MINDING MY BOOKS® PARTNER RESELLER PROGRAM AGREEMENT
This Northern Michigan Accounting, LLC (NMA) dba/Minding My Books Partner Program Agreement (the “Agreement”) sets forth the terms and conditions of the Minding My Books Partner or AFFILIATE Program (the “Program”) of NORTHERN MICHIGAN ACCOUNTING, LLC., for itself and on behalf of its affiliates and wholly-owned subsidiary companies (“Intuit”)
BY CLICKING ON THE "ACCEPT" BUTTON AT THE END OF THE AGREEMENT ACCEPTANCE FORM IN THE MINDING MY BOOKS STORE AFFILIATE SIGNUP, YOU (IF YOU ARE ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL) OR YOUR COMPANY (IF YOU ARE ACTING ON BEHALF OF YOUR COMPANY) (“YOU,” THE "MINDING MY BOOKS PARTNER PROGRAM MEMBER") AGREE(S) TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY BEFORE ACCEPTING ITS TERMS.
This Agreement will supersede and replace any prior Northern Michigan Accounting Agreement between Northern Michigan Accounting, LLC and You. You and Northern Michigan Accounting agree that any and all prior contractual agreements or arrangements between You and Northern Michigan Accounting (if any) with respect to the foregoing programs are terminated immediately and completely, and Your rights thereunder (including any notification rights) are replaced and supplanted in their entirety by the current Agreement.
Recitals
A. Intuit Inc. is a leading provider of business, retail and financial management software and service solutions for small and mid-sized businesses, consumers and accounting professionals.
B. Northern Michigan Accounting, LLC is a Premier Reseller with Intuit, Inc. NMA receives referrals from Intuit and has rights to market, resell licenses for, and distribute Intuit software and related implementation services and products to potential customers in the United States.
C. Prospects and users of Intuit’s software require external resources to obtain licensing for and implement or more fully utilize features and functionality of the software.
D. Northern Michigan Accounting, LLC desires to refer customers seeking licensing and/or implementation services to qualified third-party service providers.
E. Northern Michigan Accounting’s PREMIER PARTNER PROGRAM AFFILIATE is a solution provider that wishes to receive referrals from Northern Michigan Accounting, LLC and purchase Intuit software and related implementation services and products to potential customers in the United States.
Therefore, NMA and AFFILIATE hereby agree to the MMB Partner Program described in this Agreement, which incorporates the Terms and Conditions and the Member Guide (“Member Guide”) which has been made available to the PARTNER. The Member Guide contains integral parts of this Agreement and is posted in the password protected, AFFILIATE Resource Center (“Resource Center”). The Member Guide includes, but is not limited to, the following information:
Terms and Conditions
1. PROGRAM DESCRIPTION. The Member Guide sets forth a description of the MMB Partner Program
(the “Program”) governed by these Terms and Conditions.
2. LICENSE GRANT; DISTRIBUTION OF PRODUCTS.
2.1 Program Participation. As a condition of participation in the Program, AFFILIATE agrees to comply with any license provisions, terms of use, terms of sale, or other contractual requirements applicable to its receipt of Intuit Products, licenses, and accompanying authorized media (if any) for marketing and resale. In addition, AFFILIATE agrees to comply with all terms of this Agreement, including the Member Guide and the end user license agreements (“EULAs”) for the Intuit Products, to the extent applicable. As used herein, the term “Intuit Product(s)” means (i) the Intuit software and licenses specified by Intuit from time to time and all associated documentation including, but not limited to, the EULA(s) applicable to such software (which EULA(s) are hereby incorporated into this Agreement by reference) (collectively the “Documentation”); or (ii) Intuit branded physical or tangible Products which are made available to AFFILIATE under this Agreement. Notwithstanding anything to the contrary contained herein, AFFILIATE agrees that the distribution of those Intuit Products consisting of software shall be by license only, and shall not include any right of sale, resale, ownership, or any related right. Distribution of physical or tangible products shall be by resale, including the right of ownership. Distribution of any media (if any) containing Intuit software shall not include any right of sale, resale, or ownership of the Intuit software contained thereon. Under no circumstances may AFFILIATE or end users acquire any ownership rights in Intuit software.
2.2 Restrictions on Use. AFFILIATE agrees: (i) not to create or attempt to create by reverse engineering, disassembly, decompilation, or otherwise, the source code, internal structure, file formats or other organization of the Intuit Products, or any part thereof, from any object code or information that may be made available to it, or aid, abet or permit others to do so; (ii) not to remove any Intuit Product identification or notices of any proprietary or copyright restrictions from the Intuit Product or any support material; (iii) except for authorized archival or back-up copies for its own use, not to copy the
Intuit Product, develop any derivative works thereof or include any portion of the Intuit Product in any other software program; (iv) not to provide use of the Intuit Product in a computer time-sharing, online service, software-as-a-service, application service provider, online hosting or other similar business, rental or commercial timesharing arrangement; and (v) to distribute, transfer, install and implement all Intuit Product to properly licensed end user customers only (and not to intermediaries that intend to transfer the Intuit Products to third parties) all with, and in compliance with, the Documentation. For the avoidance of doubt, AFFILIATE understands and agrees that AFFILIATE is permitted to offer the Intuit Products to end user customers only, upon payment of appropriate end-user license fees, and not to intermediaries (e.g. other “resellers”).
2.3 Modification. At any time and in Intuit's sole discretion, NMA may modify any of the terms and conditions contained in this Agreement and the Member Guide, by posting a revised or new agreement or Member Guide. If any modification is unacceptable to AFFILIATE, AFFILIATE’s only recourse is to terminate this Agreement. AFFILIATE's continued participation in the Program following NMA's posting of a revised or new agreement or Member Guide will constitute binding acceptance of the modification.
3. CONDUCT OF BUSINESS; RIGHT TO INSPECT; AUTHORIZATION.
3.1 Conduct of Business. AFFILIATE agrees:
3.1.1 To conduct business and provide services in a manner which reflects favorably at all times on the products, services, goodwill and reputation of NMA and Intuit;
3.1.2 To conduct business and provide services in full compliance with all applicable laws and regulations;
3.1.3 To conduct business and provide services in full compliance with all agreements you may have with NMA, including but not limited to the related Product license agreement(s);
3.1.4 Not engage in deceptive, misleading or unethical practices;
3.1.5 Not to make any statements, representations, warranties, or guarantees that are inconsistent with this Agreement, the Member Guide or the policies established by NMA;
3.1.6 To provide support and services of the highest quality and integrity; and
3.1.7 To use best efforts to resolve any complaints or disputes with end users regarding AFFILIATE’s services under the Program in a fair and timely manner. AFFILIATE agrees not to use or display any materials or content on AFFILIATE’s Web site(s) in a manner that is defamatory, misleading, libelous, obscene or otherwise potentially damaging to the reputation of NMA or Intuit or the goodwill associated with NMA or Intuit.
3.2 To only purchase Intuit products directly through Northern Michigan Accounting, LLC. dba/Minding My Books
3.3 Right to Inspect. NMA shall have the right to inspect AFFILIATE’s provision of support and services under this Agreement, AFFILIATE’s business premises, and all Program-related material in order to ensure AFFILIATE’s full compliance with the terms and conditions of this Agreement. AFFILIATE shall cooperate fully and shall provide NMA immediate access to all requested materials and to AFFILIATE’s business premises in order to allow NMA to exercise its right to inspect.
3.3 Authorization. AFFILIATE hereby authorizes NMA and third parties authorized by Intuit to disclose and/or publish information regarding AFFILIATE’s name, address and other contact information, expertise profile, and business profile in printed and/or electronic forms in any medium.
4. TERM AND TERMINATION.
4.1 Term. This Agreement shall be effective upon AFFILIATE’s acceptance as indicated by AFFILIATE click of the “ACCEPT” button (the “Effective Date”), and shall remain in effect for so long as AFFILIATE is in full compliance with the terms of the Agreement, until terminated as provided herein.
4.2 Termination.
4.2.1 NMA may terminate this Agreement for cause immediately and without further notice in the event that: (i) AFFILIATE fails to perform any of AFFILIATE’s obligations under this Agreement or is otherwise in default hereunder; (ii) NMA, in its sole discretion, determines that AFFILIATE does not meet the Program criteria for participants as determined by NMA from time to time; or (iii) any conduct or proposed conduct of AFFILIATE exposes or threatens to expose Intuit to any liability or obligation, including any obligation under federal, state or local law.
4.2.2 Either party may terminate this Agreement upon notification to the other. Termination shall be effective thirty (30) days following notification by either party.
4.3 Effect of Termination. Upon expiration or termination of this Agreement, regardless of the reason therefor: (i) all privileges and benefits of the Program will be immediately revoked; (ii) AFFILIATE shall immediately cease use of all Intuit trademarks, tradenames, copyrights and all Program material, including Approved Materials and product box images (the “Intuit Images”), as those terms may be further defined in the Trademark Usage Guidelines or in the Member Guide; (iii) AFFILIATE shall promptly return to NMA all NMA confidential information or certify in writing that it has destroyed such information; (iv) all rights and licenses granted under this Agreement will immediately and automatically terminate; and (v) AFFILIATE will immediately discontinue representing that AFFILIATE is a Program participant and Minding My Books Affiliate.
5. DISCLAIMERS; LIMITATIONS OF LIABILITY.
5.1 Disclaimers. NMA makes no representations or warranties of any kind with respect to the Program and any Products, and the Program and Products are provided to AFFILIATE “as is.” EXCEPT AS PROVIDED IN THE PRODUCT END USER LICENSE AGREEMENT(S), INTUIT HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PROGRAM, PRODUCTS OR SERVICES PROVIDED BY INTUIT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN THE PRODUCT END USER LICENSE AGREEMENT(S), INTUIT SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF ANY WARRANTY. The right to return defective Products, if provided under the applicable EULA, shall constitute NMA’s sole liability and AFFILIATE’s exclusive remedy in connection with any claim of any kind relating to the quality, condition or performance of any Product, whether such claim is based upon breach of contract, warranty or any statutory duty, negligence or other tort, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise.
5.2 Limitations of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW, NMA SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE PROGRAM OR THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR ANY DAMAGES OR SUMS PAID BY AFFILIATE TO THIRD PARTIES, EVEN IF INTUIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER SUCH CLAIM IS BASED UPON BREACH OF CONTRACT, WARRANTY OR ANY STATUTORY DUTY, NEGLIGENCE OR OTHER TORT, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. SINCE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL DAMAGES, THIS LIMITATION MAY NOT APPLY TO AFFILIATE. NMA’S TOTAL LIABILITY FOR ALL DAMAGES, ALLEGED DAMAGES, AND LOSSES HEREUNDER, (WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE LESSER OF AMOUNTS RECEIVED BY INTUIT UNDER THIS AGREEMENT OR FIVE THOUSAND ($5,000) DOLLARS.
6. INTUIT TRADEMARKS, TRADE NAMES AND COPYRIGHTS.
NMA does not authorize AFFILIATE to use any Intuit Trademarks, trade names and copyrights.
7. GENERAL.
7.1 AFFILIATE in Good Standing. AFFILIATE shall at all times during the term of the Agreement meet the criteria listed in the Agreement and the Member Guide or be subject to removal from the program upon sole discretion of Intuit:
7.2 AFFILIATE Commission. In order to be eligible for AFFILIATE commissions the AFFILIATE must adhere to NMA’s business conduct requirements.
7.3 Confidentiality. NMA may from time to time provide you with confidential information including, but not limited to, the Member Guide. You acknowledge that such confidential information is the property and a confidential trade secret of NMA. You shall not reveal, disclose or distribute such confidential information in any form to employees, except on a need to know basis, nor to any third party, except to the extent specifically permitted by NMA. You agree to take all reasonable precautions to prevent unauthorized disclosure and use of such confidential information. This obligation of confidentiality does not apply to information which is (a) rightfully in the public domain other than by a breach of a duty to NMA; (b) rightfully received from a third party without any obligation of confidentiality; (c) rightfully known to you without any limitation on use or disclosure prior to its receipt from NMA; (d) independently developed by you; or (e) generally made available to third parties by NMA without restriction on disclosure. You may not disassemble, reverse-engineer, or decompile any software that is provided to you by Intuit. AFFILIATE agrees to return to Intuit immediately upon Intuit’s written request any confidential information AFFILIATE has received in writing or other tangible form. AFFILIATE acknowledges that the unauthorized disclosure or use of Intuit confidential information will cause irreparable harm to Intuit, and that accordingly, AFFILIATE agrees that Intuit will have the right to seek and obtain injunctive relief in addition to any other rights and remedies to prevent any such unauthorized use or disclosure.
7.4 Assignment. AFFILIATE may not sell, transfer or assign this Agreement, in whole or in part, or any of the rights hereunder, unless AFFILIATE obtains the prior written consent of NMA.
7.5 Notices. Unless otherwise stated, all notices required under this Agreement shall be in writing and shall be considered given (i) immediately, when sent by email, or (ii) upon delivery when sent certified mail, return receipt requested, or via a commercial overnight carrier, fees prepaid. All communications to Intuit must be sent to the persons and addresses specified immediately below (unless changed by notice as provided hereunder):
To Northern Michigan Accounting, LLC:
Northern Michigan Accounting, LLC.
4888 Reflections Dr.
Cheboygan, MI 49721
Attn: Raeann Salter
Raeann.salter@mindingmybooks.com
7.6 Survival. The provisions of this Agreement which, by their terms, require or contemplate performance by the parties after expiration or termination, or which reasonably ought to be understood to so require or contemplate, shall be enforceable notwithstanding any expiration or termination.
7.7 Entire Agreement. This Agreement, including the Member Guide, constitutes the entire agreement between AFFILIATE and NMA with regard to the subject matter hereof. The terms and conditions of this Agreement shall supersede any previous agreements between the parties with respect to the subject matter hereof, and any terms and conditions printed or written on any purchase order issued by AFFILIATE.
7.8 Non-Waiver. No waiver of any condition or covenant contained in this Agreement or failure to exercise a right or remedy of NMA or AFFILIATE shall imply or constitute a waiver by the waiving party of the same or any other condition, covenant, right or remedy contained herein.
7.9 Severability. If a court of competent jurisdiction declares any provision of this Agreement invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
7.10 Governing Law and Jurisdiction. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of Michigan, with the exception of its choice or conflicts of law provisions. Both parties agree to submit to the exclusive jurisdiction of the courts located in the State of Michigan, County of Cheboygan.
7.11 Independent Relationship. Nothing contained herein shall be deemed or construed as creating a joint venture or partnership between NMA and AFFILIATE. Neither Intuit nor AFFILIATE is authorized, by virtue of this Agreement, as an agent or other representative of the other, or to make any commitments or representations of any kind on behalf of the other.
7.12 No Endorsement. AFFILIATE acknowledges that NMA makes no claim on AFFILIATE’s behalf as to the quality of the products or services AFFILIATE offers.
7.13 Force Majeure. Neither party hereto shall be liable for the failure to perform any of its obligations under this Agreement, with the exception of AFFILIATE’s payment obligations, if such failure is caused by the occurrence of any event beyond the reasonable control of such party, including without limitation fire, flood, strikes and other industrial disturbances, failure of transport, accidents, wars, riots, insurrections, or acts of God.
7.14 Compliance with Laws. AFFILIATE agrees, represents, and warrants that it and its agents, subcontractors, and employees shall comply with all applicable federal, state, county, and local laws, ordinances, regulations and codes in the performance of the Agreement, including the procurement of permits and certificates and the submission of reports and filings. AFFILIATE also agrees to indemnify and hold harmless NMA from and against all claims that may be sustained by NMA from AFFILIATE's failure to comply with such laws, ordinances, and the like.
7.15 Review by Legal Counsel. Each party has had the opportunity to review this Agreement with the assistance of legal counsel. Any rule of construction construed the Agreement against the drafting party shall not apply.
7.16 No Export. AFFILIATE shall not export directly or indirectly any Intuit Product outside the United States.
July 2014