This Agreement (the "Agreement") is made and entered into as of the current date
("Effective Date"), by and between NetVoyage Corporation, a Utah Corporation
doing business as NetDocuments ("NetDocuments") with principal offices located
at ParkView Plaza, 625 South State Street, Orem, Utah 84058, and applying
Partner ("Affiliate Partner" or "AP").
WHEREAS, NetDocuments is
engaged in the business of developing, producing, subscribing, and hosting SaaS
(Software-as-a- Service) Document Management Services, including management,
repository and Web-based services software and associated products, systems,
services and documentation, known together as the NetDocuments Service, and
providing such services through its Web site at http://www.netdocuments.com.
WHEREAS, among other things,
AP is knowledgeable and influential in markets where the AP currently competes,
and is desirous to become a NetDocuments AP to assist NetDocuments in finding
and servicing customers in the said markets.
NOW, THEREFORE, in consideration of the mutual covenants set forth below
and for other good and valuable consideration, the parties agree as follows:
1.
Definitions
1.1.
"NetDocuments Service" means those hosted Web
services, more fully described and available at http://www.netdocuments.com, and
which include applications software, updates, maintenance, and Help Desk Support offered by NetDocuments.
1.2.
"NetDocuments Site" means the NetDocuments branded Web site
located at http://www.netdocuments.com,
including NDConnect.
1.3.
"Customers" means users of the
NetDocuments Service, including all service accounts (internal and external)
purchased by a Customer who is (i) in the said markets and (ii) subscribed to
the NetDocuments Service and approved by NetDocuments.
1.4. "Commission" means payment from
NetDocuments to AP for a Customer that AP referred to NetDocuments, according to
lead registration procedures outlined by NetDocuments, and where the lead
resulted in the sale of subscriptions to the NetDocuments Service.
2.
NetDocuments Rights
and Obligations
2.1.
NetDocuments shall provide the NetDocuments Service to Customers who purchase
subscriptions to the NetDocuments Service and who have executed a NetDocuments
Service Agreement. At the discretion of NetDocuments the NetDocuments Service
may be modified from time to time to include additional features and
modifications. NetDocuments shall, via email, Web-based seminars, and the
NetDocuments Site keep AP and Customers fully and timely informed of service
enhancements, new versions of the NetDocuments Service offered hereunder, and
developments that may affect Customers' use of the NetDocuments Service.
2.2.
NetDocuments shall, at its sole expense, provide the NetDocuments Service,
including hardware, software, infrastructure, connectivity, engineering, Help
Desk Support, and customer service for Customers who have subscribed to the
NetDocuments Service offered hereunder.
2.3.
NetDocuments shall provide Help Desk Support to Customers as more fully described on the
NetDocuments Site.
3. AP Rights, Obligations and
Qualifications
3.1.
AP shall, at its sole expense; find and
refer prospective Customers to NetDocuments.
3.2.
AP shall execute a AP Agreement.
3.3.
AP may promote NetDocuments during the
term of this Agreement as follows:
3.3.1.
Subject to approval by NetDocuments,
issue a press release.
3.3.2.
Grant the right for NetDocuments to
reference AP in NetDocuments' marketing materials and on NetDocuments Site; and
3.3.3.
Announce the NetDocuments Service in
AP's relevant marketing and promotional materials.
3.4.
The relationship between NetDocuments
and AP created by this Agreement and the rights and obligations hereunder shall
be confidential and non-exclusive to both parties.
3.5.
Commission payments shall be made on the following schedule: twenty percent
(20%) on net receipts of subscriptions to the NetDocuments Service for the first
twelve (12) months following the Effective Date of a NetDocuments Service
Agreement, net of refunds actually given, credits provided, or royalties paid
for Third-Party Services. The Commission
shall be paid within thirty (60) days of receipt by NetDocuments of the first
Subscription Fee from a Customer.
3.6.
In order to qualify for a Commission, AP must
comply with the following requirements: (i) have made an explicit, written
referral of Customer to NetDocuments submitted through the NetDocuments online
lead registration form,; (ii) have the written or documented verbal endorsement
and support of prospective Customer during their
evaluation of the NetDocuments Service, or schedule and facilitate the initial introduction of
the lead to the AP's assigned NetDocuments sales representative ; (iii)
in conjunction with NetDocuments, remain actively promoting and promoting NetDocuments to
prospects throughout the sales
process until prospect is registered for the NetDocuments
Service; (iv); a Customer for which a Finder's Fee is paid to
AP must have executed a NetDocuments Service Agreement with NetDocuments within twelve (12)
months of submitting the lead registration form.
3.7.
The NetDocuments Price List is
available at the NetDocuments web site.
4.
Term and Termination
4.1.
This Agreement shall have an initial
term of one (1) year ("Initial Term") and shall thereafter be renewable for
successive annual terms upon written notice (email okay) evidencing mutual
agreement to continue this Agreement for another year. At any time during the Initial Term or
successive terms, this Agreement is subject to at-will termination by either
party, which shall be effective upon receipt of a written notice of termination
by the terminating party.
4.2.
Notwithstanding Section 5.1 above, this
Agreement may be terminated by either party for cause, whether during the Term,
in the event the other party: (i) materially breaches this Agreement or, in its
performance hereunder, violates applicable law; (ii) files a voluntary petition
in bankruptcy, or has an involuntary petition in bankruptcy filed against it
which remains in effect for sixty (60) or more days; or (iii) is declared
insolvent, makes an assignment for the benefit of creditors, appoints a
receiver, conservator, or trustee to operate its business, or liquidates all or
substantially all of its business assets, or the equivalent of any of the
foregoing. The party terminating this
Agreement for cause shall give the other party prior written notice specifying
all reasons for the termination.
Termination for cause shall take effect on the thirty-first (31st)
day following receipt of a written notice from the other party, unless the other
party prior thereto fully corrects the reason(s) for termination set forth in
the notice.
4.3.
After written notice of termination has
been given (whether for cause or at will), the parties shall do the following:
4.3.1.
Within thirty (30) days after the Termination Date, AP shall (i) dismantle
any and all links on its Web site pages to and from NetDocuments Site; and (ii)
remove any branded feature of NetDocuments or the NetDocuments Service from its
Web site pages; and
4.3.2.
Within thirty (30) days after the Termination Date, NetDocuments shall (i)
Dismantle any and all links (including links on any of the NetDocuments Service
pages and NetDocuments Site) to and from AP's Web site pages, and (ii) remove
any and all AP's brand features from the NetDocuments Site .
4.4.
In the event this Agreement is
terminated (whether at will or for cause), all license rights herein granted by
NetDocuments to AP and by AP to NetDocuments shall be deemed automatically
terminated and fully re-conveyed to the licensor thereof on the thirty-first
(31st) day after the Termination Date.
4.5.
AP shall neither have nor at any time
attempt to acquire any proprietary interest or other rights in and to the
NetDocuments Service.
4.6.
Except as otherwise provided in this
Agreement, AP shall not copy, modify, sublicense, distribute, rent, lease,
convey, translate or disassemble any portion of the NetDocuments Service and
related technology.
5.
Fees, Charges, Records, and the Use of NetDocuments
5.1.
NetDocuments will pay AP a Commission
as more fully described in paragraph 3.6 of this Agreement.
5.2.
NetDocuments reserves the right to change the NetDocuments Price List at any
time. It is AP's responsibility to be informed of
pricing, which is on the NetDocuments web site.
5.3.
The parties shall maintain complete and
accurate accounting records, in accordance with generally accepted accounting
practices, to support and document amounts due and will retain such records for
three (3) years after payment is made. A party shall, upon written request of the
other party, provide audit access to such records to a mutually acceptable
independent accounting firm that is chosen and compensated by the other party.
Such access shall be granted only during normal business hours and no more
frequently than once in each calendar year.
The audit shall not interfere with the audited party's normal business activity.
The accounting firm shall be required to hold all information received
during the audit in confidence and will be authorized to report to the other
party only the amount of payments actually due under the Agreement for the
period examined.
9.
General
9.1.
Relationship of the
Parties. The parties hereto acknowledge and agree that,
under this Agreement, they are both independent contractors, and that neither
shall at any time be considered, or represent itself to be, an agent, employee,
associate, or joint venture party.
Except as expressly provided in this Agreement, neither party shall have
the authority nor hold itself out to bind the other party to any contract or
commitment, nor shall either party be responsible for the acts or omissions of
the other.
9.2.
No Conflicts. NetDocuments and AP each represent and warrant
to the other that neither the execution nor delivery of this Agreement, nor
performance of its obligations hereunder, will conflict with, or result in a
breach of any term, condition, or provision of, or constitute a default under,
any law, obligation, contract, covenant, or instrument to which it is a party or
under which it is bound.
9.3.
Notices. Any and all notices, demands, or other
communications required or desired to be given hereunder by any party shall be
in writing and shall be given in the following manner and be deemed given as
follows: (i) if by personal delivery, on the date of receipt by the intended
recipient; (ii) if by private courier or by Express Mail or certified or Free
mail, postage prepaid and return receipt requested (as applicable), on the date
of first attempted delivery (whether successful or not) to the intended
recipient's last known address; or (iii) if by fax or email, on the date of
written acknowledgement of receipt from the intended recipient. All notices hereunder shall be addressed as
follows:
If to NetDocuments:
NetDocuments
ParkView Plaza
625 South State Street
Orem,
Utah
84058
Attention: Kenneth W. Duncan, CEO
E-mail: ken@netdocuments.com
Fax: 801.226.6933.
Each party shall be
responsible for providing the other party with timely written notice of any
change in its address to which notices hereunder shall be sent.
9.4.
Assignment. Neither party to this Agreement may assign or
otherwise transfer any of its rights or obligations under this Agreement without
the prior written consent of the other party. Notwithstanding the foregoing,
either party may assign or otherwise transfer any or all of its rights or
obligations under this Agreement to a parent, subsidiary company or to a
successor-in-interest, without the prior consent of and upon written notice
given to the other party.
9.5.
Ambiguities. Each party and its legal counsel have reviewed
this Agreement. Any rule of construction to the effect that ambiguities are to
be resolved against the drafting party shall not apply in interpreting this
Agreement.
9.6.
Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
9.7.
Applicable Law. This Agreement shall be understood and
interpreted according to the laws of the State of Utah.
9.8.
Entire Agreement. This Agreement constitutes the entire
understanding and agreement of the parties relating to the subject matter
hereof, and supersedes all prior or contemporaneous agreements and
understandings, whether written or oral.
Both parties acknowledge and agree that neither of them has entered into
this Agreement on the basis of any representations or promises not expressly
contained herein.
ND: 4818-8814-5926, v. 14818-8814-5926,
v. 14818-8814-5926, v. 14818-8814-5926, v. 14824-0332-0067, v. 1 (updated July 15, 2010)
