DISTRIBUTION AGREEMENT
This Distribution Agreement (the “Agreement”) is made and entered into as of the date
of last signature by and between [Company A], a Canadian company with offices located
at [address] (hereinafter referred to as “Company A”) and [Company B], a Canadian
company with offices located at [address] (hereinafter referred to as “Company B”).
Company A and Company B may also be referred to individually as a “Party” and
collectively as the “Parties”.
WHEREAS, Company A develops and maintains advanced IT and cybersecurity
solutions consisting of third-party products/services architected by Company A to meet
specific demands, with proprietary code, configuration, robotic process automation and
human support to make the products and services work together to meet that demand
(hereinafter referred to as the “Company A Product”); and
WHEREAS, Company B desires to create demand for the Company A Product by
marketing and selling activities under the brand of Company B (hereinafter referred to
as the “Company B Product Sales”).
NOW, THEREFORE, the Parties agree as follows:
1. EXCLUSIVE DISTRIBUTION RIGHTS
Company A grants Company B the exclusive right to market, promote, and sell
the Company A Product to Company B Customers in accordance with the terms
of this Agreement. A list of the Company B Customers will be shared by the
Parties and updated from time to time. Company A will have 2 working days to
notify Company B of any conflicts on Company B Customers.
2. DISTRIBUTION MARGIN
For each qualified prospect, Company A will provide a schedule with Company A
Product capability, Company A Product Terms of Use, recommended retail and
the distribution margin. The Distribution Margin as defined above will be split
equally by Company A and Company B. Payment will be made from the client to
Company B. Company B will then pay Company A less their 50% of Distribution
Margin for Company B Product Sales.
3. BRANDING
Company B Product Sales will be concluded under the brand of Company B.
Company A Products will not carry the branding of Company B.
4. USE OF COMPANY A PRODUCT
Company B Customers will sign a terms of use agreement for the Company A
Product describing use, terms, and conditions (hereinafter known as the
“Company A Product Terms of Use”). Company A will be responsible for
deploying, monitoring, and helpdesk capabilities to Company B clients based on
the Company A Product Terms of Use.
5. NON-SOLICIT
Company A will not approach Company B leads, prospects, or clients without
express permission as described in each Company A Product schedule. Company
B will not approach Company A vendors, third-party providers, or staff without
express permission as described in each Company A Product schedule.
6. CONFIDENTIALITY AND NON-DISCLOSURE
During the term of this Agreement, the Parties may have access to each other’s
confidential or proprietary information, including but not limited to trade
secrets, business plans, financial information, and technical data ("Confidential
Information"). The Parties agree that all Confidential Information shall be kept
strictly confidential and shall not be used, disclosed, or otherwise made available
to any third party, except as expressly permitted by this Agreement or required
by law.
Each Party shall take all necessary and reasonable measures to protect the
confidentiality of the other Party’s Confidential Information and shall use the
same degree of care to protect such Confidential Information as it uses to protect
its own confidential information of a similar nature, but in no event less than
reasonable care.
The obligations of confidentiality set forth in this clause shall survive the
termination or expiration of this Agreement and shall continue for a period of
three (3) years from the date of disclosure of the Confidential Information.
Upon the written request of the disclosing Party, the receiving Party shall
promptly return or destroy all Confidential Information in its possession or
control.
The provisions of this clause shall not apply to Confidential Information that: (i)
is or becomes publicly available without breach of this Agreement by the
receiving Party; (ii) was in the receiving Party’s possession prior to disclosure by
the disclosing Party; (iii) is obtained by the receiving Party from a third party
without breach of any obligation of confidentiality owed to the disclosing Party;
or (iv) is independently developed by the receiving Party without reference to
the disclosing Party’s Confidential Information.
This clause constitutes the entire agreement between the Parties with respect to
the confidentiality of the Confidential Information and supersedes all prior or
contemporaneous agreements or understandings, whether written or oral,
relating to the Confidential Information. Any modification or waiver of this
clause must be in writing and signed by both Parties.
7. TERMINATION
Either party may terminate this Agreement with written notice to the other
party. In the event of termination, COMPANY A will remove all of its products
and services from COMPANY B CUSTOMERS. COMPANY A will not approach any
of COMPANY B customers for one year. COMPANY B will not approach any of
COMPANY A suppliers for one year.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL COMPANY A BE LIABLE FOR LOSS OF GOODWILL, OR FOR
SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY,
OR TORT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT,
REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT, CONTRACT, OR
OTHERWISE. EXCEPT FOR CLAIMS RELATED TO PROPRIETARY RIGHTS OR
PAYMENT OBLIGATIONS, NEITHER PARTY MAY ASSERT ANY CLAIM AGAINST
THE OTHER RELATED TO THIS AGREEMENT MORE THAN 2 YEARS AFTER
SUCH CLAIM ACCRUED. COMPANY A’S AGGREGATE LIABILITY TO CLIENT AND
ANY THIRD PARTY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO
THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO
COMPANY A UNDER THE SCHEDULE RESULTING IN SUCH LIABILITY IN THE 2
MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED.
9. WARRANTIES
a. By COMPANY A. COMPANY A warrants that: (i) no contractual obligations
exist that would prevent COMPANY A from entering into this Agreement;
(ii) it has the requisite authority to execute, deliver, and perform its
obligations under this Agreement; and (iii) the Service provided by
COMPANY A shall be provided by competent personnel in accordance
with applicable professional standards.
b. THE WARRANTIES STATED ABOVE AND, IN THE SCHEDULES, IF ANY,
ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE
BY COMPANY A. COMPANY A DOES NOT REPRESENT THAT THE
DELIVERABLES MEET COMPANY B’s REQUIREMENTS OR THAT THE
OPERATION OF THE DELIVERABLES WILL BE UNINTERRUPTED OR
ERROR-FREE. COMPANY B ACKNOWLEDGES THAT IT HAS
INDEPENDENTLY EVALUATED THE DELIVERABLES AND THEIR
APPLICATION TO CLIENT’S NEEDS. COMPANY A DISCLAIMS, AND
COMPANY B HEREBY EXPRESSLY WAIVES, ALL OTHER
REPRESENTATIONS, CONDITIONS, OR WARRANTIES, EXPRESS AND
IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ANY ARISING
FROM A COURSE OF DEALING OR USAGE OR TRADE. IN ADDITION, TO
THE EXTENT THAT COMPANY A PROVIDES SERVICES IN CONCERT WITH
THIRD PARTY SOFTWARE OR SERVICE SOLUTIONS PROVIDERS, SUCH
THIRD-PARTY SOFTWARE OR SERVICE SOLUTIONS ARE PROVIDED
WITHOUT WARRANTIES OF ANY KIND, EVEN IF COMPANY A
RECOMMENDED SUCH SOFTWARE OR SERVICE SOLUTIONS. SUCH
THIRD-PARTY MANUFACTURERS, SUPPLIERS, OR VENDORS MAY
PROVIDE THEIR OWN WARRANTIES, AND COMPANY A AGREES TO
INFORM COMPANY B, UPON REQUEST (1) THE MANUFACTURER OR
SUPPLIER WHO IS RESPONSIBLE FOR WARRANTY (IF ANY) RELATING
THERETO, AND (2) THE PROCEDURE TO OBTAIN ANY WARRANTY
SERVICE THEREON, IF KNOWN BY COMPANY A.
c. COMPANY B shall notify COMPANY A in writing within thirty (30) days
after completion of the Services when any of the Services fail to conform
to the standard of care set forth in this Agreement. The passage of the
thirty (30) day period after completion of the services without the
notification described herein shall constitute COMPANY B’s final
acceptance of the Services. Additional work at this time will be quoted
and charge for separately as a change request
10. INDEPENDENT CONTRACTORS
COMPANY A and COMPANY B are independent contractors under this
Agreement. Neither party will have the right to bind or obligate the other party
in any manner, and nothing herein contained will give rise or is intended to give
rise to any partnership, joint venture, agency, or employment relationship
between the Parties.
11. NO THIRD-PARTY BENEFICIARIES
This Agreement is intended solely for the benefit of the Parties and is not
intended to confer upon any other person or entity, any rights or remedies.
12. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws
of the Province of Ontario, Canada, without giving effect to its conflict of laws
principles. Any disputes, claims, or controversies arising out of or relating to this
Agreement or the breach, termination, enforcement, interpretation or validity
thereof, shall be submitted to and finally resolved by the courts of the Province of
Ontario, Canada, which shall have exclusive jurisdiction over any such disputes,
claims, or controversies. The Parties hereby submit to the exclusive jurisdiction
of the courts of the Province of Ontario, Canada, and waive any objection to such
jurisdiction or venue based on forum non conveniens or any other basis. The
Parties further agree that any such dispute, claim, or controversy shall be
resolved without recourse to any form of class action, and that any such dispute,
claim, or controversy shall be adjudicated solely on an individual basis.
13. ENTIRE AGREEMENT
This Agreement, together with existing signed agreements including
MASTER_SERVICES_AGREEMENT.x.V1,Scheudle.AVAIL7395.V1,
Change_order_1a), constitutes the entire agreement between the Parties to date
with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements and understandings, whether written or oral.
In the event of any conflict or inconsistency between this Agreement and any
exhibit, schedule, addendum, or other attachment hereto, the terms and
conditions of this Agreement shall prevail. The Parties acknowledge that this
Agreement does not replace or supersede any other agreements between the
Parties, including but not limited to any confidentiality, non-disclosure, or non-
compete agreements, which shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Joint Venture Agreement as of
the date first written above.
COMPANY A COMPANY B
By: __________________________ By: __________________________
Name: ________________________ Name: _____________________________
Title: _________________________ Title: _______________________________
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