HEROware™, Inc. Crusader Partner Program Agreement

Read these Terms and Conditions carefully. If you agree, click “I have read, understood and agreed to the terms and conditions” on the HEROware Crusader Partner Program Application. Your acceptance of these Terms and Conditions does not obligate HEROware to accept you into the HEROware, Inc. Crusader Program. To be accepted, you must accept these Terms and Conditions, submit a completed application form, and meet all membership qualifications.

This Crusader Partner Agreement (Agreement) is made by and between HEROware, Inc. (hereinafter referred to as “Company”), incorporated under the laws of California, having its principal place of business at 65 Enterprise, Aliso Viejo, CA 92656, and the Partner (hereinafter referred to as the “Partner”)

1. Purpose of Agreement. Crusader Partner desires the non-exclusive right to use the trademarks, logos, service marks, and trade names owned by Company (collectively, the “Trademarks”) including but not limited to marketing material on or in connection with Partners documents. Company desires to grant such rights to Partner on the terms and conditions set forth in this Agreement.

2. License Grant.

(a) Company grants to Partner a revocable, non-exclusive, non-transferable, right and license to use, in accordance with the terms of Schedule A and other Trademark usage guidelines provided by Company from time to time, the Trademarks solely in connection with the marketing and sale of Company’s Products, packaging, training material, user documentation, or other Product information items including but not limited to: sales literature, advertising, documentation, internet sites, presentation material, press material (collectively “the Marketing Materials”) and to resell Company hardware (“Company Hardware”) and software (“Licensed Software”) purchased from Company or through an authorized Company distributor.

(b) All rights and licenses of any kind in the Licensed Software not expressly granted herein are reserved exclusively to Company including, but not limited to, the right to copy the Licensed Software for any reason other than those expressly set forth herein. No rights or licenses whatsoever to the source code of the Licensed Software or any part thereof are granted by this Agreement.

(c) Partner agrees not to modify the Company Hardware in any respect not preapproved by Company nor (i) disassemble, decompile or otherwise reverse engineer the Licensed Software or otherwise attempt to learn the source code, structure, algorithms or ideas underlying the Licensed Software; (ii) rent, lease or otherwise provide temporary access to the Licensed Software; (iii) take any action contrary to Company’s shrink wrap end user license agreement except as expressly and unambiguously allowed under this Agreement; (iv) copy or modify the Licensed Software or (v) allow others to do any of the foregoing.

3. Ownership. Partner acknowledges and agrees that Company owns or controls all rights in the Company Hardware and Licensed Software including but not limited to all copyrights, trademarks, trade secrets, commercial symbols, goodwill, and patent rights (collectively the “Company Property”). Partner agrees that nothing contained herein shall cause Company’s rights in the Company Property to be reduced in any way, nor cause Partner to gain any ownership or other rights in the Company Property.

4. Trademarks.

(a) The Company owns the Trademarks set forth at http://www.heroware.com/legal/tmpn. Company shall therefore, directly or indirectly, maintain control over the Trademarks usage. Partner acknowledges that Company is the exclusive owner of the Company Trademarks, and agrees that it shall not assert conflicting or competing rights to the Trademarks.

(b) Use of Trademarks. Use of the Trademarks does not imply Company’s endorsement of any of Partner’s products or services. Partner is solely responsible for the performance of their products and services, and for any claims Partner makes with regard to Partner’s products and services.

(c) Trademark Usage Guidelines. Company shall provide Partner with a graphic image of the Trademarks, and guidelines for proper use of the Trademarks. Compliance with these guidelines for use of the Trademarks is solely Partner’s responsibility. The details of the Company Trademark guidelines are outlined in Schedule A and otherwise as instructed by Company.

(d) Company Approval. Partner shall provide to Company samples of Partner’s documents, advertising, or other Partner information that contains the Trademarks prior to their use and public release. Company shall review said documents, advertising or other Partner information for proper Trademark usage and product quality and such Partner material shall be pursuant to any trademark usage or format rules as supplied from Company from time to time. Such approval will not limit Partner’s obligation to comply with all applicable laws and will not be deemed an endorsement or approval of any advertising content. Partner shall make no representations regarding Company, Company’s Hardware, or the Licensed Software except as consistent with Company’s own promotional and technical materials or as Company may otherwise provide or approve in writing.

(e) Partner Deficiencies. Partner shall correct any deficiencies in Partner’s use of the Trademarks, and cease and desist from further publication or distribution of the offending materials upon reasonable notice from Company. Failure to do so may result in revocation of the licenses granted under this Agreement.

(f) Accuracy. The accuracy and appropriateness of all claims used in Partner’s marketing materials which include the Trademarks is Partner’s sole responsibility, even if Company is aware of such materials

5. Business Practices. Partner shall conduct its business for its own account, in its own name, and not as an agent, employee, or Partner of Company. Partner shall conduct business in a manner that reflects favorably at all times on Company, Company’s Hardware, the Licensed Software and Company’s goodwill and reputation and make no false or misleading representations with regard to Company, its affiliates, Company’s Hardware or the Licensed Software.

6. Opportunity Registration.

(a) Opportunity Registration. During the Term of this Agreement, Partner may from time to time submit a new customer opportunity (hereinafter “Opportunity Registration”) to Company for the sale of Products from Company. Partner shall complete and submit a registration form (hereinafter “Form”) for each Opportunity Registration through Company’s applicable web form located on the Company Crusader website. Partner shall indicate which Distributor will be fulfilling orders from the Opportunity Registration.

(b) Opportunity Registration Acceptance. Company will validate that the Opportunity Registration has not been contacted by Company or another Partner prior to Partner’s submission of the Form and that the Form as completed meets Company’s criteria. Company agrees to use commercially reasonable efforts to accept or deny such Form within three (3) business days after its receipt. Company will provide Partner with a registration number upon approval of Partner’s opportunity.

(c) Denial of Opportunity Registration. Company may, in its sole discretion, deny a Form submitted by Partner based upon Company’s or another Partner’s prior or then current activity or contacts with such Opportunity Registration. Upon such denial of the Form, Company will notify Partner of such denial and the reason for the denial.

(d) Distributor Notification. Partner shall notify any applicable Distributor that it has successfully closed the Opportunity Registration and shall provide such Distributor with its Company assigned Opportunity Registration number.

(e) Payment for Closed Registered Opportunities. To be eligible to receive the Opportunity Registration fee, Partner shall submit a Purchase Order including its Registration Number. Once confirmed, Company shall notify the applicable distributor who shall then process the order and provide the Partner with the appropriate discount. Company reserves the right to modify or update the Opportunity Registration program at any time without prior notice.

7. Proprietary Notices. Partner shall use all proprietary notices, as listed at http://www.heroware.com/legal/tmpn, as necessary to maintain full protection of all of Company’s copyright, patent, trademark or trade secrets rights in Company’s Hardware and/or the Licensed Software.

8. Term and Termination.

(a) Term. This Agreement shall commence on the date last indicated below (hereinafter the “Effective Date”) and shall continue in effect through the end of the fourth full quarter (i.e.: if a contract is signed on April 15th, the Term would run from April 15, 2009 through June 30, 2010) (hereinafter “Term”). For purposes herein, the first contract quarter shall mean the Effective Date through the first full quarter (i.e.: if a contract is signed on April 15th the first full contract quarter would be April 15th through June 30th). Thereafter, the Agreement shall automatically renew for one (1) year terms unless either party provides the other party with written notification of their intent not to renew within thirty (30) days of the expiration of the then current term.

(b) General Termination. Either party may terminate this Agreement upon written notice if the other party materially violates any provision of this Agreement and fails to remedy such violation within thirty (30) days after written notice thereof.. Company may terminate this Agreement without cause on thirty (30) days notice.

(c) Insolvency. Either party may terminate this Agreement upon written notice if the other party commits an act of bankruptcy, becomes the subject of an involuntary bankruptcy filing and fails to discharge or terminate such proceeding within thirty days, voluntarily files for bankruptcy, becomes insolvent, makes any assignment for the benefit of creditors, or ceases business operations.

(d) Proprietary Rights. Company may terminate this Agreement immediately upon written notice if Partner violates any of Partner's obligations herein regarding confidentiality, trademarks, copyrights, patent rights, or any other Company proprietary rights or interests in the Company Hardware or the Licensed Software or sublicenses.

9. Indemnification and Limitation of liability.

(a) By Partner. Partner shall defend, indemnify, and hold harmless Company its officers, directors, employees, shareholders and agents (“Company Indemnities”), and hold Company Indemnities harmless, in connection with any and all claims, actions, proceedings, liabilities, judgments, damages, orders, losses, reasonable costs, and expenses (including reasonable attorneys’ fees and legal costs) relating to:

(1) misrepresentations by Partner to third parties regarding the functions, compatibility, or capabilities of the Company Property,

(2) actions against Company Indemnities by any third parties (including but not limited to Customers, retailers, Partners, joint ventures, suppliers, and competitors) in connection with Partner's copying, packaging, distributing, advertising, or installing of the Company Property; and

(3) Partner’s gross negligence and willful misconduct.

(b) By Company. Company shall defend, indemnify, and hold harmless Partner, in connection with any and all claims, actions, proceeding, liabilities, judgments, damages, orders, losses, reasonable costs and expenses (including reasonable attorneys’ fees and legal costs) relating to infringement of any United States patent, copyright or trade secret by the Company Property in the form provided by Company to Partner, provided that the infringement does not result from Partner's modification of the Company Property or its incorporation with other software, hardware, or apparatus. If such a claim is made, Company, at its own expense, may exercise any of the following remedies that is reasonably and commercially practicable: (1) obtain for Partner the right to continue to use the Company Property consistent with this Agreement; (2) modify the Company Property so it is non-infringing and in compliance with this Agreement; or (3) replace the Company Property with non-infringing Company Property that complies with this Agreement. If none of these options are available, Company shall refund to Partner the remaining value of the Company Property in Partners inventory.
C. Conditions. Indemnification is subject to the following conditions: (1) the party seeking indemnification must notify the indemnifying party promptly if a claim might be asserted, provided that failure to promptly notify the indemnifying party shall not relieve the indemnifying party of its obligations under this Section except to the extent the failure prejudiced its defense of the matter; (2) the indemnifying party has sole control over the defense of the claim and any negotiations for its settlement or compromise; (3) the party seeking indemnification takes no action that impairs the other party’s defense of the claim; and

(4) the party seeking indemnification reasonable cooperates in the defense of the claim at the other party’s expense.

D. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN RELATION TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES EXCEPT THAT THIS LIMITATION SHALL NOT APPLY TO PARTNER’S BREACH OF ITS OBLIGATIONS REGARDING SUBLICENSES OR COMPANY’S PROPRIETARY OR CONFIDENTIALITY RIGHTS. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR INCIDENTAL TO THE TRANSACTIONS HEREUNDER MAY BE BROUGHT AGAINST COMPANY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS RECEIVED BY COMPANY FROM PARTNER HEREUNDER.

10. General

(a) Warranties and Representations. Company represents and warrants that it is the owner of all of Company’s Trademarks, and any Trademark registrations and/or applications for Trademark registration procured by Company. Company makes no other warranties of any kind, either express or implied, with respect to the Trademarks. Company warrants that to the best of its knowledge and after reasonable investigation, that the use of the Company Property as permitted hereunder will not infringe upon, violate, or misappropriate any United States copyright or trademark rights.

(b) Entire Agreement. Company and Partner acknowledge that they have not been induced to enter into this Agreement by any representation or warranty not set forth in this Agreement. This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all existing agreements and all oral, written or other communications between
them concerning its subject matter. This Agreement shall not be modified in any way except in writing signed by both parties.
(c) Assignment. Partner may not assign this Agreement without prior written consent by Company. Any assignment in violation of this provision is null and void. Company may freely assign this Agreement in connection with any sale or transfer by Company of substantially all of Company’s business or stock. This Assignment shall be fully binding and enforceable as against all permitted assignees and successors in interest.
(d) Enforceability. If any provision of the Agreement (or any portion thereof) shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.
(e) Non-Compete. Company and Partner agree that each company's employees are highly important to the success of each company, and that each company reasonably expects to retain its employees free from the other's interference. During the period that begins with the execution of this Agreement and expires one (1) year after termination or expiration of this Agreement, neither party shall, without the express written permission of the other, solicit and hire for employment, either as an employee or as an independent contractor, such an employee of the other. For purposes of this subsection (e), prohibited solicitation means the specific targeting, recruitment and hiring of such an employee, as opposed to a general recruitment effort that is not specifically directed at such an employee, such as an advertisement in a newspaper, trade publication or similar electronic forum. Company and Partner agree that any breach of this provision may result in injury to the non-breaching party that would be difficult or impossible to estimate. Therefore, in the event of such a breach, and as the sole and exclusive remedy therefore, the breaching party shall promptly pay to the other a sum equal to one (1) years gross salary most recently being paid by the non-breaching party to the affected employee. Such sum shall be paid as liquidated damages and not as a penalty.
(f) Law and Forum. This Agreement (and any and all amendments thereto) and its validity, construction and performance shall be governed in all respects by the laws of the State of California, without giving effect to principles of conflicts of law. Exclusive jurisdiction and venue for all matters relating to this Agreement shall be in Orange County, California, and the parties hereby agree and consent to such jurisdiction and venue.
(g) Notices. Except as otherwise specifically set forth herein, all notices shall be in writing and shall be forwarded by overnight express courier requiring signature to the recipient to complete delivery, and sent to the parties at the addresses set forth at the top of this Agreement or to any other addresses designated in writing hereafter. Notice shall be deemed delivered two days after it is given, if by courier, from the notifying party to the receiving party.
(h) Headings. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.
(i) Non-Waiver. The failure of either Partner or Company to insist upon strict performance of any of the provisions contained herein shall in no way constitute a waiver of future violations of the same or any other provision.
(j) Authority. The individuals executing this Agreement on behalf of the Partner and Company do each hereby represent and warrant that they are duly authorized by all necessary action to execute this Agreement on behalf of their respective principals.
(k) Survival. The provisions of this Agreement relating to confidentiality and indemnities shall survive any termination or expiration of this Agreement for a period of three (3) years.

HEROware Crusader Partner Agreement
SCHEDULE A

The HEROware, Inc. Trademark Style Guide is located at http://www.heroware.com. Select Partners, then select Crusader Partner Portal and then click on Trademark Style Guide. Please note that a username and password are required to access this portion of the site.
A listing of HEROware, Inc. trademarks and proprietary notices are located at
http://www.heroware.com/legal/tmpn