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sharpVoice(tm) Software Reseller Agreement:
sharpVoice(tm) 6.0 Software Reseller Agreement (the Company and the Reseller hereinafter collectively referred to as the "Parties") This agreement establishes an understanding between the parties and as such both parties agree to be bound by its Terms and Conditions. This agreement shall not become binding upon the parties until it has been signed by an authorized representative of Reseller and signed and accepted by authorized officers of the Company. WHEREAS, The Company is engaged in the business of producing and marketing various products which provide discounts or other price advantages on the products and services described therein; and, WHEREAS, Reseller wishes to sell such products on behalf of The Company, on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I - APPOINTMENT OF RESELLERSHIP 1. Distribution Right. The Company hereby appoints and grants Reseller the non-exclusive and non-assignable right to sell sharpVoice 6.0 software. 2. Taxes. Prices do not include federal, state or local taxes applicable to the products sold under this Agreement. An amount equal to the appropriate taxes will be added to the invoice by the Company where the Company has the legal obligation to collect such taxes. Reseller shall pay such amount to the Company unless Reseller provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. 3. Terms. Terms are net cash upon delivery. 4. Competitive Products. Reseller agrees not to represent or sell other products which are deemed to be competitive with the Company's Products unless agreed to by the Company by written notice. ARTICLE II - MARKETING AND SUPPORT 1. Sales. Reseller shall use its best efforts to promote the sale and distribution of the Products and to provide adequate support, which efforts shall include the following: (a) Establishing and maintaining appropriate, attractive and accessible premises and facilities for the display and demonstration of Products; (b) Provide an adequate, trained sales and technical staff to promote the sale and support of the Products; (c) Undertake promotional campaigns and canvas prospective users to stimulate the sales of Products; 2. Advertising. Company shall, upon request, assist the Reseller on all advertising, sales promotion, and public relations campaigns to be conducted, including providing Reseller with documentation of previous promotional campaigns conducted in connection with the Products, and shall provide necessary technical information and assistance. 3. Training. Company shall furnish training of Reseller's sales and technical representatives at various times and locations as shall be designated for this purpose by Company. Enrollment in training courses shall be limited to a reasonable number of persons who shall be sufficiently qualified to take the courses. Reseller shall pay the salaries and all travel and lodging expenses and subsistence of its representatives. ARTICLE IV DELIVERY 1. Purchase Orders. Reseller shall order Products either by written notice to Company or through the Reseller’s private Reseller web site. Company shall indicate its acceptance of such release by e-mail notification and by provisioning the products on the reseller’s private web site on www.sharpvoice.com/reseller. 2. Products Acceptance. The criterion for acceptance of Company Products by Reseller shall be the successful operation of the Products using Company's standard test procedures and diagnostic test programs applicable to the Products involved. 3. Shipment. All software products and product licenses and will be delivered electronically over the Internet. Upon purchase, they will be placed in the Reseller’s private secured web site within www.sharpvoice.com/reseller. ARTICLE III - PROPRIETARY RIGHTS 1. Use of Company Name. Company expressly prohibits any direct or indirect use, reference to, or other employment of its name, trademarks, or trade name exclusively licensed to Company, except as specified in this Agreement or as expressly authorized by Company in writing. All advertising and other promotional material must adhere to the sharpVoice™ name and logo usage guidelines. Company hereby authorizes and requires Reseller's use of the Company's insignia or lettering which will be on the products at the time of the delivery. Company hereby authorizes the Reseller's use of the legend set forth below. Authorized legend shall be the following: sharpVoice™ software If the authorized legend is used on any stationery, invoices, promotion material or otherwise by Reseller, Reseller will, on termination of this Agreement, or upon request of Company, discontinue the use of such legend on any stationery, invoices, promotion material or otherwise and thereafter will not use, either directly or indirectly in connection with its business, such legend or any other names, titles of expressions so nearly resembling the same as would likely lead to confusion or uncertainty, or to deceive the public. 2. Patent Indemnity. Company agrees, at its own expense, to indemnify, defend and hold harmless each Reseller and its customers from and against every expense, damage, cost and loss (including attorneys' fees incurred) and to satisfy all judgments and decrees resulting from a claim, suit or proceeding insofar as it is based upon an allegation that the Products or any part thereof furnished by Company or any process which is practiced in the customary use of the Products is or has been infringing upon any patent, copyright or proprietary right, if Company is notified promptly of such claim in writing and given authority, and full and proper information and assistance (at Company's expense) for the defense of same. In case the Products, or any part thereof, in such suit is held to constitute an infringement and the use of said Products or part is enjoined, Company shall, in its sole discretion and at its own expense, either procure for the indemnitee the right to continue using said Products or part or replace or modify the same with nonperformance or capacity or affect its compatibility with the hardware or firmware comprising the Products or the software utilized thereon. 3. Drawings and Data. The Company normally supplies all necessary data for the proper installation, test, operation and maintenance of its Products. Portions of this data are proprietary in nature and will be so marked. The Reseller agrees to abide by the terms of such markings and to be liable for all loss or damage incurred by the Company as a result of the improper or unauthorized use of such data. The Company retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to any Products specified in the contract and to all discoveries inventions, patent rights, etc., arising out of work done in connection with the contract and to any and all Products developed as a result thereof, including the sole right to manufacture any and all such products. The Reseller shall not contact the Company's suppliers, or any other person, for the purpose of manufacture. 4. Title to Products and Documentation Package. Reseller acknowledges that the Products and documentation listed in Schedule 1 are the property of Company, and that the products are being made available to Reseller in confidence and solely on the basis of its confidential relationship to Company, Reseller agrees not to print, copy, provide or otherwise make available, in whole or in part, any portion of an original or modified Products Documentation Package or related materials. ARTICLE IV - WARRANTY 1. Products Warranty. Company warrants that Reseller shall acquire Products purchased hereunder free and clear of all liens and encumbrances except for Company's purchase money security interest defined in Articles I, 4, above. Company further warrants all Products to be free from defects in material or workmanship under normal use and service for a period of ninety (90) days from the date of delivery. All repair covered by this warranty must be done at Company's factory, or other such warranty repair facilities of Company as designated by Company unless Company specifically directs that this service be performed at another location. Any defect corrected within ninety (90) days and found to be within this scope of the warranty will be repaired by Company and all charges for labor and material, will be borne by Company. If it is determined that either no fault exists in Company, or the damage to be repaired was caused by negligence of Reseller, its agents, employees or customers, Reseller agrees to pay all charges associated with each such repair. THIS CONSTITUTES THE SOLE WARRANTY MADE BY COMPANY EITHER EXPRESSED OR IMPLIED. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED WHICH EXTEND BEYOND THE FACE HEREOF, HEREIN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AND RESELLER'S REMEDIES SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF NONCONFORMING UNITS OR PARTS. 2. Misuse of Products. Any tampering, misuse or negligence in handling or use of Products renders the warranty void. Further, the warranty is void if, at any time, Reseller attempts to make any internal changes to any of the components of the Products; if at any time the power supplied to any part of the Products exceeds the rated tolerance; if any external device attached by Reseller creates conditions exceeding the tolerance of the Products; or if any time the serial number plate is removed or defaced. OPERATION OF THE PRODUCTS THAT RENDERS THIS WARRANTY VOID WILL BE DEFINED TO INCLUDE ALL OF THE POSSIBILITIES DESCRIBED IN THIS PARAGRAPH, TOGETHER WITH ANY PRACTICE WHICH RESULTS IN CONDITIONS EXCEEDING THE DESIGN TOLERANCE OF THE PRODUCTS. ARTICLE V - DURATION OF AGREEMENT 1. Term. The term of this Agreement shall be for one year from the date hereof, unless sooner terminated. Termination shall not relieve either party of obligations incurred prior thereto. 2. Renewal. This agreement may be renewed prior to its termination at the discretion of the Company and the Reseller. 3. Termination. This Agreement may be terminated only: (a) By either party for substantial breach of any material provision of this Agreement by the other, provided due notice has been given to the other of the alleged breach and such other party has not cured the breach within thirty (30) days thereof; or (b) By the Company if: there is an unacceptable change in the control or management of the Reseller; if the Reseller ceases to function as a going concern or makes an assignment for the benefit of creditors; if a petition in bankruptcy is filed by or against the Reseller, resulting in an adjudication of bankruptcy; or, if the Reseller fails to pay its debts as they become due and provided due notice has been given by the Company to the Reseller and the Reseller has not cured such breach within thirty (30) days thereof; (c) By the Reseller in the event of the direct or indirect taking over or assumption of control or merger of the Company or substantially all of its assets by any government authority or other third party, the Reseller shall have the right to terminate this Agreement upon first giving written notice to the Company. (d) Upon termination of this Agreement all further rights and obligations of the parties shall cease, except that Reseller shall not be relieved of (i) its obligation to pay any monies due, or to become due, as of or after the date of termination, and (ii) any other obligation set forth in this Agreement which is to take effect after the date of termination. Reseller shall have the right to continue to purchase spare parts in accordance with Article VI. ARTICLE VI - NOTICES 1. Notice or Communication. Any notice or communication required or permitted hereunder (other than Administrative Notice) shall be in writing and shall be sent by registered mail, return receipt requested, postage prepaid and addressed to the addresses set forth below or to such changed address as any party entitled to notice shall have communicated in writing to the other party. Notices and communications to Company shall be sent to: CyberTalkOnline LLC 9700 Great Seneca Highway, #270 Rockville, MD 20850 Notices and communications to Reseller shall be sent to address shown on first page of this Agreement. Any notices or communications to either party hereunder shall be deemed to have been given when deposited in the mail, addressed to the then current address of such party. 2. Date of Effectiveness. Any such notice or communication so mailed shall be deemed delivered and effective seventy two (72) hours after mailing thereof in the United States. ARTICLE VII - GENERAL PROVISIONS 1. Relationship of Parties. The relationship between the parties established by this Agreement shall be solely that of vendor and vendee and all rights and powers not expressly granted to the Reseller are expressly reserved to the Company. The Reseller shall have no right, power or authority in any way to bind the Company to the fulfillment of any condition not herein contained, or to any contract or obligation, expressed or implied. 2. Independence of Parties. Nothing contained in this Agreement shall be construed to make the Reseller the agent for the Company for any purpose, and neither party hereto shall have any right whatsoever to incur any liabilities or obligations on behalf or binding upon the other party. The Reseller specifically agrees that it shall have no power or authority to represent the Company in any manner; that it will solicit orders for products as an independent contractor in accordance with the terms of this Agreement; and that it will not at any time represent the Company in any manner; that it will solicit orders for products as an independent contractor in accordance with the terms of this Agreement; and that it will not at any time represent orally or in writing to any person or corporation or other business entity that it has any right, power or authority not expressly granted by this Agreement. 3. Indemnity. The Reseller agrees to hold the Company free and harmless from any and all claims, damages, and expenses of every kind or nature whatsoever (a) arising from acts of the Reseller; (b) as a direct or indirect consequence of termination of this Agreement in accordance with its terms; or (c) arising from acts of third parties in relation to products sold to the Reseller under this Agreement, including, but not limited to execution of liens and security interests by third parties with respect to any such products. 4. Assignment. This Agreement constitutes a personal contract and Reseller shall not transfer or assign same or any part thereof without the advance written consent of Company. 5. Confidentiality. The terms of this contract are confidential trade information between the two parties and will not be disclosed to other sharpVoice™ resellers or Resellers. 6. Entire Agreement. The entire Agreement between the Company and the Reseller covering the Products is set forth herein and any amendment or modification shall be in writing and shall be executed by duly authorized representatives in the same manner as this Agreement. The provisions of this Agreement are severable, and if any one or more such provisions are determined to be illegal or otherwise unenforceable, in whole or in part, under the laws of any jurisdiction, the remaining provisions or portions hereof shall, nevertheless, be binding on and enforceable by and between the parties hereto. Any provisions, terms or conditions of Reseller's Purchase Orders which are, in any way contradicting of this Agreement, except those additional provisions specifying quantity and shipping instructions, shall not be binding upon Company and shall have no applicability to the sale of goods by Company to Reseller. 7. Applicable Law. This Agreement shall be governed by the laws of the State of Maryland and is accepted by Company at its Corporate Office in 9700 Great Seneca Highway, #270 8. Rockville, MD 20850. All payments hereunder shall be made at Company's offices at the aforementioned Corporate Office. Company's rights granted hereby are cumulative and in addition to any rights it may have at law or equity. 9. Number and Gender. Words importing the singular include the plural and vice versa and words importing gender include both genders. 10. Headings. The Article and Section headings contained herein are included solely for convenience, are not intended to be full or accurate descriptions of the contents thereof and shall not be considered part of this Agreement or to affect the interpretation hereof. 11. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement 12. No Implied Waivers. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. 13. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, or embargoes. 14. Attached Exhibit(s). This Agreement includes the attached exhibit(s) listed above, which are hereby incorporated in this Agreement by reference. SCHEDULE 1 - LIST OF PRODUCTS Product code Product Name SVCW70-EN sharpVoice™ Client Software for Windows version 6.0 - English language version
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