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CONSULTANT ACCESS AND CONFIDENTIALITY AGREEMENT
THIS CONSULTANT ACCESS AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made effective as of the date set forth upon choosing to accept the on-line agreement. The parties, Sharpen and the Consultant hereto agree as follows:
- Consultant Program.
- Consultant means an organization or individual who provides consulting services to their customers. These Consultants maintain an area of excellence that is compatible with the Sharpen platform and the Sharpen Customer base. Sharpen’s Consultant Program is a discipline developed to educate these independent Consultants on the Sharpen platform, ideal customer and best practices.
- Consultant Benefits
- Consultant Access. Sharpen will permit Consultant to access the Consultant Portal containing marketing and sales materials and other information relating to Sharpen Products. “Sharpen Products” means Sharpen software, third party software licensed by Sharpen, hardware or other communications equipment sold by Sharpen, bundled solutions consisting of software pre-installed on equipment, and Sharpen hosted service subscriptions offered for license or sale by Sharpen from time to time.
- Training. Sharpen will provide Consultant access to on-site and web-based training for Sharpen Products as pre-approved by Sharpen. Training may be subject to terms and conditions of use as described in the training.
- Promotional Literature. Sharpen grants to Consultant a license to download, copy and distribute brochures and other promotional materials relating to the Sharpen Products that Sharpen may produce and make available to Consultant from time to time on the Consultant Portal (“Promotional Literature”) subject to any limitations posted on the Consultant Portal. The Promotional Literature will not in any way be deemed a representation or warranty of Sharpen.
- Events. Consultant will receive an invitation to Sharpen’s events. Unless otherwise expressly agreed by Sharpen, Consultant will be responsible for all travel costs associated with attending any Sharpen events.
- Consultant Obligations
- Program Application. Consultant represents and warrants that all of the information provided in its application to receive Consultant benefits is true and correct. Consultant will promptly notify Sharpen in writing of any and all material changes in such information.
- Sharpen License Agreements. Sharpen will enter into license agreements directly with Consultant’s clients who purchase Sharpen Products (“Customers”). Consultant will not license or sell Sharpen Products or provide technical services or technical support for Sharpen Products. Consultant will not enter into any agreements directly with any Customer to sell or license, or to provide technical services or technical support for, Sharpen Products. In such event, Consultant will be solely responsible to Customer for all obligations of such agreement and will be responsible to Sharpen for all damages, costs and expenses incurred by Sharpen.
- Enforcement of Sharpen License Agreements. Consultant will not take any action to hinder Sharpen’s actions to enforce any Sharpen license agreement. If Consultant learns that any Customer has breached any provision of an Sharpen license agreement, Consultant will immediately advise the Customer to rectify the situation and if the Customer does not rectify the situation within thirty (30) days, Consultant will notify Sharpen immediately thereafter. Sharpen may terminate this Agreement immediately upon written notice if Consultant breaches this Section.
- Scope of Confidential Information.
- “Confidential Information” means information pertaining to the business, products, services or technology which is disclosed by a party (a “Disclosing Party”) to the other party (a “Receiving Party”), and (a) is clearly labeled or otherwise identified in writing as confidential, (b) is identified orally as confidential at the time of disclosure with written confirmation within fifteen (15) days thereafter or (c) would be apparent to a reasonable person, familiar with Disclosing Party’s business and the industry in which each operates, to be of a confidential or proprietary nature. Confidential Information includes all patents, copyrights, trademarks, trade secret information and other proprietary rights, formulas, processes, hardware and software designs, architecture and schematics, workflow processes, project process development plans or methodologies, source code or object code, user interfaces, database development work, hardware types and configurations, customer lists, supplier lists, personnel information, marketing plans, financial projection models, pricing information, business plans, business methods or other financial records of either party shall be deemed Confidential Information of such party even if not so labeled or otherwise identified or designated.
- Public Information. Confidential Information shall not include any information which (a) is or becomes publicly available, after such time as such information actually becomes publicly available (other than through unauthorized disclosure by the Receiving Party), (b) is shown by written record to have been in the possession of or known to the Receiving Party prior to its disclosure hereunder, (c) is shown by written record to have been independently developed by the Receiving Party, or (d) is made available without restriction to the Receiving Party by any person other than the Disclosing Party without breach of any obligation of confidentiality of such other person.
- Use and Disclosure of Confidential Information.
Use of Confidential Information.Consultant my only use Confidential Information for the purpose of understanding the benefits of Sharpen Products and determining whether to recommend Sharpen Products to prospective Customers (“Authorized Purpose”). Any use of Confidential Information by Consultant outside of the above will be in violation of this Agreement and may result in termination and actions based on breach of this Agreement. Consultant will only disclose the Confidential Information to potential Customers upon execution by the Customer of a mutual confidentiality agreement acceptable to Sharpen. Consultant will not disclose the Confidential Information except (i) to its employees for whom access is necessary to carry out the Authorized Purpose, provided that Consultant will be responsible for ensuring such employees’ compliance with the obligations of this Section; or (ii) pursuant to a requirement of a court, government agency, or law, including without limitation, state and federal securities laws; provided that if Consultant is required by a court, government agency, or applicable law to disclose any Confidential Information, it will notify Sharpen immediately upon learning of such requirement so that Sharpen has an opportunity to take action to protect the confidentiality of the Confidential Information. Unauthorized use or disclosure of Confidential Information will cause irreparable damage to Sharpen for which there is no adequate remedy at law and Sharpen will be entitled to immediate injunctive relief.
- Certain Rights and Limitations
- Intellectual Property Rights. Sharpen or its suppliers will retain exclusive ownership of the following (collectively, “Sharpen Materials”), unless otherwise expressly agreed in writing by Sharpen: (i) the Sharpen Products; (ii) all pre-existing works, inventions, technology, data and materials incorporated into or used in association with the Sharpen Products; (iii) all technical or non-technical information, data, ideas, concepts or know-how, including developments, inventions, processes, algorithms, designs, drawings, engineering, and hardware configuration information, and other information that relates to Sharpen’s business plans, forecasts and research (“Sharpen Technical Information”); and (iv) all derivative works based on the Sharpen Products or Sharpen Technical Information.
- Restrictions. Consultant will not grant permission to third parties to: (i) copy all or any part of any Sharpen Product; (ii) translate, modify, adapt, enhance, or create derivative works of any Sharpen Product; or (iii) decompile, disassemble or reverse engineer any Sharpen Product.
- Proprietary Designations. Sharpen and its suppliers own valuable trademarks, service marks, trade names, logos and other identifiers (the “Proprietary Designations”) identifying the Sharpen Products. As between Sharpen and Consultant, Sharpen will retain ownership of and all rights in the Proprietary Designations. Consultant will not register, directly or indirectly, any trademark, service mark, trade name, company name, internet domain name or other proprietary or commercial right that is identical or confusingly similar to the Proprietary Designations, or that constitutes a translation thereof into any other language. Consultant will not use any Proprietary Designation without Sharpen’s prior written consent in each instance.
- Disclaimer. Sharpen makes no representations or warranties to Consultant. Sharpen will warrant the quality of the Sharpen Products directly to Customers in accordance with Sharpen license agreements. SHARPEN AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SHARPEN PRODUCTS AND ANY SERVICES PROVIDED BY SHARPEN WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE (INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT). BY WAY OF EXAMPLE AND NOT IN LIMITATION, NEITHER SHARPEN NOR ITS SUPPLIERS WARRANTS THAT: (i) USE OF ANY PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE; (ii) ALL DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) ANY PRODUCT WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED BY CUSTOMERS. TO THE EXTENT THAT SHARPEN OR ITS SUPPLIERS CANNOT DISCLAIM A WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
- Limitation of Liability. IN NO EVENT WILL SHARPEN OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY SHARPEN PRODUCTS OR SERVICES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE AGGREGATE AND TOTAL LIABILITY OF SHARPEN AND ITS SUPPLIERS FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED ONE THOUSAND UNITED STATES DOLLARS (US $1,000). SHARPEN WILL NOT BE LIABLE TO CONSULTANT FOR ANY CLAIMS OR DEMANDS BROUGHT AGAINST CONSULTANT BY ANY THIRD PARTY.
- Indemnity for Consultant’s Acts. Consultant will indemnify, defend and hold harmless Sharpen against any loss, damage or expense incurred by Sharpen (including reasonable attorneys’ fees) as a result of claims, actions, or proceedings brought by any third party arising from: (i) Consultant’s breach of Article 3; (ii) any negligent act or omission by, or willful misconduct of, Consultant or its employees, agents, contractors, consultants or representatives; or (iii) any warranty, condition, representation, indemnity or guarantee granted by Consultant in addition to or in lieu of the limited warranties specified in any Sharpen license agreement. Sharpen will cooperate in the defense of the claim by complying with Consultant's reasonable requests and instructions. Sharpen will be entitled to participate in the defense of such claim and to employ legal representation at its own expense to assist in the handling of such claim. Consultant will obtain the prior written approval of Sharpen, which approval will not be unreasonably withheld, before the entering into any settlement of such claim or ceasing to defend against such claim if such settlement or cessation would cause injunctive or other relief to be imposed against Sharpen or would prejudice any intellectual property interest of Sharpen.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Indiana.
- Complete Agreement. This Agreement contains the complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings whether written or oral, express or implied. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns, including without limitation the heirs, executors and legal representatives of each such party.
- Authorizations and Remedies. All individuals executing this Agreement and any other documents on behalf of each party certify and warrant that they have the capacity to do so. The headings of this Agreement are inserted only for convenience and will not be construed as a part of this Agreement. When appropriate in this Agreement, references to the singular will be read to include the plural and vice versa. Unless otherwise expressly provided in this Agreement, remedies will be cumulative, and the specification of a remedy will not preclude a party from pursuing other remedies available at law or equity.
- Non-disparagement. Consultant will not disparage Sharpen or any product or service offered by Sharpen. Consultant will not engage in activities that might injure the goodwill of Sharpen or its products or services. Consultant’s failure to comply with the terms of this Section will entitle Sharpen to immediately terminate this Agreement.
- Entire Agreement. The parties hereto acknowledge that this Agreement and all documents referenced herein including terms, conditions and policies posted on the Consultant Portal, is the complete and exclusive statement of agreement concerning the subject matter hereof, and supersedes all prior understandings and other communications between the parties relating hereto. This Agreement may be amended only by a subsequent writing that specifically refers to this Agreement and that is signed by both parties.
- Termination. Either party may terminate this Agreement by sending written notice to the other party specifying its desire not to receive further information hereunder. Notice is deemed to have been received three (3) calendar days commencing from the day after the notice was sent (such third calendar day being the “Termination Date”). The restrictions and obligations of the parties hereto contained in Section 2 with respect to all Confidential Information shall terminate five (5) years following the Termination Date. Except where expressly indicated otherwise, the words “written” or “in writing” shall include, but not be limited to, written or printed documents, electronic and facsimile transmissions and computer disks or tapes (whether machine or user readable).
- Provisions. If any provision of this Agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, such action shall not affect any other provision of this Agreement, which shall remain in full force and effect.
- Amendments. No amendment, modification or alteration of the terms of this Agreement shall be effective unless made in writing and executed by both parties hereto. A failure or delay in exercising any right in respect to this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right will not be presumed to preclude any subsequent or further exercise of that right or the exercise of any other right. Any such waiver shall be effective only in the specific instance and for the purpose given. This Agreement may be signed in one or more counterparts, each of which shall be deemed to be an original for all purposes.