THIS DISTRIBUTION AND LICENSE AGREEMENT (“Agreement”) made between (“Distributor”) and Innotrail, Inc. (“Innotrail”), a Delaware corporation and, in consideration of the mutual promises contained herein, it is hereby agreed as follows:
1. Distribution Rights. During the term hereof, Innotrail grants to Distributor the non-exclusive right and license to market, distribute, and sell to end users globally, login credentials (hereinafter “Licenses”) entitling a user to access and use Innotrail’s educational website called “MentoMind,” an online educational site for use in Distributor’s educational curriculum. The Licenses granted hereby are granted at a significant discount to Innotrail’s own retail rate and are intended only for resale or distribution to users with whom Distributor has a pre-existing contractual relationship. Distributor is not permitted to distribute Licenses to individuals with whom Distributor is not already in a separate, independent relationship related to the end user’s education. If Distributor sells or distributes Licenses to individuals or other entities with whom Distributor does not have a pre-existing relationship, Innotrail reserves the right to immediately terminate this agreement without a refund of any monies paid by Distributor.
2. License Limitations. Licenses will be issued for use by Distributor to a single end-user and, if abandoned or terminated by the end user, shall not be permitted to be re-used or re-sold by Distributor. In addition, Innotrail may decline to fill an order from Distributor to the extent necessary to either resolve or prevent a conflict, to avoid a duplication of effort with Innotrail’s in-house marketing staff, or to prevent or remediate Distributor’s violation of this Agreement. In marketing and distributing Licenses, Distributor agrees at all times to comply with Innotrail’s terms, conditions, and policies concerning the sale and distribution of Licenses.
3. License to Use Trademark and Trade Name. Any and all trademarks and trade names that Innotrail uses in connection with the license granted hereunder, are and remain the exclusive property of Innotrail. This Agreement gives Distributor no right therein except a limited license to reproduce trademarks and trade names as necessary for the sole purpose of allowing Distributor to fully promote and market the Licenses pursuant to the terms of this Agreement. Innotrail hereby grants to Distributor the personal, nonexclusive, nontransferable right and license to place Innotrail’s trademarks and trade names on Distributor’s web page and in Distributor’s marketing materials subject to full compliance with all terms of this Agreement, and such other requirements that Innotrail may, from time to time, require. Distributor agrees to only use the Marks by placing them on its web page or in its marketing materials in connection with its business and in conjunction with the sale and marketing of the Licenses. All uses of Innotrail’s trademarks and trade names shall only inure to the sole and exclusive benefit of Innotrail and to the extent Distributor acquires any trademark or proprietary rights to any of Innotrail’s trademarks, Distributor agrees to take any action necessary to transfer or assign any such rights to Innotrail, including but not limited to any Uniform Resource Locator (URL) owned or maintained by Distributor.
4. Customization. Distributor may request that Innotrail customize MentoMind to include Distributor’s branding and messaging art, copy, or other design elements. Innotrail will make reasonable business efforts to provide same to Distributor, and if it does so provide, will bill Distributor setup fees in connection with this customization in consonance with Section 2.1 above. If Innotrail uses Distributor trademarks or copyrights to accomplish such customization, Distributor agrees to hereby license such trademarks and copyrights to Innotrail for use in such customization for the term of this Agreement.
5. No Return Policy. All sales from Innotrail to Distributor shall be final and there shall be no returns or refunds under any circumstances.
6. Price. Innotrail’s discount purchase price for Distributor and Distributor’s payment obligations for the Licenses will be Innotrail’s then current published “wholesale” prices for the Licenses. The parties agree that Innotrail may, from time to time, revise and update Innotrail’s wholesale prices, provided that Innotrail gives Distributor at least thirty (30) days’ written notice of any such changes. In addition, Distributor shall pay Innotrail a setup fee in support of any customizations that Distributor may request and that Innotrail, in its sole discretion, shall agree to supply. The parties agree that Innotrail may, at any time and in its sole and absolute discretion, change its retail prices for the Licenses.
7. Terms of Payment. Distributor shall pay Innotrail in full for the number of Licenses requested by Distributor. Innotrail shall, promptly upon receipt of Distributor’s payment, provide Distributor access to and use of the Licenses that Distributor has paid for. All payments shall be made in United States currency.
8. Taxes and Duties. The purchase price for the Licenses that Distributor is obligated to pay Innotrail may, if required by law, be increased to include any and all federal, state, county, local or governmental taxes, duties, excise taxes, tariffs, now or hereafter applied on the provision or use of the Licenses including sales tax, value added tax or other tax or duty.
9. Property Rights. Distributor acknowledges and agrees that MentoMind’ s appearance, functionality, design and operation and constitute proprietary and confidential information of Innotrail and title thereto remains in Innotrail. All applicable copyrights, trade secrets, patents and other intellectual and property rights in MentoMind and all other items licensed hereunder are and remain the sole and exclusive property of Innotrail. It is expressly understood that no title to or no interest, in part or in whole, of the ownership of the MentoMind service, or any part thereof is hereby transferred to Distributor.
10. Terms of Resale. Agreements between Distributor and its end users, including the terms of sale of the Licenses, are the responsibility of Distributor. Distributor is responsible for providing the terms of sale to the end users and obtaining their acceptance, and Innotrail shall not be deemed to be a party to such agreements. In particular, Distributor is responsible for ensuring that sales to end users are enforceable contracts made with any underaged students’ parents or guardians. If the end user is a minor, this contract must be formed with the minor’s parent or guardian. Distributor recognizes that users must accept an agreement concerning terms of service with Innotrail concerning the use of the Website, and Distributor shall not be deemed to be a party to such agreement. Distributor agrees not to make any representations or warranties with respect to the Licenses other than the limited warranties made by Innotrail under this Agreement.
11. Unauthorized Copying. Distributor agrees that it will not copy or reproduce the Licenses in any way except as provided for herein. Distributor agrees to notify Innotrail promptly of any circumstances of which Distributor has knowledge relating to any unauthorized use or copying of the Licenses by any person or entity not authorized to do so. Distributor agrees to take, at Distributor’s expense, but at Innotrail’s option and under Innotrail’s control and discretion, any legal action necessary to prevent or stop the unauthorized use of the Licenses by any third party or entity who or which has accessed the Licenses due in substantial part to Distributor’s fault or negligence.
12. End User License Agreement. All use of the Licenses is governed by the terms and conditions of the end user license agreement accompanying the License. Distributor acknowledges and agrees that all persons who receive the Licenses from Distributor must be licensed by the end user license agreement(s) in use by Innotrail at the time the account is registered at the MentoMind website. The parties agree that all sales by Distributor are expressly conditioned upon Distributor’s end user agreeing to be bound by the applicable Innotrail end user license agreement. Nothing in this Agreement shall be construed as allowing Distributor or any other person to alter, supplement, delete or otherwise change the end user license agreement accompanying the Licenses.
13. Non-Competition. During the term of this Agreement and for a period of one year thereafter, Distributor agrees not to engage, directly or indirectly, as an employee, officer, director, partner, consultant, holder of equity interest, lender, or in any other capacity, in any competition with Innotrail or in any business that directly competes with the services offered by Innotrail under this Agreement. This clause is limited to the geographical areas in which Innotrail operates its business at the time of the termination or expiry of this Agreement. Distributor acknowledges that this restriction is reasonable, necessary and proportionate to safeguard the legitimate business interests of Innotrail.
14. Innotrail Warranty. Innotrail warrants that it has all necessary rights in and to all copyrights, patents and other proprietary rights associated with the Licenses that are necessary to market, distribute and license the Licenses. Innotrail warrants that it has the unrestricted right and authority to enter into this Agreement and to grant the rights and licenses hereunder with respect to the Licenses.
15. Disclaimer of Warranties and Limited Liabilities. OTHER THAN THOSE WARRANTIES SET FORTH IN PARAGRAPH 14, INNOTRAIL SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF WARRANTIES EXTENDS TO AND APPLIES TO THE LICENSES, THE MENTOMIND WEBSITE AND MOBILE APPLICATION AND DOCUMENTATION. EXCEPT FOR DAMAGES RESULTING FROM INNOTRAIL’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL INNOTRAIL BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES. ALL LIABILITY BY INNOTRAIL HEREUNDER IS EXPRESSLY LIMITED TO ANY AMOUNTS PAID TO INNOTRAIL FOR THE LICENSE(S) RELATED TO THE DAMAGES FOR WHICH A CLAIMANT SEEKS COMPENSATION.
16. Support Services to Distributor’s End Users. Distributor shall be responsible for sales support of the Licenses directly to its end users. Innotrail agrees to provide technical support for Distributor’s end users on the same terms and basis that Innotrail provides technical support to end users who purchase copies of the Licenses directly from Innotrail.
17. Term. This Agreement shall continue in full force and effect for a period of one (1) year from the date this Agreement was entered into (as specified above) and will thereafter automatically be renewed for additional periods of one (1) year. This Agreement may be canceled at any time during the term of this Agreement upon thirty (30) days’ written notice by either party.
18. Duties Upon Termination. Upon termination of this Agreement by either party, the parties agree to continue their cooperation in order to effect an orderly termination of their relationship. Distributor shall immediately cease representing itself as a reseller of the Licenses for Innotrail and cease using any of Innotrail’s trademarks, service marks, trade names, logos, domain names, and other distinctive brand features. Distributor shall return all copies of promotional materials, marketing literature, written information and reports pertaining to the Licenses that have been supplied by Innotrail. Following the termination of this Agreement, Distributor shall direct all inquiries about any of Innotrail products or Licenses to Innotrail’s website and telephone number.
19. Indemnification by Innotrail. Innotrail shall indemnify, defend and hold Distributor harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including attorney’s fees, directly or indirectly resulting from any claimed infringement or violation of any copyright, patent or other intellectual property right with respect to the MentoMind website or mobile application, so long as the Licenses are used in accordance with the Documentation provided by Innotrail, and Distributor has adhered to its obligations under this Agreement. Following notice of a claim or a threat of actual suit, Innotrail shall at Innotrail’s sole discretion: (a) procure for Distributor the right to continue to use, distribute and sell the Licenses at no additional expense to Distributor; or (b) provide Distributor with a non-infringing version of the Licenses; or (c) notify Distributor that MentoMind is being withdrawn from the market and immediately terminate this Agreement.
20. Indemnification by Distributor. Distributor shall indemnify and hold Innotrail harmless from claims, demands, liabilities, losses, damages, judgments, or settlements incurred or asserted against Innotrail, including penalties, interest and reasonable attorney’s fees, resulting from any charges and costs arising from or in any way related to the sale or use of the Licenses by Distributor.
21. Cooperation by Indemnified Party. Notwithstanding paragraphs 19 and 20 of this Agreement, the indemnifying party is under no obligation to indemnify and hold the other party harmless unless: (a) the indemnifying party shall have been promptly notified of the suit or claim by the indemnified party and furnished by the indemnified party with a copy of each communication, notice or other action relating to said claim; (b) the indemnifying party shall have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at the indemnifying party’s own expense; and, (c) the indemnified party shall provide reasonable information and assistance requested by the indemnifying party in connection with such claim or suit.
22. Confidential Information. Innotrail and Distributor acknowledge that in the course of dealings between the parties, each party will acquire information about the other party, its business activities and operations, its technical information and trade secrets, of a highly confidential and proprietary nature. Each party shall hold such information in strict confidence and shall not reveal the same except for any information generally available to or publically known, known prior to the negotiations leading to this Agreement, independently developed outside the scope of this Agreement or lawfully disclosed by or to a third party or tribunal. Upon termination of this Agreement, Distributor shall immediately return all of Innotrail’s confidential information. The confidential information of each party shall be safeguarded by the other to the same extent that it safeguards its own confidential methods or data relating to its own business, but in no event less than a reasonable degree of care. In the event either party anticipates disclosing any such confidential information to a tribunal, the said party must promptly notify the other party that its confidential information is or may be disclosed to a tribunal.
23. Force Majeure. Neither party shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of service resulting directly or indirectly from acts of God, or any causes beyond the reasonable control of such party.
24. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, and any dispute arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Pennsylvania.
25. Headings. The paragraph headings in this Agreement are inserted for convenience of reference only and shall not control or affect the meaning or construction of this Agreement or any provision thereof. The rule of contract construction permitting any terms that have more than one possible meaning to be construed against the drafter shall not apply.
26. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the parties. By entering into this Agreement, neither party is relying on any oral or written representations, negotiations, commitments, or other communication outside the four corners of this Agreement. This Agreement may not be released, discharged, or modified except by an instrument in writing signed by a duly authorized representative of each of the parties.
27. Independent Contractors. It is expressly agreed that Innotrail and Distributor are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other.
28. Attorneys’ Fees. In any action between the parties to enforce any of the terms of this Agreement, the prevailing party shall be entitled to recover expenses, including reasonable attorneys’ fees and court costs. For purposes of this Agreement, an action to enforce the terms of this Agreement shall include filing, prosecuting, and defending, establishing or otherwise perfecting a claim in any bankruptcy or insolvency proceeding, including any appeals therefrom.
29. Notice. Except as provided below, any notice required to be given by either party to the other shall be deemed given if in writing and actually delivered by email or deposited in the United States mail in registered or certified form with return receipt requested, postage paid, addressed to the notified party.
30. Assignment. This Agreement is not assignable by Distributor without the consent of Innotrail.
31. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.
32. Waiver. No act or failure to act by Innotrail shall be construed as a waiver of its rights under this Agreement unless such waiver is expressly acknowledged and agreed to by Innotrail in writing. No waiver by Innotrail of any violation or breach of any of the terms, provisions and covenants contained in this Agreement shall be deemed or construed to constitute a waiver of any other violation or breach of any of the terms, provisions and covenants contained in this Agreement.
33. Trade Limitation. Distributor hereby assures Innotrail that it will not knowingly transmit or ship the Licenses or product thereof, directly or indirectly, to countries subject to an embargo or other export controls by the United States.
34. Export and Import Licenses and Sale of Licenses. Distributor shall be exclusively responsible for the procurement and renewing of all export or import licenses required under United States or any foreign law for the export or import of the Licenses and shall pay all costs and other expenses in connection with such procurement and renewal. Further, Distributor shall be solely responsible for the terms of the sale of the Licenses.
35. Compliance with Local Laws. Distributor shall be exclusively responsible at its own expense for compliance with all local laws relating to the Licenses in the Territory in which Distributor sells, distributes or markets the Licenses.