MODX Solution Partner Agreement Business Terms

1. DEFINITIONS All capitalized terms used but not defined herein, shall have the meaning ascribed to such terms in the Business Terms. The following terms are defined for the purposes of this Agreement as follows:
   1. “Agreement Overview” means the first section of this Agreement, containing Partner contact information, Territory and other information.
   2. “Business Terms” means the business terms which apply to Partners, attached as Exhibit B, and if applicable as Exhibit C, and are subject to this Agreement.
   3. “Customer” means current or prospective purchasers or licensees, in the Territory, of MODX Software or Support or Services for their own personal or internal use and without the right to resale, re-market or otherwise distribute MODX Software.
   4. “Enterprise Software” means a feature-enhanced, proprietary version of MODX® Revolution, provided solely in source code, plus associated technical documentation, and all Updates thereof. Except as otherwise specified herein, the term Enterprise Software includes certain Open Source software programs. “Enterprise Software” does not include any Modifications.
   5. “General Terms and Conditions” means these general terms and conditions, which apply to Partner’s participation in the Solution Partner Program and to the Business Terms.
   6. “Modifications” means any code developed by MODX (e.g., as part of professional services under a separate agreement) including without limitation, configuration, integrations, implementations, or localizations to the external layer of the core, baseline Software product, excluding Updates provided by MODX as part of Support.
   7. “MODX Software” means collectively the Enterprise Software and the Software.
   8. “Partner” means any MODX Partner-type, including Professional, Agency and Premiere Partners.
   9. “Partner Fee” means the fees owed to MODX for participating in the Partner Programs and to the Business Terms. Partner Fees do not count towards Revenue Goals.
   10. “Proprietary Material” means any information in tangible form disclosed by one party to the other party under this Agreement and the Business Terms, marked as “confidential” or “proprietary” or with a similar legend. Notwithstanding the foregoing, the Enterprise Software and any documentation related to MODX Software is the Proprietary Material of MODX regardless of whether so marked. Proprietary Material does not include information that (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party.
   11. “Service Revenues” means the revenues generated from providing MODX Services to Customers.
   12. “Services” means the MODX professional services offered to end users and Customers by Partners for developing complete websites.
   13. “Software” means MODX’s Open Source content management platforms known as MODX® Revolution and MODX® Evolution, provided solely in source code, plus associated technical documentation, and all Updates thereof. “Software” does not include any Modifications.
   14. “Updates” means all published revisions and corrections to the printed documentation and corrections and new releases of the Software which are generally made available to MODX’s supported customers at no additional cost or for media and handling charges only. Updates shall not include any options or future products which MODX sells separately.
2. GRANT OF LICENSE AND LIMITATIONS
   1. Grant of License to Partners. MODX hereby grants to Partner, and Partner hereby accepts, the following non-exclusive, nontransferable, license throughout the Term and in the Territory, subject to this Agreement:
      1. A license to market the Software, Support and Services to the Customers in the Territory. In addition, Partner is authorized to renew any Customer Agreement, subject to new terms or conditions provided by MODX, according to the same terms and conditions set forth herein, including, without limitation, the Software, Support and Services it orders for its Customers, as set forth in the applicable Business Terms.
      2. A license to use MODX’s Marks according to the provisions of Section 7.3.2.
      3. No Obligation to Manufacture. MODX is not obligated to continue to manufacture any particular version of the Software indefinitely or even for any specific period. MODX specifically reserves the right to modify any of the specifications or characteristics of its Software, and/or to cease manufacturing or supporting it.
      4. Non-Exclusive Nature. Notwithstanding anything to the contrary herein, nothing in this Agreement shall be deemed to limit or prevent MODX directly or indirectly, from marketing, distributing, licensing or selling the Software or associated Support and Services anywhere throughout the world, either directly or by other Partners.
3. PARTNER REPRESENTATIONS
   1. Representations and Warranties. Partner represents and warrants (i) that it has the right to enter into this Agreement, (ii) that it possesses the experience, skills and resources required to carry out the activities described herein and perform its obligations hereunder, (iii) that it shall conduct its business in a manner that reflects favorably at all times on MODX Software, goodwill and reputation of MODX and avoid deceptive, misleading or unethical practices, and refrain from making any representations, warranties or guarantees with respect to MODX Software that are inconsistent with those made by MODX in its published literature for MODX Software, (iv) that Partner personnel shall conduct themselves in a manner that reflects the highest professional and ethical standards, (v) Partner shall use its best efforts, at its own expense, to promote and market MODX Software and Support to prospective Customers in the Territory, and (vi) to the extent reasonably possible, Partner shall monitor Customer compliance with the terms of the Customer Agreement.
   2. Compliance with Laws. Partner shall comply fully with all applicable laws, regulations, and ordinances applicable to the performance of its obligations hereunder and shall obtain all applicable permits and licenses required of it with its obligations hereunder.
4. PAYMENT OF FEES
   1. Fees. Partner shall pay MODX a nonrefundable and non-cancelable annual fee in consideration for the participation in MODX’s Solution Partner Program via an online payment in the amount specified during enrollment and in the checkout.
   2. Price Increase. MODX shall have the right to increase prices for MODX Software, Services or Support. MODX will provide Partner with 30 days notice of any such price increase.
   3. Taxes. All stated prices are exclusive of any taxes, fees and duties or other amounts, including sales, use, withholding and value added taxes which are levied or based upon such charges, or upon this Agreement. Any taxes related to Software bought or Services received from MODX pursuant to this Agreement shall be paid by Partner or Partner shall present an exemption certificate acceptable to the taxing authorities.
   4. Late Payment. Partner shall pay to MODX interest on any amount payable to MODX hereunder which is not paid promptly and when due at a rate equal to the lower of (a) 1.5% per month, or (b) the maximum rate of interest allowable under applicable law.
5. APPOINTMENT
   1. Solution Partner. Subject to this Agreement, MODX hereby appoints Partner, and Partner hereby accepts and agrees to act, as a non-exclusive agent using MODX Software for engagements with current and prospective Customers in the Territory, for the Term. Partner will market, promote, demonstrate, and deliver solutions using the Software to prospective Customers in the Territory.
6. PARTNER BENEFITS
   1. Noncompete. MODX guarantees it will not compete with Partners for Services.
   2. Partner Directory. MODX will provide a listing and profile of Partner on the MODX website, and allow Partner to display the MODX Partner badge on Partner website.
   3. Help Wanted Board. Partner will receive access to a centralized location on the MODX website for non-vetted RFPs and job postings on a moderated web page, and receive full job listings, project profiles and contact details.
   4. Marketing Efforts. (i) Partner may promote itself as a MODX Professional Partner, (ii) MODX shall list the Partner on its website.
   5. Additional Benefits. Partner shall be entitled to receive additional benefits from MODX including, but not limited to, Partner newsletters published by MODX, Partner forum access, Partner product training delivered via the Internet, and access to MODX’s Partner Portal. Partner shall be entitled to have one Partner staff participate in the MODX Certified Developer Program free of charge.
7. NO WARRANTY
   1. Warranty for Software. MODX does not warrant that MODX Software will meet Partner’s or Customer’s requirements, that MODX Software will operate in the combinations selected for use, that the operation of MODX Software will be uninterrupted or error-free, or that all error conditions will be corrected. EXCEPT AS PROVIDED IN THIS SECTION ALL MODX SOFTWARE PROVIDED HEREUNDER IS PROVIDED “AS IS”.
8. LIMITATION OF LIABILITY
   1. LIABILITY EXCLUSIONS. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE WITH RESPECT TO IN THIS AGREEMENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DAMAGES TO THE OTHER PARTY’S BUSINESS REPUTATION HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. LIABILITY CAP. NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL MODX BE LIABLE FOR DAMAGES OR LOSSES THAT EXCEED, IN THE AGGREGATE, THE AMOUNT PAID BY PARTNER UNDER THE APPLICABLE BUSINESS TERMS WITHIN THE 12 MONTHS PRIOR TO THE AFOREMENTIONED ACTION.
9. PROPRIETARY RIGHTS
   1. Proprietary Materials. Partner agrees that Proprietary Material provided to Partner hereunder are proprietary information of MODX and that MODX shall retain all title, copyright, design, patent and other proprietary rights to all Proprietary Material and to all copies thereof. Any contributions shall be covered under a separate Contributor License Agreement (“CLA”).
   2. Confidentiality of Proprietary Materials. The parties acknowledge that each party’s Propriety Material constitutes a valuable asset of such party. Each party shall hold the Proprietary Material of the other party strictly confidential and shall utilize it only according to the terms of this Agreement. Except as expressly permitted by this Agreement, each party shall limit the use of, and access to, the Propriety Material to its employees or agents whose use of or access to the Propriety Material is necessary for such party’s business. Each party shall, by all appropriate means, make reasonable best efforts to prevent unauthorized disclosure, publication, display or use of any Proprietary Material.
   3. Trademarks.
      1. All trademarks, wordmarks, service marks, trade names, logos or other words or symbols identifying the products and business of a respective party or its licensors (“Marks”), including MODX Software or MODX’s business or Partner’s business, are and will remain the exclusive property of such party and its licensors, whether or not specifically recognized or perfected under applicable law. Partner expressly acknowledges that “MODX®” is a registered wordmark of MODX and the MODX logo is trademarks of MODX. Neither party will acquire any right in the other party’s Marks, except the limited license specified in Section
      2. Neither party will register, directly or indirectly, any trademark, service mark, trade name, company name, Internet domain name or other proprietary or commercial right that is identical or confusingly similar to the other party’s Marks or that constitutes a translation thereof into any other language(s). Upon the request by the owner of a Mark, the other party will execute or obtain execution of the instruments that may be appropriate to register, maintain or renew the registration of the Marks in the name of the owner of the Mark at such owner’s expense.
      3. Each party will use the other party’s Marks exclusively to advertise and promote the business relationship contemplated by this Agreement, in connection with the resale of the Software to the Customers. All marketing and promotional materials created by the non-owner of a Mark will: (i) clearly identify the other party and its licensors as the owners of the Mark; (ii) conform to the then-current trademark and logo guidelines of the owner of the Mark; and (iii) otherwise comply with any local notice or marking requirement contemplated under applicable law. Each Party agrees to supply the other party upon its request samples of marketing or promotional materials that bear its Mark for his approval.
10. TERM AND TERMINATION
    1. Term. This Agreement shall be effective from the Effective Date and remain in effect until terminated as provided herein (the “Term”).
    2. Termination by Partner for convenience. Partner may terminate this Agreement at any time, by providing 7 days’ prior written notice to MODX.
    3. Termination for Cause. MODX will have just cause to terminate this Agreement, without judicial or administrative notice or resolution, immediately upon written notice to the other party, if: (i) Partner or any of its employees, agents, consultants, contractors, representatives or affiliates is in breach of a material obligation under this Agreement and Partner fails to cure the breach within fifteen (15) days after written notification of the specific breach and demand for such cure; (ii) Partner ceases to conduct business in the normal course, is declared insolvent, makes a general assignment for the benefit of creditors or a petition for bankruptcy, reorganization, dissolution or liquidation is filed by or against it; or (iii) the direct or indirect ownership or control of Partner, as of the Effective Date, changes in a manner that, in MODX’s judgment, may adversely affect MODX’s rights or business interests. In addition, MODX will have just cause to terminate this Agreement, without judicial or administrative notice or resolution, immediately upon written notice to Partner, if Partner, in MODX’s judgment, promotes, represents, distributes, supports or otherwise markets any competing computer product or service to a Customer that approaches the Partner with inquiries about MODX, excluding those Customer’s where Partner has had prior involvement.
    4. Prohibited Use. As a condition of Partner’s or Customer’s use of the MODX website, including Forums, Partner will not use (and will prohibit Customer using) the Forums (i) to violate any applicable law, statute, ordinance or regulation; (ii) to disseminate content that is harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iii) to disseminate any software viruses or any other computer code, files or programs that may interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) to infringe the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; or (v) use the Forums for any purpose other than their intended use. Violation of this provision shall constitute Cause per Section 8.4, above.
    5. Consequences. Upon the termination of this Agreement: (i) Partner’s license and other rights hereunder will immediately cease, and MODX will have no further obligations to Partner under this Agreement; (ii) Partner will not be entitled to any refunds for amounts previously paid, (iii) Partner and MODX will pay each other all due and outstanding amounts; (iv) Partner will, at MODX’s option, destroy or deliver to MODX or its designee all items within Partner’s possession or control that contain any Proprietary Materials; and, (v) Partner will certify in writing that Partner has complied with all of its termination obligations contemplated under this Agreement.
    6. Survival. Notwithstanding the foregoing, Sections 1 (Definitions), 3.2 (Compliance with Laws), 4 (Payment of Fees), 7 (Warranty), 8 (Limitation of Liability), 9 (Proprietary Rights), 10.5 (Consequences), 10.6 (Survival), and 11 (General) of this Agreement shall survive any termination of this Agreement.
11. GENERAL
    1. Independent Contractors. MODX and Partner are independent contractors under this Agreement. Nothing herein will be construed to create a partnership, joint venture, or agency relationship between the parties, regardless of the use of the word “partner” herein to refer to one or both parties or in the title of this Agreement.
    2. Assignment. Neither party may assign this Agreement, delegate any duty or assign any right hereunder without the prior written consent of the other party.
    3. Governing Law and Jurisdiction. This Agreement, together with all exhibits hereto, is made in and shall be governed by the laws of the State of Texas, excluding choice of law principles. All proceedings shall be conducted in English. Exclusive venue for all proceedings shall be in Dallas County, Texas. The United Nations Convention for the International Sale of Goods shall not apply.
    4. Headings. The section headings herein are provided for convenience only and have no substantive effect on the construction of this Agreement.
    5. Survivability and Waiver. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself.
    6. Amendments. This Agreement may be amended only by a written document executed by both parties. Notwithstanding the aforementioned, MODX may change the General Terms and Conditions and the Business Terms applying to the Partner during the Term, at any time upon notice to Partner provided that such change shall not adversely affect Partner, without Partner’s prior written consent.