This Agreement is entered this today by and between Bizzuka, Inc. (hereinafter referred to as “Bizzuka”) and your company (hereinafter referred to as “Partner”) whose name and principal office location are set forth on the accompanying form. Each party is collectively referred to as “Parties”, or individually as “Party”.
WHEREAS, Bizzuka has developed and owns a web-based software component system (On Demand Components and Content, a/k/a OnDeCC -- hereinafter referred to as the “Bizzuka Platform”); and Bizzuka is in the business of providing Web sites, intranets and Extranets (hereinafter referred to as a “Web Presence”) for clients and desires to retain Partner as an independent, non-exclusive Partner to secure new customers agreeing to use Bizzuka to provide these Services (hereinafter referred to as “Bizzuka Services”), and
WHEREAS, Partner desires to act as an independent, nonexclusive Partner marketing Bizzuka Services and the Bizzuka Platform. The foregoing appointment authorizes Partner to market, promote and resell access to the Bizzuka Platform and Bizzuka Services directly to clients (hereinafter referred to as “Clients”) and to be designated as an Authorized Reseller Partner.
THEREFORE, in exchange for good and valuable consideration, the receipt of which is hereby acknowledged, and in consideration of the covenants and conditions set forth herein, the parties agree as follows:
1. APPOINTMENT
1.1 Subject to Reseller’s compliance with the terms and conditions of this Agreement (including, without limitation, payment of all applicable fees pursuant to Exhibit A, Bizzuka hereby appoints Reseller as an independent non-exclusive Partner acting in capacities as defined in items 1.1.1, 1.1.2 and 1.1.3 below, and Partner hereby accepts such appointment, to promote the sale of and solicit orders from potential customers for those specific products and services set forth on Exhibit A which may be modified from time to time by Bizzuka in its sole discretion (“Services”).
1.1.1 Authorized Referral Partner – May refer clients to Bizzuka and receive commissions as outlined in Exhibit A for Bizzuka products and services rendered. Bizzuka performs all work and services for the client as outlined in Bizzuka Work Orders signed by the client and submitted by Partner.
1.1.2 Certified Reseller Partner – A Partner may become a Certified Reseller Partner by Successful completion of Bizzuka Certification Training.
1.1.2.1 The fee for the Certification Program is outlined in Exhibit A. This training is designed to help the Partner better understand how to design sites for the Bizzuka platform, help the Partner become more effective In selling Web sites, intranets and extranets, and help the Partner produce these end deliverables more efficiently and profitably.
1.1.2.2 Certified Reseller Partners receive preferential pricing on Bizzuka products and services, as well as either 1) recurring revenue from licensing the Bizzuka Platform as outlined in Exhibit A, or 2) wholesale license pricing enabling the Certified Reseller Partner to generate additional recurring revenue by reselling the monthly license fees at retail to their clients.
1.1.3 Master Reseller Partner –Must pass a rigorous training course that gives the Master Reseller Partner access to Partner’s own Web server and Enterprise License to the Bizzuka Platform. MRPs launch and implement their own Web sites and pay Bizzuka a fee based upon the number of deploys, as well as a maintenance fee. Fees for Master Reseller Certification and ongoing licensing fees are outlined in Exhibit A.
2. TERM
2.1 This Agreement shall commence when executed by both parties and shall continue in full force for a period of five (5) years unless sooner terminated by either party as provided in Section 13 herein. This Agreement will automatically renew for a successive one (1) year term unless either party provides written notice of its intent not to renew to the other party thirty (30) days prior to the expiration of the Agreement or renewal term whichever the case may be.
3. SALES, COMMISSIONS AND COSTS
3.1 Bizzuka agrees to pay Partner a commission or discount Bizzuka’s Suggested Retail Pricing for services rendered hereunder in accordance with this Agreement and Exhibit B. Bizzuka reserves the right, without establishing a precedent, to make special arrangements with Partner with respect to commissions on an individual account sale.
3.2 All orders are subject to acceptance by Bizzuka in the manner from time-to-time prescribed by Bizzuka, and Bizzuka reserves the right to refuse or reject any order or all orders from Partner for any reason. Partner shall not earn a commission or discount on any sale or order until such order has been accepted by Bizzuka.
4. PARTNER OBLIGATIONS
4.1 Partner is responsible for executing and submitting to Bizzuka all applicable Agreements. Bizzuka may update any or all Agreements from time to time, at its sole discretion, upon reasonable notice to Partner. Agreements must be executed and delivered as follows:
4.1.1 Master Services Agreement (MSA) – If Partner is submitting work to Bizzuka as per the Referral Partner arrangement as defined in Section 1.1.1, Partner shall submit the MSA fully executed by the Client in order to establish the relationship between Bizzuka and the Client. Only one MSA per client will be necessary
4.1.2 Work Orders (WO) – Partner shall promptly obtain a written and executed Work Order outlining initial design, programming or other services to be performed. Work Orders are necessary for each individual project where Bizzuka is to perform specific services for a Client or for the Reseller Partner.
4.1.2.1 Referral Partners must submit the WOs executed by the Client indicating Client’s consent to receive specific Services for each specific project.
4.1.2.2 Reseller Partners submit WOs executed by the Reseller Partner indicating the project, client name and anticipated launch date. All WOs must be accompanied with the necessary deposit or payment before Bizzuka will agree to add the Work Order to the production schedule. Reseller Partners shall be solely responsible for the initial design and content population of the Clients’ Web sites and for all on-going account related activities for the Client’s Web sites, unless a Client or Reseller Partner requests Bizzuka Services pursuant to a Work Order.
4.1.2.3 Master Reseller Partners are responsible for their own Work Orders, unless Bizzuka is specifically being engaged to perform work on behalf of the Master Reseller Partner. In these cases, a Work Order must be executed between Bizzuka and the Master Reseller Partner.
4.1.3 License Agreement (LA) – Partner shall obtain License Agreements acceptable to Bizzuka indicating the consent of each Client to license the Bizzuka Platform and executed by the Client. Partner, not Bizzuka, shall also be responsible for monitoring the use of the Web sites by the Clients to assure compliance with the LA.
4.1.3.1 Referral Partners & Reseller Partners must submit LAs to Bizzuka along with any associated WO or MSA. License Agreements must be in place before WO can be added to the production schedule. Bizzuka will be responsible for billing and collecting of fees from Clients according to the terms of the LA, unless specifically noted in the WO whereby the wholesale license fees are to be paid in advance by the Certified ResellerPartner,
4.1.3.2 Master Reseller Partners–MRP shall be responsible for billing and collecting fees from all Clients, thus a Licensing Agreement should be executed with the Client protecting Bizzuka’s Intellectual Property and naming the MRP as the billing agent.
4.1.4 Policies and Terms of Service Agreement (PTSA)– Partner will make certain that Client reads and agrees to Bizzuka’s PTSA as found on http://www.bizzuka.com/TOS.asp.
4.2 Partner agrees to:
4.2.1 Use its best efforts to diligently promote, encourage and increase the sale of Bizzuka Services;
4.2.2 Maintain a commercially reasonable level of expertise in matters relating to Bizzuka, the Services, and current Web design and development practices. This shall include, without limitation, attending training sessions, seminars and/or other reasonable and customary means of maintaining such expertise;
4.2.3 Be responsible for ensuring that each of its employees, representatives or subPartners are certified to sell and market Bizzuka Services under standards solely set by Bizzuka;
4.2.4 Have full and sole responsibility for all acts and omissions of its employees, Partners, representatives and subcontractors (“Partner Parties”), and for all matters relating to their conditions of employment or retention; and
4.2.5 Comply with all Bizzuka policies, rules, guidelines, methods and practices set forth by or required by Bizzuka from time-to-time regarding, but not limited to, order processing practices, Service methods and procedures, quality and location of advertising, placement and promotion of Bizzuka trade names and Services, and Sales Commission and Channel Conflict Policies and Procedures.
4.3 Partner agrees that Bizzuka’ Marks, goodwill and business reputation are among its most valuable assets. Partner will always employ a high degree of integrity in selling Services and will not, by act or omission, tarnish Bizzuka’s Marks, goodwill or business reputation. In addition, Partner agrees that it shall not:
4.3.1 Mislead customers either in any fashion directly or indirectly by way of advertising, oral statements, or otherwise;
4.3.2 Use Bizzuka brand to entice for bait and switch, or any similar purposes; and
4.3.3 Refer to or in any way disparage other Bizzuka Partners or employees to any potential or existing Bizzuka Client or any other third party.
4.4 Partner shall market the Bizzuka Platform and/or the Bizzuka Services for use only by Clients in the ordinary course of the Clients’ own business and not for the purpose of further resale or marketing by the Client. Partner is expressly prohibited from assigning any right to resell the Bizzuka System and/or the Bizzuka Services to any Client or Partner. IF PARTNER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 4 “PARTNER OBLIGATIONS” BIZZUKA SHALL NOTIFY PARTNER THEREOF AND RESERVES THE RIGHT TO SUSPEND ACCESS TO THE BIZZUKA PLATFORM OR SUSPEND THE PERFORMANCE OF THE BIZZUKA SERVICES IF SUCH FAILURE IS NOT REMEDIED WITHIN THIRTY (30) DAYS OF SUCH NOTICE. FAILURE OF PARTNER TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 4 “PARTNER OBLIGATIONS” SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
4.5 Master Reseller Partners are solely responsible for providing support and maintenance to the Clients. MRP Clients may not contact Bizzuka’s contact person with respect to the Bizzuka System and/or the Bizzuka Services.
5. BIZZUKA OBLIGATIONS
5.1 Bizzuka shall provide Partner a starter package of sales literature, promotional materials as well as access to the Bizzuka Partner Portal (“Promotional Materials”) pertaining to Bizzuka Services as Bizzuka deems to be appropriate to assist Partner in promoting and developing the sale and acceptance of Bizzuka Services. In addition to starter package, Bizzuka will from time-to-time furnish Partner additional materials. Bizzuka will provide the costs (if any) and procedures for ordering Promotional Materials to Partner. Partner may produce its own promotional materials, but only with the express written consent of Bizzuka.
5.2 Bizzuka agrees to:
5.2.1 Use reasonable efforts to promote, encourage and increase the sale to and acceptance by customers of Bizzuka Services through promotions, print advertising, leads distribution, public relations, marketing alliances, or any other method at Bizzuka’s sole discretion;
5.2.2 Provide, subject to applicable fees, initial training to Partner as determined by Bizzuka. Any additional training requested by Partner may be provided by Bizzuka at a cost to be published by Bizzuka. The manner, form, time, and place of training as well as the number of Partner employees being trained at any given session will be determined by Bizzuka. Travel and Expense costs will be the responsibility of the Partner; and
5.2.3 Provide on-going Partner Support including but not limited to the following functions: Work Order processing and verification, project management and follow-up on Work Order status, regular communication, customer service, billing, access to Bizzuka’s Partner Portal and other reasonable problem resolution support on behalf of Client or Partner.
5.3 Bizzuka will permit Clients to connect to and utilize the Bizzuka Platform to establish a Web presence. When applicable, Bizzuka will also design select components of a Client’s Web site pursuant to a Work Order issued by Partner. Bizzuka will perform its work in a prompt and professional manner.
5.4 Bizzuka will identify a contact person with whom Partner should communicate with respect to all matters related to Bizzuka Services. Said individual will be available at reasonable times to respond to questions, concerns and to discuss the Bizzuka Platform and/or the Bizzuka Services. Bizzuka and Bizzuka’s contact person will provide, from time to time, routine advice and direction with respect to the use of the Bizzuka Platform, but will have no duty or obligation to modify any Client’s Web site once the Web site has been accepted by the Client, except as requested through the submission of a Work Order.
5.5 Bizzuka will provide Client support and billing for Clients of Authorized Referral Partners and Certified Reseller Partners who do not elect the annual wholesale license option.
5.6 Bizzuka will remit commissions earned to Authorized Referral Partners, Authorized Reseller Partners and Certified Reseller Partners on a timely basis as outlined in Exhibit A.
5.7 IF BIZZUKA FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 5 “BIZZUKA OBLIGATIONS”, PARTNER SHALL NOTIFY BIZZUKA THEREOF AND BIZZUKA WILL HAVE THIRTY (30) DAYS TO REMEDY ANY SUCH FAILURE. FAILURE OF BIZZUKA TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 5 “BIZZUKA OBLIGATIONS” SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
6. THE PARTIES’ RELATIONSHIP
6.1 The Partner is, and will hold itself out to be, an independent contractor. At no time shall the Partner be considered an employee of Bizzuka under any circumstances. Partner shall not act as a Partner of Bizzuka except as otherwise authorized by Bizzuka herein. The Partner shall not be authorized to make any promise, warranty or representation on Bizzuka’s behalf with respect to Bizzuka Services, the Bizzuka Platform or any other matter, except as expressly authorized in writing by Bizzuka. The Partner acknowledges its sole responsibility for all applicable federal, state, and local taxes for itself and any of its employees, and agrees to indemnify and hold Bizzuka harmless from any claim or liability resulting from Partner failure to pay such applicable taxes.
6.2 Liability Insurance –Master Reseller Partners shall take out, pay for and at all time during the performance of work hereunder maintain, such public liability, workers’ compensation and other such liability insurance. Such insurance shall include comprehensive general liability, bodily injury and property damage, including automobile and broad form contractual liability, and shall include Bizzuka as an additional named insured. Master Reseller Partners must show proof of current liability insurance of at least $1,000,000.00 prior to execution of this agreement.
7. FACILITIES AND MATERIALS
7.1 Partner represents and warrants that it will maintain adequate:
7.1.1 Facilities, equipment, means of transportation, sales force, distribution capabilities and business office and clerical staff necessary to promote the sale of Services as required by this Agreement; and
7.1.2 Computer facilities email address and personnel capable of transmitting to and receiving from Bizzuka electronic data via phone lines or other access methods and at costs mutually agreed to by the parties. Bizzuka reserves the right to obtain access to Partner facilities to examine facilities and materials during Partner regular business hours.
8. OWNERSHIP AND LICENSE OF THE BIZZUKA PLATFORM
8.1 Bizzuka owns all rights to the operational source code of the Bizzuka Platform and its elements. Neither Partner nor the Clients have any ownership rights in the operation source code of the Platform. Partner is granted a license to market, promote and resell the Bizzuka Services and the Bizzuka Platform. Clients shall be granted a license to use the Bizzuka Platform as outlined in the Bizzuka License Agreement.
8.2 Certain graphical elements made expressly on a Client’s behalf may be considered work for hire, and the Client owns all rights to those elements and to any content published within the Client’s Web Presence.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Bizzuka owns all worldwide right, title and interest in and to the Bizzuka Platform and the Bizzuka Services, including all Intellectual Property Rights therein. Nothing in this Agreement or otherwise will be deemed to grant Partner or Clients an ownership interest in the Bizzuka Platform and/or the Bizzuka Services, in whole or in part. For purposes of the foregoing, “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world
10. CONFIDENTIAL INFORMATION
10.1 Bizzuka and Partner both acknowledge that in the course of this Agreement, each party may have access to the other’s Confidential Information. “Confidential Information” as used herein means any and all information not generally known to the public, in written, oral or any other form.
10.2 Each party hereby agrees that during the term of this Agreement and for five (5) years after the termination of this Agreement, it will not make any Confidential Information available to any third party and will not use the other’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, and in any event each party shall use the same prudent practice in preserving this information as it does to preserve its own Confidential Information. The foregoing obligations will not restrict either party from disclosing the other’s Confidential Information or the terms and conditions of this Agreement pursuant to the order or requirement of a court or other governmental body, provided that the party required to make such disclosure gives prompt notice to the other party to enable it to contest such order or requirement.
11. DISCLAIMER OF WARRANTIES AND LIMITIATIONS OF LIABILITIES
11.1 BIZZUKA DOES NOT WARRANT OR REPRESENT THAT ANY OF ITS WORK SHALL BE SUCCESSFUL IN CREATING ANY SALES OR INCOME FOR CLIENTS. BIZZUKA EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS AND MERCHANTABILITY. BIZZUKA DOES NOT OWN OR CONTROL THE INTERNET OR THE WORLD WIDE WEB AND DOES NOT WARRANT THAT PARTNER OR ANY CLIENT SHALL BE ABLE TO ACCESS THE INTERNET OR THE WORLD WIDE WEB, THE WEB SITE OR BIZZUKA’S SERVERS DUE TO EVENTS OR CONDITIONS BEYOND THE CONTROL OF BIZZUKA. BIZZUKA IS NOT RESPONSIBLE FOR THE ACTIONS OF THIRD PARTIES THAT MAY DAMAGE, DEGRADE OR RENDER INACCESSIBLE THE INTERNET, THE WORLD WIDE WEB, BIZZUKA’S SERVERS, PARTNER’S OR ANY CLIENT’S COMPUTER HARDWARE, SOFTWARE OR TELECOMMUNICATIONS FACILITIES. BIZZUKA IS NOT RESPONSIBLE FOR THE ACTIONS OF PARTNER OR ANY CLIENT OR THEIR RESPECTIVE AGENTS, EMPLOYEES OR CONTRACTORS. BIZZUKA IS NOT RESPONSIBLE FOR EVALUATING THE SUITABILITY OF ANY CLIENT’S COMPUTERS AND TELECOMMUNICATION TECHNOLOGY AND HAS NO RESPONSIBILITY FOR DEFECTS OR DEFICIENCES IN SAID COMPONENTS. THE BIZZUKA SYSTEM, ANY WEB SITE THEREON AND ANY OTHER WORK OR SERVICES PERFORMED BY BIZZUKA ARE PROVIDED “AS IS”, AND BIZZUKA EXPRESSLY DISCLAIMS ALL WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED. BIZZUKA IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY INDIRECT COMPENSATORY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR COSTS OF ANY CHARACTER. PARTNER AND ANY CLIENTS’S SOLE AND EXCLUSIVE REMEDY IS LIMITED TO THE RECOVERY OF THE FEES PAID BY PARTNER TO BIZZUKA. THE UTILIZATION OF ANY DATA OR INFORMATION RECEIVED BY BIZZUKA IS AT PARTNER’S AND ANY CLIENTS’S SOLE AND ABSOLUTE RISK. BIZZUKA SPECIFICALLY DISCLAIMS AND DENIES ANY RESPONSIBLITY FOR THE COMPLETENESS, ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THE SERVICES AND PRODUCTS PROVIDED BY BIZZUKA.
11.2 Partner expressly agrees to forebear, withhold, disavow and disclaim any and all warranties or other liabilities—whether statutory, express or implied—to all Clients in the same manner as is set forth by the Disclaimer of Warranties and Limitations of Liabilities found in Section 11.1 of this Agreement.
12. INDEMNITY
12.1 Indemnity by Bizzuka: Bizzuka, at its expense, shall indemnify, defend and hold harmless Partner from any losses, costs and damages arising from a claim by a third party against Partner that the Bizzuka Platform and/or Bizzuka Services, or any part thereof, infringed upon any United States intellectual property or proprietary rights of such third party or misappropriated any protected trade secret of such third party. Bizzuka’s obligations under this Section 12.1 “Indemnity by Bizzuka” are subject to Partner providing Bizzuka with (1) prompt written notice of the claim, (2) sole control over the defense or settlement, (3) reasonable support and cooperation with regard to the defense. In the event that Bizzuka’s right to provide access to the Bizzuka Platform or to provide the Bizzuka Services is enjoined or in Bizzuka’s reasonable opinion is likely to be enjoined, Bizzuka may, at its expense, replace or modify the Bizzuka Platform and/or the Bizzuka Services so that they become non-infringing but remain functionally equivalent, or if such remedies are not reasonably available, terminate this Master Partner Agreement without liability to the Partner. Notwithstanding the foregoing, Bizzuka will have no liability for a claim of any kind to the extent it results from the following (each being an “Indemnity Exclusion”): (1) the combination, operation or use of the Bizzuka Platform and/or the Bizzuka Services with equipment, devices, software or data not supplied by Bizzuka, if a claim would not have occurred buy for such combination, operation or use; or (2) Partner’s use or resale of the Bizzuka Platform and/or the Bizzuka Services other than in accordance with this Agreement.
12.2 Indemnity by Partner: Partner will defend any action or proceeding brought against Bizzuka and will indemnify and hold Bizzuka harmless from and against any liability, damages and expenses (including court costs and reasonable attorneys’ fees) to the extent arising out of or resulting from any third-party claim based on or otherwise attributable to: (1) any of Partner’s own Agreements with a Client (other than those described in Section 13.2 “Indemnity by Partner”); (2) any representation or warranties made by Partner to any third party; (3) any Indemnity Exclusion (as defined above); (4) any misrepresentation made by Partner with respect to the Bizzuka Platform and/or the Bizzuka Services; or (5) any act, omission, incident of conduct, incident of misconduct, representation and/or warranty made by Partner.
12.3 Attorneys’ Fees: In the event that Bizzuka is the prevailing party in respect to any lawsuit, claim or action regarding or relating to this Agreement or to the transactions or relations of the parties to this Agreement, Partner will pay Bizzuka’s reasonable attorneys’ fees, costs and expenses. In the event that Partner is the prevailing party in respect to any lawsuit, claim or action regarding or relating to this Agreement or to the transactions or relations of the parties to this Agreement, Bizzuka will pay Partner’s reasonable attorneys’ fees, costs and expenses.
13. TERMINATION
13.1 Five (5) years after the execution of this Agreement, either party may terminate the Agreement without cause upon the provision of ninety (90) days written notice in conformity with Section 21 “Notice”.
13.2 Partner may terminate this agreement at any time within the first five (5) years of the agreement without cause upon the provision of ninety (90) days written notice in conformity with Section 21 “Notice”.
13.3 In the event Partner fails to pay Bizzuka pursuant to the terms of this Agreement as set forth in Exhibit A, Section 5 “Partner Fees”, or otherwise is in default of this Agreement, Bizzuka may, at its sole discretion, terminate this Agreement and discontinue access to the Bizzuka Platform. In such event, all payments due from Partner for fees shall immediately become due and payable.
13.4 Partner may terminate this agreement upon failure of Bizzuka to meet any of its responsibilities under this Agreement as set forth in Section 5 “Bizzuka Obligations” and Bizzuka’s failure to remedy such failure within thirty (30) days following written notice from Partner.
13.5 Upon termination, Partner will only be required to pay Bizzuka for work performed up until the termination date according to the hourly rates set forth in any Advanced Services Work Order and for the monthly license fee for the month in which the termination occurred. Upon receipt of payment, Bizzuka will return to Partner all files, graphics, content and graphical elements created expressly for the Clients and other items provided to Bizzuka by Partner for publishing on the Web sites.
13.6 Bizzuka may, upon notice to Partner, immediately terminate this Agreement in whole or in part in the event:
13.6.1 Partner fails to pay Bizzuka pursuant to the terms of this Agreement as set forth in Exhibit A, Section 5 “Partner Fees”,
13.6.2 Partner commits a breach of any term or condition of this Agreement and fails to cure such breach after five (5) days written notice;
13.6.3 Partner assigns this Agreement for the benefit of creditors;
13.6.4 Partner’s company dissolves, or is no longer in business as a going concern;
13.6.5 Partner attempts to assign this agreement to a third party person or entity without Bizzuka’s prior written consent;
13.6.6 Partner sells, transfers, or relinquishes more than 50% of Partner’s interest in the ownership of the Partner entity without the prior written consent of Bizzuka; or
13.6.7 any Misdeed (as defined in Exhibit ). The parties agree that a termination under this Section 13.5 shall be deemed a termination for cause.
13.7 Upon termination of this Agreement for any reason, the Partner shall not be authorized to sell Services and shall a). Remove and return to Bizzuka any material, including but not limited to; manuals, catalogues, brochures, advertising copy, and training material, promotions, compensation schedules, planning programs, leads and customer names and addresses; and b). Remove and discontinue the use of any sign or any other designation containing any Bizzuka trademarks or trade names. Should such trademarks or trade names be printed on any of the Partner’s letterhead or other written documents, the written documents shall be destroyed.
13.8 Upon termination of this Agreement, Bizzuka, at its sole discretion, may immediately designate itself or another Partner to act as successor to Partner in providing Bizzuka Services to potential customers who have expressed an interest in Services with Bizzuka, as well as those customers whose contracts with Bizzuka are in term.
13.9 Upon termination of this Agreement, commission on Recurring Revenue shall cease, and any commission residuals on projects still under construction shall be paid once the project is complete and has been paid in full by the client.
14. PROHIBITED CUSTOMER – EMPLOYEE CONTACTS
14.1 Partner agrees that:
14.1.1 During the term of this Agreement and for one (1) year after the termination for any reason of this Agreement, Partner, its employees, Partners, its directors, officers and shareholders collectively and individually, shall not, directly or indirectly, solicit or contact: (i) any person or entity (including any Client) for the purpose of soliciting or inducing them to modify or terminate their business relationship with Bizzuka; (ii) any person or entity that Partner knows or reasonably should know is actively engaged in communications with any other Bizzuka representative for the purpose of securing Bizzuka Clients or orders; or (iii) any employees, Partners, consultants, contractors or representatives of Bizzuka for the purpose of encouraging or inducing any of them to terminate their employment or business relationships with Bizzuka.
14.1.2 The purpose of this Section is to protect Bizzuka’s Client relationships and Bizzuka Client information. Partner agrees that these covenants are necessary to protect Bizzuka’s legitimate business interests. Notwithstanding the above however, Partner shall be allowed to solicit new services to existing customer on products that may or may not be provisioned by Bizzuka. If Customer solicits new business or Services provided by Bizzuka, Partner shall give Bizzuka a right of first refusal to service the customer and meet any competing firm price offered by a competitor.
14.2 Bizzuka agrees that:
14.2.1 During the term of this Agreement and for one (1) year after the termination for any reason of this Agreement, Bizzuka, its employees, Partners, its directors, officers and shareholders collectively and individually, shall not, directly or indirectly, solicit or contact: (i) any person or entity (including any Client) for the purpose of soliciting or inducing them to modify or terminate their business relationship with Partner; (ii) any person or entity that Bizzuka knows or reasonably should know is actively engaged in communications with any other Partner representative for the purpose of securing Partner’s Clients or orders; or (iii) any employees, consultants, contractors or representatives of Partner for the purpose of encouraging or inducing any of them to terminate their employment or business relationships with Partner.
14.2.2 The purpose of this Section is to protect Partner’s Client relationships and Partner’s Clients’ information. Bizzuka agrees that these covenants are necessary to protect Partner’s legitimate business interests. Notwithstanding the above however, Bizzuka shall be allowed to solicit new services to existing Client on products that may or may not be provisioned by Partner. If Client solicits Bizzuka to propose new business or Services that could potentially be provided by Partner, Bizzuka shall give Partner a right of first refusal to service the customer and meet any competing price offered by Bizzuka.
14.3 Both Partner and Bizzuka jointly acknowledge and agree that the remedy at law for any breach, or threatened breach, of any of the provisions of this Section 14 will be inadequate, and that they shall in addition to any other right or remedies which they may have, be entitled to such equitable and injunctive relief as may be available from any court of competent jurisdiction for any violation of these provisions. In the event that any of the provisions of this Section shall be determined by a court of competent jurisdiction to be in violation of applicable law for any reason whatsoever, then any such provision or provisions shall not be deemed to be void, but shall be deemed to be automatically amended so as to comply with applicable law.
15. ASSIGNMENT
15.1 Bizzuka may assign its rights or obligations under this Agreement to a third party upon written notice to the Partner.
15.2 Partner acknowledges and agrees that Bizzuka may employ the services of independent contractors or other third parties in the performance of Bizzuka’s duties and obligations under this or other Agreements.
16. CHOICE OF LAWS AND CHOICE OF FORUM
This Agreement shall be governed by the laws of the state of Louisiana, except that the parties waive the application of Louisiana’s choice of laws rules so that, in all cases, the substantive law of the state of Louisiana shall govern the terms and conditions of this Agreement. Partner acknowledges and agrees that this agreement has been entered into in the state of Louisiana, and that by entering into this Agreement, Partner has subjected itself to the subject matter and personal jurisdiction of the courts of the state of Louisiana and the United States District Courts in the state of Louisiana. Partner consents to the jurisdiction of the Louisiana courts, and waives any objection, which the Partner has or may have to the venue of the Louisiana courts. The sole and exclusive forums for the assertion of claims or pursuit of litigation regarding or related to this Agreement or to the dealings or relations of the parties to this Agreement shall be the state courts of competent jurisdiction of Lafayette Parish, Louisiana.
17. SEVERABILITY
In for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
18. SURVIVAL
The rights and obligations of Bizzuka and Partner contained in this Section and in Section 10 “Confidential Information”, Section 11 “Disclaimer of Warranties and Limitations of Liabilities” and Section 12 “Indemnity” shall survive termination of this Agreement.
19. WAIVER
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
20. AMENDMENT
Modifications and amendments to this Agreement shall be invalid unless made in writing that is signed by a duly authorized officer of each party hereto.
21. NOTICE
All notices required to be sent under this Agreement must be in writing and shall be delivered in person or shall be sent by Certified U.S. mail, return receipt requested or by equivalent overnight express delivery service, signature required, to Partner at its primary place of business and to Bizzuka at the address below:
Bizzuka, Inc.
c/o John W. Munsell, CEO
105 Chapel Drive
Lafayette, LA 70506
Notice shall be deemed to have been given upon the date actually delivered in person, delivered by Certified U.S. mail or delivered by overnight express delivery service.
22. ENTIRE AGREEMENT
This Agreement is the entire agreement between the parties, and all representations, discussions or agreements are merged into and superseded by this Agreement.