CHANNEL PARTNER AGREEMENT THIS AGREEMENT made effective as of the _____ day of ______________, _______ by and between: SERVICE PROVIDER: CHANNEL PARTNER: Phase 2 Holdings, LLC. dba Phase 2 International [Name of Channel Partner] 900 Fort Street Mall, Suite 1450 [address] Honolulu, Hawaii 96813 [city / state / zip] Channel Partner Manager: Gina K. Gray [name of contact person] 808‐550‐2739 Ext: 208 [phone number] 808‐748‐0222 [fax number]
[email protected] [email] WHEREAS: A.
Service Provider offers software as a service (“SaaS”), hosted products. (collectively, the “Services”);
B.
Channel Partner desires to sell the Services on the terms and conditions set forth in this Agreement, and shall use its best efforts to market, promote and solicit orders for the Services;
C.
Service Provider desires to grant Channel Partner the non‐exclusive right to market, promote and solicit orders for Services which Service Provider provides directly and Services for which other service providers have given Service Provider the right to market, promote and solicit orders;
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows: 1. Appointment 1.1 Service Provider hereby appoints Channel Partner as an authorized representative of Service Provider, to obtain orders for the Services described in Schedule A hereto, upon the terms and conditions set out in this Agreement and at the rates and commissions set out in Schedule B hereto, all of which Schedules are attached to this Agreement and made a part hereof by reference. 1.2 Channel Partner’s appointment as an authorized representative hereunder is non‐exclusive, and Service Provider retains the right to offer the same or additional or alternate Services through Service Provider’s employees or other persons that Service Provider may appoint at any time and from time to time. 1.3 Channel Partner understands that its appointment as an authorized representative of Service Provider may be subject to exclusive relationships which Service Provider may have entered into with other persons or firms. 1.4 Channel Partner may only use the marketing and promotional materials which have been authorized by the Service Provider in advance of such use.
2.
Term and Termination of Agreement
2.1 Subject to earlier termination as hereinafter provided, the Term of this Agreement will be for a period of five (5) years from the date of acceptance by Service Provider. This Agreement can be renewed or extended upon mutual agreement of the Service Provider and Channel Partner. 2.2 Either party may terminate this Agreement by giving the other party thirty (30) days’ prior written notice. 2.3 Service Provider may terminate this Agreement effective immediately in the event of: (a)
the insolvency, bankruptcy, receivership or dissolution of Channel Partner;
(b)
any actual or attempted assignment to a third party by Channel Partner of this Agreement or any of its duties or obligations hereunder without prior written consent of Service Provider;
(c)
any breach or threatened breach by Channel Partner of any provision of this Agreement;
(d)
any misrepresentation made by Channel Partner to a customer or prospective customer; or
(e) 2.4 (a)
if Channel Partner is an individual, the death or incapacity of Channel Partner.
(b)
(c) 3.
Upon expiration or termination of this Agreement: both Service Provider and Channel Partner shall immediately discontinue all representations or statements from which it might reasonably be inferred that any relationship exists between the Service Provider and the Channel Partner. both Service Provider and Channel Partner agree not to act in any way to damage the reputation of the other party’s products or services, and Channel Partner shall cease to promote, solicit or procure orders for any of the SaaS Applications. Submission of Orders
3.1 Orders obtained by Channel Partner on behalf of Service Provider are to be submitted to Service Provider according to the procedures specified and using the online payment portal provided by Service Provider. Service Provider may change its order submission procedures and forms from time to time, and Service Provider agrees to provide Channel Partner with reasonable written notice of any such change at least one (1) week prior to the effective date of such change. 3.2 Channel Partner will be solely responsible for the validity of the orders it submits and the accuracy and completeness of the customer information contained in such orders. Channel Partner understands and acknowledges that inaccurate information may result in delays in processing orders. 3.3 All customer orders are subject to Service Provider’s final approval. Service Provider may for any reason reject any customer order obtained by Channel Partner and may discontinue offering or selling any Service to any customer at any time without incurring liability to Channel Partner.
4.
Commissions
4.1 During the term of this Agreement, Service Provider will pay commissions on Channel Partner’s customer accounts in accordance with the commission rates set out in Schedule B hereto. The payment of such commissions is Service Provider’s only obligation to Channel Partner hereunder. 4.2 Service Provider shall be under no obligation to pay Channel Partner commissions on any of its customer accounts in the following instances: (a)
following termination of this Agreement by Service Provider as set out in Section 2.3;
(b)
if Channel Partner contacts an existing customer of Service Provider in violation of Section 5 of this Agreement;
(c)
if the customer account falls thirty (30) days past due or credit card has expired, is no longer valid or has been declined.
5.
Contact with Existing Service Provider Customers
5.1 Channel Partner agrees that it will us reasonable efforts to avoid contacting any existing customers of Service Provider for the purpose of inducing them to switch to another provider of similar services. 5.2 In the event that Channel Partner willfully contacts a customer in violation of this Section 5, Service Provider may suffer the consequences. Therefore, Channel Partner agrees that in addition to any other damage which may be available to Service Provider (including financial and injunctive relief), this Agreement may be terminated and Service Providers obligation to pay Channel Partner any commissions hereunder will cease upon such termination. 6. Independent Contractor 7.1 Channel Partner hereby acknowledges that it is an independent contractor and not an employee, partner, joint venturer, representative or franchisee of or with Service Provider. Channel Partner will have total control of the management of its business, subject to the provisions of this Agreement. 7.2 Channel Partner shall have no authority to enter into any agreement on behalf of Service Provider or otherwise obligate Service Provider without Service Provider’s prior written approval, which Service Provider may withhold for any reason. 7. Expenses, Fees & Taxes 8.1 All expenses incurred by Channel Partner in connection with performance of its duties under this Agreement will be solely the responsibility of Channel Partner. 8. Confidentiality 9.1 Channel Partner acknowledges that in performance of its duties under this Agreement, it may have access to confidential information belonging to or relating to Service Provider. With respect to all
such information and any other information that Service Providers may treat as confidential, Channel Partner agrees that such confidential information will: (a)
remain the exclusive property of the owner of such confidential information;
(b)
not be copied, published or disclosed by Channel Partner to others;
(c)
be used solely in the performance of Channel Partner’s duties and obligations under this Agreement; and
(d) 9.
be returned to Service Provider within thirty (30) days of termination of this Agreement. Limitation of Service Provider’s Liability
10.1 SERVICE PROVIDER WILL NOT BE LIABLE TO CHANNEL PARTNER WITH RESPECT TO THIS AGREEMENT EXCEPT IN THE EVENT OF SERVICE PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. SERVICE PROVIDER WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND. SERVICE PROVIDER WILL HAVE NO LIABILITY TO CHANNEL PARTNER FOR COMMISSIONS WHICH MIGHT HAVE BEEN EARNED UNDER THIS AGREEMENT BUT FOR THE INABILITY OR FAILURE OF SERVICE PROVIDER OR PROVIDERS TO PROVIDE SERVICES TO ANY PERSON SOLICITED BY CHANNEL PARTNER, OR IN THE EVENT OF DISCONTINUATION OR MODIFICATION OF THE SERVICES THAT CHANNEL PARTNER IS AUTHORIZED TO SELL. 10. Indemnification 11.1 Channel Partner hereby agrees to indemnify and hold harmless Service Provider and their affiliates, and their respective officers, directors, partners, agents, shareholders, employees, channel partners, successors, assigns and independent contractors, from and against all loss, claims, damages, liabilities or expenses of any kind whatsoever (including but not limited to reasonable attorney’s fees and costs) arising out of Channel Partner’s acts or omissions or those of its officers, directors, partners, shareholders or employees (if any), including, but not limited to, misrepresentation of Service Provider’s Services or prices. Channel Partner agrees to promptly defend against any of these losses, claims, damages, liabilities or expenses but will not settle without consulting Service Provider and obtaining its prior written consent. Channel Partner will allow Service Provider to participate, through separate counsel, in the defense of any such loss, claim or other action, provided that the costs of such defense are borne by Service Provider. 11. Notices 12.1 Any notice required or permitted to be given hereunder will be sent to the addresses or facsimile numbers of the parties as set forth in this Agreement, unless either party notifies the other in writing of a change of address or facsimile number. 12.2 Any notice given hereunder will be effective and deemed delivered: (a)
if sent by certified mail, return receipt requested, three (3) business days after posting with the United States Postal Service;
(b)
if sent by overnight courier or personal delivery, on the date of delivery as evidenced by the signature obtained by the delivery person;
(c)
12.
if sent by fax transmission, on the date of the sender’s electronic confirmation of receipt, except where such transmission is outside of normal business hours or on a day which is not a regular business day, in which case receipt shall be deemed to be on the next following business day. Miscellaneous Provisions
13.1 Assignment. Neither this Agreement nor any of the rights, duties or obligations of Channel Partner hereunder shall be assignable by Channel Partner without the prior written consent of Service Provider, which may be withheld in Service Provider’s sole and absolute discretion. 13.2 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Hawaii, without regard to the choice of law principles thereof. Any legal actions, claims or demands shall be handled in a court of competent jurisdiction within the State of Hawaii. 13.3 Arbitration. The parties agree that any dispute arising between them with respect to this Agreement and/or any customer accounts serviced by Service Provider or Channel Partner which cannot be settled by negotiation shall be resolved by arbitration. Such arbitration shall be conducted according to the commercial arbitration rules then in effect of the American Arbitration Association in the State of Hawaii. Either party may initiate arbitration by serving notice upon the other party. The arbitrator’s decision and any award the arbitrator makes shall be final and binding on the parties and judgment on any such award may be entered in any court of competent jurisdiction. 13.4 Attorneys’ Fees. If either party hereto resorts to legal action, including arbitration, in order to enforce, defend or interpret any of the terms or provisions of this Agreement, the prevailing party shall be entitled to receive, in addition to such other remedies as shall be awarded to it in such legal action, reimbursement from the non‐prevailing party for all attorneys’ fees and all other costs incurred in commencing, maintaining or defending such legal action. In addition, the prevailing party (as determined by the arbitrator in any arbitration proceeding) shall be entitled to recover from the non‐ prevailing party post‐judgment attorneys’ fees incurred in enforcing a judgment against the non‐ prevailing party. 13.5 Force Majeure. Neither party shall be responsible for, nor shall either party be considered in breach or default of this Agreement, on account of any failure to perform or delay in the performance of any obligation hereunder caused by an act of God, flood, fire, storm, earthquake, war, act of terrorism, insurrection, riot, labor disturbance (including strike and lockout), equipment malfunction, computer hacker, cut wire or fiber, governmental regulation or interference or other events not within the reasonable control of such party and which such party is unable to overcome by the exercise of reasonable diligence. 13.6 Entire Agreement. This Agreement and the Schedules attached hereto constitute the entire agreement between the parties to this Agreement pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties and there are no warranties, representations or other agreements between the parties in connection with the subject matter of this Agreement except as specifically set forth herein. 13.7 Amendments. Except for ordering procedures and order forms, which Service Provider may change at any time, this Agreement cannot be amended or modified except by an instrument in writing duly signed by an authorized representative of each of the parties.
13.8 Standard of Conduct. In the performance of its obligations under this Agreement, Channel Partner will observe the highest level of integrity and fair dealing and will do nothing to discredit, dishonor, reflect adversely upon or in any way injure the reputation or business of Service Provider. 13.9 Severability. If any of the provisions of this Agreement shall be held to be indefinite, invalid, illegal or otherwise unenforceable, in whole or in part, for any reason, by any court of competent jurisdiction, the remainder of the provisions of this Agreement shall continue in full force and effect and shall be construed as if such indefinite, invalid, illegal or unenforceable provision had not been contained herein. 13.10 Binding Effect & Survival. This Agreement shall be binding on and inure to the benefit of the parties hereto and their permitted successors and assigns. All obligations by either party which expressly or by their nature survive the expiration or termination of this Agreement shall continue in full force and effect. 13.11 No Rights. Channel Partner acquires no rights as a third party beneficiary or otherwise in or with respect of Service Provider’s relationship with any customer. 13.12 Counterpart or Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but which taken together shall constitute one and the same instrument. This Agreement may be executed by facsimile signatures and such execution shall have the same force and effect as manual signatures. 13.13 Effective Date. This Agreement will be deemed effective as of the date first hereinbefore set out. 13.14 Headings. The paragraph and section headings contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date first above written. [Phase 2 Holdings, LLC.] [CHANNEL PARTNER] By: By: [name & office of signing officer] [name & office of signing officer]
Schedule A Services & Listed Rates Channel Partner is authorized to obtain orders for the following Services: Microsoft Services
$ ‐
Service Provider Listed Rate $54.99 $50.00 $49.99 $39.99 $300.00 $39.99 $499.99
Monthly per user per user per user per user server per user Monthly
$ 500.00 $ ‐ $ ‐ $ ‐ $ 500.00 $ ‐
$54.99 $50.00 $14.99 $13.50 $149.99 $129.99
per user per user per user per user per user per user
Service Microsoft Office Project Server Microsoft Office Project Server ‐ Volume Rate Microsoft Office Sharepoint Services 2007 Microsoft Office Sharepoint Services 2007 ‐ Volume Rate Dedicated Microsoft Office SharePoint Services 2007 Dedicated Microsoft Office SharePoint Services 2007 Dedicated SharePoint WSS 3.0
Users 1 ‐ 10 users 10 + users 1 ‐ 10 users 10 + users Server User License Unlimited
Setup Fee $ 500.00 $ ‐ $ 500.00 $ ‐
Microsoft CRM Microsoft CRM ‐ Volume Rate Microsoft Exchange Microsoft Exchange ‐ Volume Rate Microsoft Team Foundation Server Microsoft Team Foundation Server ‐ Volume Rate
1 ‐ 10 users 10 + users 1 ‐ 10 users 10 + users 1 ‐ 10 users 10 + users
Other Services
Service Lotus Notes with Client Software Lotus Notes ‐ Web Only Sametime IM ‐ Add on Connections 2.5 Connections 2.5 ‐ Volume Rate Quickr Quickr ‐ Volume Rate Managed Domino Server Hosting
Users per user per user per user 1‐1000 users 1000+ 1‐1000 users 1000 + Unlimited
Setup Fee $0.00 $0.00 $0.00 $2,000.00 $14.49 $ ‐
Service Provider Listed Rate $14.99 $9.99 $6.49 $10.99 Call for pricing Call for pricing $350.00
Monthly per user per user per user per user per user per user per user server
Service Provider may from time to time offer other or additional Services for sale by Channel Partner. In such event, the terms for selling those Services (including commissions) will be determined by mutual agreement between Channel Partner and Service Provider.
Schedule B Commission Schedule and Terms & Conditions Service SAAS Services – Monthly SAAS Services – Prepaid Hosted Services‐ Monthly Hosted Services – Prepaid • •
•
•
•
• •
•
Commissions Will Be Paid On Monthly recurring charges
Commissions Will NOT Be Paid On Rate Set‐up fees, installation charges, 10% of listed security deposits, other non‐ rate recurring fees
The prepaid agreement term
Set‐up fees, installation charges, security deposits, other non‐ recurring fees Set‐up fees, installation charges, security deposits, other non‐ recurring fees Set‐up fees, installation charges, security deposits, other non‐ recurring fees
Monthly recurring charges
The prepaid agreement term
10% of listed rate Upfront 10% of listed rate 10% of listed rate Upfront
10 % Commission from Service Provider’s listed rate (Schedule A) Channel Partner is allowed to define a partner rate above the Service Provider’s listed rate. Channel Partner may not resell the Service Provider’s services below 10% of the listed rates without the prior written consent of Service Provider. During the term of this Agreement, Service Provider will pay Channel Partner commission for each customer account quarterly. Commissions will be paid not later than fifteen (15) days from the last day of the previous quarter. In the event of prepaid services, Service Provider will pay Channel Partner commission for each customer account not later than fifteen (15) days following Service Provider’s receipt of prepayment. Channel Partner hereby acknowledges that each third party Provider may, from time to time, modify or amend its rate schedules and/or may add, delete, suspend or modify the terms and conditions for services provided by such Provider. Such additions, deletions, suspensions and/or modifications may also change the terms of the commission schedule hereunder. Service Provider reserves the right to revise or adjust further any customer’s billed usage in the event of fraud, customer dispute or any extraordinary event. Service Provider may offset any commission due to Channel Partner against any amounts due from Channel Partner to Service Provider under this Agreement or any other agreement between the parties. Service Provider may, from time to time, have special commission promotions on Services that Channel Partner is authorized to sell. In such event, Channel Partner will be notified by email as to such special promotions and where to find the promotional information on Service Provider’s website, blog, Facebook or Twitter announcement.
