These Terms and Conditions apply to each agreement (each, a “Partner Agreement”) entered into between Qvinci Software, LLC (“Qvinci”) and the individual, corporation or other entity identified as a “Reseller Partner”, “Referral Partner” “Embedded Partner” or other Partner in the Partner Agreement. The “Effective Date” means that date so identified in the Partner Agreement.
Unauthorized Representations; No Authority. Partner shall refrain from making any representations, warranties or guarantees to Prospective End Customers or to the trade with respect to the specifications, features or capabilities of Qvinci’s product offerings that are deceptive, misleading, or otherwise inconsistent with the literature distributed by Qvinci or its suppliers with respect thereto. Partner is not the agent of Qvinci and has no authority to execute contracts on Qvinci’s behalf. Partner agrees to take all commercially reasonable steps to preserve and protect the goodwill and reputation of Qvinci. Partners shall not engage in any conduct which may damage Qvinci’s reputation. This Agreement is non-exclusive. The Parties understand and agree that Qvinci has the right to solicit Prospective End Customers directly or indirectly and to appoint any number of additional representatives or agents with no obligation to Partner.
Representations and Warranties; Disclaimer. Each Party represents and warrants that in its performance of any obligations or services contemplated under this Agreement, such Party shall comply with all applicable laws, rules, and regulations. OTHER THAN THE FOREGOING, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY OR TO ANY PERSON OR ENTITY WITH RESPECT TO THE OTHER PARTY’S PRODUCT OFFERING OR OTHERWISE, AND EACH PARTY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, TITLE, NON-INFRINGEMENT, AND QUALITY OF SERVICE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, QVINCI EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, FUNCTIONALITY, OR ANY OTHER ASPECT OF THE QVINCI PRODUCT OFFERING THAT QVINCI DEVELOPS OR PROVIDES HEREUNDER.
Limitation of Liability. EXCEPT FOR PARTNER’S BREACH OF SECTION 2 (“UNAUTHORIZED REPRESENTATIONS; NO AUTHORITY”) OR SECTION 6 (“COMPLIANCE”), (i) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF AND (ii) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO THE LESSER OF $10,000 OR THE TOTAL AMOUNT PAID OR PAYABLE BY THE OTHER PARTY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.
Term and Termination. The term of this Agreement shall begin on the Effective Date and shall continue until terminated in accordance with the terms of this Section 5. Either Party may terminate this Agreement for its convenience at any time by providing the other Party with thirty (30) days advance written notice of termination. Sections 2 through 9 shall survive the termination of this Agreement. Any Agreements received and accepted by Qvinci prior to the effective date of termination shall be honored and payment made pursuant to the terms of this Agreement provided that a written agreement in a form acceptable to Qvinci is executed by the applicable End Customer no later than thirty (30) days after effective termination of this Agreement.
Effect or Termination. Upon expiration or termination of this Agreement, regardless of the reason for expiration or termination: (i) all privileges and benefits of this Agreement will be immediately revoked; (ii) Partner shall immediately cease use of all Qvinci trademarks, tradenames, copyrights and all materials, including any previously approved materials; (iii) Partner shall promptly return to Qvinci all Qvinci Confidential Information or certify in writing that it has destroyed such information; (iv) all rights and licenses granted under this Agreement will immediately and automatically terminate; and (v) Partner will immediately discontinue representing that it is a Partner.
Effect or Termination for Resellers. In the case of Qvinci Products and Services for Resale, upon expiration or termination by Qvinci or Partner, Qvinci may in its discretion immediately take over management, billing, and fulfillment of any end user accounts associated with Reseller or may assign such accounts to another reseller. Any outstanding payments owed by the Reseller to Qvinci shall be remitted within fifteen (15) days following termination.
Optional 12-month Transition Period for Resellers. Notwithstanding anything to the contrary in the Agreement, and with respect to Qvinci Products and Services for Resale which Reseller has sold during the term of the Agreement, in the case of termination or expiration, Qvinci may in its discretion opt to require a twelve (12) month transition period (the “Transition Period”) during which the following shall be true: (a) Reseller will not make any new referrals or engage in any new sales to end users, (b) the parties shall continue to be bound by the provisions of this Agreement with respect to any then-existing subscriptions, and (c) the parties will work to transition any existing end users to Qvinci billing and customer management, or to the billing and management of another party that Qvinci may choose in its discretion. During such Transition Period, Qvinci shall not terminate any then-existing subscriptions except for valid business reasons (e.g., violation of terms of service, non-payment of subscription services etc.).
Audits, Inspections, and Reconciliation for Resellers. Resellers agree to maintain adequate books and records relating to its performance under the Agreement. Such books and records shall be made available for inspection, and subject to audit at Qvinci’s expense, by Qvinci or its representative, for the purpose of determining whether Reseller has complied with the terms of this Agreement and applicable law. Qvinci shall have the right to conduct such an audit upon ten (10) days’ advance notice, and Reseller agrees to permit such audits or inspections on a regular basis (however, in no case more than once every one-hundred eighty (180) days for an initial audit). If an audit reveals a revenue discrepancy resulting in underpayment to Qvinci, the Reseller shall immediately remit to Qvinci the amount of such underpayment plus interest. If an audit reveals an underpayment of more than fifteen percent (15%) of the total amounts due for the audit period, then in addition to immediately paying Qvinci such past due amounts plus interest, Reseller shall reimburse Qvinci for the costs incurred in conducting such an audit. This provision shall survive the termination of this Agreement for a period of two (2) years.
Reseller Price Changes. Qvinci may change the standard prices or the discount at any time by providing at least thirty (30) days written notice to the Reseller. The changed prices or discount will apply to orders placed by the Reseller after the effective date of the price change. The prices for any orders placed by the Reseller before the effective date of a price change will be the prices in effect at the time the order was placed.
Reseller Taxes. The prices do not include any taxes. The Reseller will be responsible for paying all taxes related to its purchase of the products or services. The Reseller will indemnify Qvinci for any taxes that Qvinci is required to pay on behalf of the Reseller.
Reseller Pricing and Payment: All prices are exclusive of any taxes, fees, duties, or other amounts, however designated, and including, without limitation, value-added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Product(s) purchased pursuant to this Agreement are the responsibility of the Reseller. Unless otherwise specified in writing by Qvinci, all payments are due in full, without any deduction or withholding, upon receipt of Qvinci’s invoice via ACH or credit card.
Reseller Late Payments: If the Reseller fails to make any payment when due then, without limiting Qvinci’s other rights and remedies, Qvinci may apply interest on the overdue amount at an interest rate of 1% per month or, if lower, the maximum rate permitted under applicable law.
Reseller Payment Disputes: If the Reseller disputes any invoice or other statement of monies due, the Reseller shall immediately notify Qvinci in writing. The Parties shall negotiate in good faith to attempt to resolve the dispute promptly. All undisputed amounts owed from Reseller to Qvinci shall be immediately paid as set forth above.
Compliance. Partner shall comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the anti-corruption laws of other countries, to the extent applicable. Partner hereby represents and warrants that, in its performance under this Agreement, Partner has not, and will not at any time, directly or indirectly (through a subcontractor or other third party), pay, offer, give or promise to pay or give, or authorize the payment of, any monies or any other thing of value to influence the improper performance of any individual government officials and employees of state-owned enterprises. Partner shall promptly inform Qvinci in writing upon becoming aware of any violations of laws in connection with this Agreement. Partner hereby acknowledges and agrees that any violation by Partner of this Section will constitute a material breach of this Agreement. In the event of such a violation, Qvinci will have the right to terminate this Agreement, without any liability whatsoever to Partner, immediately upon providing written notice of termination to Partner. Termination of this Agreement by Qvinci under this section shall be in addition to, and not in lieu of, Qvinci’s other legal rights and remedies.
Ownership of Qvinci Product and Services and Documentation. The Qvinci Products and Services and Documentation are protected by law, including, but not limited to, United States copyright, patent and trademark law and international treaties. The Qvinci Products and Services and all Documentation and the patents, trademarks copyrights and all other intellectual property rights in any way related to such Qvinci Products and Services and all Documentation are exclusively owned by Qvinci. Except for the limited rights granted in this Agreement, all rights are reserved by Qvinci, and no rights, express or implied, are assigned or transferred to the Partner. The Partner also acknowledges and agrees that Qvinci owns any amendments, improvements, continuations, suggestions, ideas, enhancements, enhancement suggestions or requests, feedback, creative or derivative works, or recommendations that Partner provides relating to the Qvinci Products and Services and all Documentation or the intellectual property rights related thereto, and that Partner will not be entitled to any compensation or other benefit on account thereof. No license, right, or interest in Qvinci’s logos, trade dress, service marks, trademarks, patents, or copyrights are granted to the Partner under this Agreement or by Partner subscription to the Qvinci Products and Services and all Documentation and the Partner agrees not to remove or obscure any product identification or notices of proprietary restrictions on same.
Confidential Information. The Partner agrees that all non-public information that we provide regarding the Services, including without limitation, our pricing, marketing methodology, custom report templates, custom report formulas and business processes, is our proprietary confidential information. The Partner agrees to use this confidential information only for purposes of exercising the Partner’s rights as our customer and/or in strict compliance with this Agreement, and the Partner further agrees not to use or disclose this confidential information for a period of five years after termination of this Agreement. We agree that all non- public information that Partner provides, including the Partner and/or customer data, is the proprietary confidential information, subject to our use and disclosure rights as set forth in this Agreement. We agree to use this confidential information only for purposes of exercising our rights as provider of the services (including, without limitation, the right to use customer data or content in anonymized form for the purposes as set forth in this Agreement), and we further agree not to use or disclose this confidential information (except as permitted under this Agreement) for a period of five years after termination of this Agreement. Each Party may disclose the other Party’s confidential information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other Party’s confidential information hereunder. The restrictions set forth in this section will not apply to any confidential information that the receiving Party can demonstrate (a) was known to it prior to its disclosure by the disclosing Party; (b) is or becomes publicly known through no wrongful act of the receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving Party; (e)has been approved for release by the disclosing Party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the Party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the disclosing Party to seek a protective order or otherwise prevent such disclosure. The Parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the Parties agree that in addition to any other remedies available at law or hereunder, the disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving Party. Notwithstanding this section, Qvinci may disclose the existence of this Agreement and the arrangement between the Parties contemplated herein and may identify the Partner as our partner in our marketing materials.
General Provisions. (a) Independent Relationship. The Parties are independent contractors. Partner shall not have and shall not represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of Qvinci. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. (b) Governing Law. This Agreement is entered into in Austin, Texas and will be governed by and construed in accordance with the laws of the State of Texas, excluding its conflicts of law rules and the U.N. Convention on the International Sale of Goods. The Parties agree that any and all disputes arising out of or in any way relating to this Agreement shall be resolved according to Texas law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) in Austin, Texas and pursuant to the then existing arbitration rules at JAMS. The Parties hereby consent to jurisdiction and venue in Texas and before JAMS for the resolution of all such disputes. (c) Injunctive Relief. Notwithstanding the foregoing, in the event of a breach or alleged breach of Confidential Information pursuant to this Agreement, Qvinci shall be entitled to seek injunctive relief in a state or federal court located in Travis County, Texas. (d) Costs and Attorney’s Fees. The Parties further agree that the prevailing Party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration proceeding, will be entitled to recover its costs and attorneys’ fees, whether by in-house legal staff or outside counsel. (e) No Wavier for Failure to Act. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies for a Party at law or in equity. (f) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to fully accomplish the objectives of the original provision permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect. (g) Notices. Unless otherwise specifically provided, all notices required or permitted by this Agreement may be delivered personally, faxed, email, or sent by a nationally recognized overnight courier to the addresses first shown above. Such notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after confirmed email. Notices to shall be addressed to signatory of this Agreement. (h) Entire Agreement. This Agreement, including the Exhibits, represents the entire agreement of the Parties, and supersedes any prior or contemporaneous understandings, whether written or oral. (i) Amendments. This Agreement may not be amended, waived, or modified except as expressly provided herein or in writing by the Parties. (j) Assignments. Neither Party shall assign any of its rights, or delegate any of its obligations, under this Agreement, without the prior written consent of the other Party, such consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety without the consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. (k) End Customer Agreements. Any agreement that Partners execute with an end customer shall not be in conflict with the terms and conditions of this Agreement or the terms of the Referral and Reseller agreements. If there is a conflict, this Agreement shall apply. (l) Successors and Assigns. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns. (m) Execution of the Agreement. This Agreement may be executed by facsimile or by electronic signature program and in counterparts, which taken together shall form one legal instrument.
