CodeAlliance Program Terms

Welcome to the CodeAlliance Reseller Program (the "Program"). Code makes certain sales, marketing and technical support available to members of the Program ("Members") to assist Members in their marketing, sales, and support of Code's products ("Products"). These CodeAlliance Program Terms form a binding agreement (the "Agreement") between The Code Corporation ("Code") and the reseller identified in the on-line enrollment form ("Reseller").

Code and Reseller hereby agree as follows:

1) Program Benefits

This Agreement incorporates any additional written terms posted on the CodeAlliance portal related to the benefits you receive from Code under the CodeAlliance Reseller Program, including the availability cooperative marketing funds ("Co-Op Funds"), access to Code's deal registration program ("Deal Registration Program"), and vouchers for the purchase of demonstration equipment ("Demo Vouchers") for Silver, Gold and Platinum Members.

2) Registered Deals

Each Member is eligible to participate in Code's Deal Registration Program. To initiate registration, the Member must provide Code with written notice that includes information necessary for Code to provide, at Code's discretion, sales and marketing assistance to facilitate the Reseller's efforts to sell Code product to the prospective customer, such information may include, as required by Code: i) the contact information for the person responsible for the prospective customer's project; ii) the objective of the project including the benefits of Code's product over competitor's products; iii) identification of the person or person's with authority to make the purchase decision; iv) the expected closing date; and v) any other relevant information that may be useful to Code to qualify the opportunity. A prospect will become a Registered Deal only when Code confirms the registration by providing the Member with a deal registration number. Code reserves the right to: i) reject any request for registration of the prospect is already registered by another reseller; and ii) require additional information, at Code's discretion prior to confirming a registration.

3) Co-Op Funds

Each Demo Vouchers accrued during a calendar year will be available for use during the calendar year of accrual and the following calendar year. Co-Op funds accrued during the calendar year will available for use by Member during the following calendar year. Available Co-Op Funds may only be used to reimburse actual expenses incurred during the term of this Agreement for marketing initiatives that have been pre-approved in writing by Code (an "Approved Marketing Initiative"). To request approval of a marketing initiative the Member must submit to Code a written description of the initiative, an expense budget for the initiative, and a proposal for the amount of the budgeted expenses to be reimbursed by Code using available Co-Op Funds ("Co-Op Amount"). Code reserves the right to request additional information for evaluating the request and to decline participation in, or limit the Co-Op Amount for, any proposed marketing initiation. After an Approved Marketing Initiative had been implemented to Code's reasonable satisfaction, Code will reimburse Member for the Co-Op Amount from available Co-Op Funds upon written request from Member. All available Co-Op Funds must be used during the calendar year following accrual. Available Co-Op Funds and Demo Vouchers which have not been used by the end of the calendar year following accrual will be forfeited.

4) Member Responsibilities

a) Member will participate in quarterly business review meetings with Code (which may be by telephone) at mutually agreeable times to review Product revenue, Member's forecasts, and sales activity.

b) Display the mutually agreed to Code logos on the Member's website.

c) Member will conduct its business at all times in a manner that will reflect favorably on the good name and reputation of Code and Code's Products. Specifically, Member agrees to: (i) make no false or misleading statements with respect to Code or the Code Products; (ii) engage in no illegal, deceptive, misleading, unethical, or improper acts or practices in performing under this Agreement; and (iii) use Code's trademarks and logo designs (collectively the "Marks") and Code Materials only in conjunction with the Products and in strict adherence to any guidelines and restrictions provided by Code.

d) Member shall at all times: i) maintain a trained and capable sales and support staff to effectively explain, demonstrate, market and support the Products; ii) provide general technical assistance to end users regarding the Products and direct all other technical issues to Code; iii) list Products in its catalog(s) and web-site(s); and iv) promptly report to Code all Product defects and keep Code informed of any Customer complaints that relate to the Products.

e) Member will at all times comply with all applicable, federal, state, county, and local laws and regulations, and those off all other governmental and authoritative entities within the United States and any jurisdiction in which Member operates or sells Code products, including without limitation, US Export laws and regulations. Member shall defend, indemnify and hold harmless Code and its employees, officers, directors, agents, assigns and successors-in-interest (each an "Indemnified Party") against any and all payments, costs, expenses (including but not limited to expenses related to investigation and reasonable attorneys' fees), damages, settlements, losses, liabilities, fines and penalties ("Costs") arising from or relating to any breach of this section.

f) Member will at all times comply with this agreement, applicable federal and state laws, and reasonable written guidelines provided by Code in its use of all Marketing Materials (including Source Files), Trademarks, Sales Materials and Code Confidential Information ("Code Materials"). Except for the limited licenses granted herein, the Member has no right, title or interest in or to any of the Code Materials and, except as specifically permitted by this Agreement, the Member shall not modify or create any derivative works of any Code Materials. All use of Code Materials inures to the benefit of Code. Member shall make no contrary representations and will not in any way contest Code's rights to the Code Materials. Member will notify Code of any infringement of which Member has actual knowledge. Member shall discontinue use of all Code Materials upon termination of this Agreement, except as may be necessary to sell or liquidate any Product remaining in Member's inventory. Member shall at no time register any trade names or trademarks or any mark or name confusingly similar to the Code Trademarks.

g) Except as specifically permitted in this Agreement or in writing by Code, Member hereby represents, warrants and agrees that it will not (nor will Member permit any third party to): i) make any representations or express any warranties on behalf of Code; ii) copy or manufacture any Products; iii) sell, license, sublicense, distribute, assign or transfer the Products or any rights granted to Member hereunder; iv) translate, modify, adapt, enhance, extend, decompile, disassemble or reverse engineer any of the Products; or v) use any Products or Code Materials to: a) specify, design, develop, build, market, or sell any similar or competitive product or materials; or b) preform, develop, or prepare any benchmarking tests, studies, or other comparative analysis between Code Products or Code Materials and products or materials of any other person or entity offering similar or competitive products or materials.

5) Warranties

Each party warrants to the other:

a) It is correctly incorporated or otherwise established in the territory of its incorporation, is not subject to any insolvency or analogous event and is qualified to carry on its business.

b) It has secured all permits, licenses, regulatory approvals, registrations and consents required to conduct its business including, without limitation, registration with the appropriate taxing authorities for remittance of taxes.

c) Its execution, delivery and performance of this Agreement: (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any law, regulation, or court order to which such party is subject or the terms of any material agreement to which the party or any of its assets may be subject, and (iii) are not subject to the consent or approval of any third party.

d) This Agreement is the valid and binding obligation of that party, enforceable against such party in accordance with its terms.

e) EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, CODE MAKES NO WARRANTY OR REPRESENTATION REGARDING THE CODEALLIANCE PROGRAM, CODE MATERIALS OR ANY CODE PRODUCTS. CODE DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTIES OF MERCHANTABILITY, INTEROPERABILITY AND FITNESS FOR A PARTICULAR PURPOSE).

f) Neither party will have any liability for punitive or exemplary damages including, without limitation, lost profits, even if the party alleged to be liable has knowledge of the possibility of such damages; each party's maximum liability under this agreement will be only for actual direct damages up to $10,000 USD in the aggregate; provided, however, that the limitations set forth in this Section shall not apply to or in any way limit a party's obligations or for losses arising as a result of a party's indemnity obligations, gross negligence, willful misconduct, fraud, or unauthorized use of Code Materials.

6) Confidentiality.

a) The term "Confidential Information" shall mean all data, trade secrets, business information and other information of any kind whatsoever that a party ("Discloser") discloses to the other party ("Recipient") or to which Recipient obtains access, excluding any information that (i) Recipient rightfully has in its possession when disclosed to it, free of obligation to Discloser to maintain its confidentiality; (ii) Recipient independently develops without access to Discloser's Confidential Information; (iii) is or becomes known to the public other than by breach of this Section or (iv) is rightfully received by Recipient from a third party without the obligation of confidentiality.

b) Recipient shall not use or disclose Confidential Information of the other party for any purpose other than to carry out its obligations under this Agreement. Recipient shall treat Confidential Information of the other party with no less care than it employs for its own Confidential Information of a similar nature that it does not wish to disclose, publish or disseminate, but not less than a reasonable level of care.

c) To the extent legally permitted, Recipient shall notify Discloser of any actual or threatened requirement of law to disclose Confidential Information promptly upon receiving actual knowledge thereof and shall cooperate with Discloser's reasonable, lawful efforts to resist, limit or delay disclosure.

7) Term and Termination

The term of this Agreement commences on the Effective Date and continues until terminated by either party for convenience upon thirty (30) days prior written notice to the other party or, in the event of any material breach by any party, the non‑breaching party may terminate this Agreement if such breach remains uncured ten (10) days after the breaching Party's receipt of written notice from a non‑breaching party or immediately if such breach is of an incurable nature. Each party's rights and obligations under Sections 3(h), 4, 5, 7, and 8 shall survive its termination. Except for any outstanding reimbursement for an Approved Marketing Initiative, all accrued and available Co-Op Funds and Demo Vouchers expire upon termination of this Agreement.

8) Miscellaneous

a) Code may modify its CodeAlliance Reseller Program and amend this Agreement, from time to time at Code's discretion by providing written notice to Member specifying the amendment(s) at least thirty (30) days prior to the effective date of such amendment(s). If Member provides Code with written notice of termination prior to the effective date of the amendment, the terms and conditions of the Agreement, as they exist prior to the effective date of the amendment, will continue to apply, un-amended, through such termination.

b) CODE MAKES NO WARRANTY OR REPRESENTATION REGARDING THE CODEALLIANCE RESELLER PROGRAM, CODE SALES AND MARKETING MATERIALS OR ANY CODE PRODUCTS. CODE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE).

9) Dispute Resolution

a) The procedure set out in this Section will be adhered to in all disputes that the parties cannot resolve informally. The aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. The relationship managers shall meet (in person or by telephone) within thirty (30) days after the date of the written notification to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The relationship managers shall produce a report about the nature of the dispute in detail to their respective senior management. If the relationship managers do not meet or are unable to agree on corrective action, the senior management of each party shall meet or otherwise act to facilitate an agreement within forty-five (45) days after the date of the written notification.

b) If senior management do not meet or cannot resolve the dispute or agree upon a written plan of corrective action to do so within thirty (30) days after their initial meeting or other action, or if the agreed-upon completion dates in the written plan of corrective action are exceeded, either party may request arbitration as provided for in Section 13(c).

c) Any controversy or claim, other than a dispute relating to infringement of Intellectual Property Rights or the Section entitled "Confidentiality and Information Protection, between the parties not resolved through the preceding provisions, shall at the request of a party be determined by arbitration. The arbitration shall be conducted by one independent arbitrator who shall be a retired judge or attorney practicing in the area of information technology law. The arbitration shall be held in Salt Lake City, Utah in accordance with the United States Arbitration Act and under the auspices and the Commercial Arbitration Rules of the American Arbitration Association. Each party shall bear its own costs and expenses and an equal share of the arbitrator's and administrative fees of arbitration.

d) Neither party may assign, or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other; provided, however, that no such consent shall be required in connection with the assignment of this Agreement to an affiliate of Code or to the Member of all or substantially all of the assets of Code to which this Agreement pertains.

e) The parties are independent contractors. Nothing in this Agreement or in the activities contemplated by the parties under this Agreement shall be deemed to create an agency, employment or joint venture relationship between the parties for any purpose. Each party will bear its own costs associated with its performance under this Agreement. Except for reimbursement of Approved Marketing Initiatives from available Co-Op Funds as described herein, Code shall have no responsibility for any costs or expenses incurred by Member in in association with sales activities related to Code Products and its performance under this Agreement.

f) No delay, failure or waiver of either party's exercise or partial exercise of any right or remedy under this Agreement shall operate to limit, impair, preclude, cancel, waive or otherwise affect such right or remedy. Any waiver by either party of any provision of this Agreement shall not imply a subsequent waiver of that or any other provision of this Agreement. Unless otherwise specified in this Agreement the rights of each party under this Agreement may be waived only in writing.

g) All notices or other communications required under this Agreement shall be given to the parties in writing to: (i) if to Code, at The Code Corporation, 12393 South Gateway Park Place, Suite 600, Draper, UT 84020, Attn: President; or (ii) if to Reseller, at the Reseller's address in Code's CodeAlliance Reseller Program records or, in each case to such other addresses as the parties may substitute by written notice given in the manner prescribed in this Section.

h) This Agreement is the final, full and exclusive expression of the agreement of the parties and supersedes all prior agreements, understandings, writings, proposals, representations and communications, oral or written, of either party with respect to the CodeAlliance Program. This Agreement does not affect each party's rights and obligations under any non-disclosure agreement or reseller agreement in effect between the parties. Notwithstanding the general rules of construction, both Member and Code acknowledge that both parties were given an equal opportunity to negotiate the terms and conditions contained in this Agreement and agree that the identity of the drafter of this Agreement is not relevant to any interpretation of the terms and conditions of this Agreement. Except for Code's right to amend this Agreement as specified in Section 8, no amendments of any provision of this Agreement shall be valid unless agreed in writing signed by an authorized officer of each party specifically referencing this Agreement.

i) This Agreement shall be governed by the laws, of Delaware without regard to its conflict of laws provisions. Each party hereby submits to the exclusive jurisdiction of the courts of such state, and waives any objection to venue with respect to actions brought in such courts.