This Agent Agreement (the “Agreement”) governs the relationship between infoStructure Agent Services, Inc. Origin Networks, LLC dab infoStructure (“infoStructure”) and Technology Advisor (as identified in the Technology Advisor Registration Form ). infoStructure and Technology Advisor are referred to collectively as “Parties” and individually as “Party”.
1.1. Scope of Appointment. infoStructure hereby appoints Technology Advisor as an independent sales representative on a non-exclusive basis for the purposes of marketing, promoting and referring (collectively, “Market”) products and services (collectively, “Services”) offered by infoStructure providers and vendors (collectively, “Providers”). infoStructure may, from time to time and at its sole discretion, add, delete or modify Services. infoStructure expressly reserves the right to Market the Services itself, and to contract with others to Market the Services.
1.3. Sub-Advisors. Technology Advisor may, at Technology Advisor’s expense, retain sub technology advisors, sales agents and direct sales representatives (collectively, “Sub-Advisors”) as Technology Advisor deems necessary or advisable to perform the services required of Technology Advisor under this Agreement. Technology Advisor shall be solely responsible for compliance by Sub-Advisors with the terms and conditions of this Agreement.
1.4.Provider Trademarks and Trade Names. infoStructure has entered into agreements with Providers and, pursuant to such agreements, Technology Advisor is required to comply with the standards of usage for a Provider’s name, symbols, trademarks and trade names issued or to be issued by a Provider from time to time.
infoStructure will pay compensation to Technology Advisor for sales of the Services directly generated by Technology Advisor as set forth in the applicable Service Terms. infoStructure may set-off any amounts owed by Technology Advisor to infoStructure against any compensation and other amounts owed by infoStructure to Technology Advisor.
3.1. Term. This Agreement shall remain in effect for an initial term of one (1) year, beginning on the date hereof and shall automatically renew for successive one (1) year terms (the “Term”) unless and until either Party gives written notice of non-renewal at least thirty (30) days in advance of the end of the then current Term.
3.2. Termination for Convenience. Either Party may terminate this Agreement for convenience upon thirty (30) day written notice to the other Party.3.2. Termination for Convenience. Either Party may terminate this Agreement for convenience upon thirty (30) day written notice to the other Party.
3.3. Termination for Cause. Either Party may terminate this Agreement for cause if the other Party commits a material breach of this Agreement that remains uncured after the expiration of ten (10) days’ written notice specifying the basis for the breach.
3.4. Immediate Termination. Either Party may terminate this Agreement immediately upon written notice if a Party (a) becomes insolvent or makes a general assignment for the benefit of creditors; (b) suffers or permits the appointment of a conservator or receiver for its business or assets or any similar action by a governmental entity for the purpose of assuming operation or control of the Party due to the financial condition of the Party; (c) becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, and such proceeding or action has not been dismissed within a sixty (60) day period; or (d) has wound up or liquidated its business, voluntarily or otherwise.
4.1. Confidential Information. “Confidential Information” means any information disclosed or otherwise made available previously or in the future by infoStructure to Technology Advisor, either directly or indirectly, on or after the date hereof, in writing or orally, which is designated as “confidential”, “proprietary”, “competition-sensitive” or some similar designation or which, under the circumstances surrounding disclosure, including oral disclosure or disclosure by demonstration, would be understood to be confidential, proprietary or competition-sensitive by a reasonable person, and includes all customer and end-user information exchanged between the Parties from time to time; provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Technology Advisor’s breach of this Section; (b) is or becomes available to Technology Advisor on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Technology Advisor’s possession prior to infoStructure disclosure hereunder; or (d) was or is independently developed by Technology Advisor without using any Confidential Information or as provided in this Agreement.
4.2. Non-Use and Limited Disclosure. Technology Advisor shall: (a) protect and safeguard the confidentiality of infoStructure Confidential Information with at least the same degree of care as Technology Advisor would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the infoStructure Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person or entity, except to Technology Advisor’s Representatives who need to know the Confidential Information to assist Technology Advisor, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If Technology Advisor is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify infoStructure of such requirements to afford infoStructure the opportunity to seek, at infoStructure sole cost and expense, a protective order or other remedy.
5.1. Mutual Warranties. Each Party represents and warrants that: (a) it has the legal power to enter into and perform its obligations under this Agreement and has obtained and will maintain any and all consents, approvals, licenses, or other authorizations necessary for the performance of its obligations under this Agreement; and (b) it will not make any representations or warranties on the other Party’s behalf without the other Party’s prior written consent.
5.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES DO NOT MAKE OR GIVE ANY OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES WHATSOEVER REGARDING THIS AGREEMENT, THE SUBJECT MATTER OF THIS AGREEMENT OR ANY RELATED MATTER, AND EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES OF EVERY NATURE AND KIND WHATSOEVER, EXPRESS OR IMPLIED BY LAW, INCLUDING ANY STATUTE OR REGULATION, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR, PURPOSE
Each Party agrees to defend, indemnify and hold harmless the other Party, and its officers, directors, employees, agents, affiliates, attorneys, and successors and assigns, from and against any third-party claim or action related to the breach of its obligations, covenants or warranties as set forth in this Agreement.
8.1. Notices. Any notice or other communication required or permitted to be delivered to any Party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) when delivered in person; (b) when transmitted by facsimile, (with confirmation of delivery in each case); (c) on the third (3rd) business day following the mailing thereof by certified or registered mail, return receipt requested; (d) when delivered by an express courier (with written confirmation) to the Parties at the addresses set forth on the Technology Advisor Registration Form (or to such other address, email address, or facsimile number as such Party may have specified in a written notice given to the other Parties).
8.2. Code of Conduct. Technology Advisor is aware of and acknowledges infoStructure's Code of Conduct as made available by infoStructure from time to time or upon demand.
9.3. Independent Contractors. Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, association or employment relationship between the Parties, nor shall either Party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.
8.4. Assignment. Technology Advisor may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of infoStructure. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Any attempted assignment in breach of this Section shall be void.
8.5. Waiver. No delay or failure of either Party to enforce any provision of this Agreement will operate as a waiver of the right to enforce that or any other provision of this Agreement, nor will any single or partial exercise of any such rights preclude any other or further exercise thereof. To be effective, any waiver must be in writing, signed by the Party providing the waiver.
8.6. Governing Law and Forum. This Agreement shall be governed by and construed in accordance with the laws of Oregon without regard to its conflicts of law principles. The Parties agree that the state and federal courts located in Oregon shall have sole and exclusive jurisdiction and venue over any matter arising out of this Agreement and each Party hereby submits to the venue and jurisdiction of such courts. Each Party irrevocably waives any objection that it may now or hereafter have to the laying of venue of any such proceeding in such court, including any claim that such proceeding has been brought in an inappropriate or inconvenient forum.
8.7. Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect, and shall be construed so as to best effectuate the intention of the Parties in executing it.
8.8. Survival. Notwithstanding any other provision of this Agreement, the provisions which by their nature are intended to survive the termination of this Agreement shall survive termination of this Agreement and any permitted assignment of this Agreement. Without restricting the generality of the foregoing, but for further clarity, the following sections shall survive the termination or the expiration hereof (as the case may be): 2 (Compensation), 4 (Intellectual Property), 5 (Confidential Information), 7 (Indemnification), 8 (Limitation of Liability) and 9 (Miscellaneous).
8.9. Interpretation. The headings of sections and subsections in this Agreement are used for convenience purposes only, and shall have no legal force or effect. Whenever used in this Agreement: (i) the terms in plural include the singular, and vice versa, and (ii) the terms “includes”, “including” and “such as”, mean respectively “including without limitation”, “includes without limitation” and “such as without limitation”. Neither Party hereto shall be considered the drafter of this Agreement or any provision hereof for the purpose of any statute, case law, rule of interpretation or construction that would or might cause any provision or ambiguity to be construed against the drafter hereof.