This Agreement is between Performance Learning Systems, Inc. (“Company”) and the reseller (“Reseller”) and establishes the terms and conditions for Resellers participation in the SuperEval Reseller Program (the “Program”). Under the Program, the Company will provide marketing and promotional support to Reseller as specified in this Agreement related to the Reseller’s purchase and license of the Company products for resale.

1. Reseller Qualification
1.1 In order to ensure adequate technical and marketing support to end-users, eligibility to resell the Company products is subject to meeting authorization requirements as described in the Program Materials (the elements and general policies are contained within the reseller portal site). These Program Materials contain a detailed description of the benefits to a Reseller as well as the requirements of a Reseller under this program. Reseller will not sell Company products without arranging for adequate post-sales support.

2. Relationships
2.1. Reseller is an independent contractor engaged in purchasing Company products for resale to its customers. Reseller is not an agent or legal representative of the Company for any purpose, and has no authority to act for, bind or commit the Company.

2.2. Reseller has no authority to make any commitment on behalf of the Company with respect to quantities, delivery, modifications, interfacing capability, suitability of software or suitability in specific applications. Reseller has no authority to modify the warranty offered with the Company products. Reseller will indemnify the Company from liability for any modified warranty or other commitment by Reseller not specifically authorized by the Company.

2.3. Reseller will not represent itself in any way that implies Reseller is an agent or branch of the Company. Reseller will immediately change or discontinue any representation or business practice found to be misleading or deceptive by the Company immediately upon notice from the Company.

3. Term, Limitations, Termination
3.1. The term of this Agreement is twelve (12) months from the date of acceptance by Reseller and the Company. This Agreement shall automatically renew on each subsequent year for a one-year term unless it is terminated earlier in accordance with this Agreement.

3.2. The Company or Reseller may terminate this Agreement without cause at any time upon thirty (30) days written notice or with cause at any time upon fifteen (15) days written notice, except that neither the expiration nor earlier termination of this Agreement shall release either party from any obligation which has accrued as of the date of termination.

3.3. The Company may, from time to time, give Reseller written notice of amendments to this Agreement. Any such amendment will automatically become a part of this Agreement thirty (30) days from the date of the notice, unless otherwise specified in the notice.

3.4. Upon expiration, non-renewal, or termination of this Agreement, all interests in accrued marketing funds (if any) will automatically lapse–it does not affect any existing outstanding amounts due.

4. Reseller Programs
4.1. The Company Reseller program will contain various participation levels. the Company will invite Reseller from time to time to participate in the co-operative advertising, market development, and promotional programs offered by the Company as defined in the Program Materials. Reseller may, at its option, participate in such programs during the term of this Agreement. The Company reserves the right to terminate or modify such programs at any time at its sole discretion.

4.2. Reseller shall exert best efforts to market the Company products, and is able to use promotional materials supplied by the Company.

4.3. As defined in the Program Materials, Reseller shall have sufficient technical knowledge of the Company products in general, and will have access to appropriate Company sales and technical training.

4.4. The Company does not represent that it will continue to manufacture any particular item or model of product indefinitely or even for any specific period. Company specifically reserves the right to modify any of the specifications or characteristics of its products, to remove any product from the market, and/or to cease manufacturing or supporting it.

4.5. Reseller is expected and encouraged to advertise and promote the sales of SuperEval products through all appropriate media including trade show exhibits, catalogs, and direct mailings, space advertising, educational meetings, sales aids, etc. Company must approve all original materials that use the Company name or trademarks (aside from modifying existing SuperEval supplied template materials). Company will assist Reseller in advertising and promoting SuperEval products in accordance with SuperEval policy.

5. Limitation of Liability

6. Use of the Company Trademarks
6.1. Reseller acknowledges the following:
6.1.a. The Company owns all rights, titles, and interests in the Company names and logotypes.
6.1.b. The Company is the owner of certain other trademarks and tradenames used in connection with certain product lines and software.
6.1.c.Reseller will acquire no interest in any such trademarks or tradenames by virtue of this Agreement, its activities under it, or any relationship with the Company.

6.2. During the term of this Agreement, Reseller may indicate to the trade and to the public that it is an Authorized Reseller of the Company products. Reseller may also use the SuperEval trademarks and trade names to promote and solicit sales or licensing of the Company products if done so in strict accordance with Company guidelines. Reseller will not adopt or use such trademarks or tradenames, or any confusingly similar word or symbol, as part of its company name or allow such marks or names to be used by others.

6.3. At the expiration or termination of this Agreement, Reseller shall immediately discontinue any use of  SuperEval and the Company names or trademarks or any other combination of words, designs, trademarks or tradenames that would indicate that it is or was a reseller of the Company products.

7. Product Warranty
7.1. The warranty terms and conditions will be as specified in the SuperEval Standard Terms and Conditions of Sale (EULA).


8. Software
8.1 The software license terms will be specified in SuperEval Standard Terms and Conditions of Sale and any Software Maintenance Agreement entered into by the parties.

9. Proprietary Information
9.1 The Company and Reseller shall each exercise due diligence to maintain in confidence and not disclose to any third party any proprietary information furnished by the other to it on a confidential basis and identified as such when furnished. Except in accordance with this Agreement, neither party shall use such information without the permission of the party that furnished it. As used in this paragraph, “due diligence” means the same precaution and standard of care which that party uses to safeguard its own proprietary data, but in no event less than reasonable care. The provisions of this Section shall survive for three (3) years beyond the expiration, non-renewal, or termination of this Agreement.

9.2 This Agreement does not grant any license under any patents or other intellectual property rights owned or controlled by or licensed to the Company. Reseller shall not have any right to manufacture the Company products.

10. Export Controls
Regardless of any disclosure made by Reseller to the Company or Distributor of an ultimate destination of Company products, Reseller shall not export, either directly or indirectly, any documentation, the Company products, or system incorporating such Company products to any locations on the excluded export list. Following are the locations:  California and Illinois.

11. Compliance with Laws
Reseller agrees to comply with all laws and regulations that are applicable to the business that Reseller transacts. Reseller agrees to indemnify and hold the Company harmless for all liability or damages caused by Resellers failure to comply with the terms of this provision.

12. Government Contract Conditions
In the event that Reseller elects to sell the Company products or services to the Government (national, regional, or local), Reseller does so solely at its own option and risk, and agrees not to obligate the Company as a subcontractor or otherwise to the Government. Reseller remains solely and exclusively responsible for compliance with all statutes and regulations governing sales to the Government. the Company makes no representations, certifications, or warranties whatsoever with respect to the ability of its goods, services or prices to satisfy any such statutes and regulations.

13. Miscellaneous
Notices under this Agreement must be sent by registered or certified mail, or e-mail if receipt of email is acknowledged to the appropriate party at its location submitted during the reseller application (or to a new address if the other has been properly notified of the change). A notice will not be effective until the addressee actually receives it.

This Agreement and its schedules represent the entire agreement between the parties regarding this subject. This Agreement supersedes all previous oral or written communications between the parties regarding the subject, and it may not be modified or waived except in writing and signed by an officer or other authorized representative of each party. Neither party will be liable to the other for any delay or failure to perform if that delay or failure results from a cause beyond its reasonable control. If any provision is held invalid, all other provisions shall remain valid, unless such invalidity would frustrate the purpose of this Agreement. New York, Erie County law governs this Agreement without consideration to that body of law referred to as “conflicts of laws”. The Company and Reseller will attempt to settle any claim or controversy arising out of it through consultation and negotiation in good faith and a spirit of mutual cooperation.  Any dispute which cannot be resolved through negotiation or mediation may be submitted to the courts of appropriate jurisdiction.