Elite Business Ventures, Master Partner Agreement

This Master Partner Agreement (“Agreement”) is by and between Elite Business Ventures, LLC. (dba Poster Elite) (“Elite”) with its principal place of business at 13700 Stowe Dr. Poway, CA 92064, and Company and is effective as of the countersigned date on the Partner Agreement Form (“Effective Date”).

1. Parties. Elite is a provider of labor law posters, labor law notices, and labor law poster compliance subscription services, among other products and services (“Services”). Company desires to enter an agreement with Elite authorizing Company to purchase, promote, use, and/or resell one or more Services from Elite and use them according to the terms and conditions set forth in this Agreement and any addendums (“Addendum”), exhibits (“Exhibit”), or statements of work (“Statement of Work”) which may be attached to or associated with this Agreement, as agreed to by the Parties.
2. Addendums and Exhibits. The details and terms of use of those Services and the transactions to be conducted by and between Elite and Company are set forth herein, and in the addendums attached to this Agreement (each, an “Addendum”), and in the exhibits attached to this Agreement (each an “Exhibit”). Each Addendum and each Exhibit is hereby incorporated by reference into this Agreement.
3. Term. The term of this Agreement (“Term”) shall commence on the Effective Date and shall continue for a period of three (3) years. The Agreement shall automatically renew for additional one (1) year terms (the “Extension Terms”) unless either party terminates this Agreement by providing written notice of termination to the other party at least sixty (60) days prior to the end of the Term or any Extension Term. Notwithstanding the foregoing, Either party may terminate this Agreement and all attachments hereto upon written notice to the other party if (i) the other party is in breach or default of any material term of this Agreement, and said breach or default continues uncured for a period of sixty (60) days after such party’s receipt of written notice specifying the grounds of such breach or default; (ii) a petition under any bankruptcy law is filed by or against the other party; (iii) the other party executes an assignment for the benefit of creditors; (iv) a receiver is appointed for the other party’s assets; or (v) the other party becomes insolvent or takes advantage of any insolvency or any similar statute.
4. Continuity of Subscriptions. The Parties acknowledge that Elite invests significant upfront and ongoing resources in each partnership, including white-labeling, integration, implementation, and subscription activation, and that Elite’s fees are structured in reliance on the continued servicing of subscriptions submitted by Company to Elite for activation (“Activated Subscriptions”). Accordingly, continuity of Activated Subscriptions is material to Elite’s pricing and the economic structure of the partnership. Company may cancel an Activated Subscription at any time for any reason. However, if Company cancels an Activated Subscription and then directs or causes that same subscription to be moved to a competing service offered by a third party during the Term, Company will pay Elite an amount equal to the greater of (a) twelve (12) months of the applicable monthly subscription fees, or (b) the remaining monthly subscription fees for that subscription through the end of the then-current Term. This section does not create an exclusive relationship or limit Company’s right to evaluate, offer, promote, or use competing services.
5. Effect of Termination. Upon termination of this Agreement, Company’s right to access, use, sell, or promote the Products shall immediately cease and Elite has no obligation to deliver or provide Services to Company or its Customers, or provide access to Company’s data. The provisions of this Agreement that are intended to survive termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, and the following sections: Confidentiality, Intellectual Property Ownership, Indemnification, Limitation of Liability, Payment Terms, and Assignment, and any outstanding payment obligations shall survive termination of this Agreement.
6. Confidentiality. The parties acknowledge that in performing under this Agreement, they may exchange confidential, proprietary, and trade secret information (collectively, “Confidential Information”), which may include, without limitation, software, data, designs, drawings, tracings, plans, layouts, specifications, samples, brochures, price lists, equipment, operations, processes, source codes, trade secrets, prospective customer lists, customer information or lists, or personal information and data related to any other kind of customer or Company’s employees. Confidential Information does not include information that is: (a) in or later enters the public domain other than by breach of this Agreement, (b) lawfully known by a party prior to disclosure of the same from by other party under this Agreement or is received from a third party not known to have any obligation of confidentiality to the other party, or (c) independently developed without reference to the Confidential Information. Each party shall use reasonable measures in accordance with industry standards to protect the other party’s Confidential Information from unauthorized use or disclosure. Each party may, however, disclose Confidential Information (i) on a confidential basis, to its own employees or agents to the limited extent such employees or agents need to know the Confidential Information to permit the party to perform under this Agreement, and (ii) to the limited extent necessary to comply with a valid court order or legal compulsion by a governmental agency having authority and jurisdiction over the same. In the event of a breach of this section, the parties agree that the non-breaching party shall be entitled to obtain injunctive relief, in addition to any other remedies that may be available at law, without needing to post a bond or prove actual damages. Each party is liable for a breach of this Section 8 by its employees or agents. Any breach of this Section 8 will be considered a material breach of this Agreement, and the parties agree that in the event of such breach, damages will be difficult to ascertain.
7. Intellectual Property Ownership.
   1. “IP” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship including, without limitation, copyrights, moral rights and mask-works; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patents, designs, algorithms and other similar rights; (e) all other intellectual property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise, including any software, ideas, concepts, know-how, development tools, techniques or any other proprietary material or information; and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter made, existing, or in force under the laws of any jurisdiction. Except as expressly set forth herein, nothing contained herein shall be construed as conferring upon a party any rights to ownership or interest in the other party’s IP. Company acknowledges and agrees that on all products provided in connection with the Services, including private-label products (except to the extent that Elite has incorporated Company’s IP), that any logo, insignia, name, trade name, trademark, trade dress, copyright, symbol, proprietary product configuration, product decorative sign or other related markings belong to, and shall at all times remain the sole property, of Elite. Elite is also the owner of all Services and deliverables arising therefrom. Except as otherwise explicitly set forth in this Agreement or any Addendum or Exhibit hereto, Company shall have no rights in or to Elite’s IP, and Elite shall have no rights in or to Company’s IP. Company shall abide by, honor, and refrain from removing or altering, any trademarks and copyrights owned by Elite.
   2. Company may provide feedback or suggestions to the Services; in no event will Company have any right to any IP in such feedback or suggestions, and instead, all rights in and title to any IP in or derived from any of Company’s feedback or suggestions will vest solely and exclusively in Elite. Company agrees to take all action necessary to assign this IP if necessary, and if you are unavailable for any reason to take such action, you hereby irrevocably appoint Elite as your attorney in fact to take such action.
8. Indemnification. Elite will indemnify, defend, and hold Company harmless from and against any losses arising from or in connection with any claim or allegation brought by a third party based upon Elite’s fraud, gross negligence, or willful misconduct. Elite shall release, indemnify, and hold harmless Company and its affiliates, and their respective officers, directors, employees, and agents from and against any third-party claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to any allegation that the Products or Services infringe or misappropriate any intellectual property rights of a third party. Company shall indemnify, defend, and hold harmless Elite and its directors, officers, shareholders, and authorized agents from and against any claim by a third party alleging damages, losses, liabilities, and expenses of any kind, including attorneys’ fees (collectively, “Losses”), arising from (i) any breach of this Agreement (ii) the negligence, fraud, or intentional misconduct of the Company, or (iii) any claim involving any agreement between Company and Company Customers (iv) any representation or claim made to Company Customers by Company not otherwise approved in writing by Elite, (v) a claim or allegation brought by a third party based on the Company’s fraud, gross negligence, or willful misconduct, or (vi) a claim or allegation by a third party that the Company’s IP infringes on or misappropriates that third party’s intellectual property rights.
   
   As a condition to indemnification, the indemnified party shall promptly notify the indemnifying party of the claim, reasonably cooperate in the defense, and permit the indemnifying party to control the defense and settlement. Neither party may settle, compromise, admit liability, or otherwise resolve a claim for which it seeks indemnification without the other party’s prior written consent. The indemnifying party shall not be responsible for Losses arising from or increased by the indemnified party’s failure to comply with this paragraph.
9. Limitation of Liability. TO THE MAXIMUM EXTENT ALLOWED BY LAW, AND EXCEPT FOR LOSSES ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (a) NEITHER PARTY WILL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY FOR THE ACTION OR CLAIM, WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE, AND (b) EXCEPT FOR ELITE’S OBLIGATIONS UNDER THE ‘we-pay-the-fine’ guarantee’, ELITE’S AGGREGATE LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE LESSER OF AMOUNTS PAID BY COMPANY UNDER THIS AGREEMENT TO ELITE OR $25,000.
10. Independent Contractors. In performing their respective duties under this Agreement, each of the parties will be operating as an independent contractor. Nothing contained herein (including the Company being referred to as such) will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the power to bind the other party or incur obligations on the other party’s behalf without the other party’s prior written consent.
11. Payment Terms. Any and all applicable payments to be paid by Company to Elite shall be paid to Elite within thirty (30) calendar days from the date of the invoice. If Company does not pay an invoiced amount within these terms, Elite may at its own discretion elect to apply additional finance charges of one and one-half percent (1.5%) per month on the late balance, and Elite reserves the right to (1) withhold shipment and/or provision of the Services until full payment is made; and/or (2) revoke any credit extended to Company. In the event that Company’s account is more than ninety (90) days in arrears, Company shall reimburse Elite for the reasonable costs, including attorney fees, of collecting such amounts from Company. In the event of any dispute regarding an invoice, until Elite determines whether the dispute is justified, no finance charges will apply in the event that Company provides written notice of the dispute prior to the due date for such payment.
12. Representations and Warranties. Elite hereby represents and warrants that: (i) the services rendered pursuant to this Agreement shall be performed in a workmanlike and professional manner and in accordance with sound and generally accepted industry standards and practices and in accordance with any and all applicable laws, codes, rules, regulations or other governmental or regulatory requirements; (ii) the services, software or product provided hereunder will not violate the patent, copyright, trademark, trade secrets or other proprietary or intellectual property rights of any third party; (iii) it has full right title and interest in and to the Elite products and Services, and that the Elite products and Services, and any third-party software that may be provided with the Elite products and Services, will operate substantially in conformity with prevailing specifications. Notwithstanding the foregoing, except with regard to indemnification obligations explicitly set forth herein, Company’s sole remedy for Elite’s failure to meet any representation or warranty hereunder shall be the Twenty-Five Thousand Dollar ($25,000) “we-pay-the-fine” guarantee (for detailed terms and conditions, refer to: http://www.posterelite.com/guarantee). EXCEPT AS EXPLICITY SET FORTH HEREIN, THE PRODUCTS ARE PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
13. Entire Agreement; Amendments. This Agreement, including its attachments, constitutes the entire agreement between the parties regarding its subject matters, and replaces and supersedes all other agreements, oral or written, between the parties regarding such subject matter. There are no understandings, agreements, representations, or warranties, expressed or implied, not specified herein regarding this Agreement or the subject matter thereof. This Agreement, and any attachment, may not be modified except by a writing signed by both parties.
14. Intentionally Deleted.
15. Assignment. Neither party may transfer, assign, or sublicense any part of this Agreement without the prior written consent of the other party, except that either party may reassign this Agreement, and its rights and obligations hereunder, without the consent of the other party, in connection with an acquisition of the party, upon notification to the other party. Notwithstanding, any reassignment of this Agreement shall not relieve Company from its financial obligations to Elite under this Agreement. Any permitted assignment or transfer of this Agreement shall not expand the scope, volume, or scale of use beyond that contemplated by the parties at the time of execution. This Agreement shall inure to the benefit of and be binding upon each party’s successors and assigns.
16. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to conflict of laws principles. The parties each consent to the exclusive jurisdiction of the state and federal courts in San Diego County, California in any action or proceeding arising out of or relating to this Agreement, and the parties hereby waive any defenses based on lack of personal jurisdiction or inconvenient forum.
17. Force Majeure. If the performance of this Agreement or of any obligation hereunder, except the making of payments, is prevented, restricted, or interfered with by reason of fire or other casualty or power, or supplies; war or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency; or any other act or condition whatsoever beyond the reasonable control of the parties hereto; the party so affected, upon giving prompt written notice to the other party, shall be excused from such performance to the extent of such prevention, restriction, or interference. The party so affected, however, shall make its best efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with the utmost dispatch whenever such causes are removed.
18. Attorneys’ Fees. In an action or proceeding arising out of or in connection with this Agreement, the prevailing party, as determined by a court with proper jurisdiction, shall be entitled to recover its reasonable attorneys’ fees and litigation costs from the non-prevailing party in such action or proceeding.
19. Severability. If any term, provision, covenant, or restriction of this Agreement is held by a court other authority with competent jurisdiction to be invalid, illegal, void, or unenforceable, the remaining terms, provisions, covenants, and restrictions will remain in full force and effect and will not be affected, impaired, or invalidated. Notwithstanding the foregoing, if the severing of an invalid, illegal, void, or unenforceable provision would impact the economic or legal substance of the transactions contemplated herein in a materially adverse manner for either party, then the Agreement will be modified in order to effectuate the original intent of the parties as closely as possible, by the court or other authority with competent jurisdiction.
20. Waiver. No provision or term of this Agreement may be waived except in a writing signed by the party making the waiver. No waiver will be considered a continuing waiver, and no waiver will be considered a waiver of any other provision or term of this Agreement.
21. Compliance. Each party shall comply with all applicable laws, rules, regulations, statutes, ordinances, orders, and mandates of a federal, state, local or foreign government or political subdivision or agency in performing under this Agreement, including all export control laws. Each party represents and warrants that it is not a party to any other agreement or subject to any other obligation that would preclude or be likely to preclude its compliance with the terms of this Agreement.
22. Data Privacy. Each party shall comply with its respective privacy policies and applicable regulations in handling, using, and disclosing its own Customer information. The parties will employ commercially reasonable safeguards to protect Customer information from loss, misuse and unauthorized alteration during its storage, processing, and transmission, including the use of commercially available security technology, and will be responsible for liability that results from any such loss, misuse, and unauthorized alteration while in its possession. For reference, PosterElite’s privacy policy is available at www.posterelite.com/privacy
23. Authority. Each party hereby represents and warrants that it validly exists and is in good standing in the state in which it is organized, and that it has all of the requisite corporate power and authority to carry on its business. Each party hereby further represents and warrants that it has the full power and authority to enter into this Agreement, and there does not exist any agreement or commitments which conflict with the provisions of this Agreement or which restrict either Party from performing its obligations under this agreement.
24. No Legal Advice. Elite’s Services may contain content pertaining to certain laws or regulations. Company acknowledges that such content is not legal advice, and in no event shall Company or its Customers consider information or content provided by Elite to be legal advice. Company and its Customers assume full responsibility for decisions or opinions made by them in the course of using Elite’s Services.
25. Notices. Any legal notices must be given in writing at the address of each party set forth below or such other address as the party may substitute by written notice to the other in accordance with this section. Such notices must be hand delivered or sent by registered, express, or certified mail, return receipt requested and postage prepaid or nationally recognized private express courier. Notices will be deemed given on the date received.