OrderWrite, LLC, a limited liability company organized pursuant to the laws of Georgia (hereinafter referred to as"COMPANY"), having a place of business at 84 Walton Street, Suite#130, Atlanta, Georgia 30303;
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“DISTRIBUTOR MEMBER” means the company or other legal entity accepting this Agreement, as noted on the executed Membership License Agreement.
1. OrderWrite, LLC, being a Georgia limited liability Company, is the exclusive licensee in the United States by way of agreement of select and certain Intellectual Property rights(as that term is more fully defined herein) with the property rights having a relationship to certain business systems and methodology relating to the ordering,purchasing, cataloguing, marketing, promotion, distribution, and sales of various articles; certain data relating to the ordering, purchasing,cataloguing, marketing, promotion, distribution, and sales of articles,including without limitation suppliers' names, addresses, products, pricing and supply information and a work titled "OrderWrite", a software product and application which, among other things, provides contact and order management in the context of the ordering, purchasing, cataloguing, marketing,promotion, distribution, and sales of articles.
2. Whereas COMPANY is the owner of U.S. trademark application for OrderWrite which is set out in the Schedule Appended hereto.
For the purposes of this Agreement the following words shall have the meanings ascribed to them as follows
1. "Confidential Information" means:
a. all data and information in any form whatsoever relating to the business and operation of COMPANY, including proprietary and trade secrets, technology and accounting records, and the Intellectual Property; and
b. information disclosed by any party to this Agreement in writing or in any other manner that is noted as confidential at the time of disclosure, either orally or in writing; but does not include any data or information which:
1. is or becomes publicly available through no act or omission of the other party;
2. is already in the rightful possession of the other party prior to its receipt from the other party;
3. is independently developed by the other party;
4. is obtained by the other party from a third party who is not under any restrictions to disclose;
5. is disclosed with the written consent of theparty whose information it is; or,
6. is disclosed under operation of law.
2. "Effective Date"means the date of execution of the Membership License Agreement by all of the parties and, in the event that the parties execute the Membership License Agreement on different dates, the effective date shall be the date on which the last party executes such Agreement. “Implementation Date” means the date theOrderWrite program is available for use by the DISTRIBUTOR MEMBER.
3. "Intellectual Property" means all right, title and interest in:
i. COMPANY’s licensed rights to the business system and methodology relating to the ordering, purchasing, cataloging,marketing, promotion, distribution, and sales of articles, including all copyright, trade secrets, confidential information, inventions, rights of invention, patents, and designs in relation thereto;
ii. COMPANY’s licensed rights to the websites and access portals including all URLs, content, images, text, lists, designs,HTML, Java or other code, links, copyright, trade secrets, confidential information, inventions, rights of invention, and patents in relation thereto;
iii. COMPANY’s licensed rights to the data,databases and functional elements relating to the ordering, purchasing,cataloguing, marketing, promotion, distribution, and sales of promotional articles, including without limitation searchable online catalogues and online order systems, suppliers' names, addresses, vendor agreements, products,product descriptions, images, pricing, supply information, invoicing and tracking systems, employee statistics and sales information, including all copyright, trade secrets, confidential information, inventions, rights of invention, patents, and designs in relation thereto;
iv. the source code, object code, layout,configuration, architecture, data and all copyrights (including the right to file copyright applications anywhere in the world and the right to any registrations resulting therefrom), trademarks (including the right to file trademark applications anywhere in the world and the right to any registrations resulting therefrom), trade secrets, confidential information, inventions,rights of invention, patents, designs (including the right to file patent applications anywhere in the world in respect of any invention and the right to any patents resulting therefrom), patents, designs (including the right to file design applications anywhere in the world and the right to any registrations resulting there from) and all other rights in relation thereto in relation to the"OrderWrite" software product and application;
v. the "OrderWrite" website and“OrderWrite” program.
4. "Agreement"means this agreement, including the schedules thereto, and any amendments to this Agreement.
5. Subject to the terms and conditions set forth in this Agreement, during the term of this Agreement,COMPANY hereby grants to DISTRIBUTOR MEMBER a limited, personal, non-exclusive,non-sublicensable, non-assignable, and cancellable license and:
a. to access the “OrderWrite” website and theOrderWrite software stored on an Internet-accessible computer;
b. to utilize the "OrderWrite"website and the OrderWrite software stored on an Internet-accessible computer for the purposes of viewing, storing and accessing data;
c. to utilize the COMPANY Trademarks in association with DISTRIBUTOR MEMBER's Internet retail site in relation to the online sales of promotional articles provided by the OrderWrite software; and
d. DISTRIBUTOR MEMBER shall not make any improvements to the Intellectual Property without the prior written consent of COMPANY which has the sole right to file for patent and, copyright protection anywhere in the world as an improvement may require in relation to the OrderWritesoftware, “OrderWrite” website and the Intellectual Property (other than the COMPANY (U.S.) trademark); DISTRIBUTOR MEMBER may not file or prosecute one or more trademark applications in connection with DISTRIBUTOR MEMBER's use or intended use of the COMPANY Trademarks or any mark or designation of any kindt that is confusingly similar to or dilutive of the COMPANY Trademarks; DISTRIBUTOR MEMBER agrees to notify COMPANY of any unauthorized use of the Intellectual Property by third parties promptly as such use comes to DISTRIBUTOR MEMBER’s attention; DISTRIBUTOR MEMBER agrees to cooperate in the prosecution of such infringement, and COMPANY retains the right of first refusal to bring infringement or unfair competition proceedings involving the Intellectual Property.
6. This Agreement shall begin on the Effective Date hereof and shall continue until terminated as hereinafter provided.
7. Subject to the terms and conditions set forth in this Agreement, parties shall pay the amounts as follows
a. DISTRIBUTOR MEMBER shall pay a one-time distributor set up fee, in the amount defined in the executed Membership License Agreement to COMPANY.
b. DISTRIBUTOR MEMBER shall pay an annual membership license pereach Sales Executive Account in the amount in the amount defined in. the executed Membership License Agreement to COMPANY.
c. DISTRIBUTOR MEMBER shall pay a transaction commission to COMPANY based on each completed campaign cart total, payable upon receipt of invoice in the amount defined in the executed Membership License Agreement.
d. Late payments related to the amounts due by the DISTRIBUTOR MEMBER shall be subject to a late payment charge of 1.5% (One- and. One- Half Percent) per month of the delinquent amount until paid.
e. In respect of certain orders placed via “Orderwrite”, COMPANY may procure payment processing services to collect payments from customers on behalf of the DISTRIBUTOR MEMBER. DISTRIBUTOR MEMBER shall receive all amounts paid by customer less the payment processing services’ transaction fee which shall be calculated as a percentage of the transaction value and will vary by payment method.
8. During and after the term of this Agreement, DISTRIBUTOR MEMBER will Not:
a. sell, assign, rent, lease, sub-license,distribute, export, import, act as an intermediary or provider, or otherwise grant to third parties any rights. which DISTRIBUTOR MEMBER has pursuant to this Agreement;
b. make accessible to others any of the Intellectual Property;
c. permit anyone other than current employees or customers of the DISTRIBUTOR MEMBER or independent contractors hired by the. DISTRIBUTOR MEMBER.
i. to access the OrderWrite software;
ii. to access, view, store or retrieve data stored by
iii. to access the COMPANY portal;
d. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering,decompiling, disassembling or hacking of the OrderWrite website or theOrderWrite software, or any part thereof without the consent of COMPANY;
e. disclose, make available to others, permit access to, transmit or transfer any Confidential Information, except as permitted herein;
f. copy or reproduce any material, file,software, document, data, or Confidential Information, except as permitted herein;
g. infringe, or assist anyone else in infringing the Intellectual Property;
h. take any action, or assist anyone else in challenging, jeopardizing, limiting or interfering with the Intellectual Property;
i. remove, obscure, make illegible or alter any notices or indications of the Intellectual Property and ownership thereof,whether such notice or indications are affixed on, contained in or otherwise connected to any material;
j. use the COMPANY Trademark in any manner which, directly or indirectly, would materially and adversely affect the image of the COMPANY Trademark;
k. attack or question the validity of, or assist any individual or entity in attacking or questioning, the title or any rights of or claims by any or all of COMPANY in and to the COMPANY Trademark, or any other trademark, or other Intellectual Property of COMPANY;
I. directly or indirectly seek for itself or assist any third party to use or acquire any rights, proprietary or otherwise,in the Intellectual Property of or associated or connected with COMPANY;
9. DISTRIBUTOR MEMBER agrees:
a. to take all reasonable steps at all times to protect and keep strictly confidential and to take all necessary precautions against unauthorized disclosure of the Confidential Information;
b. to divulge the Confidential Information only to its employees or agents who require access to it for the purposes of this Agreement or as otherwise provided for in this Agreement;
c. to indemnify COMPANY for all losses incurred by COMPANY as a result of a failure of DISTRIBUTOR MEMBER to comply with its obligations under this Agreement;
d. to maintain in full force and effect at its cost general commercial liability insurance with such coverage amounts as are typically maintained by DISTRIBUTOR MEMBER and which names COMPANY as an additional insured; and,
e. to acknowledge and to agree that a breach byit of this provision would cause serious and irreparable harm to COMPANY which could not adequately be compensated for in damages and as such, in the event of a breach by DISTRIBUTOR MEMBER of this provision, DISTRIBUTOR MEMBER hereby consents to an injunction being issued against it restraining it from any further breach of this provision, but such action shall not be construed so as to be in derogation of any other remedy which COMPANY may have in the event of such breach.
10. DISTRIBUTOR MEMBER acknowledges and agrees:
a. that the Intellectual Property is and shall remain the exclusive property of COMPANY and that the COMPANY (U.S.) trademark is and shall remain the exclusive property of COMPANY;
b. that COMPANY is the exclusive licensee for the Intellectual Property;
c. that nothing in this Agreement transfers the Intellectual Property to DISTRIBUTOR MEMBER;
d. that its use of the Intellectual Property,OrderWrite website, OrderWrite software, and COMPANY Trademark shall not create in its favor any right, title, or interest to the Intellectual Property and themarks;
e. that DISTRIBUTOR MEMBER acknowledges that any use of the Intellectual Property outside of the scope of the license granted herein is an immediate violation of the rights of COMPANY;
f. that DISTRIBUTOR MEMBER acknowledges and agrees that COMPANY has the sole and exclusive right to control any administrative or litigation proceeding involving the Intellectual Property;and,
g. that during the term of this Agreement and for a period of two (2) years thereafter, DISTRIBUTOR MEMBER and its owners and principals shall not in any capacity, either directly or indirectly, as an owner, consultant, employee or otherwise engage in the manufacture, marketing,or sale of any product or service which is in competition with or substantially similar to the Intellectual Property or any parts thereof or any programs associated therewith.
h. DISTRIBUTOR MEMBER may use other software that may be considered competitive as long as they are not in breach of Section 10 g of this Agreement.
11. COMPANY does NOT guarantee that DISTRIBUTOR MEMBER will always be able to access the OrderWrite website or the OrderWritesoftware or any data without disruptions, delays or communication-related flaws. COMPANY will not be liable for any damages, costs or losses incurred by DISTRIBUTOR MEMBER as a result of any such disruptions, delays or other omissions in any communication experienced and damages or business interruptions therefrom when using the OrderWrite website, or the OrderWrite software, or when accessing anydata supplied COMPANY.
12. Each of the parties to this Agreement confirms the accuracy of the statements in each paragraph under the heading"Recitals" at the beginning of this Agreement.
13. DISTRIBUTOR MEMBER represents and warrants that it is authorized to enter into this Agreement and to comply with its terms. Furthermore, DISTRIBUTOR MEMBER represents and warrants that it will at any and all times comply with its obligations hereunder, as well as comply with any and all applicable laws and regulations.
14. DISTRIBUTOR MEMBER acknowledges that the"OrderWrite" website and the OrderWrite software are provided"as is", with no warranties whatsoever. COMPANY DOES NOT EITHER EXPRESSED, IMPLIED OR STATUTORY MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE "ORDERWRITE" WEBSITE OR THE OrderWrite SOFTWARE,INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE,NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.Further, COMPANY does not represent or warrant that the "OrderWrite"website or the OrderWrite software will always be available, accessible,uninterrupted, timely, secure, accurate, complete and error-free or will operate without packet loss, nor does COMPANY warrant any connection to or transmission from the Internet.
a. COMPANY further represents that it has no actual knowledge that the Intellectual Property infringes any valid rights of any third party. COMPANY further represents that the OrderWrite software does not infringe any patents or copyrights of another.
b. When and if DISTRIBUTOR MEMBER is sued for infringement of the patent, copyright, and trademark rights of another, COMPANY retains the right to decide whether to defend DISTRIBUTOR MEMBER and the right to decide whether to join the lawsuit as a co-defendant.
15. DISTRIBUTOR MEMBER agrees to indemnify,defend and hold COMPANY harmless from and against any and all liability and costs, including reasonable attorney's fees, court costs, and other disbursements and out-of-pocket expenses incurred, in connection with or arising out of DISTRIBUTOR MEMBER's:
a. violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein;
b. violation of any rights of any third party;
c. claims of third parties against COMPANY based on DISTRIBUTOR MEMBER’s breach of any representations contained herein oras a result of any of DISTRIBUTOR MEMBER’s actions or inactions.
d. DISTRIBUTOR MEMBER’s performance of its duties and obligations under this Agreement is in its capacity as an independent contractor. Accordingly, nothing contained in this Agreement shall be construed as establishing an employer/employee, a partnership, agency,brokerage, or joint venture relationship between DISTRIBUTOR MEMBER and COMPANY.
16. In no event shall COMPANY be liable,whether in contract, warranty, tort, negligence, product liability or any other form of liability, for any indirect, incidental, special or consequential damages (including without limitation any loss of data, interruption, computer failure or pecuniary loss) arising out of the use or inability to use the"OrderWrite" website or the OrderWrite software, even if COMPANY has been advised of the possibility of such damages. DISTRIBUTOR MEMBER's only right or remedy with respect to any problems or dissatisfaction with the"OrderWrite" website or the OrderWrite software is to cease use of the "OrderWrite" website or the OrderWrite software.
17. This Agreement is effective as of the Effective Date and will remain effective until terminated by either COMPANY or DISTRIBUTOR MEMBER as set forth below.
18. At any time after the Effective Date of this Agreement, on four (4) months prior written notice, either party to this Agreement may terminate this Agreement for any reason. During this four-month period of time after the giving of such notice of termination, the parties shall continue to fulfill all of their obligations as set out in this Agreement. DISTRIBUTOR MEMBER shall remain liable for unpaid license fees at the time of notice of termination and those license fees that continue to accrue between the notice of termination and the effective date of the termination.
19. Upon termination of this Agreement by either party, COMPANY will provide to DISTRIBUTOR MEMBER, the then current data of DISTRIBUTOR MEMBER which DISTRIBUTOR MEMBER was storing on COMPANY’S internet-accessible computer upon which COMPANY’S software was installed. The data will be delivered in Microsoft®Excel format by one or more of paper, disc, email or other suitable medium and will include an electronic format.
20. COMPANY may utilize and disclose DISTRIBUTOR MEMBER's data stored on the internet-accessible computer upon which COMPANY software was installed for the following purposes:
a. to measure DISTRIBUTOR MEMBER's activities,sales and performance;
b. to troubleshoot or debug the OrderWritesoftware;
c. to determine the fees payable to COMPANY hereunder;
d. to negotiate better competitive pricing of promotional articles; and
e. to analyze and consult with others, sales results and performances to further develop, improve and enhance the OrderWritesoftware. Both DISTRIBUTOR MEMBER and related customers must be referenceable.
f. COMPANY covenants and agrees that except for the foregoing purposes, it will not use for itself or disclose to any third parties any information or data of DISTRIBUTOR MEMBER stored on the Internet-accessible computer upon which OrderWrite software was installed without the DISTRIBUTOR MEMBER’s prior consent.
21. Without limiting any other remedies available to it, in the event that DISTRIBUTOR MEMBER breaches or is deemed to have breached any provision of this Agreement or fails to make any payment to COMPANY when due, COMPANY may, at its option, take any or all of the following steps:
a. immediately limit, suspend, or terminate DISTRIBUTOR MEMBER's use of the "OrderWrite" website and the OrderWrite software;
b. immediately prohibit DISTRIBUTOR MEMBER'saccess to COMPANY’S website and portal;
c. immediately delete DISTRIBUTOR MEMBER's User Account and/or User ID;
d. immediately terminate all licenses andpermissions granted to DISTRIBUTOR MEMBER herein; and/or
e. immediately terminate this Agreement.
In the event of a monetary default hereunder by DISTRIBUTOR MEMBER, DISTRIBUTOR MEMBER shall have seven (7) days after receipt of written notice from COMPANY to cure any such default; and in the event of anon-monetary default of this Agreement by DISTRIBUTOR MEMBER, DISTRIBUTOR MEMBER shall have thirty (30) days after receipt of written notice from COMPANY to cure any such default.
22. In the event that:
a. DISTRIBUTOR MEMBER becomes insolvent, DISTRIBUTOR MEMBER shall immediately inform COMPANY of the insolvency;
b. DISTRIBUTOR MEMBER makes a general assignment for the benefit of creditors, DISTRIBUTOR MEMBER shall duly inform COMPANY of the assignment;
c. a petition in bankruptcy is filed by DISTRIBUTOR MEMBER or such a petition is filed against DISTRIBUTOR MEMBER;
d. DISTRIBUTOR MEMBER becomes bankrupt or insolvent;
e. a receiver or other custodian or trustee of DISTRIBUTOR MEMBER's assets or property, or any part thereof is appointed by a Court of competent jurisdiction; and/or,
f. DISTRIBUTOR MEMBER is dissolved, wound up,acquired, or merged; or,
g. If there is any change(s) in the ownership of DISTRIBUTOR MEMBER that results in a change of more than 50% of the current ownership interests in DISTRIBUTOR MEMBER; Then DISTRIBUTOR MEMBER shall be deemed to be in immediate breach of this Agreement and COMPANY shall have available to it such remedies as are set out herein and those remedies available to it in law and in equity.
23. Upon termination of this Agreement, DISTRIBUTOR MEMBER shall:
a. cease all use of the OrderWrite and theOrderWrite software;
b. cease accessing the OrderWrite and theOrderWrite software;
c. cease accessing data or information from COMPANY’S portal;
d. cease all use of the Intellectual Property and documentation related thereto;
e. return all materials and documentation to COMPANY which incorporate or utilize the Intellectual Property;
f. cease displaying on the Internet or otherwise any images, text, links, indices, prices, catalogues or other materials provided by COMPANY; and,
g. cease all use of the COMPANY Trademarks.
24. Notwithstanding anything herein to the contrary, upon termination of this Agreement, paragraphs numbered 8, 9, 15, 16,19, 21, 22, 23, 28, 30 and 31 of this Agreement survive the termination of this Agreement.
25. DISTRIBUTOR MEMBER agrees to comply with the laws and rules of the United States to the extent they may prohibit or restrict the exportation of any of the Intellectual Property furnished to DISTRIBUTOR MEMBER either directly or indirectly by COMPANY.
26. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of COMPANY and the heirs,executors, administrators, estate trustees, successors and permitted assigns of DISTRIBUTOR MEMBER.
ASSIGNMENT OF RIGHTS AND OBLIGATIONS HEREUNDER:
27. COMPANY shall have the right, without DISTRIBUTOR MEMBER's consent, to transfer or assign its interest in this Agreement to any person, persons, partnership, association, corporation, or other entity and DISTRIBUTOR MEMBER agrees promptly to execute any documents in connection therewith. If COMPANY's assignee assumes all of the obligations of COMPANY hereunder andsends DISTRIBUTOR MEMBER written notice of the assignment so attesting, DISTRIBUTOR MEMBER agrees promptly to execute a general release of COMPANY, and any affiliates of COMPANY, from claims or liabilities of COMPANY under this Agreement.
28. In the absence of COMPANY's prior written consent, DISTRIBUTOR MEMBER shall not sell, assign, transfer, convey, donate,pledge, mortgage, or otherwise directly or indirectly encumber this Agreement or any portion thereof and any purported assignment or transfer, by operation of law or otherwise, shall be null and void and shall constitute a breach of this Agreement.
29. This Agreement and the performance of the parties hereunder shall be construed in accordance with and governed by the laws of the State of Georgia, and the laws of the United States, applicable therein.
30. The parties hereby irrevocably select the jurisdiction and venue of a Federal or State Court located in the City of Atlanta or Fulton County, Georgia. Should a dispute arise between the parties concerning this Agreement and should a lawsuit be filed concerning such dispute then the prevailing party insuch suit shall be entitled to recover, in addition to its damages and costs,reasonably attorneys’ fees and litigation costs.
31. The terms and conditions of this Agreement constitute the entire agreement between the parties subject to the executed Membership License Agreement and may be altered, modified or amended only by an express declaration in writing signed by a duly authorized officer or representative of each party and referring specifically to this agreement;
a. If any provision hereof is held invalid,illegal, or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision, and such invalid provision shall be deemed to be severed from this Agreement and the other provisions of this Agreement shall remain in full force and effect; and,
b. No waiver by COMPANY of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement. Any termination of this Agreement shall not be construed as a waiver by COMPANY of any rights to damage or other legal remedies or equitable relief arising by reason of any breach or termination of this Agreement.
32. This Agreement does not in any way create a relationship of employer/employee or principal/agent between the parties and neither party shall act or attempt to act or represent itself as an agent directly or by implication on behalf of the other or attempt to assume or create any obligation on behalf of or in the name of the other. It is expressly understood that DISTRIBUTOR MEMBER shall have no authority to bind or commitCOMPANY to obligations not imposed by this Agreement.
33. All notices required or permitted to be given by one party to another party under the terms of this Agreement may be delivered personally or sent by prepaid certified or registered mail, return receipt requested, or transmitted by telex, facsimile machine, electronic mail in PDF format, or other form of recorded telecommunication transmission to the address of COMPANY or DISTRIBUTOR MEMBER as noted in the Membership License Agreement; or at such other address as the parties may from time to time deliver pursuant to this provision. Any notice delivered or transmitted by telex, facsimile machine, electronic mail,or other form of recorded telecommunication shall be deemed to be given and received on the date of its delivery or transmission, as the case may be, provided that such day is not a Saturday, Sunday or statutory holiday. If a notice is delivered upon a day that is a Saturday, Sunday, or statutory holiday, then the notice shall be presumed delivered on the next day that is not a Saturday,Sunday, or statutory holiday. Any notice mailed shall be deemed to have been given and received on the third business day following the date of its mailing.
OrderWrite, LLC U.S. Trademark/Service Mark:
1. OrderWrite —Serial No. 88500131 filed July 3, 2019 in the United States Patent and Trademark Office (registration#5960982)