Channel Partner Agreement (USA)

Channel Partner Agreement (USA) This Agreement is entered by and between EVOHOP, INC. with its principal office at 1700 Hamner Ave. Suite 204, Norco CA 92860 (hereinafter referred to as EVOHOP ), and EVOHOP Approved Reseller (hereinafter referred to as RESELLER ). Whereas, EVOHOP is engaged in the manufacture, distribution and sale of specialized Network Products, as herein defined, for the Networking and IT market, and RESELLER desires to be appointed as a RESELLER for the sale of those Products. Now, therefore, in consideration of the promises, covenants and conditions contained herein, and for other good and valuable consideration, the parties hereto agree as follows: 1. APPOINTMENT EVOHOP hereby appoints the RESELLER non-exclusive rights for the promotion and sale of the EVOHOP products from the date of approval by EVOHOP. The RESELLER accepts such appointment. This appointment will expire one (1) year from date of approval, and may also be terminated earlier by either party as provided herein. By accepting this appointment, the RESELLER understands that RESELLER is subject to EVOHOP marketing and distribution policies, and agrees to assume all of the duties and obligations specified in Section 6 below. 1.1 This Agreement will renew automatically for an additional one (1) year periods unless written notice is given by one party to the other of its decision not to renew this Agreement, by registered letter, which shall be sent at least sixty (60) days before the end of the initial or any subsequent term. 2. DEFINITIONS The term Customer shall mean the entity (including commercial entities and governmental units) that acquires the product for use or benefits by the use of the products. Documentation shall mean installation instructions, operation instructions, marketing collateral or any other proprietary information related to the Products. Error shall mean any malfunction in the performance of the software; as such performance is described in its associated documentation, which is reproducible and not caused by or imputable to or related with its improper use; or in conjunction with any other software program. Licensee shall mean a Customer, who has accepted the End-User Software License Agreement (EULA) by use of the product. The term "Products" shall mean the EVOHOP products or services, and any additions or deletions that may occur from time to time. Page 1 of 9

Software shall mean the software, in executable object code form and its associated documentation, and is embedded in the stand alone EVOHOP Hardware product. Software Update shall mean temporary fixes, error corrections, workarounds to the software made available to Licensee bound by EVOHOP and this Reseller agreement, via a current support agreement. Software Products shall mean any major improvements of the Software, or any new version of the Software, that could result from a change in technical specifications. 3. TERRITORY The area for which rights are granted to RESELLER under this agreement shall be limited to USA, and US headquartered corporations with international locations, hereinafter called the Territory. 4. PRICING The RESELLER will receive a Net Pricelist for EVOHOP products subject to any limitations that may apply. 4.1 The prices for Products based on the latest published price list. Unless specified in writing by an authorized representative of EVOHOP, all other EVOHOP Products and services will be quoted directly to the RESELLER at the RESELLER s actual net purchase price. 4.1.1 EVOHOP may change its price list at any time. However price changes shall be effective after 60 days written notice. 4.1.2 All prices and fees listed of published price list are exclusive of all applicable sales, VAT, import or export, local or foreign or similar taxes and duties. RESELLER shall pay any and all applicable tariffs, duties or taxes imposed or levied by any government or agency. 4.1.3 All prices are payable in USD 4.2 The RESELLER may resell Products directly, or incorporate Products into systems for resale. 5. INDEPENDENT CONTRACTORS RESELLER and its employees are not agents or representatives of EVOHOP for any purpose and have no power of authority to represent, act, or bind or commit EVOHOP. The relationship between parties shall be that of RESELLER buying as an independent contractor from EVOHOP and reselling to its customers. 6. RESELLER RIGHTS AND REQUIREMENTS As part of the Agreement, RESELLER agrees to perform the following duties and/or assume the following obligations: 6.1 The RESELLER my exercise its distribution rights directly or though agents acting on its name and behalf and located in the territory. Page 2 of 9

(a) In particular, RESELLER shall not distribute the products outside the territory without EVOHOP prior written consent. RESELLER shall immediately inform EVOHOP about any enquiry or orders received from a customer outside the Territory, (b) The RESELLER will actively promote, develop and expand the sales of EVOHOP Products, and utilize its best efforts to generate sales revenue for the EVOHOP during the time period specified in Section 1 above. (c) RESELLER acknowledges that invoices for EVOHOP products are due and payable not later than thirty (30) days after the date of the EVOHOP invoice (On Approved Credit). RESELLER further agrees to remit a late payment fee equal to the higher of $25 or 1.5% of the invoice amount for each thirty calendar day period, or portion thereof, that a payment has not been received by the EVOHOP. (d) The RESELLER will promptly report all customer complaints concerning Products to EVOHOP in an objective and sufficiently detailed fashion to allow EVOHOP to respond. (e) The RESELLER may make only such representations or warranties concerning the Products as are reflected in literature prepared by, or otherwise authorized in writing by EVOHOP. (f) The RESELLER will provide monthly product sales forecasts to EVOHOP. (g) For all Products acquired from RESELLER, RESELLER will utilize its best efforts to support the ultimate users through prompt technical assistance, customer service, and knowledge of the product line, quality assurance, and timely delivery of product. (h) The RESELLER attests that RESELLER is and will continue to operate for the duration of the Agreement as an established RESELLER for the EVOHOP product line. 6.2 The RESELLER will engage at its own expense in promoting the products throughout the Territory. By such means as advertising, customer contact, tradeshows, direct marketing. (a) Reseller shall not store Hardware products as inventory, in particular EVOHOP systems. If at anytime during the term of this AGREEMENT, RESELLER makes or discovers any improvement to the marketing of the Products, RESELLER agrees to provide forthwith EVOHOP all necessary details. (b) RESELLER shall be free to set the selling price of the Products to its customers, by taking into account EVOHOP recommendations, and by applying the margin compatible with the level of the market. RESELLER shall communicate regularly to EVOHOP the selling prices of the Products. 7. EVOHOP OBLIGATIONS 7.1 EVOHOP will support the RESELLER in RESELLER sales efforts, by providing such training, marketing material, technical application assistance, and field sales support as EVOHOP, in its sole discretion, shall determine to be appropriate. (a) EVOHOP will maintain a Price List covering its standard catalog items that is available to RESELLER via the EVOHOP website. (b) Where, in the sole opinion of EVOHOP, it is deemed advantageous, RESELLER will be provided account specific price protection for a limited period of time. Page 3 of 9

8. ACCEPTANCE OF ORDERS AND SHIPMENTS No order placed, or contract offered by a customer shall be binding on EVOHOP until an authorized representative of EVOHOP has accepted the same. EVOHOP shall have the unqualified right, without liability to the RESELLER, (i) to accept, reject, or cancel any order, (ii) accept cancellation or modification of any order; (iii) to grant any extension, accommodation or credit, (iv) to accept returns to or from a customer; and (v) to determine the time, manner and sequence of filling orders. RESELLER acknowledges that no manufacturer reps, field marketing or sales personnel may make any binding commitment on behalf of the EVOHOP. 9. ORDER PROCESS, DISCONTINUATION OF PRODUCTS AND PRICE CHANGES (a) All prices for Products and all terms and conditions of sales of Products by EVOHOP, are subject to change at EVOHOP discretion. (b) EVOHOP may discontinue distribution and/or sales of any of product(s) at any time. (c) Where feasible, EVOHOP agrees to utilize its best efforts to provide RESELLER with reasonable advance notice of the discontinuance of any product. (d) EVOHOP will its best efforts to inform RESELLER of new product releases. (e) All returns for credit or exchange must have prior written approval from EVOHOP in the form of a factoryissued Return Materials Authorization number (RMA). (f) Delivery shall be made by appropriate shipping channels, at EVOHOP discretion, unless shipped under RESELLERS selected logistics vendor. Products shall be appropriately marked and packaged for safe transportation to the requested destination. (g) Delivers of any Products purchased shall be subject to EVOHOP availability schedule. EVOHOP shall make every reasonable effort to meet any acknowledged delivery date but shall not be liable for failure to meet such date. (h) Upon receipt of Products, RESELLER shall make a visual inspection of Products and check the conformity of the Products with the purchase order. RESELLER shall give notice to EVOHOP of any shortage or apparent defects by fax or email, within 48 hours. RESELLER shall be deemed to have accepted the Products if no such written notice are served on EVOHOP within ten (10) days from the receipt of the products. (i) RESELLER shall provide all means of evidence regarding the existence of any defect or lack of conformity. In such case RESELLER s sole remedy is, at EVOHOP discretion, the replacement at EVOHOP costs or the refund of the defective Products. 10. TRANSFER OF RISK AND TITLE 10.1 Risk of loss and damage shall pass from EVOHOP to RESELLER upon delivery to the carrier 10.2 Title will pass from EVOHOP to RESELLER upon final payment for the Products. 10.3 RESELLER shall properly insure the Products for the benefit of EVOHOP between the time when risk of loss and damage is transferred and the time when title passes. Page 4 of 9

11. PAYMENT TERMS 11.1 Terms of payment on all invoices shall be thirty (30) days from the invoice date (On Approved Credit). The payments shall be made in the USD, by SWIFT bank transfer or any other means directed by EVOHOP. 11.2 Should RESELLER default in payment of any sum due to EVOHOP after ten (10) days from date of written notice to RESELLER, EVOHOP shall be allowed to suspend or cease any performance of its obligations under this Agreement. 12. WARRANTY 12.1 EVOHOP warrants that its Hardware Products shall be reasonably free from defects in materials and workmanship. 12.2 If EVOHOP receives notice of such defects from RESELLER, within one (1) year from its delivery to RESELLER, EVOHOP shall at its own discretion decide to repair or replace the Hardware Product that proves to be defective. 12.3 Software Products 12.3.1 EVOHOP warrants that the Software shall substantially operate in accordance with the specifications as described in the associated Documentation. EVOHOP does not warrant that the operation of the Software will be uninterrupted or error free and that all Errors will be corrected. EVOHOP does not warrant that the Software will fit the specific needs of the Customer. 12.4 General 12.4.1.Theforegoing warranties shall not apply for defects resulting from improper installation or inadequate maintenance, unauthorized modification, misuse, operation outside of the specifications (environment or interfacing with other software or hardware product than those specified by EVOHOP). 13. SOFTWARE SUPPORT RESELLER shall propose to customer to enter into a maintenance agreement including support services. 13.1 First Level software support 13.1.1. RESELLER shall provide Customers a 1 st level support maintenance agreement including: -On-going telephone assistance and advice; -Problem analysis and diagnosis; -Implementation of a workaround and corrective actions by providing instructions, or assistance, on site if necessary. Page 5 of 9

-Distribution in a timely manner of Software Updates and Upgrades via EVOHOP -Escalation to EVOHOP of unresolved problems; 13.1.2. RESELLER shall insure that all questions regarding the use or operation of software are initially addressed to and answered by RESELLER. Any question arising from a Customer and addressed initially to EVOHOP, shall be referred back to RESELLER. 13.2 Second Level software support 13.2.1. Customer shall receive Software Updates, in return for a payment of maintenance and support contracts. In addition to the supply of Software Updates, the 2 nd level support includes telephone assistance, providing of temporary workarounds, and correction of unsolved or unidentified software failures. The supply of Upgrades is not included in the Second level Software support and shall be paid by Customer at the current price at the date of release of such Upgrades. EVOHOP shall provide such support services via telephone or by submitting a trouble ticket online. 13.2.2. It is expressly understood that this second level support shall not cover errors generated by: -An intervention by Customer or by a third party without EVOHOP authorization; -An unauthorized modification of the software; -Misuse of the Software, or use disregarding the on-lone instructions or the recommendations given by the RESELLER; -Another application of the Customer; -An accident, negligence, malicious use or miscue or act of a third party; 14. HARDWARE MAINTENANCE 14.1 RESELLER shall propose to customer required maintenance services of Hardware Products. 14.2 RESELLER shall replace any defective Hardware Products returned by Customer. EVOHOP shall deliver the replacement Products to RESELLER at its risk and expense if under warranty. After expiration of the warranty period as set forth in Section 12.2, any replacement of defective Products will be charged to RESELLER as per current pricing model. During and after the period of warranty, defective Products shall be returned prepaid to EVOHOP premises but only after written authorization (RMA) from EVOHOP. 14.3 RESELLER shall store the Products in sufficient number to ensure the continuity of the after sales services. 15. SOFTWARE LICENSING Under this agreement, EVOHOP does not grant RESELLER the right to distribute the software. Page 6 of 9

16. LIMITATION OF LIABILITY 16.1 EVOHOP shall not be liable to RESELLER or any third party for any indirect damages such as but not limited to the loss of business, loss of goodwill, loss of profits, in connection with this Agreement or arising from the use of the Products or the incapacity to use the product or from the results obtained by the Product. It is expressly understood by the Parties that all actions or claims instituted or filed against RESELLER by a third party constitute indirect damages and, therefore, shall not entitle RESELLER to any compensation. 16.2 RESELLERS sole remedy for EVOHOP liability shall be limited to the reimbursement of the amount paid by the RESELLER for the particular Product having caused the damage. 16.3 RESELLER expressly saves and holds EVOHOP harmless from any liability, damages claimed by Customer or any third party against EVOHOP as a result if a misrepresentation of RESELLER or any of its employees, or agents regarding the functionalities and performance of the Product and more generally of any negligence or default in the performance of RESELLER s obligations under this Agreement. 17. FORCE MAJURE Neither Party shall be liable for non performance due to unforeseen events or due to causes beyond its control including but not limited to war, strikes, boycotts, natural disasters such as fires, flood, earthquake, or governmental restrictions. 18. MUTUAL CONFIDENTIALITY; TRADEMARKS Neither the RESELLER nor EVOHOP shall use or disclose to third parties any confidential or proprietary information concerning the business, plans or Products of the other party which either party may acquire in the course of performing activities under this Agreement (including, but not limited to: customer activity, proposed changes in Products, proposed new Products or marketing plans). Both the RESELLER and EVOHOP shall take all necessary precautions to prevent any such disclosures by any of their respective employees or agents. For purposes of this Agreement, confidential information shall include trade secrets and other proprietary information. (a) The RESELLER acknowledges EVOHOP s exclusive right, title and interest in and to any and all trademarks and trade names which EVOHOP may, at any time, have adopted, used or registered or may hereafter adopt, use or register in the United States of America or elsewhere in the world (hereafter collectively referred to as "Trademarks") and will not, at any time, take, or cause to be taken, any action which contests, or in any way impairs or tends to impair, any part of said right, title and interest in and to the Trademarks. The RESELLER shall promptly notify EVOHOP of any and all infringements or misuse of the Trademarks, which come to the RESELLER's attention. (b) The obligations of this section shall survive any termination of this Agreement. Page 7 of 9

19. RELATIONSHIP BETWEEN THE PARTIES (a) The RESELLER agrees that in all matters relating to this Agreement, the RESELLER shall be acting as an independent agency. (b) RESELLER shall not have any authority to assume or create any obligation, expressed or implied, on behalf of EVOHOP, and the RESELLER shall have no authority to represent EVOHOP in any capacity other than as set forth above. (c) Nothing in this Agreement shall be construed to give the RESELLER the right, or authority, to accept or modify the terms of any customer order or contracts, or to accept returns or cancellations of orders, or in any way to make any binding commitments for EVOHOP. (d) RESELLER hereby acknowledges that Reseller is acting in the sole capacity of an independent contractor. (e) RESELLER hereby acknowledges that RESELLER will not be entitled to any benefits offered to employees of EVOHOP. (f) RESELLER hereby acknowledges that RESELLER and Reseller s employees, representatives or agents will not be covered by EVOHOP Workers' Compensation benefits, or any other benefits that EVOHOP may offer its employees, either as required by law or otherwise. 20. TERMINATON 20.1 Either party may terminate this Agreement, and Reseller s appointment as a RESELLER for EVOHOP, at any time for any reason upon thirty(30) days prior written notice to the other party. In addition, this Agreement may be terminated immediately by EVOHOP if the RESELLER has breached any of the terms or provisions of this Agreement. Notice of termination shall be given by registered mail to the last known address of the other party. 20.2 In the event of termination, property and goods purchased by RESELLER, EVOHOP may determined if a cash credit is available for any new, non-custom or non-modified standard EVOHOP product in the RESELLER's inventory, as long as the items being returned were purchased within (180) days of the termination date and returned in a like new and immediately resalable condition. 20.3 All returns for the cash credit or replacement, must have written approval from EVOHOP in the form of a factory issued Return Materials Authorization (RMA) number. 20.4 RESELLER will refrain from representing itself as RESELLER and from using EVOHOP materials and Trademarks. 120.5 Pay to EVOHOP the balance of all outstanding invoices. 21. RETURN OF EVOHOP PROPERTY No later than thirty (30) days after termination of this Agreement, the RESELLER shall return to EVOHOP any and all demonstration and feasibility equipment, samples, catalogs, price lists and other materials received from EVOHOP. Page 8 of 9

22. GENERAL PROVISIONS (a) No Assignment: This Agreement shall not be assigned by either party hereto, whether by contract or by operation of the law, without the prior written consent of the other party hereto, except that EVOHOP may assign this Agreement to any successor to the business, whether or not affiliated with EVOHOP. (b) Authority and No Conflict: The RESELLER hereby represents and warrants that RESELLER is authorized to enter into and perform under this Agreement and that nothing herein conflicts with or constitutes a breach of any other agreement or obligation to which the RESELLER is a party or by which he is bound. (c) Dispute Resolution: Any disputes arising from this Agreement shall be exclusively and finally resolved under the rules of the American Arbitration Association, by one or more arbitrators appointed in accordance with said rules. The arbitration process shall take place at a location in California, with the prevailing party entitled to recover, in addition to any award, all reasonable expenses incurred in the arbitration process, as determined and approved by the arbitrator(s). (d) Governing Law: This Agreement shall be governed by and interpreted and enforced under the laws of the State of California, and any action to enforce any of the provisions of this Agreement must be a venue in the State of California. (e) This Agreement constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties, whether written or oral, as to such subject matter. By Submitting your application to become an Evohop Channel Partner you agree to all the terms and conditions herein. Page 9 of 9