MARKETPLACE LISTING AGREEMENT
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE PROCEEDING TO USE THE DYNAMIC CHANNELS ISV MARKETPLACE OR SI MARKETPLACE (REFERRED TO AS THE DYNAMIC CHANNELS “P2P MARKETPLACE” OR “MARKETPLACE”). BY SUBMITTING YOUR OFFERING AS A LISTING PARTNER YOU ARE ACCEPTING AND AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS MARKETPLACE LISTING AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT YOUR APPLICATION AND DO NOT POST YOUR PRODUCT OR SERVICE TO THE MARKETPLACE. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND DYNAMIC CHANNELS. THIS AGREEMENT SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION OR UNDERSTANDING BETWEEN THE PARTIES.
1.2 In consideration of the mutual covenants and agreements contained in this Agreement, Listing Partner and Dynamic Channels agree to the terms and conditions set out in this Agreement.
2.1 “Documentation” shall be instructional and other documentation, in printed and electronic form, relating to the marketing, use, and support of the Products including, but not limited to, internals, externals, procedures, training manuals, and education materials, and any update and modification thereto.
2.2 "End User" shall be an entity which has licensed the Products or Services for its own internal use and not for further distribution.
2.3 "Affiliate Marketer" shall be any nonemployee representative of Dynamic Channels or any majority owned subsidiary of Dynamic Channels or any third party appointed by the MarketPlace to represent, market, or sale Products or Services listed on The Site.
2.4 "Affiliate Marketer's Fee" shall be the amount retained by or paid to an Affiliate Marketer as its compensation for marketing the Product or Services.
2.5 "License Agreement" shall be the license agreement with End Users, provided by the Listing Partner, for each Product or Service sold by partners referred through the Marketplace. If no other license to govern End Users is agreed or provided by Listing Partner, the Marketplace shall have the right to define a License Agreement terms for Listed Products or Services.
2.6 End User Fees. “License Charge" shall be the fee, as further defined in this Paragraph 2.6, received from End User, directly or indirectly, for licensed use of the Products or Services, for a specified period of time. Any additional sales of Product or future versions of the Products to End User may also require an additional “License Charge” of End Users. If Listing Partner does not, the Marketplace may charge a License Charge each time a Product or Service is licensed or “sold” through the Dynamic Channels Marketplace. License Charges shall include initial license charges, subscription license charges, lease license charges, rental license charges, upgrade license charges, renewal or annual usage license charges, and any similar charges.
“Service Fees” shall include: installation charges; implementation charges; optional services charges; maintenance charges; trial agreement charges; demonstration charges; consulting services charges; education charges; subcontractor fees.
License Charges and Service Fees shall not include: financing or interest charges, including those rolled into any license charge; service or late charges; or other similar charges; sales tax, use tax, value added tax, or other similar taxes.
2.7 “Net Income” shall be the License Charges received from End Users less any amount paid to third parties that are not a Dynamic Channels owned or controlled subsidiary, or Affiliate or referred partner.
2.8 "Products" shall be the computer software products which are proprietary to Listing Partner and are more fully described in Appendix A, Description of the Products. Products shall include all documentation necessary for End User to perform the functions of the Products. Products shall also include all enhancements, improvements, modifications, releases, versions, and any replacement products.
2.9 "Services" shall be the consulting help, education, and support which are offered by Listing Partner or Marketplace appointed Affiliate and sold in conjunction with and for use of the Products.
2.10 "Royalty Quarter" shall be successive quarters of the calendar year, ending on March 31, June 30, September 30, and December 31.
2.11 "Royalty Year" shall be the 12-month period beginning April 1st and ending March 31st of the following year.
3. LICENSE GRANTS
3.1 Listing Partner hereby grants and Dynamic Channels hereby accepts for itself and its Agents a(n) nonexclusive, worldwide, perpetual, irrevocable license to market, promote, and demonstrate, the Products, through the Marketplace (an on-line e-commerce directory); directly or indirectly, including through affiliates, value added resellers, dealers, distributors, Agents, original equipment manufacturers, and others validly Licensed through the P2P Marketplace; including Listing Partner's copyrights, trademarks, and proprietary rights related to the Products.
3.2 Listing Partner grants Dynamic Channels a nonexclusive, perpetual, irrevocable worldwide license to market, promote, and demonstrate and, at its option, if requested in writing by Listing Partner, and Dynamic Channels agrees to do so, for Dynamic Channels to support, maintain, copy, translate, rename, repackage, manufacture, the Products, directly or indirectly, to End Users. Otherwise, Listing Partner assumes all responsibility to support End Users in the use of their Products according to the terms of the prevailing license.
4.1 If Listing Partner declines to perform any new development, extension, or marketing tool for Listing Partner Products that Dynamic Channels requires, then Dynamic Channels shall have the right to perform that development and retain resulting intellectual property.
5.1 Except for the rights and licenses granted to Dynamic Channels, Listing Partner shall retain all right, title, and interest in the Products including all rights under applicable patents, copyrights, trademarks, and trade secrets.
5.2 Except for the rights and licenses granted to Listing Partner, Dynamic Channels shall retain all right, title, and interest in any human language translations or development as provided in Section 4. of the Products which Dynamic Channels requires and performs.
This Agreement shall be effective as at time of Listing (“ Date of Execution”). From the date of its commencement, this Agreement shall continue in force for a term of one year(s) and thereafter will automatically renew for successive one-year terms, unless terminated earlier as provided in Section 14, TERMINATION.
7.1 Listing Partner, as the default practice, shall ship the Products directly to End User as soon as is practicable after receipt of an End User order.
8.1 Listing Partner shall invoice End Users for License Charges for the Products licensed by End Users.
8.2 Listing Partner shall pay Dynamic Channels a Referral or Margin Fee of each License Charge paid by End Users for Products referred by Dynamic Channels or sold to End Users by Partners referred to Listing Partner by Dynamic Channels or from the Marketplace, in the amount noted in Appendix A.
8.3 Listing Partner shall pay Dynamic Channels a Referral or Margin Fee for Support and Service Charges paid by End Users for technical, consulting, service, and support of Products or Services licensed by End Users and performed by Listing Partner for End Users referred by Dynamic Channels or sold to End Users by Partners referred to Listing Partner by Dynamic Channels or from the Marketplace, in the amount noted in Appendix A.
8.4 All payments due to Dynamic Channels shall be payable by Listing Partner within 30 days of the end of the Royalty Quarter in which Listing Partner invoices the End User.
8.5 The parties acknowledge that in certain countries currencies may become not freely remittable outside of those countries or the transfer of charges outside of those countries may become taxed or prohibited by law. In such case, the parties may mutually agree that payments be made in other than United States dollars and may take into consideration the manner in which such a situation could best be handled in the interests of both parties.
9.1 Listing Partner shall provide all support for the Products to End Users according to the terms of the prevailing End User license agreement. Additionally, Listing Partner will make available to Dynamic Channels and its Affiliate Marketers initial training for each Product. The training will include training in sales, pre-sales support, and other appropriate training for Dynamic Channels and Affiliate Marketers to perform responsibility for the sales and support of Listing Partner’s Products and for End Users to evaluate the Product’s. The cost of this training service will be born by the Listing Partner .
9.2 Listing Partner shall assume responsibility, at no charge to Dynamic Channels, to maintain its content on the Marketplace site with the marketing materials required to represent Products. Dynamic Channels reserves the right to review and activate or de-activate listing for Products. At no cost to Dynamic Channels, Listing Partner may, at its option, provide additional tools to help the sale of the Products through the Marketplace.
9.3 Dynamic Channels reserves the sole right to provide and activate Listing Partner’s Products and Services on the P2P Marketplace. Dynamic Channels will engage in efforts and investments to actively market and sell Listing Partner Products through the Marketplace, as set out in Appendix B, MARKETING EFFORTS.
10. REPRESENTATIONS AND WARRANTIES
10.1 Listing Partner warrants that:
10.1.1 Listing Partner has full power and authority to grant all licenses conveyed to Dynamic Channels under this Agreement and has full power and authority to enter into this Agreement;
10.1.2 the Products and the use of the Products will not infringe any patent, copyright, or trade secret of any third party; and
10.1.3 the Products will substantially conform with the functionality described in the Products' technical manuals and that the Products' media is free from defects.
10.2 EXCEPT AS EXPRESSLY STATED IN THE END USER AGREEMENT, LISTING PARTNER MAKES NO OTHER WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS, INCLUDING ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.3 Dynamic Channels warrants that it has full power and authority to enter into this Agreement.
10.4 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, DYNAMIC CHANNELS MAKES NO OTHER WARRANTIES AND HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
11.1 Listing Partner shall defend, hold harmless, and indemnify Dynamic Channels against any suit, claim, or liability, including reasonable attorney fees, against Dynamic Channels based upon a claim that Listing Partner does not have sufficient right, title, and interest in the Products to grant the rights and licenses contained in this Agreement, or that the Products infringe any patent, copyright, trade secret, or other proprietary right of any third party and shall pay the amount of any settlement or the costs and damages finally awarded after appeal, if any, in such suit, claim, or liability.
12. PROPRIETARY AND CONFIDENTIAL INFORMATION
12.1 Dynamic Channels hereby acknowledges that Listing Partner claims that the Products and related source code contain valuable confidential information and trade secrets developed or acquired by Listing Partner through the expenditure of considerable time and resources. Dynamic Channels shall take all reasonable measures to protect the Products and the related source code. Dynamic Channels shall notify Listing Partner promptly in writing of any knowledge relating to possession or use of Listing Partner’s Products by any person or entity other than those authorized under valid license agreement. Dynamic Channels shall notify Listing Partner of changes Dynamic Channels makes to the source code or shall coordinate such changes with Listing Partner. Dynamic Channels releases Listing Partner of support obligations to End Users for those portions of the Products changed as a result of the changes made by Dynamic Channels to the code.
12.2 Dynamic Channels shall take all reasonable measures to ensure that the confidentiality provisions included in the License Agreement are honored.
12.3 Dynamic Channels shall not remove any notice of copyright, tradename, trademark, or any other proprietary notice from the Products or related documentation.
12.4 Any violation, breach or default of this Section 12 will subject Dynamic Channels to injunctive remedies, as well as such other extraordinary remedies as may be allowed at law or in equity.
13. LIMITATION OF LIABILITY
13.1 EACH PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT, OUT OF THE RELATIONSHIP CREATED BY THIS AGREEMENT, OUT OF THE ACTIVITIES RELATED TO THIS AGREEMENT, OR THE USE OR DISTRIBUTION OF THE LISTING PARTNER, EXCEPT FOR THE PAYMENT OF ANY ROYALTIES AND OTHER AMOUNTS DUE TO LISTING PARTNER UNDER THIS AGREEMENT, SHALL BE LIMITED TO 2 TIMES THE ROYALTIES PAID FOR THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES UNDER ANY CIRCUMSTANCES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SAME. HOWEVER, FOR LIABILITY ARISING OUT OF ANY INTENTIONAL OR WILLFUL BREACH OF THE OBLIGATIONS SET OUT IN SECTION 12, PROPRIETARY AND CONFIDENTIAL INFORMATION, OR ARISING OUT OF THE WARRANTIES SET OUT IN SECTION 10, REPRESENTATIONS AND WARRANTIES, THERE WILL BE NO LIMITATION OF DAMAGES OF ANY KIND.
14.1 This Agreement may be terminated as follows:
14.1.1 Failure by either party to comply with any material term or condition of this Agreement shall constitute default and shall entitle the other party to give the defaulting party written notice requiring it to correct the default. If the defaulting party has not cured the default within 60 days after receipt of the notice, the notifying party may, in addition to any other rights it may have under this Agreement or under the law, terminate this Agreement by giving written notice to the defaulting party effective immediately.
14.1.2 If either party ceases to carry on the business contemplated by this Agreement, becomes or is declared insolvent or bankrupt, or makes an assignment for the benefit of its creditors, the other party may terminate this Agreement by giving 60 days' prior written notice to the party so acting or acted upon.
14.2 Upon termination of this Agreement, Dynamic Channels licenses to the Products as set out in Section 3, License Grants, shall terminate at the time such termination is effective except to the extent necessary for Dynamic Channels to continue the support existing obligations at the time such termination is effective. In such event, Dynamic Channels shall have continuing, royalty-bearing licenses to the Products as set out in Section 3, License Grants, to the extent such rights and licenses exist immediately prior to the time such termination is effective.
14.3 In the event of the termination of this Agreement for any reason by either party as set out in this Section 14, the obligations of Listing Partner and Dynamic Channels which have accrued as of the effective date of termination shall survive such termination. In addition, the rights and obligations of the parties pursuant to Section 8, PAYMENT; Section 9, SUPPORT; Section 10, REPRESENTATIONS AND WARRANTIES; Section 11, INDEMNIFICATION; Section 12, PROPRIETARY AND CONFIDENTIAL INFORMATION; Section 13, LIMITATION OF LIABILITY; Section 16, RESTRICTION ON SOLICITATION OF EMPLOYEES; Section 18, NOTICES; Section 22, GOVERNING LAW; and Section 25, ENTIRE AGREEMENT, shall survive the termination of this Agreement.
15.1 This Agreement does not create any relationship of agency, partnership, or employment between the parties. Dynamic Channels and Listing Partner enter this Agreement as and shall remain independent parties. Listing Partner understands and agrees that it shall not receive any fringe benefits and/or benefit costs of any kind and waives its right to receive any fringe benefits and/or benefit costs of any kind from Dynamic Channels. Except as provided in this Agreement, neither party shall have the right or authority to assume, create, or enlarge any obligation or commitment on behalf of the other party and shall not represent itself as having the authority to bind the other in any manner.
16. RESTRICTION ON SOLICITATION OF EMPLOYEES
16.1 Listing Partner and Dynamic Channels mutually agree, to the extent permitted by law, to refrain from soliciting for employment or employing, directly or indirectly, any End User, employee, agent, Indirect Marketer, reseller, or distributor, of the other until 12 months have elapsed following termination of this Agreement, or until at least 12 months have elapsed following termination of the employment of the employee, agent, Indirect Marketer, reseller, or distributor, whichever occurs first.
17. RECORDS, REPORTS, AND AUDITS
17.1 Dynamic Channels shall prepare and maintain complete and accurate books and records documenting the marketing and distribution of the Products to Affiliate Marketers and End Users.
17.2 During the term of this Agreement, Listing Partner shall have the right, at its expense and upon reasonable notice, to exam Dynamic Channels' books and records which pertain to the matters of this Agreement in order to determine and verify Dynamic Channels’ compliance under this Agreement.
18.1 Any notice required or permitted hereunder shall be validly and effectively given only if in writing and sent by telefax, or by certified mail, postage prepaid, return receipt requested, or by hand delivery to the other party at the following address:
If to Dynamic Channels: Dynamic Channels
Attention: Eric Nies
or to such other address as shall be advised by any party to the other in writing. Notices shall be effective as of the date of receipt or refusal of receipt.
19. ASSIGNMENT AND SUCCESSORS
19.1 This Agreement and any rights or obligations under this Agreement shall not be transferred by either party to any third party without the prior written consent of the other party. This consent shall not be unreasonably withheld. However, Dynamic Channels may transfer, without the consent of Listing Partner, all or any part of this Agreement to any of its affiliated companies. Subject to the restriction on transfer set forth in this Paragraph, this Agreement shall be binding upon and shall inure to the benefit of the parties' successors and assigns.
20.1 The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach. No waiver is effective unless made in writing and signed by the waiving party.
21.1 If any provision of this Agreement is found to be unenforceable or illegal, such provision shall be severable and this Agreement shall be interpreted as if such provision does not exist. If the elimination of such a provision materially affects this Agreement, the Agreement shall be renegotiated so that any change in the rights and obligations hereunder is shared as equitably as is feasible.
22. GOVERNING LAW
22.1 This Agreement and the terms and conditions herein shall be governed by and construed in accordance with the laws of the State of Ohio, United States of America, without regard to its conflict of law principles.
23. FORCE MAJEURE
23.1 Neither party shall be liable for any nonperformance or delay caused by any condition or event beyond its reasonable control.
24. CONSTRUCTION OF TITLES
24.1 The titles of the Paragraphs and Sections of this Agreement are for convenience only and are not to be used in construing or interpreting this Agreement.
25. ENTIRE AGREEMENT
25.1 This Agreement, which includes all referenced Appendices and other addenda, constitutes the entire agreement and understanding between Dynamic Channels and Listing Partner relating to the marketing, sublicensing, and support of the Systems. Any previous proposals or statements, whether oral or written, are hereby superseded. This Agreement may not be amended or modified except by a writing which specifically references this Agreement and is signed by authorized representatives of Dynamic Channels and Listing Partner.
TO THE MARKETPLACE LISTING AGREEMENT
DESCRIPTION OF THE PRODUCT
All products listed on the Dynamic Channels Marketplace, posted by the Listing Partner.
Listing Partner shall pay Dynamic Channels a Margin or Referral Fee in the amount of the % agreed by Listing Partner and Dynamic Channels for relevant Products and Services of Listing Partner sold by Listing Partner from direct referrals by Dynamic Channels from the Marketplace or by Partner and Affiliates referred to Listing Partner by Dynamic Channels.
Listing Partner will make available to Dynamic Channels and Affiliate Marketers, at zero cost or at other costs as agreed, education on the Products:
Listing Partner will pay the amounts noted below for the additional listings:
Basic Listing Posting Fee – First Product Posted is FREE of listing fee.
Additional Product Posting Fee – at the rates agreed
TO THE MARKETPLACE LISTING AGREEMENT
Dynamic Channels will engage in efforts and investments to actively market and sell the Products through the Dynamic Channels Marketplace (https://www.dynamicchannels.expert/marketplaces) and the Affiliate Marketers licensed by it. These efforts typically include the following:
a. List the Product in the on the Marketing site and in the e-commerce order entry system of the Dynamic Channels Marketplace.
b. Review and vet the marketing material to ensure they meet the standards of the Dynamic Channels Marketplace.
c. At Dynamic Channels' option and election, provide support for additional marketing campaigns to promote the Products to the Dynamic Channels Marketplace target market.
d. At Dynamic Channels' option and election, inform, through e-mail notification, the Dynamic Channels Marketplace representatives and End Users of the availability of the Product.