DISTRIBUTOR AGREEMENT

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Agreements
March 5, 2024

DISTRIBUTOR 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 known as the COMPANY A”) and [COMPANY B], a Canadian COMPANY with offices located at [address] (hereinafter known as the (“COMPANY B”). Also, individually referred to as the “Party”, and collectively the “Parties”.

WHEREAS, COMPANY A develops and maintains advanced IT and cybersecurity solutions. These solutions consist of third-party products/services, architected by COMPANY A to meet specific demands, with a 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’s PRODUCT”); and

WHEREAS, COMPANY B desires to create demand for COMPANY A’s PRODUCT by marketing and selling activities to its customers 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
    • Appointment

COMPANY A hereby appoints and grants COMPANY B the exclusive right to market, promote, and sell COMPANY A’s PRODUCT to COMPANY B’s Customers only in accordance with the terms of this Agreement. A list of the COMPANY B’s 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’s Customers.

  • Territory

The territory is described as being worldwide and may be amended by mutual agreement of the parties in writing.

  • Term

This Agreement shall be effective for a period of ……. which shall subsequently be renewed or terminated in accordance with the provisions of clause 10.

  1. Sales and Marketing
    • Sales

COMPANY B shall use its best efforts to promote and market the products and shall use reasonable efforts to achieve the sales goals as agreed in this agreement.

  • Marketing

COMPANY B shall use its best efforts to promote the products and shall comply with any marketing guidelines provided by Supplier.

  1. Distribution Margin

 

  • For each qualified prospect, COMPANY A will provide a SCHEDULE of COMPANY A’s PRODUCT, COMPANY A’s PRODUCT TERMS OF USE, RECOMMENDED RETAIL AND THE DISTRIBUTION MARGIN.

 

  • The DISTRIBUTION MARGIN as defined above will be split equally between 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 the DISTRIBUTION MARGIN from the sales of COMPANY A’s Product made by COMPANY B.

 

  1. Product Pricing.
    • COMPANY A shall provide COMPANY B with a PRODUCT PROPOSAL for the Products, which shall include COMPANY B’s discount. The PRODUCT PROPOSAL shall specify the price of each Product and the applicable discount for COMPANY B.
    • COMPANY B agrees to sell the Products at the prices set forth in the PRODUCT PROPOSAL. COMPANY B may not sell the Products at a lower price than the price set forth in the PRODUCT PROPOSAL without the prior written consent of COMPANY A.
    • In the event that COMPANY A reduces the price of any Product, COMPANY B shall automatically be entitled to the same discount on such Product as set forth in the revised PRODUCT PROPOSAL.
    • COMPANY A reserves the right to modify the PRODUCT PROPOSAL from time to time upon reasonable notice to COMPANY B. Any changes to the PRODUCT PROPOSAL shall apply to all orders placed by COMPANY B after the effective date of the change.
    • This clause is subject to any provisions to the contrary set forth in the agreement between COMPANY A and COMPANY B.
  2. 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 since it includes various third-party software and as such will carry that branding.
  3. Use of COMPANY A Product
    • COMPANY B’s Customers will sign the TERMS OF USE of the agreement for COMPANY A’s Product describing use, terms, and conditions (hereinafter known as the “COMPANY A’s PRODUCT TERMS OF USE”).

 

  • “DISTRIBUTION MARGIN” means the profit made by the distributor, in this case, COMPANY B, from selling COMPANY A’s product to its customers;
  • “DISTRIBUTOR” means COMPANY B, which has been granted rights to market, promote, and sell COMPANY A’s PRODUCT to its customers worldwide;
  • “PRODUCT” means advanced IT and cybersecurity solutions. These solutions consist of third-party products/services, architected by COMPANY A to meet specific demands, with a proprietary code, configuration, robotic process automation and human support to make the products and services work together to meet specific demands;
  • “SUPPLIER” means COMPANY A which produces and maintains advanced IT and cybersecurity solutions. “DISTRIBUTION MARGIN”
  • COMPANY A will be responsible for deploying, monitoring, and helpdesk capabilities to COMPANY B’s clients based on COMPANY A’s Products terms of use.
  1. Non-Solicitation
    • COMPANY A will not approach COMPANY B’s clients or customers as per the list without express permission as described in each COMPANY A’s PRODUCT SCHEDULE. COMPANY B will not approach COMPANY A’s vendors, third-party providers, or staff without express permission as described in each of COMPANY A’s Product schedule.
  2. Confidentiality and Non-Disclosure
    • During this Agreement, either Party may have access to confidential or proprietary information of the other Party, including but not limited to trade secrets, business plans, financial information, and technical data (“Confidential Information”).
    • Each Party agrees that it shall not use, disclose, or otherwise make available any Confidential Information of the other Party for any purpose other than the performance of its obligations under this Agreement, unless such disclosure is required by law.
    • The receiving Party shall take reasonable measures to protect the Confidential Information of the disclosing Party from unauthorized use or disclosure 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.
    • This obligation of confidentiality shall survive the termination or expiration of this Agreement and shall continue for a period of 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 7 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.
  3. Termination
    • This Agreement shall be effective as of the Effective Date and shall continue until terminated by either party upon issuance of a[insert number] days’ written notice, except as provided below.
    • Termination for Breach: Notwithstanding the foregoing, either party may terminate this Agreement immediately upon issuance of a written notice upon the party that is in breach of any material provisions of this Agreement, and such breach is continuous for a period of [insert number] days following the issuance of the written notice of such breach.
    • Effect of Termination: Termination shall not affect any rights or obligations that have accrued prior to the date of termination, including any obligation of confidentiality or any payment obligation.
    • Survival: The following provisions shall survive any termination or expiration of this Agreement: (a) confidentiality obligations, (b) payment obligations, (c) limitations of liability, (d) indemnification obligations, (e) governing law and dispute resolution provisions, and (f) any other provisions that by their nature should survive termination.
    • Termination without liability: Except as expressly provided in this Agreement, neither party shall be liable to the other for any damages, costs, or expenses of any kind arising out of or related to the termination of this Agreement, whether such termination is voluntary or involuntary, or for any other reason.
  4. 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 a 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 the client to COMPANY A under the schedule resulting in such liability in the 2-month period preceding the date the claim accrued.

 

  1. Warranties
    • COMPANY A warrants that:
      • no contractual obligations exist that would prevent COMPANY A from entering into this Agreement;
      • it has the requisite authority to execute, deliver, and perform its obligations under this Agreement; and
      • the service provided by COMPANY A shall be provided by competent personnel in accordance with applicable professional standards.
    • 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 THE CUSTOMERS’ 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 OTHER DEFECT 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.
    • 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 expiry 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.
    • COMPANY B agrees to indemnify, defend, and not hold liable COMPANY A, its officers, directors, employees, and agents (collectively, the “Indemnified Parties”) from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with (a) any breach of this Agreement by COMPANY B, (b) any negligence or willful misconduct of COMPANY B or its employees, agents, or contractors, and (c) any misrepresentation or warranty made by COMPANY B regarding the Products.
    • Notice and Control: The Indemnified Parties shall promptly notify COMPANY B in writing of any claim or potential claim covered by this indemnification provision, and COMPANY B shall have the right, at its own expense, to control the defense and settlement of any such claim, provided that the Indemnified Parties shall have the right to participate in such defense at their own expense.
    • Cooperation: The Indemnified Parties shall cooperate with COMPANY B in the defense of any such claim, and shall provide COMPANY B with all information and assistance reasonably requested by COMPANY B in connection therewith.
    • Limitation of Liability: COMPANY B’s indemnification obligations under this clause shall be subject to the limitations of liability set forth in clause 11 of this Agreement, and shall not apply to any claim arising out of or in connection with COMPANY A’s negligence or willful misconduct.
    • Survival: The provisions of this clause shall survive any termination or expiration of this Agreement.
  3. Information Security.

 

  • COMPANY B agrees to comply with COMPANY A’s then-current data privacy policies and controls regarding transmission to and from COMPANY A of images and records maintained and produced by COMPANY A for COMPANY B in connection with this agreement, or other data transmitted to and from COMPANY A. If COMPANY B requests or requires COMPANY A to send, transmit, or otherwise deliver data to COMPANY B or any third party in a non-compliant format or manner, or COMPANY B sends, transmits or otherwise delivers data to COMPANY B in a non-compliant format or manner, then, notwithstanding any other provision of this Agreement:

(i) COMPANY B understands and accepts all risk of transmitting data in an unencrypted or otherwise noncompliant format; and

(ii) COMPANY B releases, discharges, and shall indemnify and not hold liable COMPANY A and its employees, officers, directors, agents, and affiliates from any and all liability, damage, or other loss under this Agreement or otherwise suffered by or through COMPANY A or suffered by any of the indemnified entities arising out of the transmission, destruction, or loss of such data, including but not limited to any information security or privacy breach related to such data.

 

  1. General
    • Binding Agreement;
      • This Agreement is binding upon the parties, their participating Affiliates, and their respective successors and permitted assigns.
      • COMPANY A may wholly assign this Agreement or any part thereof to another party, whether pursuant to change of control, by operation of law or otherwise, with the other party’s prior written consent.
    • Entire Agreement
      • This Agreement, including its Schedules, which are expressly incorporated herein by reference, constitutes the complete and exclusive statement of the agreement between the parties as to the subject matter hereof and supersedes all previous agreements with respect thereto and the terms of all existing or future purchase orders and acknowledgments.
      • Each party hereby acknowledges that it has not been induced to enter into this Agreement by virtue of, and is not relying on, any representation made by the other party not embodied herein, any term sheets or other correspondence preceding the execution of this Agreement, or any prior course of dealing between the parties, including without limitation any statements concerning product or service usage or the financial condition of the parties. The protections of this Agreement shall apply to actions of the parties performed in preparation for and anticipation of the execution of this Agreement.
      • Modifications of this Agreement must be in writing and duly executed by duly authorized representatives of the parties. If the terms of any Schedule conflict with the terms of this Agreement, this Agreement shall control unless the applicable Schedule expressly states that its terms control. If the terms of any Schedule conflict with the terms of this Agreement to which such Schedule is attached, the terms of this Agreement shall control.
    • Severability

If any provision of this Agreement is held to be unenforceable or invalid, the other provisions shall continue in full force and effect.

  • Dispute resolution
    • Any dispute relating directly or indirectly to this Agreement between the parties will be resolved through consultation and negotiation.
    • Failure to resolve the dispute through consultation and negotiation, the dispute shall referred to a court of competent jurisdiction in the province of Ontario, that being the exclusive venue for any dispute between or any claims held by any of the parties to this Agreement.
  • Governing Law
    • This Agreement will be governed by the substantive laws of the Ontario, Canada, without reference to provisions relating to conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
    • Any dispute shall be resolve in a court of competent jurisdiction in the province of Ontario.
  • Force Majeure
    • Neither party shall be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or Internet service interruptions, or other acts or causes reasonably beyond the control of that party.
    • The party experiencing the force majeure event agrees to give the other party notice promptly following the occurrence of a force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable.
  • Notices
    • Any written notice required or permitted to be given hereunder shall be given by:
  1. registered or certified mail, return receipt requested, postage prepaid;
  2. confirmed email; or
  3. nationally recognized overnight courier service to the other party at the addresses listed on page 1 or to such other address or person as a party may designate in writing. All such notices shall be effective upon receipt.
    • No Waiver

The failure of either party to insist on strict performance of any of the provisions hereunder shall not be construed as the waiver of any subsequent default of a similar nature.

  • Survival

All rights and obligations of the parties under this Agreement that, by their nature, do not terminate with the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.

  • Independent Contractors

COMPANY B and COMPANY A expressly agree they are acting as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. Except as expressly authorized herein or in the Schedules, this Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other.

  • Parties

Except as expressly set forth in any Schedule hereto, no third party shall be deemed to be an intended or unintended third-party beneficiary of this Agreement.

  • Counterparts

This Agreement and any Schedules hereto may be executed in counterparts, each of which shall be deemed an original and which shall together constitute one instrument. Signatures transmitted by facsimile or electronically via PDF or similar file delivery method shall have the same effect as an original signature.

 

IN WITNESS WHEREOF, the parties hereto have executed this DISTRIBUTOR AGREEMENT as of the date first above written.

 

/s/_________________________

COMPANY A

[date]

 

/s/_________________________

COMPANY B

[date]

 

 

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