Business Partner Reseller Agreement

Value Added Reseller (VAR) Agreement
THIS AGREEMENT is made between AboutTime Technologies (“WorkMax”) and (“Partner”).

WHEREAS, AboutTime Technologies offers an internet-based Resource Management Platform (“WorkMax”); and

WHEREAS, AboutTime Technologies desires to appoint Partner as a reseller of the WorkMax Platform; and

WHEREAS, Partner desires to become a reseller of the WorkMax Platform;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, the parties agree as follows:

1. Definitions

As used herein, the following terms and conditions shall have the meanings set forth below:

1.1. “Agreement” means these terms and conditions, together with all schedules, attachments, and exhibits.

1.2. “Application” means any application developed by Partner that runs on hardware separate from the WorkMax Platform and interfaces with the WorkMax Platform using either ConnectMax or the WorkMax Platform API.

1.3. “Value Added Reseller” or “VAR” means an entity who has satisfied and continues to satisfy the Participation Requirements.  A Value Added Reseller may provide implementation and systems integration to Customers, offer additional services bundled with the WorkMax Platform, or both.

1.4. “Value Added Reseller Program” means the set of benefits and incentives AboutTime Technologies offers to its Value-Added Resellers, as set forth in Exhibit A.

1.5. “Confidential Information” means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party “), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including without limitation, the terms and conditions of this Agreement, and any information relating to prices, business plans, services, marketing or finances, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulae, markets, software (including source and object code), hardware configuration, computer programs, and algorithms of the Disclosing Party.

1.6. “Configuration” means (i) the selection by Partner or Customer of options by way of check boxes or other selection mechanisms provided within the WorkMax Platform, and (ii) the insertion or selection of values by Partner or Customer within the WorkMax Platform in the fields provided within the WorkMax Platform.

 1.7. “Customer” means a client or customer of Partner who uses the Offering and who enters into an agreement with Partner for the WorkMax Platform containing terms no less protective of AboutTime Technologies ' rights than found at http://devworkmax.wpenginepowered.com/terms-of-use (which may be updated by AboutTime Technologies from time to time).

1.8. “Customer Data” means information submitted by, or entered by a Customer or by Partner for a Customer including without limitation credit card information, bank account information, accounting information, transactions, and reports. 

1.9. “Customization” means the addition and modification of fields, links, rules, email alerts, threshold controls, templates, scripts and other items in the WorkMax Platform using the customization services provided by the WorkMax Platform for that purpose.

1.10. “Documentation” means the written or recorded instructions or manuals, including any updates thereto, relating to the use of the WorkMax Platform. Documentation may be more fully described in the applicable Order Schedule.

1.11. “Effective Date” means the date identified as such on the first page of this Agreement.

1.12. “Error” means the failure of the WorkMax Platform to substantially conform to the Documentation.

1.13. “The WorkMax Platform API” means the WorkMax Platform application programming interface.

1.14. “WorkMax” means the online, Internet-based Resource Management Platform (including Documentation therefore), that is provided by AboutTime Technologies through the use of the WorkMax Platform.

1.15. “Intellectual Property Rights” means any intellectual property or proprietary rights recognized in any country or jurisdiction in the world including without limitation copyrights, moral rights, trademarks (including logos, slogans, trade names, and service marks), patent rights (including without limitation patent applications and disclosures), know-how, inventions, rights of priority, and trade secret rights.

1.16. “Lead Registration Report” means the document used by Partner to register a sales lead with AboutTime Technologies as may be further described in Exhibit A.

1.17. “Offering” means the WorkMax Platform, offered and provided in conjunction with Partners product(s) or service(s).

1.18. “Participation Requirements” means the specific Partner requirements set forth in Exhibit A.

1.19. “Partner” means the Value Added Reseller entity identified as such on the first page of this document.

1.20. “Partner Data” means information submitted by, or entered by Partner for its own internal purposes including without limitation credit card information, bank account information, accounting information, transactions, and reports.

1.21. “Subscription Period” means (i) the initial period specified in a Customer Order Schedule and (ii) any additional period following any renewal thereof.

1.22. “System” means the software and hardware used by AboutTime Technologies to provide the WorkMax Platform, including without limitation application software, Web and/or other Internet servers, any associated offline components, and all updates thereto.

1.23. “Territory” means geographical and/or market or industry segment set forth in Exhibit A.

1.24. “User” means a named individual who is an employee or agent of Partner or a Customer, for which a properly provisioned User Account and ID within the WorkMax Platform has been issued, permissions established, and applicable fees paid.

1.25. “User Account” means a set of identifying information and permissions that enables access to the WorkMax Platform and which may contain or reference Configurations and Customizations created by or for Partner or a Customer.

2. Permitted Uses and Authority

2.1. Use of the WorkMax Platform. For the duration and subject to the terms and conditions of this Agreement, AboutTime Technologies grants to Partner a non-exclusive, non-transferable, non-sublicensable limited license, to:

(a) Market and promote the WorkMax Platform in the Territory, solely as part of the Offering; and

(b) grant to Customers the right to use the WorkMax Platform, solely as part of the Offering, provided that (i) each Customer enters into a Supplemental Services Agreement containing terms no less protective of AboutTime Technologies’ rights than found at http://devworkmax.wpenginepowered.com/terms-of-use.

2.2. Configuration. Subject to Partner’s continued compliance with the terms and conditions of this Agreement, AboutTime Technologies  grants to Partner a non-exclusive, non-transferable, non-sublicensable, license (subject to Section 9.5) to create Configurations and Customizations of User Accounts in the WorkMax Platform, and to reproduce, modify, and deliver such Configurations and Customizations to other Customers for use with their User Accounts. Partner’s use of the WorkMax Platform will be subject to the WorkMax Platform General Terms and Conditions located at http://devworkmax.wpenginepowered.com/terms-of-use, as amended from time to time, which are incorporated herein by this reference, with the same force and effect as if they were given in full text.

2.3. Subscriptions. Each User must have a paid, or otherwise valid, subscription. User subscriptions are for named Users and cannot be shared or used by more than one User, but may be transferred to new Users from Users who have terminated an employment or contracting relationship with a Customer, or who otherwise no longer require ongoing use of the WorkMax Platform.

2.4. Identification as a WorkMax Partner. For the duration and subject to the terms and conditions of this Agreement, the Partner is authorized to represent itself as a WorkMax reseller a “WorkMax Partner” and to use the “WorkMax Partner” and “WorkMax Certified” logos.

2.5. Restrictions. Partner will not, and will not allow any Customer, User, or other third party to (a) modify, copy, or otherwise reproduce the WorkMax Platform in whole or in part; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or structure of the software used in the WorkMax Platform or System; (c) provide, lease, or lend the WorkMax Platform, System or Documentation to any third party, except as expressly authorized hereunder; (d) remove any trademarks, logos, copyright notices, proprietary notices, or labels displayed on the WorkMax Platform or System; (e) modify or create a derivative work of any part of the WorkMax Platform, System or Documentation; (f) use the WorkMax Platform, System or Documentation for any unlawful purpose; or (g) create internet hyperlinks to or from the WorkMax Platform or System, or frame or mirror any of the WorkMax Platform content which forms part of the WorkMax Platform.

2.6. No Other Authority. Except as expressly granted herein, Partner will have no other power or authority, expressed or implied, to (a) make any commitment or incur any obligations on behalf of AboutTime Technologies, or (b) collect any monies on behalf of AboutTime Technologies.

2.7. Third-Party Providers. Certain third-party providers, some of which may be listed on pages within the WorkMax website, offer products and services related to the WorkMax Platform, including implementation, customization, and other consulting services related to Customers’ use of the WorkMax Platform and applications (both offline and online) that work in conjunction with the WorkMax Platform, such as by exchanging data with the WorkMax Platform or by offering additional functionality within the user interface of the WorkMax Platform. AboutTime Technologies does not warrant the products or services of any such third-party provider, whether or not such products or services are designated by AboutTime Technologies as “certified,” “validated,” or otherwise. Any exchange of data or other interaction between Partner or a Customer and a third-party provider, and any purchase by Partner or a Customer of any product or service offered by such third-party provider, is solely between Partner and/or the Customer, and such third-party provider.

3. Value Added Reseller Obligations

3.1. Participation Requirements. During the term of this Agreement, Partner must comply with the Participation Requirements.

3.2. Customer Satisfaction. Partner agrees that high Customer satisfaction is material to the success of this Agreement, and that AboutTime Technologies direct contact with Customers is required to achieve such high satisfaction. Partner agrees to: (a) Have at least two team member trained on the use of the WorkMax Platform; (b) Verify the successful operation of the WorkMax Platform before or after implementation or integration, as applicable; (c) Report promptly to AboutTime Technologies all suspected and actual problems with the WorkMax Platform, including any Errors; (d) Conduct business in a manner which reflects favorably at all times on the WorkMax Platform, goodwill, and reputation of AboutTime Technologies; (e) Avoid deceptive, misleading, or unethical practices that are or might be detrimental to the WorkMax  Platform; (f) Refrain from making any false or misleading representations with regard to the WorkMax Platform; (g) Refrain from making any representations, warranties, or guarantees to Customers or other third parties with respect to the specifications, features, or capabilities of the WorkMax Platform that are inconsistent with this Agreement or the Documentation; and (h) if Partner markets the WorkMax Platform directly or indirectly via mass-marketing channels such as mail order, bulk email, or bulk faxing, Partner will comply with all applicable mass marketing laws and regulations.

3.3. Customer Contact. AboutTime Technologies has the right to contact and survey Customers in order to notify them of new features and to collect information about Customers use of the WorkMax Platform.

3.4. WorkMax Marks. Partner will include the “Authorized by WorkMax” graphic on all marketing materials and all pages comprising the Offering. Partner will display the WorkMax Partner and/or the WorkMax Reseller logo. If other financial application vendor logos are also presented, Partner will display the WorkMax vendor logo with equal or greater size and prominence.

3.5. Web Presence. Partners will be required to include a WorkMax Platform section in their existing website. Partners will have access to marketing materials, online demonstration software, preview versions of new applications, and demonstration data made generally available on the WorkMax.com website. Partner acknowledges that any and all of the WorkMax - provided materials that Partner may receive, display, download, or otherwise utilize may be copyrighted by WorkMax or third parties. Partner will not alter such documents in any way and agrees to prominently display such copyright and trademark claims when using or reproducing such materials.  Partners will have full access to their personal WorkMax Platform Partner Portal.  A custom URL from the WorkMax Platform Partner Portal will need to be generated and then incorporated into the Partner Website.  This URL will be the one and only way for a Partner’s customer to initially order software from the Partner.

4. Fees and Payments

4.1. Fee Schedules. AboutTime Technologies current annual Value Added Reseller Program fees are set forth in Exhibit A. Partner agrees to pay the fees in the amounts and under the terms set forth in Exhibit A. Partner may establish its own charges for the WorkMax Platform to its Customers at its sole discretion.

4.2. Duration of User Subscriptions. Unless otherwise explicitly agreed in writing by AboutTime Technologies: (a) all User subscriptions will have an initial Subscription Period of either one (1) month or twelve (12) months; (b) any additional User subscriptions will be coterminous with the expiration of the then-current Subscription Period; (c) neither the initial Subscription Period nor any renewal thereof will have a duration greater than 12 months; (d) pricing for additional User subscriptions will be the same as that for the pre-existing User subscriptions, prorated for the remainder of the then-current Subscription Period. Subscriptions added during the contract period through Customer or Partner self-provisioning will be prorated when billed so as to be coterminous with the expiration of the then-current Subscription Period.

4.3. Third Party Fees and Costs. Partner and its Customers are responsible for all third-party expenses and charges associated with accessing the WorkMax Platform.

4.4. Taxes. All fees listed in the Order Schedule(s) are exclusive of any taxes. Partner and its Customers will be responsible for all taxes, including sales or use taxes, imposed on such amounts, excluding taxes on AboutTime Technologies’ net income.

5. Proprietary Rights

5.1. In General. This Agreement confers only the right to use the WorkMax Platform per the terms and conditions of this Agreement while this Agreement and the specified license(s) are in effect and does not convey any rights of ownership or intellectual property rights in or to the WorkMax Platform. All rights not expressly granted to Partner are reserved by AboutTime Technologies.

5.2. Ownership. As between AboutTime Technologies and Partner, AboutTime Technologies owns all rights to the WorkMax Platform, any Intellectual Property Rights therein, any materials relating thereto, and any Configurations, Customizations, modifications, enhancements, updates, revisions, or derivative works thereof. Partner and AboutTime Technologies agree that any Application that is independently developed by Partner without the use of any WorkMax confidential Information will be owned by Partner.

5.3. Feedback. Partners or Customers may, from time to time, submit comments, information, questions, data, ideas, description of processes, or other information to AboutTime Technologies (“Feedback”). Partner agrees that AboutTime Technologies is free to use, disclose, reproduce, license, or otherwise distribute and exploit the Feedback without any obligation or restriction.

6. Confidentiality and Security

6.1. Confidential Information. Each party hereby agrees that it will not use or disclose any Confidential information received from the other party other than as expressly permitted under the terms of the Agreement or as expressly authorized in writing by the other party. Each party will use the same degree of care to protect the other party’s confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party will disclose the other party's Confidential Information to any person or entity other than its officers, principals, employees, and subcontractors who need access to such Confidential Information in order to affect the intent of the Agreement and who are bound by confidentiality terms no less restrictive than those in the Agreement.

6.2. Exceptions. The restrictions set forth in Section 6.1 will not apply to any Confidential Information that the Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the Receiving Party without use of the Confidential lnformation of the Disclosing Party; (e) has been approved for release by the Disclosing Party's prior Written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.

6.3. Injunctive Relief. The parties agree that a breach of Section 6.1 may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party.

6.4. Partner and Customer Data. Partner Data and Customer Data will be treated as confidential information under this Agreement. AboutTime Technologies and Partner agree to comply with the privacy policy set forth at http://devworkmax.wpenginepowered.com/privacy-policy, and any updates thereto, in collecting and using Partner Data and Customer Data.

6.5. Security. AboutTime Technologies uses commercially reasonable practices, including encryption and firewalls, to ensure that Partner Data and Customer Data is disclosed to Partner, Customers and Users only in accordance with the permissions selected in the WorkMax Platform. However, Partner acknowledges that the Internet is an open system and AboutTime Technologies cannot and does not warrant or guarantee that third parties cannot or will not intercept or modify Partner Data or Customer Data.

6.6. Passwords. As part of the registration process, Partner or Customer will select passwords for User Accounts. Partner or Customer, as applicable, is responsible for maintaining the confidentiality of passwords, and Partner agrees that AboutTime Technologies has no liability with regard to the use of such passwords by third parties. Partner agrees to notify AboutTime Technologies immediately if Partner has any reason to believe that the security of any User Account has been compromised.

7. Availability

7.1. AboutTime Technologies uses commercially reasonable efforts to maintain availability of the WorkMax Platform 24 hours per day, 7 days per week.

7.2. Downtime. Scheduled and unscheduled interruptions may occur, and AboutTime Technologies does not warrant or guarantee uninterrupted availability of the WorkMax Platform. Normal software or hardware upgrades are scheduled strategically during the hours of the week/day that accommodate customer needs and schedules, and are designed to cause a minimum amount of interruption to the WorkMax Platform availability. In the event that an unscheduled interruption occurs, AboutTime Technologies will use commercially reasonable efforts to resolve the problem and return the WorkMax Platform to availability as soon as practical. During these scheduled and unscheduled interruptions, Partner may be unable to transmit and receive data through the WorkMax Platform. Partner agrees to cooperate with AboutTime Technologies during the scheduled and unscheduled interruptions if assistance from Partner is necessary in order to restore the WorkMax Platform to working order.

7.3. Changes. AboutTime Technologies reserves the right to modify or temporarily suspend use of the WorkMax Platform or portions thereof. AboutTime Technologies may also impose temporary limits on certain features and services or temporarily restrict Partner's access to parts of the WorkMax Platform for maintenance or system administration purposes without notice or liability.

8. Support

8.1. Partner Support Obligations. Partner will use commercially reasonable efforts to provide Customers with direct, Tier 1 support for the WorkMax Platform. 

8.2. AboutTime Technologies’ Support of Partner. AboutTime Technologies will provide Tier 2 technical support to Partner.

8.3. Professional Services and Training. Except as otherwise specified in Exhibit A, any professional services and training to be provided by AboutTime Technologies to Partner will be specified in a separate statement of work signed by the parties. All professional services and training are provided by AboutTime Technologies to Partner (Upon request and at a mutually agreed upon date & time).  Such training and professional services for the partner shall be free. Any services, training, or other requirements not expressly stated in such a separate statement of work are outside the scope of work and will be provided only for (at AboutTime’s standard consulting rates) additional fees. Consulting services and training are invoiced as performed, and payments are due upon receipt of invoice. Changes in any statement of work will be effective only if a change request is signed by both parties.  AboutTime Technologies is not obligated to maintain or support any customization to the WorkMax Platform except under a separate agreement signed by both parties.

8.4. Support of Partner-Provided Services. Partner agrees that it is the Partner’s sole responsibility to support its Customers’ use of additional services, products, and/or technologies, and that AboutTime Technologies is in no way responsible for providing support for Partner's or Customer's products, services, or technologies.

9. Term and Termination

9.1. Term. The initial term of this Agreement will be one (1) year from the Effective Date, and will automatically renew for successive one (1) year periods unless one party notifies the other party that it does not wish to renew this Agreement at least sixty (60) days prior to the end of the then-current term, in which case it will terminate at the end of the then-current term. If, prior to any renewal, AboutTime Technologies desires to modify these Value Added Reseller Terms and Conditions, AboutTime Technologies will provide the amended terms to Partner at least sixty (60) days prior to the end of the then-current term. If Partner does not formally object in writing to the amended terms or communicates its acceptance of such modified terms prior to the end of the then-current term, this Agreement will renew for an additional one (1) year period in accordance with this Section 9.1, otherwise this Agreement will terminate at the end of the then current term.

9.2. Termination for Cause. Either party may terminate this Agreement or just a specific Order Schedule, at any time, if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days following notice thereof from the non-breaching party. In addition, AboutTime Technologies may terminate this Agreement immediately for any failure of Partner to (i) satisfy the Participation Requirements, (ii) achieve the minimum sales goals defined in Exhibit A, or (iii) failure to comply with Partner's obligations under Section 3.2 above.

9.3. Effect of Termination. Termination will not relieve Partner of the obligation to pay any fees due or payable to AboutTime Technologies prior to the effective date of termination, including annual fees, implementation fees, training fees, User subscription fees, or any other fees or payments that Partner has committed to under this Agreement.  Recurring margin obligations and payments from AboutTime to Partner will end immediately upon termination.  Sections 5, 6.4, 9.3-9.6 inclusive, 10.4, 11, 12, and 14 will survive any termination or expiration of the Agreement. Sections 6.1-6.3 inclusive will survive for three (3) years after termination of the Agreement.

9.4. Existing Customer Subscriptions. Termination of this Agreement will not affect the duration of any Customer User subscription properly entered into and paid for in accordance with this Agreement for the User subscription’s remaining Subscription Period.

9.5. Access to the WorkMax Platform. Upon any termination of this Agreement, Partner promptly will cease all use of the WorkMax Platform and the WorkMax API, and will discontinue enabling access to the WorkMax Platform and the WorkMax  API, except for those Customers who have a current, paid-up license from AboutTime Technologies to use the WorkMax Platform. Partner also may continue to use the WorkMax Platform for its own internal business purposes if it has separately obtained a current, paid-up license for such use from AboutTime Technologies.

9.6. Transitioning Customers after Termination. Upon termination of this Agreement, Partner will cooperate as reasonably requested by AboutTime Technologies to transition Customers to AboutTime Technologies or a designee of AboutTime Technologies’ choosing. Upon termination of this Agreement, AboutTime Technologies will have the right, in its sole discretion, of electing, at any time, to offer the WorkMax Platform directly to Customers.

9.7. Termination of Individual Subscription Accounts. Partner may terminate individual Customer subscription accounts, if any, at the end of their respective initial term or any renewal term thereafter.

9.8. Return of Materials. All Confidential Information, designs, drawings, formulas or other data, financial information, business plans, literature, and sales aids of any kind will remain the property of the Disclosing Party. No later than thirty (30) days after termination, each party will prepare all such items in its possession for shipment to the other at the Disclosing Party's expense. The Receiving Party will not make or retain any copies of any Confidential Information.

9.9 Partner and Customer Data. In the event of any termination of this Agreement, Partner Data will be made available to Partner either from AboutTime Technologies or through a third party provider for up to thirty (30) days after termination. If a Customer's subscription account is terminated, Customer Data for each Customer will be made available to that Customer either from AboutTime Technologies or through a third party provider for up to thirty (30) days after termination. Reasonable storage charges may apply.

10. Warranties

10.1. Authority. Each party represents to the other that it is a valid legal entity and is in good standing or validly existing under the laws of the state of its incorporation and residence. Each party represents that it has all the requisite legal power and authority to execute, deliver, and perform its obligations under this Agreement; that the execution, delivery, and performance of this Agreement has been duly authorized and is enforceable in accordance with its terms; and that no approval, authorization, or consent of any governmental or regulatory authorities is required to be obtained or made in order for it to enter into and perform its obligations under the Agreement.

10.2. Warranty. AboutTime Technologies warrants that (i) the WorkMax Platform will function substantially in conformance with the Documentation and (ii) any consulting services provided by AboutTime Technologies will be performed consistent with accepted industry standards.

10.3. Notices and Correction of Errors. Partner will notify AboutTime Technologies in writing of any Errors, and will require its Customers to do so. AboutTime Technologies will use commercially reasonable efforts, at its own expense, to determine if there is an Error, and to correct or remedy Errors within thirty (30) days of such notice. Partner will make reasonably appropriate adjustments to mitigate adverse effects of any Error until AboutTime Technologies corrects or remedies such Error, and will require its Customers to do so.

10.4. DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ABOUTTIME TECHNOLOGIES DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE WORKMAX PLATFORM, SYSTEM, AND DOCUMENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. PARTNER ACKNOWLEDGES AND AGREES THAT NEITHER ABOUTTIME TECHNOLOGIES NOR ANY SYSTEM, SERVICES, DOCUMENTATION, DATA, OR MATERIALS PROVIDED BY ABOUTTIME TECHNOLOGIES WILL BE CONSTRUED AS PROVIDING ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL, OR OTHER ADVICE TO PARTNER, CUSTOMERS, END USERS, OR ANY THIRD PARTY. EACH PARTY WILL BE SOLELY AND INDIVIDUALLY RESPONSIBLE TO COMPLY WITH ALL LAWS AND REGULATIONS RELATING TO ITS RESPECTIVE BUSINESS OPERATIONS

10.5. Remedies. For any breach of the warranties contained in Section 10.2 above, Partner‘s exclusive remedy, and AboutTime Technologies’ entire liability, will be (i) in the case of an Error in the WorkMax Platform, the correction of Errors that cause breach of the warranty or, if AboutTime Technologies is unable to make the WorkMax Platform operate as warranted, Partner will be entitled to terminate this Agreement; and (ii) in the case of a breach of warranty with respect to the consulting services, the re-performance of the consulting services, or if AboutTime Technologies is unable to perform the consulting services as warranted, Partner will be entitled to recover the fees paid to AboutTime Technologies for the nonconforming consulting services.

11. Indemnification

11.1. AboutTime Technologies Indemnification. AboutTime Technologies  agrees to indemnify Partner against any losses or damages finally awarded against Partner incurred in connection with a third party claim alleging that the Partner's use of the unaltered WorkMax Platform infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, provided that Partner (a) provides prompt written notice of such claim to AboutTime Technologies, (b) grants AboutTime Technologies  the sole right to defend such claim, and (c) provides to AboutTime Technologies  all reasonable assistance. In the event of a claim or threatened claim under this Section by a third party, AboutTime Technologies may, at its sole option, (i) revise the WorkMax Platform so that they are no longer infringing, (ii) obtain the right for Partner to continue using the WorkMax Platform, or (m), terminate the Agreement upon ten (10) days’ notice. THIS SECTION 11.1 REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF ABOUTTIME TECHNOLOGIES AND THE EXCLUSIVE REMEDY OF PARTNER FOR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY RIGHTS.

11.2. Indemnification by Partner. Partner will indemnify AboutTime Technologies  and Customer(s) and hold it and them harmless from and against all claims, damages, losses and expenses, including court costs and reasonable fees and expenses of attorneys, expert witnesses and other professionals, and at AboutTime Technologies ’ option, Partner will defend AboutTime Technologies  or Customer(s) against any action by a third party, including without limitation Customer(s), that is based on (a) any claim that Partner Data, Customer Data, or the collection or use thereof by AboutTime Technologies  or Partner, infringes or misappropriates any third party right, (b) any claim related to the Partner's product(s) or service(s) or Partner's representation, implementation or modification of the WorkMax Platform, (c) any claim that the Offering or any Partner modifications to the WorkMax  Platform infringe any third party right, including any Intellectual Property Right, where the WorkMax Platform alone would not infringe, or (d) any breach of contract or any tort by Partner or any violation of any statute, ordinance, or regulation by Partner, or any other allegation against Partner.

12. Limitation of Liability

EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. 

13. Publicity

13.1. Press. All media releases, public announcements, and public disclosures by either party relating to this Agreement, is strictly prohibited.  

13.2. Trademarks. All usage of the owning party's trademarks must first be submitted to the owning party for approval (which must not be unreasonably withheld) of design, color, and other details or will be exact copies of those used by the trademark owner. In addition, the other party will fully comply with all reasonable guidelines, if any, communicated by the owning party concerning the use of its trademarks.

14. General Provisions

14.1. Notices. Except as otherwise specified in the Agreement, all notices under the Agreement will be in writing and will be delivered or sent by (a) first class U.S. mail, registered or certified, return receipt requested, postage prepaid; or (b) U.S. express mail, or national express courier with a tracking system, to the address specified in the applicable Order Schedule. Notices will be deemed given on the day actually received by the party to whom the notice is addressed.

14.2. Independent Contractors. The relationship of AboutTime Technologies and Partner is that of independent contractors. Neither party has any authority to act on behalf of the other party or to bind it, and in no event will the parties be construed to be partners, employer- employee, or agents of each other.

14.3. Governing Law Arbitration; Venue. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of Utah, excluding its conflict of laws provisions. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, any controversy, claim, or action arising out of or relating to the Agreement will be settled by binding arbitration in Utah County, Utah, under the rules of the American Arbitration Association by three arbitrators appointed in accordance with such rules. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Utah County, Utah for any action permitted under this Section, challenge to this Section, or judgment upon the award entered.

14.4. Assignment. The Agreement may not be assigned by either one of the parties by operation of law or otherwise, without the prior written consent of the other party, whose consent will not be unreasonably withheld. Partner consent is not required in connection with AboutTime Technologies’ assignment of the Agreement pursuant to a merger, acquisition, or sale of all or substantially all of the assigning party’s assets.

14.5. Force Majeure. Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under the Agreement by either party to the other.

14.6. Compliance With Laws. Each party will be responsible for compliance with all applicable laws and government regulations in the process of marketing, delivering and/or using the WorkMax Platform.

14.7. Mutual Non-Solicitation. Each party agrees that it will not solicit the engagement and/or employment of the services of any of the employees of the other party (either directly or through agents), without written permission of the other party, during the initial term of this agreement and any renewal term thereof and continuing for a period of six (6) months following its expiration or termination.

14.8. Counterparts‘ Fax/Digital Signatures. This Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which together constitute one and the same Agreement. The parties agree that facsimile and digital signatures are valid signatures for enforcement of this Agreement.

14.9. Miscellaneous. Headings in the Agreement are for reference purposes only and will not affect the interpretation or meaning of the Agreement. If any provision of the Agreement is held by an arbitrator or a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement will remain in full force and effect. No delay or omission by either party to exercise any right or power it has under the Agreement will be construed as a waiver of such right or power. A waiver by either party of any breach by the other party will not be construed to be a waiver of any succeeding breach or any other covenant by the other party. All waivers must be in writing and signed by the party waiving its rights.

14.10. Order of Precedence. This Agreement constitutes the entire agreement between AboutTime Technologies and Partner with respect to the subject matter hereof. The Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such subject matter. Except as herein, no modification of the Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Notwithstanding applicable law, electronic communications will not be deemed signed writings. Additional Order Schedules may be added to the Agreement by reference to these terms and conditions, provided that each such Order Schedule is signed by both parties. As set forth in Section 4.1, AboutTime Technologies has the right to change pricing and any other terms unilaterally, provided that AboutTime Technologies provides the requisite notice. In addition, the parties may agree to revise or replace all or part of certain exhibits from time to time by mutual written agreement. No term or condition contained in Partner's purchase order or similar document will apply unless specifically agreed to by AboutTime Technologies in writing, even if AboutTime Technologies has accepted the order set forth in such purchase order, and all such terms or conditions are otherwise hereby expressly rejected by AboutTime Technologies. This Agreement includes the following attachments and exhibits: