This PARTNER AGREEMENT ( Agreement ) is by and between Analytical Design Solutions, Inc. (hereinafter Supplier ), a corporation with its principal offices at 227 W. Market St, Suite 200, York, PA, 17401, U.S.A. and (hereinafter Partner ), a company with its principal offices at. WHEREAS, Supplier is in the business of developing, marketing, operating and selling Software; and WHEREAS, Partner is interested in purchasing Software from Supplier and reselling Software to its clients. NOW, THEREFORE, in consideration of the mutual promises and covenants herein combined, the sufficiency and receipt of which are hereby agreed and acknowledged, the parties hereby agree as follows: Section 1 DEFINITIONS As used herein, the following words or phrases shall have the following meanings: 1.1 End User(s) An individual or organization that has acquired Software through Supplier or Reseller for its own use (and not for redistribution, sublicensing, remarketing or timesharing). 1.2 Software A group of computer programs that currently consists of KioWare Kiosk, KioWare Server and KioWare Lite Kiosk System software, and includes any future program additions to the KioWare software family without the necessity of a written addendum hereto. 1.3 Partner An individual or organization that purchases Software from Supplier and resells same Software to an End User. Partner may integrate the Software with physical computer components to make a complete system to resell, or the Partner may integrate the Software with their own application program and sell as a complete system. 1.4 KioWare Web Portal A Supplier provided web portal that enables a Partner to create quotes, enter transactions and end-user information, and manage licensing. 1.5 KioWare Web Service A Supplier provided web API that enables a Partner s website, using standard HTTPS, to execute registration, purchase and licensing functions on KioWare s web server. Section 2 PARTNER APPOINTMENT AND TERMS 2.1 Supplier grants Partner the right to market and resell the Software to End Users. 1 of 9
2.2 Partner will contact Supplier or consult the KioWare Web Portal for current pricing information when quoting to End Users. 2.3 All payments made under this Agreement shall be payable in U.S. dollars. If funds are wired, all origination and bank fees are the Partner s responsibility. 2.4 End User Licensing will be managed by Supplier and will require contact information of End User including, at a minimum, the name, phone number and email address for the End User contact. 2.5 End User licensing will not occur until Supplier has received license payment from Partner unless Supplier and Partner have agreed to credit terms. Section 3 SUPPLIER AND PARTNER MARKETING SUPPORT 3.1 Partner shall promote the Software in its published marketing materials and web assets to the extent it deems commercially reasonable in its good business judgment. 3.2 Partner will provide Supplier with at least one (1) copy (can be digital representation) of any marketing materials it develops that contains the Supplier s trademark and/or Logo and/or references to the Software. 3.3 Supplier shall provide Partner with access to marketing material and product logo designs in standard graphic design format. 3.4 Supplier shall provide to Partner current and future Software development plans including scheduled beta and ship dates. 3.5 Partner shall inform Supplier of features or capabilities to be added to the Software that would help to market the Software. 3.6 Partner must provide Supplier with their logo image and short description of their business to be added to Supplier s Partners web page. Section 4 SUPPLIER AND PARTNER SALES SUPPORT 4.1 Supplier will provide Partner with pre-sales support via email and, where economical and time zones match, via telephone. All communication will be in English. 4.2 Supplier will provide Partner with on-line sales training opportunities and/or the option to schedule pre-sales WebEx-based training opportunities. 4.3 Partner shall employ at least one (1) full-time sales person who is trained and certified in KioWare Product Sales so they may competently sell the software to the End Users. 4.4 Supplier and Partner shall jointly develop annual End User sales goals and shall make best faith efforts to cooperate with each other in achieving these goals. 2 of 9
4.5 Supplier will provide to Partner one (1) fully functional license of each Software product to be installed and used by Partner in the sales process; these licenses are not for resale. 4.6 Supplier will notify Partner three months prior and one month prior to the End User s support expiration date to afford Partner the opportunity to sell the support renewal. Supplier will contact End User directly to renew support if renewal is not received from Partner by the expiration date. Section 5 SUPPLIER AND END USER TECHNICAL SUPPORT 5.1 Supplier will provide Partner with technical support via email and, where economical and time zones match, via telephone. All communication will be in English. 5.2 Supplier will provide access to internal web-based technical tools to Partner to help with technical issues. 5.3 Supplier will provide two (2) hour turnaround technical support for issues received via email or telephone during regular business hours (Mon-Fri, 8am 5pm EST). 5.4 Partner shall employ at least one (1) full-time employee who is trained and certified in the technical aspects and use of the Software to the level necessary to be able to competently install and support the software to End Users. 5.5 Supplier will provide to Partner one (1) fully functional license of each Software product to be installed and used by Partner in the technical support process. Section 6 PARTNER PERFORMANCE OBJECTIVES 6.1 The Required License Volume (RLV) for Partner for a one year period beginning each calendar year must equal or exceed 28 KioWare licenses. If Supplier and Partner enter into this Agreement mid-calendar year, the RLV for the remainder of that calendar year will be prorated. RLV for subsequent calendar years is subject to change with written notification to Partner not later than October 1 st of the current calendar year. 6.2 Partner is required to include the corresponding KioWare support on all quotations for KioWare licenses submitted to End User(s). Quotations must also contain the following statement to offer explanation why the End User is advised to purchase support with KioWare licenses. 6.2.1 Maintenance and support is charged annually and provides free priority phone and e-mail support as well as free product updates during the year. Section 7 PARTNER DISCOUNT REWARDS 7.1 Partner will initially receive a 15% discount from Supplier on Software and annual maintenance and support, including renewals, purchased under this Agreement. Partner 3 of 9
may earn discount rewards for the following calendar year based on their total KioWare sales for the current year as outlined in the following table. Partner Level Total Yearly Sales Discount for next calendar year Basic Partner $0 - $9,999 15% Bronze Partner $10,000 - $24,999 17.5% Silver Partner $25,000 - $49,999 20% Gold Partner $50,000 + 25% 7.1.2 Total sales = Invoiced sales to Partner + credit card transactions for Partner in a given calendar year. 7.2 Partner will be notified by Supplier no later than the 16 th of January or upon receipt of the first Purchase Order from Partner in the new calendar year of their total sales for the previous year and discount for the new year. 7.3 Discounts are assigned each year based on the previous year s sales. A Partner will remain at a given level if their sales continue to be at that level. In other words, being a Gold Partner one year does not mean that Partner will remain a Gold Partner unless the sales volume reached is at the Gold level. Section 8 KIOWARE WEB SERVICE 8.1 Using Supplier s KioWare Web Service, Partner can integrate KioWare product download registration, purchasing and licensing functionality into Partner s website. 8.2 Supplier shall put forth commercially reasonable efforts to make its KioWare Web Service available. However, Supplier is not responsible for any damages or losses related to any system errors or interruptions affecting the KioWare Web Service and the processing of any transaction related to the KioWare Web Service. Partner understands that the KioWare Web Service may be unavailable unexpectedly as a result of circumstances beyond Supplier's control. Supplier is not responsible for technical or mechanical problems affecting Partner s computer equipment. 8.3 When Partner uses the KioWare Web Service, Partner represents, warrants and agrees that Partner will not: 8.3.1 Falsify or misrepresent any information regarding Partner s identity or intentions with respect to any matter 8.3.2 Attempt to logon to the KioWare Web Service with other than Partner s credentials. 8.3.3 Use any robot, spider, or other automatic device to post data to the KioWare Web Service. 8.3.4 Other than for testing purpose, create transactions without associated legitimate End User(s). 4 of 9
Section 9 KIOWARE WEB Portal 9.1 Supplier will provide Partner with an account to login to the KioWare Web Portal. 9.2 Using Supplier s KioWare Web Portal, Partner can generate quotes, enter transactions and manage End User s company, contact and license information. 9.3 Supplier will provide Reseller with a logon to our Partner Portal for purposes of quote generation and transaction and license management 9.4 Supplier shall put forth commercially reasonable efforts to make its KioWare Web Portal available. However, Supplier is not responsible for any damages or losses related to any system errors or interruptions affecting the KioWare Web Portal and the processing of any transaction related to the KioWare Web Portal. Partner understands that the KioWare Web Portal may be unavailable unexpectedly as a result of circumstances beyond Supplier's control. 9.5 When Partner uses the KioWare Web Portal, Partner represents, warrants and agrees that Partner will not: 9.5.1 Falsify or misrepresent any information regarding Partner s identity or intentions with respect to any matter 9.5.2 Attempt to logon to the KioWare Web Portal with other than Partner s credentials. 9.5.3 Use any robot, spider, or other automatic device to post data to the KioWare Web Portal. 9.5.4 Other than for testing purpose, create transactions without associated legitimate End User(s). Section 10 TRADEMARKS AND INDEMNIFICATION OF PRODUCTS 10.1 Partner may use and display the trademarks of Supplier as they relate to the Software to identify and market the Software on its business cards, stationery, web site and marketing material. In each case, Partner shall comply with Supplier s trademark advertising guidelines, if any, and shall clearly state that it is a Reseller for Supplier. Any other use of Supplier s trademarks must be approved in writing by Supplier. Section 11 CONFIDENTIALITY 11.1 A separate confidential nondisclosure agreement must be executed by both parties for this agreement to be binding. 5 of 9
Section 12 INTELLECTUAL PROPERTY RIGHTS 12.1 Partner shall be authorized only to market, license (by presenting Supplier s license agreement for End User s signature), and distribute the Software in the form and packaging as delivered by Supplier to Partner in accordance with the terms of this Agreement. This Agreement shall not be construed to grant Partner any other right, title, or interest in any intellectual property rights, including without limitation any patent, copyrights, trademark or trade secret rights, embodied in or associated with the Software, or any right to copy, modify, loan, lease, license, or sell the Software. All other use of the Software by Partner shall be subject to the terms and conditions of the End User License Agreement included with the Software. Under no circumstances shall Partner de-compile the object source code portion of the Software to a source code version. 12.2 Partner agrees not to loan, rent, or provide access to the Software except as may be desirable during the sales process, for a fee or otherwise, to any third party for the purpose of any execution, use, copying of such Software not authorized by the End User License Agreement included with the Software. Section 13 REPRESENTATIONS AND WARRANTIES 13.1 Supplier warrants to and for the benefit of Partner and End Users that Supplier owns or has rights to the Software, including any intellectual property rights associated therewith, adequate to enable Supplier to perform its obligations, to authorize the marketing of the Software by Partner, and to authorize the Software s use by End Users in accordance with the terms and conditions of the End User License Agreement. Section 14 LIMITATION OF WARRANTY 14.1 THE LIABILITY OF SUPPLIER TO PARTNER FOR ANY CLAIM WHATSOEVER RELATED TO THE SOFTWARE OR THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE SHALL NOT EXCEED THE SUM OF ALL FEES PAID BY PARTNER IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD REGARDLESS OF ANY OTHER BREACH HEREUNDER OR ANY OTHER CLAIM BY PARTNER AGAINST SUPPLIER. SUPPLIER IN NO EVENT SHALL BE LIABLE TO PARTNER FOR ANY LOSS OF PROFITS, LOSS OF DATA, ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, ECONOMIC, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY CLAIMS OR DEMANDS BROUGHT AGAINST PARTNER BY ANY OTHER PARTY, REGARDLESS OF WHETHER SUPPLIER HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS. THE PARTIES ACKNOWLEDGE THAT THESE LIMITATIONS WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT. 6 of 9
Section 15 INDEMNIFICATION 15.1 Supplier hereby indemnifies and agrees to hold Partner harmless from and against any and all claims, demands, or actions and costs, liabilities, or losses arising out of any actual infringement of any trademark or copyright or violation of any trade secret by any of the Software furnished hereunder; provided, however that Supplier is not liable for any damages arising out of infringement or any statement or misstatement in the documentation and/or marketing materials due to any alteration, modification or addition made by Partner. 15.2 Partner hereby indemnifies and agrees to hold Supplier harmless from and against any and all claims, demands, or actions and any cost, liabilities, or losses arising out of any statements or representations made by Partner or Partner s employees, or agents with respect to the Software, except for statement that are consistent with the documentation and marketing materials provided by Supplier to Partner for use in connection with the marketing of the Software. 15.3 The foregoing indemnities are in addition to any rights otherwise under this Agreement, but shall be expressly contingent on the party seeking indemnity (a) notifying the indemnifying party in writing of the existence or possibility of such claim, demand, action, or liability within thirty (30) days of learning of such claim; (b) cooperating in the defense or settlement thereof; and (c) allowing the indemnifying party to control the defense or settlement of the same. Section 16 TERM AND TERMINATION 16.1 The term of this Agreement shall be one (1) year beginning with the date of execution of this Agreement as shown below. 16.2 This Agreement shall be extended automatically from year to year if Partner satisfies Performance Objectives unless one party notifies the other in writing of its intent to terminate the Agreement at least thirty (30) days prior to the anniversary date thereof. 16.3 Either party may terminate this Agreement if the other party commits a material breach of any of the terms hereof and such breach remains uncured thirty (30) days after written notice of the breach has been furnished to the party in breach by the other party. 16.4 Within thirty (30) days from notice of termination, Partner will provide Supplier with current list of End Users who have ever purchased Software from Partner, including company/organization name and address, and sales and technical contact names with phone or email addresses, if applicable. Partner will also certify that all copies of evaluation Software have been removed from Partner s computers. Section 17 MISCELLANEOUS 17.1 Partner is an independent contractor under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto. Partner shall have no authority to enter into agreements of any kind on 7 of 9
behalf of Supplier and shall not have the power or authority to bind or oblige Supplier in any manner to any third party. 17.2 All questions concerning the validity, operation, interpretation, and construction of this Agreement will be governed by and determined in accordance with the laws of the State of Pennsylvania, United States of America, without giving effect to any principles of conflicts of law. Any legal action or proceeding between Supplier and Partner related to this Agreement shall be brought exclusively in a federal or state court of competent jurisdiction sitting in the state of Pennsylvania, United States of America. 17.3 Neither party shall, by lapse of time, be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other shall not be construed as or constitute a continuing waiver of such breach or of other breaches of the same or other provisions of this Agreement. All claims related to this Agreement shall be brought within one (1) year after such cause of action arose or be forever barred. 17.4 Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. 17.5 All notices required to be in writing shall be delivered by hand, sent by recognized courier (such as Federal Express, Airborne or UPS), or mailed by certified or registered mail, return receipt requested, postage pre-paid, addressed to the parties as follows, and shall be deemed received upon actual receipt: If to Supplier: Attn: President Analytical Design Solutions, Inc. 227 W. Market St., Suite 200 York, PA 17401 U.S.A. If to Partner: Attn: 17.6 The parties hereto acknowledge that this Agreement is the complete and exclusive statement of agreement respecting the subject matter hereto and supersedes all proposals (oral or written), understandings, representations, conditions, and other communications between the parties relating hereto. This Agreement may be amended only by a subsequent writing that specifically refers to this Agreement and is jointly signed by Reseller and Supplier. No other act, document, usage, custom shall be deemed to amend this Agreement. 8 of 9
WHEREBY, the parties have caused this Agreement to be executed by their duly authorized officers as set forth below effective this day of,. Analytical Design Solutions, Inc. Partner By: By: Title: Title: 9 of 9