GoldFinch Partner Terms of Service

WHEREAS, GoldFinch develops, manufactures, markets, sells, and licenses certain computer products and provides related services,
and
WHEREAS, Partner is in the business of providing consulting services to end-users who are using GoldFinch’s products,
and
WHEREAS, the parties wish to agree on the terms for GoldFinch to compensate Partner for sales GoldFinch makes to customers referred to GoldFinch by Partner, and
NOW, THEREFORE, in consideration of the agreements and covenants set forth herein, the parties hereto agree as follows:

1. “End-User” means any party who buys or licenses the Products for their own internal use and not for redistribution.
2. “Intellectual Property Rights” means patents, trademarks, service marks, designs, trade and business names, copyrights (including future copyright), know-how, database rights, rights in designs and inventions, and rights of confidentiality and/or trade secrets.
3. “Partner” means the party entering into this Agreement with GoldFinch.
4. “Marks” means all proprietary indicia, trademarks, trade names, symbols, logos, and/or brand names that GoldFinch may adopt from time to time to identify GoldFinch, the Products, or any related parties or materials.
5. “Product(s)” means GoldFinch’s then current list of computer software programs in object code only, all online and hardcopy documentation, or other goods or services, which may be revised from time to time by GoldFinch.
6. “Prospect” means a potential customer for GoldFinch’s Products.
7. “Referral Fees” means the fees paid to Partner by GoldFinch from the sale of Products to an End-User as provided in Section 4 (d) and (e) of this Agreement.
8. “License Order Form” means a license agreement between GoldFinch and a Prospect for one or more of the Products.

Partner acknowledges that nothing in the Agreement shall entitle Partner to describe itself as being “Certified” to provide integration or consulting services for GoldFinch’s Products.

This Agreement will commence as of the Effective Date and will continue for one year unless earlier terminated as provided in Section 3. This Agreement will automatically renew for successive one-year periods unless either party terminates the Agreement according to the provisions in Section 3. Either party will have the right to terminate this Agreement, at any time, by giving thirty (30) days written notice to the other party. Upon termination, all GoldFinch software used for demonstration and/or development purposes by the Partner will be terminated and be made inoperable. GoldFinch has the right to terminate this agreement at any time due to any breach of this agreement.

1. Partner may refer potential customers (each a “Prospect”) for the Products to GoldFinch on a non-exclusive basis. Partner will only refer Prospects that have expressed to Partner a genuine interest in obtaining the Products, and with whom the Partner has a pre-existing relationship.
2. GoldFinch may reject any Prospect references with which GoldFinch has already (i) entered into a License Order Form; (ii) received a referral from a third party; or (iii) identified as a prospective customer through GoldFinch’s own efforts. If GoldFinch does not reject a Prospect within thirty (30) days after email notification from Partner, the Prospect will be deemed accepted. It is the responsibility of the Partner to ensure that the Prospect notification was successfully received by GoldFinch.
3. GoldFinch will use reasonable efforts to contact each Prospect within ten (10) days of receipt of an accepted Prospect email notification and to enter into an agreement with Prospect to license the Product(s) (a “License Order Form”). The prices, terms, and conditions that GoldFinch offers in the License Order Form shall be determined by GoldFinch in its sole discretion, and GoldFinch shall have full control over the discussions and negotiations related thereto, including the right to terminate discussions or negotiations at any time without any liability to Partner.
4. The Referral Fees shall be paid to Partner upon receipt of an executed W-9 from Partner, GoldFinch shall issue payment of the Referral Fees to Partner via check mailed to the address on the signature page to this Agreement, which payment shall be issued within thirty (30) days of the date GoldFinch receives payment from the Prospect.

Non-hiring of GoldFinch Employees. Partner shall not during the term of this Agreement, or for a period of five years thereafter (the “Non-hire Period”), directly or indirectly hire any employee of GoldFinch. In the event Partner directly or indirectly, hires (whether as an employee or an independent contractor) any employee of GoldFinch during the Non-hire Period or any former employee of GoldFinch who voluntarily terminated their employment with GoldFinch within 12 months of being hired by Partner, Partner shall pay GoldFinch liquidated damages in an amount equal to 1.5 times the GoldFinch employee’s most recent annual salary.

1. The Partner acknowledges that all intellectual property rights, hereunder but not limited to, copyright, trademark rights, and design rights, to GoldFinch Cloud Solutions and GoldFinch Cloud Solutions Products, domain names, etc., are the exclusive property of GoldFinch Cloud Solutions. The Partner has no proprietary rights or intellectual property rights of GoldFinch Cloud Solutions and acknowledges that all rights to and goodwill related to the intellectual property rights of GoldFinch Cloud Solutions are and shall remain vested with GoldFinch Cloud Solutions.
2. During the term of this Agreement, the Partner is licensed by GoldFinch Cloud Solutions to use the trademarks, trade names, logos, company name, etc., and designations made available by GoldFinch Cloud Solutions in connection with the Partner’s advertisement, promotion, and distribution of GoldFinch Cloud Solutions.
3. GoldFinch Cloud Solutions is authorized by the Partner to use the Partner’s trademarks, trade names, logos, company name, etc. in connection with the advertisement, promotion, and distribution of GoldFinch Cloud Solutions Products and the announcement of the Parties’ relationship hereunder.

EXCEPT FOR ANY EXPRESS WARRANTIES INCLUDED IN THE DOCUMENTATION FOR THE PRODUCTS, GOLDFINCH MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE RELATED TO ITS PRODUCTS. SAID EXPRESS WARRANTIES SHALL NOT BE ENLARGED OR OTHERWISE AFFECTED BY GOLDFINCH’S RENDERING OF TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, PROVIDING THE CERTIFICATION CLASSES UNDER THIS AGREEMENT.

1. Definition. “Confidential Information” shall mean all non-public, confidential, or proprietary information or trade secrets of Partner or GoldFinch and other data or information (and any tangible evidence, record, or representation thereof), whether disclosed orally or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential”, as well as the terms and existence of this Agreement, in each case, which might permit GoldFinch or Partner to obtain a competitive advantage over competitors who do not have access to such trade secrets, proprietary information, or other information. Without limiting the foregoing, Confidential Information shall include:
   1. Any improvements, invention, innovation, development, technical data, design, computer software, firmware, source code, object code, user manual, training or service manual, product specification, plan for a new or revised product, compilation of information, or work in process, and any and all revisions and improvements relation to any of the foregoing;
   2. The name of any customer, customer lists, pricing, discounts, employee, prospective customer or consultant, any sales plan, marketing material, plan or survey, business plan or opportunity, product or development plan or specification, business proposal, financial record, or business record or other record or information relating to the present or proposed business of either GoldFinch or Partner.
   1. Any improvements, invention, innovation, development, technical data, design, computer software, firmware, source code, object code, user manual, training or service manual, product specification, plan for a new or revised product, compilation of information, or work in process, and any and all revisions and improvements relation to any of the foregoing;
   2. The name of any customer, customer lists, pricing, discounts, employee, prospective customer or consultant, any sales plan, marketing material, plan or survey, business plan or opportunity, product or development plan or specification, business proposal, financial record, or business record or other record or information relating to the present or proposed business of either GoldFinch or Partner.
2. When Confidentiality Restrictions Do Not Apply. The term Confidential Information shall not apply to information
   1. where GoldFinch or Partner voluntarily discloses its own Confidential Information to the public without restrictions,
   2. that a party obtained non-confidential information from a third party, as established by documentary evidence, or
   3. which has otherwise lawfully entered the public domain.
3. Mutual Obligation to Maintain Confidential Information. Each party shall hold confidential all of the other party’s Confidential Information and shall not, during or after the termination of this Agreement, use any of the other party’s Confidential Information, or any part thereof, for any purpose other than those uses specifically permitted in writing. Nor shall either party disclose any Confidential Information to a third party for any reason or purpose whatsoever, except as may be specifically authorized by the other party in writing. Partner also agrees to enter into binding agreements with Partner’s employees, and agents to prevent the disclosure of any Confidential Information. Partner shall be responsible for any of its employees’ and agents’ violations of the confidentiality obligations herein contained or disclosure of GoldFinch’s confidential information.
4. Expiration or Termination. Upon the expiration or earlier termination of this Agreement, Partner shall promptly deliver to GoldFinch and GoldFinch shall similarly deliver to Partner any and all Confidential Information and all items which are otherwise the property of the other party, and which are in the possession, custody, or control of either Partner or GoldFinch, their respective agents or representatives. As an alternative, each party may destroy any and all Confidential Information and all items which are otherwise the property of the other party and which are in possession, custody, or control of such party, its respective agents, or representatives and promptly deliver a certificate of destruction signed by an executive officer of such party to the other party.
5. Non-Disparagement. Both during and after the termination of this Agreement, each party shall refrain from making any negative public statements regarding the other party or their products and services. Each party acknowledges that the other party would suffer immediate and irreparable harm in the event of a violation of Section 8, and as such would be entitled to injunctive relief to enforce Section 8.

1. Notices. All notices shall be effective upon receipt. Notices shall be deemed duly received the day after being sent by nationally recognized overnight delivery service and five (5) days after having been sent by registered mail, addressed as follows:
   • To: Micro DataNet, Inc. dba GoldFinch Cloud Solutions, 485C US Highway 1 South, Suite 350, Iselin, New Jersey 08830, Attention: President.
   • To: Partner, Address stated on the first page of this Agreement.
2. Force Majeure. Neither Partner nor GoldFinch shall be liable for failure or delay in performance of any obligation under this Agreement if such failure or delay is caused by circumstances not directly under the control of the party concerned including, but not without limitation, failures resulting from force majeure, acts of God, acts of public authorities, wars and war measures, strikes, fires, or failures or delays of suppliers or carriers. In no event shall either party hereto be liable to the other for indirect, special, or consequential damages or for loss of anticipated profits.
3. Language. All notifications, documentation, and communications between GoldFinch and Partner shall be in English.
4. Currency. Unless expressly agreed to in writing by both parties, all monies in connection with this Agreement shall be paid in U.S. Dollars.
5. Prior Agreements. This Agreement supersedes and cancels all prior agreements between the parties, written, oral, or implied with respect to the subject matter hereof.
6. Construction of Agreement. This Agreement shall be construed, and the relations of the parties shall be determined, in accordance with the laws of the State of New Jersey in the United States, as such laws apply to contracts between residents of New Jersey. If any provision of this Agreement is in violation of any applicable law, such provision shall be struck, to the extent deemed null and void, and the remainder of the Agreement shall remain in full force and effect. Any additional or modified terms or conditions must be agreed upon by both parties in writing as an addendum to this Agreement.
7. Governing Law. This Agreement is governed by the laws of the State of New Jersey, without regard to its choice of law provisions. If all or any portion of the Products was acquired outside the United States, local laws may apply. Neither the United Nations Treaty for International Sale of Goods nor the Uniform Computer Information Transactions Act (“UCITA”) shall govern this Agreement.
8. Commercial (U.S. domestic) – Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
9. Non-Waiver and Amendment. Any failure by GoldFinch to enforce or take advantage of any provisions hereof shall not constitute a waiver of the right subsequently to enforce or take advantage of such provision, and no rights of GoldFinch shall be deemed waived. GoldFinch may amend these standard terms and conditions in its sole discretion from time to time, without Partner’s prior consent so long as GoldFinch provides written notice of amendments.
10. Headings. Headings within this Agreement shall not be construed in the interpretation of this Agreement and are supplied only for the purpose of organization.
11. Counterparts. This Agreement may be executed in several counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
12. Assignment of Benefits. Neither this Agreement nor any interest in it shall be assigned, transferred, delegated, or subcontracted by Partner without the prior written consent of GoldFinch. GoldFinch may assign this Agreement. Subject to the terms contained herein, this Agreement shall be binding upon and inure to the benefits of the legal representatives, successors, and assigns of the parties.
13. Independent Contractor Status. Nothing contained in this Agreement shall be construed to create any association, partnership, joint venture, employee, or agency relationship between Partner and GoldFinch for any purpose. Partner has no right or authority (and shall not hold itself out as having any right or authority) to bind GoldFinch or otherwise incur, assume, or create, in writing or otherwise, any warranty, liability, or other obligation of any kind, express or implied, in the name of or on behalf of GoldFinch, it being intended by both parties that each shall remain an independent contractor responsible for its own actions. Any persons employed or engaged by Partner in connection with the performance of its obligations hereunder shall be Partner’s employees or contractors and Partner shall be fully responsible for them and indemnify GoldFinch against any claims made by or on behalf of such employees or contractors. Partner agrees to indemnify and hold GoldFinch harmless from and against any damage or expenses, including reasonable attorneys’ fees, arising out of a breach of the provisions of this section.
14. Interpretation. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

End of Terms and Conditions for Partner Agreement