This xTuple MarketPlace Seller Agreement (the "Agreement"), dated this _____ (day) of ____________ (month), _____ (year) is entered into between OpenMFG LLC, d/b/a xTuple (“xTuple”), and you (the "Seller") identified herein in the Seller Program Application submitted electronically on behalf of the Seller (the "Application"). This Agreement and any attachment hereto establishes the terms and conditions that apply to a Seller's participation in the xTuple® Sales and Referral Program on xTuple MarketPlace (the "Program").
1. Enrollment & Acceptance.
To become a participant in the Program, Seller must first have xTuple Full Access privileges online. Once Seller has Full Access privileges, Seller must submit a completed Application. The acceptance of Seller and any Seller product into the Program is in the sole discretion of xTuple. xTuple will notify Seller by email, or via some other method deemed appropriate by xTuple, whether Seller’s Application and each Product Application has been accepted or rejected. If xTuple rejects Seller's Application, then none of the terms and conditions of this Agreement shall apply to Seller, except for Sections 1, 10 and 14. If xTuple accepts Seller's Application, then all of the terms and conditions of this Agreement and the date of notice to Seller shall be the effective date of this Agreement (“Effective Date”). If xTuple accepts a Product Application, then all of the terms and conditions of this Agreement as provided on the Site and as amended from time to time will apply and are incorporated by reference. Any product of Seller whose Product Application has been accepted by xTuple shall be defined as Seller Product for the purposes of this Agreement. In addition, Seller will be bound by the additional terms set forth on Exhibit A hereto.
2. Program Level & Scope.
The Program may offer multiple levels of participation and benefits. Thus, the scope of benefits provided to the Seller is subject to: (a) the Seller Level; and (b) the Seller Program Overview as listed on the xTuple website on the date the Seller submitted the Application (the "Seller Program Overview").
There is no charge to list Products in the MarketPlace. xTuple will charge a Transaction Fee for any completed sale of Seller Products as follows:
- If Seller is not an active xTuple Partner, the Transaction Fee shall be 60% of the list price of the Seller Product.
- If Seller is an xTuple Authorized Consultant in good standing, the Transaction Fee shall be 50% of the list price of the Seller Product.
- If Seller is an xTuple Solution Provider in good standing, the Transaction Fee shall be 40% of the list price of the Seller Product.
- If Seller is an xTuple Development Partner in good standing, the Transaction Fee shall be 30% of the list price of the Seller Product.
- If Seller is an xTuple Gold Solution Provider in good standing, the Transaction Fee shall be 20% of the list price of the Seller Product.
All online payments and Fees shall be made in U.S. dollars.
4. Product Information.
4.1 Product Information License.
"Product Information" means all content, including photographs, images, artwork, logos, data, text, trademarks and other copyrightable works that identify and describe a Seller Product, supplied by Seller for display on the Site from time to time. Seller shall include the Product Information in the Product Application. Seller hereby grants xTuple a nonexclusive, worldwide, royalty-free license to market, display, reproduce (including compression and temporary storage), distribute, display perform, transmit and promote the Product Information on the Site.
4.2 Product Information Obligations.
xTuple will place the Product Information on the Site within a reasonable time after receiving all of the Product Information required in the Product Application. The positioning of Product Information within the Site or on any page therein is at the sole discretion of xTuple and will be determined by xTuple in its sole discretion. In no event will adjustments or refunds be made because of the webpage, section or position in which a Product Information has been published. xTuple may redesign the Site in its sole discretion at any time. xTuple reserves the right to review, reject or modify any Product Information, or remove any Product Information from the Site if the Product Information violates any law, statute or regulation or any policy of xTuple and xTuple shall not be liable for any such decision.
xTuple shall use reasonable commercial efforts to maintain the availability of the Site to the public and the function to permit distribution of the Seller Products; provided however that xTuple does not warrant the availability or functionality of the Site. XTUPLE MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM, THE XTUPLE MARKS, THE SITE, THE LINKS OR ANY PRODUCTS, SERVICES OR OTHER ITEMS OFFERED, SOLD OR LICENSED THROUGH THE PROGRAM, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, NON-INTERFERENCE AND ACCURACY OF INFORMATIONAL CONTENT. XTUPLE MAKES NO REPRESENTATION THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND XTUPLE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
6. Linking to xTuple.
6.1 Approved Links.
During the term of this Agreement, if Seller wishes to include a link to the Site from the Seller’s website (“Seller’s Site”), it shall only use a hypertext transfer button or text links to a page specified by xTuple (“Link”). Such Links may contain only the particular xTuple logo, words and/or text specified by xTuple. In using the Links, Seller agrees to cooperate fully with xTuple in order to establish and maintain such Links. Seller shall use only those Links provided by xTuple to Seller, or those approved in writing by xTuple, and shall substitute those Links with any new Links that xTuple may provide from time to time during the term of this Agreement. Seller shall comply with all guidelines provided by xTuple with respect to the graphic reproduction, appearance and "look and feel" of the Links and all references to xTuple.
6.2 No Spam or Forced Linking.
Seller shall not send unsolicited commercial email ("spam") which makes reference to xTuple, or which includes a link to the Site. Seller also shall not force visitors to the xTuple website via any mechanism which acts as an automatic transport, such as "meta refresh" or "forced exit" scripts. This Agreement and any attachment hereto, shall terminate immediately and automatically if Seller directs traffic to the xTuple website or advertises through the use of spam or any automatic transport mechanism or otherwise uses a Link in an unauthorized fashion, and in such case all commissions earned shall be immediately and automatically forfeited.
Seller acknowledges and agrees that all right, title and interest in all xTuple logos, trade names, trademarks and service marks, including those incorporated in Links (collectively, the "xTuple Marks"), are the sole and exclusive property of xTuple and may not be used without xTuple’s prior written consent.
7.2 Limited Licenses.
7.2.1 xTuple Marks.
xTuple grants Seller a limited, non-transferable, non-exclusive, revocable license during the term of this Agreement to: (a) access the Site through Links established on the Seller Site solely as set forth under the terms of this Agreement; and (b) solely in connection with such Links, use specified xTuple Marks for the purpose of promoting on the Seller Site the availability of Seller Products from the Site. xTuple reserves any and all trademark rights not otherwise expressly provided to Seller in this subsection.
Seller shall not alter, modify or change any xTuple Mark in any way whatsoever. xTuple reserve all rights in the xTuple Marks and all other intellectual property rights. Seller shall not assert the invalidity, unenforceability or contest the ownership by xTuple of the xTuple Marks in any action or proceeding of whatever kind or nature, and shall not take any action that may prejudice xTuple's rights in the xTuple Marks, render the xTuple Marks generic, or otherwise weaken their validity or diminish their associated goodwill. Seller also agrees to abide by the publicly available "xTuple Trademark Policy" made available on the xTuple website, as revised by xTuple from time to time in its discretion. Any and all goodwill arising from Seller's use of the xTuple Marks shall inure exclusively to the benefit of xTuple.
7.4 Marketing Approval.
Each party will review and approve proposed marketing documentation prepared by the other party concerning any applicable Products or Corporate mention to ensure that such material accurately and fairly represent the Seller Products and the Site.
8. Other Seller Obligations.
Seller will be solely responsible for, and xTuple shall have no liability related to, the development, operation or maintenance of Seller's site, or any goods or services promoted or otherwise provided by Seller.
Seller shall not, and shall not allow third parties to, directly or indirectly, without a separate license from xTuple (either the CPAL open source license for the PostBooks Edition of xTuple, or the xTuple End-User License Agreement for the commercial Editions of xTuple ERP): A) copy, sell, license, distribute, install on a third party machine (remotely or directly), rent, lease, assign, or otherwise transfer ownership rights to any software distributed by xTuple under any trademark owned by xTuple (the “xTuple Software”); B) transfer, transmit, or export the xTuple Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; C) modify, adapt, translate, or prepare derivative works from the Software and, to the extent permitted by applicable law, shall not, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the xTuple Software; D) remove, obscure, or alter xTuple’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the xTuple Software; E) Fork any version of the xTuple Software. "Forking" means to bifurcate the source code for any xTuple open source licensed products into a separately maintained source code repository so that development done on the original code requires manual work to be transferred to the forked software or so that the forked software starts to have features not present in the original software.
8.3 No Confusing Content.
Seller agrees that the domain name for Seller's site does not and will not contain the "xTuple" mark, or any variation thereof. Seller's Site may not copy, co-brand or frame the Site or otherwise have any portion of the Site visible on Seller's Site, or otherwise have any portion of Seller's Site visible on the screen once a user has clicked through to the Site. Seller's site will not in any way copy any content from, or resemble the look and feel of, the Site, nor may Seller create the impression that Seller's Site is the Site or is part of the Site. Seller also agrees not to purchase or otherwise contract with a third party to exploit any of the xTuple Marks for the purpose of causing Seller's site to appear as a search engine result or for any other reason. All content on the Site is the copyrighted material of xTuple or a third party and may not be copied without prior written permission from xTuple.
9. Term & Termination.
The initial term of this Agreement shall be for a one (1) year period commencing on the date of xTuple's acceptance of Seller's Application. This Agreement shall be automatically renewed for subsequent Renewal Terms unless either party provides the other party with notice of its intent not to renew at least thirty (30) days prior to the expiration of the existing term. Such termination may be for one or more Seller’s Products (including a termination for all Seller’s Products). Either party may terminate this Agreement at any time and for any or no reason upon the provision of sixty (60) days written notice to the other.
9.2 Effect of Termination.
Upon the termination of this Agreement for any reason for one or more Seller Products, but not the Agreement as a whole, Seller will immediately: (a) cease use of, and remove from Seller's Site, all Links and any other materials provided by or on behalf of xTuple to Seller pursuant to this Agreement relating to the Seller’s Products for which the Agreement is terminated and (b) cease any and all promotional activities Seller may be undertaking for the Seller Products for which the Agreement is terminated. Upon the termination of this Agreement for any reason in its entirety, all outstanding fees will become immediately due and payable and Seller will immediately: (a) cease use of, and remove from Seller's Site, all Links and any other materials provided by or on behalf of xTuple to Seller pursuant to this Agreement; (b) cease use of any xTuple Mark; (c) return to xTuple any and all copies of all promotional materials that incorporate any other xTuple Mark; and (d) return to xTuple all of its confidential information.
9.3. Discontinuation of Seller Support.
In the event of the discontinuation of support or maintenance of any Seller Product, Seller agrees to transfer to xTuple all right, title, interest, copyright, source code, and patent rights in and to the discontinued Seller Product. Seller further agrees that xTuple shall have the right to enter into a direct contractual or other relationship with any customer regarding the discontinued Seller Product, software support, or any other matters. xTuple shall have no obligation to account to Seller for any revenues or other consideration received from any such relationships. Support or maintenance of Seller Product shall be deemed to have occurred if a) xTuple is notified by a customer that Seller is not supporting the product or providing updates, b) xTuple contacts Seller to inquire as to the current status of support or maintenance of the Seller Product, and c) Seller has not satisfactorily responded to xTuple within 30 days. The provisions of Sections 1, 3 (with respect to any outstanding fees), 5, 9.2, 9.3, and 10 shall survive any termination of this Agreement.
10. Limitation of Liability.
XTUPLE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS OR DATA ARISING IN CONNECTION WITH THIS AGREEMENT, ANY ATTACHMENT HERETO, OR THE PROGRAM, EVEN IF XTUPLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ATTACHMENT HERETO, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF XTUPLE ARISING WITH RESPECT TO THIS AGREEMENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION WILL NOT EXCEED THE GREATER OF (A) THE TOTAL FEES PAID OR PAYABLE TO SELLER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE SELLER WERE TO MAKE AND NOTIFY XTUPLE OF A CLAIM AND (B) ONE HUNDRED DOLLARS ($100.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING (WITHOUT LIMITATION) BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATIONS AND OTHER TORTS. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY SELLER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. BOTH PARTIES UNDERSTAND AND AGREE THAT THE REMEDIES AND LIMITATIONS HEREIN ALLOCATE THE RISKS BETWEEN THE PARTIES AS AUTHORIZED BY APPLICABLE LAWS. THE FEES HEREIN REFLECT, AND ARE SET IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES SET FORTH IN THIS AGREEMENT OR ANY ATTACHMENT HERETO.
11. Representations and Warranties.
Seller hereby represents and warrants to xTuple the following: (a) this Agreement and any attachment hereto has been duly and validly executed and delivered by Seller and constitutes Seller's legal, valid and binding obligation, enforceable against Seller in accordance with its terms; (b) the execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate any provision of law, rule or regulation to which Seller is subject, any order, judgment or decree applicable to Seller or binding upon Seller's assets or properties, any provision of Seller's by-laws or certificate of incorporation or organization or any agreement or other instrument applicable to Seller or binding upon Seller's assets or properties; (c) Seller is an adult of at least 18 years of age; (d) Seller is the owner of the Seller Marks and has all the rights and power to license such marks to xTuple; (e) Seller's Site and business complies, and shall continue during the term of this Agreement to comply, with all applicable laws; (f) Seller holds all necessary rights to permit the use of the Product Information by xTuple for the purpose of this Agreement; (g) Seller holds all necessary rights and permissions to grant the licenses hereunder and (h) the Product Information does not and will not violate any applicable laws or regulations or any third party rights, or contain any inaccuracies, omissions, misrepresentations or any material that is inappropriate, vulgar, obscene, unlawful or otherwise objectionable, including any material that encourages conduct that would constitute a criminal offense or give rise to civil liability.
As a result of Seller's participation in the Program, xTuple may disclose either verbally or in writing to Seller certain information which xTuple considers to be confidential ("Confidential Information"). Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Seller for Seller's own business purposes or for any the purpose of exercising its rights and obligations under the Agreement except and solely to the extent that any such information is generally known or available to the public or if the same is required by law or legal process.
Seller hereby agrees to indemnify, defend and hold harmless xTuple, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by xTuple (collectively the "Losses"), in so far as such Losses (or actions in respect thereof) arise out of or are based on: (a) any claim or threatened claim that xTuple 's use of any Seller Mark, Product Information or other material provided by Seller infringes on the copyright, trade secret, trademark, patent or other intellectual property rights, proprietary rights or other rights of any third party; (b) the breach of any representation or warranty made by Seller herein, or any of Seller's obligations herein; or (c) any claim related to Seller's Site, business or practices.
14. Other Provisions.
14.1 Relationship of Parties.
xTuple and Seller are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Seller has no authority to make or accept any offers or representations on behalf of xTuple, and agrees not to make any statement, whether on Seller's Site or otherwise, that reasonably would contradict anything in this Section.
14.2 Modification; Assignment.
Seller understands that the Program is experimental and xTuple may need to modify the terms of the Agreement to reflect changes in its business model, xTuple may modify any of the terms contained in this Agreement or MarketPlace Terms and Conditions or any other document incorporated herein by reference, at any time and in xTuple’s sole discretion, and any such modification may include material changes. Posting on the Site of a change notice or a new agreement is considered sufficient notice, although xTuple may also notify Seller of changes by email. Unless otherwise noted in an amendment, amendments shall automatically be deemed to take effect on the first day of the calendar month that occurs at least 30 days after the date that xTuple first posted the amendment. If any modification is unacceptable to Seller, Seller's only recourse is to terminate this Agreement by providing xTuple with written notice thereof no later than thirty (30) days after the date that the change was posted or otherwise took effect. Seller's continued participation in the Program following the xTuple posting of a change notice or new agreement on the Site, or notifying Seller by email, will constitute binding acceptance of the change. Seller agrees always to provide xTuple with timely written updates of Seller's contact information. Seller may not assign, sublicense or otherwise transfer this Agreement or any of Seller's rights or obligations hereunder, by operation of law or otherwise, without xTuple’s prior written consent, which may be withheld in xTuple’s sole and absolute discretion. Subject to that restriction, this Agreement, or any attachment hereto, will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
The parties have agreed to execute this Agreement and any attachment hereto in the English language. In the event of any dispute in connection with this Agreement or any attachment hereto, the English language version of the Agreement or any attachment hereto will control for all purposes. Any action brought under this Agreement or any attachment hereto shall be conducted in the English language. xTuple’s failure to enforce Seller's strict performance of any provision of this Agreement hereto will not constitute a waiver of xTuple’s right to enforce such provision or any other provision of this Agreement. The headings used in this Agreement or any attachment hereto are for convenience only and are not intended to be used as an aid to interpretation. If any part of this Agreement or any attachment hereto is held by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement or any attachment hereto shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
14.4 Governing Law.
The validity and effect of this Agreement will be governed by and construed and enforced in accordance with the laws of the Commonwealth of Virginia without regard to its rules of conflicts of law, including without limitation by all provisions of Virginia’s enactment (without regard for its actual effective date), as it may be amended from time to time, of the Uniform Computer Information Transactions Act.
14.5 Dispute Resolution.
The parties shall act in good faith and use commercially reasonable efforts to promptly resolve any claim, dispute, controversy or disagreement (each a “Dispute”) between the parties under or related to this Agreement. The efforts will include at least one face-to-face meeting between senior executive officers of the parties. Any Dispute arising out of this Agreement that cannot be resolved by the parties shall be governed exclusively by arbitration. The arbitration will be initiated and conducted (except as otherwise provided herein) in accordance with the Commercial Arbitration Rules of the American Arbitration Association, shall be conducted by a panel of three arbitrators, and shall be conducted in the Norfolk, Virginia metropolitan area. The arbitrator shall have the power to award reasonable attorney’s fees and costs to the prevailing party in any arbitration, and either party shall have the right to take appropriate action to enforce any arbitration award. Nothing contained in this provision shall prohibit a party from seeking immediate injunctive relief in a court of competent jurisdiction to stop a party from breaching this Agreement.
14.6 Entire Agreement.
The provisions contained in this Agreement and MarketPlace Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement, with the exception of any pre-existing xTuple Partner Program Agreement.
14.7 Independent Investigation.
Seller acknowledges that Seller has read this Agreement and the MarketPlace Terms and Conditions, and has had an opportunity to consult with Seller's own legal advisors if Seller so desired, and agrees to all its terms and conditions.
Exhibit A - Additional Terms
- Seller will be referred to as “you”
- “Third Party Content” means (i) content and information licensed by xTuple from third parties for display on the xTuple Sites, and (ii) content, information and material posted to the Site by third party users of the Site.
- “Services” means the services available on the Site.
You are prohibited from taking any action to circumvent or attempt to circumvent the security and access control provisions of the Site and the Services. Such prohibited conduct includes, without limitation, any efforts to (a) log in to an account with a password not assigned to you, (b) access personally identifiable information not intended for you, (c) test the security measures on the Site and/or attempt to identify system vulnerabilities, (d) impersonate any other user of the Site and/or the Services or forge any of the header information in any posting or tamper with the TCP/IP packet header, (d) modify, reverse engineer, disassemble, decompile or otherwise attempt or allow others to attempt to discover the underlying computer code for the Site and/or the Services, or (f) overwhelm or disable the Site or the Services or interfere with the access and use of the Site and/or the Services by any other user. If xTuple becomes aware of any of the foregoing activities, xTuple may investigate and may respond, and when appropriate, xTuple may work with law enforcement authorities in such investigations and for the purpose of prosecuting offenders. Your continued use of the Site and the Services is expressly conditioned on your compliance with the preceding prohibitions and with the obligations and restrictions. Without limiting the generality of foregoing, you acknowledge that xTuple expressly prohibits and you agree not to:
- post any false, inaccurate or misleading Third Party Content (defined below);
- use the Services and/or the Site to violate any applicable law or regulation, including, without limitation, the infringement of any copyright, trademark, trade secret or other intellectual property right of others, or violate the privacy or publicity rights of any other person;
- post any Third Party Content that is abusive, defamatory, discriminatory, hateful, obscene, vulgar, sexually-orientated, threatening, or otherwise objectionable;
- harass, stalk, or otherwise subject any other user of the Site and/or Services to unwanted and/or inappropriate contact;
- send unsolicited mail or e-mail, make unsolicited phone calls or send unsolicited faxes and/or advertise any products or services either by directly posting on the Site or within the Services or by making unsolicited contact with any user via email, telephone, postal mail, or any other method of communication;
- make any changes, additions and/or deletions to any of the Third Party Content posted by any user without the express written authorization of such other user;
- take any action that imposes an unreasonable or disproportionately large burden on the Site's infrastructure;
- include any misleading, irrelevant and/or hidden keywords in any Third Party Content posted by you;
- frame or link to the Site any of the content or information available from the Site unless xTuple expressly consents to such linking and/or framing;
- intentionally expose the Site and/or Service to any computer virus or any other program or code intended to disrupt or disable to operations of the Site and/or Service;
- use any robot, spider or other program or device to retrieve or index any portion of the Site; or
- harvest or otherwise collect information about other users for any purpose other than use of the Site and/or Services as expressly permitted herein.
In addition to the foregoing, if you are a developer that makes Third Party Software available to users via the Site, you acknowledge that xTuple expressly prohibits and you agree not to:
- post Third Party Software or Third Party Content in inappropriate categories or areas on the Site;
- post or otherwise make available to users via the Site any: (i) Third Party Software or Third Party Content that does not materially benefit users of xTuple products or services; or (ii) Third Party Software or Third Party Content that is competitive with, or which otherwise benefits competitors of, xTuple products and services;
- use the Site if you are not able to form legally-binding contracts, are under the age of 18, or are temporarily or permanently suspended from use of the xTuple Site;
- fail to deliver Third Party Software or Third Party Content purchased or otherwise acquired from you, unless the acquirer fails to meet the posted terms;
- circumvent or manipulate the billing process established by xTuple to facilitate processing of orders on your behalf; or
- transfer or otherwise allow others to use your developer account and user ID without xTuple’s prior written consent.