Donoma Reseller Agreement

Donoma Reseller Agreement

Rev 12.15.15

 

In consideration of the payments, representations, warranties, covenants, terms, and conditions contained in this agreement and other good and valuable consideration, the receipt and sufficiency of which is expressly acknowledged, Donoma, Inc., a Virginia corporation (“Donoma”), and the persons or entities accepting this agreement (collectively referred to as “Reseller”) enter into this Reseller Agreement (the “Agreement”) and agree as follows:

  1. Authorization. Donoma authorizes and grants Reseller a non-exclusive license to sell Donoma Products in accordance with and subject to the terms of this Agreement. Reseller’s authorization is based on Reseller’s compliance with this Agreement. References in this Agreement to “Products” mean any of the Donoma products listed and described on Donoma’s website, any such Product in object code format designed by Donoma, and any updates, patches, modifications, new versions and new related products that Donoma makes available to Reseller in Donoma’s sole discretion.
  2. Term. This Agreement shall commence on the date that this Agreement is accepted by Reseller and approved by Donoma, and shall terminate in accordance with paragraph 11 of this Agreement.
  3. Purchase Price of Products. From time to time Donoma will quote prices for Products that it produces. Any import or export tariffs or other importation costs shall be borne by Reseller. Payment shall be made to Donoma in United States Dollars and prices shall be established in United States Dollars.

3.1 Discounts Greater Than Reseller Discount. In the event that an opportunity requires a deeper discount than established pricing, Reseller shall contact Donoma for additional price options. In this case, Reseller’s discount will be negotiated.

3.2 Resale Price. Although Donoma may publish suggested retail prices for its Products, Reseller is free to establish its own resale prices.

  1. Terms and Conditions of Purchase.

4.1 Donoma may, in its sole discretion, (a) fulfill Product orders from Reseller or (b) extend credit to Reseller.

4.2 Terms of payment to Donoma are net 30 from the date of invoice. For any Products installed with real time license validation turned on, if the entire purchase price of any Product purchased by or through Reseller is not paid within 30 days of activation, Donoma reserves the right to deactivate the software license, stop functionality of the application and withdraw support.  For any Products installed without real time license validation turned on, Donoma will issue a thirty-day license key at the date of invoice and a permanent license key upon timely payment of the invoice.

4.3 All payments to Donoma must be in United States Dollars, free of any withholding tax or any currency control or other restrictions at the address within the United States provided by Donoma.

4.4 Donoma’s quoted prices do not include any national, state or local sales, use, value-added or other similar taxes, levies or government assessments, whether due at the time of a sale or license or later imposed (“Taxes”). In addition to the purchase price of a Product, Reseller shall be solely responsible for the payment of any and all Taxes relating to Reseller’s performance under this Agreement, the distribution of Product to Reseller (or End Users) or the sale, use, possession or distribution of Product by Reseller.  Should any Taxes become due, Reseller shall pay such Taxes and indemnify Donoma against any claim for such amount. To the extent, if any, that Donoma makes payment of any applicable Taxes, Reseller shall promptly reimburse Donoma for that payment.

4.5 Reseller may request an evaluation period mutually agreeable between Reseller and Donoma, during which period an End User may evaluate a Product at no charge.

  1. Eligible Products and End Users. Reseller shall market and sell Products only to End Users. “End User” means a person or entity who acquires Products for internal use and does not resell, sell, license, rent or lease Products to other parties.
  2. Training and Product Support. Donoma shall provide Reseller certain electronic materials outlining features, advantages and benefits of Product(s). Donoma shall provide reasonable amounts of pre-sales consultation, as determined in Donoma’s sole discretion, to the staff of Reseller. Donoma shall provide technical support for all Products that Reseller markets or sells pursuant to the End User’s purchase of a support agreement or individual services. Escalation of problems may be submitted to Donoma by an End User who has purchased a support agreement.
  3. Intellectual Property Rights.

7.1 Ownership. This Agreement does not transfer any title to, or any ownership of, software or proprietary hardware technology to Reseller. Notwithstanding anything to the contrary in this Agreement, Donoma, or Donoma’s licensor as applicable, retains all title and ownership of all intellectual property rights in Products, including without limitation all computer programs, software, network file server programs, network event services applications, firmware, copies of software, master diskettes, documentation and related materials, including without limitation all modifications to and derivative works of any such materials acquired by Reseller, Donoma or any third party. Donoma does not transfer any portion of such title and ownership, or any of the goodwill associated with any of such Products or intellectual property rights, to Reseller other than the license expressly granted herein, and this Agreement may not be construed as granting Reseller any intellectual property rights whatsoever, whether by implication, estoppel or otherwise.

7.2 Protection. Reseller shall take all reasonable actions that may be necessary to protect Product from unauthorized copying or use, including: a) always selling and delivering Product as packaged by Donoma, including any incorporated or imbedded clickwrap end user license agreement(s); and b) maintaining all copyright, patent or patent-pending, and other notices related to ownership of Product. The proprietary source code of any software or firmware contained in Products acquired under this Agreement represents and embodies trade secrets of Donoma and/or its licensors. The proprietary source code and embodied trade secrets are not licensed or provided to Reseller and any modification, addition, or deletion of such information is strictly prohibited. Reseller shall not disassemble, decompile or reverse engineer the software for any reason. The licensing agreement shall not be removed by Reseller from any packaging of Product.

7.3 Infringement. Reseller shall report any instances of suspected copyright, patent or trademark infringement to Donoma and give Donoma reasonable assistance in investigating and prosecuting the infringing acts.

  1. End User Satisfaction. Product markets are technically complex and require high quality, individualized pre sales and post sales support. This support is necessary to achieve and maintain high End User satisfaction. Reseller acknowledges that high End User satisfaction is a condition of Reseller’s authorization and license granted under this Agreement. In addition to complying with the obligations set forth above, to ensure high End User satisfaction, Reseller shall:

8.1 Ensure that any Product sold to the End User is appropriate to the End User’s needs;

8.2 Verify the successful operation of any Product before or after installation (if installation is performed by Reseller);

8.3 Report promptly to Donoma all suspected and actual problems with any Product; and

8.4 Conduct business in a manner that reflects favorably at all times on all Products, goodwill and reputation of Donoma.

  1. Trademark Usage and Marking. During the term of this Agreement, Reseller shall have the right to use the Donoma product trademarks, trade names or service marks (“Trademarks”) in connection with Reseller’s marketing, advertising, promotion and distribution of Products. Reseller’s use of the Trademarks shall not create any right, title or interest in them. Reseller shall use each Trademark only for Donoma’s benefit and in a manner that complies in all material respects with Donoma’s policies and quality standards in effect from time to time. Reseller shall not remove, obscure or alter Donoma’s copyright or patent notice or the Trademarks from Products or documentation and sales material. If Reseller, in the course of distributing Products, acquires any goodwill or reputation in any of the Trademarks, all such goodwill or reputation shall automatically be transferred to and shall vest in Donoma when and as, on an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement, without any separate payment or other consideration of any kind to Reseller. Reseller agrees to take all such actions necessary to effect such vesting. Reseller shall not contest the validity of any of the Trademarks, copyrights, and patents or Donoma’s exclusive ownership of them. Reseller shall not adopt, use, or register in any jurisdiction any word or mark confusingly similar to the Trademarks.
  2. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES. DONOMA’S ENTIRE LIABILITY AND RESELLER’S EXCLUSIVE REMEDY FOR ANY CLAIMS CONCERNING THIS AGREEMENT AND PRODUCTS ACQUIRED UNDER THIS AGREEMENT ARE SET FORTH IN THIS SECTION.

10.1 Aggregate Liability. DONOMA’S LIABILITY FOR DAMAGES INCURRED BY RESELLER FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO THE PURCHASE PRICE OF THE PRODUCT THAT CAUSED THE DAMAGES OR GAVE RISE TO THE CAUSE OF ACTION. DONOMA SHALL NOT BE LIABLE TO RESELLER OR ANY END USER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES AND RESELLER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS DONOMA FROM ANY AND ALL CLAIMS ASSERTED BY ANY END USER OF RESELLER DUE TO THE ACTION OR INACTION OF RESELLER. DONOMA SHALL DEFEND RESELLER IN ANY ACTION FOR TRADEMARK OR COPYRIGHT INFRINGEMENT BASED ON THE USE OR SALE OF PRODUCT. BOTH PARTIES SHALL ASSIST IN THE DEFENSE OF EACH OTHER BY PROVIDING ANY REQUIRED DOCUMENTATION.

10.2 Software. DONOMA’S LIABILITY AND RESELLER’S EXCLUSIVE REMEDY FOR ANY DAMAGES RESULTING FROM SOFTWARE ACQUIRED UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE.

10.3 DISCLAIMER OF WARRANTIES. Donoma warrants that Product will substantially conform to the documentation. EXCEPT AS EXPRESSLY SET FORTH ABOVE, PRODUCT AND DOCUMENTATION ARE PROVIDED “AS IS.” DONOMA HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, ALL OF WHICH ARE WAIVED IN FULL BY RESELLER. Reseller shall communicate Donoma’s disclaimer of warranties to all of Reseller’s End Users.

  1. Termination. Either party may terminate this Agreement at any time without prior notice. Termination shall automatically revoke Reseller’s authority and license to sell Products. The following Sections of this Agreement shall survive the termination of this Agreement: Sections 3 (Purchase Price of Products); 4 (Terms and Conditions of Purchase); 7 (Intellectual Property Rights); 9 (Trademark Usage and Marking); Section 10 and its subsections (Limitation of Liability and Disclaimer of Warranties); and Subsections 12.1 (Jurisdiction); 12.13 (Legal Fees); and 12.14 (Enforcement).

12.General Provisions.

12.1 Jurisdiction. This Agreement will in all respects be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to the United Nations Convention on Contracts for the International Sale of Goods. Reseller acknowledges that it has entered into this Agreement in Virginia. Reseller agrees that all actions arising in connection with this Agreement shall be mediated or litigated only in federal and state courts located in the City of Roanoke, Virginia. Each party consents to such jurisdiction and irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any such proceedings and hereby further irrevocably and unconditionally waives and agrees to the fullest extent permitted by law not to plead or claim that any such proceeding brought in any such court has been brought in an inconvenient forum.

12.2 Waiver. No failure by either party to insist upon the strict performance of any covenant, duty, agreement, or condition of this Agreement, or to exercise any right or remedy upon the breach thereof, shall constitute a waiver of any breach of this Agreement.

12.3 Course of Dealing. This Agreement shall not be supplemented or modified by any course of dealing or usage of trade. Deviation from or addition to the terms and conditions of this Agreement in purchase orders or other written notification from Reseller will be of no effect.

12.4 Assignment. This Agreement is not assignable by Reseller, in whole or in part, without Donoma’s prior written consent. Any attempted assignment without Donoma’s prior written consent will be null and void.

12.5 Relationship of Parties. Reseller is an independent contractor of Donoma. Nothing in this Agreement shall be deemed or construed by the parties or by any third party to create the relationship of principal and agent, employer and employee, or a partnership or joint venture between the parties. It is understood and agreed that neither the method nor the computation of Reseller’s purchase price for Products, nor any other provision in this Agreement, nor any actions of the parties shall be deemed to create any relationship between the parties other than the relationship of manufacturer and reseller. Reseller will not claim or purport to represent Donoma in any capacity other than that of a reseller of Products developed by Donoma.

12.6 Compliance with Laws. Each party will comply, at its own expense, with all statutes, regulations, rules, ordinances, and orders of any governmental body, department or agency that apply to or result from its obligations under this Agreement. Reseller agrees not to export Products directly or indirectly, separately or as part of a system, without first obtaining proper authority to do so from the appropriate governmental agencies or entities, as may be required by United States law or the laws of the country into which Products are imported.

12.7 Representation Regarding Authority. Each person who accepts this Agreement personally guarantees, represents and warrants that he or she is duly authorized to accept this Agreement in his or her individual or representative capacity as indicated.

12.8 Modification of Agreement. This Agreement can be modified at any time, without notice by Donoma, by Donoma publishing on its website a new version of this Agreement, and such new version will be effective automatically 30 days after such publication, except as otherwise provided in this Agreement.

12.9 Binding. This Agreement is for the benefit of and is binding upon the parties and each of their respective successors, permitted assigns, heirs, and personal representatives.

12.10 Paragraph Numbers and Headings. Captions and paragraph headings used in this Agreement are for convenience only and shall not be used to broaden or limit this Agreement.

12.12 Notices. Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered via email.

If to Donoma, to:  notice@donomasoftware.com

12.13 Legal Fees. If an action is brought to enforce or interpret any provision of this Agreement, or if either party defaults in any of the covenants or agreements contained in this Agreement, the non-prevailing party shall pay all costs and expenses, including reasonable legal fees, incurred by the other party in enforcing its rights arising under this Agreement, whether incurred through legal action or otherwise.

12.14 Enforcement. Reseller acknowledges that monetary damages for a breach of paragraphs 7, 9 or 10 would be inadequate and difficult, if not impossible to ascertain, and that Donoma would be irreparably damaged by an actual or threatened breach. Therefore, Donoma shall be entitled to an injunction restraining Reseller from any actual or threatened breach of paragraphs 7, 9 or 10, as well as any further appropriate equitable relief including specific performance, without any bond or other security being required. In addition to the foregoing, and except as otherwise provided herein, each of the parties shall be entitled to any remedies available at law, in equity, or by statute.

12.15 Severability. If any provision in this Agreement is invalid or unenforceable, that provision shall be construed, limited or, if necessary, severed to the extent necessary to eliminate the invalidity or unenforceability, and the other provisions of this Agreement shall remain unaffected.

12.16 Integration, Entire Agreement. This instrument constitutes the entire agreement between the parties. Neither party shall be bound by any terms, conditions, understandings, warranties, statements or representations, oral or written, not contained in this Agreement. Both parties acknowledge that the execution of this Agreement was not induced or motivated by any promise or representation made by any other party, other than the promises and representations expressly set forth in this Agreement. All previous negotiations, statements, and preliminary instruments by the parties or their representatives are merged into this Agreement.

12.17 Force Majeure. Donoma will not incur any liability to Reseller or any other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of, and without the negligence of, Donoma. Such events, occurrences, or causes include, without limitation, acts of God, telecommunications outages, Internet outages, power outages, strikes, lockouts, riots, acts of war, floods, earthquakes, fires, and explosions.

  1. Language. All agreements shall be written and interpreted in the English language.
  2. Misrepresentation. Inasmuch as Reseller is an independent contractor, Donoma is not obligated to honor any contracts or agreement written or verbal, entered into between Reseller and any End User, contractor, subcontractor, or other parties without prior review and written approval by Donoma. Reseller shall make no claim or representation pertaining to Product performance, specification, or service other than those statements contained within the Donoma sales literature.