WHEREAS, APM Help has developed a property management business solutions marketplace and platform available at www.apmhelp.com that is used by users to assist in all facets of property management, including rental property management, bookkeeping support, training, and bank reconciliations (the “Platform”);
WHEREAS, Partner has developed a software solution also useful to property managers, as furtherdescribed on Exhibit A (the “Partner Software”); and
WHEREAS, the Parties wish to enable Customers (defined below) to license and use the Partner Software as an add-on offering through the Platform, as further described herein.
NOW, THEREFORE, in consideration of the above and the mutual promises hereinafter contained, andfor other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows:
1.1 “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party.
1.2 “API” means APM Help technology functions and procedures, whether in the form of an application program interface or otherwise, that allows for the development of applications or software intended to interface in an integrated manner with an operation system or other service.
1.3 “APM Help IP” has the meaning given in Section 8.1.
1.4 “APM Help Share” means the revenue share payable by Partner to APM Help based on Partner Software Fees collected by Partner, as further described in Exhibit A.
1.5 “Background IP” means any Intellectual Property owned by a Party prior to the Effective Date or developed or acquired by such Party outside of the scope of this Agreement
1.6 “Confidential Information” has the meaning given in Section 7.1.
1.7 “Customer” means a APM Help customer with a subscription or account to use the Platform.
1.8 “Discloser” has the meaning given in Section 7.1.
1.9 “Documentation” means the marketing, technical, or other documentation provided or madeavailable by Partner to describe the features and functionality of the Partner Software.
1.10 “Force Majeure Event” has the meaning given in Section 13.7.
1.11 “Initial Term” has the meaning given in Section 6.1.
1.12 “Intellectual Property” means any inventions, works of authorship, software, logos, brands, or other intellectual property together with any patent, trade secret, copyright, trademark, or other intellectual property rights therein, including any applications for or rights to claim priority to any of the foregoing.
1.13 “Partner Data” means all data (a) provided by Partner to APM Help, (b) collected, received,stored or maintained by APM Help in connection with APM Help’s use of the Partner Software orPartner’s performance of its obligations under this Agreement, or (c) derived from (a) or (b).
1.14 “Partner EULA” means the end-user license agreement provided by Partner to governCustomers’ use of the Partner Software.
1.15 “Partner IP” has the meaning given in Section 8.1.
1.16 “Partner Marks” has the meaning given in Section 8.1.
1.17 “Partner Software” has the meaning given in the Recitals.
1.18 “Partner Software Fees” means the fees actually paid by a Customer to Partner for the Partner Software.
1.19 “Personal Data” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or group of persons who cohabitate with one another at the same residential address and share use of common devices or services, but excludes information that is lawfully made available from federal, state, or local government records.
1.20 “Pilot Phase” means, if selected by the Parties in Exhibit A, an initial pilot phase under this Agreement.
1.21 “Platform” has the meaning in the Recitals.
1.22 “Platform Data” means the property management data maintained by APM Help, including Customer Data provided by or pertaining to APM Help Customers (including Personal Data, in some instances).
1.23 “Purpose” means (a) to develop, manufacture, test, and support the Partner Software (to theextent the Partner Software integrates with or is incorporate into the Platform), and (b) offer bonafide Partner Software subscriptions to Customers.
1.24 “Recipient” has the meaning given in Section 7.1.
1.25 “Renewal Term” has the meaning given in Section 6.1.
1.26 “Security Incident” means any confirmed breach, misuse, misappropriation of, or unauthorized disclosure of or access to APM Help’s Confidential Information, including Platform Data.
1.27 “Term” has the meaning given in Section 6.1.
1.28 “Territory” means United States and Canada.
1.29 “Updates” means any updates, upgrades, bug fixes, patches, or other modifications to the Partner Software or Platform, as applicable.
2.1 Data License from APM Help to Partner.
a. APM Help grants Partner the non-exclusive, irrevocable (during the Term, except as stated here in), transferable, and sub-licensable right and authority solely within the Territory to:
1. Host, access and use the Platform and Platform Data and solely for the Purpose(s) specified here in.
2. Access underlying object code of the Platform, solely for the Purpose(s) specified here in.
b. APM Help is responsible for all Platform Data. APM Help has no obligation to provide Partner with access to any specific set or subset of Platform Data.
2.2 Data License from Partner to APM Help.
a. Partner grants APM Help the non-exclusive, irrevocable (during the Term, except as stated here in), transferable, and sub-licensable right and authority solely within the Territory to:
1. Host, access, reproduce, distribute, communicate, sublicense and use the PartnerData.
2. Publish or display Partner Data to Customers and other users of the Platform.
3. Modify and create derivative works based on Partner Data; and
4. Collect, derive, or generate deidentified and/or aggregated data derived from thePartner Data.
2.3 Trademark License.
a. Partner hereby grants APM Help a non-exclusive, irrevocable (during the Term), worldwide, transferable, sub-licensable, royalty-free, fully paid license to use Partner’s names, logos, and trademarks (collectively, “Partner Marks”) to market and offer subscriptions to the Partner Software through the Platform (e.g., through a Platform app marketplace or otherwise) in accordance with this Agreement. APM Help will comply with any reasonable brand guidelines or identity standards provided by Partner from time to time in writing, and all use of such Partner names, logos, or trademarks by APM Help will inure to Partner’s benefit.
For purposes of clarity and without limiting the generality of the foregoing, Partner will not at any time, directly or indirectly, except as this Agreement expressly permits: (i) copy, modify, or create derivative works of the Platform, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Platform Data; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform; (v) use the Platform for any purpose other than the Purpose or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right, or other right of any person, or that violates any applicable law or regulation; (vi) use the Platform for purposes of competitive analysis of the Platform, the development of a competing software product or service, or any other purpose that is to APM Help’s commercial disadvantage; or (vii) fail to comply with any and all requirements and restrictions imposed on APM Help by its present and future data licensors, suppliers and other entities, provided that APM Help has notified Partner of such requirements and restrictions.
a. APM Help and Partner will work together to configure the API(s) for the Platform to the Partner Software to operate in conjunction with each other for use by Customers. APM Help and Partner will cooperate in configuring or creating the API(s) for the Platform and the Partner Software to operate in conjunction with each other.
Partner will provide APM Help reasonable training, support, and Documentation, atno extra charge, to enable APM Help to display Partner’s offering for Partner Software to currentand prospective Customers.
3.3 Subscription Order Functionality
a. Generally. APM Help will build functionality enabling Customers to order Partner Software subscriptions as an add-on to their base Platform subscription, for a additional fee established by Partner. APM Help will establish a commercially reasonable technical process for administering such orders through the Platform.
b. Partner EULA. Partner is solely responsible for providing an appropriate Partner EULA and for the form, substance, and enforceability of the Partner EULA. The Partner EULA will be solely between Partner and the applicable Customer, and APM Help will not be a party to, or bound by, any Partner EULA. Customers will be required to accept the Partner EULA (e.g., in a clickthrough or checkbox manner) to subscribe to the Partner Software via the Platform. Partner will provide APM Help with a copy of its Partner EULA for APM Help’s review and approval, such approval not to be unreasonably withheld or delayed, provided that APM Help’s review and/or approval does not obviate Partner’s obligation to comply with all of its obligations hereunder.
c. Subscription Length. Unless otherwise set forth in Exhibit A, APM Help may offer Partner Software subscriptions to Customers on an automatically renewing basis, with renewals lasting for the longer of the maximum subscription period described in Exhibit A and the remaining length of the applicable then-current (or renewed) Platform subscription term. Such subscriptions will have a duration of the longer of the maximum subscription period described in Exhibit A and the remaining length of the Platform subscription.
3.4 Pilot Phase.
If agreed in Exhibit A, the Parties will first engage in a Pilot Phase to evaluate the viability of, and appropriate commercial terms for, a long-term relationship hereunder. During the Pilot Phase, the corresponding Pilot Phase terms set forth in Exhibit A will govern. At the conclusion of the Pilot Phase, unless either Party has given notice that it is unwilling to continue to a long-term production relationship (in general, or without appropriate adjustments to commercial terms), the non-Pilot Phase terms in Exhibit A will take effect. If requested by either Party during the Pilot Phase, the Parties will negotiate in good faith to determine whether any adjustments to the non-Pilot Phase commercial terms are appropriate. Any such adjustments will be binding only upon execution of an amendment to this Agreement.
Unless otherwise expressly set forth in Exhibit A, this Agreement does not involve the delivery or distribution of any hardware to Customers. Each Party is responsible for the cost of procuring and maintaining its own hardware it uses to provide the Platform and Partner Software, respectively.
3.6 No Exclusivity.
The relationship established by this Agreement is non-exclusive, and nothing in this Agreement is intended to interfere with, disrupt, or otherwise restrict each Party’s ability to4carry out its normal business activities and pursue opportunities with third parties, even if competitive with the other Party’s offerings.
4.1 Initial Work.
The Parties will agree on an appropriate technical delivery method to facilitate Customer access to the Partner Software through the Platform (e.g., download of local client through the Platform, API connections, lightweight user interface apps hosted directly on the Platform, or more thorough integration). APM Help may charge an integration fee), if applicable. Partner will bear its own costs, if any, to prepare the Partner Software for deployment under this Agreement (e.g., developing and testing any necessary APIs to communicate with the Platform, or otherwise configuring or modifying the Partner Software to be compatible with the Platform). APM Help will provide reasonable cooperation with such efforts upon request, at APM Help’s then-current professional services rates (unless otherwise agreed by the Parties in writing in advance). Any API or other integration with the Platform must be validated and approved by APM Help’s information technology team for security group before implementation in a production environment.
Unless otherwise agreed in writing between the Parties, Partner will host or manage all hosting services for Partner Software. Partner will bear all costs of such hosting.
4.3 Partner Software Support.
Unless otherwise agreed by the parties in writing, Partner will be solely responsible for supporting Customers in their use of the Partner Software, including without limitation responding to Customer support requests related to the Partner Software, and providing reasonable Updates to ensure the Partner Software functions in accordance with its Documentation. APM Help will not provide Customer support for the Partner Software, unless otherwise set forth in Exhibit A.
4.4 Platform Support.
As between APM and Partner, APM Help (or its other third-party partners, where applicable) will be solely responsible for supporting the Platform and its various offerings, including all Customer support requests not related to the Partner Software and providing reasonable Updates to ensure the Platform functions in accordance with its published documentation.
4.5 Project Managers.
Each Party will appoint a project manager as a primary contact for all purposes relating to this Agreement and will notify the other Party in writing of the name and contact information of such individual. The Parties may change project managers at their discretion but must notify the other Party of such change promptly. These project managers are appointed not to preclude appropriate direct peer-to-peer discussions between the Parties’ other personnel, but to serve as a focal point to facilitate an orderly and productive relationship hereunder.
APM Help and Partner will each approve the Partner Software Fees charged to Customers and specify such fees in Exhibit A, which shall be amended by the parties from time to time. Partner will charge Customers the Partner Software Fees on its regular bills or invoices for access to the Partner Software. Partner will pay APM Help the APM Help Share in the amounts, and on the terms, set forth in Exhibit A.
Each Party shall be solely responsible for any sales, use, service or other tax levied against or incurred by it on account of the Agreement or the activities hereunder. The Parties will reasonably cooperate in obtaining and providing documentation as needed for the other Party to claim any applicable tax credit or refund.
This Agreement will begin on the Effective Date and, unless terminated in accordance with this Section 6, continue for an initial term of 3 years (the “Initial Term”) after which it will automatically renew for consecutive 3-year renewal terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either Party gives at least 6 months’ prior written notice of non-renewal, in which case it shall expire.
a. Either Party may terminate this Agreement immediately for cause if: (i) the other Party materially breaches this Agreement and does not cure such breach within 30 days of receipt of notice from the non-breaching Party; (ii) the other Party materially breaches this Agreement and such breach is not reasonably susceptible to cure; or (iii) the other Party is the subject of a bankruptcy order, becomes insolvent, makes any assignment for the benefit of creditors, or goes into either voluntary or compulsory liquidation or a receiver or administrator is appointed over their assets.
b. Either Party may terminate this Agreement for convenience upon 6 months’ prior written notice to the other Party.
6.3 Effect of Termination.
a. Customer Subscriptions. The Parties agree that the termination or expiration of this Agreement will not terminate any Customer subscriptions for Partner Software in effect at the time of termination or expiration. This Agreement will continue after termination solely for the purposes of honoring such Customer subscriptions. For avoidance of doubt, APM Help will not enter into any new Customer subscriptions or renew any existing Customer subscriptions after the effective date of termination of this Agreement unless expressly agreed in writing by Partner.
b. Generally. Without limiting the foregoing, Sections 1, 6.3, 7, 8.1, 9, 11, 12, and 13 willsurvive any termination or expiration of this Agreement. The termination or expiration of thisAgreement will not affect any obligations or liabilities of the Parties arising prior to theeffective date of such termination or expiration.
“Confidential Information” means all information, in any form, whether written, oral, electronic, tangible, or observed, that is disclosed or otherwise made available by one Party (the “Discloser”) to the other Party (the “Recipient”) and is either conspicuously identified as confidential or should be reasonably understood to be confidential based on the nature of the information or circumstances of the disclosure. Confidential Information includes without limitation any software code, documentation, drawings, instructions, specifications, parameters, processes, methods, mechanisms, algorithms, designs, formulae, data, concepts, inventions, plans, and know-how, as well as any other proprietary technical, financial, or business information made available to Recipient hereunder.
The obligations of confidentiality herein will not apply to any particular information that Recipient can prove, to Discloser’s reasonable satisfaction: (a) was in the public domain at the time of disclosure to Recipient; (b) was known by Recipient prior to receipt from Discloser, as evidenced by contemporaneous written records in Recipient’s possession; (c) becomes known to the general public through no act or omission of Recipient; or (d) was disclosed to Recipient6without an obligation of confidentiality by a third party having the legal right to do so. Recipient may disclose Confidential Information as required by court order, law or regulation, provided that Recipient provides Discloser reasonable advance notice and opportunity to object to or seek the limitation of such disclosure (to the extent permitted by law).
Discloser will remain the exclusive owner of its Confidential Information. Recipient may only use Confidential Information as necessary to perform its obligations or exercise its rights in connection with this Agreement. Recipient will keep all Confidential Information in strict confidence and will not disclose any Confidential Information to any third parties except to its employees and contractors who have a need to know the information in connection with the purpose of this Agreement, who are informed of the confidential nature of the information, and who are bound by written confidentiality obligations at least as protective as those contained herein. Recipient will use the same efforts it uses with its own most sensitive information, and in no event less than commercially reasonable efforts, to comply with the confidentiality and limited-use obligations of this Agreement. Recipient will be liable for any unauthorized use or disclosure of Confidential Information by its employees and contractors.
7.4 Return or Destruction.
At any time at Discloser’s request, Recipient will promptly return or destroy all Confidential Information (including any copies thereof) in its possession or control, except that Recipient may retain: (i) any copies permitted or required to be retained under applicable law and (ii) copies in backup or archive media created in the ordinary course of business that are eventually deleted or destroyed according to Recipient’s document retention policy; provided in each case that the obligations of confidentiality hereunder will continue to apply to such retained copies. The Recipient shall promptly upon request provide the Discloser a certification that such return or destruction satisfying the requirements of this sections has taken place.
7.5 Survival; Remedies.
The obligations of confidentiality herein will survive any termination or expiration of this Agreement for the greater of 5 years, or so long as such Confidential Information remains protected as a trade secret under applicable law. Each Party agrees that the other Party may have no adequate remedy at law if there is a breach or threatened breach of this Section 7 and, accordingly, that the non-breaching Party will be entitled to seek injunctive or other equitable relief to prevent or remedy such a breach, without necessity of posting any bond (in addition to any legal remedies available to that Party).
a. Sharing of Personal Data.
1. To the extent that Partner causes or permits the submission of any personally identifiable information to the Platform (as the term is defined under applicable law), Partner represents and warrants that Partner has complied with all applicable laws and received the proper authority or consent to collect, process, and share such information with APM Help and its Customers and each of their respective users. Partner further consents to the sharing by APM Help and Customers of all Partner Data in whatever form with other Customers.
1. Partner will develop, implement, use, and maintain appropriate administrative, technical, logical, and physical safeguards(“Safeguards”) in compliance with applicable laws and data security best practices to preserve the integrity and confidentiality of, and to prevent unauthorized use and disclosure of: (i) any Platform Data; (ii)any other Confidential Information of APM Help that is submitted to Partner by APM Help pursuant to this Agreement; and (iii) any other data that Partner creates, uses, receives, accesses, stores, processes, or transmits for a Customer or for APM Help pursuant to this Agreement(collectively, “Protected Data”). Partner’s information security program Safeguards include (A) adequate physical security of all premises in which Platform Data will be processed, accessed, and/or stored by or on behalf of Partner; (B) reasonable precautions taken with respect to the employment of and access given to personnel to whom Partner may provide access to Protected Data, including background checks and security clearances that assign specific and appropriate access privileges to individuals; and (C) an appropriate network security program, including but not limited to network intrusion detection and prevention, frequent network penetration testing and vulnerability scanning, data encryption at rest and in transit, and security information and event management. Such network security program must include, without limitation, (x) appropriate access controls and data integrity controls; (y)testing and auditing of all controls; and (z) appropriate corrective action and incident response plans.
2. Security Audits. Annually during the term of this Agreement, Partner will engage a reputable independent third party to conduct an audit (e.g., SOC1, SOC2, or similar) of the Partner Software and the systems used to process, store, access, or transmit Protected Data in connection with this Agreement. Partner will provide APM Help with a copy of relevant portions of such auditor's report upon APM Help’s request. Partner will resolve any issues raised in such audit as expeditiously as possible and will notify APM Help of the steps taken to resolve such issues. Partner’s failure to procure the audits or to complete corrections in a timely manner are a material breach of this Agreement, giving APM Help the remedies made available under this Agreement and under applicable law. In addition, APM Help, or its authorized representatives may, upon reasonable notice at a mutually agreeable time, visit any or all locations of Partner’s performance of this Agreement to assess Partner’s compliance and data security measures.
c. Survival. The provisions of this Section 8 will survive expiration or termination of the Agreement.
a. Partner IP. Partner (and its licensors, as applicable) will own and retain all right, title, andinterest in and to: (i) Partner Data and Partner’s Background IP (including, without limitation,the Partner Software); (ii) any modifications or improvements thereto or derivative worksbased thereon, whether made or suggested in whole or in part by either Party jointly orindividually; and (iii) all Intellectual Property rights in and to the foregoing (collectively,“Partner IP”). For avoidance of doubt, APM Help hereby assigns and will automaticallyassign to Partner all right, title, and interest it may otherwise acquire in or to any Partner IP.
b. APM Help IP. APM Help (and its licensors, as applicable) will own and retain all right, title,and interest in and to: (i) its Background IP (including, without limitation, the Platform); (ii)any new Intellectual Property developed by either Party, jointly or alone, in connection withthis Agreement (excluding any Partner IP); (iii) any modifications or improvements thereto orderivative works based thereon, whether made or suggested in whole or in part by either Partyjointly or individually; and (iv) all Intellectual Property rights in and to the foregoing(collectively, “APM Help IP”). For avoidance of doubt, Partner hereby assigns and willautomatically assign to APM Help all right, title, and interest it may otherwise acquire in or toany APM Help IP.
Partner, at its own cost and expense, will procure and maintain, during the Term and for two years thereafter, the following insurance policies with one or more insurers possessing a Best’s rating of no less than A-VII: (a) general liability insurance with a minimum limit of$1,000,000 each occurrence and $10,000,000 annual aggregate bodily injury and property damage, which insurance will be written on a comprehensive form and include coverage for: (i)premises and operations, including coverage for independent contractors liability; (ii) products and completed operations; (iii) personal injury liability; (iv) broad form property damage liability; and (v) contractual liability to cover liability assumed under this Agreement; (c) commercial umbrella/excess liability insurance with a minimum limit of $5,000,000 each occurrence and annual aggregate; (d) professional liability insurance with a minimum limit of $5,000,000; and (e)cyber insurance with a minimum limit of $5,000,000.
All such insurance will cover the acts and omissions of Partner and its employees, agents or subcontractors performing services hereunder, and this Section 9 will not be construed as limiting in any way Partner’s liability under this Agreement. Coverage under such policies will be primary without any right of contribution from any insurance maintained by the additional insureds and APM Help will be included as an additional insured. Partner will ensure that such insurance policies are maintained in full force and effect without interruption from and after the Effective Date and throughout the Term. Partner will provide reasonable evidence of its compliance with this Section 9 from time to time upon APM Help’ request. Partner will notify APM Help at least thirty (30) days in advance of the details of any planned modification of such insurance or insurer.
Each Party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation or organization and has full power and authority to enter into and perform its obligations under this Agreement;(b) its entry into this Agreement and performance hereunder does not and will not conflict with or violate any agreement or obligation it has to any third party; (c) it is and will remain fully incompliance with all laws, rules, and regulations applicable to its performance hereunder; and (d)it will provide any services hereunder in a professional and workmanlike manner. Partner further represents and warrants that the Partner IP and Partner Marks will not infringe upon, misappropriate or otherwise violate the intellectual property, proprietary or other right of any third party
Partner agrees to indemnify, defend, and hold harmless APM Help, its Affiliates, and their respective officers, directors, employees, and agents from and against any and all damages, judgments, settlements, awards, liabilities, costs, expenses (including without limitation reasonable attorney’s fees), and other losses incurred in connection with any third-party claim, action, or proceeding to the extent related to: (a) Partner’s negligence, willful misconduct, or violation of law; (b) any allegation that Partner Software, Partner Marks or other products or services provided by Partner infringes or misappropriates any third party’s Intellectual Property rights; (c) any Customer claim relating to the Partner Software or the Partner EULA; or (d) any Security Incident and/or any failure of Partner to comply with Section 6.6.
APM Help will: (i) give Partner prompt written notice of any claim (provided that no delay will affect Partner’s obligations except to the extent such party is actually prejudiced by such delay); (ii) give Partner control of the defense and settlement of the claim (provided that Partner may not enter into any settlement or consent to any judgment that purports to admit fault on behalf of, or impose liability on, APM Help without prior written consent); and (iii) cooperate with Partner in defending or settling such claim, at Partner’s expense. Subject to the foregoing, APM Help will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its choice.
EXCEPT AS SET FORTH IN THIS SECTION, IN NO EVENT, WHETHER IN CONTRACT, IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT) OR ANY OTHER LEGAL THEORY, WILL APM HELP OR ITS AFFILIATES BE LIABLE FOR INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, EVEN IF ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT AS SET FORTH IN THISSECTION, NEITHER APM HELP NOR ITS AFFILIATES’ TOTAL AGGREGATE LIABILITYHEREUNDER WILL EXCEED THE GREATER OF ALL AMOUNTS ACTUALLY PAID ORPAYABLE BY APM HELP TO COMPANY HEREUNDER IN THE TWELVE MONTHSIMMEDIATELY PRECEDING THE CLAIM.
The Parties are independent contractors, and nothing herein will be deemed to create any other relationship, including without limitation any relationship of employment, partnership, or joint venture.
APM Help may exercise its rights (or perform its obligations) hereunder itself or through one or more Affiliates, provided it remains responsible for ensuring such Affiliates’ act sand omissions comply with the applicable terms and conditions of this Agreement as though directly performed by APM Help.
14.3 Governing Law; Dispute Resolution.
This Agreement is governed by and will be interpreted pursuant to the laws of the State of Texas, without regard to conflicts of law principles. In the event of any dispute or controversy between the Parties arising out of or related to this Agreement, the Parties will first use good faith efforts to resolve such dispute amicably, including (if necessary) through discussion between the CEOs or heads of the relevant division of each Party. If the Parties are unable to resolve such dispute amicably, such dispute will be exclusively and finally settled by binding arbitration in Houston, Texas between the Parties pursuant to the commercial rules of arbitration of the American Arbitration Association. Unless mutually agreed by the Parties, the arbitration shall be conducted before a single arbitrator, to be selected jointly by the Parties (or, if the Parties are unable to agree, by the American Arbitration Association). The arbitration award may be enforced by application to any court of competent jurisdiction. Notwithstanding the foregoing, a Party may seek injunctive or other equitable relief from any state or federal court in Harris County, Texas in the event of an alleged or threatened breach of confidentiality or violation or misappropriation of Intellectual Property rights here under or enforce such equitable relief or any arbitral award related to this Agreement before any competent court.
This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, which will not be unreasonably withheld or denied, except that APM Help may transfer this Agreement without consent to an Affiliate or to the acquiring or surviving entity in the event of a sale of substantially all of its assets, merger, stock sale, or other corporate restructuring. Any assignment in violation of this provision will be null and void.
If one or more provisions in this Agreement are considered to be null and void, inapplicable or unenforceable by any competent court, the other provisions in this Agreement will remain valid, applicable and enforceable, notwithstanding any provision to the contrary by the said court. The Parties agree nevertheless that in such circumstances they will negotiate in good faith in an effort to agree on alternative provisions which are valid and comply with the Parties’ initial intent.
All notices or other communications must be in writing and may be given by registered mail, confirmed nationally recognized courier, confirmed facsimile, confirmed email, or personal delivery. Notices shall be effective upon receipt by the Party notified. All notices shall be sent to the addresses set forth below:
To APM Help:
Either Party may change the address to which such notices or communications are to be sent by written notice to the other Party.
14.7 Force Majeure.
Neither Party shall be responsible for any delay or failure to perform any obligations under this Agreement, caused by a Force Majeure Event (solely for its duration and to the extent caused thereby). “Force Majeure Event” means acts of God, war, insurrection, civil unrest, changes in rules and regulations of governmental authorities, and any other causes in each case to the extent beyond the reasonable control of the affected Party. The Party facing a Force Majeure Event must notify the other Party of the same in writing as soon as practicable and take all commercially reasonable efforts to promptly resume proper performance. If the Force Majeure Event prevents a Party’s timely and proper performance under this Agreement for a period of at least 60 days, the other Party will have the right to immediately terminate this Agreement by providing written notice thereof.
14.8 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties relative to its subject matter and supersedes and replaces any prior or contemporaneous understandings or agreements between the Parties relative to such subject matter.
14.9 Modification; No Waiver.
This Agreement shall not be modified except in writing and by signed by both Parties. The waiver of a breach or default shall not constitute the waiver of any subsequent breach or default and shall not act to amend or negate the rights of the Parties, except as expressly set forth by the waiving Party in a signed writing.
This Agreement may be executed in any number of counterparts, each of which will be deemed original and all of such counterparts, taken together, will constitute one instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
Syndi Co., d/b/a APM Help
Partner Software and Commercial Terms
Pilot Phase (Yes/No): ___
Pilot Partner Software Fee Requirements:
Pilot APM Help Share:
Other Pilot Details:
Production (Non-Pilot) Terms:
Maximum Subscription Period:
Maximum Subscription Period:
APM Help Share: [●]% of Partner Software Fees actually received by Partner. Partner will aggregate, report, and pay out accrued APM Help Share within 30 days of the end of each quarter
Hosting of Partner Software: By Partner.
Special APM Help Support (Scope and Cost): N/A
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