Form F.8
MASTER RESELLER AGREEMENT
This Reseller Agreement (the "Agreement") is effective as of ______, 20__ (the “Effective Date”), by and between ______(“Company”), a ______corporation with its principal place of business located at ______, and ______, a ______corporation with its principal place of business located at ______("Reseller").
Company is engaged in the business of developing, licensing and supporting computer software products for healthcare member enrollment and processing. Reseller is engaged in the business of licensing, reselling, and maintaining computer system software products related to the healthcare industry. The parties desire to have Reseller promote and distribute certain Company Products, as defined below, in accordance with the terms of this Agreement.
The parties agree as follows:
1.Definitions.
1.1Company Documentation. “Company Documentation” means the guides, manuals and associated end-user documentation prepared by Company and provided by Company to Reseller with the Company Products, including but not limited to any training materials.
1.12Company Products. "Company Products" shall mean the Software products listed on the attached Schedule(s)Schedule 1 to this Agreement, any documentation developed by Companyfor use with CompanyProducts including training materialrelated Company Documentation, and any modifications, enhancements or updates of the Company Products or Company Documentation distributed by Company.
1.23Defect. A “Defect” means (a) an omission in software code causing the software to operate such that it is not in compliance with the documentation; or (b) the media on which the Company Product is delivered is damaged such that the software does not load properly; or (c) the documentation contains gaps and/or erroneous information with regard to the Company Products; or (d) the execution of a Company Product produces a result that is either incorrect or is other than is to be expected based on the applicable CompanyDocumentation.
1.4Open Source. “Open Source” means any software code that:(a) contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software, shareware (e.g., Linux) or similar licensing or distribution models; and (b) is subject to any agreement with terms requiring that such software code be (i) disclosed or distributed in Source Code or Object Code form, (ii) licensed for the purpose of making derivative works and/or (iii) redistributable. Open Source includes, but is not limited to, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following:(A) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (B) the Artistic License (e.g., PERL); (C) the Mozilla Public License(s); (D) the Netscape Public License; (E) the Berkeley software design (BSD) license including Free BSD or BSD-style license; (F) the Sun Community Source License (SCSL); (G) an Open Source Foundation License (e.g., CDE and Motif UNIX user interfaces); (H) the Apache Server license; and (I) any licenses listed at
1.5Release(s). A “Release” may include (a) a major release which includes a database change to accommodate incremental Company Product function (each a “Major Release”); or (b) a build which includes corrections for defects, maintenance or CMS driven changes. Any Release that is provided to Reseller will be provided at no additional charge and will be deemed part of the relevant Company Products and must be used in accordance with the terms of this Agreement.
1.546Reseller License Agreement. A “Reseller License Agreement” is the agreement Reseller executes with Reseller Customer to license or provide access to Company Products, which may be a stand-alone sublicense agreement or may bepart of a larger agreement for the sale of the Reseller Products and Reseller’s ASP or BPO Services.
1.657Reseller Products. "Reseller Products" shall mean certain products offered for sale or license by Reseller other than Company Products. The term "Reseller Products" shall include:(a) any proprietary software, interfaces, associated documentation, and any other works of authorship developed, authored, compiled or created by Reseller for use in connection with Reseller Products, and (b) any modifications, enhancements or updates to Reseller Products distributed by Reseller.
1.768Reseller Customer. A “Reseller Customer” is any third party that has licensed the use of Reseller Products or Company Products from Reseller.
1.879Reseller Prospect. A “Reseller Prospect” is any organization or company that is a Reseller Customer or another organization or company contemplating with Reseller the licensing of Reseller Products or Company Products from Reseller.
1.8910Schedule. A “Schedule” is a document that is agreed to and signed by both parties that references this Agreement and describes additional terms and conditions governing the Company Products or services. Schedules may be added to this Agreement from time to time by mutual, written agreement of the partiesany of the attachments hereto entitled “schedule” whichthat shall be deemed incorporated herein by this reference, and made a part hereof. Additional Schedules may be added to this Agreement from time to time via amendment in accordance with Section 8.11 hereof.
2.Reseller's Obligations.
2.1Promotion of Products. Reseller will use its best good faith efforts to market and license the Company Products set forth in the Schedule(s)Schedule 1 to this Agreement in the United States and all U.S. Territories.Puerto Rico (the “Territory”). Reseller will develop, as appropriate and as needed by Reseller Customers, interfaces between Reseller Products and Company Products. Reseller will solicit sales directly from Reseller’s Customers and Reseller’s Prospects and will contract directly with those Reseller Customers for use of its Application Service Provider (“ASP”) Services, Business Process Outsourcing Services (“BPO”) or turnkey licenses that may include Company Products. Reseller shall continue with these efforts throughout the term of this Agreement. Reseller shall have no right to change the Company Products in any manner; provided, the creation of any interface with the Company Products shall not be deemed a change to the Company Products.
2.2Licensing Reseller’s Customers.
2.2.1Subject to the terms and conditions of this Agreement, Company hereby grantsto Reseller a non-exclusive right and license to sub-license the Company Products for purposes of providing ASP Services and BPO Services to Reseller Customers in the Territory for any license term as shall be agreed by Reseller and its Customer. Specifically, the right to act as an ASP and to otherwise provide BPO Services with respect to the Company Product shall permit Reseller to copy, install, access, display, run, distribute, make available, or otherwise interact with the functionality of, such Company Product (in object code only) in order to host such Company Product from a centrally located facility for use by Reseller Customers through the Internet or one or more private networks. Reseller’s right to distribute any Company Product under this Section 2.2.1 shall apply toCompany Documentation and also to those portions of such Company Product that are designed to reside on an end user’s computing device as is required for the computing device to access or use the functionality provided by those portions of such Company Product that reside on computer servers. Reseller shall be allowed to make a reasonable number of copies of the Company Products (including, without limitation, the Company Documentation) for back-up and archival purposes and, with respect to Company Documentation, as appropriate for distribution to actual or prospective Reseller Customers. Reseller’s right to use any Company Product shall be governed by Company’s standard end-user terms; provided, however, the parties act in good faith to resolve any conflicts between the end-user terms and this Agreement, if any. In addition, Reseller shall ensure that, with respect to each Reseller Customer to which Reseller grants access to use a particular Company Product pursuant to this Section 2.2.1, that such Reseller Customer’s use of the Company Product shall be governed by terms and conditions that include, mutatis mutandis, the material terms and conditions of the end- user terms applicable to such Company Product. Reseller agrees it shall use a mutually agreeable Reseller License Agreementto license [C1]or provide access to Products to Reseller Customers. Further, tThe Reseller License Agreement shall be subject to the prior written approval of Company and shall clearly identify Company as the manufacturer/owner of the Company Products and shall provide appropriate wording, consistent with this Agreement, on confidentiality, protection of Company’s intellectual property, limitations of Company’s liability, product warranties and disclaimers of implied and other warranties. Reseller may, in the course of licensing Company Products, agree in writing to materially alter the Reseller License Agreement for any one Reseller Customer without altering the Reseller License Agreement for other Reseller Customers, provided any such alterations shall comply with terms of this Section 2.2.1. Any modification to the Reseller License Agreement shall be subject to the prior written approval of Company.
2.2.2Reseller agrees to contemporaneously provide Company a copy of the fully executed Reseller License Agreement when a Reseller Prospect licenses a Company Product, portions of which may be redacted by Reseller in its sole discretion to preserve the confidential nature of its customer arrangements. Reseller warrants that it will not license any Company Product without first obtaining a fully executed Reseller License Agreement.
2.3Marketing.
2.3.1.Reseller may list Company as a preferred vendor in appropriate sales materials as well as on its web sites. Such use of Company’s name shall be subject to Company’s prior written approval, which shall not be unreasonably withheld. When appropriate, Reseller shall advise Reseller Customers that Reseller supports Company Products. Company and Reseller shall not use the Company’sthe other party’s trademarks for any purpose without the express prior written permission from the other partyof Company.
2.3.2Companyshalllist Reseller as a preferred distributor in appropriate sales materials as well as on its web sites. The exact references toReseller and use ofReseller’s name shall be subject to Reseller’s prior written approval, which shall not be unreasonably withheld. When appropriateand/or and reasonably requested by Reseller, Company shall support Reseller’s marketing efforts to a Reseller Prospect. Company shall not use Reseller’s trademarks for any purpose without the express written permission of Reseller.
2.4Reseller Products -Documentation. Reseller shall be responsible for, and bear the costs of authoring, creating, and maintaining documentation related to the Reseller Products. In the event that such documentation contains information about the Company Products, such information shall be reviewed by Company and remain subject to its approval, which shall not be unreasonably withheld. Reseller agrees to provide a current copy of such documentation to Reseller Customers and to Company on a timely basis. Reseller shall correct material errors and make changes as are required by reason of modifications, enhancements or updates of Company Products, in a timely manner in the Reseller Product documentation as identified and recommended by Company regarding information related to the Company Products.
2.5Reseller Products Testing. Prior to interfacing any Company Products with Reseller Product, Reseller, (i) will test interfaces between Company Products and Reseller Products as it deems appropriate in its sole but reasonable discretion to ensure proper functioning of both Products. against a Company approved test suite of relevant data, and (ii) obtain the prior written approval of Company.Reseller and Company will cooperate with each other to assure appropriate testing of appropriate interfaces provided to Reseller Customers.
2.6Company Products Modifications, Upgrades, Updates. Company shall furnish Releases to Reseller as and when developed in the normal course of Company’s business, andin the case of Major Releases in beta form andno less than twenty (20) days prior towhenCompany will maketheMajor Release generally available to its end user base so as to facilitate timely testing and a smooth implementationof such Release by Reseller. In the event that Company changes the structure of its formats as part of a Release to the Company Products, Company shall provide such cooperation and assistance as Reseller may reasonably request in a timely manner and at no additional chargein connection withto facilitate Reseller’s efforts to modify the Reseller Products or interfaces to the Company Products that Reseller makes in connection with any Release to the Company Products. If Company notifies Reseller that a Release supersedes the preceding version, Reseller shall have a reasonable amount of time in which to move to the updated version, but in no event less than 90 days. Reseller agrees that, commencing as of the first anniversary of the Effective Date, it shall make its best good faith effort to only make available to its clients, the most current updated version to within 90 days of the current update and release being made available to Reseller. Company will have no obligation to provide maintenance and support services for versions other than the current version and the immediately preceding version. Unless otherwise instructed in writing by Reseller, delivery of allAll Releases, including all supporting documentation of Company Products shall be delivered to a representative of Reseller’s central technical and development staff, identified by Reseller upon request from Company:
2.7License to Use Company Products for Testing and Training. Upon the terms and subject to the conditions of this Agreement, Company hereby grants to Reseller a non-exclusive, non-transferable, royalty-free right and license to use the Company Products (including, without limitation, the Product Documentation) for the purpose of: (i)performing functionality, integration, and compatibility testing on the Company Products; and (ii)training Reseller’s personnel. Company will provide to Reseller such number of copies of (or licenses to use) the Company Products as Reseller may determine in its reasonable discretion, is necessary for Reseller’s use for the purposes contemplated by this Section 2.7. All demonstrations of the Company Products to any actual or prospective Reseller Customer will be conducted by Company at Reseller’s request at no additional cost to Reseller.
2.8License to UseCompany Products for Related Services. Subject to the terms and conditions of this Agreement, Company hereby grants to Reseller a non-exclusive, non-transferable license to access the Company Products for purposes of providing consulting, implementation and other support services to Reseller Customers in furtherance of the ASP Services or BPO Services, including but not limited to the creation of interfaces between the CompanyProducts and the Reseller Products.
2.9The licenses in Sections 2.2, 2.7 and 2.8 shall survive the termination or expiration of this Agreement for soas long as Reseller is obligated to provide ASP Services or BPO Services to any Reseller Customer under a Reseller License Agreement.
2.107Limited Limits on Licenses. This Agreement does not transfer any right, title or interest in the Company Products to Reseller and is non-exclusive. During the term of this Agreement, Reseller shall have a limited, non-transferable license from Company to use Company Products to test, demonstrate, create interfaces to the Company products and perform impact studies with the Reseller Products to the extent necessary to fulfill Reseller's obligations under this Agreement. Except for the license rights granted pursuant to the preceding Sections of this Article 2, this Agreement does not transfer any right, title or interest in the Company Products to Reseller and is non-exclusive. This licenses s shall granted pursuantto this Article 2 shall in no way not impair or restrict in any manner, Company’s ability or rights to market, sell or license Company Products throughout the world and to any person or entity.
3.Company's Obligations.
3.1Sales Support. Company shall provide to Reseller relevant marketing information and support for the use of Company Products and reasonable assistance in closing sales. Company shall provide to Reseller a copy of Company’s latest releases of the Company Products, for Reseller’s internal use in its sales activities.
3,2Training. Company shall provide to Reseller the training services described in Schedule 1 hereto, including classroom training, hands-on training and training for Major Releases.
3.23Company Support and Maintenance of Reseller. Company shall provide [C2]to Reseller the support services set forth in this Agreement and in SchedulesSchedule 2. Company shall not be obligated to provide support services directly to any Reseller Customer that licenses a Company Product through Reseller. Company agrees to provide Reseller's central technical and development staff with one hard copy and one soft copy of all published maintenance modifications for each operating system version of the Company Products licensed to Reseller. Reseller shall provide and maintain a list of key Reseller employees who are authorized to contact Company for technical support, which list shall include at least one key manager and one technical representative for each Reseller Customer. Except as otherwise provided in Schedule 1, Reseller shall carry out all installation of Company Products and any associated Releases, corrective coding or materials and shall cooperate with Company in allowing Company to perform maintenance tasks at a time mutually agreeable to Reseller and Company. Company has no obligation to correct errors that are not material to the Company Products’ performance, and Company does not represent or warrant that all errors can be or will be corrected. Company's primary method of carrying out its maintenance obligations will be via telephone support to Reseller, followed by delivery to Reseller of any available corrective Company Products code, corrective materials, or modified operating procedures in a timely manner and consistent with the Service Levels set forth in Schedule 2 hereof. Company is not responsible for any failure or delay in providing maintenance services, to the extent it is caused by Reseller’s failure to cooperate, to comply with this Agreement or to utilize Company Product in the method and manner intended[C3]
3.2.1First Level Support. Reseller shall be responsible for providing first level support to Reseller Customers with respect to Company Products being delivered by Reseller under a Reseller License Agreement. First Level Support shall include receiving Reseller Customer’s incoming inquiries for the purpose of (a) responding to inquiries related to Reseller’s Products, including Reseller’s interface to Company Products; and (b) determining if the Reseller Customer’s inquiry is specific to operation of or Defect in Company Products. Reseller will support Reseller Customer’s inquiries specific to the operation and use of Company Products. If Reseller determines a Reseller Customer’s inquiry is caused by a Defect in Company Products, Reseller will document the problem and send the information to Company for resolution at no additional fee to Reseller or Reseller Customer. Company shall use commercially reasonable efforts to provide a modification or workaround for Defects identified with the Company Products[C4]