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Below is a list of common sections included in Channel Partner Agreements. These sections are linked to the below sample agreement for you to explore.
ExpeData Digital Pen & Paper Solution
Channel Partner and Referral Agreement
This CHANNEL PARTNER AND REFERRAL AGREEMENT (“Agreement”) is made and entered into this 21st day of April, 2007 (“Effective Date’), by and between EXPED, LLC, an Ohio limited liability company (“ExpeData”), and THE STANDARD REGISTER COMPANY, an Ohio corporation (“Standard”), located at 600 Albany Street, Dayton, OH 45408.
Effective as of the Effective Date, ExpeData purchased from Standard the proprietary rights to the ExpeData Digital Pen and Paper System that permits the Customers using the Hardware Products and Digital Paper Products to create text and images which are transmitted to servers via the Internet through the Software Products and associated Online Services components of the Digital Pen and Paper System pursuant to the terms of the Asset Purchase Agreement dated as of the Effective Date (the “Asset Purchase Agreement”) among Standard, ExpeData and DoubleDay Holdings, LLC.
ExpeData values the active involvement and support of Standard’s International Group with respect to ExpeData licensees that are International Associates.
ExpeData desires to provide Standard with an incentive to market ExpeData’s Digital Pen and Paper System to current and future International Associates.
Standard desires to be appointed by ExpeData as (a) a non-exclusive, value-added dealer to promote and market the ExpeData Digital Pen and Paper System and associated Online Services, and (b) the exclusive referral partner to promote and market the ExpeData Digital Pen and Paper System and associated Online Services to the International Associates.
The following terms shall have the corresponding definitions when used in this Agreement. Any accounting term used but not specifically defined in this Agreement shall be construed in accordance with GAAP.
“ Affiliate ” shall mean any Business Entity that directly or indirectly controls, or is controlled by, or is under common control with, another Business Entity. The term “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Business Entity, whether through the ownership of voting securities, by contract or otherwise.
“Agreement” shall mean this Channel Partner Agreement.
“Authorized Territory” shall mean those Territories listed on Exhibit A to this Agreement.
“Business Entity” shall mean a Person engaged in the sale of goods and services.
“Channel Partners” shall mean, collectively, all Business Entities which have been authorized by ExpeData to market, sell and sublicense the Digital Pen & Paper System and associated Online Services.
“Customer” shall mean a Business Entity that may or has agreed to purchase from Standard the Hardware Products and the Digital Paper Products and to license from Standard the Software Products and associated Online Services for use solely with the Hardware Products and Digital Paper Products.
"Customer License Initial Term" shall have the meaning as set forth in Section 8 of this Agreement.
"Customer License Renewal Term" or “Renewal Term” shall have the meaning as set forth in Section 8 of this Agreement.
“Customer Use and License Agreement” shall mean a written use agreement between Standard and a Customer pursuant to which the Customer will purchase from Standard the Hardware Products and the Digital Paper Products and will sublicense from Standard the Software Products and associated Online Services solely in connection with the Hardware Products and the Digital Paper Product.
"Digital Paper Products" shall mean those digital paper items listed on Exhibit B to this Agreement.
"Digital Pen and Paper System" or “System” shall mean all Hardware Products, Digital Paper Products, Software Products and Online Services.
"Documentation" shall mean all current product manuals, and installation manuals accompanying or associated with the System.
“Electronic Data” shall mean all information regardless of form that either the Customers or Channel Partners (hereinafter referred to collectively as the “Users”) have entered or transferred to ExpeData through the Digital Pen and Paper System. Electronic Data shall include, but is not limited to, digital information received from Users corresponding to recordings on Digital Paper Products by Hardware Products and other information received from Users.
“End User Restrictions” shall mean those restrictions listed on Exhibit C.
“ExpeData Confidential Information” shall mean all nonpublic, proprietary and confidential information of ExpeData, including, without limitation, this Agreement, financial information, operating practices, business plans, developments, systems, inventions, trade secrets, software, services, firmware, formulas, devices, know-how, employee, customer and product information that derives independent value from not being generally known to the public or to other persons. No information or materials shall qualify as ExpeData Confidential Information if they (i) are or become, through no fault of Standard, available to the public, (ii) are obtained by Standard from a third party without breach of any agreement with, or obligation of confidentiality to, ExpeData, (iii) are designated in writing as materials to be utilized by Standard in connection with the promotion, marketing and sale of the Digital Pen and Paper System or (iv) are required by law or a court or government agency to be disclosed. For the avoidance of doubt, any information assigned to ExpeData by Standard pursuant to the Asset Purchase Agreement shall constitute “ExpeData Confidential Information”.
“GAAP” shall mean generally-accepted accounting principles as then in effect, which shall include the official interpretations thereof by the Financial Accounting Standards Board, consistently applied.
"Hardware Products" shall mean those hardware items listed on Exhibit B to this Agreement.
"Initial Term" shall mean the length of the term of this Agreement as listed on Section 10 of this Agreement.
“International Associates” shall mean those International Associates listed on Exhibit D to this Agreement. Standard may add additional Persons to such list with the prior written consent of ExpeData.
“Marks” shall mean, collectively, the trademarks and service marks by which ExpeData identifies the Digital Pen and Paper System and associated Online Services (whether such Marks are owned by or are licensed by ExpeData from a third party).
"Online Services" shall mean all verification, transfer, analysis and digital imaging, and digital form reproduction of Electronic Data from Hardware Products in connection with Digital Paper Products to a remote server through Software Products and an Internet connection.
“Person” shall mean any individual, corporation, general or limited partnership, limited liability company, joint venture, association or trust.
"Products" shall mean all Hardware Products, Digital Paper Products and Software Products.
“Software Products” shall mean all computer programs and related documentation that ExpeData now or hereafter furnishes to, or permits the use of by, Standard or its Customers — whether these programs are referred to as “software”, “firmware”, “source code”, “object code”, “microcode”, or otherwise; wherever located and on whatever media; and whether separately licensed, furnished as part of the End User License or otherwise furnished by ExpeData. The Software Products may include computer programs and related documentation that are owned by third parties and that ExpeData is authorized to furnish under license. Software Products shall include those listed on Exhibit B to this Agreement.
“Standard Confidential Information” shall mean all nonpublic, proprietary and confidential information of Standard, including, without limitation, this Agreement, financial information, operating practices, business plans, developments, systems, inventions, trade secrets, software, services, firmware, formulas, devices, know-how, employee, customer and product information that derives independent value from not being generally known to the public or to other persons. No information or materials shall qualify as Standard Confidential Information if they (i) are or become, through no fault of ExpeData, available to the public, (ii) are obtained by ExpeData from a third party without breach of any agreement with, or obligation of confidentiality to, Standard, or (iii) are required by law or a court or government agency to be disclosed.
NOW, THEREFORE in consideration of the mutual promises and covenants contained in this Agreement, ExpeData and Standard hereby agree as follows:
ExpeData hereby grants Standard, during the term of this Agreement, a non-exclusive, nontransferable, revocable License to sell, market, sublicense, install, maintain and support the Digital Pen and Paper System within the Authorized Territory.
Disclosure, Ownership and Use of Electronic Data
Any and all Electronic Data entered into the Digital Pen and Paper System and associated Online Services by a Customer or Standard shall be owned by one or both of them as agreed in their written agreement. Subject to Section 3 below, ExpeData shall not divulge such Electronic Data to any third party, unless the third party is a subcontractor of ExpeData of whom ExpeData has delegated the performance of some or all of its duties under this Agreement. Also, in the event a Customer requests its specific Electronic Data, Standard agrees that ExpeData may divulge such Electronic Data to such Customer.
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ExpeData may use Electronic Data to generate reports and fulfill its duties and obligations under this Agreement and any licenses or other agreements that ExpeData has with the Customers and Channel Partners.
ExpeData may use the Electronic Data to generate reports of the Electronic Data for usage by ExpeData and other parties if the Electronic Data is aggregated in a non-associated way without attribution to any Customer or Standard.
ExpeData may select and use independent fields of Electronic Data for analyzing and testing (e.g. measure timing) for future product enhancements.
ExpeData may disclose the Electronic Data if required to be disclosed by law or order of a court or government agency.
SUBJECT TO THE LIMITATION OF LIABILITY CONTAINED IN SECTION 13(c) BELOW, EXPEDATA SHALL ONLY BE LIABLE TO STANDARD FOR DIRECT DAMAGES INCURRED BY STANDARD IN CONNECTION WITH THE LOSS OF ELECTRONIC DATA RESIDING ON EXPEDATA’S SERVERS BETWEEN THE TIME SUCH ELECTRONIC DATA IS RECEIVED BY EXPEDATA AND RETRIEVED BY STANDARD OR STANDARD’S CUSTOMERS.
Dealer and Referral Partner Appointment
(a) ExpeData hereby appoints Standard as a non-exclusive, value-added dealer to promote and market the Digital Pen and Paper System and associated Online Services in the Authorized Territory during the term of this Agreement. Except as provided in Section 4(b), ExpeData may (i) authorize other Channel Partners doing business within or outside the Authorized Territory to promote and market the Digital Pen and Paper System and associated Online Services, and (ii) directly market the Digital Pen and Paper System and associated Online Services to Business Entities within or outside the Authorized Territory.
(b) ExpeData hereby appoints Standard as a non-exclusive referral partner to promote and market the Digital Pen and Paper System and associated Online Services to any Persons in the Authorized Territory during the term of this Agreement. Standard shall refer such Persons to ExpeData for the sale and license of the Digital Pen and Paper System directly from ExpeData to such Persons. The referral relationship shall be governed by all applicable terms and conditions of this Agreement and the additional terms and conditions set forth on Exhibit E.
(c) Notwithstanding anything to the contrary contained herein, during the term of this Agreement and continuing until the date one (1) year after the termination or expiration of this Agreement, (i) neither ExpeData nor any of its Affiliates shall, either directly or indirectly, without the prior written consent of Standard, solicit any business from or conduct any business with any International Associate except as a result of a referral, if any, made by Standard pursuant to Section 4(b), and (ii) ExpeData shall not authorize any other Person to promote and market the Digital Pen and Paper System, associated Online Services, or any other products or services to any International Associate.
(d) During the period commencing on the Effective Date and continuing until the date one (1) year after the Effective Date, neither ExpeData nor any of its Affiliates shall, either directly or indirectly, without the prior written consent of Standard, solicit any business from or conduct any business with Federal Express or Bank of America except as a result of a referral, if any, made by Standard pursuant to Section 4(b) with respect to current applications proposed by Standard as described on Schedule 4(d).
Sub-Dealers and Assignment
Standard shall have the right to appoint sub-dealers but shall not have the right to assign or transfer any of its rights or duties under this Agreement, except (x) with the prior written consent of ExpeData, or (y) to an Affiliate or successor of Standard upon thirty (30) days’ prior written notice to ExpeData provided such Affiliate or successor signs an agreement substantially similar to this Agreement. Any permitted assignment shall not relieve the assigning party of its outstanding financial obligations, if any, incurred before the assignment. Standard’s right to appoint sub-dealers shall further be subject to the following: (i) no such appointment shall be for a term greater than the term of this Agreement; (ii) no sub-dealer shall have any rights under this Agreement; (iii) Standard shall impose upon any sub-dealer the same obligations imposed upon Standard hereunder for the express third party benefit of ExpeData enforceable by ExpeData as if it were Standard; (iv) Standard is responsible for the compliance by sub-dealers herewith; (v) Standard hereby indemnifies and holds ExpeData harmless from and against any and all costs, claims, losses, judgments, fines, liabilities and expenses, including costs of legal defense, as incurred, arising out of or based upon any claim; (x) made by any such sub-dealer or its licensees against ExpeData or the Marks; (y) made by any third party against ExpeData in connection with any act or omission by any such sub-dealer; and (z) concerning failures in the strict compliance with this Agreement by sub-dealers. Standard and its sub-dealers shall in no way create any liability for or obligation on ExpeData with respect to third parties other than fulfilling its obligations under the applicable license.
Customer Use and License Agreement
Standard shall use reasonable commercial efforts to promote and market the Digital Pen and Paper System and associated Online Services to Customers consistent with the highest business ethics and in a manner that will reflect favorably on the goodwill and reputation of ExpeData. Each Customer who desires to purchase the Hardware Products and the Digital Paper products and to sublicense the Software Products and associated Online Services shall enter into a Customer Use and License Agreement. The Customer Use and License Agreement sublicenses the Customer to use the Digital Pen and Paper System and associated Online Services solely for such Customer's internal business purposes. Standard agrees that the terms and conditions contained in any Customer Use and License Agreement with its Customers will be consistent with and not conflict with this Agreement and agrees further that all such Customer Use and License Agreements shall contain, at a minimum, the terms and conditions of the End User Restrictions or as hereafter modified or amended from time to time by ExpeData. The Customer Use and License Agreement shall expressly provide that (i) ExpeData may terminate such Customer Use and License Agreement upon written notice of failure by the Customer to comply with the terms of the Customer Use and License Agreement, subject to reasonable cure provisions contained in the Customer Use and License Agreement, or upon written notice after termination or expiration of this Agreement between Standard and ExpeData, (ii) within ten (10) days after termination of the Customer Use and License Agreement, the Customer shall destroy all Software Products together with all copies, modifications and merged portions in any form, and (iii) ExpeData shall be a third party beneficiary of the Customer Use and License Agreement, and the provisions of the Customer Use and License Agreement shall be enforceable by ExpeData and/or Standard. Upon any termination of this Agreement between Standard and ExpeData, Standard will, at ExpeData's request, (i) assign and perfect the assignment to ExpeData or its designee of each Customer Use and License Agreements executed with Customers when such Customer Use and License Agreements come up for renewal and notify these Customers and ExpeData of such assignment, and (ii) deliver to ExpeData, at the time of each assignment, details of its customer records and billing procedures of all Customers who have executed a Customer Use and License Agreement with Standard. The Customer Use and License Agreement shall be fully executed and in the possession of Standard prior to distribution of the Products or Online Services to the Customer. Standard shall take all necessary measures to ensure each of its Customers complies with the End User Restrictions. Standard shall not rent, lease, sublicense or sell the Digital Pen and Paper System and associated Online Services to any Customer, except as expressly authorized by the terms of this Agreement. On request, Standard shall supply a sample of its form Customer Use and License Agreement that Standard signs with its Customers. Standard shall not engage in any pilot tests of the Digital Pen and Paper System
with potential customers without first notifying ExpeData and Standard shall enter into a pilot test agreement with the Customer in connection with any such pilot test.