The Mobilecloud Company

The Mobilecloud Company

The MobileCloud Company

PARTNER AGREEMENT

This agreement (including any exhibits attached hereto, the “Agreement”) is dated and effective as of______, 20___ (the “Effective Date”) by and between ______, a ______located at ______(“You”, “Your” or “Partner”, as applicable) and Perfecto Mobile Inc., a Delaware corporation located at120 Presidential Way, Suite 110, Woburn, MA 01801 (“Perfecto Mobile”, "We" or "Us", as applicable) and states the terms that govern the parties’ strategic relationship, at the partner tier further described in Exhibit Ahereof (the “PartnerTier”).

  1. Definitions. As used in this Agreement, the following terms shall be defined as follows:

(a)Documentation: All written materials regarding the specifications of the Products (as defined below) as may be developed by Perfecto Mobile in regard to such Products.

(b)Hardware: All servers, networking devices, cradles, any other hardware provided by Perfecto Mobile and any Documentation relating to any of the foregoing.

(c)Software: MobileCloud Interactive, MobileCloud Automation, MobileCloud for QTP, software embedded in Hardware, any other software provided by Perfecto Mobile and any Documentation relating to any of the foregoing.

(d)Professional Services: All customization, integration, maintenance, training, any other professional services provided by Perfecto Mobile and any Documentation relating to any of the foregoing.

(e)Products: All Perfecto Mobile Software, Hardware and Professional Services.

  1. Operational Elements of Alliance.

(a)Appointment.

  1. Respective Services. Partner is a provider of information technology, consulting, information technology infrastructure and business process outsourcing services (collectively, the “Partner Services”). Perfecto Mobile is a provider of the Products used for mobile testing, handset remote access, automation and monitoring.
  2. Appointment. Perfecto Mobile hereby appoints Partner to non-exclusively market the Products in the territory set forth in Exhibit A (the “Territory”). Partner accepts such appointment and agrees to market the Products in the Territory pursuant to this Agreement. This Agreement is not exclusive to Partner; Perfecto Mobile reserves the unrestricted right to (i) market, license, integrate, support and service the Products in the Territory, by itself or through others; and (ii) change or discontinue any or all of the Products at any time without notice in its sole discretion.
  3. End Users. The organization that seeks to use the Products to test and evaluateits mobile services and/or products (including third parties' software and/or products which they may wish to use in connection with its products and services) in connection with third parties' hand-held phones, smart phones, tablets and PDAs shall be known as an “End User.”

(b)License. In consideration of your compliance with your undertakings herein contained, Perfecto Mobile hereby grants Partner a non-exclusive, non-transferable, revocable, non-assignable (except as otherwise provided in Section 10.c. herein) limited license (the "License") to use the Products and any Third Party Software or Hardware (as defined below) to (i) display and demonstrate the operation of the Products to potential End Users in connection with the efforts of Partner to market the Products under the terms of this Agreement; and (ii) sublicense the Products to End Users to the extent permitted by the applicable Partner Tier, consistent with the terms set forth herein. Partner shall not alter any provided trademarks of Perfecto Mobile, which are hereby licensed to Partner for the sole purpose described herein.

(c)Partner Obligations. The obligations of the Partner are set forth in detail in the Partner Tier-specific terms and conditions attached hereto and incorporated herein asExhibit B, as they may be changed by Perfecto Mobile from time to time, with such changes to be effective thirty (30) days after notice of the posting of such changes. The Partner Tier identified in Exhibit A and described in ExhibitB shall remain in effect for twelve months from the Effective Date (or any later change); any change in Partner Tier shall be at Perfecto Mobile’s sole discretion.

(d)Pricing, Reporting and Purchase Orders.

  1. Pricing. Suggested list prices for the Products shall be provided by Perfecto Mobile.
  2. Quarterly Reports. Partner shall provide Perfecto Mobile, within thirty (30) days after the end of each calendar quarter, a written report detailing its current activities pursuant to this Agreement, including sales, billings, warranty claims, names of End Users, marketing activities undertaken, quarterly market forecast for the next twelve (12) months, the competitive status of the Products in the marketplace and all other commercial and market information which Perfecto Mobile may reasonably request.
  3. Purchase Orders. Products shall be purchased using purchase orders in the form provided by Perfecto Mobile (“Purchase Orders”). In the event of any inconsistency between this Agreement and any Purchase Order, the terms of this Agreement shall control. All Purchaser Orders shall include the End User name, address, phone number, support contact name, support contact phone number and support contact e-mail address. All Purchase Orders shall also include the Partner name, address, phone number, accounts payable contact name, accounts payable phone number and accounts payable e-mail address. Partner shall provide copies of purchase orders executed between it and the End User upon Perfecto Mobile’s request.
  1. Professional Services. Perfecto Mobilemay provide you or the End User Professional Services at your request. Professional Services shall be provided either on an hourly basis or by way of "Service Packages", at Perfecto Mobile’s discretion, in each case at then-applicable fees and pursuant to a mutually agreed upon Statement of Work attached to the applicable Purchase Order. To the extent Partner shall be permitted by Perfecto Mobile to provide professional services to the End User, the staff involve shall be trained by Partner to Perfecto Mobile’s satisfaction.
  2. Scope of Rights; Restrictions on Use.

(a)Scope. Any Software licensed hereunder shall be in object code form only, all subject to the following terms and conditions during the term of this Agreement. This Agreement confers no title or ownership and is not a sale of any rights in the Products. All rights not expressly granted to you are reserved solely to Perfecto Mobile and/or its licensors. Nothing herein should be construed as granting you, by implication, estoppel or otherwise, a license relating to the Products other than as expressly stated in this Agreement.

(b)Restrictions. Pursuant to the License granted hereunder you may use the Products solely for the purposes of (i) displaying and demonstrating the operation of the Products to potential End Users in connection with the efforts of Partner to market the Products under the terms of this Agreement; and (ii) permitting End Users to test and evaluatetheir software and/or products (including third parties' software and/or products which they may wish to use in connection with their products and services) in connection with third parties' hand-held phones, smart phones, tablets and PDAs, in each case consistent with the terms of this Agreement. You agree that you will not (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Products, (ii) modify or undertake any development on the Products, (iii) otherwise translate or use the Products except as specifically allowed by this Agreement, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing; (iv) sublicense, transfer and/or assign (except as otherwise provided in Sections2.b. and 10.c. herein) the Products to any third party, whether with or without consideration; (v) render any services to third parties using the Products; (vi) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Products; or (vii) allow any third parties to use the Products (except as otherwise provided in Sections 2.b. and4.d. herein). You may not make any copies of the Products or any portions thereof.

(c)Third Party Licensors. You acknowledge that the Products contain and/or contactthird party hardware and software that is the property of its respective owner (the “Third Party Software or Hardware”). Such Third Party Software or Hardware may be subject to restrictions in addition to those listed herein, which restrictions, if any, may be announced by Perfecto Mobile from time to time, and shall be deemed an integral part hereof for all purposes. Third-party licensors are intended beneficiaries under this Agreement and independently may protect their rights in the Products (if and to the extent such exist) in the event of any infringement.A list of Perfecto Mobile’s then-current agreements relating to open source which apply to use of the Products (“MobileCloud Third Party Components and License”) is available upon request.

(d)Affiliates. Notwithstanding anything to the contrary herein, the rights granted to Partner hereunder may be exercised by Partner’s Affiliates (as defined below) and/or independent contractors performing services on behalf of Partner and/or such Affiliates, provided that each such Affiliates and independent contractors execute a written statement, confirming their undertaking to comply with the terms of this Agreement which apply to the use of the Products, and further provided that Partner shall remain responsible, at all times for such Affiliates and independent contractors adherence to all applicable terms and conditions of this Agreement. For purposes of this Agreement, the term "Affiliate" shall mean any person or entity that directly or indirectly, controls or is controlled by or is under common control with Partner; each of the words "control" or "controlled" as used in this clause shall mean ownership of any such person or entity which is at least 50% of the shares, or the right to elect the majority of the board of directors or such other similar governing body.

  1. Proprietary Rights and Confidentiality.

(a)Products and Derivative Works. Perfecto Mobile (or its licensors, as applicable) will retain all title to and ownership of the Products (and Third Party Software or Hardware), all related concepts, technical know-how, and all modifications, customizations, revisions, bug fixes, enhancements, improvements and derivative works (collectively, the “Derivative Works”) thereof developed by Perfecto Mobile or anyone else, including you or any End User, including all Intellectual Property Rights (as defined below) and, except for the expressed limited license granted hereunder, you shall have no rights in or claims with respect thereto. "Intellectual Property Rights" means any patent, patent applications, trade secret, trademark, copyright, industrial design or any other intellectual property right registered or unregistered in any country throughout the world, and all related goodwill. To the extent it shall be determined that you have any right in connection with the Products other than the limited specific license hereunder, you hereby irrevocably: (i) assign to Perfecto Mobile, whenever and in perpetuity, any right, title and interest, whether now existing or later arising, that you may have in or to the Products and/or related Intellectual Property Rights; and (ii) agree to take any lawful action, which we reasonably request to vest or protect your right, title and interest in the Products and any Derivative Works (at your sole cost).

(b)Confidential Information.

  1. General. Each party agrees that all inventions, know-how, engineering, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Notwithstanding the foregoing marking requirements, the Products, technical information and other code or data of any type provided by Perfecto Mobile (or its agents), the pricing offered by Perfecto Mobile to Partner, and this Agreement’s terms and conditionsare Perfecto Mobile Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
  2. Exclusions. The Receiving Party’s nondisclosure obligation will not apply to information which the Receiving Party can document: (i)was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii)is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees or contractors of the Receiving Party who had no access to such information.
  3. Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and contractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency or tribunal or other governmental body, provided that the party required to make such a disclosure gives reasonable written notice to the other party to contest such order or requirement; and (ii) on a confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement as required under applicable securities laws, but such party will use all reasonable efforts to obtain confidential treatment to the maximum extent possible for the terms and conditions of this Agreement.
  1. Service Levels and Support Services. Maintenance and support services under this Agreement shall be provided as set forth in the Channel Requirements relating to the Partner’s Partner Tier.
  2. Fees and Payments.

(a)Generally. Fees and payments under this Agreement shall be made as set forth in the Channel Requirements table within Exhibit B.

(b)Taxes. All fees due and other charges stated herein are exclusive of and do not include any sales, use, value-added, or other taxes, charges and/or duties, which shall be Partner’s responsibility. Taxes based on each party’s net income or gross receipts shall be that party’s responsibility.

  1. Limited Warranty, Limitation of Liability and Indemnification.

(a)Warranty. Perfecto Mobile represents and warrants to Partner that (i) Perfecto Mobile is the sole owner of the Products, except to the extent they incorporate Third Party Software or Hardware, and has all the necessary rights thereto to license the Products to Partner as contemplated hereunder; and (ii) during the term of this Agreement (the “Warranty Period”), the Products shall substantially conform to the applicable Documentation.

(b)Limitations on Warranty. THE FOREGOING WARRANTY DOES NOT APPLY TO ANY DEFECTS, DAMAGES, FAILURES OR MALFUNCTIONS TO ALL OR ANY PART OF THE PRODUCTS RESULTING FROM: (I)NEGLIGENCE, ABUSE, OR MISAPPLICATION OF THE PRODUCTS; (II)USE OF THE PRODUCTS OTHER THAN AS SPECIFIED IN THE APPLICABLE DOCUMENTATION OR OTHERWISE IN OTHER THAN ITS NORMAL AND CUSTOMARY MANNER; (III)ANY ALTERATIONS, MODIFICATIONS OR ADAPTATIONS OF THE PRODUCTS PERFORMED BY ANYONE OTHER THAN PERFECTO MOBILE; (IV)ANY UNAUTHORIZED COMBINATION OR INTERFACING OF THE PRODUCTS WITH OTHER HARDWARE OR SOFTWARE; OR (V)OTHER CAUSES BEYOND THE REASONABLE CONTROL OF PERFECTO MOBILE. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PERFECTO MOBILE DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE PRODUCTS, INCLUDING CONDITION, QUALITY, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. Partner’s sole and exclusive remedy for breach of the warranties set forth in this Section shall be that Perfecto Mobile, at Perfecto Mobile's sole discretion, will either: (i) repair, replace or provide a reasonable workaround for the defective and/or non-conforming portion of the Products within thirty (30) days after receiving written notice of the breach of the warranty which describes in detail the specific nature of the defect and/or non-conformity: or (ii) refund all amounts paid by Partner for such Products (after deducting amounts paid for actual use of the Products by Partner or the End Users). To claim the benefit of this warranty, Partner must give Perfecto Mobile written notice of any breach of the warranty (as aforesaid) within the Warranty Period.

(c)Limitation of Liability.TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR BREACHES OF SECTION5 ABOVE,EITHER PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID TO PERFECTO MOBILE BY PARTNER UNDER THIS AGREEMENT. EXCEPT FOR BREACHES OF SECTION5 ABOVE AND EXCEPT FOR CLAIMS BASED ON A PARTY'S FRAUD OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, MULITPLE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, OR BUSINESS INTERRUPTION), ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE PRODUCTS, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF PERFECTO MOBILE OR YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT.

(d)Indemnification by Perfecto Mobile. Subject to the limitations stated in this Section8, Perfecto Mobile agrees to defend or settle, at its expense, Partner and its directors, officers, employees, independent contractors, and/or Affiliates (collectively, the “Partner Indemnified Party”) from and against any third party claims alleging that the Partner Indemnified Party’s use of the Products infringes and/or misappropriates any (i) issued patent, (ii) registered trademark, (iii) registered copyright, (iv) trade secret, and/or (v) other intellectual property right. In connection with the foregoing defense, Perfecto Mobile shall indemnify the Partner Indemnified Party against all damages finally awarded against Partner in a final judgment or settlement of any of the foregoing claims. The Partner Indemnified Party shall give Perfecto Mobile prompt notice of any such third party claim, provided however, that the Partner Indemnified Party’s failure to do so shall not reduce or diminish Perfecto Mobile’s obligations hereunder except to the extent Perfecto Mobile has been adversely affected or prejudiced by such failure. Perfecto Mobile shall have no obligation under this Section 8.d. as to any claim, unless Perfecto Mobile will have sole control of its defense or settlement of any third party claim hereunder, provided however, that Perfecto Mobile shall not, without the Partner Indemnified Party’s prior written consent, settle any claim in a manner that admits liability on the part of the Partner Indemnified Party. The Partner Indemnified Party shall reasonably cooperate with Perfecto Mobile (at Perfecto Mobile’s expense) in the defense as Perfecto Mobile may reasonably request (it being understood that nothing herein shall preclude the Partner Indemnified Party from consulting with its own counsel at its own expense). If Partner is, or Perfecto Mobile believes it may become, prohibited from continued use of the Products by reason of an actual or anticipated claim of infringement, Perfecto Mobile shall, at its option and expense, (i) obtain for Partner the right to continue using the Products, (ii) replace or modify theProducts so that it is no longer subject to such claim, but performs the same functions in an equivalent manner, and (iii) if neither of the foregoing options are commercially practicable, refund to Partner all amounts paid by Partner for the Products subject to the claim(after deducting amounts paid for actual use of the Products by Partner or the End Users), in which case Partnerand the End Users will cease use of the Products in the jurisdiction to which such claim pertains and return to Perfecto Mobile the Products subject to such claim. The indemnification set forth in this Section 8.d. does not apply to the extent of Partner’s or the applicable End User’s negligence, abuse or misapplication of the Products; use of the Products other than as specified in the applicable Documentation or otherwise in other than its normal and customary manner; any alterations, modifications or adaptations of the Products performed by anyone other than Perfecto Mobile; any unauthorized combination or interfacing of the Products with other hardware or software; or other causes beyond the reasonable control of Perfecto Mobile.

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