This Agreement (the "CPG Solutions Provider Agreement" or "Agreement", as defined more fully below) is between the Client , a corporation ("Client") and the business entity (the "CPG Solutions Provider") identified in the signature box below. All provisions of this Agreement apply to all business entities authorized as CPG Solutions Provider, including those that are also CPG Learning Partners and CPG Academies.
AGREEMENT
Formation of this Agreement, including any future renewal agreements, is subject to Client's final discretion to approve the admission of any new applicant or renewing CPG Solutions Provider, and will not be complete until the CPG Solutions Provider has (a) submitted all information required in the Application; (b) signed this Agreement (electronically or otherwise); (c) received Client's electronic mail notice of acceptance; and (e) confirmed and ratified its agreement to be bound by the terms of this Agreement, and manifested its acceptance of the Logo Guidelines. Subject to completion of the formation process set out above, including Client's final approval of any new applicant or renewing CPG Solutions Provider (which shall be indicated as set out above), and to the CPG Solutions Provider's continuous compliance during the term of this Agreement with all requirements and obligations established by Client for participation in the CPG Solutions Provider, Client hereby appoints the business entity identified in the signature box as a CPG Solutions Provider on a non-exclusive basis. The CPG Solutions Provider accepts this appointment on the terms set out in this Agreement.
TERM AND TERMINATION
Term: This Agreement shall take effect on the Effective Date and, unless earlier terminated as provided herein, shall continue until December 31, 2005.
Termination Without Cause: Either party shall have the right to terminate this Agreement at any time, without cause and without the intervention of the courts, on the delivery of thirty (30) calendar days' prior written notice. Neither party shall be responsible to the other for any costs or damages resulting from the termination of this Agreement.
Immediate Termination With Cause: Unless otherwise prohibited by law and without prejudice to Client's other rights or remedies, Client shall have the right to immediately terminate this Agreement, without prior written notice to CPG Solutions Provider, in the event that any of the following occurs:
If CPG Solutions Provider breaches its duties to Client under this Agreement with respect to use of Logos; or
If CPG Solutions Provider engages in, or participates with any third party in, the unauthorized manufacture, duplication, distribution or use of any Client products, or otherwise engages in misappropriation or unauthorized disclosure of any trade secret or confidential information of Client, or infringes any other intellectual property right of Client, or engages in any other activities which the laws prohibit; or
If CPG Solutions Provider fails to employ at least two CPGs. If an organization is accepted to the program and then falls below the minimum requirements to maintain good standing, the organization will have 60 days to meet the requirements before having their membership suspended until the requirements are met.
CPGS
At the effective date of this agreement, CPG Solutions Provider must employ at least two (2) CPGs. CPG Solutions Provider must provide the CPG ID numbers of two CPGs at the time of engaging in this agreement.
CPG Solutions Provider acknowledges that Client will verify the CPG ID numbers of the CPGs whose CPG ID numbers are provided as part of the engagement of this agreement.
CPG Solutions Provider LOGO
Subject to completion of the contract formation process, Client hereby grants to CPG Solutions Provider a non-exclusive, non-transferable, personal license to use the CPG Solutions Provider Logo only during the term of this Agreement, according to the terms herein, and according to the specifications in the Logo Guidelines. All rights not expressly granted herein are reserved by Client. CPG Solutions Provider acknowledges Client's sole ownership of the Logos and CPG mark, and all associated goodwill. Nothing in this Agreement or in the performance thereof, or that might otherwise be implied by law, shall operate to grant CPG Solutions Provider any right, title, or interest in the Logos other than as specified in the limited license grant herein. CPG Solutions Provider's use of the Logos shall inure solely to the benefit of Client. CPG Solutions Provider may use the Logos only on material as set forth in the specifications in the Logo Guidelines, identifying CPG Solutions Provider as a "CPG Solutions Provider". CPG Solutions Provider agrees to maintain the quality of services offered in relation to the Logos at a level commensurate with the quality of services offered by CPG Solutions Provider before the Effective Date, and that meets or exceeds standards of quality and performance generally accepted in the industry. CPG Solutions Provider will not use the Logos in any manner that will diminish or otherwise damage Client's goodwill in the Logos. CPG Solutions Provider will not adopt, use, or register any corporate name, trade name, trademark, domain name, service mark or certification mark, or other designation confusingly similar to the Logos. CPG Solutions Provider agrees to correct any deficiencies in its use of the Logos within a reasonable time upon receipt of notice from Client. CPG Solutions Provider shall immediately cease all use of the Logos upon expiration or termination of this Agreement.
Client RESPONSIBILITIES AND OBLIGATIONS
Advertising and Promotional Materials: Client may, in its sole discretion, reference the CPG Solutions Provider in advertising and promotional materials, including but not limited to press releases and email newsletters, in connection with the sale and promotion of the Products. Uses of the CPG Solutions Provider's name and other Business Profile Online information provided by CPG Solutions Provider include, but are not limited to lists of CPG Solutions Providers for customer information, and advertising of the CPG Solutions Provider program containing the CPG Solutions Provider's name. When a specific advertisement or promotion containing only the CPG Solutions Provider's name is planned, Client will obtain the CPG Solutions Provider's written permission before such use. CPG Solutions Provider grants the right to Client to use CPG Solutions Provider logo on the CPG.com website to market the services of the CPG Solutions Provider.
Client will, in accordance with the guidelines of the CPG Solutions Provider program, list certain information, including but not limited to the CPG Solutions Provider's company name, phone number, web site URL, and other pertinent information, about the CPG Solutions Provider on the CPG web site (www.CentralProductGroup.com) and in certain other CPG marketing materials.
CONFIDENTIALITY
Except as otherwise provided herein, each party expressly undertakes to retain in confidence all information and know-how transmitted or disclosed to the other that the disclosing party has identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential, and expressly undertakes to make no use of such information and know-how except under the terms and during the existence of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party prior to its receipt from the disclosing party; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; or (iii) is independently developed by the obligated party. Further, either party may disclose confidential information as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Each party shall treat all Client product adaptation materials as confidential information and shall not disclose, disseminate, or distribute such materials to any third party without the other's prior written permission. Each party's obligation under this Section shall extend to the earlier of such time as the information protected hereby falls into the public domain through no fault of the obligated party or five (5) years following termination or expiration of this Agreement.
NO IMPLIED OR STATUTORY WARRANTIES; ANY WARRANTIES MUST BE DELIVERED IN A LICENSE AGREEMENT; DISCLAIMERS
Except for any limited express warranties (if any) provided to CPG Solutions Provider by any applicable license agreement accompanying the Products or Beta Software (the "Limited Warranty"), no other warranties, conditions, or other terms are made by Client with respect to any Products or Beta Products, any program guides, or any other services, information, or materials provided by Client to CPG Solutions Provider as part of or under this Agreement, or on any web site providing or containing any of the foregoing (collectively, "CPG Materials"). EXCEPT FOR ANY SUCH LIMITED WARRANTIES (IF ANY) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Client PROVIDES THE Client MATERIALS "AS IS" AND "AS AVAILABLE" AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, MERCHANTABILITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH THE CPG Solutions Provider. Client HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, OTHER TERMS OR DUTIES OF EVERY NATURE WHATSOEVER (except any duties of good faith), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, ANY OTHER IMPLIED WARRANTIES, CONDITIONS, OR OTHER TERMS, AND ANY STATUTORY OR EXPRESS WARRANTIES, CONDITIONS OR OTHER TERMS (other than any Limited Warranty), AND ANY OTHER WARRANTIES, CONDITIONS, OR OTHER TERMS OR DUTIES, INCLUDING BUT NOT LIMITED TO ANY REGARDING ACCURACY, COMPLETENESS, TIMELINESS, PERFORMANCE, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE OR VIRUSES OR INTERRUPTED SERVICE, OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. FURTHER, THERE IS NO WARRANTY, CONDITION OR OTHER TERM OF TITLE, ENJOYMENT, OR LACK OF INFRINGEMENT, OR THAT THE PROVISION OR OPERATION OF ANY CPG MATERIALS WILL BE TIMELY OR UNINTERRUPTED.
Neither CPG Solutions Provider nor any of its employees or agents shall have the right to make any representation, warranty, or condition, or agree to any warranty, condition, or other terms, or to make any promise or to give any instructions for use of any Product or other CPG Materials which instruction is not contained on the Product label or container, or expressly authorized by Client in a writing.
LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY
Subject to applicable law and notwithstanding any damages that CPG Solutions Provider may incur for any reason whatsoever, (including without limitation, all damages referenced in Section 14 above, and all direct or general damages), THE ENTIRE LIABILITY OF Client FOR ANY BREACH OF THE AGREEMENT OR FOR ANY CAUSE OF ACTION OF ANY NATURE (INCLUDING WITHOUT LIMITATION, TORT OR PRODUCTS LIABILITY), OR UNDER ANY LIMITED WARRANTY, OR WITH RESPECT TO THE CPG MATERIALS, AND CPG Solutions Provider'S EXCLUSIVE REMEDY AGAINST Client (except for any remedy of repair or replacement elected by Client or any other person under any Limited Warranty), SHALL BE LIMITED TO THE AMOUNT OF DAMAGES (other than damages excluded under Section 14) ACTUALLY INCURRED BY CPG Solutions Provider IN REASONABLE RELIANCE, UP TO AN AMOUNT WHICH IS THE GREATER OF (a) THE AMOUNT ACTUALLY PAID BY CPG Solutions Provider FOR THAT PORTION OF THE CPG MATERIALS THAT CAUSES THE DAMAGE, OR (b) FIVE DOLLARS (US$5.00). The foregoing limitations, exclusions and disclaimers (including Sections 13 and 14, above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails of its essential purpose.
Indemnities. CPG Solutions Provider hereby agrees to defend, indemnify and hold Client, its successors and parents, subsidiaries and affiliates and its and their employees, officers and directors, harmless from and against any claim, loss, damage, costs or expenses (including reasonable attorney's fees) arising out of or in any way connected with performance of the services, obligations or rights, or from the acts or omissions of the CPG Solutions Provider (or any of its agents or employees) in connection with this Agreement, including, but not limited to, claims arising from breach of any warranty by CPG Solutions Provider.
GENERAL
Notices. Except as otherwise provided, all notices, authorizations, and requests in connection with this Agreement shall be in a writing or other record that is signed, electronically or otherwise, and shall be deemed received two business days after transmission by email or facsimile, five business days after being deposited in the mail (prepaid) for delivery in the same country, or ten business days after being deposited in the mail (prepaid) for delivery between different countries, at the addresses set forth to such other address as the party to receive the notice so designates by written notice to the other.
Entire Agreement; English-language Agreement Controls. This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications including all prior and current CPG Solutions Provider Agreements. Except as otherwise provided herein, this Agreement shall only be amended in writing or in a record that is signed electronically or otherwise. In the event of any inconsistency between this Agreement in the English language and any translation of it into another language, the English-language Agreement shall control.
Governing Law; Attorneys' Fees. This Agreement shall be governed by the laws of the jurisdiction in which Client has its principal place of business. If either Client or the CPG Solutions Provider employs attorneys to enforce any rights arising out of or relating to this Agreement, the primarily prevailing party shall be entitled to recover reasonable costs and attorney's fees.
Severability. If a particular provision of this Agreement is terminated or held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, this Agreement shall remain in full force and effect as to the remaining provisions.
No Waiver. No waiver of any breach of any provisions of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
No Partnership or Other Legal Organization. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, franchise or agency relationship. The CPG Solutions Provider expressly acknowledges and agrees that as used in this Agreement and the CPG Solutions Provider Program, the designation "Partner" is intended to indicate membership in the program but not a legal partnership, joint venture, or other legal organization or entity.
No Agency. The CPG Solutions Provider agrees that it shall inform its customers that the CPG Solutions Provider is an independent business from Client, and that it shall not hold itself out as an agent or legal partner of Client, or attempt to bind Client to any third party agreement.
BY SIGNING (ELECTRONICALLY OR OTHERWISE), OR OTHERWISE ACCEPTING THIS AGREEMENT, OR BY OTHERWISE ACCEPTING ANY BENEFITS OF THIS AGREEMENT, THE CPG Solutions Provider REPRESENTS AND WARRANTS THAT SUCH SIGNING OR ACCEPTANCE IS SUFFICIENT TO MAKE THIS AGREEMENT LEGALLY BINDING ON THE CPG Solutions Provider. THE CPG Solutions Provider MUST ALSO INDICATE ACCEPTANCE (ELECTRONICALLY OR OTHERWISE) OF THIS AGREEMENT, AND SUBMIT THE APPROPRIATE FEES TO Client; AND MUST MANIFEST ITS ACCEPTANCE OF THE LOGO GUIDELINES.
IF ELECTRONIC OR OTHER ACCEPTANCE WILL NOT LEGALLY BIND THE CPG Solutions Provider OR IF Client BELIEVES (IN ITS SOLE DISCRETION) THAT THE CAPABILITIES OF THE ONLINE COMMUNICATIONS IN CPG Solutions Provider'S TERRITORY ARE LIMITED IN SCOPE, CPG Solutions Provider MUST SIGN THIS AGREEMENT BY RETURNING TO Client A COPY OF IT THAT IS SIGNED NON-ELECTRONICALLY BY AN AUTHORIZED OFFICER, EMPLOYEE, OR AGENT OF THE CPG Solutions Provider, UPON RECEIPT OF AND IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
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