BUSINESS PARTNER TEAMING AGREEMENT
IMPORTANT: DO NOT EXECUTE THE TEAMING/LEAD REFERRAL FORM UNTIL YOU HAVE READ AND AGREED TO THIS BUSINESS PARTNER TEAMING AGREEMENT. This is an agreement between you (“Partner”) and the Precisely Software entity identified on the Teaming/Lead Referral Form (“PSI”). By executing a Teaming/Lead Referral Form, you are agreeing to the terms of this Business Partner Teaming Agreement (the “Agreement”) which govern the parties’ performance under the Teaming/Lead Referral Form and is incorporated in its entirety into the Teaming/Lead Referral Form by reference.
1. Definition of Terms. For purposes of this Agreement, the following terms will have the corresponding definitions:
“End User” means a licensee of the Licensed Products identified as a Prospective End User on the Teaming/Lead Referral Form;
“License” means the license agreement for the Licensed Products executed by PSI and an End User;
“Licensed Products” means the software and data products licensed by PSI identified in the Teaming/Lead Referral Form;
“Prospective End User” means a prospective licensee of the Licensed Products identified on the Teaming/Lead Referral Form;
“Teaming/Lead Referral Form” means the form executed by the parties which will identify Prospective End Users to PSI; and
“Territory” will mean the country set out in the Teaming/Lead Referral Form.
2. Opportunity Identification; Rejection of Teaming/Lead Referral Form.
a) Partner will identify to PSI an opportunity by submitting a Teaming/Lead Referral Form. The Teaming/Lead Referral Form will identify the Prospective End User, the opportunity and the proposed Licensed Products. PSI and Partner will cooperate in the submission of proposals to Prospective End Users located in the Territory. Upon issuance of an award from a Prospective End User it is expected that PSI will license and deliver the Licensed Products directly to the End User, subject to execution of a License.
b) A Teaming/Lead Referral Form must be signed by both the Partner and PSI to be deemed accepted. PSI may, within ten (10) days following receipt of a Teaming/Lead Referral Form from Partner, reject the Teaming/Lead Referral Form if: (i) the Prospective End User is a current customer of PSI unless Partner has identified a new opportunity with such End User, which opportunity was unknown to PSI at the time of submission of the Teaming/Lead Referral Form; (ii) the Prospective End User had been identified to PSI as a Prospective End User within the previous one hundred and eighty (180) days; or (iii) the business terms of the Teaming/Lead Referral Form require further modification. If PSI rejects a Teaming/Lead Referral Form, PSI will provide Partner the reason for such rejection.
c) Partner will not make any representation or warranty regarding the Licensed Products. PSI will be solely responsible for negotiating the License. PSI may, in its sole discretion, decline to enter into an agreement with the Prospective End User.
3. Fees; Payment Terms.
a) If PSI is responsible for billing and collecting the fees due under a License directly from an End User, PSI will pay to Partner the fees due to Partner in accordance with the Teaming/Lead Referral Form within sixty (60) days following receipt of payment from End User. If the License identifies that Partner is responsible for billing and collecting the fees due under a License directly from an End User (“Payment Agent”), Partner will pay to PSI the fees due to PSI within thirty (30) days following receipt of PSI’s invoice.
b) If Partner is a Payment Agent, Partner will, prior to the renewal date of maintenance services (including providing updates\upgrades to the Licensed Products and technical support) for an End User and upon receipt of an invoice from PSI, invoice the End User the renewal fees for the subsequent annual term of maintenance services for the Licensed Products. Within thirty (30) days of receipt of such fees from an End User, Partner will pay to PSI the fees for maintenance services less the applicable discount set out in the Teaming/Lead Referral Form. Partner will not provide any maintenance services to an End User unless Partner has paid to PSI the applicable maintenance fees for the Licensed Products on behalf of such End User.
c) As Payment Agent, Partner is responsible for the collection of the all license and maintenance fees, including all renewals thereof, however, if Partner fails to collect any such fees from End User which are due in connection with the License, PSI reserves the right to collect directly from an End User in accordance with PSI’s standard collection practices.
4. Partner Obligations.
a) Partner may not include Licensed Products on any governmental entity purchasing schedule, such as, but not limited to, a General Services Administration schedule, SEWP or state government equivalent unless PSI authorizes Partner to do so in a written amendment to this Agreement.
b) Partner will not discriminate against any employee or applicant for employment on account of race, color, religion, sex, sexual orientation, national origin, age, disability or veteran status. Partner will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to race, color, religion, sex, sexual orientation, national origin, age, disability, or veteran status. This will include, but is not limited to: employment; promotion; demotion; transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship and use of subcontractors. Partner will, in all solicitations or advertisement for employment, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, national origin, age, disability or veteran status.
5. Confidential Information.
a) “Confidential Information” means all confidential and proprietary information of either party (“Disclosing Party”), including but not limited to, each party’s and its affiliates: (i) customer and prospect lists, names or addresses, existing agreements with Disclosing Party and business partners; (ii) pricing proposals, financial and other business information, data processes and plans; (iii) research and development information, analytical methods and procedures, hardware design, technology (including the Licensed Products), financial information, personnel data; (iv) information concerning the customers and potential customers of either party; (v) business practices, know-how, marketing or business plans; (vi) Teaming/Lead Referral Forms, purchase orders, documentation, support guidelines, and training materials; and (vii) any other information identified in writing as confidential or information that the receiving party knew or reasonably should have known was confidential, in each case that is disclosed to the other party (“Receiving Party”) or to which the Receiving Party gains access in connection with this Agreement.
b) The Receiving Party agrees: (i) to hold the Disclosing Party’s Confidential Information in strict confidence, and apply at least the standard of care used by the Receiving Party in protecting its own Confidential Information, but not less than a reasonable standard of care, and not to disclose such Confidential Information to any third party, except to End Users as necessary to fulfill its obligations under this Agreement; and (ii) without the written permission of the Disclosing Party, not to use any Confidential Information of the Disclosing Party except as reasonably required to exercise its rights or perform its obligations under this Agreement. Each party agrees to cause its employees, subcontractors, agents and, if permitted, affiliates, who require access to such information to abide by such obligations.
c) The foregoing obligations do not apply to information that: (i) is already public or becomes available to the public through no breach of this Agreement; or (ii) was in the Receiving Party’s lawful possession before receipt from the Disclosing Party; or (iii) is lawfully received independently from a third party who is not bound by a confidentiality obligation; or, (iv) is independently developed by or on behalf of the Receiving Party without use of any Confidential Information.
d) If a Receiving Party is compelled to disclose the Confidential Information by a governmental agency or a court of law having proper jurisdiction, the Receiving Party will give the Disclosing Party reasonable notice to enable such party to try to protect the confidentiality of the Confidential Information. Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return or destroy all Confidential Information in its possession, and, certify its destruction in writing, provided, however, that the Receiving Party may retain one (1) copy of the returned or destroyed items for archival purposes in accordance with its records retention policies and subject to this Section 5.
e) Disclosing Party may be irreparably damaged if the obligations under this Section 5 are not enforced and as such may not have an adequate remedy in the event of a breach by Receiving Party of its obligations hereunder. The parties agree, therefore, that Disclosing Party is entitled to seek, in addition to other available remedies, an injunction restraining any actual, threatened or further breaches of the Receiving Party’s obligations under this Section 5 or any other appropriate equitable order or decree.
6. Term; Termination; Survival.
a) This Agreement will commence on the effective date set forth in the Teaming/Lead Referral Form and will remain in effect until: (i) PSI enters into a License with the End User and all fees due under the Teaming/Lead Referral Form are paid to the respective parties: (ii) PSI rejects the Teaming/Lead Referral Form: or (iii) if no License is entered into, twelve (12) months following the effective date of the Teaming/Lead Referral Form, whichever occurs first (the “Term”), subject to Section 6(b).
b) Either party may, at its sole option, terminate this Agreement: (i) immediately upon written notice to the other party if the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice, or an additional period of time as agreed to by the parties; or (ii) immediately if the other party: (A) ceases to conduct business in its ordinary course; (B) is adjudged bankrupt or insolvent under applicable law; (C) has made a general assignment for the benefit of creditors; (D) files or becomes subject as a debtor to a petition in bankruptcy for liquidation or reorganization; (E) becomes otherwise insolvent; or (F) admits its inability to pay its debts generally as they become due.
c) Sections 3 (Fees; Payment Terms), 5 (Confidential Information), 6 (Term; Termination; Survival), 8 (Limitation of Liability), 9 (Non-Solicitation) and 12 (Applicable Law) of this Agreement will survive termination indefinitely or to the extent provided in such sections.
7. Representations and Warranties.
a) PSI and Partner each represent and warrant that: (i) it is, and will remain, a corporation in good standing under the laws of the jurisdiction of its organization; (ii) it has all requisite corporate power and authority to carry on its business as contemplated herein, including obtaining all necessary third party consents, approvals or authorizations for performance under this Agreement; (iii) there are no agreements by which it is bound preventing its performance hereunder and performance under this Agreement will not constitute a breach of any contract, agreement, or understanding by which it is bound; and (iv) it will comply with all applicable laws, rules, and regulations in performing its obligations under this Agreement.
b) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.
8. Limitation of Liability.
A) DISCLAIMER. NEITHER PARTY NOR PSI’S THIRD PARTY SUPPLIERS WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, OR LOST DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
B) MAXIMUM LIABILITY. IN ANY EVENT, EITHER PARTY’S (AND PSI’S THIRD PARTY SUPPLIER’S) MAXIMUM LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY TEAMING/LEAD REFERRAL FORM (IN TORT, CONTRACT OR OTHERWISE) WILL NOT EXCEED THE GREATER OF: THE (I) AMOUNT OF FEES PAID BY A PARTY TO THE OTHER PARTY UNDER THE TEAMING/LEAD REFERRAL FORM; OR (II) TEN THOUSAND DOLLARS ($10,000).
9. Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, Partner will not knowingly solicit for employment nor knowingly employ (either as an employee or consultant) any of PSI’s employees. In addition, during the Term and for six (6) months thereafter, Partner will not solicit or request any End User, Prospective End User or other client of PSI that Partner became aware of pursuant to this Agreement to transfer its business from PSI to any third party.
10. Force Majeure. Neither party is responsible from any delay or failure to perform resulting from causes beyond its reasonable control.
11. Publicity. Neither Partner nor PSI will refer to each other and this relationship in any marketing or publicity activities without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or denied.
12. Applicable Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York without regard to its principals of conflict of laws. In the event of any dispute arising out of or relating to this Agreement, a suit will be brought only in a federal or state court of competent jurisdiction located in New York County in the State of New York. If Partner is located in Canada, this Agreement will be governed by the laws of the Province of Ontario. Ontario’s principles of conflict of laws or the United Nations Convention on contracts for the international sale of goods will not apply to this Agreement. In the event of any dispute arising out of or relating to this Agreement, a suit will be brought only in the General Division of the Ontario Court of Justice.
13. Assignment. Partner will not assign any of its rights or obligations under this Agreement without the prior written consent of PSI.
a) No waiver of any breach of any provision of this Agreement by either party or the failure of either party to insist on the exact performance of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions hereof, and no waiver will be effective unless made in writing.
b) Any notice alleging a breach of this Agreement must be in writing and be sent by overnight courier or delivered in person to the party’s address set forth in this Agreement. Any other notice required to be provided by PSI under this Agreement may be sent by postal mail service or e-mail to the individual designated by Partner. Any notice delivered to PSI hereunder must be sent to the attention of “Contract Administration.” With a cc: email@example.com.
c) If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of the Agreement will remain in full force and effect.
d) Each party will act as an independent contractor and employees of each party will not be considered to be employees of the other party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other. Each party assumes full responsibility for the actions of its personnel while performing services pursuant to this Agreement, and will be solely responsible for their supervision, daily direction, control, and for the payment of all of their compensation and other employment related costs.
e) Except as otherwise provided herein, each party will be responsible for all costs and expenses associated with this Agreement and its performance hereunder.
15. Entire Agreement. This Agreement and the Teaming/Lead Referral Form constitute the sole and complete agreement between the parties with regard to its subject matter, and supersedes all proposals, understandings, representations, prior agreements or communications relating to the subject matter of this Agreement. This Agreement also supersedes any pre-printed terms contained on any purchase order or similar document issued by Partner and any such terms will have no force or effect. This Agreement may not be modified or amended except by a writing signed by both parties. Neither this Agreement nor the Teaming/Lead Referral Form will be construed against the party that has prepared such Agreement or Teaming/Lead Referral Form, but instead will be construed as if both parties prepared the Agreement or Teaming/Lead Referral Form.