STRATEGIC ALLIANCE MASTER AGREEMENT
by and between COMPANY1, LLC and COMPANY2, INC
This Strategic Alliance Master Agreement (“Agreement”) is made and entered into this
day of _, 2018 (“Effective Date”) by and between COMPANY1 LLC (“COMPANY1”) , a Registered Limited Liability Partnership formed under the laws of Country, having an office at Address and COMPANY2, Inc. (“COMPANY2 ”), a corporation, having a place of business at .
W I T N E S S E T H:
WHEREAS, COMPANY1 has a premier reputation, capability and expertise for Private Funding Reporting Requirements;
WHEREAS, COMPANY2 has software experience and resources to develop and deploy Private Funding Reporting solutions that will be developed with COMPANY1;
WHEREAS, COMPANY1 and COMPANY2 desire to enter into a mutually beneficial relationship that may result in the development of joint products and/or intellectual property, collaboration in marketing and selling jointly defined solutions, and collaborative delivery of those solutions;
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual representations, promises, terms, and conditions contained herein, receipt of which is hereby acknowledged, and intending to be bound, COMPANY1 and COMPANY2 agree as follows:
- Overview of Agreement
- Purpose. The primary purpose of the Alliance is to develop the “COMPANY2 Strategic Product” for utilization in conjunction with the COMPANY2 software platform and COMPANY2 ’s pre-existing “COMPANY2 Product”, by each Party agreeing to perform certain tasks and responsibilities itself as well as agreeing to collaborate with the other Party in the performance of other identified tasks and responsibilities, in accordance with the terms and conditions of this
- Scope of Activity. COMPANY1 and COMPANY2 will collaborate on configuring and testing collections of objects for use within the COMPANY2 “Strategic Product” to be marketed for utilization in conjunction with the COMPANY2 software platform and COMPANY2’s pre-existing Product, (a) with COMPANY2 being responsible for configuring, customizing, and enhancing the COMPANY2 Strategic Product (as a baseline Strategic solution as well as for specific client needs), at least in part utilizing applicable business requirements provided by COMPANY1, and (b) with COMPANY1 being responsible (i) for providing applicable business requirements to COMPANY2, and (ii) for conducting business-level (i.e., not related to software development or programming) testing of the COMPANY2 Strategic Product business rules functionality and output results. In addition, the Parties will work to coordinate their respective services with the intent of addressing the strategic needs of joint clients in a more complete and seamless
- Relationship of Parties. The relationship between COMPANY1 and COMPANY2 will not be principal and agent, partners, joint venturers, or any other form of legal Each Party will conduct its business in its own name and will be responsible for the acts and conduct of its employees and agents. Neither Party will have authority to act for or bind the other or make any representation or warranty on behalf of the other.
- Awareness of Product. The product is COMPANY2 Product. COMPANY1 will help COMPANY2 design and develop the product. Awareness of the product will be created through directly engaging the leaders within target clients. Leads may be identified by either Party, but will be discussed and agreed upon by both firms before the client is
- Relationship with Client. For each customer in the target market where the Alliance is proposing the COMPANY2 Products, the prime and subcontractor model will be jointly agreed between COMPANY1 and COMPANY2 before initiating the engagement, with the decision for prime and subcontractor to be finalized by the Management Committee. COMPANY2 will be the licensor of the COMPANY2 Products regardless of which Party is the prime with the
- Master Subcontractor Agreement. For any relationship with an Alliance client requiring a subcontract agreement between the Parties, the Parties will sign the Master Subcontractor Agreement in substantially the form attached as Schedule 1.6 which will apply to the client relationship. Depending on the relationship with the client, one of the Parties will be the prime contractor and the other Party will be the subcontractor under the Master Subcontractor Agreement.
- Contemplated Scope of Activities. It is anticipated that each Party shall have certain defined roles and responsibilities based upon each Party’s knowledge, experience and expertise.
- Core Business of the Parties. Except for the exclusive commitments set forth in this Agreement, each Party is free to conduct its business (including with competitors of the other Party) without the involvement of the other Party. For example, with respect to COMPANY1, consulting is a core business of COMPANY1. COMPANY1 must be able to continue to operate its core business in an unencumbered fashion. The Alliance cannot restrict COMPANY1’s current method of performing its core business. It is COMPANY1’s intent to marshal all of COMPANY1’s capabilities to jointly market the COMPANY2 Solution and services enumerated under the Alliance governance model. For all other consulting, (e.g., the way COMPANY1 currently conducts its professional business), COMPANY1 must be able to go to market by itself without COMPANY2 . For example, COMPANY2 can pursue IT business that is not a COMPANY2 Solution without the involvement of
“Affiliate” with respect to a Party shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with a Party, and for this purpose, “control,” “controlling” and “controlled by” shall mean the ownership and control of more than fifty percent (50%) of the outstanding voting securities or interest in capital or profits of any person or entity, or the right to direct or control the management or affairs of any person or entity by contract or similar arrangement.
“Agreement” shall have the meaning set forth in the Preamble.
“Alliance” shall mean the alliance of COMPANY1 and COMPANY2 to develop, license and sell COMPANY2 Solutions in accordance with the terms of this Agreement.
“Anticipated Revenues” shall have the meaning set forth in Schedule 7.3
“COMPANY2 Existing IP” shall mean any Intellectual Property brought to the relationship by COMPANY2 and set forth in Schedule 6.1.1.
“COMPANY2 Products” shall mean COMPANY2 Strategic Product and COMPANY2 Product. “COMPANY2 Indemnitees” shall have the meaning set forth in Section 12.2. “COMPANY2 Strategic Product” is [product description] configured and tested in conjunction with COMPANY1, that are operable to process applicable and relevant results in accordance with the Rules and client requirements, and to provide the processed output results to COMPANY2’s Component (having equivalent functionality to the COMPANY2 Product described below).
“COMPANY2 Product” is [product description]. For further avoidance of any doubt, COMPANY2 Product has been developed, configured and tested without any involvement of, or contribution from, COMPANY1.
“Background Intellectual Property” or “Background IP” of a Party shall mean all its IP which such Party conceives, creates, develops or actually reduces to practice, owns or controls independent of any joint development activity performed hereunder and which is necessary, useful or applicable to the purposes of this Agreement. COMPANY2 Existing IP and COMPANY1 Existing IP are Background IP.
“Calendar Year” shall mean the period from January 1 to December 31. “Confidential Information” shall mean shall mean any and all non-public technical and/or commercial information in tangible or non-tangible form which is disclosed or made available by one Party to the other Party for the purposes of this Agreement. Confidential Information shall include information, in any form and regardless of whether it was developed by a Party or acquired through a license, agreement or otherwise, which is not generally known to the public, including without limitation any data, know-how, formulations, techniques, equipment, methods, results, information regarding sources of supply, business plans, partners, clients, potential agreements and the existence, scope and activities of any research, development, manufacturing, marketing, or other projects, patent applications, trade secrets and other similar information with like characteristics. Confidential Information also includes, but is not limited to, formulae, compositions, specifications, designs, ideas, software, algorithms, methodologies, machine readable data, production and quality control methods, processes, techniques, customer lists, sales leads, sales plans, market information, roadmaps, business policies or practices, and other technical and/or commercial information and data, as well as product samples. Confidential Information does not include information that can be established by the other Party by competent proof that such information: (a) is generally available to the public through no fault of such Party; (b) was known by such Party prior to receipt thereof as evidenced by prior written documents in the possession of such Party; (c) is subsequently disclosed to such Party in good faith by a third party who is not under an obligation of confidentiality as to the information disclosed; or (d) was or is independently developed by such Party without reliance upon any Confidential Information of the disclosing Party.
“Covered Products” shall have the meaning set forth in Section 6.1.2. “Development Plan” shall have the meaning set forth in Section 3.1. “Development Responsibilities” shall have the meaning set forth in Section 3.1. “Dispute” shall have the meaning set forth in Section 9.4.
“Effective Date” shall have the meaning set forth in the first paragraph of this Agreement “External Contractor” shall have the meaning set forth in Section 4.13.
“Force Majeure” shall have the meaning set forth in Section 15.9.
“Intellectual Property” shall mean any and all patents and patent applications, copyrights, author’s rights, works of authorship, moral rights, trademarks, service marks, mask works, trade secrets, ideas, inventions, know-how, processes, methods, formulations, concepts, inventions, discoveries, proprietary information, software, processes, improvements, developments, results, discoveries, designs, patterns, devices, diagrams, charts, drawings, specifications, documentation, data, plans, reports and/or other like information or items, along with any and all patent applications, registrations, renewals, divisionals, continuations, reissues and extensions therefor in the United States and foreign countries and any other intellectual property rights of a Party.
“IP Claim” shall have the meaning set forth in Section 12.
“Joint Business Plan” shall have the meaning set forth in Section 4.1.
“Jointly Established Sales Targets” shall mean the targets set forth in Schedule 7.3 “Joint Marketing Material” shall have the meaning set forth in Section 4.11.
“COMPANY1 Existing IP” shall mean any Intellectual Property brought to the relationship by COMPANY1 and set forth in Schedule 6.1.1.
“COMPANY1 Indemnitees” shall have the meaning set forth in Section 12.1. “COMPANY1 Member Firms” shall mean the global network of professional firms which are members of COMPANY1 International.
“Management Committee” shall have the meaning set forth in Section 9.
“New Solely-Owned IP” shall mean any Program Developed IP, whether patentable or not, regardless of which Party created, conceived or developed it, that is solely a derivative or improvement of a single Party’s Background IP or product(s), for purposes other than integrating the products or Background IP of more than one Party.
“Party” shall mean COMPANY1 or COMPANY2 . When used in the plural form, the term shall mean COMPANY1 and COMPANY2 collectively. For the purposes of this agreement, an Affiliate of any Party which that Party utilizes to carry out its obligations pursuant to this Agreement, shall be considered that Party.
“Program Developed Intellectual Property” or “Program Developed IP” shall mean all Intellectual Property any Party, conceives, creates or develops in the performance of the Development Plan.
“Residuals” shall have the meaning set forth in Section 6.11. “Royalty Payment” shall have the meaning set forth in Section 7.1. “Rules” shall have the meaning set forth in Section 1.3.
“Task” shall have the meaning set forth in Section 3.1. “Term” shall have the meaning set forth in Section 11.1. “Vendor” shall have the meaning set forth in Section 3.5.
- Joint Development Responsibilities
Each Party agrees to assume the respective responsibility for overseeing and performing specific development activities in connection with a “Development Plan” to be further defined and attached as Schedule 3.1 as set forth in this Section.
- Development Plan. To effectively cooperate and collaborate in the development of the Alliance, the Parties seek to perform pursuant to a Development Plan (to be attached as a Schedule), identifying the following: (1) specific tasks, including without limitation, development of software or hardware and testing of such software or hardware each Party is to complete in performing its Development Responsibilities (“Task”); (2) requirements, if any, for the satisfactory completion of a Task; (3) development milestones for the completion of certain Tasks; (4) procedures for each Party to test, review or otherwise approve, at its option, of Tasks completed by the other Party; (5) the start date for the Development Plan; (6) prototype development and production rollout schedule; (7) requisite regulatory submissions and approvals; (8) necessary agreements in place; and (9) flexibility for delays not the responsibility of the parties) (“Development Plan”). Each Party agrees to use its best efforts to negotiate and prepare, on or before the [third month] anniversary of the Effective Date, a mutually agreeable Development Plan. If the Parties are not able to enter into a mutually agreeable Development Plan on or before such anniversary, the Parties may mutually agree to extend such deadline if they believe that a mutually agreeable Development Plan can be agreed to.
- COMPANY2 Development Responsibilities. COMPANY2 agrees to configure, customize, parametrize, and enhance (as needed) the COMPANY2 Products as well as for specific client needs. COMPANY2 will make available all resources necessary to support COMPANY1’s efforts in connection with the COMPANY2 Strategic Product. In addition, COMPANY2 will provide both sales and end-to-end training on its system to COMPANY1. In the case where the COMPANY2 solution is deployed on third-party hosted or Cloud provider environments, COMPANY2 is fully responsible for the reasonable supervision and oversight of the application and associated customer data with the solutions described in this contract. COMPANY2 is also responsible for ensuring that the appropriate contracts are in place with the client to represent the known technology, data, security, and availability risks inherent in third-party hosted or Cloud provider environments.
- COMPANY1 Development Responsibilities. COMPANY1 agrees to make available professionals with knowledge and experience most applicable to addressing client needs for complying with the Rules. COMPANY1 will provide the rule’s business requirements analysis, report specifications, user acceptance testing, and QA / business-level (i.e., not related to software development or programming) testing and QA of the business rules functionality of, and the results provided by, the COMPANY2 Strategic Product, and will consult with COMPANY2 on the COMPANY2 Strategic Product configuration / parameters (including advising on dashboard / support testing, and on provision of report specifications suitable to each client’s configuration).
- Development Milestones. The Parties understand and agree that the completion of their respective responsibilities in the Development Plan shall be pursued in accordance with Development Plan’s milestones. The Development Plan’s milestones will have been determined and agreed upon between the Parties based on information available at the Effective Date of this Agreement, and the Parties agree that the Development Plan’s milestones are commercially reasonable. Notwithstanding the foregoing, the Parties acknowledge that information not known upon the Effective Date may affect the reasonableness of one or more Development Plan’s milestones, and that a Party may seek an extension or other modification of one or more Development Plan milestones by obtaining consent of the Management Committee.
- Vendor Relationships. Each Party agrees that it will permit the other Party to have access to, and develop working relationships with, existing vendors of such Party (“Vendor”) for the purpose of allowing the other Party to perform its Development Responsibilities; provided, however, that no Party may act or attempt to act to disrupt, terminate or materially change any relationship of the other Party with a Vendor.
- Joint Development. The Parties shall work together jointly and collaboratively to develop COMPANY2 Strategic Product
- Information Exchange. The Parties will use commercially reasonable efforts to jointly facilitate information exchange among the Parties in connection with the development, expansion, growth and promotion of the Alliance
- Joint Marketing and Sales Responsibilities
- Joint Business Plan. The relationship sponsors from COMPANY1 and COMPANY2 will create a Joint Business Plan and meet as frequently as necessary, but not less than once per quarter to review the performance of the relationship. If performance is not meeting expectations, a new Joint Business Plan will be developed or the relationship will be The Joint Business Plan (to be attached as Schedule 4.1) will describe the responsibilities of each party in promoting and selling the COMPANY2 Strategic Product and provide milestones for key marketing activities.
- Marketing and Sales. Both Parties will establish and maintain a target client list and actively participate in marketing and selling efforts as mutually agreed.
- Joint Business Plan Activities. The Parties agree to use to use their best efforts to negotiate and prepare, on or before the three (3) month anniversary of the Effective Date, a mutually agreeable Joint Business Plan for the marketing and commercialization of COMPANY2 Strategic Product. The Joint Business Plan shall include, among other things: (1) primary responsibilities of each Party in performing the Joint Business Plan; (2) allocation of costs associated with performing the Joint Business Plan; (3) standard terms and conditions for sublicensing the Intellectual Property to third parties; (4) procedures for approving proposed sublicenses of the Covered Products. Upon completion of the Joint Business Plan, each Party agrees to use commercially reasonable efforts to satisfy its respective responsibilities. Each Party shall prepare and submit to the Management Committee on a monthly basis a status report summarizing the status of its responsibilities during the preceding month and any issues concerning its responsibilities.
- Sales Channels. COMPANY1 and COMPANY2 agree to utilize their considerable marketing and sales channels to promote and assist each other in securing new clients for COMPANY2 Products. This assistance includes, but is not limited to, training each other’s sales personnel on the offering, presenting the services to each other’s clients during independent sales calls and other independent sales efforts, and conducting joint sales calls, efforts, and events with each other’s sales personnel The Joint Business Plan sets forth the specific roles and responsibilities of each Party and a list of deliverables.
- No Other Marketing Activities. Neither party will engage in marketing activities with respect to the Alliance beyond those agreed to in the Joint Business Plan without the express agreement of the other Party.
- Access to Systems and Assets. COMPANY2 will provide whatever system access is necessary for COMPANY1 on COMPANY2’s computer system to support customer demonstrations and proofs of concept.
- Marketing Materials. All marketing materials will be reviewed by both parties and agreed to in a timely manner before being presented to any client or potential client.
- Business Opportunities. Each Party shall keep the other Party continuouy informed about business opportunities and related marketing activities. Each Party shall describe its progress in periodic reports submitted to and approved by the Management Committee.
- Marketing Responsibilities. COMPANY1 and COMPANY2 shall at all times during the term of this Agreement:
- Develop and maintain an annual Joint Business Plan, and cooperate with each other in promotional efforts, including developing and maintaining marketing tools and literature;
- Prepare and share quarterly marketing and product intelligence reviews covering all joint business activity including pricing strategies on an ongoing basis;
- Provide dedicated promotion and sales personnel of appropriate experience and implement appropriate sales management resources and tools to deliver against targets;
- Actively and diligently undertake best commercial efforts to promote the sale of COMPANY2 Strategic Products by solicitation of inquiries and calls on customers and prospective customers to obtain inquiries, and by rendering such services as may be required to present and sell Products;
- Facilitate communications by and between each other and customers or prospective customers regarding COMPANY2 Strategic Products inquiries, orders, delivery schedules, administrative, or other matters, and maintain records and summary reports regarding such communications with customers and prospective customers with such items to be provided promptly upon reasonable request;
- Provide service for existing and potential customers on a regular basis consistent with best business practices, including prompt response to customer needs;
- Perform administrative support functions, including but not limited to placing and managing periodic purchase orders, maintaining a database of customers and sales leads, as well as complete and accurate books and records of all transactions and activities regarding the COMPANY2 Strategic Products;
- Immediately notify each other in writing of any claim that any of the COMPANY2 Strategic Products infringes any patent, trademark, copyright, trade secret or similar intellectual property right;
- Use only technical and promotional literature and other documentation used in connection with the marketing of the COMPANY2 Strategic Products which have been furnished or expressly approved by each other;
- Offer only warranty terms expressly approved by each for all COMPANY2 Strategic Products provided to customers;
- Take all prudent and necessary steps to develop and protect the goodwill and reputation each other;
- Assure compliance with all applicable laws and regulations; and
- Maintain customary third-party general liability and automobile liability insurance in commercially reasonable amounts at the sole cost and expense of each
- Ownership Rights in Marketing Materials. Each Party will retain full right, title and interest and ownership of marketing and sales materials developed solely by that Party. New jointly developed marketing and sales materials will be jointly owned by the both parties. Any publication or disclosures of marketing and/or sales materials are subject to the publicity provisions of the Agreement. Upon termination or expiration of this Agreement, all Parties may use the Joint Marketing Material separately for the benefit of their individual businesses.
- Use of Third Parties. COMPANY2 and COMPANY1 may use any of their affiliated companies worldwide (each COMPANY2-branded or COMPANY1-branded) in furtherance of the joint business relationship and to support its sales, product delivery, and product support efforts. If either Party decides to use a non-affiliated third party subcontractor, consultant, agent, or other intermediary (“External Contractor”) in connection with selling and/or delivering products and services under this agreement, the Parties shall mutually agree on the process for receiving advance approval from the other Party prior to engagement thereof.
- Relationship of Parties
- Non-Exclusivity. Unless formally agreed to elsewhere (e.g., in an addendum covering a specific initiative or a teaming agreement for a specific joint sale), the relationship is non-exclusive, but both Parties will consider the other as a preferred alliance partner when selling products and services to address their clients’ needs.
- Provision of Services: Right of First Refusal. In particular, COMPANY1 will have the first right of refusal to provide services associated with addressing COMPANY2 ’s clients’ needs. This right of first refusal will apply to all COMPANY2 clients approached with a solution, whether the client is an existing COMPANY2 client, approached only by COMPANY2 or jointly by COMPANY1 and COMPANY2. Both parties agree to alert the other of any new opportunities of which they become aware and collaboratively pursue it unless the other party is unable or unwilling, or if the client expresses a conviction that it prefers a different vendor. Sales to clients of COMPANY2 solution may take place as a “Joint Pursuit” with both COMPANY2 and COMPANY1 participating, or as an “COMPANY2 Pursuit” with just COMPANY2 participating (if COMPANY1 is unable or unwilling to be involved in a Joint Pursuit).
- Investment. Unless agreed elsewhere, each Party will independently determine the amount, nature and timing of any and all investments made into this relationship, however a Quarterly Plan has to be agreed upon in advance by the Management Committee and both Parties need to adhere to the investments planned as per the Quarterly plan. Unless specified otherwise in an addendum, each Party will invest its own resources in the relationship with the expectation of profit from sales of its products and/or services. Unless specified otherwise in an addendum, neither Party will be obliged to make the other whole or provide compensation for the other Party’s investment.
- Representation. Neither party will promote this relationship, use the other Party’s name or logo or represent the relationship or other Party, without the express agreement of the other Party.
- Staffing. Both Parties will staff positions necessary for the implementation of this Agreement, including all addenda, in a timely manner and with individuals of appropriate experience, skills, character, and comport. If either Party believes that the other Party has staffed a position with someone lacking the requisite qualifications, that Party can request a joint If both Parties are not satisfied with the individual’s qualifications, he or she will be replaced. Each party will be responsible for managing and staffing its own resources for this program. If either Party believes that the other party has staffed a position with someone lacking the requisite qualifications and ability to work as a part of an integrated team by promoting trust and confidence in the joint relationship, it will be handled through an Executive review process by the Management Committee and he or she will be replaced.
- Sponsors. This Agreement will specify the senior-level Sponsors for the relationship and how succession will occur.
- Affiliates. Each Party shall be responsible for ensuring that its Affiliates who receive information pursuant to this Agreement or carry out any tasks pursuant to this Agreement have a copy of this Agreement and that the Affiliates adhere to the terms of the Each Party shall be responsible for any obligations that its Affiliate agrees to perform pursuant to this Agreement.
- Publicity and News Releases. Any news release, public announcement, advertisement or publicity concerning this Agreement, released by either Party shall provide the proper and equal credit to the other as a separate and independent corporate entity. No news release, public announcement, advertisement or publicity concerning this Agreement, any proposals, any resulting contracts, or any subcontracts to be carried out hereunder, shall be released by either Party without the prior written approval of both parties, except to the extent required by law. Either Party may describe this Agreement in and append it to regulatory filings made with U. S. and other governmental agencies, provided that the other Party has received prior written notice of any such required regulatory disclosure.
- Hosting and Access to Solution. COMPANY2 will host the COMPANY2 Products during the initial development of each successive upgrade and/or addition. At all times, COMPANY1 will have access rights to review, demo, use or otherwise access the products/solutions either developed or in development. COMPANY1 will also have the right to host and deploy the COMPANY2 Products within COMPANY1’s IT environment.
- Intellectual Property
6.1 IP General.
- Any pre-existing Intellectual Property brought to the relationship by either party and any modifications, improvements and enhancements made thereto remains the property of that party. Each party will grant the other a license to use that Intellectual Property to the extent necessary to perform its corresponding obligations under this agreement. If use of this Intellectual Property is necessary for the execution of the joint initiative, consent will not be unreasonably withheld. A mutually agreeable compensation structure for such license will be established by the Management Committee. COMPANY1 Existing IP is set forth in Schedule 6.1.1. COMPANY2 Existing IP is set forth in Schedule 6.1.1. COMPANY1 Existing IP and COMPANY2 Existing IP included in the Schedules are for clarification purposes, but are not intended to be fully inclusive of all existing IP.
- COMPANY2 will retain full and exclusive ownership to the COMPANY2 Strategic Product, the COMPANY2 Product, as well as to COMPANY2 core technology, etc. COMPANY2 will also retain full and exclusive ownership of all new technology and new products developed jointly with COMPANY1 under this Agreement (the “Covered Products”). Covered Products shall mean any new technology and new products developed jointly by COMPANY2 and COMPANY1 in furtherance of the Alliance, whether patentable or not, that is not New Solely-Owned IP. For clarity, any IP developed by the Parties in furtherance of the Alliance that could reasonably be classified as New Solely-Owned IP of more than one Party shall be deemed Covered Products. Covered Products shall be confirmed by the Management Committee. Covered Products does not include COMPANY1 IP or COMPANY2 IP. The contemplated Covered Products will include a description of its technical functionality and technology platforms.
- Any future enhancements to the specific capabilities and functions of the Covered Products developed during the term of, and in connection with, this Agreement will comply with terms and conditions relating to the Covered Products under this Agreement.
- Each Party owns or has rights to its Intellectual Property existing prior to the Effective Date involving including without limitation in the case of COMPANY1 methods and systems for analyzing and filing SEC Forms (included in COMPANY1 Existing IP). COMPANY1 retains all rights, title and interests in and to the COMPANY1 Existing IP and COMPANY2 retains all rights, title and interests in and to the COMPANY2 Existing IP including any and all modifications and improvements thereto and derivatives thereof. The Parties agree to take commercially reasonable efforts to sign all documents, make all necessary declarations and, generally, do everything in their power to assist the other Party to obtain and enforce proper protection for New Solely-Owned IP.
6.2 Ownership and License Rights.
- New Solely-Owned IP. New Solely-Owned IP shall be solely owned by the Party to whose Background IP or Products the New Solely-Owned IP is a derivative or an improvement. Each Party hereby assigns and if not assigned, agrees to assign all right title and interest it may have to New Solely-Owned IP to the proper owner as described in this section.
- Covered Products. Covered Products shall be solely owned by COMPANY2 .
- Security Interest in Covered Products. COMPANY2 grants to COMPANY1 security interest in the Covered Products in accordance with the Security Agreement attached as Schedule 6.2.3. COMPANY2 shall fully cooperate with COMPANY1 in the filing of the Security Agreement for COMPANY1’s security interest in the Covered Products.
- Escrow. COMPANY2 agrees to place the Covered Products in escrow with Iron Mountain Incorporated in accordance with the escrow agreement attached as Schedule 6.2.4. In the event of agreed release provisions, Iron Mountain will be authorized to release the applicable source code for the Covered Products to COMPANY1 for use within the scope of applicable Escrow Release provisions. Release conditions will include (i) insolvency of COMPANY2 , (ii) breach of this Agreement by COMPANY2 or termination of this Agreement by COMPANY2 for convenience. Upon release from escrow, COMPANY1 will receive a broad, perpetual, worldwide, irrevocble license for the source code for the Covered Products.
- License to COMPANY1. Additionally, COMPANY2 will grant a broad, perpetual, worldwide license to COMPANY1 and its third-party contractors for the COMPANY2 Products for demonstration, testing, internal training for itself and its customers and for such other purposes as mutually agreed upon by the parties on a case by case basis.
- Right of First Refusal; Sale. If COMPANY2 wishes to sell the ownership rights to the underlying software platform needed for the COMPANY2 Strategic Product, and/or the Covered Products, COMPANY2 must provide COMPANY1 with the right of first refusal to buy the rights with respect to utilization of the underlying software platform in support of the COMPANY2 Strategic Product solution and/or the Covered Products. The right of first refusal procedure is set forth below. If COMPANY2 becomes insolvent, COMPANY1 will receive the appropriate rights under the Escrow Agreement as set forth above.
- Disclosure. Each Party will promptly disclose to the other Party in writing any New Solely-Owned IP or Covered Products conceived, developed, and/or made during the term of this Agreement. The other Party shall have sixty (60) days to comment on or respond to a Party’s disclosure or otherwise the other Party shall be deemed to have accepted the disclosure and the classification of the content in that disclosure (New Solely-Owned IP or Covered Products).
- Patent Applications. Each Party shall bear any and all costs associated with preparing, prosecuting, and maintaining any patent applications each Party chooses to pursue and maintain with respect to its portion of the New Solely-Owned IP. However, each Party shall bear the costs of any filing or issuance awards or inventor’s royalties (if any) for its own inventors. All decisions relating to the filing, prosecution and ownership of any of patents embodying Covered Products shall be made by the Management Committee.
- No Right of Ownership. Each Party will retain full right, title, interest and ownership of its own Background IP and new Solely-Owned IP. By virtue of this Agreement, no rights or licenses are granted to another Party except as expressly stated herein. In particular and except as specifically provided herein, nothing in this Agreement shall be construed as granting, or as an undertaking to subsequently grant, to a Party any license, right, immunity, title or interest in or to any Background IP or New Solely-Owned IP of the other Party.
6.4 Restrictions and
- Neither Party shall be permitted to sell, distribute, license, or otherwise disclose the Covered Products to any competitors of the other Party (listed in Schedule 6.4.1) without the written consent of the other party for a period of twelve (12) months after the initial development and deployment of the Covered Products. Each Party reserves the right to revise Schedule 6.4.1 on a quarterly basis as their competitors change. Revisions shall be reviewed and agreed upon by the Management Committee. In no case will the introduction of new competitors to Schedule 6.4.1 invalidate prior or on-going sales, distributions, or disclosures of the Covered Products that were initiated prior to agreement to the revision.
- COMPANY1 and COMPANY2 may only use the Covered Products within the scope of this agreement. If either Party wishes to use the Covered Products in any other application they must obtain the agreement of the other Party, including any mutually agreeable license or royalty fees.
- During the term of this Agreement, and only to the extent necessary for the performance in furtherance of the Alliance, each Party grants to the other Party a non- exclusive royalty-free right to make, use, copy, modify, distribute, license, sublicense, and make derivatives of its Background IP or its New Solely-Owned IP. The rights granted under this paragraph shall survive termination of this Agreement.
- The Parties grant each other a fully paid-up, irrevocable, nonexclusive license, with right to sublicense, to make, use, sell, copy, make derivatives, distribute and display all Background IP, New Solely-Owned IP and Covered Products solely for use in providing Services to be used only as a part of the services offered to the customers of the Alliance.
- Each Party agrees that its use of the Covered Products shall be limited to using the Covered Products for the sole purpose of conceiving, creating, reducing to practice or otherwise developing, marketing, manufacturing, distributing, and generating revenue from the Alliance in accordance with the terms and conditions of the Agreement. Neither Party has the right to license or sublicense its rights in the Covered Products, in whole or part, except in accordance with the Alliance and upon prior written consent of the other Party.
- Proprietary Filings. The Parties agree that COMPANY2 may seek patent, copyright and other protections for the Covered Products, as determined from time to time by the Management Committee. The Parties shall execute or have executed by their employees, consultants, or agents patent applications and/or copyright registrations and such other documents considered necessary by the Management Committee to apply for and obtain letters, patents and copyright registrations in the United States, foreign countries, or both, as the Management Committee may deem necessary or to otherwise protect the Covered Products. Neither Party shall be required or have any obligation to solely file or prosecute patent applications or maintain patents relating to the Covered Products, except as otherwise expressly agreed upon by the Parties in writing.
- Further Licenses. The Parties agree that upon completion of the Marketing Plan, the Parties will grant each other the necessary licenses and rights in COMPANY1 Existing IP and COMPANY2 Existing IP, as applicable, for the purpose of marketing and commercializing the Covered Products in accordance with the Marketing Plan, and any such license shall be subject to a mutually agreeable license agreement containing customary terms and conditions, including without limitation, a limited, royalty-free license to make, use, import, sell, and license such Covered Products, as applicable. In addition, the Parties will amend the restrictions on Covered Products to the extent necessary to permit the marketing and commercialization of the Covered Products in accordance with the Marketing Plan.
- Trademarks and Tradenames. Each Party recognizes that the name, logo, emblem and marks of the other Party represent valuable assets of that Party and that substantial recognition and goodwill are associated with such assets. Each Party hereby agrees that neither it nor any of its Affiliates shall use, or permit a third party to use, the other Party’s name, logo, emblem or marks without the prior written consent of such other Party. Nothing in this Agreement shall constitute a license or other authorization entitling a Party to use any other Party’s name, logo, emblem or marks.
- No Assignment. Except as expressly stated in this Agreement, nothing in this Agreement shall amount to an assignment, license or transfer of any right or title to or interest in any Intellectual Property owned or licensed by any Party. For the avoidance of doubt, all right and title to and interest in any Party’s Intellectual Property rights and the goodwill associated therewith, shall remain with each Party and/or their licensors. Each Party agrees that it will do nothing inconsistent with such ownership and that all use of the a Party’s trademarks (should such use be permitted) by it shall inure to the owning Party’s benefit and will be on the owning Party’s behalf.
- Right of First Refusal in Event of Sale. In the event that COMPANY2 contemplates selling some or all of the COMPANY2 Strategic Product, and/or the Covered Products, or entering into a transaction whereby COMPANY2 would merge with or be consolidated into another entity, and receives a bona fide offer proposing any such transaction, then, prior to accepting such offer, COMPANY2 shall first offer to COMPANY1 the COMPANY2 Strategic Product, and/or the Covered Products to be sold, merged or consolidated on substantially the same terms and conditions as those set forth in the bona fide offer. COMPANY2 must provide sixty (60) calendar days notice to COMPANY1 of intent to sell, plus an additional sixty (60) calendar days notice to COMPANY1 setting forth the nature of the proposed transaction that is the subject of the bona fide offer, the identity of the offeror, the proposed closing date, and the material terms and conditions of the bona fide offer, including the cash purchase price (or, in the event of consideration other than cash, the actual cash value thereof), and payment terms, which notice shall constitute COMPANY2 ’s irrevocable offer to sell to COMPANY1, or, in COMPANY1’s discretion, to a designated Affiliate of COMPANY1, on substantially the same material terms and conditions as set forth in COMPANY2 ’s offer. COMPANY1 shall respond in writing to such notice within thirty (30) days of receipt of the second notice, accepting COMPANY2 ’s offer, rejecting the same, or making a counteroffer. In the event COMPANY1 fails to accept COMPANY2 ’s offer, and subject to COMPANY1’s written consent which is required for such sale, then COMPANY2 may consummate the proposed transaction, which is the subject of the bona fide offer in accordance with the terms of such bona fide offer.
- Joint Access to Technology Platform. COMPANY1 and COMPANY2 will have joint access to the technology platforms that house the COMPANY2 Products and related Intellectual Property. Due to cost considerations and resource competencies, the Parties expect that COMPANY2 will host the COMPANY2 Products during the initial development of each successive upgrade and/or addition. At all times, COMPANY1 will have access rights to review, demo, use or otherwise access the COMPANY2 technology platform either developed or in development.
- Residuals. Either Party may freely use the “Residuals” acquired from the Alliance activity. The term “Residuals” means the ideas, know-how, concepts and techniques in intangible form arising from work performed by such Party, which may be retained by employees (including agents) of such party. Neither party will be obligated to limit or restrict the assignment of its employees, or to pay royalties to the other party for any work resulting from the use of Residuals.
- Pricing and Level of Value
- Share of License Fees.
- During the Term of the Agreement:
- COMPANY2 will pay COMPANY1 30% of license fees received from sales to any client of the COMPANY2 Strategic Product, and of any “Covered Products”, as a “Royalty Payment”. This revenue share will not apply to maintenance, template subscription fees, and consulting fees charged by COMPANY2 .
- COMPANY2 will pay COMPANY1 30% of license fees received from sales of the COMPANY2 Product to any client as a “Royalty Payment”. This revenue share will not apply to maintenance, template subscription fees, and consulting fees charged by COMPANY2 .
- COMPANY2 will charge license fees consistent with its current practice. For any new setting of license fees, COMPANY2 will consult with COMPANY1 to assure that the license fees accurately reflect the value of the COMPANY2 Products.
- Payments shall be made to COMPANY1 within sixty (60) days of COMPANY2
signing a license agreement with COMPANY2’s customer.
- After expiration of this Agreement, or after termination thereof by either party for convenience.
- For a period of three (3) years following the date of expiration of the Agreement or the date of termination thereof for convenience, COMPANY2 will pay COMPANY1 30% of license fees received from sales to any client of the COMPANY2 Strategic Product, and of any “Covered Products”, as a “Royalty Payment”. This revenue share will not apply to maintenance, template subscription fees, and consulting fees charged by COMPANY2 .
- Obligation to Share Revenue. Unless expressly stated otherwise in the Agreement or in any other agreement between the Parties, no Party shall have any obligation to share with the other Party any revenues received as a result of activities not related to this Agreement.
- Jointly Established Sales Targets and Anticipated Revenues. The Jointly Established Sales Targets and Anticipated Revenues by the Parties to be received during the first three (3) years of the Alliance are set forth in Schedule 3.
- Collections and Revenue Sharing.
- Collections from Customers. The prime contractor Party with the customer shall be responsible for quotations, contracting, billing, and collection from each of its customers under customer contracts. Following the receipt of such payments from the customer, the prime contractor Party will remit to the other Party the agreed upon Royalty Payments from the revenues received under the customer contract. The prime contractor Party will use commercially reasonable efforts to collect payments due.
- Reporting. Each payment under this Agreement shall be accompanied by a statement indicating (i) the Revenues received by the prime contracting Party, (ii) the resulting shared amount of such Revenue to be paid by the prime contracting Party to the other for such month, and (iii) any other data that the Parties from time to time agree should be included with reports.
- Audit Rights. Each Party shall keep and maintain accurate records relating to the data and reports provided by it pursuant to this Agreement. COMPANY1 shall be allowed reasonable access to COMPANY2 ’s books, records and other documentation related to this Agreement or its work with COMPANY1, and COMPANY1 shall have the right to audit COMPANY2 ’s sales of the COMPANY2 Strategic Product and of COMPANY2’s Product on a periodic basis.
Each Party agrees to pay all costs, expenses and other expenditures associated with its development responsibilities, including without limitation, employee and consultant expenses and materials costs, without reimbursement or contribution from the other Party, unless otherwise provided herein or in a separate written agreement. Except as stated otherwise in this Agreement, each Party will be responsible for its own individual costs in conducting its duties and obligations under this Agreement.
- Management Committee
- Management Committee. The relationship of the Parties under this Agreement shall be governed by the Management Committee. The Management Committee shall consist of four (4) representatives, two (2) representatives to be appointed by COMPANY1 and two (2) representatives to be appointed by COMPANY2 . Either Party may change its representatives upon ten (10) days notice to the other Party. Any decision of the Management Committee must be unanimous. The Management Committee shall meet at a minimum quarterly or more often as reasonably requested by the Parties. The Management Committee may appoint subcommittees but all decisions shall be made by the Management Committee as a whole.
- Change Management. The Management Committee shall be responsible to implement change management procedures under this Agreement.
- Disclosure of New Management or Ownership. COMPANY2 will notify COMPANY1 of any new Officer, Director and major shareholder (20% or more) of COMPANY2 within thirty (30) days.
- Dispute Resolution. A party may designate a dispute under this Agreement as an official “Dispute” in writing. All Disputes shall be referred to the Management Committee. If the Dispute is not resolved within thirty (30) days of a Party declaring a Dispute in writing, then either Party may file a lawsuit pursuant to the jurisdictional terms of this Agreement.
- Confidential Information
- Use and Disclosure. Each Party acknowledges and agrees that it will have access to and become acquainted with Confidential Information of the other Party, and undertakes not to, directly or indirectly, without the prior written consent of such other Party, except as otherwise expressly provided in this Agreement, use Confidential Information of the other Party for any purpose other than performing its obligations under this Agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate the Confidential Information to any Third Party; or cause any Third Party to use such Confidential Information. Notwithstanding the foregoing, each Party shall be permitted to disclose Confidential Information (i) to certain Third Parties, namely, employees, authorized representatives, agents and third-party consultants, on a need to know basis who will be assisting such Party to render its obligations under this Agreement, provided that such Third Party executes and delivers a confidentiality agreement including terms and conditions substantially similar as those contained in this Section; (ii) to potential investors in either Party as long as the information is limited to that normally provided in an offering and such potential investors execute and deliver a confidentiality and nondisclosure agreement which includes terms and conditions substantially similar as those contained in this Section; and (iii) as required by law, provided, such disclosing Party shall (a) give prompt notice of such requirement to the other Party so that it will have the opportunity to seek a protective order or other appropriate remedy and (b) cooperate in the other Party’s attempts to obtain confidential treatment of such Confidential Information.
Notwithstanding anything to the contrary set forth herein, no provision in this Agreement or a Statement of Work is or is intended to be construed as a condition of confidentiality within the meaning of IRC sections 6011, 6111, 6112 or the regulations thereunder, or under any similar or analogous provisions of the laws of a state or other jurisdiction. In particular, either Party (and each employee, representative, or other agent of either Party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of any transaction within the scope of the services under a Statement of Work and all materials of any kind (including opinions and other tax analyses) that are provided to the either Party relating to such tax treatment and tax structure. The Parties also agree to use commercially reasonable efforts to inform each other of any conditions of confidentiality imposed by third party advisors with respect to any transaction on which a Party’s advice is requested. Such notification must occur prior to either Party providing any advice with respect to a transaction.
- Non-Disclosure. The Confidential and Proprietary Information will be kept confidential and shall not, without disclosing Party’s prior written consent, at any time be disclosed by the receiving Party or by its third-party consultants, agents, representatives or employees, in any manner whatsoever, in whole or in part, and shall not be used by the receiving Party, its agents, representatives or employees, other than for the purposes of this Agreement. Moreover, the receiving Party agrees to reveal the Confidential Information only to its third- party consultants, agents, representatives and employees who need to know the Confidential Information for such purposes, who are informed by the receiving Party of the confidential nature of the Confidential Information and who shall agree to act in accordance with the terms and conditions of this Agreement. The receiving Party shall be responsible for any breach of this Agreement by its agents, representatives or employees.
- Legal Disclosure. In the event that the receiving Party or anyone to whom the receiving Party transmits the Information pursuant to this Agreement becomes legally compelled to disclose any of the Confidential Information, the receiving Party will provide the disclosing Party with prompt notice so that the disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, or that the disclosing Party waives compliance with the provisions of this Agreement which waiver must be in writing to be effective, the receiving Party will furnish only that portion of the Confidential Information which the receiving Party is advised by written opinion of counsel is legally required and will exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded the Confidential Information. The receiving Party acknowledges that remedies at law may be inadequate to protect against breach of this Agreement, and the receiving Party hereby in advance agrees to the granting of injunctive relief in the disclosing Party’s favor without proof of actual damages.
- Sole Purpose. Unless expressly stated otherwise in this Agreement, the terms of this Agreement shall govern any Confidential Information disclosed pursuant to this Agreement. The Parties may use Confidential Information disclosed to the other Party pursuant to this Agreement solely for the purpose of fulfilling its obligations under this Agreement or otherwise contemplated by this Agreement.
- Confidential Information of COMPANY1 Clients and COMPANY2 Clients. Neither Party shall provide Confidential Information of such Party’s clients (“Providing Party”) to the other Party (“Receiving Party”) without notice to and the express written consent of the Receiving Party and assurance from the Providing Party that it has obtained such client’s consent to the disclosure of the information to the Receiving Party.
- Term and Termination
- Term. The term of this Agreement will be three (3) years (“Term”) commencing on the Effective Date, unless earlier terminated in accordance with this Section. The Term may be extended upon mutual agreement by the Parties before expiration of the Agreement.
- Events of Termination. In addition to other events of termination as set forth in this Agreement, either Party may terminate this Agreement:
- if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after being provided written notice of the breach and the non-breaching Party’s intent to terminate the Agreement;
- if the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or the like for the benefit of creditors;
- if the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or the like for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing;
- if a Party has used its best efforts to negotiate and prepare a mutually agreeable Joint Business Plan and has good reason to believe that the Parties will be unable to negotiate and prepare a mutually agreeable Joint Business Plan, then such Party may provide notice to the other Party of its intent to terminate this Agreement, which shall be effective if the Parties are unable to reach a mutually agreeable Joint Business Plan within sixty (60) days of such notice; or
- by either Party for convenience upon ninety (90) days written notice.
- Effect of Termination or Expiration. Except as otherwise expressly provided in this Agreement, upon termination or expiration of this Agreement, the Parties agree that:
- With respect to Royalty Payments required in accordance with this Agreement for sales of COMPANY2 Strategic Product, and for any “Covered Products” in accordance with the provisions under “Share of License Fees” set forth above, the COMPANY1 security interest in the Covered Products, and the Escrow Agreement will not terminate and will survive any termination for convenience by either Party;
- COMPANY1’s right of first refusal with respect to acquiring the Covered Products shall survive for a period of one (1) year following the expiration of the term of this Agreement or four (4) years from the Effective Date of this Agreement if this Agreement is terminated by COMPANY2 for convenience prior to the expiration of the three (3) year term, whichever is later;
- except for the rights listed in this Section 11.2, the security interest granted to COMPANY1 in the Covered Products, and except for the Paragraphs which survive termination of this Agreement, all rights and licenses granted under this Agreement and all other rights and obligations hereunder shall immediately terminate;
- each Party shall immediately cease use of the other Party’s Intellectual Property and Confidential Information except to service customers already using the COMPANY2 Products; and
- each Party shall immediately return to the other Party any and all Confidential Information of the other Party, including without limitation, all tangible and electronic copies that include or reference such Confidential Information, except that each Party’s office of general counsel may retain one (1) copy of the other Party’s Confidential Information for the purpose of identifying the Confidential Information received by such Party.
- Possible Licenses Upon Termination. Each Party agrees that upon expiration or termination of this Agreement, that it will consider and evaluate any request for a license to use the COMPANY2 IP or COMPANY1 IP, as applicable, for the sole purpose of allowing the other Party to exercise its rights in the Covered Products, and that any such license shall be a limited, royalty-bearing license subject to a mutually agreeable license agreement containing customary terms and conditions
- Continuation to Service Customers. Notwithstanding the foregoing in this Section, in the event of termination, each Party will continue to be allowed to use any IP necessary to service existing customers, and both Parties will cooperate in servicing such existing customers.
- Indemnification by COMPANY2 . COMPANY2 shall indemnify, defend and hold harmless (including attorneys’ fees) COMPANY1 and its Affiliates, and the directors, officers, employees and agents of COMPANY1 and its Affiliates (“COMPANY1 Indemnitees”) from and against any and all claims, demands, losses, damages, liabilities, lawsuits and other proceedings, judgments and awards, and costs and expenses (including, but not limited to, reasonable attorney’s fees and all court costs), arising directly or indirectly, in whole or in part, from or occurring as a result of: (a) of any breach of any representation, warranty, covenant or other material obligation made in this Agreement by COMPANY2 ; (b) the negligence or willful misconduct of COMPANY2 in connection with the performance of its obligations under this Agreement; or (c) the infringement, misappropriation, or other violation of any Intellectual Property of a Third Party (“IP Claim”) arising from the COMPANY2 Existing IP, or New Solely- Owned IP developed by or on behalf of COMPANY2 under this Agreement, or (d) negligent acts, errors or omissions of COMPANY2 or its directors, officers or employees. COMPANY2 further agrees to indemnify, defend and hold harmless COMPANY1 and the COMPANY1 Indemnitees against any cost, liability, expense, allegation or claim for damages incurred by COMPANY1 arising in any manner from the failure of COMPANY2 , its directors, officers, employees, contractors, subcontractors or agents to comply with any applicable state, federal or local regulation, law or rule in performing its obligations under this Agreement. In no event shall COMPANY2 ’s indemnification obligations apply to the extent such losses are caused by the negligence or willful misconduct of COMPANY1 or a COMPANY1 Indemnitee.
- Indemnification by COMPANY1. COMPANY1 shall indemnify, defend and hold harmless (including attorneys’ fees) COMPANY2 and its Affiliates, and the directors, officers, employees and agents of COMPANY2 and its Affiliates (“COMPANY2 Indemnitees”) from and against any and all claims, demands, losses, damages, liabilities, lawsuits and other proceedings, judgments and awards, and costs and expenses (including, but not limited to, reasonable attorney’s fees and all court costs), arising directly or indirectly, in whole or in part, from or occurring as a result of: (a) of any breach of any representation, warranty, covenant or other material obligation made in this Agreement by COMPANY1; (b) the negligence or willful misconduct of COMPANY1 in connection with the performance of its obligations under this Agreement; or (c) the infringement, misappropriation, or other violation of any Intellectual Property of a Third Party (“IP Claim”) arising from the COMPANY1 Existing IP, or New Solely-Owned IP developed by or on behalf of COMPANY1 under this Agreement; or (d) negligent acts, errors or omissions of COMPANY1 or its directors, officers or employees. COMPANY1 further agrees to indemnify, defend and hold harmless COMPANY2 and the COMPANY2 Indemnitees against any cost, liability, expense, allegation or claim for damages incurred by COMPANY2 arising in any manner from the failure of COMPANY1, its directors, officers, employees, contractors, subcontractors or agents to comply with any applicable state, federal or local regulation, law or rule in performing its obligations under this Agreement or its use of any of the Alliance Equipment & Technologies. In no event shall COMPANY1’s indemnification obligations apply to the extent such losses are caused by the negligence or willful misconduct of COMPANY2 or an COMPANY2 Indemnitee.
- Limitation of Liability
- NO CONSEQUENTIAL DAMAGES. EXCEPT FOR ANY VIOLATION OF THE CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS CONTAINED HEREIN, NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT, TERMINATION OF THIS AGREEMENT OR BREACH BY EITHER PARTY. LOSS OF REVENUE OR PROFITS FROM ALLIANCE CUSTOMERS ARE SPECIFICALLY EXCLUDED FROM THIS LIMITATION.
- LIMITATION OF LIABILITY. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS, INDEMNIFICATIONS, IP LICENSES, REVENUE OR PROFIT SHARE, OR ROYALTY PAYMENTS, THE LIMIT OF EITHER PARTY’S LIABILITY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR OTHERWISE) WILL NOT EXCEED $000,000.
- ACT OF OTHER PARTY. NO PARTY SHALL BE LIABLE FOR ANY LOSSES, INJURIES, OR DAMAGES CAUSED BY OR ATTRIBUTABLE TO THE ACTS AND/OR OMISSIONS OF THE OTHER PARTY, ITS EMPLOYEES, OR ITS AGENTS.
- WARRANTY DISCLAIMER. EXCEPT AS SPECIFIED HEREIN, ALL WARRANTIES ARE SPECIFICALLY EXCLUDED AND DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. NEITHER PARTY MAKES ANY WARRANTY AS TO THIRD PARTY SERVICES OR THIRD PARTY ATERIALS.
- Representations, Warrantees and Covenants
- Corporate Representations. As a material inducement for each Party to enter into this Agreement, each Party hereby represents and warrants to as follows:
Each Party has the power and authority (corporate or otherwise) to enter into this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by each Party and constitutes legal, valid and binding obligations of each Party, enforceable against the other Party in accordance with its terms and conditions.
- Each Party represents and warrants that there are (a) no audits, inspections, actions, suits, claims, investigations or legal, administrative or arbitration proceedings pending or, to the knowledge of such Party, threatened against such Party or any of its Affiliates, nor, to the knowledge of such Party, does any basis exist therefor, whether at law or in equity, whether civil or criminal in nature or whether before or by any federal, state, municipal, or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, which relates to any matter that could significantly impact such Party’s ability to enter into this Agreement, to grant the rights granted hereunder, and/or perform its obligations under this Agreement; (b) no judgments, decrees, injunctions or orders of any court, governmental department, commission, agency, instrumentality or arbitrator, domestic or foreign, against such Party or any Affiliate of such Party in any way relating to any matter that could significantly impact such Party’s ability to enter into this Agreement, to grant the rights granted hereunder, and/or perform its obligations under this Agreement; and (c) no proceedings under any bankruptcy or insolvency laws against such Party which have not been terminated.
- To the best of each Party’s knowledge upon the Effective Date, it has complied, and is currently in compliance in all material respects, with all federal, state, territorial and local laws, ordinances, regulations or orders that may in any way affect such Party’s (a) ability to participate in the Alliance, or (b) its ability to perform its obligations under this Agreement.
- There are no agreements (written or oral), understandings, laws or other restrictions of any kind to which such Party is a party, or subject to, that would prevent or restrict the execution, delivery or performance of this Agreement or such Party’s performance under the Agreement or its participation in the Alliance.
- Inducement. As a material inducement for each Party to participate in the Alliance and/or enter into this Agreement, each Party hereby covenants to the other Party as follows:
- Each Party hereby covenants to comply with all laws and regulations of federal, state, regional, local and other governmental bodies in the [country] and abroad applicable to the Parties’ rights and obligations under this Agreement.
- Each Party hereby covenants to not knowingly infringe, violate or otherwise misappropriate the Intellectual Property, Confidential Information or other proprietary rights of a Third Party in the performance of its obligations under this Agreement. Each Party hereby covenants not to cause or permit any of its Intellectual Property developed or licensed under this Agreement to become subject to any Liens.
- Each Party hereby covenants not to enter into any agreement (written or oral), understanding or voluntarily become subject to a restriction of any kind that would prevent or restrict such Party’s performance under this Agreement.
- The Parties acknowledge that this Agreement contemplates various actions being taken in furtherance of the Alliance by the Parties. No Party shall, without the express prior written consent of the other Party, take any action for or on behalf of or in the name of the other Party, or assume, undertake or enter into any commitment, debt, duty or obligation binding upon the other Party.
- Non-Solicitation. Both Parties agree, during the term of the Alliance and for twelve (12) months after, not to solicit any employee of the other party for employment, hire for engagement as an independent contractor.
- Bankruptcy. In the event that any Party to this Agreement should hereafter voluntarily or involuntarily seek relief under the United States Bankruptcy Code (Title 11 S.C. § 101, et. seq.), the Parties acknowledge and agree that this Agreement constitutes an executory contract under which the licensing Party is a licensor to the licensed Party of a right to use intellectual property within the meaning of 11 U.S.C. § 365. Should a situation arise under which the provisions of such code section would be applicable, the Parties acknowledge and agree that the Party having a license under this Agreement shall have full availability to retain its rights and continue to exercise the rights and licenses granted to the licensed Party hereunder pursuant to the provisions of 11 U.S.C. § 365(n).
- Section Headings. Section headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions of this Agreement.
- Binding. Subject to any provisions hereof restricting assignment, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors, heirs, executors, administrators, legal representatives and permitted assigns. The terms, warranties, licenses and other provisions set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by, the Parties and their respective successors, heirs, executors, administrators, legal representatives and permitted assigns.
- No waiver. Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Parties hereto, or in the case of a waiver, by the Party against whom the waiver is to be effective. Any Party’s failure to insist upon the strict performance of this Agreement or to exercise any right to remedy shall not be considered a waiver of that Party’s right to insist upon strict performance of this Agreement or a waiver of any right or remedy with respect to any existing or subsequent breach or default. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior or subsequent breach of the same, or any prior, concurrent or subsequent breach of any other provisions under this Agreement.
- Invalid. If any provision of this Agreement is held invalid, illegal or otherwise unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- Execute Documents. Each Party agree to take such actions and execute such documents as are reasonably requested by another Party (including providing executed documents in such recordable form as is deemed required or necessary by the requesting Party) to effect the purposes of this Agreement.
- Notices. The addresses of the Parties to this Agreement until changed by either Party by written notice to the other Party are:
Any notice or written statement required hereunder shall be deemed to have been duly given upon the sending thereof by overnight mail, certified mail or federal express mail to the other party at the address above or at such latest address as it may have from time to time designated in writing to the other party.
- Force Majeure. The failure of either Party to perform any obligation under this Agreement solely by reason of causes beyond its reasonable control, including but not limited to acts of God, natural disasters, acts, laws, regulations or rules of any government body or governmental agency, war, revolution, invasion, insurrection, riots, mob violence, sabotage or other civil disorders, strikes or other labor disputes (“Force Majeure”), shall not be deemed a breach of this Agreement; provided, however, that the Parties shall promptly meet to determine an equitable solution to the effects of such force majeure, and provided further the Party so prevented from complying herewith shall continue to take all reasonable actions within its power to comply as fully as possible herewith and to resume with the least possible delay compliance with its obligations.
- Export Control. The Parties acknowledge that information they receive under this Agreement may be subject to the laws and regulation of the Government of the [country] for the export and re-export of technical data (including classified information) and, including, where required, the issuance and renewal of validated export licenses, and each Party agrees to comply with the terms of all applicable regulations, laws and/or licenses. The Parties shall also take necessary precautions to ensure that any disclosure or release of information they receive under this Agreement does not result in a deemed export in violation of the above- mentioned laws and regulations.
- Entire Agreement. This Agreement (which includes all exhibits, attachments, schedules and other documents which have been incorporated by reference) constitutes the entire understanding between the Parties hereto with respect to the subject matter hereof and its terms, including this provision, may not be changed or amended except by an instrument in writing agreed to by the Parties. This Agreement is not intended to confer upon any person other than the Parties any rights or remedies hereunder.
- Relationship of the Parties. No Party has the authority (express, implied or apparent) to represent another Party as to any matters or to incur any obligations or liability on behalf of the other. No Party shall act as, purport to act as, or be deemed to be, the agent, representative, employee or servant of another Party. Except as otherwise provided herein, no partnership, joint venture, association, alliance, syndicate, or other entity, or fiduciary, employee/employer, principal/agent or any relationship is created hereby, expressly or by implication.
- Publicity. Except for any disclosure required by legal, accounting, or regulatory requirements beyond the reasonable control of the parties, all media releases, public announcements, or public disclosure (including, but not limited to, promotional or marketing material) by any Party or by their employees or agents, relating to this Agreement or its subject matter, other than general statements that a contractual relationship exists between the parties, will be coordinated with and approved in writing by the other Parties prior to its its release.
- No Third Party Beneficiaries. Except as expressly stated otherwise, no provisions in this Agreement are intended or shall be construed to confer upon or give any person or entity other than the Parties any rights, remedies, or other benefits under or by reason of this Agreement.
- Survival. Specifically surviving any termination or expiration of this Agreement are Sections ____.
- Authority. Each person signing this Agreement represents and warrants that he/she has been duly authorized and has the requisite authority to execute and deliver this Agreement on behalf of such Party.
- No Reliance. The Parties represent, acknowledge and expressly affirm that, in entering into this Agreement, they are not relying and have not relied in any way or in any degree whatsoever upon any representation or statement made, or the absence of any representation or statement, by any person or Party or any of their agents, shareholders, representatives or attorneys, with regard to the subject matter, basis or effect of this Agreement or otherwise, other than those representations or statements as specifically and expressly stated in this Agreement.
- Counterparts. This Agreement may be executed in one or more counterparts, including by email and facsimile, each of which shall be deemed an original, but all of which together constitute one and the same instrument.
- Jointly Drafted. The Parties acknowledge that each has participated in the drafting and negotiating of this Agreement. For purposes of interpreting this Agreement, each provision will be deemed to have been jointly drafted by the Parties. The Parties intend for this Agreement to be construed and interpreted neutrally, in accordance with the plain meaning of its language, and not presumptively construed against any actual or purported drafter of specific language contained in it.
- Law and Venue. [country] law will govern the interpretation and construction of this Agreement. All disputes unresolved by negotiation will be resolved solely in the State or Federal courts sitting in or for [city]. By entering into this Agreement, the Parties consent to the personal jurisdiction and exclusive venue of these courts. The Parties agree that this Agreement has been negotiated in [city].
- Cooperation. Each Party agrees to take all reasonable steps necessary and to cooperate fully with one another to effectuate the terms of this Agreement.
- Severability. If any part of this Agreement is contrary to, prohibited by or deemed invalid under applicable law or regulations, such provision shall be inapplicable and deemed omitted to the extent so contrary, prohibited or invalid, but the remainder of this Agreement shall not be invalid and shall be given full force and effect so far as possible.
- Assignment. Neither Party may assign, in whole or part, this Agreement, or any rights, licenses, obligations or liabilities hereunder, without the prior written consent of the other Party, which consent may be withheld in the other Party’s sole discretion. Any purported assignment of this Agreement, or any rights, licenses, obligations or liability thereunder shall be null and void and of no force or effect. The rights and obligations of the assignor pursuant to this Agreement shall be assumed by any assignee with any ssignment.
- Trademark and Web Linking Agreement. Both Parties will comply with the terms, responsibilities and obligations of the Trademark and Web Linking Agreement attached hereto as Schedule 24.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.
COMPANY1 LLC COMPANY2 INC.
By: By: Name: Name: Title: Title: Date: Date: