GRANT OF RIGHTS
General Rights. Subject to the terms and conditions of this Agreement, Company hereby grants to the Affiliate right to advertise, market and sell to corporate users, government agencies and educational facilities (“Clients”) for their own internal language learning, soft skills and communication purposes only, and not for remarketing or redistribution, and not for use in a data center environment for multiple users Clients, unless otherwise agreed to by Company prior in writing
Third Party Rights. Company and Affiliate acknowledge that Company derives certain rights herein from third parties and that Company reserves the right to modify or amend this Agreement if mandated by such third parties.
DUTIES OF AFFILIATE
- Best Efforts. Affiliate agrees to use its best efforts to market and license the Technology to Clients consistent with the terms of this Agreement.
- Copyrights and Trademarks. Affiliate shall protect copyrights, tradenames, trademarks, service marks, trade secrets and other confidential proprietary rights and information of Company and its Affiliates and report promptly any infringements or suspected infringements of which Affiliate becomes aware and to cooperate fully with Company in its efforts to protect its copyrights, tradenames, trademarks, service marks, trade secrets and other confidential proprietary rights and information.
- No Alternations. Affiliate agrees not to remove or alter in any manner any copyright, trademark or other proprietary notices contained in the Technology.
- Permits, Licenses and Compliance with Laws. Affiliate shall be responsible and shall bear all costs for complying with local, state, provincial, federal, national, and international statutes, rules, regulations and ordinances of any kind which related to or affect Affiliate’s duties under this Agreement.
- Product Support. Affiliate agrees, when specified, to provide Clients with the support necessary to meet the reasonable needs.
- Business Practices. Company shall not specify the business practices of Affiliate, nor regulate the manner in which Affiliate shall operate its business, provided that Affiliate (a) conducts business in a manner that reflects favorably at all times on the the good name, goodwill and reputation of Company and its Affiliates; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Company and/or its Affiliates, the Technology or the public, including but not limited to disparagement of Company or the Technology; (c) make no false or misleading representation with respect to Company or the Technology
DUTIES OF COMPANY
Commitment. So long as the Affiliate is not in default hereunder, Company agrees to provide products to Affiliate in accordance with the terms and conditions of this Agreement.
Deliverables. Upon the request of the Affiliate, Company shall at prices or fees then in effect or mutually agreed upon by the parties:
- Make available updates of the products to the Affiliate as they may become available for distribution.
- No Control. Company shall not require that Affiliate be limited as to the type, quantity or quality of any product or service that Affiliate sells or desires to sell.
- No Resale Limitations. Unless otherwise stated in this Agreement, Company shall not require that Affiliate be limited to the persons or accounts to which it may market, distribute or sublicense any product or service that Affiliate sells or desires to sell, including without limitation, the Technology, within the Territory as defined in Schedule A of this Agreement.
- No Procedures. Company shall not require procedures for which Affiliate may deal with Clients however will require reasonable levels of satisfaction from the clients related to the services provided by the Affiliate.
The Territory for Affiliate shall be the United States. Company reserves the right to adjust or modify the Territory upon renewal of this Agreement or from time to time by mutual agreement of the parties.
SHIPMENT AND DELIVERY
Shipment and Delivery. Any materials shall be shipped FOB Company’s place of business and Affiliate shall be responsible for any excise, sales and other taxes which may be levied on the license and shipment of such materials.
Delays. In the event of any cause beyond the control of Company, Company shall not be liable for any delay in shipment or non-delivery of the items or products covered under this Agreement beyond any amounts received with an order.
MODIFICATIONS AND VERSION UPGRADES
Affiliate shall notify Company in writing of any errors found by it in the Technology within thirty (30) days of such discovery. Company will undertake all reasonable efforts to provide technical assistance to Affiliate under this Agreement when Affiliate is unable to resolve certain technical issues and to rectify or provide solutions to problems where the Technology does not function as described in the Technology documentation, but Company does not guarantee that the problems will be solved or that any item will be error-free.
Affiliate recognizes that the items and products sold by the Company are the exclusive property of Company and/or its Affiliates and is proprietary to and the trade secret of Company and/or its Affiliates. AFFILIATE agrees that it shall not, by itself or in association with any other party, reproduce, duplicate, copy, or disclose such confidential information that may be acquired in the course of their transactions. Price Changes and Notification
Company reserves the right to change its process and/or fees, from time to time, in its sole and absolute discretion. In the event of a price and/or fee change for products, Company shall notify Affiliate in writing ninety (90) days prior to the effective date of any such change. All other prices and/or fees may be adjusted without prior notice to Affiliate.
RELATIONSHIP OF THE PARTIES
Affiliate shall be deemed to be an independent contractor in its relationship with Company. Affiliate shall not hold itself out as an employee or agent of Company other than for limited purposes. No debts or obligations shall be incurred by either party in the other party’s name, including execution of the Client Registration Agreements. Affiliate shall have the right to perform certain services for its Clients, such as training, installation and non-contract support and bill its Clients directly for such services. Affiliate specifically understand and agrees that it shall not be treated as an employee with respect to such services as are performed for any applicable tax purposes; and it is further agreed that this Agreement shall not bring Affiliate under the provisions of any local, state, provincial, federal, national, and international regulation wherein coverage thereunder is based upon the relationship of employer and employee.
WARRANTIES BY COMPANY
EXCEPT AS EXCLUSIVELY SET FORTH IN THIS PARAGRAPH, COMPANY DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT RESTRICTED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE HEREBY DISCLAIMED.
COMPANY’S SOLE AND EXCLUSIVE LIABILITY FOR THE WARRANTY PROVIDED IN SUBPARAGRAH (A) HEREOF SHALL BE TO CORRECT THE TECHNOLOGY TO OPERATE IN SUBSTANTIAL ACCORDANCE WITH ITS THEN CURRENT SPECIFICATIONS OR REPLACE, AT ITS OPTION, THE TECHNOLOGY NOT IN COMPLIANCE WITH COMPANY’S AND COMPANY’ PUBLISHED SPECIFICATIONS REGARDING THE TECHNOLOGY; PROVIDED, ANY CLAIM FOR BREACH OF WARRANTY UNDER SUBPARAGRAPH (A) HEREOF MUST BE MADE IN WRITING WITHIN (90) DAYS FROM DATE OF SHIPMENT.
IN NO EVENT SHALL COMPANY BE LIABLE TO “AFFILIATE”, ITS CLIENTS, OR ANY THIRD PARTY FOR ANY TORT OR CONTRACT DAMAGES OR INDIRECT, SPECIAL, GENERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR ANTICIPATED PROFITS AND LOSS OF GOODWILL, ARISING IN CONNECTION WITH THE USE (OR INABILITY TO USE) OR DISTRIBUTION OF THE TECHNOLOGY FOR ANY PURPOSE WHATSOEVER.
SOME STATES AND/OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WIHICH MAY VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY.
SOME STATES AND/OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
WARRANTIES BY AFFILIATE
Affiliate agrees that any and all warranties made to Client shall be made only by Affiliate. Affiliate acknowledges and agrees that Affiliate will make no representations to its Clients with respect to any warranty made by Company. Affiliate hereby agrees to indemnify and hold Company harmless for any loss, damage, claim or action resulting from affiliate’s failure to comply with any of affiliate’s obligations under this Agreement. Affiliate will be solely responsible for any claims, warranties or representations made by Affiliate or Affiliate’s representatives or agents, which differ from the warranties, provided by Company in the applicable end user license agreement(s).
This Agreement may be terminated by either party at the expiration of its term or any renewal term upon thirty (30) days written notice to the other party.
Either party may cancel this Agreement upon the occurrence of any of the following:
- Material breach of any covenant, term, condition or other provisions of this Agreement, which breach is not remedied within ten (10) days after notice of such breach is received by the breaching party;
- Bankruptcy, reorganization, arrangement or insolvency proceedings being instituted by or against a party;
- An assignment by a party for the benefit of its creditors;
- Consenting to the appointment of a trustee or receiver by a party, or a trustee or receiver being appointed for a party or for a substantial part of its assets.
Upon termination or cancellation of this Agreement for any reason:
- All obligations of the non-breaching party, should cancellation be due to breach, shall immediately cease;
- Affiliate shall return any and all full and/or partial copies of material related to the company
- Affiliate shall immediately cease advertising, marketing, promoting and distributing the products and shall cease using the trade names, trademarks, service marks and any other proprietary right of Company;
- All outstanding invoices shall immediately become due and payable; and
Affiliate will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any end-user data that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. Affiliate will act only on Company’s instructions in relation to the collection, use, disclosure and processing of any such end-user data, but in all instances in accordance with all applicable laws, rules and regulations.
Affiliate may not assign, sell, lease or otherwise transfer in whole or in party any of the rights granted pursuant to this Agreement without prior written approval of Company.
No amendment, change or variance from this Agreement shall be binding upon either party unless executed in writing and signed by an authorized representative of the party to be charged.
SEVERABILITY AND CONSTRUCTION
Should any part of this Agreement, for any reason, be declared invalid by a court of competent jurisdiction, such determination shall be not affect the validity of any remaining portion, and such remaining portion shall remain in force and effect as if this Agreement had been executed with the invalid portion eliminated.
Any notice required under this Agreement shall be deemed to have been given when hand-delivered or on the date of mailing when mailed by standard Mail, postage prepaid, and addressed to the party to receive such notice at the address designated below, or such other address as the party may from time to time direct in writing.
This Agreement is accepted by Company and shall be governed by and construed in accordance with the United States laws thereof, which laws shall prevail in the event of any conflict.
Affiliate acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of Confidential Information or Company and/or its Affiliate’s intellectual property will result in irreparable harm to Company and/or its Affiliate for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, Company and/or its Affiliate will be entitled to seek injunctive or other equitable relief, as appropriate, and Affiliate hereby waives the right to require Company and/or its Affiliate to post a bond. If Company and/or its Affiliate seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement by Affiliate involving an unauthorized use of Confidential Information or Company and/or its Affiliate intellectual property, Affiliate agrees that it will not allege in any such proceeding that Company and/or its Affiliate remedy at law is adequate. If Company and/or its Affiliate seek any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will
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