This Reseller Agreement (this “Agreement”) is made as of the date on the signed order form (the “Effective Date”) between Method Test Prep, Inc., a New York corporation with offices located at 303 Sunnyside Blvd #20, Plainview, NY 11803 (“MTP”) and the names account on the order form.
This Agreement describes the terms and conditions pursuant to which Reseller will resell subscriptions to custom-branded versions of the MTP test preparation products set forth on Schedule A.
1. Certain Definitions.
(a) “Active Subscription” means a Subscription that has been activated by an End User.
(b) “Affiliate” means, with respect to an entity, another entity that controls, is controlled by, or is under common control with the first entity.
(c) “Confidential Information” means this Agreement and all Schedules (including pricing), any amendments to this Agreement, the non-public portions of the Service, the Documentation, and any other written or electronic information that is either (i) marked as confidential and/or proprietary, or which is accompanied by written notice that such information is confidential and/or proprietary, or (ii) not marked or accompanied by notice that it is confidential and/or proprietary but which, if disclosed to any third party, could reasonably and foreseeably cause competitive harm to the owner of such information. Confidential Information does not include information which, as demonstrated by the receiving party, is: (i) publicly available, (ii) lawfully obtained by a party from third parties without restrictions on disclosure, or (iii) independently developed by a party without reference to or use of Confidential Information.
(d) “Continuation Period” means the period beginning on the end of the Term and ending on the termination or expiration of the last outstanding Subscription.
(e) “End User” means a person in the Target Market that: (i) has purchased access to the Service from Reseller or otherwise has the right to access the Service under the Reseller Terms; and (ii) is not Reseller or an Affiliate of Reseller.
(f) “End User Data” means any information about End Users that Reseller provides to MTP in connection with Reseller’s or Channel Partner’s sale of Subscriptions.
(g) “Documentation” means publications such as reference, user, systems administration and/or technical guides (in electronic or hard copy or on-line) relating to the use of the Service made available by MTP to Reseller from time to time.
(h) “Inactive Subscription” means all purchased Subscriptions other than Active Subscriptions.
(i) “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent, international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefore in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights anywhere in the world.
(j) “Modifications” means any bug fixes, error corrections, workarounds, patches, enhancements, updates or upgrades of the Service that MTP makes generally available to its customers.
(k) “MTP Terms” means the agreement between MTP and End Users. MTP Terms include any terms of service, acceptable use policies, or other contracts or rules established by MTP for End Users.
(l) “Professional Services” means the customization and integration services of MTP specified on Schedule A.
(m) “Order” means a written or electronic request from Reseller to purchase Subscriptions.
(n) “Reseller Terms” means the agreement between Reseller and an End User or Channel Partner under which the End User has obtained access to the Service or the Channel Partner has obtained the right to sell Subscriptions on Reseller’s behalf.
(o) “Service” means any of the subscription services provided by MTP and described on Schedule A
(p) “Service Data” means any information that MTP collects through its operation of the Service (other than End User Data provided by Reseller) including any information MTP collects from End Users through their use of the Service.
(q) “Subscription” means a subscription to the Service resold by Reseller or a Channel Partner to an End User under this Agreement.
(r) “Target Market” means the United States direct tutoring for ACT and SAT,
2. Appointment; Relationship of Parties.
(a) Appointment. Subject to the terms and conditions of this Agreement and the MTP Terms, MTP appoints Reseller to act during the Term as a non-exclusive reseller authorized to market, resell and support Subscriptions to and for the Target Market and Reseller accepts such appointment. Reseller may market and sell the Subscriptions as a bundled feature of value-added solutions or on a standalone basis.
(b) Purchasing Process. Reseller shall purchase Subscriptions by submitting Orders to MTP. Each Order must specify the quantity and type of Subscriptions to be purchased and such other information as MTP may request. MTP shall promptly make such purchased Subscriptions available to Reseller as Inactive Subscriptions upon its receipt of full payment for each Subscription so ordered.
(c) Term of Subscriptions. Each Subscription purchased by Reseller under this Agreement will have a term of one year, beginning on the date that the Subscription becomes an Active Subscription.
(d) Expiration of Inactive Subscriptions. Each Inactive Subscription will expire one year after the date of purchase from MTP (the “Subscription Expiration Date”) unless renewed as provided in subsection (e) below.
(e) Renewal of Subscriptions. Each time Reseller purchases at least five Subscriptions in the same purchase transaction, the Subscription Expiration Date for all Inactive Subscriptions will be extended to the date that is one year from the date of such purchase.
(f) Use of Channel Partners. In each case after first receiving MTP’s written consent, Reseller may engage one or more third parties to assist Reseller with sales to End Users under this Agreement or make such sales on Reseller’s behalf (each such approved third party, a “Channel Partner”). MTP may grant or withhold consent to the designation of a Channel Partner in its sole discretion. The appointment of a Channel Partner will not relieve Reseller of its obligations under this Agreement and Reseller shall be responsible for each Channel Partner’s compliance with this Agreement as if all of its obligations applied to the Channel Partner in place of Reseller. A Channel Partner may not designate further tiers of Channel Partners without MTP’s prior written consent. MTP may revoke its consent to the designation of any Channel Partner for any reason.
(g) No Marketing of Competing Products. Reseller shall not, during the Term, promote or resell any product or service competitive with or including substantially similar functionality to the Service.
(h) No Restrictions on MTP Activities. Reseller acknowledges that its appointment under this Agreement is non-exclusive and nothing in this Agreement shall limit in any manner MTP’s marketing, distribution or sales activities or its rights to market, distribute or sell, directly or indirectly, or appoint any other person or company as a dealer, distributor, reseller, licensee or agent for the Service, within or outside the Target Market.
(i) No Agency. MTP and Reseller each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either party the power to direct or control the day to day activities of the other; (ii) deem the parties to be acting as partners, joint venturers, co owners or otherwise as participants in a joint undertaking; or (iii) permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf of or for the account of the other party for any purpose whatsoever.
(j) Program Managers. Each party shall designate a program manager who shall supervise the party’s activities hereunder including, with respect to MTP’s program manager, sales training, and support and resource allocation; and, with respect to the Reseller’s program manager, support and quality control. A party may change its program manager upon notice to the other party’s program manager. The program managers shall each serve as the principal point of contact for the other party for the resolution of any issues or problems that may arise hereunder. Reseller also agrees to dedicate a single point of contact within sales management to facilitate the integration of the relationship contemplated hereby within Reseller’s organization for the Term of this Agreement.
(a) Restrictions. Reseller shall not appoint any other person, firm, or entity as a reseller, sub-distributor or agent for the Service. Nothing in this Agreement shall be construed to give Reseller a right to use, or otherwise obtain access to, any source code from which the Service is compiled or interpreted, and Reseller shall not reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain any such source code. Other than resale of access to the Service subject to the MTP Terms and as specifically contemplated in this Agreement, Reseller shall not assign, sublicense, market, sell, lease, rent, distribute, convey, timeshare or otherwise transfer, or pledge as security or otherwise encumber, the rights granted hereunder with respect to the Service. Reseller shall not allow any party to access or use the Service other than as provided in this Agreement.
(b) MTP Terms. Reseller shall ensure that each End User accepts the MTP Terms prior to being granted access to the Service.
4. Marketing and Promotional Materials.
(a) Branding; Technical Integration. Reseller shall provide MTP with branding materials for delivering customized versions of the Service as specified in Schedule A (the “White Label Materials”). Reseller hereby grants MTP a limited, royalty-free license to use the White Label Materials during the Term and any Continuation Period solely to provide the rebranded Service. MTP will promptly rebrand any Modifications of the Service requiring rebranding. In addition, the parties shall perform such technical integration tasks as specified in Schedule A to facilitate the rebranding.
(b) Reseller’s Efforts. Reseller shall: (i) keep MTP promptly informed as to any problems encountered by End Users or by Reseller or any Channel Partner with the Service, and to communicate to MTP any resolution or proposed resolutions relating to such problems, via the proper points of contact as provided by MTP; and (ii) maintain accurate records of all End Users , Channel Partners and other parties to which Reseller sells Subscriptions, including the names and addresses of such parties, the Subscription start and end dates, and the MTP Terms and Reseller Terms therefor.
(c) Promotional Materials; Marketing. MTP will provide Reseller with a reasonable amount of sales and marketing literature in English relating to the Service. The parties will agree on the form of the customized literature to be used by Reseller, and each party will bear its own costs associated with the creation and reproduction of such customized literature. Reseller shall adhere to MTP’s branding and marketing guidelines and restrictions as provided to Reseller by MTP.
(d) Publicity. During the Term, subject to the other party’s prior written approval, each party may post on its web site the other party’s logo and/or hyperlink to the other party’s web site, use the other party’s name in connection with proposals to other prospective customers and otherwise refer to the other party and the Service and service offering contemplated hereby in print or electronic form for marketing or reference purposes.
(e) Billing. During the Term, Reseller shall be solely responsible for billing End Users and Channel Partners for their use of the Service or sales of Subscriptions, as applicable.
(f) Trademark Usage.
i) MTP hereby grants to Reseller a non-exclusive license during the Term to use MTP’s trademarks in the Target Market and solely for display or advertising purposes in connection with marketing, promoting, and resale of the Service in accordance with this Agreement.
ii) Reseller hereby grants to MTP a non-exclusive license during the Term and any Continuation Period to use Reseller’s trademarks included in the White Label Materials solely to create the rebranded Service.
iii) Upon expiration or termination of this Agreement, each party’s right to use the others’ trademarks shall cease and each party shall immediately remove any reference to the other party from its website(s) and from any marketing materials or documentation, except that MTP may continue to use Reseller’s trademarks solely to provide the rebranded Service to any End Users with Subscriptions continuing after termination of the Agreement for the remaining term of such Subscriptions.
iv) Neither party grants any rights in its trademarks, trade name, service mark, business name or goodwill of the other except as expressly permitted hereunder or by separate written agreement of the parties.
5. Training; End User Support.
(a) Training. MTP shall provide to Reseller’s sales and technical personnel, via web conference, at the rates set forth in Schedule A: (i) the number of training sessions and source training material described in Schedule A, deemed by MTP to enable Reseller’s sales and support staff to become knowledgeable about the capabilities and operation of, and support for, the Service, such training to include the technical consulting services and training described in Schedule A to ensure that Reseller has the internal capability to, among other things, provide adequate and proper customer support for the Service.
(b) Technical Support. MTP and Reseller shall have the technical support obligations specified in Schedule B. MTP shall have no obligation to provide any technical support directly to an End User unless MTP and Reseller agree in writing in advance that Reseller shall provide such support.
6. Intellectual Property Rights.
As between MTP and Reseller, subject to the licenses granted herein and Reseller’s rights in the White Label Materials, MTP retains all right, title and interest in and to the Service, the Service Data, the Professional Services, and the Documentation, including all copies of the foregoing in any form or medium, whether now known or existing or hereafter developed, and further including all Intellectual Property Rights therein. Without limiting the foregoing, any developments, additions enhancements, improvements or derivatives of the Service (other than the White Label Materials) developed by MTP and made available to End Users pursuant to this Agreement shall be deemed to constitute part of the Service, subject to the licenses set forth herein. MTP reserves all rights not expressly granted to Reseller. Reseller hereby grants (and will cause each Channel Partner to grant) MTP a perpetual, irrevocable, royalty-free and transferrable license to use the End User Data for any purpose. Other than the licenses granted in this Agreement, Reseller retains all right, title and interest in and to the White Label Materials and the End User Data.
7. Fees; Pricing; Credits and Payment Terms.
(a) Pricing. Reseller shall pay to MTP the fees set forth on the attached Schedule A for Subscriptions and for Professional Services provided by MTP. Unless otherwise set forth on Schedule A, MTP shall invoice Reseller for such fees on a monthly basis at MTP’s then-standard rates.
(b) Payment Terms. All prices are stated in U.S. Dollars and do not include sales, use, value-added or import taxes, customs duties or similar taxes that may be assessed by any jurisdiction. Reseller shall pay MTP within thirty (30) days of receipt of an invoice.
(c) Actions for Non-Payment. Should Reseller fail to satisfy any payment with respect to an End User (including by reason of the End User’s or Channel Partner’s nonpayment of Reseller), then, in addition to any and all other remedies available to it and upon prior written notice to the End User, MTP may suspend the End User’s access to the Service and any other services provided by MTP to that End User. Should MTP disable access to the Service under this Section then Reseller or the End User may reinstate such access by paying all amounts owed to MTP, including any attorneys fees or other fees related to collection of any outstanding amounts. For the sake of clarity, any action taken by MTP pursuant to this Section 7(c) shall not relieve Reseller of any obligations under this Agreement and Reseller shall be responsible for all costs of collection from End Users or Channel Partner, even if the Service is not reinstated for the affected End User.
(d) Taxes. All taxes, withholdings, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of MTP) which are imposed by or under the authority of any government or any political subdivision thereof on the amounts charged by MTP to Reseller under this Agreement shall be borne by Reseller and shall not be considered a part of, a deduction from or an offset against the fees charged to Reseller hereunder.
Reseller shall maintain complete and accurate records as required hereunder, and shall provide to MTP, upon request, copies of all such records. Reseller’s records shall include information sufficient to verify each End User’s acceptance of a specific version of the MTP Terms and Reseller Terms (if applicable).
9. Representations, Warranties and Covenants.
(a) MTP. MTP represents and warrants to Reseller that it has the right to enter into this Agreement, perform its obligations hereunder and grant the rights granted to Reseller in this Agreement.
(b) Reseller. Reseller represents and warrants to MTP that Reseller has the right to enter into this Agreement and to perform its obligations hereunder.
(c) Reseller shall make no representations, warranties or guarantees to End Users regarding the Service other than what is in Documentation, the MTP Terms, or otherwise agreed to by MTP in writing.
(d) WARRANTY DISCLAIMER. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, MTP MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY TO RESELLER, REGARDING OR RELATING TO THE SERVICE PROVIDED TO RESELLER UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE SERVICE WILL MEET RESELLER’S OR ITS CUSTOMERS REQUIREMENTS OR THAT THE OPERATION THEREOF OR ACCESS THERETO WILL BE ERROR FREE, CURRENT OR UNINTERRUPTED. TO THE GREATEST EXTENT ALLOWED BY LAW, MTP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED.
10. Confidential Information.
Neither party shall, without the prior written consent of the other party, disclose or use (except as expressly permitted by, or required to achieve the purposes of, this Agreement) the Confidential Information of the other party, during the Term of this Agreement and for three years following the expiration or termination hereof. Each party agrees that it will treat all Confidential Information with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. The receiving party may disclose Confidential Information if required by a governmental agency, by operation of law, or if necessary in any proceeding to establish rights or obligations under this Agreement, provided that the receiving party gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure and shall cooperate at the receiving party’s own expense in preventing or limiting such compelled disclosure.
11. Term and Termination.
(a) Term; Initial Term; Renewals. This Agreement shall become effective as of the Effective Date and, unless earlier terminated as provided herein, remain in full force and effect for one year (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive additional terms of one year (each a “Renewal Term”) unless and until either party notifies the other party in writing of its intent to terminate at least sixty days prior to the expiration of the then-current Term or is otherwise terminated as provided herein. The Initial Term, together with any and all Renewal Terms, is collectively referred to as the “Term.”
(b) Termination for Cause. MTP may terminate this Agreement for any reason by giving 90 days prior written notice to Reseller. Either party may, by written notice to the other party, terminate this Agreement and declare all sums due and to become due hereunder immediately payable if any of the following events occur: (i) the non-terminating party is in breach of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days, or, in the case of non-payment by Reseller, five (5) days, after the terminating party gives the other party written notice of such breach; or (ii) the non-terminating party terminates its business activities or becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. Termination will become effective immediately or on the date set forth in the written notice of termination and shall be in addition to any other rights available to the terminating party under law or equity. The terminating party’s remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
(c) Effect of Termination or Expiration. Upon the expiration or termination of the Agreement, (i) each party will return to the other party any Confidential Information of the other party; (ii) Reseller will no longer have access to the Service and Professional Services and shall immediately return to MTP all copies of the Documentation in its possession or control; and (iii) all valid MTP Terms in place with End Users on the effective date of termination shall remain in place. All other rights and obligations of the parties (other than Reseller’s payment obligations) shall cease upon termination or expiration of this Agreement.
(d) Survival. The provisions of Sections 1 (Definitions), 6 (Intellectual Property Rights), 8 (Records and Reports), 9 (Representations, Warranties and Covenants), 10 (Confidential Information), 11 (Term and Termination), 12 (Indemnification), 13 (Limitations of Liability) and 14 (Miscellaneous) shall survive termination or expiration of this Agreement. In addition any provision that specifically references the Continuation Period will continue to operate for that period.
(a) MTP Indemnity. MTP shall, at its expense, indemnify, defend and hold harmless Reseller its officers, directors, employees and Affiliates (the “Reseller Indemnified Parties”) from and against any and all suits, proceedings, assertions, damages, costs, liabilities, or expenses (including court costs and reasonable legal fees) incurred as a result of claims of End Users or Channel Partners, other third parties or government authorities against the Reseller Indemnified Parties arising from, connected with or relating to (i) a claim that the Service infringes a U.S. patent, or any copyright, trademark, or trade secret, or (ii) any breach or alleged breach of MTP’s representations and warranties set forth in Section 9(a) of this Agreement. Reseller shall give prompt written notice to MTP of any such claim. MTP will have the exclusive right to defend any such claim, and make settlements thereof at its own discretion; provided that MTP may not settle or compromise such claim to the extent such settlement imposes any liability or responsibility on Reseller, in which case it shall first obtain the prior written consent of Reseller. At MTP’s cost, Reseller shall give such assistance and information as MTP may reasonably require to settle or oppose such claims.
(b) Enjoinment For Infringement. In the event that the use of the Service or Professional Services is or may be enjoined due to a third party claim of infringement, MTP will, in its sole discretion, either: (i) replace the infringing part of the Service with a non-infringing version of no less than equivalent functionality; (ii) obtain a license permitting Reseller’s or an End User’s continued use of the allegedly infringing part of Service; or (iii) terminate the Agreement and affected Subscriptions with respect to the infringing part of Service and provide for a corresponding reduction of fees payable by Reseller. Sections 12(a) and 12(b) state the entire liability of MTP, and Reseller’s sole and exclusive remedies, with respect to any claim involving infringement of any Intellectual Property Right. MTP will have no liability under this subsection (b) or the preceding subsection (a) for any claim that results from: (i) use of the Service other than in accordance with this Agreement, the MTP Terms or the Documentation; (ii) a claim of infringement arising from Reseller’s provision of the Service to End Users in combination with any programs, hardware or materials not provided or specifically approved by MTP if such claim would have been avoided without such use; (iii Reseller’s provision of and/or Reseller’s facilitation of the use of the Service by End User in conjunction with inaccurate, improper, or infringing data, if such claim would have been avoided without such use; or (iv) any use of the affected Service after Reseller or End User receives notice of any such third party claim, if such claim would have been avoided without such use (collectively, the “Exclusions”).
(c) Reseller Indemnification. Reseller acknowledges that by entering into and performing its obligations under this Agreement, MTP does not assume and should not be exposed to the business and operational risks associated with Reseller’s or any Channel Partner or End User’s business. Accordingly, Reseller shall defend, indemnify, and hold harmless MTP, its officers, directors, employees and Affiliates (the “MTP Indemnified Parties”) from and against any and all suits, proceedings, assertions, damages, costs, liabilities, or expenses (including court costs and reasonable legal fees) incurred as a result of claims of End Users, Channel Partners, other third parties or government authorities against the MTP Indemnified Parties arising from, connected with or relating to (i) products and services sold or distributed by Reseller other than the Service, (ii) any claims or allegations based on a representation by Reseller with respect to the Service; (iii) any breach of Reseller’s covenants, representations and warranties under this Agreement; (iv) any alleged breach or contravention of any law, regulation or other enactment relating to Reseller’s unauthorized promotion, sale or other activities related to the Service; or (v) any of the Exclusions. With respect to a claim covered by this Section 12(c), MTP shall give prompt written notice to Reseller of any such claim and give Reseller the authority to proceed as contemplated herein. Reseller will have the exclusive right to defend any such claim, and make settlements thereof at its own discretion; provided that Reseller may not settle or compromise such claim to the extent such settlement imposes any liability or responsibility on MTP, in which case it shall first obtain the prior written consent of MTP (which consent may be withheld in MTP’s sole discretion). At Reseller’s cost, MTP shall give such assistance and information as Reseller may reasonably require to settle or oppose such claims.
13. Limitation of Liability; Insurance.
(a) Limitations of Liability. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS, A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS OR IN CONNECTION WITH THE ENFORCEMENT OF MTP’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOOD WILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF CONTENT OR DATA, COST OF COVER OR INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS, A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS OR IN CONNECTION WITH THE ENFORCEMENT OF MTP’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, SHALL NOT EXCEED THE AGGREGATE FEES PAID BY RESELLER TO MTP PURSUANT TO THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. THE ALLOCATIONS OF LIABILITY REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES AND MTP’S COMPENSATION UNDER THIS AGREEMENT REFLECTS SUCH ALLOCATIONS.
(b) Insurance. Each party shall maintain in effect during the Term general liability insurance in an amount as is reasonable and customary for businesses engaged in a similar line of business. Such insurance coverage will be obtained from reputable insurance companies or associations.
(a) Nonsolicitation. During the Term and for one year thereafter, neither party shall, directly or indirectly, solicit or hire any employees of the other party. General advertising or job postings not specifically directed at the other party will not be deemed to be a breach of this provision.
(b) Entire Agreement. This Agreement (including the Schedule(s)) contains the entire agreement of the parties with respect to the subject matter herein and supersedes all prior, collateral or contemporaneous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may be amended or supplemented only by a writing that refers specifically to this Agreement and that is signed by duly authorized representatives of both parties. No terms, provisions or conditions of any request for proposal, purchase order, acknowledgement or other business form that either party may use in connection with this Agreement will have any effect on the rights, duties or obligations of the parties hereunder, or otherwise modify, this Agreement, regardless of any failure of the other party to object to such terms, provisions or conditions.
(c) Payments. All payments to MTP shall be in United States dollars.
(d) Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties, including but not limited to acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions, but the inability to meet financial obligations is expressly excluded.
(e) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York and the United States of America, without regard to conflict of laws principles.
(f) Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
(g) Waiver. Any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party entitled to the benefit thereof only by a written instrument signed by the party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, representation, warranty, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
(h) Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by registered mail return receipt requested, (iii) sent by overnight air courier, or (iv) by confirmed facsimile or e-mail, in each case forwarded to the appropriate address set forth herein.
(i) Counterparts. This Agreement may be executed electronically and in one or more counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same instrument.
(j) Injunctive Relief. The parties agree that certain breaches of this Agreement may result in irreparable harm, the extent of which would be difficult and/or impracticable to assess, and where money damages would not be an adequate remedy for that breach. Accordingly, each party shall be entitled to seek any and all remedies available at law or in equity, including, without limitation, injunctive relief or specific performance.
(k) Assignment. Neither this Agreement nor any rights under this Agreement may be assigned, delegated, sublicensed, pledged or otherwise transferred by either party, in whole or in part, whether de facto, voluntarily, by operation of law, or otherwise, without the prior written consent of the non-assigning party, which consent shall not be unreasonably withheld, delayed or conditioned, and any purported assignment without such consent shall be void ab initio. Notwithstanding the foregoing, either party may assign this Agreement without consent in connection with a merger or sale of all or substantially all of its assets or capital stock, or an Affiliate. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns.
(l) No Third Party Beneficiaries. The terms, representations, warranties and agreements of the parties set forth in this Agreement are not intended for, nor shall they be for the benefit of or enforceable by, any person or entity that is not a party to this Agreement.
SCHEDULE A – Products and Pricing
Subscriptions to the Method Test Prep ACT and SAT online prep program
2. Re-branding: MTP will rebrand the Service with Reseller’s logos, icons, and graphics.
3. Technical Integration. MTP and Re-seller will each perform the tasks outlined below:
- Re-seller will provide logo or banner in digital format
- We recommend a height of 80 pixels. Only files with valid extensions such as JPG / PNG are allowed
- Reseller can also provide a digital icon which we recommend to be a size of 80 x 80 pixels
4. Training: MTP shall provide training on the use of Service for Re-seller sales staff members as set forth below.
- MTP will provide a 45-minute live training webinar which will be recorded for future viewing as well as a library of help videos the Re-seller can access at all times.
- All additional training is subject to additional fees. Standard training pricing is $259/hr.
|Number of Accounts||Price Per Account|
|5 (minimum) – 9||$70|
|10 – 19||$65|
|20 – 29||$60|
|30 – 49||$55|