Open Marketplace Distributor Agreement
Last Updated: September 25, 2017
THIS DISTRIBUTOR AGREEMENT ("AGREEMENT"), ENTERED INTO BETWEEN AXWAY INC. AND THE PERSON OR ENTITY AGREEING TO THE TERMS OF THIS AGREEMENT ("PARTNER"). IF YOU ARE ACTING ON BEHALF OF AN ENTITY OR ENTITIES, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SAID ENTITY OR ENTITIES. IF PARTNER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT ACCEPT THE TERMS IN THIS AGREEMENT AND MUST NOT MOVE FORWARD BECOMING A PARTNER ON THE PLATFORM. THE EFFECTIVE DATE IS THE DATE THAT THE TERMS OF THIS AGREEMENT ARE ELECTRONICALLY ACCEPTED BY YOU ON BEHALF OF PARTNER. THIS AGREEMENT CONTEMPLATES A REVENUE SHARE OF PARTNER’S PARTNER AND PRODUCTS SOLD VIA THE AXWAY MARKETPLACE (AND AXWAY PLATFORM, IF ACCESS TO THE PLATFORM IS GIVEN TO YOU FOR THAT PURPOSE). IF PARTNER HAS A FREEMIUM OR SIMILAR BUSINESS MODEL FOR THEIR PARTNER PRODUCTS SUCH THAT THE PARTNER PRODUCTS ARE PROVIDED FREE OF CHARGE, BUT A PREMIUM IS CHARGED AND COLLECTED DIRECTLY BY PARTNER FOR ADVANCED FEATURES OR FUNCTIONALITY, THEN PARTNER SHALL PROVIDE AXWAY WITH A PROPOSAL TO ENTER INTO A SEPARATE WRITTEN AGREEMENT THAT WOULD PROVIDE DIFFERENT LICENSE FEE MODELS, INCLUDING, WITHOUT LIMITATION, REVENUE SHARE ARRANGEMENTS.
1.1 Distributor Appointment.
Subject to the terms and conditions of this Agreement, Partner hereby appoints Axway as an authorized representative to facilitate Partner’s distribution of its products via the Platform, with Axway providing processing and payment services for Partner’s license of its software, services, and related documentatimaron (collectively “Products”) to end users through the Platform. Partner further grants Axway the right to distribute Partner’s Products through the Platform as a bundled product or other offering to Axway’s end user customers. These grants of rights shall only apply to the Products which Partner makes available on the Platform via Partner’s login credentials. Such activities may occur via the Axway Marketplace, and/or the Axway Platform, including but not limited to those portals located at marketplace.axway.com, platform.axway.com, platform.appcelerator.com, and similar interfaces and URLs established for such purpose (collectively “Platform”).
1.2 Partner License.
Subject to the terms and conditions of this Agreement, Partner hereby grants to Axway a worldwide, non-exclusive, royalty-free license during the Term to: (a) use, host, reproduce, distribute, transmit and publicly display Partner’s Products offerings via the Platform in support of the activities described in section 1.1 above, (b) allow Users to use Partner’s Products subscribed, licensed, or purchased via the Platform, and (c) if applicable, access the Partner’s Products via an API solely for the purpose of providing the Partner’s Products to Users via the Platform.
1.4 Marks; Trademark License.
The Partner Products on the Platform shall bear Partner Marks as generally displayed for other partners on the Platform. During the Term, Partner hereby grants to Axway a limited, nonexclusive, royalty-free license to use the Partner Marks in order to (i) display the Partner Products on the Platform; and (ii) promote the Partner Products in connection with the Platform.
2. Distribution of Partner Tools.
2.1 Axway APIs and Service.
Axway shall host and maintain the Platform, directly and/or via its vendors and subcontractors.
2.2 Partner APIs and Tools.
If Partner is hosting the Partner Products via Partner’s service, Partner shall provide the Partner APIs and host and maintain the Partner Products and Partner Service.
2.3 Partner will be responsible for performing all User Support for the Partner Products. Partner will provide Support promptly, in a manner consistent with good industry practice, and during at least the same hours and at the same or better service levels as Partner provides support for its other customers. 2.4 The parties may engage in joint marketing activities to promote the Partner Products offering on the Platform. Except as mutually agreed in writing, each party will pay its own costs and expenses for its marketing activities.
3.1 Axway acknowledges and agrees that, as between Partner and Axway, Partner owns all right, title, and interest in and to the Partner Products, Partner Service, Partner Marks, the Partner API, and the Intellectual Property Rights therein, and nothing in this Agreement will confer on Axway any right of ownership or interest in such items.
3.2 Partner acknowledges and agrees that, as between Axway and Partner, Axway owns all right, title, and interest in and to the Platform (excluding the Partner Products, Partner Service, Partner API, and Partner Marks), the Axway API, Axway Marks, and the Intellectual Property Rights therein, and nothing in this Agreement will confer on the Partner any right of ownership or interest in Axway’s Platform, API, or Marks.
3.3 Each party acknowledges that it obtains no intellectual property rights or licenses by this Agreement except for those licenses expressly granted.
4.1 Axway shall pay Partner ninety percent (90%) of the Net Product Revenue received by Axway for the Partner Tools sold in the Platform (the "Revenue Share"). Axway and Partner may negotiate a different Revenue Share for a specific transaction on a case by case basis upon mutual consent of both parties. Axway may modify the percentage of the Net Product Revenue payable to Partner each year on the anniversary of the Effective Date by providing at least sixty (60) days prior written notice to Partner.
4.2 Axway shall pay the Revenue Share due to Partner at the earlier of (a) within thirty (30) days after the end of the calendar month in which the Revenue Share equals at least fifty dollars (US $50); or (b) within thirty (30) days after the end of the calendar quarter. No later than the Revenue Share payment due date, Axway shall make available to Partner a report itemizing the receipts and any permitted deductions comprising the Net Product Revenues.
5. Term of Agreement
5.1 Term. This Agreement is effective as of the Effective Date and shall continue for a period of one (1) year and shall automatically renew for additional one (1) year periods ("Term") unless either party gives written notice to the other of its intention not to renew the Agreement at least thirty (30) days prior to the expiration of the then-current Term. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Axway may immediately terminate this Agreement in its sole discretion if Partner has a freemium business model for its Partner Tool and has not entered into alternative distribution arrangement with Axway.
5.2 Effects of Termination. Upon expiration or termination of this Agreement for any reason:(a) Partner shall cease any and all use of the Platform; (b) each party will, upon reasonable written request by the other party, return to the other party or destroy the Confidential Information of the other party that it obtained during the course of this Agreement, except for a copy kept for compliance and evidentiary purposes and digital copies on backup and disaster recovery systems subject to such party’s ordinary data destruction practices; and (c) upon written request, each party must certify in writing to the other party that it has returned or destroyed all of the other party’s Confidential Information as set forth herein.
5.3 Survival. Sections 2.5 (License Restrictions), 5 (Ownership), 5 (Term of Agreement), 6.2 (Warranty Disclaimer), 7 (Limitation of Remedies and Damages), 8 (Indemnification), 9 (Confidential Information), 10 (General), and 11 (Definitions) shall survive any termination or expiration of this Agreement. For clarity, no termination shall effect the rights of Users who have licensed or subscribed to Partner Products prior to the effective date of termination, and their rights shall continue pursuant to the terms under which they obtained such license or subscription via the Platform.
6. Representations and Warranties.
6.1 Each party represents and warrants that (a) the execution, delivery, and performance by such party of this Agreement are within the powers of the party, have been duly authorized by all necessary parts of the party, and will not violate any law, statute, or other governmental regulation that is applicable to the party’s business, or any other agreement or instrument to which the party is a party; and (b) it has obtained or shall obtain and maintain during the term all rights, licenses, consents and authorizations necessary to perform its obligations as set forth in this Agreement. Partner further represents and warrants that the Partner Products, Partner Service, and Partner Marks do not and will not violate any applicable laws, rules or regulations or infringe the rights of an third party, including without limitation Intellectual Property Rights.
6.2 THE PLATFORM IS PROVIDED "AS IS". AXWAY DOES NOT WARRANT THAT THE NETWORK OR PORTAL FURNISHED OR PROVIDED TO PARTNER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT THE PORTAL IS DESIGNED TO MEET PARTNER’S BUSINESS REQUIREMENTS. NEITHER AXWAY NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR THAT ACCESS TO ITS NETWORK WILL BE UNINTERRUPTED.
7. Limitation of Remedies and Damages
7.1 AXWAY SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7.2 AXWAY’S TOTAL AGGREGATE LIABILITY AND PARTNER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY AXWAY’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF PAYMENTS MADE BY PARTNER UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
7.3 The provisions of this Section allocate risks under this Agreement between Partner and Axway and are a basis of the bargain on which both parties have relied.
Each party hereunder shall respectively indemnify, defend and hold harmless the other party and its officers, directors, consultants, employees, successors and permitted assigns from and against any damages, losses, and expenses (including reasonable attorneys’ fees), as a result of any third-party claim, demand or action (collectively, a “Claim”) arising from any breach of any of the representations, warranties, or covenants made by the indemnifying party hereunder. The indemnified party shall promptly notify indemnifying party in writing of any such Claim; provided that the failure to provide such notice shall not relieve indemnifying party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any such Claim; provided, however, that (i) the indemnifying party shall keep the indemnified party informed of, and consult with such party, in connection with the progress of such litigation or settlement and (ii) indemnifying party shall not settle any such Claim in a manner that admits fault on the party of, requires any payment or action by, and does not unconditionally release indemnified party, without indemnified party’s written consent, not to be unreasonably withheld or delayed.
9. Confidential Information
Each party agrees that all code, inventions, know-how, business, technical and financial information, and any other non-public information it obtains (“Receiving Party”) from the disclosing party regarding disclosing party or its affiliated entities (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information excludes information that: (i) was or becomes publicly known or available at the time it was disclosed or thereafter through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of Confidential Information of the Disclosing Party; or (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party. Any software, documentation or technical information provided by Axway (or its agents) that has not been released to the Axway community, performance information relating to the Portal, and the terms of this Agreement shall be deemed Confidential Information of Axway without any marking or further designation. The Receiving Party shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein; (ii) make any use of Confidential Information except: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information available to any of its employees or consultants, or those of its affiliated entities, except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party is liable for all acts and omissions of its employees, consultants and affiliates to the extent that such act or omission would be a breach of this Agreement if done by Receiving Party. The Receiving Party shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable care. The Receiving Party may disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the Receiving Party provides prompt written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. The Receiving Party shall protect Confidential Information in the manner provided herein for five (5) years after receipt thereof, unless such obligation ceases earlier pursuant to this Section. Notwithstanding anything to the contrary herein, neither party shall disclose the terms and conditions of this Agreement to any third party, without the prior written consent of the other party. Notwithstanding the foregoing each party may disclose the terms and conditions of this Agreement without the prior written consent of the other party: (a) as required by any court or other governmental body; (b) as otherwise required by law; (c) to legal counsel of the parties; (d) in confidence, to accountants, banks, and financing sources and their advisors; (e) in connection with the enforcement of this Agreement or rights under this Agreement; or (f) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction. Notwithstanding the foregoing, each party hereby grants to the other party a perpetual, irrevocable, worldwide, sublicensable, transferable, royalty-free, fully-paid, right and license to use and exploit in any manner and for any purpose, all Feedback provided by a party hereunder.
10.1 Severability. Severability.
If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
10.2 Governing Law;
Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the Delaware state and United States federal courts located in and for Delaware, and both parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.
10.3 Notices and Reports.
Any notice or report hereunder shall be in writing to the party’s corporate headquarters, Attention: Legal Department and shall be deemed given upon delivery if sent by: (i) personal delivery; (ii) certified or registered U.S. mail (return receipt requested); or (iii) overnight commercial delivery service.
10.4 Amendments; Waivers.
No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Partner will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
10.5 Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.
10.6 Independent Contractors.
The title “Partner” is used herein for convenience and only, and the parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
10.7 Force Majeure.
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval of a license by a government agency.
10.8 Partner Acknowledgement.
Partner agrees that Axway may from time to time reasonably identify Partner (with Partner’s name, logo, or trademark) as an Axway Partner in or on Axway’s website, sales and marketing materials, or press releases. Axway may not use Partner’s name, logo, or trademark for any other purpose without obtaining Partner’s prior written consent.
Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This Agreement shall inure to the benefit of and be binding upon the parties hereto, and their successors and permitted assigns.
The headings in this Agreement are for purposes of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms hereof.
11. Additional Definitions
11.1. API means the application program interfaces to interface the Partner Products or Partner Service with the Platform, if applicable.
11.2. Support means the provision of: the provision of helpdesk support for the Partner Products or Partner Service, a diagnosis of problems, performance deficiencies, functionality or operation of the Partner Products or Partner Service, support in connection with User’s development, implementation and maintenance activities involving Partner Products or Partner Service, and (a resolution of problems or performance deficiencies of the Partner Products or Partner Service.
11.3. Feedback means, without limitation any feedback regarding the Partner Products or Partner Service, or the Portal, including but not limited to, any functionality issues, and errors, flaws, failures, or faults therein, submitted via an online or other method.
11.4. Intellectual Property Rights means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
11.5. Marks mean all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, proprietary logos, symbols, artwork, all other indicia of origin, all applications to register and registrations for the foregoing, and any renewals therefore, under which a Party offers its products or services.
11.6. Net Product Revenues means all revenues actually received by Axway for the sale of licenses or subscriptions attributable to the Partner Products less (i) the actual costs incurred by Axway in selling the licenses or subscriptions, including but not limited to transaction costs related to credit card processing (ii) any rebates, credits, charge- backs, refunds or similar offsets actually issued by Axway for the licenses or subscriptions; and (iii) any taxes that Axway is required to collect in connection with the sale of licenses and subscriptions.
11.7. Partner Service means the Partner’s online hosting service for the Partner Products, if applicable.
11.8. User means an individual or entity that accesses the Portal and licenses the Partner Products.