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PREFERRED PARTNERSHIP AGREEMENT

This Preferred Partner Agreement (“Agreement”) is made and entered into as of the date last signed below (“Effective Date”) by and between Haloocom Technologies Private Limited with a principal place of business at #50, 2nd Floor, FCI Godown Road, Dooravani Nagar, Bangalore-560016 (“HALOOCOM”) and _______________________ with a principal place of business at ________________________(“Preferred Partner”).  In consideration of the promises, terms and conditions set forth herein, the parties hereby agree as follows:

SECTION 1. APPOINTMENT.  
Subject to the terms and conditions of this Agreement, Preferred Partner is appointed and agrees to act as Haloocom’ non-exclusive Preferred Partner for products and services offered by Haloocom that are included on the Haloocom price list provided to Preferred Partner by Haloocom (“Price List”) (the “Services”) only in the geographic territory, vertical market and/or accounts listed in Exhibit A (“Territory”). Haloocom reserves the right to modify the Territory at any time upon notice to Preferred Partner. Haloocom grants to Preferred Partner a non-exclusive, non-transferable right and license to: (a) resell the Services to end user customers (“End Users”) in the Territory as provided herein, (b) to use Demo Accounts pursuant to Section 6 and (c) to provide support services to End Users (“Support Services”) as described in Section 5. This grant does not authorize any sub-Preferred Partners without the prior written approval of Haloocom.  Nothing in this Agreement shall be construed as limiting Haloocom’ marketing or distribution activities in any manner or its ability to contact End Users directly at any time during and after the term of this Agreement. Haloocom remains free to appoint other Preferred Partners, channel partners, representatives or agents.

SECTION 2. TERM OF AGREEMENT.  This Agreement shall have an initial term of one (1) year from the Effective Date.  This Agreement shall then automatically renew on the anniversary date of the Effective Date for successive one (1) year periods, unless either party provides the other with sixty (60) days written notice prior to such anniversary that it intends to terminate the Agreement.  This Agreement may terminate earlier pursuant to the terms of Section 12.

SECTION 3. PROGRAM GUIDE. Preferred Partner’s activities may also be subject to supplemental documents which include benefits, incentives, resources, and related information (each a “Program” as provided by Haloocom at its sole discretion) to help Preferred Partner drive new opportunities when selling the Products & Services, and ancillary documents further describing such benefits, obligations, and opportunities (“Program Guide”). Preferred Partner must agree to the terms in the Program Guide to participate in a program. The Program Guide contains information including marketing guidelines, deal registration procedures, discounts, and other business-related terms. In the event of any conflicts between a Program Guide and this Agreement, the Program Guide shall take precedence as to the conflict. The Program Guide is subject to additions, modifications, deletions and other changes from time to time at Haloocom’ sole discretion.  Haloocom shall use commercially reasonable efforts to notify Preferred Partner of such changes.

SECTION 4. ORDERS AND CHANGES.

4.1 Orders.  From time to time, Preferred Partner will order Products & Services by submitting orders using a form provided by Haloocom (“Order(s)”). All Orders submitted by Preferred Partner shall be deemed to incorporate and be subject to the terms and conditions of this Agreement.  No terms and conditions contained in any Order, other than the description of Services and subscription details, shall be binding on Haloocom to the extent that such terms and conditions are material and either additional to, or inconsistent with, those contained in this Agreement.  Preferred Partner shall require each End User to execute a written agreement that clearly states that the plan-specific terms for the deal engagement. The Terms and Conditions are subject to additions, modifications, deletions and other changes from time to time at Haloocom’ sole discretion.  Haloocom shall use commercially reasonable efforts to notify Preferred Partner of such changes. Haloocom reserves the right to request that Preferred Partner submit a copy of the written agreement signed by the End User with each Order.

4.2 Acceptance.  No Order shall be binding on Haloocom until accepted in writing or upon provision of Services by Haloocom.  Haloocom shall use commercially reasonable efforts to fill all Orders, but shall not be obligated to accept any Orders, particularly Orders that contain start dates, special instructions, or other terms that Haloocom is unable or unwilling to meet. In addition, Haloocom shall not be obligated to accept any Orders should Preferred Partner fail to comply with the material terms of this Agreement, including meeting the payment terms of previous Orders or due to the general financial condition of the Preferred Partner, as interpreted by Haloocom’ Finance Department.

4.3 Changes to Orders.  Preferred Partner may delay the start date of any Order one time for up to thirty (30) days at no charge by providing written notice of such rescheduling at least thirty (30) business days prior to the originally scheduled start date.  The use of e-mail shall constitute written notice in this process.  If Preferred Partner requests an accelerated start date, Haloocom shall make reasonable efforts to meet Preferred Partner’s requested date; however, inability to accommodate such requests shall not be considered to be a breach of this Agreement.

4.4 Provision of Services.  Haloocom shall make the Services available to the End User after acceptance of an Order from Preferred Partner.  Any delay by an End User in registering for an administrative account for the Services shall not affect the billing start date on an Order.

SECTION 5. SUPPORT SERVICES.  Preferred Partner shall provide account, sales, sales support, installation assistance and Level 1 Support as described in the Program Guide.  Haloocom shall work with Preferred Partner during Haloocom regular business hours to provide Level 2 Support if Preferred Partner is unable to resolve an issue.

SECTION 6. DEMONSTRATION ACCOUNTS.  During the Term of this Agreement, Preferred Partner may be provided use of limited demonstration accounts for the Services (each a “Demo Account”).  Demo Accounts will be subject to the Terms and Conditions, except that, notwithstanding anything to the contrary in the Terms and Conditions, the following terms shall apply: (a) Demo Accounts may only be used by Preferred Partner for limited demonstration, marketing and purposes of presenting the Services to potential customers (and not for Preferred Partner’s or any customer’s production use or for any other purpose), (b) Demo Accounts may be terminated by Haloocom for any reason upon written notice and (c) Haloocom shall have no liability or obligation arising out of Preferred Partner’s use of (or inability to use) Demo Accounts. At any time, Haloocom has the right in its sole discretion to limit Demo Accounts or the number of minutes per month that Demo Accounts may be used. Haloocom will monitor all Demo Accounts and if any usage by Preferred Partner (or Preferred Partner’s prospective customers) is deemed abusive in Haloocom’ sole discretion, Haloocom shall have the right to terminate such Demo Accounts. Preferred Partner is not entitled to any commission on fees paid for Demo Accounts. Preferred Partner shall not use Demo Accounts as a means to promote or offer

SECTION 7. other services offered by Preferred Partner. In the event of a conflict between the terms of this Section and the Terms and Conditions as it concerns Demo Accounts, the terms of this Section shall control.

SECTION 8. PRICES AND DISCOUNTS.

8.1 Price List and Discounts.  Preferred Partner shall order, and Haloocom shall invoice Preferred Partner for, the Services at the price in the then current Haloocom Price List, which may be updated from time to time, less any applicable discounts communicated by Haloocom to a Preferred Partner in a Program Guide. Preferred Partner understands that Haloocom’ Price List, Program Guide, and pricing related information are Haloocom’ Confidential Information.  Preferred Partner shall not publicize the Price List or Program Guide any discounts associated with the Services in any manner.  Preferred Partner shall be free to offer the Services at any price to the End User, not beyond MSP.

8.2 Price Changes.  The Price List is subject to additions, modifications, deletions and other changes from time to time.  Haloocom shall use commercially reasonable efforts to notify Preferred Partner of such changes.  At the time an Order is placed by the Preferred Partner to Haloocom, it is the responsibility of the Preferred Partner to verify correct pricing on the then current Price List.

8.3 Taxes.  The Price List and amounts payable to Haloocom are exclusive of any sales, use, excise, value added, import, business, service, goods and services, consumption, withholding or other applicable taxes, tariffs or duties (“Taxes”).  Preferred Partner is solely responsible for payment of all Taxes except for any taxes based solely on Haloocom’ net income.  If Preferred Partner is required to pay any Taxes, Preferred Partner shall pay such Taxes with no reduction or offset in the amounts payable to Haloocom hereunder.  If any payment that Preferred Partner makes under this Agreement is subject to a deduction or withholding for or on account of any tax, then Preferred Partner will pay an additional amount to Haloocom.  That additional amount will be calculated so as to ensure that Haloocom will be left with the same overall sum that Haloocom would have received in the absence of the deduction or withholding.  If Haloocom has the legal obligation to pay or collect Taxes for which Preferred Partner is responsible, Haloocom shall invoice the appropriate amount and Preferred Partner shall pay such amounts.  If Preferred Partner claims exemption from any tax, Preferred Partner shall furnish Haloocom with a valid exemption certificate issued by each taxing jurisdiction or entity where such certificate is required as a condition for the avoidance of applicable Taxes covering any Software to be licensed under this Agreement or any other appropriate exemption certificates and such other documents as Haloocom reasonably requires.

8.4 Preferred Partnership Fees. Preferred Partner will pay a one-time fee of INR 75,000/- + Tax as part of partnership fees. 50% of the Partnership fees paid will be spent back in the preferred Partner region for Marketing Development within first 6 months of the association.

SECTION 9. PAYMENT AND SECURITY TERMS.

9.1 Payment Terms.  Terms of payment are set forth in Exhibit B.  Delinquent amounts shall bear interest at a rate equal to the lesser of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum rate permitted by law, whichever is less.    Preferred Partner shall pay all costs and expenses, including reasonable attorneys’ fees, expended or incurred by Haloocom in connection with the collection of any delinquent amounts hereunder.  Haloocom reserves the right to refuse any Orders during any period in which Preferred Partner has any amounts outstanding over sixty (60) days.

9.2 Method of Payment.  All payments shall be made in INR to an account or address specified by Haloocom on the invoice.

9.3 Financial Information.  Preferred Partner shall submit to Haloocom all data requested by Haloocom in order for Haloocom to establish a credit limit that will serve as the maximum amount of accounts receivable that Preferred Partner may have outstanding at any one time.  Preferred Partner understands and agrees that such data must be submitted at time of execution of this Agreement.  Haloocom reserves the right, at its sole discretion, to change credit terms at any time to Preferred Partner.  In addition, Haloocom may cease to offer Preferred Partner any credit line if Preferred Partner allows its account to be outstanding over sixty (60) days.

SECTION 10. PREFERRED PARTNER REPRESENTATIONS.

Preferred Partner hereby warrants, represents and covenants as follows, at a minimum:

10.1 To use its best efforts to promote the Products & Services in a manner that will reflect favorably on the Services and on the goodwill and reputation of Haloocom.

10.2 To adhere to Haloocom’ standard advertising policies as specified by Haloocom in all advertising and promotional efforts.

10.3 To identify the Services as proprietary to Haloocom, and not to remove any copyright, trademark, confidentiality, or other proprietary notices of Haloocom or its suppliers from any materials provided to Preferred Partner by Haloocom.  In addition, Preferred Partner shall follow good proprietary rights’ practices and procedures to protect Haloocom’ and its suppliers’ rights, including those practices and procedures which may be reasonably required by Haloocom.  All advertising, promotion or other material relating to the Services must be approved in writing by Haloocom prior to distribution of such material. The use of email shall constitute written notice in this process.

10.4 To maintain insurance in types and amounts appropriate for Preferred Partner’s business and provide confirmation of coverage (in the form of a certificate) upon request from time-to-time.

10.5 To refrain from engaging in any illegal, unfair, anti-competitive, or deceptive trade practices, or any unethical business practices whatsoever, or making any representations inconsistent with the specifications provided by Haloocom with respect to the promotion or licensing of Software.

10.6 To adhere to the terms of the Program Guide and the terms governing the use of the Haloocom Partner Portal (“Portal Terms”).

10.7 Preferred Partner acknowledges and agrees that Haloocom’ third-party licensors and suppliers are intended third party beneficiaries of all terms and conditions of this Agreement, but shall have no obligations hereunder.

SECTION 11. REPORTING.

11.1 Audit.  Preferred Partner shall maintain accurate and complete records of its activities under this Agreement. Haloocom or its agents may, with fifteen (15) days’ notice, audit Preferred Partner’s records and inspect Preferred Partner’s facilities to verify Preferred Partner’s compliance with the provisions of this Agreement.

SECTION 12. END USER WARRANTY AND DISCLAIMER.

12.1 End User Warranty.  Upon the End User’s acceptance of the Terms and Conditions, Haloocom shall grant the End User the warranties detailed in the Terms and Conditions. Warranties may only be granted directly by Haloocom to End Users.  Preferred Partner shall not make any warranties or representations regarding the Services.

12.2 DISCLAIMER.  PREFERRED PARTNER ACKNOWLEDGES THAT THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND FURTHER ACKNOWLEDGES THAT HALOOCOM DOES NOT WARRANT THAT (A) THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (B) THE SERVICES ARE NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE OR (C) THE FEATURES OR FUNCTIONALITIES OF THE SERVICES WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. HALOOCOM DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ON SERVICES FURNISHED HEREUNDER INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

SECTION 13. TERMINATION OF AGREEMENT.

13.1 Termination.  This Agreement and/or any Program and/or Program Guide hereunder may be terminated prior to the period set forth in Section 2 above upon the occurrence of (a) the failure or neglect of Preferred Partner to pay Haloocom any sum or amounts due hereunder within the terms of this Agreement where such delinquency is not fully corrected within ten (10) days of Haloocom’ written notice, (b) the failure or neglect of either party to observe, keep or perform, any of the other material covenants, terms and conditions of this Agreement where such non-performance is not remedied by such party within thirty (30) days after written notice by the other party of its intent to terminate or (c) with sixty (60) days written notice from either party.  Termination is not an exclusive remedy and all other remedies will be available regardless of the termination of this Agreement.

13.2 Payment Obligation.  Any termination of this Agreement or a Program or Program Guide shall not release Preferred Partner from any obligation to pay any amount that may then or in the future be owing to Haloocom.

13.3 Discontinuance of Services.  Haloocom may discontinue the provision of Services upon notice to Preferred Partner.  Haloocom may, at its option, substitute new Services at new prices for the discontinued Services.

13.4 Effect of Termination.  Except as provided in this Section, in the event of termination of this Agreement, Haloocom is relieved from any further obligation to accept orders for Services and may cancel all of Preferred Partner’s pending Orders for Services notwithstanding previous acceptance by Haloocom.  Upon termination of this Agreement by either party or naturally at the end of the term Preferred Partner shall discontinue all further promotion, marketing, and support of the Services.  Without limiting the generality of the foregoing, Preferred Partner shall (a) return all marketing, literature and other materials provided by Haloocom, (b) cease all display, advertising, and use of all Marks (defined below) and (c) will not thereafter use, advertise, or display any Marks.  In any event, active End Users subscriptions will remain in effect in accordance with the Terms and Conditions and the Order shall survive any such termination of this Agreement unless such termination is due to Preferred Partner’s failure to pay for Services.    Immediately after termination or expiration of this Agreement, each party will promptly return all copies of Confidential Information and proprietary materials of Haloocom, documented service pricing, catalogues and literature in its possession, custody or control. Notwithstanding the above, nothing herein shall limit Haloocom’ right to collect and retain the information of End Users.

13.5 Survival of Terms.  Sections 4.4, 7.3, 8-13, 14.2, 14.3, and 15-17 shall survive termination of this Agreement for any reason.

SECTION 14. CONFIDENTIAL INFORMATION. 

14.1 Definition.  During the term of this Agreement, either party may disclose to the other certain information that is marked or otherwise designated at the time of disclosure as “confidential” or “proprietary” or the like (“Confidential Information”). Haloocom’ Confidential Information includes, without any marking or further designation, (a) the Price List, Program Guide, and other terms reflected in all Orders hereunder, (b) any trade secrets, know-how, inventions (whether or not patentable), techniques, ideas, or processes related to the Services, (c) the design and architecture of the Services, (d) the computer code, internal documentation, and design and functional specifications of the Services and (e) any problem reports, analysis and performance information related to the Services.

14.2 Obligations of Confidentiality.  The receiving party agrees to keep Confidential Information secret, only use Confidential Information for the purpose of fulfilling its obligations hereunder and shall disclose the Confidential Information only on a confidential basis to its own employees who have a need to know for purposes permitted by this Agreement.  The receiving party shall not disclose any such Confidential Information to any third party without the prior written authorization of the disclosing party and shall not allow any Confidential Information, or copies thereof, out of its possession and control. Neither party shall have any obligation to protect Confidential Information which (a) was in the receiving party’s possession prior to receipt from the disclosing party, (b) is, or becomes, a matter of public knowledge through no act of the receiving party, (c) is rightfully disclosed to the receiving party by a third party without a duty of confidentiality, (d) is disclosed by the disclosing party to a third party without a duty of confidentiality, (e) is independently developed by the receiving party or (f) is disclosed by the receiving party with the written permission of the disclosing party.

14.3 Non-Compete. The Prefered Partner will not promote or support any other competing brand/product or service during the contract period.

14.4 Lead Protection. All new leads that’s generated by Haloocom directly or its partners around the globe, originating from Preferred Partner region will be shared back to the Preferred Partner(s), purely based on Haloocom’s sole will & wish. This Clause does not create any obligation on Haloocom’s part & such leads generated and passed on to preferred partner, the billing to client will be done directly by Haloocom. In special circumstances – billing can be done by Preferred Partner, provided the instance is backed by an approval email from Haloocom allowing Preferred Partner to bill directly to a lead generated & passed on by Haloocom to Preferred Partner.

14.5 Business Outside Territory. Preferred Partner has to notify Haloocom over an email, in case of any deals outside the designated Territory. In case there are no other existing Designated Preferred Partner of Haloocom at that region, the lead generating Preferred Partner is Free to do business in a new Territory. In case – Haloocom has a designated Preferred Partner already in the new Territory, the lead generating Preferred Partner has to pay a commission of 2% to the designated Preferred Partner in that Territory in exchange of Local Support, delivery, execution, billing etc.

14.6 Injunctive Relief.  It is agreed that the unauthorized use or disclosure of any Confidential Information by the receiving party in violation of this Agreement may cause severe and irreparable damage to the disclosing party and/or its suppliers and, therefore, that upon any such breach or any threat thereof, the disclosing party shall be entitled to temporary, preliminary and permanent injunctive relief against the receiving party, its officers or employees, without the requirement of posting a bond or proving actual damages, in addition to whatever remedies it might have at law.

14.7 Feedback.  Preferred Partner may from time to time provide suggestions, comments or other feedback (“Feedback”) with respect to the Services or Confidential Information provided by Haloocom.  Feedback shall not be deemed to constitute Confidential Information of Preferred Partner or to impose any confidentiality obligations on Haloocom. Preferred Partner agrees that Haloocom is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

SECTION 15. TRADEMARKS.

15.1 Marks.  Haloocom hereby grants Preferred Partner a non-exclusive license to use Haloocom trademarks, service marks, logos, trade names and proprietary words or symbols as Haloocom may from time to time authorize, (collectively the “Marks”) subject to Haloocom’ trademark usage guidelines and solely in connection with the marketing, distribution and support of the Services pursuant to the terms and conditions of this Agreement.

15.2 Requirements. Preferred Partner shall indicate that such Marks are the property of Haloocom and are used under license from Haloocom.  Preferred Partner acknowledges and agrees that the Marks are, and shall remain, the sole and exclusive property of Haloocom, and that nothing herein shall give Preferred Partner any right, title or interest in such Marks (including, without limitation, in any goodwill associated therewith, whether or not arising out of this Agreement), except such rights as are explicitly granted hereunder.  Preferred Partner shall not use or register the Marks, or any other trademarks, service marks, logos or trade names of Haloocom or any word, symbol or design confusingly similar thereto, including as part of its corporate name, as part of the name of any product of Preferred Partner, domain names, email or social media identifiers or the like.

15.3 Notification of Infringement. Preferred Partner agrees to notify Haloocom immediately of any adverse use of marks confusingly similar to the Marks, and of any infringement, imitation or passing off of the Marks by any third party that comes to Preferred Partner’s attention.

SECTION 16. INDEMNIFICATION

16.1 By Haloocom.  Haloocom shall defend, at Haloocom’ expense, any third party claim brought against Preferred Partner alleging that the Services (a) infringe any patent, copyright or trademark of such third party claimant having effect in the United States or (b) misappropriate any trade secret or other intellectual property right of such third party claimant having effect in the United States and Haloocom will pay any amounts agreed to in a settlement signed by an authorized officer of Haloocom or final judgments awarded to the third party claimant by a court of competent jurisdiction.

16.2 Options.  If the Services become, or in Haloocom’ opinion may become, subject to an infringement claim, Haloocom shall at its option and at its own expense (a) procure for Preferred Partner the right to continue distributing the Services, (b) replace the Services with functionally equivalent non-infringing Services, (c) modify the Services so they become non-infringing or, if Haloocom, in its sole discretion, determines that options (a)-(c) are not reasonably practicable, (d) terminate this Agreement and refund pre-paid unused fees for the allegedly infringing Services.  Haloocom will not be liable for any infringement of intellectual property rights resulting from (i) compliance with Preferred Partner’s or an End User’s designs, specifications or instructions, (ii) use of the Services other than as specified in Haloocom’ published technical documentation or (iii) use of the Services in combination with other products, processes or materials that are not reasonably contemplated by the Documentation where the alleged infringement relates to such combination.

16.3 By Preferred Partner.  Preferred Partner shall defend, at Preferred Partner’s expense, any third party claim brought against Haloocom arising from or related to (a) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Preferred Partner regarding the Services or (b) Preferred Partner’s failure to obtain an End User’s acceptance of the Terms and Conditions and Preferred Partner will pay any amounts agreed to in a settlement signed by an authorized officer of Preferred Partner or final judgments awarded to the third party claimant by a court of competent jurisdiction.

16.4 Procedure.  Each party’s obligations herein are conditioned on the party seeking indemnification (a) providing the indemnifying party with prompt written notice of any claim, (b) granting the indemnifying party the sole control of the defense or settlement of the claim and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense.

16.5 Sole and Exclusive Remedy.  THIS SECTION 15 STATES HALOOCOM’ ENTIRE RESPONSIBILITY AND PREFERRED PARTNER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

SECTION 17. LIMITATION OF LIABILITY.

IN NO EVENT SHALL EITHER PARTY BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY OR (C) ANY DAMAGES THAT EXCEED THE TOTAL FEES PAID OR PAYABLE BY PREFERRED PARTNER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  NOTWITHSTANDING THE ABOVE, THE LIMITATIONS OF THIS SECTION 16 SHALL NOT APPLY TO (I) PREFERRED PARTNER’S BREACH OF SECTION 9.5 OR 9.6, (II) EITHER PARTY’S BREACH OF SECTION 13 OR (III) EITHER PARTY’S OBLIGATIONS UNDER SECTION 15.SECTION

18. GENERAL PROVISIONS.

18.1 Notices.  Notices to be given or submitted by either party to other pursuant to this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt) or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid.  Notices shall be addressed as follows unless either party gives notice to the other of a change of address:

Haloocom

#410, 6th Main, 1st Cross, Sadanand Nagar, Bangalore, Karnataka – 560038, INDIA

Attention:  Mr. Rajesh

Email: rajesh@haloocom.com

Phone: +91-9886620544

Preferred Partner:

Address:

Attention:

Email:

Phone:

18.2 Non-Agency.  The parties acknowledge that (a) they are acting as independent contractors, (b) each party is solely responsible for its actions or inactions, (c) the parties shall not be deemed to be agents of each other and (d) no joint venture, franchise, partnership, agency, or other relationship shall be created or implied by this Agreement. Each party shall be prohibited from doing any acts that may create the impression of agency or legal partnership.  Preferred Partner shall have no authority to enter into agreements of any kind on behalf of Haloocom, other than to present to End-users with Haloocom’ Terms and Conditions and shall have no further power or authority to bind or obligate Haloocom in any manner to any third party.  Except as expressly set forth herein, each party shall bear full and sole responsibility for its own expenses, liabilities, and costs of operation.

18.3 Governing Law and Legal Actions.  This Agreement shall be governed by and construed in accordance with the Indian Law. Any legal claim, suit, action or proceeding arising out of this Agreement or the matters contemplated hereunder or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the Indian Law of the Courts of Bangalore (Exclusive Jurisdiction), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens.

18.4 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be illegal, unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

18.5 No Waiver.  No waiver by either party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

18.6 Assignment.  This Agreement and the rights and obligations hereunder are not transferable or assignable by Preferred Partner without the prior written consent of Haloocom, which may withhold its consent in its sole discretion.  Haloocom may assign this Agreement and its rights and obligations hereunder at any time upon notice to Preferred Partner.

18.7 Entire Agreement.  This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument. Each party agrees that any terms and conditions of any Order or other instrument issued by Preferred Partner in connection with the Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement shall be of no force or effect.

18.8 Amendment.  This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.

18.9 Force Majeure.  Except for Preferred Partner’s payment obligations, neither party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to, without limitation, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or equipment, loss and destruction of property or any other circumstances or causes beyond a party’s reasonable control.

18.10 Official Language. This Agreement shall be executed in the English language. In case of any conflict between the English version and any translated version of this Agreement, if any, the English language version shall govern.

18.11 No Conflict of Interest.  Preferred Partner represents and warrants that it has full power and authority to undertake the obligations set forth in this Agreement and that it has not entered into any other agreements or understandings, nor will it enter into any other agreements or understandings, that would render it incapable of satisfactorily performing its obligations hereunder, or place it in a position of conflict of interest, or be inconsistent or in conflict with its obligations hereunder.

IN WITNESS WHEREOF, Haloocom and Preferred Partner acknowledge that they have read this Agreement, including any Exhibits hereto, understand them and agree to be bound by their terms and conditions:

EXHIBIT A

TERRITORY AND SERVICES 

TERRITORY

Preferred Partner’s territory shall consist of the following (geographic territory, vertical market and/or accounts): TERRITORY. The Territory expressly excludes any internet or online sales.

1. _________________

SERVICES

LIST HALOOCOM’ SERVICES THAT PREFERRED PARTNER CAN OFFER

1. HALOO XCHANGE IP PBX

2. HALOO CONNECT CONTACT CENTER SUITE

3. HALOO WAY – Location based service

4. GO LIVE VIDEO CONFERENCING

5. SUPPORT & CONSULTANCY

EXHIBIT B

BILLING

•Preferred Partner will invoice and collect payment from End Users.

• FOR GO LIVE Haloocom will invoice Preferred Partner on a per customer basis (1 invoice per customer) unless otherwise agreed by the parties. -For example, if an End User has purchased 100 subscriptions to the Service at INR 1000/user/month and was given access to the Service on March 15th, Haloocom will invoice Preferred Partner at the end of March reflecting the billing period of March 15 through April 14.

• Once a month, Haloocom will email Preferred Partner a summary spreadsheet of all End User invoices from previous 30 days unless otherwise agreed by the parties.  This report will be sent by the 10th of each month.

• FOR ALL other Capex deals – 50% advance payment with Filled Order Form & a copy of the signed agreement with the End User, balance 50% within 15 days of Installation Completion

• FOR ALL other Opex deals – Quarterly Payment in Advance

• FOR ALL other Support deals – Yearly Payment in Advance

• Preferred Partner will pay Haloocom within thirty (30) days of each End User order date, subject to initial and continuing credit approval.  This payment obligation is independent of Preferred Partner’s collection efforts from End Users. 

• Haloocom will maintain records of individual customer price plans, service usage and monthly invoices.• Both parties agree that any applicable End User overages fees from previous months will be billed in arrears.