THIS AGREEMENT IS ONLY AVAILABLE FOR DEVELOPERS THAT SIGN UP FOR A51’S DEVELOPER PROGRAM PURSUANT TO WHICH DEVELOPER HAS PAID A YEARLY SUBSCRIPTION. DEVELOPER MUST BE AN EXISTING USER OF ACTIVECOLLAB AND HAVE HELD A LICENSE FOR ACTIVECOLLAB FOR AT LEAST 30 DAYS PRIOR TO BEING ELIGIBLE TO PARTICIPATE IN THE DEVELOPER PROGRAM. DEVELOPER CONFIRMS THAT DEVELOPER UNDERSTANDS THE TERMS AND CONDITIONS OF THE DEVELOPER PROGRAM AND AGREES TO STRICTLY COMPLY WITH SUCH TERMS AND CONDITIONS. By downloading the Software IN THE DEVELOPER PROGRAM, DEVELOPER is indicating that DEVELOPER has read and understood this DEVELOPERS Agreement AND THE DEVELOPERS PROGRAM and accepts and agrees to THE terms and conditions HEREOF AND THEREOF. If DEVELOPER does not agree with the terms and conditions of this Agreement, do not download or use the Software.
THIS AGREEMENT is made and entered into between A51 d.o.o., the creator of the activeCollab software (“A51”), and the software developer that is a participant is A51’s Developer Program (as hereinafter defined) (“Developer”). In consideration of the mutual promises contained herein and other good and valuable consideration, the parties hereby agree as follows:
- A51 is in the business of developing, marketing and supporting the proprietary computer software product known as “activeCollab” (hereinafter referred to as the “Product”);
- Developer is in the business of customizing certain computer software products for the benefit of end users;
- Developer has completed the necessary application to enroll in the A51 Developer Program and has been accepted as a Developer;
- Developer wishes to obtain, and A51 is willing to grant Developer, a limited, nonexclusive, nontransferable right to license and customize the Product pursuant to the terms and conditions of this Agreement; and
- A51 desires to give Developer the ability to purchase multiple licenses at a discount for the benefit of Developer’s customers (the “Developer Program”).
NOW, THEREFORE, in consideration of the foregoing premises and the mutual representations and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, A51 and Developer, intending to be legally bound, hereby agree as follows:
For purposes of this Agreement, the following terms shall have the respective meanings indicated below:
- Confidential Information. Any data or information, oral or written that relates to either party’s (or, if either party is bound to protect the confidentiality of any other person’s information, such other person’s) past, present, or future research, development, trade secrets and business activities, including any unannounced product(s) and service(s), and including any information relating to lists, forecasts and projections. Confidential Information shall also include the terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not be deemed to include information that:
- (a) is publicly available or in the public domain at the time disclosed;
- (b) is or becomes publicly available or enters the public domain through no fault of the party receiving such information;
- (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto;
- (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure;
- (e) is independently developed by the recipient’s personnel other than those having access to Confidential Information hereunder;
- (f) is approved for release or disclosure by the disclosing party without restriction; or
- (g) is required to be disclosed by subpoena or order of a court, administrative agency or other governmental body provided prompt notice of any such requirement is delivered to the disclosing party and the recipient reasonably cooperates with the disclosing party’s efforts to obtain a protective order for any Confidential Information required to be so disclosed.
- End-User. Any person or entity who obtains copies of the Product solely to fulfill its own internal needs.
- End-User Agreement. The written Software License Agreement for the Product pursuant to which the End-User obtains the limited right to use a Product, which shall be approved by A51 in writing prior to use (which approval shall not be unreasonably withheld).
- Intellectual Property Rights. The intangible legal rights or interests evidenced by or embodied in:
- (1) any idea, design, concept, technique, invention, discovery, or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how;
- (2) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; and
- (3) any other similar rights, in each case on a worldwide basis.
- Trademarks. The trademarks used by A51 in association with the Product.
Grant of Distribution Right #
License. A51 hereby grants to Developer, and Developer hereby accepts from A51, a nontransferable, nonexclusive, limited right and license to customize and distribute the Product solely to and for the benefit of End-Users.
Reserved Rights. A51 reserves all rights not specifically granted to Developer hereunder. Except as expressly provided hereunder in connection with the distribution of the Product, A51 does not convey any Intellectual Property Rights to Developer hereunder. A51 reserves the right to discontinue developing, producing, licensing or distributing any of the Product and to modify, replace or add to the Product in its discretion at any time.
License Fees. In consideration of the license granted by this Section 2, and for the access provided by A51 to Developer in the Developer Program, Developer shall pay the applicable fee(s) set forth at http://www.activecollab.com/developers/.
Marketing Obligations of Developer #
Distribution to End-Users. Developer shall distribute the Product only to an End-User for such End-User’s internal business purposes in accordance with the End-User Agreement, which provides that End-User may have access to one copy of the Product, which may be downloaded to only one computer or workstation to be accessible at a single website location (URL). Developer is permitted to install one additional copy of the software on a separate URL for the benefit of End-User, for development and testing purposes only.
Promotional Efforts. Developer shall use its best efforts to promote vigorously and aggressively the marketing and distribution of the Product to End-Users. Developer may advertise the Product in advertising media of Developer’s choice. Developer shall make full use of all promotional material supplied by A51. In all advertising and promotion of the Product, Developer shall comply with A51’s standard co-operative advertising policies as specified from time to time by A51, and shall not use any advertising or promotional material for the Product that has not either been provided by A51 or approved in advance by A51 (which approval shall not be unreasonably withheld).
End-User Support. Developer shall provide all End-Users with training, technical support and other assistance appropriate for the use of the Product, and Developer specifically understands and acknowledges that A51 shall have no right or obligation to support or warrant the Product upon modification by Developer.
Developer Personnel. Developer shall train and maintain a sufficient number of capable technical and sales personnel to serve the demands of End-Users for the Product and for service and support of the Product.
Technical Expertise. Developer and its staff shall develop and maintain sufficient knowledge of the industry, the Product, and competitive offerings (including specifications, features and functions) so as to be able to demonstrate and support the Product for End-Users.
A51 Packaging. Developer shall distribute Product with all packaging, warranties, disclaimers and End-User Agreements intact as shipped by A51 or downloaded from A51’s website and shall require all End-Users to adhere to the terms of the End-User Agreement. Any and all packaging used by Developer for the Product shall conform in all respects with the provisions of Section 9 hereof.
Order Procedure #
Orders. All orders for Product placed by Developer shall be completed by accessing the link to the Developer Program on A51’s website.
A51 Acceptance. All orders for Product by Developer shall be subject to acceptance by A51 and shall not be binding on A51 until confirmation email is sent by A51 to Developer.
Controlling Terms. The terms and conditions of this Agreement and of the applicable A51 confirmation shall apply to each order accepted by A51 hereunder. Any terms or conditions that are different from or in addition to those required hereunder shall not be binding on the parties unless both parties hereto expressly agree in a separate writing to be bound by such separate or additional terms and conditions.
A51 Cancellation. A51 reserves the right to cancel or suspend any orders placed by Developer and accepted by A51, or refuse or delay shipment thereof, if Developer fails:
- (1) to make any payment as provided herein or in any invoice;
- (2) to meet credit or financial requirements established by A51; or
- (3) otherwise to comply with the terms and conditions of this Agreement.
Developer Cancellation. Once an order has been accepted by A51, it may not be canceled by Developer unless: - (1) Developer provides written notice of such cancellation, and A51 acknowledges such cancellation in writing (email shall be sufficient); and - (2) Developer has not downloaded the Product to which the order relates.
Prices, Discounts and Payment, Refunds #
Suggested List Prices. A copy of A51’s current price schedule for the Product is set forth on A51’s website. A51 may change the prices of any Product at any time. Developer covenants and agrees that the price Developer charges the End-User for the Product license (including Developer’s customization fee) shall not be less than the retail price of the Product as in effect on the date Developer acquires the Product.
Prices to Developer. The price payable by Developer for each Product shall be as set forth at http://www.activecollab.com/developers/. A51 in its sole discretion may offer discounted prices to Developers who purchase multiple licenses. A51 may at any time change its prices for any part of or all of the Product, which would be applicable to future orders.
Taxes. Prices to Developer do not include taxes of any nature. Developer shall pay such taxes when invoiced by A51 or will supply appropriate tax exemption certificates in a form satisfactory to A51.
Payment. Developer shall pay for Product prior to downloading the Product.
Slot Discount Program. Upon agreement between A51 and Developer, Developer shall be permitted to purchase prepaid slots to obtain multiple licenses at a discount. Upon entering certain required identifying information about an End-User by a participating Developer, the Participating Developer will be able to convert a slot into a license for the benefit of the End-User.
Refunds. With respect to a single unused Product license, A51 will provide a refund to Developer for unused Product within thirty (30) days following the date of purchase. With respect to the slot program, refunds may be requested for unused slots within ninety (90) days following the initial slot purchase, less any discounts applied less an administrative fee equal to 5% of the total purchase price.
Compliance with Export Control Laws #
Developer shall comply with all applicable United States export control laws, rules and regulations, and shall ensure that any distributors and End-Users of the Product so comply.
Limited Warranty #
Scope of Warranty. Subject to the terms and conditions of this Agreement, A51 warrants that the Product, when and as delivered to Developer, shall substantially conform to A51’s documentation therefor, and shall be reasonably free from defects in materials and workmanship. All claims and remedies are limited in the manner expressly provided in this Agreement. In the event of any damage to any tangible medium on which the Product is delivered to Developer, A51’s sole obligation and Developer’s sole right and remedy shall be the replacement of such tangible medium.
Details of Warranty. The sole and exclusive remedy of Developer and, insofar as the End-User Agreement effectively so provides any End-User, as well as their successors and assigns, for any breach of A51’s warranty shall be the repair or replacement of the defective software.
Exclusions. As provided in the End-User Agreement, the following are excluded from A51’s warranty: defects discovered in any Product that has been modified, altered, or enhanced without A51’s prior consent; defects resulting from the use of the Product in a manner not authorized by the Product documentation; and defects resulting from the combination or use of the Product with one or more other products.
Exclusive Remedy. The remedy stated in this Section 7 constitutes the sole and exclusive remedy of Developer and, insofar as the End-User Agreement effectively so provides, any End-User, as well as their successors and assigns, for any defect or nonconformity in the Product.
Disclaimer. THE WARRANTY STATED IN THIS SECTION 7 IS A51’S SOLE AND EXCLUSIVE WARRANTY PERTAINING TO THE PRODUCT, AND A51HEREBY DISCLAIMS ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Exclusion of Consequential Damages. IN NO EVENT SHALL A51 BE LIABLE TO DEVELOPER OR, INSOFAR AS THE END-USER AGREEMENT EFFECTIVELY SO PROVIDES, ANY DISTRIBUTOR OR END-USER FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
Limitation of Liability. IN THE EVENT THAT, NOTWITHSTANDING SECTION 7(e) HEREOF, A51 IS FOUND LIABLE FOR DAMAGES BASED ON ANY DEFECT OF NONCONFORMITY IN THE PRODUCT, ITS TOTAL LIABILITY FOR EACH DEFECTIVE PRODUCT SHALL NOT EXCEED THE DISCOUNTED PRICE OF SUCH DEFECTIVE PRODUCT LESS DEPRECIATION OR AMORTIZATION AT THE RATE OF SIXTY PERCENT (60%) PER YEAR FROM THE DATE OF DELIVERY TO DEVELOPER HEREUNDER.
Freedom of Action #
Developer Pricing. Developer is free to determine its own prices for the modified and customized Product.
Equitable Dealing. Developer shall treat End-Users equitably and shall not discriminate unlawfully among them in prices, terms, allowance, services or any other manner.
A51 Determination of Product Content. A51 reserves the right at any time without liability or prior notice to:
- determine the contents of each Product, including its specifications, features, and functions, as well as any documentation or related materials;
- discontinue distribution of any or all Product in some or all markets or through some or all channels of distribution;
- change or terminate any of the specifications, features, or functions of the Product; or
- change or terminate the level or type of support or service that A51 makes available for each Product.
Developer may cancel any orders for discontinued Product without liability.
Nonexclusivity. A51 retains the right to market, distribute and support the Product anywhere in the world directly to or through any person or entity on any terms deemed desirable by A51 in its sole discretion.
Relationship of the Parties. The relationship of A51 and Developer established by this Agreement is of licensor and licensee, each to constitute an independent contractor. Nothing in this Agreement shall be construed to give either party the power to direct or control the daily activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. A51 and Developer understand and agree that, except as specifically provided in this Agreement, A51 does not grant Developer the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of A51, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of A51, or to transfer, release, or waive any right, title or interest of A51.
Trademarks and Intellectual Property Rights #
Trademarks. A51 shall have and retain sole ownership of the Trademarks, including the goodwill pertaining thereto. Subject to Developer’s compliance with A51’s standard co-operative advertising policies, A51 hereby grants to Developer the right to use and display the Trademarks solely in connection with and solely to the extent reasonably necessary for the marketing, distribution and support of the Product in accordance with the terms and conditions of this Agreement. Developer shall market, distribute and support the Product only under the Trademarks, and not any other trademark or logo. Developer shall not use the Trademarks or any other trademarks or trade names of A51 or any word, symbol, or design confusingly similar thereto, as part of its corporate name, or as part of the name of any product of Developer. Developer shall not remove or alter the Product’s copyright notices, trademarks, and logos. To protect and preserve the goodwill and image of the Product, Developer shall:
- conduct business in a manner that reflects favorably at all times on the Product and reputation of the A51;
- avoid deceptive, misleading, or unethical practices that are or might be detrimental to A51, the Product, End-Users, or the public, including any disparagement of A51 or the Product;
- make no false or misleading representation with regard to A51 or the Product;
- refrain from publishing or employing any misleading or deceptive advertising material; and
refrain from making any representations, warranties, or guarantees to End-Users or to the trade with respect to the specifications, features or capabilities of Product that are inconsistent with the literature distributed by A51, including all warranties and disclaimers contained in such literature.
Confidential Information. During the course of performance of this Agreement, A51 may disclose certain Confidential Information to Developer solely to permit Developer to perform its obligations under this Agreement. Developer shall use its best efforts to maintain the secrecy of all such Confidential Information. Developer shall refrain from using, disclosing, or otherwise exploiting any Confidential Information for any purpose not specifically authorized by A51 in this Agreement. All files, lists, records, documents, drawings, specifications, equipment, tangible media and computer programs that incorporate or refer to any Confidential Information shall be returned promptly upon termination of this Agreement.
Notification. Developer shall promptly notify A51 of:
- (1) any claims, allegations, or notification that its marketing, licensing, support, or service of the Product may or will infringe the Intellectual Property Rights of any other person or entity; and
- (2) any determination, discovery, or notification that any person or entity is or may be infringing the Intellectual Property Rights of A51.
Developer shall not take any legal action relating to the protection or defense of any Intellectual Property Rights pertaining to the Product without the prior written approval of A51. Developer shall assist and co-operate in the protection and defense of such Intellectual Property Rights.
Term and Termination #
Term. This Agreement shall become effective on the date of execution by the parties hereto, and shall remain in full force and effect until terminated in accordance with the provisions hereof.
Voluntary Termination at Will. Developer or A51 may terminate this Agreement at will, at any time, with or without cause, by written notice given to the other party at least ten (10) days prior to the effective date of such termination.
Termination for Cause. Effective immediately and without any requirement or notice, either party may, at its option, terminate this Agreement and/or suspend its performance in the event that:
- the other party files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition, or similar relief under any law regarding insolvency or relief for debtors, or makes an assignment for the benefit of creditors;
- a receiver, trustee, or similar officer is appointed for the business or property of such party;
- any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such party and not stayed, enjoined, or discharged within sixty (60) days;
- the other party adopts a resolution for discontinuance of its business or for dissolution; or
- the other party materially breaches an obligation under this Agreement and has not cured such breach within thirty (30) days after receipt of written notice thereof.
Consequences and Survival. Upon termination of this Agreement, Developer may continue to dispose of its existing slots of Product credits, but Developer shall otherwise discontinue all further promotion and marketing of the Product. Without limiting the generality of the foregoing, Developer shall cease all display, advertising and use of all A51 names, Trademarks, logos, and designations and will not thereafter use, advertise or display any such naterm, Trademarks, logos or designationtermUpon termination of this Agreement, the due date of all outstanding invoices for the Product shall automatically be accelerated and all such invoices shall become due and payable. Notwithstanding the foregoing, Developer shall continue to support the Product pursuant to its terms and other agreements and arrangements with the End-User.
General Provisions #
Modifications, Amendments and Waivers. This Agreement may not be modified or amended, including by custom, usage of trade or course of dealing, except by an instrument in writing signed by duly authorized officers of both of the parties hereto. Performance of any obligation required of a party hereunder may be waived only by a written waiver signed by duly authorized officers of both parties hereto, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party hereto of a breach of any obligation of the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this Agreement.
Compliance with Law. Developer shall comply with all applicable federal, state and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Product.
Severability. In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, the remainder of this Agreement shall remain valid and enforceable according to its terms. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVISIONS FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL OTHER LIMITATIONS OF LIABILITY AND EXCLUSION OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT.
Assignment. Developer is granted distribution rights hereunder because of the commitments and representations Developer is making in this Agreement, and further because of A51’s confidence in Developer, which confidence is personal in nature. This Agreement shall not be assignable by Developer and Developer may not delegate its duties hereunder without the prior written consent of A51. Any attempt by Developer to assign any of its rights or delegate any of its duties hereunder without the prior written consent of A51 (including but not limited to any assignment or delegation by operation of law) shall be null and void.
Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of New York, United States of America, as it applies to contracts negotiated, executed, delivered and performed solely within such jurisdiction, and the parties irrevocably consent to the exclusive jurisdiction and venue of the courts of such State, or the federal courts of the United States of America located in such State, in any action, claim or proceeding brought by any party hereunder.
Force Majeure. A51 shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond A51’s reasonable control, including but not limited to war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor, or materials. In the event of any such delay, A51 may defer the delivery date for a period equal to the time of such delay.
Notices. All notices shall be in writing and delivered: personally; by fax or email; by overnight delivery service with a nationally recognized service that maintains a record of delivery; or sent by certified mail, postage prepaid, return receipt requested, to the address as notified by one party to the other party, and such notice shall be deemed to be made:
- (a) if by fax or email, when it is sent and confirmed,
- (b) if delivered personally or by overnight mail, when received and
- (c) if mailed, on the fifth (5th) day after such mailing.
To expedite order processing, Developer agrees that A51 may treat documents faxed by Developer to A51 as original documents. However, either party may require the other to exchange original signed documents.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
Entire Agreement. This Agreement constitutes the entire understanding and contract between the parties and supersedes any and all prior and contemporaneous, oral or written representations, communications, understandings and agreements between the parties with respect to the subject matter hereof. The parties acknowledge and agree that neither of the parties is entering into this Agreement on the basis of any representations or promises not expressly contained herein.