terminated by either party by ninety (60) days written notice given on or before the commencement of any renewal term.
11.2 Termination. This Agreement may be terminated as follows:
A. At any time upon mutual written agreement of the parties;
B. By Supplier upon fifteen (15) days written notice to Distributor for failure by Distributor in case of breach of the agreement unless such failure is cured within the fifteen (15) day period; or
C. By either party if (i) the other party is in material breach of its obligations hereunder and such breach continues uncured for a period of thirty (30) days after written notice to the defaulting party,
D. The Supplier can terminate the agreement with immediate effect in case of multiple complaints against the Distributors and high refunds/chargeback and fluctuation in revenue.
E. The Supplier can terminate the account of the Distributer at any time, the Supplier discovers any suspicious and fraudulent activity on the account.
F. n any event if the chargeback reached more than 2% then the account will be subjected to termination by the Supplier.
G. The Supplier has the full authorization to renew any services of the Licensees even in cases where the account of the Distributor has been terminated on account of any reason.
12. Customer Support
Distributor shall be responsible for “level one” customer support (subject to Supplier providing appropriate product documentation and training), and supplier shall be responsible for higher levels of customer support based upon criteria and escalation procedures to be mutually agreed upon by the parties in writing. Further the Licensees should be provided with the following link conexus.ihasoft.co for any support or assistance and further they can address their issues/ concern by writing an email at email@example.com.
13. Warranties of Licensor
13.1 Ownership of Intellectual Property : Supplier warrants that it owns all right, title and interest in the Licensed Product and the Documentation and that it has the right to grant the licenses. Supplier represents that it is not aware of any pending or threatened legal proceedings against it with respect to ownership or title in or to the Licensed Product or the Documentation. Supplier shall indemnify and hold Distributor harmless from and against any loss, cost, liability and expenses (including reasonable attorneys fees) arising out of any breach or claimed breach of this warranty.
13.2. Limited Warranty : Supplier warrants that [throughout the term of this Agreement] [for a period of [NUMBER ( )] days following delivery to Distributor of the Initial Release and each Upgrade], the Licensed Product [embodied in such release] will perform substantially in accordance with the Documentation. Supplier does not warrant that the Licensed Product will be error-free or will operate without interruption. The foregoing warranty shall run to Licensees, and shall survive inspection, test, acceptance, and payment by Licensees. In the event of breach of the foregoing warranty, at [Supplier’s] [Licensee’s] option, Supplier shall either (a) refund payments made with respect to the defective or non-conforming Licensed Product or (b) use reasonable efforts to correct such problem. Licensee’s remedies under this clause shall be cumulative with any other remedy of Licensee under this Agreement.
13.3 Disclaimer : Except as expressly provided in the clause 13.2, Supplier hereby disclaims all other warranties to Distributor or its customers, express, implied, statutory or otherwise, with respect to the Licensed Product and the Documentation, including implied warranties of merchantability or fitness for a particular purpose.
A. Distributor shall retain all of Supplier’s copyright and trademark notices on any embodiments of the Licensed Product and the Documentation used by Distributor and shall take such other steps as may be reasonably necessary to protect Supplier’s intellectual property rights in the Licensed Product. [All advertisements and promotional materials, packaging and anything else bearing a Trademark shall identify Supplier as the Trademark owner and as the manufacturer of the Licensed Product.] Distributor shall not represent or imply that it is Licensor or is affiliated with Supplier in any manner other than as a licensee.
B. Upon expiration or termination, Distributor will take all necessary steps to transfer and assign to Supplier, or its nominee, any right, title or interest in or to any of the Trademarks, and the goodwill related thereto, which Distributor may have acquired in any manner as a result of the marketing and distribution of the Licensed Product under this Agreement, and Distributor shall cease using any Trademark.
C. Distributor acknowledges and agrees that all use of the Trademarks by Distributor shall inure to the benefit of Supplier. Distributor agrees not to apply for registration of any Trademarks anywhere in the world or for any mark confusingly similar thereto. Supplier may elect to apply for registration of one or more of the Trademarks anywhere in the world at its expense and, in such event, it shall so notify Distributor and Distributor shall assist and cooperate with Supplier in connection therewith. Distributor also agrees not to use or contest, during or after the term of this Agreement, any Trademark, name, mark or designation used by Supplier anywhere in the world (or any name, mark or designation similar thereto).
Each party shall be solely responsible for the development, operation, and maintenance of its own web site and for all materials that appear on its web site, including (i) the technical operation of its web site and all related equipment, (ii) the accuracy and appropriateness of materials posted on its web site, and (iii) ensuring that materials posted on its web site do not violate any law, rule, or regulation, or infringe upon the rights of any third party and are not defamatory, obscene or otherwise illegal. Each party disclaims all liability for all such matters with respect to the other’s web site.]
Distributor may advertise the Licensed Product in appropriate periodicals in a manner ensuring proper and adequate publicity for the Licensed Product. Distributor shall notify Supplier promptly of all such advertising, specifying the name and date of the applicable periodical.
17. Third-Party Infringement
Distributor shall notify Supplier promptly of any infringement of any copyrights, Trademarks, or other intellectual property or proprietary rights relating to the Licensed Product. Supplier may, in its sole discretion, take or not take whatever action it believes is appropriate in connection with any such infringement. If Supplier elects to take any such action, Distributor agrees to reasonably cooperate, at no expense to Distributor, in connection therewith. If Supplier initiates and prosecutes any action with respect to infringement of any copyrights, Trademarks, or other proprietary rights relating to the Licensed Product, Supplier shall be entitled to retain all amounts (including court costs and attorneys’ fees) awarded by way of judgment, settlement, or compromise with respect thereto.
Distributor shall ascertain and comply with all applicable federal, state and local laws and regulations and standards of industry or professional conduct, including those applicable to product claims, labeling, approvals, registrations, notifications, and the Internet Assigned Numbers Authority and Internet community standards (INTERNIC).
19.1 Indemnification of Distributor
A. Generally: Supplier shall defend Distributor against any claim that the Licensed Product used within the scope of this Agreement infringes any patent, invention registration, copyright, trade secret or mask work right of any third party, or that any Trademark infringes any registered trademark, service mark, trade dress, or other common law trade identity right of any third party, and shall pay any settlements entered into or damages awarded against Licensee to the extent based on such a claim, regardless of the form of award (and specifically including any award of attorneys fees or costs); provided, however, that (i) Distributor notifies Supplier promptly in writing of the claim; (ii) Supplier has sole control of the defense and all related settlement negotiations, except that Supplier shall not enter into any settlement agreement materially affecting the rights of Licensee without Distributor’s express consent; and (iii) Distributor provides Supplier with all reasonably necessary or desirable assistance, information, and authority to perform the above.
B. Exclusions : Supplier shall have no liability for any claim of infringement based on
(i) use of any release of the Licensed Product other than the latest release provided to Licensee, if the infringement would have been avoided by use of the latest release and Supplier enables end users of earlier releases of the Licensed Product to migrate to the latest release;
(ii) modification of the Licensed Product by Distributor, if the infringement would have been avoided without such modification; or
(iii) the combination or use of the Licensed Product with materials not furnished by Supplier, if such infringement would have been avoided by use of the Licensed Product alone and such combination or joint use was not agreed to by Supplier.
C. Alternatives : If any settlement agreement or judgment with respect to the Licensed Product results in a final injunction against Supplier or a final loss of Distributor’s ability to use or distribute the Licensed Product as provided hereunder, or if Supplier believes that the Licensed Product is likely to infringe the rights of a third party or become subject to such an injunction or loss, Supplier shall have the right, at its sole option and expense, to (i) substitute for or modify the Licensed Product so that it is non-infringing; (ii) obtain for Distributor a license to continue using and distributing the Licensed Product; or (iii) if neither (i) nor (ii) is reasonably practicable, terminate this Agreement and refund to Distributor all Royalties paid by Supplier hereunder.
D. Sole Obligation : The foregoing states the sole obligation and exclusive liability of Supplier (express, implied, statutory, or otherwise) for any infringements or claims of infringement of any patent, copyright, trademark, trade secret, or other intellectual property right with respect to the Licensed Product.
19.2. Indemnification of Supplier : If notified promptly in writing of any action (and all prior claims relating to such action) against Supplier based on a claim arising from
(A) infringement of any patent or other intellectual property right which results from activities of Licensee described in clauses.
(B) Distributor’s grant of a warranty to any end user exceeding the limited warranty set forth in clause,
(C) Distributor’s material breach of this Agreement, or
(D) Distributor’s negligence or willful misconduct, Distributor shall indemnify Supplier and hold Supplier harmless from and against any judgment, damage, liability, or expenses, including reasonable attorneys fees, arising out of any such claim, provided that Distributor shall have had sole control of the defense of any such action and all negotiations for its settlement or compromise, and, provided further, that no cost or expense shall be incurred for the account of Distributor without its prior written consent.]
20.2 Confidentiality : Each party acknowledges and agrees that the terms and conditions of this Agreement shall be treated as confidential information and that no reference to the terms and conditions of this Agreement or to activities pertaining thereto can be made in any form without the prior written consent of the other party; provided, however, that the general existence of this Agreement shall not be treated as confidential information, and that either party may disclose the terms and conditions of this Agreement:
(A) As required by any court or other governmental body or as otherwise required by law;
(B) To legal counsel, accountants, banks, proposed investors, and financing sources of the parties and their advisors;
(C) In confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or
(D) In confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.]
20.3 Exceptions : Each party shall be relieved of its obligation of confidentiality hereunder to the extent any such information:
(A) Was in the public domain at the time of disclosure or has become in the public domain through no fault of such party;
(B) Was known to such party, without restriction, at the time of disclosure as shown by its files in existence at the time of disclosure;
(C) Was disclosed by such party with the prior written approval of the other party;
(D) Was independently developed by such party without any use of the other party’s confidential information; or
(E) Becomes known to such party, without restriction, from a source other than the other party and without breach of this Agreement.
Source Code Protections : Distributor shall not under any circumstances attempt, or knowingly permit others to attempt, to (a) decompile, decipher, disassemble, reverse engineer or otherwise determine the source code, structure, algorithms or ideas underlying the Licensed Product, (b) alter or modify the Licensed Product, or (c) attempt to disable any security devices or codes incorporated in the Licensed Product.
20.4 Injunctive Relief : Each party acknowledges that any breach of any of its obligations with respect to confidentiality or use of the other party’s confidential information hereunder is likely to cause or threaten irreparable harm to the other party, and, accordingly, it agrees that in the event of such breach the other party shall be entitled to equitable relief to protect its interest therein, including but not limited to preliminary and permanent injunctive relief, as well as money damages.
(A) All disputes, claims, or controversies arising out of or relating to this Agreement or any other agreement executed and delivered pursuant to this Agreement or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby and thereby that are not resolved by mutual agreement shall be resolved solely and exclusively by binding arbitration to be conducted before [ ] or its successor (the “Arbitrator”). The arbitration shall be held in [LOCATION] before a mutually appointed arbitrator and shall be conducted in accordance with the rules and regulations promulgated by the Arbitrator unless specifically modified herein.
(B) The parties covenant and agree that they will participate in the arbitration in good faith.
(C) Each of the parties hereto irrevocably and unconditionally consents to the exclusive jurisdiction of the Arbitrator to resolve all disputes, claims or controversies arising out of or relating to this Agreement or any other agreement executed and delivered pursuant to this Agreement or the negotiation, validity or performance hereof and thereof or the transactions contemplated hereby. Each party further irrevocably waives any objection to proceeding before the Arbitrator based upon lack of personal jurisdiction or to the laying of venue and further irrevocably and unconditionally waives and agrees not to make a claim in any court that arbitration before the Arbitrator has been brought in an inconvenient forum. Each of the parties hereto hereby consents to service of process at the address to which notices are to be given. Each of the parties hereto agrees that its submission to jurisdiction and its consent to service of process are made for the express benefit of the other party hereto.]
22.1 Successors and Assigns : The rights and obligations of either party shall not be transferable without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. All obligations of the parties herein shall be binding upon their respective successors or assigns.
22.2 Choice of Laws : This Agreement shall be governed by, and its terms shall be construed in accordance with, the laws of the State of Haryana (India).
22.3 Waiver : No waiver or breach of any term or condition of this Agreement shall operate as a waiver of any other breach of such term or condition, or of any other term or condition, nor shall any failure to enforce any provisions hereunder operate as a waiver of such provision or any other provision hereunder.
22.4 Severability : In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, except in those instances where removal or elimination of such invalid, illegal, or unenforceable provision or provisions would result in a failure of consideration under this Agreement, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.
22.5 Notices : All notices hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, one day after delivery to a nationally recognized overnight delivery service, charges prepaid, three days after being sent by registered or certified mail, postage prepaid, to the parties at their respective addresses set forth above and:
ADDRESSES OF THE PARTIES
or to such other address as any party shall have specified by notice to the other in accordance with this Section. Purchase orders, forecasts and other routine business forms (and any notices not sent in accordance with the foregoing) shall be effective only upon receipt.
22.6 Headings : Headings used in this Agreement are for the purpose of reference only and are not to be considered in construction or interpretation of this Agreement.
22.7 Counterparts : This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
22.8 Entire Agreement; Amendment. This Agreement, including the Exhibits, contains the entire Agreement between the parties relating to the subject matter hereof. All prior agreements and all prior negotiations, representations and communications relating to the same subject are superseded by this Agreement. This Agreement may not be modified other than by a written document signed by an authorized representative of each party.
22.9 As a abandon precaution the Distributor shall maintain the call records of each and every communication with the customers to whom the IHA Software are sold or the license against the same has been extended to, which shall be made available to IHA team or any public authority or government authority in the event of escalation of any legal issue/emergency.
People who sign
Persons signing the contract on behalf of the company must have the authority to do so and preferably, be entitled on the basis of a power of attorney. Below the signature, in addition to the full name of the person that signs his/her position must be inserted. When one of the Parties who signs is a natural person (for example a commercial agent in a Agency Contract) obviously he or she is the person that has to sign the contract.
The laws of some countries require that contracts, to be valid, shall be signed in front of witnesses or a public notary. Therefore, before signing a contract Distributor has to informed about the requirements and laws that may exist in each country and any failure shall withhold the Supplier from any risk and liabilities.