VALUE ADDED RESELLER AGREEMENT
Agreement No. ______ Date: _________________________
THIS AGREEMENT is made between [MANUFACTURER] (the “Manufacturer”), a corporation having
offices at [address] and [RESELLER] (“Reseller”) a corporation having offices at [address]. Manufacturer
hereby appoints Reseller as a value-added reseller (“VAR”) on a nonexclusive basis, in accordance with
the terms and conditions of this Agreement which consists of this signature page and the following
Schedules and Exhibits, each of which is incorporated herein by this reference (“Agreement”):
Schedule “A” - General Terms and Conditions
Part “A” - Export Restricted Countries
Schedule “B” - VAR Terms and Conditions
Part “A” - Application Packages
Part “B” - Target Market Description
Part “C” - Software Sublicense Terms
Part “D” - Discount Terms
THE PARTIES HAVE READ THE ENTIRE AGREEMENT, UNDERSTAND THAT THE GENERAL
TERMS AND CONDITIONS APPLY FULLY TO ALL SCHEDULES AND EXHIBITS, AND HAVE THE
REQUISITE LEGAL AND OTHER AUTHORITY TO EXECUTE THIS AGREEMENT AND PERFORM
THEIR RESPECTIVE OBLIGATIONS HEREUNDER.
GENERAL TERMS AND CONDITIONS
(a) “Customer” means a current or prospective end-user of the Products, excluding any entity that
directly or indirectly owns or controls or is owned or controlled by Reseller.
(b) “Hardware” means hardware products sold by Manufacturer.
(c) “Insolvent” means that a party:
(i) ceases to conduct business in the normal course;
(ii) becomes insolvent;
(iii) enters into suspension of payments, moratorium, reorganization or bankruptcy;
(iv) makes a general assignment for the benefit of creditors;
(v) makes a statement in writing of its inability to pay its debts as they become due;
(vi) suffers or permits the appointment of a receiver for its business or assets, or
(vii) avails itself of or becomes subject to any other judicial or administrative proceeding that
relates to insolvency or protection of creditors’ rights.
(d) “Manufacturer” means [MANUFACTURER], its affiliates and any wholly owned subsidiary of
(e) “Products” mean Hardware and Software.
(f) [“Services” mean any of the Integration Services or Custom Services described in Schedule “___”
performed by Reseller for a Customer.]
(g) “Software” means software, in object code only, including documentation and related materials,
furnished by Manufacturer under this Agreement, excluding software provided with a
shrink-wrap license. Reseller agrees to be bound by the terms set forth in any shrink wrap license,
unless it notifies Manufacturer of any objections and returns the applicable software to
Manufacturer within _______ days of receipt thereof.
(h) “Software Package” means any:
(i) Application Package described in Schedule “B”, Part “A”;
(ii) [custom package which is developed and/or licensed by Reseller for use with Products.]
2. Term and Termination
The Agreement is effective from the date on which it is executed by Manufacturer (“Effective Date”) and
will continue for a term of ________ [months/years]. The parties may agree in writing to renew this
Agreement for successive _____ [month/year] terms. Any Schedules entered into as part of this
Agreement will terminate with this Agreement regardless of the date on which such Schedule was
executed. A party may terminate any Schedule or this Agreement (including all Schedules hereto) upon
notice to the other party if the other party:
(a) fails to perform any of its obligations under this Agreement for a period of ______ days after
receipt of notice of such failure to perform,
(b) undergoes a direct or indirect change in ownership or control as it exists on the Effective Date
and the notifying party determines in its sole discretion that the change may adversely affect its
ongoing business, or
(c) becomes Insolvent.
3. Co-operation and Further Assurances
The parties agree to co-operate in marketing efforts directed towards Customers. Neither party will
knowingly contradict the other’s technical recommendations to Customers without its prior consent. Each
party agrees that it will from time to time at the reasonable request of the other party execute and deliver
such assignments, instruments and conveyances and take such further action as may be reasonably
required to implement this Agreement and comply with local law.
4. Reseller’s Obligations
(a) Reseller shall maintain each Software Package to ensure proper operation and performance at the
then-current revision level of Manufacturer’s applicable operating system, including revisions
resulting from mandatory field change orders for Hardware and periodic updates or releases for
(b) Reseller shall use reasonable efforts to actively market its Software Packages and Services to
Customers for use with Products and shall install and support Software Packages and provide
Services in accordance with its agreements with Customers.
(c) Reseller shall purchase, lease or continuously have access to one or more Manufacturer computer
systems operating at the then-current revision level of the applicable Manufacturer operating
system, to be used exclusively by Reseller solely to actively develop, market, maintain and
support Software Packages (“Development System”) in accordance with Manufacturer’s
then-current Development System Policy & Guidelines (the ”Development System Guidelines”).
5. Relationship of Parties
The relationship between the parties shall be that of independent contractors. Nothing in this Agreement
shall be interpreted or construed so as to create any partnership, joint venture or similar relationship
between the parties hereto, or to subject the parties to any implied duties or obligations respecting the
conduct of their affairs which are not expressly stated herein. This Agreement is not exclusive in any
respect and either party may enter into similar or other agreements with third parties.
6. No Endorsement
NEITHER PARTY WILL HAVE ANY RIGHT OR AUTHORITY TO ACT ON BEHALF OF THE OTHER
PARTY NOR WILL EITHER PARTY REPRESENT THAT IT HAS SUCH RIGHT OR AUTHORITY OR
THAT THE OTHER PARTY HAS ENDORSED, GUARANTEED OR WARRANTED ITS PRODUCTS,
SOFTWARE PACKAGES OR SERVICES.
7. Limitation on Liability
Except for payment obligations, neither party shall be liable for any failure or delay in performing an
obligation that is due to causes beyond its reasonable control, so long as the party gives prompt notice to
the other party and makes all reasonable efforts to perform. IN NO EVENT WILL A PARTY BE LIABLE
FOR ANY SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA.
8. Confidential Information
Each party may have access to certain trade secrets, proprietary or confidential business information of
the other party (“Confidential Information”). The receiving party shall keep all Confidential Information
of the other party in confidence, shall not disclose any item of Confidential Information to any person
other than its employees, agents or contractors who need to know the same in order to perform their
duties, and shall use such Confidential Information only as authorized in order to fulfil its obligations
under this Agreement. The receiving party shall protect and maintain the confidentiality of all
Confidential Information with the same degree of care as it employs to protect its own Confidential
Information, but at least with a reasonable degree of care, including requiring employees, agents and
contractors to sign a non-disclosure agreement in which they agree to be bound by the provisions of this
Section. The receiving party shall be liable to the disclosing party for any non-compliance by its agents or
contractors to the same extent that it would be liable for non-compliance by its employees. The term
“Confidential Information” does not include any data or information which:
(a) was in the receiving party’s lawful possession prior to the disclosure thereof by the disclosing
(b) is subsequently lawfully obtained by the receiving party from a third party under no obligation
(c) is independently developed by the receiving party; or
(d) is or subsequently becomes part of the public domain through no act or failure to act by the
Confidential Information must be marked or clearly designated as such in writing by the disclosing party.
(a) Manufacturer shall, with respect to Products, and Reseller shall, with respect to Software
Packages and Services, defend or settle any claim against the other party:
(i) resulting from the performance or use of Products, Software Packages or Services, and
any information the indemnifying party supplies about the same, or
(ii) that a Product, Software Package or Service infringes any patent, utility model, industrial
design, copyright, trade secret, mask work, trade mark or service mark, provided that the
A. promptly notifies the indemnifying party in writing of the claim, and
B. co-operates with the indemnifying party and grants it sole authority to handle
the defense of such claim and negotiate any related settlement.
(b) The indemnifying party shall pay the costs of such defense and settlement and any costs and
damages awarded against the other party. With respect to Products sold or licensed by
Manufacturer to Reseller, if a claim of infringement is made or appears likely to be made,
Manufacturer may procure the right for Reseller to continue using the Product, may modify it or
may replace it, but if use of a Product is enjoined by a court or if Manufacturer determines that
none of the foregoing alternatives is reasonably available, Manufacturer will take back the
Product and refund its depreciated value. Manufacturer shall have no liability for any such claim
(i) Manufacturer’s compliance with any designs, specifications or instructions of Reseller;
(ii) modification of a Product by Reseller or a third party;
(iii) use of a Product in a manner not specified by Manufacturer; or
(iv) use of the Product with products not supplied by Manufacturer.
THE ABOVE TERMS STATE THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AND THE
INDEMNIFYING PARTY’S ENTIRE LIABILITY FOR CLAIMS OF INFRINGEMENT.
10. Ownership of Trade Marks
All trade marks, service marks, trade names, logos or other words or symbols identifying the Products,
Services, Software Packages or business of either party (the “Marks”) shall remain the exclusive property
of the respective party, whether or not specifically recognized or perfected under local laws. Neither
party shall acquire any right, or take any action that jeopardizes the proprietary rights in the Marks of the
other party, except the right to use such Marks during the term of this Agreement to advertise and
promote Products, Services and Software Packages in accordance with this Agreement. All
advertisements and promotional materials shall:
(a) clearly identify the respective party as the owner of its Marks;
(b) comply with the respective party’s then-current guidelines with respect to the use of its marks in
promotional materials and display; and
(c) comply with any local notice or marking requirements.
Any use by a party of the Marks of the other party during the term of this Agreement shall enure solely to
the benefit of the owner of such Marks.
11. Export Controls
Reseller acknowledges that the Products, Confidential Information and all related technical documents
and materials are subject to export controls imposed by the _________________ Government concerning
the export of technical information from _________________. Reseller hereby covenants and agrees that it
(a) comply strictly with all legal requirements established under these export controls;
(b) co-operate fully with Manufacturer in any official or unofficial audit or inspection that relates to
such export controls; and
(c) not export, re-export, divert, transfer or disclose, directly or indirectly, any Product, Confidential
Information or related technical documents or materials or any direct product thereof to any
country for which the ___________________ Government or any agency thereof requires an
export license or other form of governmental approval, without first having obtained the written
consent of the Department of __________________ or other agency of the __________________
Government when required to do so by applicable law. Part “A” contains the list of export
restricted countnies as of the date of execution of this Agreement. Manufacturer may from time
to time replace Exhibit “A” with the then current list of export restricted countries.
12. Unlawful Payment
Each of the parties hereto hereby covenants and agrees that it will not use any payment or other benefit
derived from the other party to offer, promise, give or pay any money, gift or any other thing of value to
any person for the purpose of attempting to influence an official action or decision affecting this
Agreement, while knowing or having reason to know that any portion of this money, gift or thing will,
directly or indirectly, be paid, given, offered or promised to:
(a) any person acting in an official capacity for any government or its instrumentalities (including
government-owned or controlled corporations) or any non-governmental client or prospective
(b) any political party, party official or candidate for political office.
All notices required or permitted to be given pursuant to this Agreement shall be delivered by hand to
the party for which it is intended, or sent by telex, fax, telegram, electronic email or other form of
transmitted or electronic message or sent by prepaid courier directly to such party at the following
If to Manufacturer:
If to Reseller:
or at such other address as either party may stipulate by notice to the other. Any notice delivered by
hand or prepaid courier or sent by facsimile or electronic email shall be deemed to be received on the date
of actual delivery thereof. Any notice so sent by telex, telegram or similar form of transmitted message
shall be deemed to have been received on the next day following transmission.
14. Dispute Resolution
Any dispute between the parties relating to this Agreement shall first be submitted in writing to a
designated representative of each of Manufacturer and Reseller, who will confer in an attempt to resolve
such dispute and whose decision, if any, shall be final and binding on the parties. In the event such
designated representatives are unable to resolve the dispute within _______ days after submission of the
same to them, either party may refer the dispute to a court of competent jurisdiction or, if both parties
agree, to arbitration.
15. Miscellaneous Provisions
(a) All taxes and governmental charges, including any penalties and interest, assessed or imposed by
any jurisdiction (“Taxes”) shall be borne by Reseller and Manufacturer shall withhold such Taxes
from any payments made hereunder as required by law.
(b) Any provisions of this Agreement which are or may be rendered invalid, unenforceable or illegal,
shall be ineffective only to the extent of such invalidity, unenforceability or illegality, without
affecting the validity, enforceability or legality of the remaining provisions of this Agreement, it
being the intent and purpose that this Agreement should survive and be valid to the maximum
extent permitted by applicable law. For greater certainty, this Agreement shall be read as if the
invalid, unenforceable or illegal provision had never formed part hereof, and a “provision” for
these purposes shall include the smallest severable portion of sections, paragraphs or clauses, or
sentences contained therein, and not, unless the context absolutely requires, the whole thereof.
(c) This Agreement and any schedules attached hereto constitute the entire agreement between the
parties to this Agreement pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussions, whether oral or
written, of the parties and there are no warranties, representations or other agreements between
the parties in connection with the subject matter of this Agreement except as specifically set forth
(d) This Agreement may not be modified or amended except with the written consent of the parties.
(e) No consent or waiver, express or implied, by a party of any breach or default by the other party
in the performance of such other party of its obligations shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by such other party of
the same or any other obligations under this Agreement of such other party. Failure on the part
of a party to complain of any act or failure to act of another party or to declare another party in
default, irrespective of how long such failure continues, shall not constitute a waiver by the first
party of its rights under this Agreement.
(f) Neither party may assign, delegate or transfer this Agreement or any of its rights or obligations
hereunder without prior written consent from the other party, excepting only that Manufacturer
may assign its right to payment, and any attempt to do so will be void.
(g) This Agreement shall be governed by and construed in accordance with the laws of __________.
(h) The parties specifically exclude the United Nations Convention on Contracts for the International
Sale of Goods from this Agreement. Any action brought in connection with this Agreement must
be commenced within two years and one day after the cause of action has accrued. Nothing in
this Agreement will affect the limitation period applicable to any action or proceeding for:
(i) the unauthorized use or disclosure of Confidential Information; or
(ii) the infringement of either party’s proprietary rights.
(i) The terms, limitations and warranties contained in this Agreement that by their sense and context
are intended to survive the term shall so survive, including, without limitation, provisions
dealing with confidentiality, export control and limitation on liability, and all payment
obligations. In the event of an inconsistency between Schedule “A” and another Schedule, such
other Schedule will prevail.
of Schedule “A” to
Value Added Reseller Agreement
EXPORT RESTRICTED COUNTRIES
[this list should be compiled from information available from the appropriate branch of the federal
VAR TERMS AND CONDITIONS
Any capitalized terms not defined in this Schedule shall have the meaning ascribed to them in Schedule
(a) “Application Package” means any of the software application products described in Part “A” of
this Schedule “B”, developed and/or licensed by Reseller for use with Products.
(b) “Application System” means a computer system consisting of an Application Package and
Products which Reseller resells and sublicenses to Customers within the Target Market, and
which may include other products developed or procured by Reseller.
(c) “Discount” means the discount from the List Price of a Product set forth in Part “D” hereof which
shall apply for the term of this Agreement, provided that Reseller is not in default of any of its
obligations hereunder or in breach of any of the terms and conditions of this Agreement.
(d) “Discounted Price” means the List Price of a Product less its Discount.
(e) “List Price” means the price of a Product as set forth in the Price Guide on the date of acceptance
of an Order for the [territory] where the Product will be installed and used.
(f) “Order” means a written order for Products submitted by Reseller to Manufacturer.
(g) “Price Guide” means Manufacturer’s then-current published price guide for the [territory] from
which Products are purchased or licensed.
(h) “Software License Fee” means the license fee for Software set forth in the Price Guide on the date
of acceptance of an Order.
(i) “Sublicense Agreement” means the agreement used by Reseller to sublicense the Software to
Customers. For Customers located outside the [territory], the Sublicense Agreement will contain
any additional or different terms required by the local Manufacturer subsidiary or by local law,
and may be subject to governmental approval, registration or notification in a particular
[territory]. “Target Market” means the market area described in Part “B” hereof.
(j) “Tools” means any computer program developed or provided by Manufacturer hereunder and
used to standardize or simplify routines or functions, enhance productivity, or assist in the
maintenance of any Product.
2. Appointment of Reseller
Manufacturer hereby appoints Reseller and Reseller hereby accepts such appointment as a non-exclusive
value-added reseller (“VAR”) of Products for sale or licensing solely as a component of Application
Systems in the Target Market.
3. Reseller’s Obligations
3.1 During the term of this Schedule, Reseller shall use its reasonable best efforts to actively and
diligently develop, promote, market, solicit orders for, maintain and support the Application Systems
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solely within the Target Market, in a manner consistent with ethical business practices and that reflects
favourably on the Products and the good will and reputation of the parties. Except for Development
Systems, all Products purchased or licensed by Reseller under this Schedule will be incorporated into
Application Systems containing an Application Package which is a significant functional and value
enhancement to Products. To the extent that new Product information is made available by
Manufacturer, Reseller shall use its reasonable best efforts to notify Customers of new Products.
3.2 Reseller shall operate as an independent turnkey provider of Application Systems and related
maintenance and support, requiring no maintenance or support from Manufacturer, except as expressly
provided in this Schedule. In addition to the obligations set out in section 4 of Schedule “A” – General
Terms and Conditions, Reseller shall make available to Customers, at a reasonable charge to be
determined by Reseller, first-class Hardware maintenance and Software support services, including but
not limited to, first-call support of Software according to Manufacturer’s then-current local first-call
support policy. Reseller may subcontract with Manufacturer for Hardware maintenance or Software
support or use best efforts to cause Customers to execute Manufacturer’s then-current Hardware
maintenance or Software support agreement. Other than warranties described elsewhere in this Schedule,
Manufacturer shall have no obligation to support or maintain Products hereunder unless either Reseller
or Customer enters into a separate maintenance or support agreement with Manufacturer. All Sublicense
Agreements must describe the Software support obligations of Reseller under this Section.
3.3 Reseller warrants that it has clear title to and ownership of each Application Package or has the
legal right to market and sublicense the Application Package.
4. Performance of Reseller’s Obligations by Manufacturer
If Manufacturer performs any of Reseller’s material obligations, whether at the request of Reseller or the
reasonable request of a Customer due to Reselle